Bergman v Haertsch

HIS HONOUR: The plaintiff by the amended statement of claim, seeks to recover damages against the defendant, a medical practitioner, and plastic/gender reassignment surgeon. The proceedings in broad terms relate to what is called gender reassignment surgery performed by the defendant on the plaintiff on 23 May 1994. The plaintiff relies on three causes of action being in contract, negligence and assault (trespass). The plaintiff’s case in negligence is put upon two bases: first an alleged failure to warn of material risks inherent or associated with the gender reassignment surgery; and further, or alternatively, negligent performance of the gender reassignment surgery itself. That said, it is appropriate to immediately note that in his final submission the plaintiff’s counsel did state (T 338) his view that he always thought that “this case was all about” the issue relating to the performance of the surgery.

The action involves issues of human, legal and medical interest. It is a case concerning matters normally of a highly personal and private nature to a human being. It is a case of some sensitivity and delicacy calling for understanding and some sympathy. That said, it is an action which puts these matters into the open. The action is to be determined according to the evidence and according to law. This is a case where for obvious reasons it is not appropriate to always utilise gender neutral language. Against this background I make no apology for the length of this judgment. Background and Introduction

The plaintiff is a male to female transsexual. The plaintiff was born on 6 September 1969. She was born a biological male and of the male gender. The plaintiff at birth had male genitalia. The plaintiff’s sex was that of a male. The plaintiff was registered as being of the male sex. From early childhood the plaintiff experienced what has been called gender dysphoria or transsexualism.

For a number of years prior to the surgery of 1994 the plaintiff had long been pre-occupied with her gender. Prior to 1994, though physically of the male sex, the plaintiff felt herself to be of the psychological disposition of the female sex. The situation was not of her own choice or making. That said, this is not the occasion to explore the cause or causes of gender dysphoria or transsexualism. The plaintiff’s pre-operation situation may conveniently be summarised by reference to the history of Dr Walker’s report of 10 March 1998. The history recorded I generally accept. I quote: “Chanelle was born the only child in her family. She had three female cousins, one the same age as she was, another one year older, and a third two years older. She grew up with these 3 girls and had a close affinity to them, going on shared holidays together. Right from the earliest age that she can remember, she enjoyed doing things that other girls did. Problems began to emerge when Chanelle had to wear shorts and go to a co-educational primary school as a boy. Somehow she felt that she was a girl dressed as a boy. She did not enjoy socialising at school, and was harassed at primary and secondary schools because of her effeminate demeanour. She was molested as a child at home from age 7 years. She remembers when she was at high school that she was attracted to boys, believing that she was a girl, so she was attracted to them as heterosexuals not from a homosexual point of view. At aged 15 she met a transsexual and felt aligned to the way that that transsexual thought. After seeing her family physician she was started on feminising hormones from the age of 16 to 17 years but, because she was unsure of her sexuality at that time she started and stopped feminising hormones. She soon realised however, that she felt better as a female and had good breast development with feminising hormones. She left home and went to live in Melbourne. She dressed as a female from aged 17 years. She has qualified as a beauty therapist in 1993. Previous medical history - breast augmentation ….”.

On 23 May 1994 an operation was performed at the plaintiff’s request of gender reassignment surgery male to female by the defendant in Sydney.

Further, for many years before this surgery the plaintiff too had long been concerned with her gender, as well as presenting with the appearance of a female. The gender dysphoria and preparation for gender reassignment surgery had for many years (between 1989-1992) allegedly caused her to be unable to work, caused her to suffer some alleged discrimination, and for many years qualified her for receipt of social service sickness benefits for total incapacity for inter alia gender reassignment, nervous disorder and transsexualism: (see Exhibit 2). At school due to the effeminate condition she felt harassed. From the age of eight she experienced feelings that she did not belong. From 1987 to 1991 she lived on a day to day basis as a woman. She commenced taking female hormones, including oestrogen tablets and aldactone. From the age of 17 she started to feel better as a female enjoying good breast development. By 1991 she had already considered gender reassignment surgery.

Prior to 1994 the plaintiff had done some female modelling and appeared in photographs in the Magazine Playgirl some of which appear in a Woman’s Day article in September 1994 (Exhibit 4). A photograph of the plaintiff and of her female appearance prior to the 1994 surgery may be seen in photographs (Exhibit “E”). Again for many years prior to the May 1994 surgery the plaintiff too had lived under a female first name. Again prior to surgery in her eyes she regarded herself as a woman and said she felt like a woman. She did not feel like a man.

Further, prior to surgery, the plaintiff had breast augmentation (mammaplasty). She had, in accordance with usual and proper practice, undergone extensive psychiatric assessments as to her understanding of gender reassignment surgery. For reasons that will appear, following full investigation on her part and medical assessments, the plaintiff elected to have the surgery. I conclude that this too was surgery undertaken by her with full understanding of the material risks. Indeed, the plaintiff appeared to be a person of intelligence with full and sound adult capacity to understand the issues concerned with the surgery. These matters will be expanded upon in greater detail. The surgery took place against a background of due research and inquiry, and further of years of the feeling of being a woman and in effect of being a member of the opposite female sex. At the time of the surgery she felt like a woman, dressed like a woman and presented herself as a woman in general external appearance. She acted and behaved like a woman, in effect holding herself out and representing herself as a woman. Prior to the operation she had lived (since 1991) with a male partner friend Darren R in a relationship which ceased in about June 1995. The relationship too was a sexual one involving, and it is necessary to state it, oral and anal sex. Her evidence was that she had not experienced orgasm in her waking hours before the surgery of 1994.

In terms of her situation before surgery she was described in evidence by Dr Orsmond as being a “primary transsexual”.

Elective gender reassignment surgery was performed on her by the defendant on 23 May 1994. On 10 August 1994 the defendant issued a certificate to assist her in obtaining a passport. That certificate was in the following terms: “This is to certify that Britt Bergman DOB 6 September 1969 had undergone gender reassignment surgery [23 May 1994]. She is to all intents and purposes a female. The surgery is irreversible”. (Exhibit “F”).

Later, on 22 November 1996 pursuant to the Births Deaths and Marriages Act , a Change of Name Certificate was issued confirming a lawful change of name including the particularisation of new female Christian names. The Certificate revealed the plaintiff’s sex as “Female” (Exhibit “G”).

As at 23 May 1994 the defendant was a highly qualified and experienced specialist plastic surgeon carrying on gender reassignment surgery. The plaintiff had met him on 30 October 1991 with a referral letter of 24 October 1991 from Professor Steinbeck, an Endocrinologist. At the time of surgery the defendant had carried out about 100 gender reassignment surgery cases using the surgical technique known as the penile inversion procedure.

Prior to the surgery the plaintiff also had been psychiatrically assessed and cleared for surgery by Dr Orsmond and Dr Greenway and by Professor Steinbeck. The plaintiff had been seen on a number of occasions by the defendant and his Nurse (who will be referred to as “Nurse 1”) (a transsexual who had gender reassignment surgery performed upon her by the defendant in 1990). I find that the plaintiff too had received advice from time to time about the surgery and verbal warnings of the risks of surgery from the doctors. She obtained a full understanding of the surgery, its aims and objectives from doctors, the defendant’s Nurse 1, and from transsexuals and other friends. She too had earlier seen a specialist medical group, who assist and advise transsexuals in respect of their situation. This group was led by a Dr Trudy Kennedy and was associated with Monash University in Melbourne.

By the time of the operation the plaintiff had read, and I find also understood, an extensive booklet given to her by the defendant: “Neo Vaginal Surgery - Patient Information” (Exhibit 1).

Prior to the surgery (on 22 May 1994) the plaintiff signed a consent form to surgery at the Westside Private Hospital (part of Exhibit 11). The surgery performed was described as “gender reassignment surgery male to female with principal diagnosis being gender dysphoria”. In that document the plaintiff too accepted the possible risks “associated” with the procedure.

The surgery when ultimately performed (with full understanding of the risks) followed as I have said years of consideration, investigation and enquiry. The plaintiff’s decision was not hasty but was in my view, the subject of long consideration and mature reflection. The plaintiff wanted the surgery when she did, and wanted it to be performed by the defendant. She had arranged for the fees to be paid to the defendant (with whom she had a contract to perform the surgery) and for the hospital to be also paid. She had arranged (prior to surgery) for the magazine Woman’s Day to be given an “exclusive” story in return for “reimbursement” or payment of her surgery expenses of $12,000. In the Woman’s Day article of 9 September 1994 (Exhibit 4), the plaintiff was quoted as inter alia saying when referring to the surgery: “It’s something I’ve wanted for a long time … I wanted it gone and I’d do whatever I had to achieve it, whatever it took.” [my emphasis]

The reference to “it” was in my view a reference to her “manhood”.

In cross-examination the plaintiff agreed that she said this but denied also saying “I wasn’t afraid of having my manhood surgically removed”. That she probably said it or something like it too is supported by that part of her history to Dr Dent (report of 31 August 1999) which I accept: “But if you’ve got the wrong genitals you’d do anything ” [my emphasis]. These matters are further of particular significance on the issue of causation in the context of the duty to warn case advanced.

I note that in the same Woman’s Day article the plaintiff said (and it would seem to have been part of an interview prior to the operation) that she did not feel like a man, to quote: “I’ll be glad when its all gone” (presumably here too referring pre-operatively to her “manhood”). Following the operation the plaintiff described herself as having always felt very female, and that she was “already a woman” with surgery being “just one step in the process”!

In his final submission after the conclusion of her evidence Mr Cassidy QC for the plaintiff appeared to have at least accepted that the operation had been performed for a “multitude” of purposes including to relieve the plaintiff’s distress associated with feelings of being a young woman in a man’s body: see also her statement to Dr Dent supra.

I have endeavoured to provide an introduction or outline to assist in understanding the issues in the case. That said, I believe it is now here appropriate and convenient to here quote from the 18 page booklet - “Neo Vaginal Surgery - Patient Information” (with in my view its contents being relevant to and forming part of the contract as well as to the issue of negligence) that the defendant furnished to the plaintiff pre-operatively (Exhibit 1). In my view the plaintiff received it and had full opportunity to study it before the operation. In respect of it I am satisfied that the plaintiff read it and understood it. She too had the intellectual and educational capacity to both read it, understand it and to fully absorb its contents. The booklet too was part of the material relevant to the contract, and to the duty to warn and provide information and advice to the plaintiff. I consider it is appropriate to here quote from the booklet. I believe it will better assist in understanding what the issues are. I quote: “ Introduction The following has been written, for you the client preparing for surgery. It has been written in conjunction with Dr Haertsch and with the assistance of medical specialists working in related fields. You may find some of the information covers issues that you are already comfortable with, however please read it carefully to ensure that you have not missed anything that may assist your recovery. It may be valuable to read it a number of times and to take it with you into the hospital as a reference. Should problems or concerns arise that are not discussed here, please do not hesitate to contact Dr Haertsch or his support staff. AIM The surgical procedure you are planning to undergo is intended to achieve for you a vagina and genital area similar to that of a biological female and is irreversible . Every effort will be made by the surgical team to ensure that your vagina is functional for the purpose of sexual-intercourse and your clitoris is sensitive and capable of stimulation leading to orgasm. These surgical goals however can not be guaranteed and although recipients are generally pleased with the results, there are risks. It is important that you are satisfied that these have been explained to you by the surgeon prior to your hospitalisation. If surgical complications arise then further surgery may be required to ensure a satisfactory outcome. It is important that you accept these risks, as this surgery is elective and is being performed at your request . In preparation for this surgery you have seen two psychiatrists who agree that it is reasonable for you to pursue this surgery. You may also have been diagnosed as having a condition described as gender dysphoria and/or transsexualism. It is acknowledged however that many individuals whom doctors have described as having one or both of these conditions, have chosen not to pursue surgery and have made instead lifestyle changes to manage their situation. The surgery that you are preparing for, also called genital sex or gender reassignment surgery is not considered by the medical and health care professionals who are providing this service to you as a cure of gender dysphoria or transsexualism . Both hormonal and surgical reassignment are viewed as specific strategies to assist individuals. These individuals consistently demonstrate a commitment to manage their lives and the distress they have experienced through a permanent change of gender role and a change of their genital-sex status. The surgical goal therefore is to comfort and if possible to assist the client in achieving an improvement in their quality of life. If you are unclear, confused or uncomfortable about any of the above issues we strongly recommend that you reschedule your surgical date and seek further counselling. This surgery will affect how the law defines your gender in N.S.W. and in some other states and countries. ”

To what I have said above, it is also here convenient to also state and refer to some other matters that appear from the booklet. Under the heading “About the Surgery” reference is made to the patient having discussed the nature of the surgery in detail prior to surgery and to having “the opportunity to discuss any final details and ask any further questions you may have”. Reference too is made to the need post operatively, following removal of the catheter and packing, to begin dilating. The ability to begin sexual activity was stated as follows: “usually under normal circumstances if everything occurs uneventfully then this will be around 6 - 8 weeks after surgery.”

Again reference is further made to vaginal dilating and to the consequences of failing to dilate fully. Such failure would eventually result in loss of depth and make sexual intercourse difficult and eventually impossible.

As to sexual function and previous sexual function both are also discussed in the booklet (Exhibit 1). Reference is made to sexual function being related to a number of different identified factors. I would note in passing that neither the booklet nor the surgery addresses such issues as the ability of a male to female transsexual post gender reassignment surgery of being able to find male persons ready willing or able to enter into a relationship (regular or irregular), including a sexual relationship involving penile vaginal sexual intercourse. Indeed, there was no statistical evidence on this subject. This too is an issue relevant to the issues arising for consideration in the case including on damages. The matter too of alleged “loneliness” complained of by the plaintiff to Dr Dyball in November 1998 is not one addressed or capable of being addressed by the operation. Next, in Exhibit 1 advice was given, including that poor depth and width post-operatively can be related to “surgical complications”. The possibility of the need for further correctional surgery is discussed. There is reference to “average size penis” (whatever such might mean). There is no definition of the “average”, but there is a recognition that there may not be an accommodation, even without complications, of anything more than the average. Further, advice is given that intercourse may not be pleasurable “as is the case with some biological women”. A qualification too is introduced in relation to orgasm, “if … achievable at all after surgery” noting that for some the main stimulation may be achieved around the clitoral area, but not overlooking that “sometimes orgasm is an emotional experience”. The matter of hygiene too is particularly addressed. The book also contains a conclusion. Glossary of Medical Terms

For the purpose of understanding the evidence it is appropriate to set forth a glossary of undisputed medical terms. The glossary is as follows: Term Definition Areola Tissue flimsy, connective tissue (not erectile) Caruncle a small fleshy projection. In this case referring to a bit of the urethral mucosa which is prominent. Corpora, Corporeal prefix meaning body Corpus Cavernosum the two cylinders of spongy erectile tissue within the penis. This tissue becomes engorged with blood during sexual excitement. Corpus Spongiosum a cylinder of spongy tissue surrounding the male urethra. Fistula (recto-vaginal fistula) an abnormal hole between the rectum and the neo-vagina allowing air or a combination of air and faeces to enter the neo-vagina. Galactorrhea an abnormal discharge of milk from a female or a male breast not associated with childbirth or nursing. The condition is sometimes a symptom of pituitary gland tumour. Labia Majora two long flaps of skin, one on each side of the vaginal orifice outside the labia minora. Labia Minora two folds of skin between the labia majora, extending from the clitoris backward on both sides of the vaginal orifice, ending between it and the labia majora. Levator Ani one of the pair of muscles of the pelvic diaphragm that stretches across the bottom of the pelvic cavity like a hammock, supporting the pelvic organs. Microadenoma a pituitary adenoma less than 10mm in diameter. Pituitary Adenoma tumour on the Pituitary gland diagnosed on a CAT scan. Prolactin a hormone produced and secreted into the blood stream by the anterior pituitary gland. Pubo-coccygeus Muscle the muscles on the male pelvic floor. Urethral Meatus a meatus is a natural body passage or canal. In the male, the external urethral meatus is located at the summit of the glans penis. Urethral Bulb In the neo-vagina, the urethral bulb is the spongiosum (expansive tissue) found directly in front of the vagina. In a non-stimulated stage, the bulb is soft and pliable. In the aroused state the bulb becomes hard. Vaginismus a psycho-physiologic genital reaction of women characterised by intense contraction of the muscles surrounding the vaginal introitus. The Transsexual (male to female) and Gender Reassignment Surgery

It is appropriate if I now turn to discuss the nature of gender dysphoria and/or transsexualism. In this case the cause of it has not been fully explored. Nevertheless, I believe it is of some importance to have some understanding of it for the purposes of this case and the general issues raised in it.

Transsexualism (or gender dysphoria) is a medically recognised condition affecting a number of human beings, both male and female. In the Westside Private Hospital Notes (Exhibit 2) “Gender dysphoria” in the plaintiff’s case was stated as the “principal diagnosis” with the principal operation “Gender reassignment - male to female”. For purposes of supporting the plaintiff’s claim for sickness benefits, the plaintiff’s general practitioner (between 1989 and 1992) provided regular three monthly certificates of total incapacity for work because of the plaintiff’s “gender reassignment surgery”! Why such would prevent the performance of work and/or for such a long period is not completely clear.

At the time of her birth the plaintiff had the sex, indeed the anatomical sex of a male. This, like her gender, was assigned at birth. The sex of the person in a biological sense is cast by the time of birth. The history reveals that the plaintiff as she grew older progressively started to have the subjective feelings of the female gender, albeit being a member of the assigned male gender. The plaintiff sought to achieve, as in this case, a more unambiguous identity by gender reassignment surgery, which would enable the plaintiff to adapt his physical characteristics to “his” psychological nature. As Dr Orsmond said (T 307): “This lady … was born with a very complicated psychological state, if you like, which would have followed her around wherever she went. And these people by and large have quite difficult lives in adjusting to the apparent dilemma that they confront with having genitals of one sort and yet being absolutely sure that they are of the opposite sex.”

The plaintiff in my view was in this situation. She too had a pre-surgery difficult life. She had the incentive and the full desire to undergo the surgery which she ultimately had. Indeed, the “wanted” surgery when ultimately undertaken also took place against a long period of preparation, consultation and investigation on the plaintiff’s part and to address and meet the personal “need” for it.

Thus a transsexual is a person (in this case a male) with the anatomical sex of a male who feels a belief that he is of the opposite sex (again in this case a female). This is sometimes expressed in terms of the male person having the belief of being a woman trapped in a male body. Perhaps without being unduly technical the term describes a person, who whilst biologically belonging to one sex, is convinced or feels that he/she belongs to the other sex. In the case of the male transsexual there too is perhaps the desire in the transsexual to have his body appearance and social status to further conform to his “rightful gender”. For a useful discussion as to who is a transsexual and as to transsexualism see the decision of the Federal Court of Australia in Social Security, Department of v SRA (1993) 118 ALR 467 particularly the judgment of Lockhart J. His Honour also discussed the ordinary meaning of such words as “male” and “female” and the meaning of “sex” which he considered related to the anatomical and psychological difference and not a psychological one. For a general discussion as who is a man for the purpose for example, of the criminal law see also R v Harris & Anor (1988) 17 NSWLR 158 where the Court of Criminal Appeal held that a post-operative male to female transsexual was not a man for the purpose of the particular offence that was charged.

In the instant case the evidence reveals the plaintiff’s condition of gender dysphoria was not one which she sought to have solely addressed by mere female hormonal treatment or indeed for example by counselling, both or either. She actively actually sought the gender reassignment surgery to address or further address her situation.

I would note that the word “transsexual” (the noun) is defined in the Oxford Dictionary (2nd ed, 1994) as: “Of or pertaining to transsexualism; having physical characteristics of one sex and psychological characteristics of the other”. “Transsexualism” is defined as being: “The state or condition of being transsexual, manifested by overwhelming desire to belong to the opposite sex”.

As to the surgery the male to female transsexual may with gender re-assignment surgery adopt the external genitalia of a female but still would remain incapable of bearing children. The operation does not provide ovaries or a uterus. As I would also understand it, with inter alia surgery (and other training, learning and treatment), a biological male may thus be given the appearance, as in this case of a female, with detection of her previous gender in terms of appearance to the unassisted eye or by the uninformed lay person post-operatively, being somewhat difficult.

Next, following surgery a male to female transsexual is no longer a functioning male, her psychological sex “accords” with her new anatomical sex. The surgery is draconian, complex and difficult. It is no mere simple surgery. The sex change procedures are inter alia intended to also bring the individual body into alignment with his or her psychological gender.

The surgery is not mere repair type surgery. It is elective surgery. In the case of a male to female transsexual there is a removal of the external male sexual organ and genitalia and the creation of female genitalia including a neo-vagina and neo-clitoris from human tissue, in this case involving use of the removed male penis. The surgery does not create a biological or genetic woman out of a man, with all the qualities, characteristics, sensitivities, feelings or emotions of a woman.

To be eligible for reassignment surgery a diagnosed transsexual is required to undergo psychiatric assessment. This she did with inter alia Dr Orsmond and Dr Greenway. I accept their general evidence including that which conflicts with that of the plaintiff. The plaintiff too had consulted an Endocrinologist, Professor Steinbeck whose evidence I likewise generally accept and also specifically so where it is in conflict with that of the plaintiff. As I have broadly indicated, at the time of surgery on 23 May 1994 the plaintiff transsexual presented with hormone developed secondary sexual characteristics. By May 1994 she had received extensive hormone treatment over years. In December 1993 she has been operated on and received breast argumentation (mammaplasty). She still retained male genitalia but dressed like a woman, had well developed breasts, appeared to be the world at large like woman, and had the physical attributes of a woman above the genitalia level. I would add that subsequent to the operation in 1994 the plaintiff had further cosmetic treatment including facial repair to her nose and liposuction by Dr Hodgkinson. Indeed in 1995 she was speaking to Dr Townson of having “20 other operative procedures,” reflecting an attitude then discouraged by Dr Townson.

Following surgery the situation thus was created where it would become and did become increasingly more difficult for the uninformed lay person to detect (at least in terms of the plaintiff’s external appearance and presentation in a dressed condition) the plaintiff as being a former gender male. Plaintiff’s Amended Statement of Claim

It is convenient to more particularly identify the issues to the way the plaintiff puts her case by reference to the plaintiff’s amended statement of claim.

The plaintiff claims that in or about October 1991 she consulted the defendant concerning the undertaking of gender reassignment surgery. The plaintiff asserts that the defendant gave advice in substance to the effect that he could perform surgery which would result in her no longer being a male whilst simultaneously creating specific genital features to enable her to carry on life as a female and “all that entails save and except for bearing children”.

The plaintiff asserts, that in reliance upon this advice she entered into a contractual arrangement to perform the surgery of gender reassignment, the principal purpose of such being to enable the plaintiff to “engage in vaginal intercourse with a partner of the opposite sex, to achieve orgasm, to have the genital sensation of a woman, to live and function as a woman, and to achieve a positive self image and to work in female environments”. Further, it is claimed that the purpose of the surgery was to also permit the plaintiff to engage in a normal social life as a functioning female, to enjoy a normal social and sexual life with a male partner, to engaged in the “ normal ” hygiene practises of a female and to be able to live as a female free of pain and discomfort. [my emphasis]. I would here note that there may be in some cases some difficulty in defining the word “normal”: cf Murphy v The Queen (1988-89) 167 CLR 94 at 111 (“psychiatric condition” case).

The plaintiff further claims that on 23 May 1994 the defendant performed the gender reassignment surgery but that the operation failed in a number of respects. She asserts that the neo-vagina was unsatisfactory and inadequate for vaginal intercourse, with the vaginal length being too short, the width also being too narrow. The urethral positioning was alleged to be incorrect, the urethral bulb too large and surrounded by dense musculature leading to obstruction of the neo-vaginal cavity, the labia was abnormal and too pronounced, and the posterior skin fold too large and cumbersome causing “extreme pain with any attempted vaginal intercourse”.

As a result of the alleged failure to perform the surgery it is alleged that the plaintiff suffered injury and disability and required subsequent radical surgery, more particularly in 1998 and 1999 in New Zealand.

The plaintiff also alleges that the gender reassignment surgery did not have the effect of reassigning the plaintiff from a male to a female, including being able to “function” as a female.

As I have said, the plaintiff alleges a number of causes of action namely in contract, negligence and assault.

In respect of the contract count the plaintiff claimed there was a reward for the surgery. At the trial it was initially asserted that in consideration of the payment of twelve thousand dollars ($12,000) such would include all costs including anaesthesia and hospitalisation, the performance of gender reassignment surgery by the defendant to enable the plaintiff to function as a woman.

I would here add that at the trial, despite the opening address and the allegations and evidence of the plaintiff, the plaintiff did ultimately concede that the agreement was not for one indivisible sum of $12,000 to be paid to the defendant, but a lesser sum to be paid in part to him and in part to the hospital. Next, both in the amended statement of claim and at the trial it was alleged that there were a number of implied terms in the contract. These were that the defendant would exercise reasonable care and skill in carrying out the surgical procedure; that the defendant would warn the plaintiff of any material risk inherent in the proposed surgical procedure including the risk of a number of complications including lack of vaginal depth and width, lack of orgasmic ability, lack of genital sensation, inability to have vaginal intercourse and a number of genital abnormalities; and other specified matters. These allegations (elaborated upon at the trial) included that the defendant would warn the plaintiff of any risk that the operation would not be a success. Additionally, in his final address Mr Cassidy further or alternatively specifically asserted that there was an implied term that the neo-vagina created by the defendant would be reasonably fit for the purpose intended, namely the reception of an erect male penis . [my emphasis]. That said, I might here digress and note that in his final address Mr Cassidy (T 374) appeared not to disagree with the proposition that the defendant was not bound to create a neo-vagina taking the insertion of a “any size male penis” but still nevertheless arguing that “it is fitness for purpose and merchandise ”!

The plaintiff specifically alleged that in breach of the term alleged, and in breach of the duty to exercise reasonable care, that the defendant failed to warn the plaintiff in a number of respects being failures to warn: of the risk of complications; of risks associated with the procedure; and of the increased risk of complications following the surgery and during the recovery period. It is also alleged that the defendant failed to advise the plaintiff in a number of respects being that the proposed surgery namely for gender reassignment, may be: unsuccessful or fail; of the risks associated with a procedure utilising a general anaesthetic; and of all risks associated with the procedure and operation generally.

In paragraph 16 of the amended statement of claim the plaintiff further alleged that in breach of the term and of the duty alleged (in negligence the defendant failed to perform the surgery in a proper and professional manner and was otherwise negligent as in several respects). [my emphasis]. These were particularised under the heading Particulars as follows: “(a) failed to take adequate care in the preparation of the site for surgery; (b) failed to properly assess the adequacy or otherwise of the site for surgery; (c) failed to properly investigate the adequacy of the available penile skin; (d) failed to take adequate precaution in the removal of the urethral bulb; (e) failed to take adequate precaution in the placement of the vaginal cavity; (f) failed to take adequate precaution in the making of the vaginal opening; (g) failed to medically examine and assess the skeletal capacity of the Plaintiff for the procedure; (h) failed to provide adequate pre operative treatment and preparation; (i) failed to follow established practises in carrying out the medical procedure; (j) failed to provide adequate post operative treatment for the Plaintiff; (k) failed to remove sufficient corpus cavernosum in the clitoral region; (l) failed to remove the spongiosum from the urethra; (m) caused the urethra to be stenotic”.

I would here comment that no allegation in terms was made of negligence (in any respect), in that the defendant failed to carry out the gender reassignment surgery using inter alia the slightly modified penile inversion technique described and adopted by Dr Royle, or using the colo-vaginoplasty technique later performed by inter alia Dr Walker on the plaintiff in New Zealand in 1999. It was a matter touched upon at the trial at least in evidence. The defendant in this case performed the actual surgery by his usual method involving the penile inversion technique. In my view no sound allegation could be made, let alone could there be any finding, of negligence whether in terms of surgery or provision of information, advice or warning, rather than some other procedure. Nor did the plaintiff in the amended statement of claim in terms assert or particularise a reliance upon the matter of res ipsa loquitur. The doctrine of res ipsa loquitur was not only not pleaded, but in any event in my view in a case such as the present inter alia involving complex technical surgery, it would not apply in the present circumstances to make out or support a case in negligence: see Schellenberg v Tunnel Holdings Pty Ltd (2000) 170 ALR 594: see also my later remarks. I mention the matter of res ipsa loquitur because the plaintiff in final address purported to seek to rely upon it. In my opinion it is unavailable to support any case of the plaintiff.

Further, in paragraph 17 of the amended statement of claim the plaintiff alleges that had the defendant given her proper advice [my emphasis] concerning the inherent risk in the proposed surgical procedure namely the risk of loss of sexual intercourse and consequent or associated injury and/or deformity, then the plaintiff would not have consented to and would not have undergone the surgical procedure upon her by the defendant. In paragraph 17A to 17D inclusive of the amended statement of claim the plaintiff also further alleges that the defendant was negligent in that he had a duty (which he allegedly breached) to consider and warn the plaintiff of possible risks of psychological damage as a result of the procedure being performed; of a duty (which he allegedly breached) to consider prior to undertaking surgery whether the plaintiff was psychologically suitable for surgery; a duty (which he breached) to take a medical and psychological history of the plaintiff and thereafter assess the suitability of the plaintiff for surgery prior to undertaking surgery. Again it is alleged (para 17D) that had the defendant given her prior advice concerning the inherent risks of psychological disorders, the plaintiff would not have consented to the surgery.

At the trial, and perhaps to summarise the plaintiff’s case in negligence, the plaintiff asserted that the defendant departed from the standard required of a doctor claiming expertise in gender reassignment surgery in that his technique fell below that standard; failed to warn the plaintiff of the risks that the operation would not be a success; and failed to exercise reasonable care in assessing the suitability of the plaintiff to undergo the gender reassignment operation.

Further, in paragraph 17E of the amended statement of claim the plaintiff alleges that the defendant assaulted her. This was particularised in a number of respects with it being inter alia alleged that the plaintiff’s consent to surgery was not true consent in that the plaintiff was not properly or adequately advised of the material risks (as particularised) involved with surgery. The claim in assault (added on the eve of the hearing) is untenable and has no substance and maybe disregarded as an issue on any view of the evidence.

Indeed, at the trial it was asserted that the defendant at all times represented to her that the procedure was straight forward and did not warn her of the risks of failure and that had she been properly warned of the risk that the operation might fail or be unsuccessful she would not have undergone it, and therefore the defendant in operating upon her constituted an assault. The Law

Patients will frequently be disappointed by the outcome of treatment or surgery. Operations cannot guarantee perfect outcomes with patients frequently being disappointed by outcomes from an operation. A patient’s expectations of surgery will often exceed their entitlements. This point can in fact be illustrated by reference for example to the view of Dr Ceber who the plaintiff saw in January 1996. In his report of 9 January 1996 he observed that the plaintiff would be “a very difficult patient to please” and that he thought the plaintiff had “generally unreal expectations of the outcome of genital reassignment surgery and in particular cannot accept the fact that the vulva never exactly mimics a normal female …”. As late as 10 March 1998 (prior to May 1998 surgery in New Zealand) Dr Perry (one of the New Zealand surgeons consulted by the plaintiff) observed: “It is my impression that Chanelle is looking for perfection with a truly female form. This would be an unrealistic expectation doomed to disappointment”

On 10 January 1996 Dr Isaacs too made the point that “everyone wants perfection and unfortunately in this type of surgery perfection is virtually impossible”.

There is no liability of a doctor without fault. Negligence at common law is still a fault based system. There is no liability based upon a mere view that unless the surgeon operates “successfully” or produces an outcome “acceptable” to the patient or matching the patient’s expectations or hopes that without more liability will be established. A mere failed operation of itself does not establish a liability. Indeed, generally speaking surgery or an operation is attended by risks, or complications: cf Chappel v Hart (1998) 195 CLR 232 (a case concerning causation particularly in the context of an alleged breach of duty in failing to warn of material risks). A doctor may perform an operation with reasonable care and not be liable for an accidental injury occurring in the course of the surgery or as a result of it. Further, every advance in surgical technique is attended by some risk. Doctors learn by experience, and “experience” often teaches in a “hard way”: Roe v Minister of Health [1954] 2 QB 66 at 83. In surgery, as in life, frequently to obtain benefits one must accept the risk(s). Indeed, Mr Cassidy properly conceded in his final submission that even if surgery goes “wrong” that such does not mean there has been negligence (T 369). The result of any form of surgery (absent specific contractual terms) generally cannot be, or is incapable of being, guaranteed. Surgery as I have stated carries risks. Whether the surgeon is sued in contract or tort he/she is not obligated (at peril of being held liable in a law suit) to achieve “success” (whatever such may mean in any particular case) unless he/she undertakes for example in contract to produce a specific or guaranteed result. It is not suggested in this case there was any such guarantee, nor in my view could it be. Ordinarily the doctor’s duty (both in contract or in tort), and like that of other professional persons, is to exercise reasonable care and skill. No principle of the law of contract or tort or of risk allocation requires the defendant to be liable for those risks (in this case surgery), that cannot be avoided or reduced by the exercise of reasonable care, unless statute, contract or a duty otherwise imposed by law has made the defendant responsible for those risks: Chappel per McHugh J at 245. The performance of an operation with reasonable care with attendant complications and risks does not ordinarily render a surgeon liable for such attendant complications and risks that materialise, whether this be so in contract or in tort. Further, proof of a cause of action in negligence or contract requires the plaintiff to also prove that the breach of duty caused the particular damage that the plaintiff has suffered: Chappel per McHugh J at 242. In the context of a duty to warn a defendant is not causally liable for wrongful acts or omissions if those acts or omissions would not have caused a plaintiff to have altered, as in his/her course of action to proceed to have the surgery: see Chappel per McHugh J at 247.

In Naxakis v Western General Hospital (1999) 73 ALJR 782 as Callinan J observed (at 807): “In the practice of medicine, usually a definite, successful result will not be able to be guaranteed. Just as the practitioner should not suffer on that account …”.

I repeat it is not suggested in this case that even in respect of the cause of action in contract, that there was a contractual term providing in effect a guarantee of a definite successful result.

In the recent case of Boland v Yates Property Corporation Pty Limited (1999) 74 ALJR 209 (a case discussing negligence of barristers and solicitors when litigation is in prospect or on foot) Callinan J said at 272: “Whether a duty of care has been duly fulfilled cannot be decided just by looking at the outcome of the efforts of a professional person. Cases will be lost, and regrettably patients will not be cured notwithstanding that their lawyers and doctors have been diligent and careful. The nature and scope of the duty of lawyers to exercise reasonable care, particularly when litigation is in prospect …. must be assessed in the knowledge that litigation always involves some uncertainties.”

In the context of a case such as the present perhaps one can readily substitute for “litigation” the word “surgery” in the case of a doctor performing “surgery”.

Perhaps a similar or variable view on this point was made recently by Lord Slynn in Barrett v Enfield London Borough Council [1999] 3 WLR 79 when he observed that the mere fact that “something has gone wrong or that a mistake has been made or that someone has been inefficient does not mean that … the duty of care has been broken”. Indeed, as Kirby J said in Chappel (at 271): “In judging the performance of a health care or other professional, the law does not require perfection. It recognises the variability of professional skills. Even an expert, acting at the highest standards of the profession, may turn in a less than a perfect performance on a particular day.”

Further the medical practitioner or surgeon too frequently has to exercise medical and clinical judgment “on the spot”, even making decisions and choices sometimes in “unfolding surgery” when problems are suddenly encountered, exposed or perhaps suddenly emerge or arise. Indeed, many surgeons (like other professionals including barristers) utilise different methods, techniques or procedures in performing their professional duties, without it being capable of being suggested or maintained, that the mere following of a particular proper and correct technique (even though one of a number) will necessarily expose the professional to the risk of a negligence action.

Further, there will be in the nature of things, ongoing changes in medical and surgical thinking and in treatment with different views and approaches to a medical problem. Such might be considered as part and parcel of professional practice, learning and experience involving changes. Medicine does not stand still. Surgery does not stand still. Surgery, its mode, manner and techniques develops and changes. Indeed in determining whether a doctor is or has been negligent so too will regard be had to whether the approach was one upon which minds might differ: see Boland per Callinan J at 272-273.

Surgery too is “developmental” in one sense. Indeed, in the instant case, as Dr Royle, the highly experienced and very well qualified gender reassignment surgeon (indeed in my view the most experienced expert in the case and whose expert opinions I accept where such are in conflict with the expert “opinions” advanced in the plaintiff’s case), said that in 1994 the gender reassignment surgery was “developmental surgery”. Thus for example, this most impressive expert witness, when speaking on an aspect of the gender reassignment surgery namely the creation of a neo clitoris and a “hood” for such, said (at T 219): “So until we got a proper hood, we picked around trying to do things, reducing the size, fiddling about and none of it worked.”

And that so far as the hood of the clitoris was concerned the surgery in 1993-1994 “‘was’ developing, as surgery always does.”

He also said in his evidence “every time we operate we are moving forward, often in a minute way, where I maybe doing something a little bit differently”. (T 219).

Next, in considering the nature and scope of the duty of a surgeon (in this case of a plastic surgeon specialising in gender reassignment surgery) it is appropriate to also observe that unavoidable mischance, every mistake, or error does not bespeak of negligence or indicate a breach of contract. I have already mentioned the views of Lord Slynn in the decision in Barrett supra. Indeed for example, it is not every action, a step of the surgeon in surgery which imports negligence. An error of judgment too may or may not be negligent: Whitehouse v Jordan [1981] 1 WLR 246 per Lord Fraser at 263. Further, the dividing line between a non negligent error of judgment and a negligent error of judgment in the case of a professional in a particular factual situation may not be always easy to draw: cf Saif Ali v Sydney Mitchell & Co [1980] AC 198 per Lord Diplock at 220-221 cited by Mahoney JA at 30-31 in Public Trustee & Ors v The Commonwealth of Australia (NSWCA, 20 December 1995, unreported) where his Honour inter alia discussed the distinction between error and negligent error: see also my judgment in Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor (1999) Aust Torts R 81-526. Thus even where error is established, this does not necessarily mean that such error must be equated with negligent error, including giving rise to an entitlement to recover damages. I have already mentioned that even with the exercise of reasonable care “accidental” injury may occur in the course of an operation” Chappel per McHugh J at 242.

The generally accepted statement of principle in relation to the matter of breach of duty of care is that of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48.

Next, in determining whether the defendant acted in breach of a duty of care the matter of reasonable care is to be considered (and also the standard of care) by reference to the state of knowledge at the time that the conduct in question occurred. As I have already observed, like other areas of science and medicine there is the ongoing expansion of the boundaries of knowledge. Surgical techniques change and reflect such. Practice introduces different experiences and changing procedures in medicine as in law: see Boland per Callinan J (at 272). Procedures and techniques change in medicine (as at law and indeed in the performance of other professional activity. Advances of medical science or medical knowledge, improvements or developments in surgical techniques and methods employed in surgery procedures between the date of the alleged negligence and the date of the trial should ordinarily be ignored and disregarded in determining whether the doctor surgeon exercised reasonable care: Roe v Minister of Health supra. This point in relation to the matter of reasonable care generally in the law of negligence was made by Barwick CJ in Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292 when he said (at 292): “It is easy to overlook the all important emphasis upon the word “reasonable” in the statement of the duty. Perfection or the use of increased knowledge or experience embraced in hindsight after the event should form no part of the components of what is reasonable in all the circumstances. That matter must be judged in prospect not in retrospect”. [my emphasis]

The happening of the “accident” fixes the relevant time for the examination of the requirements necessary to satisfy the [employers] duty of care and that what will satisfy that duty at any particular time will depend upon the circumstances prevailing at that time: Quigley v The Commonwealth of Australia (1981) 55 ALJR 579. Williams supra on this question on time: see Kruger v The Commonwealth of Australia (1997) 190 CLR 1 at 36-37; see my judgment in Williams .

These points just made may again be illustrated by reference to the evidence of Dr Royle who observed (T 201), when questioned about whether the neo-clitoris created in May 1994 (by the gender reassignment surgery) was larger than the “common” natural female clitoris said that “ … when this operation was done in 1994, Dr Haertsch, myself, and a lot of other surgeons were only just beginning to do clitoroplasty using the tip of the glans penis to form the clitoris.” He added “As we have developed the clitoris in male to female transsexuals over the years, we have been able to produce a better hood for the clitoris …”.

It is appropriate to emphasise (and I make no apology for repetition) that in determining whether the professional man has been negligent, is the recognition that a surgical approach or medical view is not necessarily negligent merely because it is one upon which reasonable minds or approaches may differ: cf Boland supra at 272; Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 639 per Lord Scarman who considered that “the realm of diagnosis and treatment, negligence is not established by preferring one respectable body of professional opinion to another”. Nor does the mere establishment of the existence of two or more available respectable surgical techniques or operating procedures, with its own risks disadvantages and benefits prove negligence. Indeed, even the mere existence of an alternative or different procedure which would or might have avoided the particular mishap does not necessarily furnish evidence of negligence: Ainsworth v Levi (NSWCA, 30 August 1995, unreported) per Handley JA at 9 (in also discussing also the relevance of “alternative schools of opinion”). The existence of possible alternative procedures in my view in a case such as the present provides no evidence of negligence in any respect, or at all. A doctor is not negligent merely because there are different competing practices adopted by a responsible body of medical opinion: cf Naxakis supra. Again in risking repetition, I repeat no allegation in terms of negligence in using one surgical technique or procedure to perform the gender reassignment surgery in 1994 is particularised in the amended statement of claim nor can be found in this case. No negligence, whether in terms of advice, surgery or otherwise, is established on the evidence, although there is some evidence as to the availability of “different” gender reassignment surgical methods. As I have adverted to before, the defendant used the penile inversion technique in 1994 inter alia inverting penile skin to form the vagina. Dr Royle used a slightly modified penile inversion procedure to form the vagina with a modification involving use of a gusset of “scrotal skin” (scrotal flap) to enhance the amount of skin that is inserted. Dr Walker was involved in using the colo-vaginoplasty procedure involving using the bowel. He did not use the method of inverted penile skin to form the vagina.

I consider the point as to differences of opinion in personal procedures and techniques again also made by Dr Royle when he discussed the clitoral aspect of the first New Zealand operative procedure (May 1998) involving Dr Walker. Dr Royle said: “I deal with it in a slightly different way because that is what surgeons are like, they all do things differently and I would have approached it in a slightly different way.”

Again the point was illustrated in respect of Dr. Walker’s operation in May 1998 (apparently involving or followed by denervation of the neo-clitoris with death of a portion of the clitoral tissue at least). Dr Royle said for example he personally would not have done a reduction in the size of the neo-clitoris that was done stating: “I am not saying it is necessarily wrong”. The point I believe to be made is that professional views and minds may legitimately and reasonably differ. This point further illustrates that the mere doing of things differently does not establish negligence on the part of a professional

Next, to the extent that it may even have been indirectly suggested or raised, in my view there was no negligence or breach of duty by the defendant in using or adopting the penile inversion technique (which was the one he had least used and followed in 100 cases before 1994). That was his technique of surgery. There is no negligence alleged in terms or capable of being found on the matter of failure to “warn” or advise of different procedures: see also Ainsworth per Handley JA at 16. If I am wrong I would still find no negligence concerning that matter in any respect.

I have already mentioned the matter of res ipsa loquitur and not the content of the amended statement of claim. The plaintiff in his final submission seemed to directly or indirectly invoke it. Having regard to the nature of surgery and to the evidence, the plaintiff is unable to invoke the doctrine to support the case. I repeat in my view in the circumstances of this case the plaintiff cannot rely upon the doctrine of res ipsa loquitur to make out a case of negligence in the performance of the actual gender reassignment surgery: see also the recent decision of the High Court in Schellenberg supra; Ainsworth supra; Albrighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542 per Reynolds JA at 554; Elliott v Bickerstaff (1999) NSWCA 453.

Indeed, in his closing submission Mr Greenwood QC submitted that the plaintiff was in effect also seeking to establish a case of negligent surgery in reliance in effect upon the doctrine. There is force in this submission. However, the doctrine in the circumstances has no operation and provides no assistance to the plaintiff in seeking to establish any negligence or breach of duty.

In Australia the standard of care to be observed by a person with some special skill or competence to that of the ordinary skilled person exercising and professing to have that special skill that is, a doctor practising in the area concerned. In this case it is the skill of a plastic surgeon specialising in gender reassignment surgery with which one is concerned. The principal issues are whether there was negligent performance of the surgery and/or whether there was a breach of that duty in failing to warn of a material risk inherent in the proposed gender reassignment surgery procedure in the sense as formulated and explained in Rogers v Whitaker (1992) 175 CLR 479. If the answer is that the duty to warn was not performed (or properly performed) then the second question concerns causation in the sense whether any such failure to warn, was causally related to any injury. Perhaps the causation question in the context of a duty to warn may further or alternatively, be expressed another way, namely whether any alleged omission to warn (if any) would have caused the plaintiff to alter her option or election of action to have the gender reassignment surgery, or whether it would otherwise made no difference to the plaintiff’s course of action to proceed with the gender reassignment surgery (including when she did) with the defendant. There too are further potential complicated questions of damages in the event of breach being found, depending upon the nature of such breach(es) found.

Next, the standard of care is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade: see Rogers at pp 488-489 and 491. Even before the decision in Rogers in the sphere of diagnosis and treatment the Bolam principle has not always been applied cf Albrighton supra. That said, it is perhaps more particularly (but not exclusively) in the field of non disclosure of risk or in the failure to warn or in the provision of advice and information that the courts have adopted the principle that whilst evidence of acceptable medical practice is a useful guide it is for the courts to determine and adjudicate upon what is the appropriate standard of care: Rogers supra at 489. The courts abdicate that ultimate responsibility to no one.

However, that said, the test for medical negligence is not what other doctors say that they would have done or not done in similar circumstances. Such views of themselves are not and cannot be decisive as a matter of law: Chappel ; cf Naxakis per Gaudron J at 782. Nevertheless, that is not to say that in an evidentiary sense (particularly in the field of diagnosis or treatment) opinions and views of relevant medical experts in the field may not or will not be helpful to the court in determining whether the standard of care in a particular instance was met and whether the defendant doctor was in breach of his/her duty of care. Ultimately what is “reasonable” in the circumstances is for the court and court alone. As was said in Rogers (at 489-490): “ 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; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices”. [my emphasis]

As to the matter of “treatment” it is appropriate for me to here state that I generally accept the opinion(s) of Dr Royle who I further regard as the most impressive, highly experienced and highly qualified expert in the case. Indeed, where there is conflicting expert opinion (particularly with the plaintiff’s experts including Dr Walker) I conclude that his expert opinions should be accepted and that I can safely act upon them. It is for me to decide whose expert opinions and evidence that I accept. In doing so I further or alternatively have had additional regard to my assessment of him as a witness based upon seeing and hearing him give extensive evidence by way of lengthy and visual link-up to London. In any area of conflicting opinion I too would accept the opinions of Dr Korda in preference to opinions of the plaintiff’s doctors.

That the duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty is not disputed. Nevertheless, the factors according to which the court determines whether a medical practitioner is in breach of the requisite standard of care perhaps will vary according to whether the case involves diagnosis treatment or provision of warnings of material, information or advice. It has been said that there is a fundamental difference between on the one hand diagnosis and treatment and on the other hand the provision of warnings, advice or information to the patient: Rogers at 489. As to the matter of warning the duty to provide an adequate warning too it has been stated is in “terms which the appellant would understand” cf: Bustos v Hair Transplant Pty Ltd (NSWCA, 15 April 1997, unreported) per Gleeson CJ at 9. In this instant case I am fully satisfied that not only were extensive and adequate proper warnings conveyed (both oral and in booklet form), but that the plaintiff too was an intelligent person of sound mind (who too had made independent and extensive enquiries and conducted her own independent research and enquiry) who fully understood the warnings.

Nevertheless, all this said, particularly in the area of treatment and diagnosis, in determining the content of the duty of the doctor in the particular case, it is necessary to determine amongst other issues what is in the circumstances reasonable care and skill in the relevant area of medical practice. Such issues necessarily direct attention to the practice or practices of medical practitioners: Rogers per Gaudron J at 493-494.

Perhaps, unlike Rogers (and Chappel ), the present case involves claims of negligence both in the sphere a duty to warn of material risks and in the duty of care in the provision of surgery. The case raises issues of breach of duty in respect of both matters. Both or either are relied upon. Again I observe that different results in terms of causation and even damages might in some cases arise whether there is a breach of duty involving a failure to warn or negligent surgery is established. As I have further indicated as Rogers also shows, particularly in the context of the duty to give medical advice and information (and also in respect of treatment), the fact that a body of reputable medical practitioners would have given the same advice as the defendant cannot preclude a finding of negligence or practice. That said, it is not argued or submitted by the plaintiff that I cannot have regard to the views for example of Dr Royle even on the question of the duty to warn (causation being in that context a different matter). I treat the medical evidence given and have regard to it in accordance with the way permitted by authority. To allow the views of what a responsible body of opinion to be decisive would be to seek to reintroduce the Bolam test: see McHugh J at 791. That said, there is a difference between that which is decisive and that which is of assistance. I repeat that I particularly accept and have regard to the opinions of Dr Royle in preference to conflicting opinions from doctors who have given opinion evidence in the plaintiff’s case. I have further or alternatively had regard to his demeanour which I also have taken into account in accepting his evidence but not in the sense of resolving conflicting expert opinion by mere simple credibility assessment: Conflicts of medical and other expert testimony are not ordinarily susceptible to resolution by “simple credibility assessment”: Jackamarra v Krakover (1998) 195 CLR 516 per Kirby J at 543. In accepting Dr Royle I have not adopted the mere “simple credibility assessment” approach in respect of accepting the views of Dr Royle (or any other witness). In respect of expert witnesses I am entitled to also give effect to my formed impression of the expert witness see Public Trustee supra per Mahoney JA at 19-24; see also SRA v Earthline Constructions Pty Ltd (In Liquidation) (1999) 73 ALJR 306. In his evidence Dr Royle (in cross-examination to Mr Cassidy) indicated views on the subject of “informed consent” or warning, advice and information including views that the “overall practice of Dr Haertsch had was excellent”, of the plaintiff “having a better deal etc” and his view “I don’t think you can do more than that” (T 205). This evidence was adduced in cross-examination presumably because Mr Cassidy considered it material and relevant to the discharge of the duty to warn. I have not had regard to this evidence of Dr Royle in a way that transgresses in any impermissible manner the High Court views in Rogers or even in the later case of Chappel supra.

As to the issue of warning, although such is not and cannot be resolved by medical opinion, that does not in itself make the medical expert views and evidence on the subject not material: cf Bustos at 13. Perhaps this too is why Mr Cassidy cross-examined Dr Royle on the point. Nevertheless that said, it is difficult to see how expert opinion generally will be material on the issue of causation in the context of a duty to warn where the subjective intention or subjective basis approach is involved in the issue.

A further point to be made is that Rogers itself drew a distinction (at 489) between influences and guiding effect of expert evidence in determining whether the requisite standard of care has been breached in cases where the alleged negligence lies in relation to the provision of professional advice and information, and on the other hand cases involving surgical treatment where the matter of proper medical treatment is likely (as in the present case) to involve technical medical questions and matters which the tribunal of fact can perhaps in an evidentiary or practical sense only really determine in the light of expert evidence adduced at the trial.

Before leaving Rogers supra it is appropriate for me to deal with several other matters. First, in dealing with the question of the duty to advise and inform and whether or not the defendant was under a duty to disclose or advise as to some risk in the proposed gender reassignment procedure, the law recognises that a doctor has to warn a patient of a “material risk inherent in the proposed treatment” [my emphasis]. A risk is material if, in the circumstances of the particular case, a reasonable person would in the plaintiff’s position be likely to attach significance to it or if the medical practitioner should be reasonably aware that the particular patient if warned of the risk would be likely to attach significance to it: Rogers at 490. In this case the plaintiff was, for reasons that will appear and despite her assertions or attempted assertions to the contrary, in my view warned of the material risks both orally and in writing. Her claim or case of relevant non warnings or inadequate warnings in all or any respects should be rejected. Despite her “denials” the plaintiff in my view elected surgery with full knowledge and understanding of material risks and after the discharge of the defendant’s duty to warn and to provide information and advice. In my opinion she was fully warned of the relevant risks. She wanted the surgery. The decision she reached was with proper advice, warning and information following time for careful reflection and mature consideration, investigation and research over a long period of time. The decision to have the surgery was not a hasty one and further, whilst elective, was the consequence of a personal need.

In respect of the duty to warn aspect of this case the issue of causation alternatively still arises for consideration in the event that I am wrong in my view that the duty was discharged.

Next, in the present case the issue of the plaintiff’s credibility and reliability both generally and in particular respects both on the issue of liability and damages is very much in dispute. At the trial I indicated and here repeat that my assessment of the plaintiff’s demeanour was unfavourable. All parties accept this. Indeed, I made this clear in submissions. Mr Cassidy whilst arguing that the plaintiff’s credit had nothing to do with a case of negligent surgery nevertheless conceded and accepted that her credit “certainly had to do with the failure to warn and damages” arguing also “that is all”. (T 350). He also conceded (properly so in my view) that the “plaintiff was an unsatisfactory witness”. (T 351). That said, I too consider that she was an unreliable witness, an unimpressive witness and particularly not credible on important material matters. This is a view not just based on mere simple adverse credibility assessment. I reject her evidence on a number of material matters, and not merely so because of an unfavourable credibility or demeanour assessment. Next, I am entitled to accept part of her evidence and reject other parts as I have done in this case: Naxakis at 793. I am not generally impressed with her as a witness. This said, a point made by Mr Cassidy that the plaintiff’s credibility and reliability is not relevant to any issue of breach of duty based upon a claim of negligent performance of surgery is in my view validly made, and indeed accepted by the defendant. However, that said, as I have indicated I did not understand him to dispute that the plaintiff’s credibility and reliability (in part based upon assessment of her as a witness) was not relevant to the other issues. Nevertheless, one must also bear in mind as I do, the further observations of McHugh J relating to the use of demeanour in the context of causation in a failure to warn case. In Chappel when discussing causation his Honour said (at 246): “Furthermore, a defendant is not causally liable, and therefore legally responsible for wrongful acts or omissions if those acts or omissions would not have caused the plaintiff to alter his or her course of action. Australian law has adopted a subjective theory of causation in determining whether the failure to warn would have avoided the injury suffered. The inquiry as to what the plaintiff would have done if warned is necessarily hypothetical.”

In footnote 64 his Honour also said: “… Human nature being what it is, most plaintiffs will genuinely believe that, if he or she had been given an option that would or might have avoided the injury, the option would have been taken in determining the reliability of the plaintiff’s evidence in jurisdictions where the subjective test operates, therefore, demeanour can play little part in accepting the plaintiff’s evidence. It may be a ground for rejecting the plaintiff’s evidence. But given that most plaintiffs will genuinely believe that they would have taken another option, if presented to them, the reliability of their evidence [at least as I understand it on the issue of the effect of a warning] can only be determined by reference to the objective factors, particularly the attitude and conduct of the plaintiff, at or about the time when the breach of duty occurred.” [emphasis added]

Although his Honour appears to countenance the use of demeanour perhaps to assist to reject a plaintiff’s evidence on the causation issue in the context of a duty to warn, I have not merely adopted this approach in considering the “hypothetical” question posed by the causation issue. I have rejected what I believe to be the plaintiff’s self serving assertions and evidence on the matter of both failure to warn and what she allegedly would have done (the causation point) for a variety of valid reasons, also applying the approach of McHugh J. For reasons that will further appear including that the plaintiff in my view was properly warned of the material risks. Thus the matter of causation in such context does not strictly advise, since I am satisfied that despite the plaintiff’s claims, assertions and evidence, that the plaintiff was properly warned of the material risks in the circumstances of the case and the defendant’s duty in this respect was discharged. However, if I am wrong I would find as a fact that warnings of risks would not have made any difference or altered the course of action by the defendant. In her determination and decision to have the surgery in 1994 conducted by the defendant, I reject the plaintiff’s assertions on the issue, I reject her claim(s) she would not have undertaken the surgery (including when she did), by the defendant.

It might be perhaps thought that causation is more obvious in cases involving for example failed surgeries or negligent treatment. Indeed, the failure to warn cases as I have indicated, present problems indeed, perhaps even special problems in the context of causation.

Of course in respect of the general question of causation such is a question of fact to be resolved as a matter of common sense in the sense explained in Chappel ; March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; Bennett v Minister for Community Welfare (1992) 176 CLR 408 and see my judgment in Williams supra particularly at pp 363-368. It is really of little value to add any more to the extensive learning on the subject of causation. However, I would mention as to causation in medical negligence cases generally and as to a discussion of Chappell see article by Justice Beverley McLachlin, “Negligence - Law - Proving the Connection” in Nicholas J Mullany & Allen M. Linden (Eds) Torts tomorrow - A Tribute to John Fleming (LBC: 1998) and Honore T, “Medical non-disclosure, causation and risk: Chappel v Hart ” (1999) 7(1) Torts Law Journal 1.

The plaintiff’s case as I have said, relies upon three causes of action, negligence, breach of contract and a belated claim in assault.

As to the cases in tort and contract, there is no dispute that a case such as the present involving an action against a doctor to whom the plaintiff paid a reward, that there may be a concurrent or dual liability in both contract and tort. There is the availability of concurrent causes of action in negligence and for breach of contractual duties to exercise reasonable care and skill. Separate concurrent actions lie in contract and tort for breach of a duty of care under a contract for professional services. The plaintiff has alternative claims: Astley v Austrust Ltd (1999) 73 ALJR 403; Chappel . In Astley the High Court held that the solicitor owed a duty to exercise reasonable care and skill in both contract and tort. It was also held that contributory negligence which had been relied upon did not constitute a defence to an action for breach of contract. Further, in Astley the measure of damages for breach of the duty of reasonable care and skill in contract and in tort was apparently considered by the court to be the same in the circumstances. In the instant case, it has not been submitted that there would be any difference between the quantum of damages (if the plaintiff were entitled to succeed) in tort and contract.

As to liability in contract and in tort, contractual obligations are voluntarily assumed, tort obligations are imposed on the parties by the law. That said, no contributory negligence is pleaded in the instant case by way of defence even to the count in negligence. As to the breaches of the duty of care, whether in contract or in tort, they ordinarily involve breach or breaches of the same standard of care and skill in the performance of the relevant service. However, whether in contract or in tort it is common ground in this case that absent a contractual term, results are not guaranteed in contract. Next, in the present case where there is a contract, imposing a duty of care, it has not been suggested that there was any contractual term excluding or limiting liability in contract for breach of such contractual duties: see Astley supra generally. As to the matter of what term is to be implied in the circumstances of the instant contract in this case I do not consider that it is higher than that the law ordinarily implies in a contract of professional services namely, that the defendant would exercise reasonable care. In Astley the majority observed (at 414): “The implied term of reasonable care in a contract of professional service arises by operation of law.”

Further, in Astley Callinan J at 430-431, whilst observing that the obligations of professions in modern times were not “light ones” to be considered, (absent express terms) that the contractual term in the contract of professional services involved the implied promise to exercise reasonable care and skill in the performance of the services.

Further, on the matter of damages, it is appropriate to here record that in respect of the cause of action in contract and the cause of action in tort, the case has been argued upon the basis that the measure of damages, if breach of duty is established, is really the same and that the general principles of causation apply for the purposes of any recovery in contract and in tort. It has been no part of the plaintiff’s case that mere beach of contract, without more (that is proof of causation) if established would entitle the plaintiff to at least nominal damages: see Chappel per Kirby J at 270 and Hayne J at 290. Hence for this reason, having regard to the issues addressed and raised, it is not necessary for me even were a breach of contract found (and none has been established) to address the matter of nominal damages. The parties have conducted the case upon what I might call the usual basis, that both in contract and in tort, the plaintiff to recover damages must establish and prove causation of the loss or damage shown or alleged: see Chappel per McHugh J.

As to the matter of contract Mr Cassidy (in his final address) whilst asserting there was the general contractual duty of reasonable care and skill also urged that I should find in addition an implied term that the defendant would produce a vagina and genitalia (including the clitoris) that they were reasonably fit for the purpose for which they were required to have female sexual intercourse (T 379) although “not putting the term as high as guarantee” (T 380). He argued that the implied term extended beyond the common law duty of reasonable care and skill (T 379-380). He particularly argued that the further implied term related to the creation of a neo-vagina for intercourse and (at 374). He said: “It is fitness of purpose and purpose of merchandise”! As I understand his submission in reference to his argument that the implied term in relation to the vagina was established (indeed was to be found in contract), he referred to the decision of Samuels v Davis [1943] KB 526 (dentist providing a particular dental treatment suing for unpaid fee). In my view Mr. Cassidy’s proposition that there was further an implied term of the kind asserted in addition to the contractual term relating to the exercise of reasonable care and skill (breach aside) is not supported by the authority referred to, and is not one on the evidence to be further implied in the contract for professional services in this case. The only implied term is as I have found it to be, namely the implied term of reasonable care: Astley . Even if the situation were otherwise I would still find no breach of duty or such further claimed implied term.

It is appropriate for me to make some observations about the assault count which was belatedly added on the eve of the trial. [my emphasis].

As I understand it, the plaintiff’s case and maintained at the trial and in final address, was that the defendant at all times represented to the plaintiff that the procedure was “straight forward” and did not warn her of the risks that the operation might fail or be unsuccessful and if so warned she would not have undergone it and therefore the defendant in operating upon her constituted an assault. So stated in such terms the views of the High Court in Rogers supra (at 489) would tend to deny the availability of any case in assault. In legal terms the patient’s consent to treatment may be a valid one if he or she is informed in “broad terms” of the procedure which is intended and consented to. In my opinion on any view of the evidence, she was so informed and further she was properly informed and warned of the material risks. An allegation that risks inherent in a medical procedure have not been disclosed to the patient can only found an action in negligence not in trespass: Rogers (at 489).

Whilst any medical treatment without consent ordinarily constitutes trespass to the person, consent ordinarily has the effect of transferring what would otherwise be unlawful into acceptable contact. Consensual contact does not, ordinarily amount to an assault. Generally speaking consensual contact involving an adult of full mental capacity (as this plaintiff was at the time of her consent) is not an assault: Secretary of Health & Community Services (NT), Department of Health v JWB & SMB (1992) 175 CLR 218 at 232-234.

As I understand it the plaintiff really ultimately sought to avoid or circumvent the consequences of the law as stated by in effect arguing (T 368) that whilst accepting that consent is a defence to assault, nevertheless if information was withheld in bad faith such would destroy consent. Mr Cassidy submitted that it was open for me to hold and find that there was a withholding of information in bad faith. I have no hesitation in rejecting this submission. It is without foundation or basis. The plaintiff’s evidence too touching upon this matter of failure to warn, I unhesitatingly reject. I should also observe that Mr Cassidy correctly did not in terms invoke to seek to argue for example any suggestion of any alleged fraudulent misrepresentation of the type for example raised and rejected in O’Brien v Wheeler (NSWCA 23 May 1997, unreported). Further, I do not accept the plaintiff’s evidence that if she had been given “appropriate” warnings (which she denies receiving but which I have found she did) she would not have undergone surgery by the defendant.

I reject Mr. Cassidy’s submissions in relation to the assault count. There is no basis for finding any assault. No relevant information was withheld let alone withheld or not disclosed in bad faith. Such views dispose of the assault case and it will not be necessary to return to it.

Next, it is appropriate if I deal with another matter relied upon by the plaintiff in her claim for damages. In addition to her claim for damages the plaintiff also seeks to recover exemplary damages and aggravated damages. I should indicate at the outset that even were the plaintiff entitled to otherwise recover damages in the circumstances of this case I would not have, for reasons in the circumstances which appear here, considered it an appropriate case for recovery of exemplary damages or aggravated damages, leaving aside the question as to whether exemplary damages could in any event even be awarded for a breach of contract: see my judgment in Williams supra. I will return to the matter of exemplary and aggravatory damages when dealing with the matter of “hypothetical” damages. Gender reassignment surgery generally as at 1994

The techniques, methods and procedures of the actual surgery employed in gender reassignment surgery seem to be inter alia influenced by how, where, when and by whom the medical surgeons were taught, followed by the practice and experience in implementation of the procedures.

The defendant (Dr Haertsch) (whose evidence I generally accept) gave evidence including evidence that as at the present time, so far as he was aware, he was the only surgeon in New South Wales currently performing gender reassignment surgery.

He said that in the mid 1980’s a number of people were referred to him who had gender reassignment operations overseas and who had suffered complications.

He found on investigation that there were no quality services available in New South Wales. He had prior experience in the United Kingdom working with a consultant who was performing reassignment surgery and read extensively on the subject. He considered that there was a category of people who were requesting a service not available in New South Wales. He decided to provide this service and travelled to the United Kingdom and the United States of America and spent time with surgeons performing the surgery watching what they did and discussing his procedure with them. He began carrying out gender reassignment surgery in the late 1980’s adopting the US practice regarding appropriateness of candidates for the surgery.

By 1994 the defendant had performed approximately 100 gender reassignment operations involving the penile inversion procedure. He was well experienced and qualified to do so.

I am satisfied that by 1994 the defendant had a well established practice and procedure or routine in relation to discussions (including of risks/complications), examinations, the providing of warnings, advice and information in relation to gender reassignment surgery. I accept that such was implemented in the case of the plaintiff. Indeed, I am satisfied that he implemented such practice both in the discharge of his duty to warn and in the performance of the actual surgery: cf Connor v Blacktown District Hospital (1971) 1 NSWLR 713 at 719-721.

His penile inversion technique involved removal of the penis and testicles with a cavity created for the neo-vagina. The skin is inverted into the space to form a vagina. The neo-vagina, (the defendant said), had limits in terms of depth and width. The cavity is an unnatural one in a male person with a tendency for it to shrink. The head of the penis would be used as the clitoris which it was hoped could be stimulated to reach orgasm during sexual intercourse.

The penile inversion procedure utilised by the most experienced and qualified expert Dr Royle, whose opinion evidence I accept, was said by him to be done by far more surgeons than his own penile scrotal technique. The operation he said does not have perfect vaginal skin.

Dr Royle gave evidence as to his technique for doing gender reassignment surgery, involving “slightly modified penile inversion technique”. The slight modification is that what is called a gusset of scrotal skin “scrotal flap” is placed posteriorly in order to enhance the amount of skin that is inverted. Dr Royle started to use this slightly modified technique in 1979 thereafter generally using it as his procedure. This was the technique that he started to use in 1979 having learnt it from a Dr Ryan. The scrotal flap technique was only in the aspect described, really different from that of the defendant’s procedure. Since 1979 Dr Royle had employed the scrotal flap technique, not saying that it was necessarily the best, but rather that it was the one he did, and had been taught, and he found it successful. He said world-wide the penis inversion technique “is but one done by far more surgeons than my penis scrotal technique.”

Dr Royle was in my view a very highly experienced and knowledgeable witness in the area of gender reassignment surgery, particularly involving the penile inversion and slightly modified penile inversion technique. He had a most impressive record of work in this area in the 1980s - 1990’s. His “CV” and published works support my impression of his experience and qualifications. He was I believe, a most impressive expert witness, whose opinion evidence I confidently accept and act upon.

More significantly Dr Royle had been involved in gender reassignment surgery in England for over 20 years and over that period had performed approximately 1200 male to female operations. Of those operations as at 1994 (in the year of the plaintiff’s surgery) he had had performed 800 operations. He thus was well qualified to speak as to the situation particularly in 1994 (and generally) in terms of experience, learning and practical skills.

Dr Royle also agreed that both his technique and the defendant’s technique also involved retaining the tip of the penis with nerves and blood supply to form the clitoris and that both techniques involved retaining the penile skin with blood supply “and precious few nerves” to be reinserted, inverted into the space prepared to take the vagina and to form a vagina. That said there was no way that the technique involved “literally” the removal of “every single piece of the penis”.

Having so described his method, Dr Royle also gave evidence as to his qualifications and experience. Having considered and weighed all the extensive medical evidence (oral and written) that where there was conflict between the views of Dr Walker called on behalf of the plaintiff and that of Dr Royle I have no hesitation preferring or accepting the views of Dr Royle. I too consider Mr Greenwood’s submission should be accepted that not only is Dr Royle an eminently qualified specialist in the area, but that no other expert in the case “comes close to matching his expertise in this area.” His evidence, his reasoning behind it, his opinions impacted very strongly upon me. His reasoning too very much impressed me.

Nor have I, by my acceptance of Dr Royle, resolved the conflict in the expert medical evidence between him and other doctors (and particularly Dr Walker who was the plaintiff’s main expert on liability) merely by reference to any “simple credibility assessment”. The credibility assessment is but an additional reason for my accepting Dr Royle. In accepting Dr Royle’s expert opinions I too have had regard to the principles concerning the matter of determining the acceptability of expert opinion medical evidence and in resolving conflicting medical evidence: cf Ahmedi v Ahmedi (1991) 23 NSWLR 288; Williams supra; Public Trustee ; supra Jackamarra supra at 543.

Further, in a case such as the present one where there are conflicting bodies of expert opinion it is essentially at the end of the day for the tribunal of fact (in this case the court) to determine which of the two bodies of expert opinion it accepts: Commissioner for Government Transport v Adamcik (1961) 106 CLR 292. In cases of conflicting medical evidence as the tribunal of fact it is for me to decide whose evidence and whose opinions I accept, if any. Indeed, I do not have to accept the opinion of any particular expert or act upon it. I am entitled to have regard to the particular opinion of any expert in reaching my conclusion. Opinion evidence too, is of course but part of all of the evidence in the case.

Let me turn to address the qualifications of Dr Walker who was called in the plaintiff’s case. He had been involved (with Dr Perry) in performing surgical procedures on the plaintiff in New Zealand in 1998. He gave evidence as to the operation in 1999 when the surgical procedure of colo-vaginoplasty involving the use of the bowel was performed. Both of these procedures too apparently involved their own complications and risks, as the evidence too perhaps suggested.

Dr Walker was a plastic and reconstruction surgeon. He had no personal experience, in using the procedure of the defendant or of performing the operation which the defendant performed, nor of using the procedure of Dr Royle (similar to that of the defendant). He gave evidence of commencing working with a Dr Perry. In 1992 he started to use the colon in gender reassignment surgery. The technique involved using the sigmoid colon which has a short blood supply coming from the mesenteric artery. The type of surgery Dr Walker and his team performed is called colo-vaginoplasty.

In terms of experience with his procedure (different to the penile inversion procedure involved in the instant case and performed by the defendant on the plaintiff and to the slightly modified penile inversion procedure of Dr Royle’s), Dr Walker said that at the time of trial he and his team had been involved in 30 cases of colo-vaginoplasty between 1990 and 1999. Of these he had been involved in “perhaps six” prior to May 1994 (T 107). Thus not only had he not used the procedure of the defendant or Dr Royle but as at 1994 his experience in the area of colo-vaginoplasty procedure was very much less than the defendant and Dr Royle’s actual experiences in respect of their own procedures. In relation to the plaintiff there were two operations in 1999, one colo-vaginoplasty and the other a prolapse repair in August 1999 were also performed. This colo-vaginoplasty procedure as I understand it produced a new vagina, it did not involve the penile inversion technique but involved the use of the bowel. For reasons that will appear the colo-vaginoplasty procedure in 1999 was in my view primarily performed to provide the plaintiff with a neo-vagina of greater depth where as I am satisfied that the defendant’s procedure in 1994 created a neo-vagina of adequate proper or sufficient depth or length, and without any breach of duty.

In terms of qualifications and experience in respect of the procedure performed as at May 1994, I prefer and do act upon the evidence of Dr Royle where it conflicts with that of Dr Walker. Likewise where there is conflict between the defendant and Dr Walker I accept the evidence of the defendant and act upon it.

As to the matter of warning I too also note in passing the evidence of Dr Royle (T 205) where in cross examination he gave the following evidence: “Q. You would agree, I take it, that there is much more to informed consent to this type of operation than handing over a 16 page booklet of the kind that you saw? A. Well, I have to say that I thought that the patient had an enormous amount of support. I mean not only had she seen Dr. Haertsch on a number of occasions, she was given the booklet ahead of coming in. I can’t remember the exact time but, say, the 9th of March when she came in, and possibly on the 9th of March she saw a transsexual nurse. And I feel in 1994, I have to say that I think she had a better deal over consent than I was giving patients, and I thought that the overall practice that Mr. Haertsch had was excellent. Q. You mean as far as obtaining consent was concerned? A. Well I think the patient was, in the booklet was an enormous amount of detail there. And I’m sure that when Dr. Haertsch saw the patient he would have discussed some of the aspects of the various complications that can occur. It has been my experience over all the years that I have been doing gender reassignment, that the patients very rarely listen closely to a lot of complications that might occur. Patients in a way don’t just consent for the operation, she actively seeks it, if not actually demand it. Q. That is all the more reason, is it not, why one has to be careful with one’s explanation and one’s getting of the consent? A. Well I think that Dr. Haertsch was careful. I think that having a transsexual nurse there to admit the patient is excellent. They are very, very good. Somebody whose had the operation, they know what the operations are. They have empathy. I don’t think you can do more than that.”

This evidence was as I have said adduced by Mr Cassidy (without objection) because presumably he thought it was material to the issue of the duty to warn: cf Bustos . That said, its use as I have mentioned is limited to the duty to warn rather than having relevance to the matter of “causation” in the duty to warn situation. An analysis of gender reassignment surgery in greater detail The actual operation procedure performed on the plaintiff: The Defendant - Dr Haertsch:

Both in his statement and oral evidence the defendant describes in more detail the actual gender reassignment procedure.

The defendant in his statement, (admitted in evidence) said inter alia that the gender reassignment procedure that he used was a single stage procedure which involved the removal of the penis and testicles, the construction of a cavity by dissection between the bowel and the bladder to create the neo-vagina. The head of the penis would be used as the clitoris and the penis turned inside out and made into a vagina, which would be adequate enough to accommodate a man of “average” penile size.

The defendant said that the plaintiff would have a clitoris that could be stimulated to reach orgasm during sexual intercourse.

He added that the neo-vagina would not be self lubricating, and said that the plaintiff would have to use lubricant for intercourse and dilation.

In cross-examination the defendant said that he customises his surgery. In the context of the availability of penile skin, the defendant said: “What I haven’t got I will tailor the operation to them. It would seem that this too calls for medical decision making and the exercise of judgment.

In this case the defendant gave evidence that he thought there was enough penile skin to attempt a labia minor, but said: “I don’t make any promises.” The defendant added that: “If they have just bordering on sufficient penile skin, I will use inverted penile skin plus a full thickness graft from the scrotum… If they haven’t got enough penile skin at all, then I will advise them to have a colo-vaginoplasty. Under those circumstances, I have got an excellent opportunity to make really good labia minora because I am using most of the penile skin to fashion that at the time.”

The main features of the gender reassignment operation were set forth in the defendant’s statement (Exhibit 11 in paras 22 to 31): “The operation commenced took place on Monday afternoon, 23 May 1994 . I saw Chanelle before starting the operation and checked that she was comfortable and wishing to proceed and no specific worries. The plaintiff was placed in the lithotomy position after being given an epidural anaesthetic. A general anaesthetic was also administered. I was assisted by Dr George Bursle and the anaesthetist was Dr Yeo. Instrument Sister Walters and Scout Sister Pearce completing the operating team. We had worked together for some time and had performed many gender reassignment procedures together. I commenced the procedure by raising the skin flap in front of the anus and splitting the scrotum, allowing access to the bulb of the penis, which was then denuded of muscle. [The urethra is denuded of as much erectile tissue that is safe, without tearing the vascular ling (T 272). I then isolated the urethra within the corpus spongiosum and verticalised it. Dr. Bursle then dissected the neo-vaginal cavity and packed it with a surgical sponge to aid haemostasis. I removed the testicles, flayed the penis and the suspensory and fundiform ligament was divided until the deep dorsal vein exiting beneath the inferior pubic was visualised. The neo-clitoris was then fashioned using a small portion of the head of the penis elevated on its pared arteries, nerves and single vein. [The pedicle supplying the glans penis is taken “right back down” to the inferior pubic ligament (T 186)]. I then used approximately 25% of the volume of the penile head of which two-thirds was de-epithelised. My attention was then diverted to the penile skin tube. The open end was then closed to become a vaginal vault. A suprapubic suture was then inserted with tension of the penile skin tube, fixed over a sterile gauze dressing to reduce tension on the blood supply to the neo-vagina. The packs were then removed from the neo-vaginal cavity after a surgical drain was placed in either side of the perineum. The penile skin tube was then inserted into the neo-vaginal space and sutured. The surgical wound was then closed to form the labia majora and an attempt was then made to fashion the labia minora by pleating sutures, 3, possibly 4, extending from the neo-clitoris to the vaginal opening. [Whether it is convincing depends on the excess penile shaft skin available (T 290)]. The neo-clitoris was then fashioned by a vertical incision in the anterior surgical wound in the position deemed to be most appropriate. The skin edges were then sutured. The urethra was then retrieved through a circular incision behind the neo-clitoris and as much erectile tissue as deemed safe was excised. The urethral mucosa was turned back on itself to form a stoma, which was then sutured to the skin. After placing an indwelling catheter into the urinary bladder, three 36 inch x 6 inch gauze packs were tied end on end and inserted into the neo-vaginal cavity through a standard duckbill speculum. This is the normal number. A stout nylon suture across the buttocks was then used to hold the vaginal packs in position. The vacuum drains were then applied and a perineal pad and elastoplast dressing was used to cover the surgical area. Chanelle was then taken from the lithotomy position and the anaesthetic reversed. The operation was completed at 16:00. The procedure generally takes 1.5 to 2 hours. Chanelle was returned to ward at 17:00 hours.”

In terms of the Health Insurance Commission/Medicare item number and from a surgeons point of view: regarding amputating the penis, the defendant’s evidence was that he “completely” amputated the penis. Whether this is “literally correct” I regard as being of little significance noting that Dr Royle suggested that there was no way such a technique involves removal of every single piece of penis.

Regarding the labioplasty, the defendant said in evidence that he was trying to do two things. Firstly, to give the clitoris some cover to hide it, and secondly, make the perineum look more feminine - ie “to give more definition not so much to the labia but to remove the groove that tends to exist after you have pulled the penile skin back to put it into the neo-vagina.” The defendant said in evidence that he did this by “creating two distinct flaps...one on either side joined in the middle over the clitoris.” Dr Walker (NZ) :

I have already referred to his qualifications and experience. I do not further repeat such.

Dr Walker is a plastic and reconstructive surgeon. His evidence as to the colo-vaginoplasty procedure is as follows [my emphasis].

Dr Walker said that “we are able to perform the mobilisation of the ascending colon on the blood supply and nerve supply through key hole incisions in the abdomen. It means there is no large scars to see.” This, he said, is performed by a team: urologist, colo-rectal surgeon and plastic reconstruction doctor.

In relation to the surgery to repair the plaintiff’s vagina, Dr Walker explained that they dissected the penile skin vagina and replaced it with a distensible portion of colon. This, he said, is done by laparoscopic surgery. They dissect the ascending colon on its own blood supply and then divide it at the hepatic fixture which is the liver and join the small bowel to the large bowel again - thus removing 8cm of the ascending colon. Dr Walker added that this does not affect the function of the large bowel, and is a very difficult portion to dissect because the bladder is in front, and the rectum behind. Also, the hole from the vagina to the bladder could result in leakage of urine out of the vagina, and the hole in the rectum could result in some faeces coming into the vagina. Dr Walker emphasised though that this is secondary not primary surgery.

Dr Walker continued to explain the secondary surgery. They replaced the colonising skin with the colon - which is a lining which is designed to be moist, and the colon lining provides a little mucus - thus lubricating the new vagina. It also has its own blood supply. They bring the small bowel and the colon end through the incision under the umbilicus. This is joined between the small and large bowel. Dr Walker said that the colon has other advantages in that it is dispensable, it has its own nerve supple - so it is able to be stretched and the patient can appreciate pain when it is stretched similar to that of a natural vagina.

Dr Walker said that they join the colon to the skin of the perineum, in such a way that the join is not a circle which would cause constriction, but two-dimensional circles, so it is designed that it is not too tight.

In terms of the positioning of the colon, Dr Walker said that: “It is passed from the inside of the pelvis down to the urologist who then brings it into the position where it is able to be proximated. The colon surgeon does the anastomosis, the joining up of the colon to the dorsal penile skin, which we use to make the entrance to the vagina. So, it is an erogenous sensation.” (T 97).

Dr Walker’s evidence, in effect, was that the colo-vaginoplasty procedure means that there is a lot of penile skin left over as he is not depending upon as much penile skin. As such the penile skin can be used to make a labia minora fold of the correct dimension. Labia majora folds are made from the scrotal skin left over after castration.

Dr Walker also gave extensive evidence including written and oral as to and touching upon the surgery performed by the defendant in May 1994. He was the plaintiff’s leading expert in terms of oral evidence.

He prepared two reports dated 10 March 1998 and 7 July 1998.

In his report of 10 March Dr Walker referred to the history from the plaintiff which I have earlier set forth in this judgment. He dealt with the six specific complaints that the plaintiff made and commented in respect of such. He discussed fees for correcting complaints without recourse to the ascending colo-vaginoplasty procedure. He said he was awaiting reports from Dr Perry and Dr Richard Marks. In a further report of 7 July 1998 he enclosed operation reports from Mr Mark (urologist); examination under anaesthetic report of Mr Richard Perry along with video and photographs taken during the operation on 22 May 1998. He described the “correction” of the plaintiff’s complaints. He said as follows: “The complaints that Chanelle had complained of were addressed. The clitoris was reduced in size and placed more in the anatomical position. The stumps of the corpora cavernosa were reduced further to stop swelling during arousal. The mass of corpora spongiosa tissue with the external urethral opening was found to be blocking the entrance to the vagina. The corpora spongiosa was reduced in size and the urethra shortened and placed into the anatomical position. The vagina was examined under anaesthetic. The vagina introitus was narrowed in part by persisting bulb urethra. In the relaxed state under general anaesthetic the other limitations of vaginal diameter are primarily bony related to the inferior pubic rami. There is no indication in the relaxed state that the pelvic floor muscles especially the puborectalis are contributing. The vagina admitted two fingers without difficulty . Mr Perry stated that if the current vulval revision results in sufficient vaginal diameter for intercourse, but if intercourse is still limited by vaginal length it would be possible to augment vaginal length by caecovaginoplasty. Mr Perry suggested that if Chanelle wishes to consider caecovaginoplasty in future, she should be reassessed once she has made a complete recovery from the operation of 22.5.98.” [my emphasis].

Dr Perry reported on 10 March 1998. He spoke of the plaintiff going to see Dr Mark and Dr Walker for opinions for perceived failed gender reassessment surgery. From his assessment he said that it would be possible to create a “ceco-neo-vagina”. He also stated his impression (and I repeat it) “that Chanelle is looking for perfection with a truly female form. This would be an unrealistic expectation doomed to failure, disappointment. It is most important that Chanelle is aware of limitations of any future surgical endeavour . [my emphasis].

A most interesting report of Dr Perry (a team colleague of Dr Walker) dated 22 May 1998 also was tendered. He was asked to examine the plaintiff (as he did under anaesthetic) from the point of view of whether caecovaginoplasty would help. “She comes forward for operation with Mr Mark and Mr Walker to reconstruct the vulva and vaginal introitus.” He recorded his findings: “The vaginal introitus is narrowed in partly persisting bulba urethra. In the relaxed state under general anaesthetic the other limitations to vaginal diameter are primarily bony, related to the inferior pubic rami …. The neo-vagina admitted two fingers without difficulty . [my emphasis].

Indeed, as I also understand Dr Walker’s evidence prior to the actual operation in May 1998, the vagina was adequate under anaesthetic, and the removal of erectile tissue in May 1998 was the only operative intervention required to enable the opening of the vagina to be of sufficient size when the plaintiff was aroused.

Dr Mark (10 March 1998) reported that he considered management options from a urological prospective. An operation note of 22 May 1998 deals with the operation performed.

The pathology report of 22 May 1998 described the operation of that date including excision of “redundant” clitoris and mobilisation on neurovascular bundle, excision corpora cavernosa, right and left amputation at level of inferior aspect of body of pubis, “skin inverted to make a clitoral hood”.

In my view what was done in the 1998 surgery, including each of the procedures was not the result of any negligence on the part of the defendant in his surgery performed in 1994. That is not to deny that some of such matters may have had a source in that surgery, but not caused by breach of duty in its performance.

The following appeared: “Operation: Examination under Anaesthetic. Reduction clitoroplasty, reduction urethroplasty, excision of excess corpora cavernosa, and excess corpora spongiosa at bulba urethra. Findings: Excess clitoris, excess corpora cavernosa and urethra, and corpora spongiosa, bulb of the urethra, normal length vagina, normal introitus of vagina [entrance of vagina] blocked by excess corpora spongiosa and bulb.” [my emphasis] In September 1998 Dr Walker said that the plaintiff complained to Dr Perry that “only the depth [of the neo-vagina] was insufficient”, that the neo-clitoris had become atrophic and was functionally non-existent and that Dr Perry found she could not have any functional neo-clitoral tissue and could not achieve orgasm at the time (T113-114). Dr Walker accepted that the operation of May 1998 at least resulted in “the death” of a portion of neo-clitoral tissue.

In his evidence at the trial Dr Walker said that in September 1998 after the earlier operation, Dr Perry examined the plaintiff and found that the plaintiff did not have any functional neo-clitoral tissue and could not achieve orgasm at the time. It was earlier conveyed to him before the 1999 surgery that the plaintiff was complaining about “the depth of the vagina” being insufficient. Concern was expressed regarding “purely the depth” of the vagina and not then about the “width”. He said that it was his understanding that from what was conveyed to him “that the plaintiff [Ms Bergman] was engaging in sexual intercourse but was finding it uncomfortable because her partner had a penis size which she said she couldn’t accommodate in her vagina in terms of depth .” [my emphasis]

Indeed he was asked as follows (T113-114) (as to the situation before the colo-vaginoplasty surgical procedure): “Q. So was it your understanding in 1999, and even today, that the plaintiff ought be able to comfortably have sexual intercourse [which I would add she claimed in evidence that she had been able to have since 1994 to 1998 or up to and including at the trial] with a man of average penile size in terms of the width of the vagina, if she continued to properly dilate since May ’98?”

He replied that this is what he would hope and expect. I would also note that he considered that if the plaintiff said her introitus was too small to accommodate an average size penis, there would be a number of factors including “vaginismus”.

As to the matter of dilation and its importance following surgery, Dr Walker gave some evidence. He was questioned as to the need for the plaintiff to dilate for the rest of her life. He said regular intercourse (and I would add assuming availability of a male partner) would have the same effect as dilating and the equivalent. He would recommend both. That said, he accepted if there was no partner available, there would be a need to dilate, but even if one was available dilation would be appropriate everyday. Daily dilation would also be appropriate “even with a partner”.

Returning to Dr Walker’s surgery in 1999, as I understand it, this operation produced a new vagina; it did not involve the penile inversion technique but also involved the use of the bowel.

The question of the reduction in the measured depth of the vagina if at all between 1994 and in 1998 was not in my view appropriately explained by him although the defendant submits that any such reduction would be attributable to a failure to dilate.

One is left with the impression that Dr Walker was prepared to accept that there were sound medical reasons for the defendant not removing more erectile tissue. If that impression is wrong I nevertheless would accept the defendant and Dr Royle and their views on this point as well.

With respect to Dr Walker who had no personal experience of performing the operation which the defendant performed (and performed as duly modified by Dr Royle) I was left with the overall impression that he was inter alia also looking at the issue of the surgery not merely in terms of what he saw in 1998 rather than addressing the matter in terms of what the defendant’s own technique was in 1994. Further, I did not really understand Dr Walker to be addressing the relevant surgical standard in 1994, or in “terms” suggesting that the defendant departed from such in 1994. That said, even if I be wrong I still prefer to act upon the views of Dr Royle as well.

In the plaintiff’s case a large number of medical reports were tendered dealing with the period August 1995 to August 1999. I have read and considered each of them. They include reports of Dr Millard, Dr Foerster, Dr Isaacs, Dr Ceber, Dr Dalrymple, Dr Walker and Dr Perry. There is much force in the submission of the defendant that the plaintiff’s medical evidence does not in terms support a case of negligence either in terms of failure to warn or particularly with the matter of alleged negligent surgery. In fact as to the former the plaintiff’s medical evidence is silent, although the plaintiff has correctly referred to Rogers supra on this point and to the proper approach to expert views. Whilst Dr Dalrymple (17 July 1997) for example referred to the reasonable expectation of a patient to hope to be able to achieve intercourse after surgery, he required more information. Dr Royle (UK):

The evidence of Dr Royle was both in written form and in extensive oral evidence given using audio visual equipment from London over several hours.

In his report (19 March 1999) Dr Royle carefully addressed the matters in issue including commentary on matters referred to in the statement of claim. He said: “Firstly, I do not believe that Dr Haertsch’s “ treatment ” fell below the standard of care to be expected of a reasonably competent and experienced gender re-assignment plastic surgeon. The complications that occurred could have happened to any surgeon carrying out this type of operation.” [my emphasis].

He also concluded that report as follows: “I can see no reason why Dr Haertsch can be considered negligent in this case.”

I generally accept each of Dr Royle’s comments and observations addressing the allegations of negligence (and each of them) in the amended statement of claim. Further, even if the lack of width of the introitus is not as he suggests due to a failure of the plaintiff to adequately dilate (16(c) page 3 of the report) I would still not be prepared to find that such lack of width was due to negligence in the performance of the surgery by the defendant. In the instant case I also accept as I have just stated Dr Royle’s opinion (not objected to) that he could see “no reason why Dr Haertsch could be considered negligent in this case”. That is not of course decisive and cannot be. That said it ultimately does accord with my own view reached in this case. As to the matter of whether negligence should be found, it is one for my decision and my decision alone: Rogers ; Chappel and Naxakis . I have concluded there was none.

Dr Royle described the revision surgery on 2 May 1998 as involving the reduction of the clitoris and removal of some erectile tissue and the urethra. He said that there was some corpora cavernosa removed. That said, he did not think there was “all that much removed”. He believed there was more erectile tissue removed from in front of the vagina. I accept this view.

Dr Royle did not agree that the body of tissue (which he “accepted” intruded into the introitus) answered the description of a “flap”. He also said that in his experience “its not uncommon for a corpora spongiosum tissue around the urethra to become prominent over time to actually grow”. He agreed it caused some restriction. That said, whilst he didn’t know the reason, he said that it occurs “with my patients”. The erectile tissue from the front of the vagina becomes hardened when aroused inhibiting entry of the penis. As to the situation of the erectile tissue it was not uncommon to get such a situation. Some erectile tissue had been left. He said he “had it” with his patients, and it expands over time. I accept this view and that the presence of the erectile tissue was not due to negligent surgery: cf Stewart v Ng (NSWCA, 20 October 1999, unreported), a case concerning a tubal ligation followed by pregnancy the result of spontaneous reastonosis: see also Chappel supra (accidental injury in the course of an operation performed with reasonable care).

The erectile tissue, being corpora cavernosum in the clitoral region, in Dr Royle’s view too did not need to be removed, was not great in amount, and in his opinion did not obstruct the introitus. Again I accept such opinion.

In respect of the surgery I find no negligence in respect of that part of it creating the neo-vagina, the introitus of the vagina, or as to width or length of the neo-vagina. Indeed, I find no negligence in respect of the creation of the neo-vagina generally or at all in any respect in relation to the 1994 surgery.

In discussing the appearance of the clitoris as revealed (in May 1998) it appeared large but not inappropriately large. At least that is how I understand his evidence. Dr Royle did not accept it was larger than the “common natural female clitoris”. He said some of his patients done in the early 1990’s “didn’t look dissimilar to what we have here” and you “need to have a reasonable size to get the sensation”. The size of the clitoris created by the defendant was similar to that created by him. It was his view that a clitoris of reasonable size is required in order to obtain the desired level of sensation. I would here observe that after the operation in 1994 there appeared to be clitoral sensation present. Next, the risk of reducing the size of the clitoris is perhaps illustrated by the operation in May 1998 resulting as I understand it at least in the death of a portion of clitoral tissue, with perhaps some loss of orgasm capacity and function. As Dr Royle also said “patients were very keen to have a clitoris that functioned”. In this case it did function after the surgery by the defendant. I too find no negligence in respect of the size or appearance of the clitoris.

As regards the clitoris appearance in May 1994 (when the operation was performed in 1994 by him and the defendant and a lot of other surgeons) they “were only just beginning to do clitoroplasty using the tip of the glans-penis to form the clitoris”. In respect of the matter of covering the clitoris or producing a better hood for the clitoris this was an “evolving procedure”. He said, “as we have developed the clitoris in male to female transsexuals over the years we have been able to produce a better hood for the clitoris”. He said we started to do some covering at first it was not successful then in about 1995 we developed something which was “very much more successful”. He said that perhaps surprisingly one might find that very many patients who have a clitoris that looks like the size of the one “there” (May 1998) “are very happy with it and do not require anything to be done about it”.

In my view there was no negligence in relation to the creation of the neo-clitoris or any aspect of it. I would also add that as to the appearance of the neo-clitoris I also accept the opinion of Dr Korda (1998) as well.

In further cross-examination Dr Royle said that there were conflicting views as to the presence of a pubo rectal sling. As to the presence of residual erectile tissue he accepted that some was left, but it “had to be” and it tends to expand over time. He said he had it with his patients it is a recognised complication of the procedure “relatively easy to deal with”. He was asked whether the problem of erectile tissue could not be avoided by taking some tissue away. His response was that there was a risk if a lot was taken away of “causing stenosis to the urethra”. One would try to take most away but sometimes some is left behind and it expands. I accept this evidence too. Dr Royle also stated that he did not think that the urethra was stenosised.

In speaking of the making of a urethral opening in a transsexual it was important to keep the mucosa slightly prominent otherwise the skin surrounding creeps in and causes an obstruction. In his oral evidence Dr Royle said it was also necessary to leave a certain amount of tissue around the urethra at the time of the operation. As I have said, Dr Royle said it could grow for some unknown reason. The existence of tissue did not prevent the use of large dilators. By taking too much tissue around the urethra at the time of surgery the surgeon would cause stenosis to the urethra. There were as I understand it thus further valid or acceptable medical reasons for what was done.

He agreed that prior to the revisional operation performed in 1998 the plaintiff was not able to have intercourse. He agreed that there was a reasonable expectation to be able to have intercourse. That in his practice, in terms of what he tells them, they “realise that it can’t be guaranteed”.

As regards the matter of “labia minora” they too came in all “shapes and sizes” and “all sorts” so Dr Royle considered.

As regards the need for further revision and its difficulty (in 1998) he did not agree that dealing with the clitoris or urethra in the circumstances was “particularly difficult”. In terms of the clitoris operation, (May 1998) he said that a difficulty is not to remove erectile tissue without interfering with the blood and nerve supply. He would have done it in a slightly different way. I have already referred to the “difficulty” in the context of the apparent aftermath of the May 1998 operation. I again accept his views.

Indeed, he did not entirely agree that the pseudo clitoris needed to be reduced in bulk. He would have approached it differently. It needed covering to take away a slightly unsightly view, and make the labia minora even slightly more prominent. They come in “all shapes and sizes” and a hood fashioned over the clitoris would pull them in and save the sensation. The procedure would be a partial labioplasty and a clitoral hood. Dr Royle accepted that there was no substantial hood for the clitoris prior to revision operation of May 1998. He said that there were little rings on either side. He agreed that the bulb of the urethra could be further reduced at the same time as enlargement of the urethral opening. He could not see considerable tissue buried beneath the skin of the clitoris. He accepted that the clitoris “now” (May 1998) could be excited under clothes. He considered that an aim was to form a vulva which “is as near to a normal genetic female”. He also said looking at the vulva if a hood could be pulled over “that clitoris” and if the bulb of the urethra was reduced it would look better. He did not feel that the tissue needed to be removed. He was asked to comment on a view that the urethral bulb was small and remnants of the urethral bulb quite bulky. He said that the urethral opening did not look that small, that in a number of surgeons hands there is always a bit of the bulb of the urethra left which for some reason expands over time . He believed that is what happened . [my emphasis]. It was not a huge problem and could be dealt with easily under local anaesthetic. I too accept this evidence. Such acceptance too would also cause me to conclude that there was no negligent surgery that caused this problem either.

He agreed that if at the time of operation the surgery had produced a vagina that would admit one finger breadth only it had failed. However, I would here add that I am not satisfied that this was the case and I do not accept that such was the situation produced in 1994. I specifically find it admitted more than one finger breadth, was of normal vagina length, breadth, admitting two fingers without difficulty.

As to the need to help by reduction of the clitoris that was a matter of opinion “I wouldn’t reduce the size of the clitoris”. He gave reasons why. He also explained that in the early 1990’s when he started to do clitoroplasty “we had this problem” and patients said it is “too big”. However, reducing the size carried the risk of reducing the sensitivity and reducing the “bulk” around the clitoris could produce an “inverted clitoris” which patients did not like. They too did not like an inverted less sensitive clitoris. As regards corpora cavernosum (it was “up near where the clitoris is and underneath it”). He did not consider that corpora cavernosum caused obstruction to the vagina. He also considered that a doctor did not have to remove “every scrap” (of the penis) to get a reasonable result. I too accept this evidence.

As regards the suggestion that in the operation of May 1998 the neo-clitoris was cut down to the size of a large pea instead of 1.5cm in diameter. Dr Royle said that the clitoris was unsightly if it did not have a hood on it, it needed to be partly covered so that the amount showing was about the same size as a genetic female clitoris but it had the advantage of being sensitive [my emphasis]. He gave evidence that the clitoris came in all sizes “like peas”. When he made a clitoris he made it a large size up to 1.5cm wide and up to 3cm in length observing that it shrinks. He put a hood over it. That is what he had been doing for the last four years [my emphasis] and not since 1994 when the instant surgery was performed. What was done in New Zealand in 1998 should in my view be seen in the light of this evidence and as to the situation in 1994. Dr Royle gave evidence that nobody had wanted the clitoris reduced in size. Sometimes the hood is not satisfactory, but no one had wanted the hood reduced. Patients did not complain about the clitoris “sticking out” when it had a hood on it (T 223). He thought that if the clitoris had a hood over it, it would be perfectly satisfactory although others might disagree. Further, he said it did not matter that the clitoris was moved a little bit backwards it would not alter his management “and it is not always in the right place”.

He agreed that as at May 1998 there was no hood over the clitoris. He knew of the suggestion of trying to put a hood on it in December 1994. That said as or about that time in 1994 they all tried to put a hood over the clitoris but it did not seem to work. That was a problem. He spoke of the mood of the early 1990’s. In my view there was also no negligence in relation to the matter involving of a hood over the clitoris.

“That” (by which I take it to mean the putting on a hood over the clitoris) is exactly what he was trying to do “in 1993 and 1994”. He said that until “we got a proper hood we picked around trying to do things reducing the size fiddling about, and none of it worked”. The surgery in 1993-1994 was developing. He saw the surgery in 1994 as “developmental” surgery. The boundary of knowledge was changing “every time we operate we move forward”!

In my view there was no negligence either in respect of the clitoris creation or negligence in respect of the matter of a clitoris hood when the operation was performed in 1994. Further, there was no breach of any duty in any respect or departure from the standard of care then prevailing at the time of surgery. In this case I am considering the matter of breach of duty and standard of care as at May 1994, not four years later when additional surgery was performed in New Zealand.

Dr Royle too did not agree that the spongiosum left on the urethra needed to be cleaned off completely, however he considered it needed reduction. As the introitus being too small he “noted” Dr Walker (according to the May film) putting two fingers into the vagina and he considered very easily.

In discussing the urinary flow Dr Royle said that there was a strong urinary flow which would go against there being an obstruction. He accepted that there was an anterior compression of the vaginal introitus due to anterior erectile tissue that surrounds the urethra. He considered there was labia skin folds present but not prominent. In my view no negligence exists in respect of these matters either.

He accepted that the defendant took 25% of the glans-penis to make the clitoris. He agreed that if half of the glans-penis was used to make the penis it would be quite a lot. He had never definitely thought that looking at the clitoris as revealed in the 1998 photographs it was half the glans-penis. I also accept his evidence that 50% of the penis was left on the one side.

Dr Royle said he did not find anything about the structure of the plaintiff’s body inhibiting against the successful appearance of the vulva and vaginal entrance. So far as the vagina was concerned for functional purposes, he did not think it mattered how much corpora cavernosum was left. He considered that the vulva corpora spongiosum made the difference. The corpora cavernosum is always left in part. It is an advantage to have some amount left. So far as the vulva spongiosa bulba corpora spongiosa being left it is a situation that happens with him and other surgeons and just has to be dealt with (T 237).

So far as removal of erectile tissue in his view it didn’t make any difference so far as vaginal size is concerned and dilation, it becomes a problem on arousal with sex. In that situation it does intrude into the introitus but for the rest of the time it can be dilated, douched, cleaned. It can be dealt with but when a patient is having sexual intercourse it is aroused. It was in his view successfully dealt with in May 1998, a view which I also accept and prefer.

In his report Dr Royle emphasised the importance of the plaintiff dilating, and that it did not appear to him that self dilation was conscientious. He noted that lack of width at the introitus was the main problem. He referred to the problem of lack of adequate dilation. In his evidence in referring to dilation he said he did not think that the plaintiff was very persistent “that was his overall impression”.

To Dr Royle’s evidence I would add that Dr Korda who examined the plaintiff following the May 1998 operation said, inter alia: “the vaginal introitus easily admitted a medium-sized speculum and the length easily accommodated the full depth of the speculum”: see also the report 23 November 1998.

The medical evidence post January 1995 too is revealing I am satisfied and find that the vaginal reconstruction was in itself at least of adequate and proper length. To the evidence of the defendant and Nurse 1, I would add the evidence of Dr Millard (31 May 1995). He reported that the vaginal reconstruction itself seemed to be adequate in “depth” but there was some problem with residual erectile tissue. He thought that the plaintiff was having some haematuria. He thought some minor revision was required. This appears to be so why the plaintiff waited until 1998 is not completely explained. This finding was made when the plaintiff was both “tense and anxious”. Significantly he did not consider any revision was appropriate until she was completely clear about what her “problems were”. She indicated an inability to have intercourse but this appeared to be “ multi factorial ”, partly due to extremely light pubo-rectal sling which could be released by local incision.

In June 1995 the plaintiff told Dr Townson that she planned to have about “20 different procedures to include depression.” He noted that the plaintiff was “inter alia obsessed with cosmetic surgery.” Dr Townson gave no oral evidence, his records were tendered. On 8 August 1995, Dr Foerster too referred to the length of the vagina being “alright”. [my emphasis].

Whilst discussing the possibility of further surgery Dr Isaacs said he would be “very hesitant to promise the outcome of the surgery”. He accepted that there was a reasonable expectation to hope to be able to have intercourse after surgery. However, he too had personal professional experience of cases, where because of complications, it has not been possible to achieve intercourse with gender reassignment.” [my emphasis]. This point may perhaps be also illustrated in relation to the evidence concerning the May 1998 and May 1999 operations in New Zealand. Although really relevant to damages, nevertheless, I would digress and observe that if the plaintiff is to be believed on her claim of an inability to have intercourse (and I do not accept her) both or either of these operations have not produced a capacity to have intercourse, or so the plaintiff claims. Her claim to the court of not being able to have sexual intercourse is also inconsistent with the reason for the second operation in May 1999, namely to have an increase in the length of the vagina to accommodate a then current particular male partner.

Dr Ceber (9 January 1996) noted that the plaintiff’s major complaints were related to the fact that she was allegedly unable to have intercourse and also that the appearance of the vulva was not satisfactory. As regards the neo-vagina he said it was “approximately 10cm long”.

I also note the defendant’s submission (not disputed by the plaintiff) that the plaintiff between 1991-1999 the plaintiff saw some 40 doctors in Australia with 298 claims on the Health Insurance Commission (HIC).

On 10 March 1998 Dr Perry (a New Zealand doctor who operated with Dr Walker on 22 May 1998) saw the plaintiff who sought his advice. She did not complain of the length of the vagina but said that she was not able to have intercourse because the “vaginal introitus was too narrow”. He referred to the vagina admitting one finger at the introitus with space above the opening up above that. This part of the examination was tender, full assessment being difficult. He noted tissue around the urethral orifice. He also thought that the vaginal introitus appeared to be narrowed in part by the bulk of the urethral tissue, by rectalis muscles and bulky anal sphincter posteriorly. He said there would also be some limitation as to how much increase in diameter could be achieved because of bony boundaries. He did not suggest that the length was inadequate.

I have already mentioned that parts of Dr Perry’s Procedure Report of 22 May 1998.

Dr Perry (report 22 May 1998) also said that the plaintiff had come forward for the operation with Mr Mark and Mr Walker to reconstruct the vulva and “vagina introitus”.

A point to be made is that the vagina was considered (as at May 1998) to be of normal length, the introitus was “normal”, subject to a blockage. I would note that on 7 July 1998 Dr Walker reported that the mass of corpora spongiosa tissue with the external opening was found to be blocking the entrance to the vagina. The vagina was examined under anaesthetic. The “vagina introitus” (not as I understand it that space above) was narrowed in part by persisting bulba urethra.

As I would understand it there was no post-operative suggestion that following the May 1998 operation that the length was inadequate. Dr Walker accepted that at surgery too the vagina admitted the insertion of two fingers without difficulty. Entrance to the introitus was however affected and narrowed by erectile tissue. In May 1998 that tissue was removed. Dr Walker in cross-examination was made aware that the defendant had been able to insert a number 3 dilator, about 14cm long, on the day of hospital discharge (27 May 1994). That said he was asked however to assume that the plaintiff was using a number 2 dilator for months after, this dilator was 10 ½cm long. He agreed that there was a need to dilate to maintain depth and width. I note that Dr Walker referred to the depth of the vagina in 10 March 1998 as being approximately 7cm and Dr Mark on the same day referred to it as being 8cm. I am satisfied that if [my emphasis] they were the respective depths or lengths of the vagina on 10 March 1998 then any reduction in length and depth was due to inadequate or improper dilation by the plaintiff since 1994 and thereafter, whatever dilator she was using. That said, I am not prepared to accept or find that they were the probable accurate depths on that occasion in March, having regard to the other evidence including even he pathology report of May 1998.

Dr Walker however, was not aware post the May 1998 operation that Dr Korda (whose evidence I accept) was able (in November 1998) to easily admit a medium size speculum into the plaintiff’s introitus whilst she was awake and was able to easily insert the speculum into the plaintiff’s vagina to its full depth. That speculum was about 3cm wide and approximately 15cm long (T 295). At its widest point the speculum is 3.5cm and 15cm long. Dr Korda added that at the time the speculum goes past the introitus, it is in the closed position. He considered that its circumference in the closed position (even though it does not have a circular cross-section) would be 7cm. I accept Dr Korda’s evidence on this matter. Dr Walker too was in error in his belief that the medium sized speculum was of the dimensions given by Dr Korda. Dr Walker thought it was “eight or nine centimetres”. I also accept Dr Korda’s further evidence that the appearance of the plaintiff’s genitalia were similar to that of a biological woman and there was a wide variation of appearances of the plaintiff’s genitalia in biological women.

There was no breach of duty in respect of the creation of the length of the neo-vagina. It was of adequate and proper length. It never ceased to be adequate or proper length before the 1998 or 1999 surgery. Even if I be wrong any reduction in length was not caused by any breach of duty in the surgery of 1994, but due probably to the plaintiff’s failure to properly dilate in that period.

Dr Walker said that after the operation sufficient width of the introitus was achieved (there was no suggestion of inadequate length). He gave evidence that the removal of the erectile tissue had meant that the width was “okay” [my emphasis]. When he performed the 1998 surgery he expected the plaintiff to be able to engage in “intercourse without difficulty” but still with the plaintiff to dilate for the rest of her life. I would add that he gave evidence that the May operation apparently resulted in “some” death of part of the clitoral tissue thus illustrating in another way not only that there are the risks of surgery but also providing support for the views of Dr Royle as to the clitoris of size and why it should perhaps have been left as it was.

Dr Walker too gave evidence that as at September 1998 the plaintiff was then complaining only that the width (not depth) was insufficient.

Before the colo-vaginoplasty (May 1999) Dr Perry relayed “that the plaintiff was engaging in sexual intercourse but was finding it uncomfortable because her partner had a penis size she couldn’t accommodate in her vagina in terms of depth .” [my emphasis]. Again whilst really relevant to damages, I note that the plaintiff’s evidence (T 19) was that at all relevant times even since 1998 and now that she could not engage in penile vaginal intercourse. As will be indicated I do not accept any inability to do so since the convalescence after the 1998 surgery, or because of any breach of duty in the 1994 surgery.

Dr Walker gave evidence at the trial that after the May 1998 operation no complaint was made pre the operation May 1999 about the width of the vagina, but “purely depth”.

Some of Dr Walker’s views relate to damages, but it is convenient to refer to them. It was his understanding both in 1999 (“and today”) that the plaintiff ought able to comfortably have sexual intercourse with a man of “average penile size” in terms of the width of the vagina, if she had continued to properly dilate since May 1998. This is what he hoped and expected. I accept that this is so.

In my view, I am satisfied that prior to the operation on 22 May 1998 the plaintiff’s neo-vagina was satisfactory and adequate and been including in depth and width when examined under anaesthetic. There was no breach of duty either in respect of its creation by surgery in 1994. The removal of the erectile tissue in the May 1998 operation was the only surgical intervention required to enable the opening of the introitus (neo-vagina) to be of sufficient size when the plaintiff was aroused, and that the operation succeeded in achieving this leaving the plaintiff with a neo-vagina of appropriate and sufficient dimensions and capacity for vaginal intercourse. Even if I be in error not in my view and (if any) reduction in depth or length of the neo-vagina was not due to negligence by the defendant in the performance of the 1994 surgery. Although more relevant to damages it is appropriate to note following the removal of a residual amount of erectile tissue at or about the introitus (not being something caused by any breach of duty) meant that the opening (the introitus) permitted penile vaginal intercourse.

I am satisfied and find and conclude that the length of the vagina was at all time adequate length following the operation of May 1994. I am satisfied that the operation created a vagina in terms of adequate width. That said, the introitus or neo-vagina entrance was narrowed or blocked due to the presence of tissue but with such narrowing or blockage not being caused by any negligence or breach of contract in any respect.

I also conclude, as to the presence of erectile tissue, that there were sound or reasonable medical reasons for not removing more erectile tissue when the defendant operated. I accept the defendant’s evidence. I further or alternatively accept the evidence of Dr Royle. I do not find the presence of erectile tissue after 1994 (and its removal) was to correct any breach of duty in the performance of the 1994 surgery. I further find that none of the harm claimed as resulting from any breach of duty in the performance of the surgery by the defendant. I also accept Dr Royle’s explanations, comments and views in relation to the statement of claim in respect of each and every one of the allegations of breach of duty. Ms Chanelle Bergman Evidence on Duty to Warn, Advice and Inform

The plaintiff’s evidence has in part been referred to in the introduction to better assist in an immediate understanding of the case and its issues. That said there may be the risk of repetition in order to give greater emphasis to that part of her evidence particularly relevant to this issue.

Next, it is also appropriate to again refer to the credibility and reliability of the plaintiff. I have already made reference to the concession made by the plaintiff’s counsel that she was an unsatisfactory witness. I reject any suggestion also made that such was due to any suggested “disappointment” whether founded in any psychiatric reason! I again repeat that the plaintiff too was also in my mind an unimpressive witness. I do not generally regard her as reliable or credible or at least so in respect of significant material matters. Where there is conflict between her and the defendant and/or Nurse 1 I do not accept the plaintiff’s evidence. That said as I have earlier indicated I accept parts of her evidence as reject as I am entitled to do other parts of her evidence. As regards her “histories” to Professor Steinbeck, the defendant, Dr Orsmond, Dr Greenway and Dr Korda I accept they accurately record those histories. I have not resolved any matter by mere “simple credibility assessment”. That said I also note the concession of Mr Cassidy (T 350) that “her credit has to do with failure to warn and of course to damages but that is all”, which is an approach generally accepted by the defendant as well. I generally agree with this approach.

The plaintiff left home in 1987 and intended to live as a female, which included dressing as a female. She lived with a male companion for a couple of months.

Under cross-examination the plaintiff said that she had been thinking about this operation since she was 17 years old, and the want for the operation had always been the same since then. And it reached a stage in 1993 where she was very keen to have the operation.

From 1987 to 1991 she was “very unsettled”. She moved regularly and lived day-to-day as a woman. She started to take female hormones (receiving weekly injections of primogyn/depot), and took oestrogen tablets and aldactone, which were prescribed by Dr Deane and Dr Townson.

Between April 1989 and December 1992 the plaintiff was receiving Sickness Benefit form the Department of Social Security. This is represented by various medical certificates (Exhibit 2). There are 11 certificates, each valid for a three month period beginning on 7 April 1989 and ending on 14 December 1992. The various diagnoses were inter alia nervous disorder, gender reassignment, pituitary adenoma, anxiety, neurosis, and transsexualism. Consistently they were for “gender reassignment”. I accept her history to Dr Korda (18 December 1998) that from the time of taking oestrogens (at age 17) she started to feel better as a female person and enjoyed good breast development.

By the end of 1993 the plaintiff had had her breasts enhanced mammaplasty and had determined that that she wanted to live as a woman form the rest of her life.

Between the time the plaintiff left school and 1994, she worked on the door of a night club part-time for about 12 months (as a woman) and received $50/night, and she also helped her mother out who was a bookmaker receiving $80/night. She had also done some photographic modelling ( Playgirl magazine). She also had worked at Café 191 on Sundays for a couple of months. The plaintiff said that although she would have worked more regularly and longer if she could have, she was more focussed on changing her genitals to look how she felt [like a female] and was focussing her time to that. She added that although she worked during that period, she didn’t really look for work as most of her other time was spent focussing on changing her gender.

The plaintiff said that until July 1990 the she lived in Sydney and had Dr Townson as her general practitioner. Between July 1990 and August 1991 the plaintiff lived in Melbourne. At this time she saw Dr Trudy Kennedy (a psychiatrist in the Melbourne group) once to explore gender reassignment surgery. Under cross-examination the plaintiff denied that she saw Dr Kennedy three times, or that she told Dr Orsmond such. However, she said that she had seen another psychiatrist in Melbourne but could not recall his name.

In re-examination the plaintiff said that she also saw Dr Shockman (female doctor) whilst she was in Melbourne, in relation to her taking female hormones. The plaintiff said that she believe she told Dr Shockman that she intended on having gender reassignment surgery.

In 1986, prior to leaving home, she met a transsexual and discussed her feelings with her. In a Woman’s Day article, (Exhibit 4) she is quoted as saying: “When I was 17, I met a transsexual for the very first time. That’s how I found out I could become a girl and that’s what I wanted to be. This person recommended a doctor who would give me a prescription for female hormones.”

Under cross-examination the plaintiff did not deny that she said this to the author of the article.

During her time in Melbourne, the plaintiff said that she lived with her father, and also with some transsexual friends, one of whom had had a gender reassignment operation performed at the hospital at which she worked. She spoke to that person about the operation. The plaintiff denied that whilst she was in Melbourne she found out more about the gender reassignment operation and what was involved.

However, the plaintiff said that before she went to Melbourne she found out more about the operation through speaking to a girlfriend[s] who had had a gender reassignment operation performed by various doctors throughout the world. The plaintiff’s evidence was that such surgery was performed on a couple of girls in London, a couple in Cairo, a couple in Singapore, and a couple performed by the defendant. It can be concluded therefore, that she talked to at least eight girls who had had the operation being two girls from surgery performed in each city. The plaintiff, said that she spoke to these people after coming back from Melbourne.

The plaintiff did not retain the booklet that she was given prior to surgery, but for the purposes of this case provided her solicitors with a similar booklet (Exhibit 1). The plaintiff obtained this booklet from a girlfriend who had had the surgery performed by the defendant.

The plaintiff was later cross-examined regarding what the defendant told her prior to surgery. The plaintiff said that she was of the understanding that the erectile tissue would be removed when she had the operation. She obtained this information from talking to other girls [transsexuals] who had had the surgery.

Additionally, the plaintiff said that she knew three or four transsexuals who had had gender reassignment surgery and the plaintiff asked to look at, and saw, their neo-vaginas. She added that these neo-vaginas were rather “pleasing” to look at, in that they looked similar to that of genetic females that she had seen. She added that she could not see any scars and she could not see their clitoris, but the entrance to their vaginas was “quite big”.

Under cross-examination the plaintiff said that she had not used cocaine in August 1991 or in Melbourne and could not recall whether she told Dr Townson whether she was using amphetamines.

After returning to Sydney (from Melbourne) the plaintiff said that she attended the “gender centre” on one occasion. In her affidavit (Exhibit “C”) the plaintiff said that she was diagnosed with suffering a tumour on her pituitary gland at this time. She received medication and as a result felt nauseous and disorientated. She was then given sickness allowance through Social Security. She then undertook a beautician’s course in 1992 (taking a number of years to complete) but could not find full-time work - but worked part time). She then became qualified as a beautician.

In her affidavit the plaintiff said that in about 1990-91 began relationship with a Darren R and discussed with him the possibility of having gender reassignment surgery. Darren R was said to be supportive of this decision. That said he was not however called at trial. The plaintiff was enjoying an intimate relationship with him, having sexual intercourse by way of oral and anal intercourse. Darren R also attended a pre-operative meeting with one of the psychiatrist consultants.

In 1991 she made inquiries as to a suitable surgeon to perform reassignment surgery. The plaintiff said that it was at the end of 1991 that she decided that she would have a gender reassignment operation, and that she was thinking of having the defendant do the operation - who was suggested by Professor Steinbeck. It was suggested to the plaintiff that in October 1991 the plaintiff told Professor Steinbeck that she was looking to have the surgery in May 1992. The plaintiff responded that “perhaps” this was true. The plaintiff said she received a referral in October 1991 to see the defendant regarding breast augmentation and gender reassignment surgery. The plaintiff saw four doctors regarding augmentation mammaplasty (the defendant, Dr Lenvay, Dr O’Brien, and either Professor Steinbeck or Dr Townson). The plaintiff does not recall when she definitely decided that she would have the defendant perform the operation. The plaintiff said that she had decided what surgeon [the defendant] was going to perform the operation and between 1991 - 1993 and she was also seeing psychiatrists during that period. she and her boyfriend saved money for the operation. Professor Steinbeck (25 October 1993) stated that the Melbourne Group were “happy with her” and that he thought she had inter alia “known where she was going” and “I have no reservations about her”.

The plaintiff said that she could not recall whether she saw a third psychiatrist (other than Dr Orsmond and Dr Greenway) between 1991 and 1993. But she was referred to Dr Orsmond and Dr Greenway by the defendant. She said, in re-examination, that she also saw Dr Townson, Dr Pouw and Dr Hodgkinson during this time period.

The plaintiff disagreed with the suggestion that she told Professor Steinbeck or the defendant that she had “been passed by the doctors in the Melbourne group for reassignment surgery.”

In her affidavit the plaintiff said that she had her first consultation with the defendant on 30 October 1991. In her affidavit the plaintiff said that she said to the defendant: “I am considering having a sex change. I have been living as a woman for a little over three years.” She claims she then asked a number of questions like: “what does a sex change look like, can you orgasm, how long before you can have sex, how much does it cost?”

According to the plaintiff, the defendant showed her 2 photographs of other reassignment surgery (which had no visible scarring and was aesthetic to look at) and said that it costs $12,000, and “you will be able to achieve orgasm and commence normal vaginal intercourse about six weeks after the surgery.” The plaintiff’s case that she paid the defendant $12,000 was not maintained and Mr Cassidy ultimately conceded that the whole of the $12,000 was not paid to the defendant.

The plaintiff did nothing until 22 October 1993 when she attended the defendant’s surgery again. In her affidavit the plaintiff contends that the following inter alia was said during this consultation: Plaintiff: “I am thinking of having the gender reassignment surgery done.” Defendant: (after examining the plaintiff): “you have enough skin, we won’t have to graft.” Defendant: “Before the procedure can be carried out you have to see two psychiatrists for two years who have to pass you as being suitable for the operation.” Plaintiff: “Will I have a clitoris?” Defendant: “With the operation you will get a clitoris, you will be able to have an orgasm, you will be able to have vaginal intercourse with your partner… This will be good for you, you have the looks to carry it off… I’ve carried out quite a number.” (see also T 52)

I do not accept that what was said in the first sentence was said in terms stated. I do not accept that the defendant said what is alleged in the second sentence.

The plaintiff said that the defendant recommended that she see two psychiatrists (Dr Orsmond and Dr Greenway in November 1993), and Dr Townson. She also said that she was evaluated by psychiatrists for six months.

In her affidavit that plaintiff said that she saw Dr Orsmond on 1 and 30 November 1993, 4 and 27 January 1994, and 24 February 1994. And saw Dr Greenway of 4 November 1993, and 21 February 1994. Neither doctor, the plaintiff claims, gave her any advice as to what she could expect if she proceeded with gender reassignment surgery. I reject the plaintiff’s “claims” where it conflicts with the evidence of Dr Orsmond and Dr Greenway.

The plaintiff said that she did not recall whether she asked Dr Townson to provide a report to the defendant for gender reassignment.

On 13 December 1993 the plaintiff under went breast augmentation (Dr Pouw), and there were no complications.

In her affidavit the plaintiff claims that the defendant told her that there would be no down-side to this operation, and that the gender reassignment procedure was “straightforward”. (I do not accept the plaintiff’s evidence on this point or where it conflicts with that of the defendant). The plaintiff gave evidence that during the first consultation with the defendant he asked her to remove her clothes to assess the amount of skin to that could be used for the operation and that he said that this would depend upon whether he would need to do a split skin graft, but this would not be necessary. Further, the plaintiff claims that the plaintiff said that she did not need a skin graft and there would be adequate room in the cavity to have sex with a man of normal penile size.

The plaintiff also said that the defendant told her that she would be in hospital usually for about six to seven days and that only one operation would be needed. However the plaintiff’s evidence was that she did not think he said that there may be a need for a further operation depending upon what occurred.

The plaintiff gave evidence that the defendant told her that she would be admitted on Sunday and kept on a liquid diet and given enema on the morning prior to surgery. She also said that she was told that the procedure involved the removal of the penis and testicles, with a cavity created for the neo vagina, and she would have to dilate daily after the operation.

Further, the plaintiff said that the defendant told her that the head of the penis would be used as the clitoris and the penis turned inside out and made into a vagina, which would be adequate enough to accommodate a man of average penile size. And also that she would have a clitoris that could be stimulated to reach orgasm during sexual intercourse.

The plaintiff gave evidence that on 22 October 1993 the defendant said to her that dilation would be initially uncomfortable, but she was told to dilate for 6 to 8 weeks until I can have vaginal intercourse, and use a man’s penis as a dilator. She also said that she was told that the neo-vagina would not be self lubricating, and she would have to use lubricant for intercourse and dilation.

There were a number of matters that the plaintiff claims she was not told about by the defendant.

The plaintiff claims that the defendant did not explain in general terms what was involved in the operation. I reject her evidence on this matter as well. However, the plaintiff does not deny that the defendant may have had a discussion with her about the procedure. The plaintiff said that she was not told that there was a possibility that the procedure might be unsuccessful. Nor was she told that there was any risk in the operation failing or that she could suffer mentally or physically. I do not accept the plaintiff’s evidence on these matters.

The plaintiff also claims that she was not told by the defendant how the surgery was to be done. I am satisfied proper warning advice and information was however given to her in relation to this matter as well. She also claims that she was not told by the defendant that the neo-vagina had limits in terms of depth and width, nor that this cavity is unnatural in male with the body tending to try and shrink it. I reject this evidence of the plaintiff at least in the terms stated.

Another matter the plaintiff claims was not canvassed with her by the defendant was that there was a chance that she might not be able to have vaginal intercourse and that she might have to have virtually the whole procedure re-performed. Nor, the plaintiff claims, was she told that she might suffer emotional or mental damage if the procedure should “fail”. The plaintiff claims that if she was advised that the procedure might “fail” and in particular that she might not be able to have penile vaginal intercourse (which in any event I have found she was able to do after further surgery in May 1998) then she would not have had the defendant perform the surgery. I do not accept this claim. I specifically reject it. Indeed I find to the contrary. Further, Mr Cassidy in his final address too accepted, even conceded that the plaintiff had the operation for a multitude of purposes (T 372). On this point I too accept and repeat the plaintiff’s history to Dr Dent (report 31 August 1999) “but if you’ve got the wrong genitals you’d do anything”!

Additionally, the plaintiff said that she was not told by the defendant that she would have to dilate for the rest of her life, but rather “just until you can start to have sex with your partner, about six to eight weeks.” The plaintiff says that had she known this she does not think that she would have gone ahead with the operation. I reject her evidence on this point as well. Indeed the plaintiff also had full opportunity to read the patient information booklet (Exhibit 1). I am satisfied she did so and understood it.

The defendant did not say anything at all, it is claimed by the plaintiff, about the urethra or passing of water, or any difficulties associated with such. The plaintiff also contends that the defendant said that the scarring would “blend into the folds” and the appearance of the genital area post-operatively would be similar to that of a female.

The plaintiff claims that the defendant did not tell her that there was a risk that the clitoris might die if the blood supply to that part of the body failed, nor that there would be a possibility of a urethral stricture developing. Nor was the plaintiff told, it is claimed, that she might need to use a golf tee to dilate, nor using the expression “caruncle”, nor the possibility of a fistula occurring, or the consequences thereof.

The plaintiff said that she was not told that there would be hardening from the erectile tissue that was going to be left when the operation was performed or that there was a risk that the wound could be infected, and a risk of haemorrhaging.

Also, the plaintiff said that the defendant did not tell her that there is a range of appearance of reconstruction of the perineum, or that he couldn’t make an XX out of XY, nor did he say that in some patients the result looked convincing, and with others it did not, and the outcome would vary from patient to patient because every one is different, nor that the result depended upon what building blocks he had to work with. I also do not accept her evidence on these matters.

Finally, the plaintiff said that she was not told by the defendant that there would be a range of appearances just as there is in biological women, and that if you were to put 100 women together you would find that their genitalia would differ. Nor do I generally accept this evidence.

The plaintiff gave evidence that on 9 March 1994 she saw the defendant again. The plaintiff paid the defendant $12,000 in cash for the operation. I reject her evidence. The plaintiff said that she was then handed a booklet entitled: “Neo-Vaginal Surgery - Patient Information” (Exhibit 1) The plaintiff claims the following was said: Defendant: “One of my patients when having the gender reassignment surgery had the bowel nicked and thereafter it was necessary for her to have a colostomy bag…. Read your book and know your book….You don’t have anything to worry about it’s a straightforward operation.” (The plaintiff said that Dr Haertsch did not go through the booklet or any particular passage, with her. (T 14)) Plaintiff: “How many weeks before I can have vaginal intercourse with my boyfriend?” Defendant: “In six to eight weeks post operatively you can have vaginal sex.” (plaintiff’s Affidavit p 4)

The plaintiff gave evidence that she “would have read the book before and after [surgery]…. from start to finish.” The plaintiff denied that she wasn’t really concerned about what was in the book because she really wanted the operation. She added that she did not go through the booklet, nor did she study it. However, the plaintiff also gave evidence that there was nothing in the section entitled “Dilating” in the booklet that she did not understand at the time of the surgery. The plaintiff gave evidence that there are other parts of the booklet that she said she now understands but cannot recall reading at the time of the operation. Despite some answers which I regard as evasive I also find that she read the booklet. In fact she said as much when giving evidence during cross-examination: “in relation to this booklet, I read this booklet once before the operation from start to finish…” (T 68). I also find that the plaintiff had a full capacity to understand it and I find that she did. She was an intelligent adult of sound mind and comprehended what was said in the book (in addition to what she was told).

The plaintiff in evidence denied that she wanted to have the operation regardless of the associated risks, and that she would not have gone through with the operation if she were told of the risks. If there were a number of risks, she says she would not have gone ahead with the surgery. I also reject these self serving assertions and claims: see Chappel per McHugh J at 246, Kirby J at 272-273.

The plaintiff said in evidence that Dr Orsmond did not tell her of any risks associated with the operation.

The plaintiff also said that she had thrown out her copy of the information booklet but had got another one from a friend of hers who was also a patient of the defendant.

On the Friday before going into hospital the plaintiff says that the defendant gave her a set of dilators, (but did not demonstrate their operation), a prescription, a vaginal training kit, and a hospital admission form. The plaintiff said that she did not meet or recall meeting Nurse 1 before the operation. I do not accept this claim. I find she did meet Nurse 1, whose evidence I accept. I have no hesitation in accepting Nurse 1’s evidence in preference to that of the plaintiff where there is conflict. The plaintiff was admitted to the Westside Private Hospital in Burwood the night before the surgery. On 23 May 1994 the plaintiff underwent gender reassignment surgery. This was carried out by Dr Haertsch.

I now turn to consider the evidence of the defendant. Dr Peter Haertsch (Defendant)

I regard the defendant as a generally credible and reliable witness whose evidence I accept and can rely upon. At the risk of repetition I repeat some matters in order to particularly address the issue of duty to warn. Next, I accept his evidence. I accept and prefer his evidence where it conflicts with that of the plaintiff.

The defendant is a specialist plastic surgeon, and is Chief of Plastic Surgery and Director of Burns Surgery at the Concord Hospital. He believes that he is the only doctor who is now currently performing gender reassignment surgery in NSW. (See Exhibit 11)

The defendant said in his statement (Exhibit 11) that by 1994 he had performed about 100 gender reassignment operations. When he first sees his patients, his practice was; he says: to obtain a history to discuss how the operation is to performed; and to inform the patient of the risks of the operation and its intended outcome.

The defendant said in his statement that his usual practice with gender reassignment patients in 1994 was to advise that his role was limited to providing information about how operation was performed, associated risks, and determining whether patient wished to proceed. He stated that he did not offer the plaintiff counselling, but instead relied on psychiatrists for that function. I accept that this was a proper and reasonable procedure to follow, and that there was no breach of duty in doing so.

In his statement the defendant said that if psychiatric criteria were fulfilled, or were about to be fulfilled, he would examine the patient to determine whether there was enough penile skin to fashion a neo-vagina without performing a split skin graft. He then would explain what the surgery entailed, the possible complications, and outcome. The defendant in his statement, lists a number of matters that he discussed with patients before undertaking this surgery (see Exhibit 11 p 3-4)

The defendant said that he had no direct recollection of what he said to the plaintiff and what she said to him. However, he very much relied upon his well established practice and routine that he had evolved. I find that this is in fact was the situation. It was a well established general practice which was performed regularly, routinely and uniformly having done 100 operations. I too am also asked to draw inferences as well: Connor v Blacktown District Hospital supra. I infer, and have no hesitation in doing so, that the defendant followed his usual proper general practice, routine and procedure in dealing with the plaintiff including the provision of appropriate warnings of risks, information and advice. The defendant’s evidence too gets support from Nurse 1, a most impressive and credible witness and from other evidence.

In his statement, and when giving evidence, the defendant said that he first saw the plaintiff on 30 October 1991 (on referral from Professor Steinbeck). The plaintiff was 22 years of age at that time, and told him that she worked as a receptionist, and had undergone three years assessment from, and been passed by, the “Melbourne Group” for a surgical sex change, but she did not have the funds for the surgery. The defendant said they had a “lengthy discussion about the procedure.” This was a 20-30 minute consultation.

In his statement the defendant said that he next saw the plaintiff on 22 October 1993 on referral from Dr Townson. This referral note said that she “was considering gender reassignment surgery and that she had been on hormones for since about 1989.” The plaintiff, it is contended, told the defendant that she was now working as a waitress. The defendant also said that he told the plaintiff that he needed the two necessary psychiatric reports, and would be able to perform the surgery in February or March 1994.

In his statement the defendant said that he subsequently received three letters (one each from Professor Steinbeck, Dr Orsmond and Dr Greenway).

In his statement the defendant also said that he next saw the plaintiff on 9 March 1994. The plaintiff, he claims, told him that she had secured the funds from a magazine and wanted to proceed with the surgery. He said that he then examined the plaintiff to assess whether the neo-vagina could be fashioned from a split skin graft or penile skin as these were the only two procedures he was performing in 1994. In fact under cross-examination the defendant said that he used to do split skin grafts but abandoned them because of the morbidity rate, and the penile inversion was his preferred method. He concluded that a skin graft would not be necessary. However, the defendant claims that he also said that if there was not enough penile skin then he would “have to resort to a graft.” He said in his statement that he then told the plaintiff about the surgery, the complications and outcome. I too accept this evidence, and reject the plaintiff’s evidence to the extent it is inconsistent with it. His general practice (which he too implemented) is also contained in his statement and may be summarised as follows (see statement Exhibit 11 p 5-9):

(a) an anaesthetic will be required; hospitalisation for 6-7 days, all things being equal; admission on Sunday, liquid diet;

(b) the surgery is designed to be a single stage procedure; penis is removed, small portion of head of penis retained to construct a clitoris;

(c) the testicles are removed, the urethra verticalised, vaginal cavity constructed by dissection between bowel and bladder;

(d) the neo-vaginal cavity is unnatural with a response of scarring and shrinkage; the neo-vagina has limits in terms of depth and length; it depends on materials to work with, there is no pre-operative test to determine the width of the pelvis in terms of producing a vagina of adequate width and depth;

(e) it will be necessary to dilate daily (physiologically or manually) post operative for the rest of your life to ensure maximum length and depth is maintained; the neo-vagina not self lubricating and has a natural tendency to shrink;

(f) the clitoris will be sensitive for 6-12 months (occasionally hypo or hypersensitive) but returns to normal over a 12 month period; there is a risk that the clitoris may die if no blood supply.

Under cross-examination the defendant added that it is his practice to tell the patient that the clitoris under normal circumstances will be sensitive, so that they will be able to have manual stimulation. He said that they [patients] will be able to achieve orgasm. He said that he might say it might be on the sensitive side or numb side, but whichever way it is it will come back to normal over a period of 6-12 months.

(g) there is a possibility of urethral stricture developing which can cause occasional bladder problems; dilation with golf tee is required for a short period of time;

(h) there may be occasional and irregular swelling of urethral mucosa;

(i) one of the most common problems in relation to the urethra is the fact that there is erectile tissue around it, and could cause discomfort when a patient is aroused by way of thickening, or hard ball, in the anterior part of the vaginal opening caused by the base of the old penis swelling. If this is a problem it can usually be fixed with a minor further operation. The defendant said in evidence that he tells his patients that there will be erectile tissue left on the urethra as it can not be completely removed for fear of devascularising the urethra. He added that this information is contained in the information booklet. He also said: “I warn them and it’s in my booklet. I warn them that this may cause a problem later on by way of forming an uncomfortable ball in the anterior vagina.” (T 272);

(j) the most serious complication is the development of recto-vaginal fistula - which is a hole between the rectum and the neo-vagina allowing air or a combination of air and faeces to enter the neo-vagina. Because of this risk occurring possibly through inadvertent damage to the rectal wall which may be of varying thickness, and that there is no pre-operative test that can be done to determine this, there will be a colo-rectal surgeon who performs this dissection; you will undergo a pre-operative bowel preparation by way of diet and enema so if any damage the fistula can be repaired immediately; if the fistula becomes apparent after the operation a colostomy may be required, then an operation to repair the fistula followed 3-4 months by closure of the colostomy; a further operation to repair the neo-vagina may also be required as a result of contracture if you cannot dilate whilst the fistula heals; the symptoms of a fistula are a faecal smell in the vagina, faeces or faecal discharge from the vagina, “bubbling” from the vagina or passing wind from the vagina;

(k) there are other complications of gender reassignment surgery;

(l) there will be scars - normally unobtrusive; possible delay of healing;

(m) there is a risk that wounds can be infected, but antibiotics are given to prevent this;

(n) there is a small risk of haemorrhage;

(o) I will see you prior to surgery when you will be given: a hospital admission form, a dilating kit, a prescription for antibiotics and pain relief, the booklet of instructions which will be discussed thoroughly with you by Nurse 1. However, under cross-examination the defendant said that his “usual practice” is to give these items (plus the information booklet) at the consultation a few days before the operation;

(p) Nurse 1 assists me and will discuss various aspects of the post-operative hygiene with you;

(q) you will remain in hospital after the operation, and I will see you on Wednesday and Friday and if all has gone well you may be discharged on the Saturday, and I will review you again on the following Friday;

(r) Nurse 1 will speak to you before and after surgery and will assist you with any questions/problems (in particular regarding vaginal dilation);

(s) there is a range of appearances of the reconstructed perineum and every effort made to make the perineum look as close to a female as is possible, but I cannot make XX out of XY. With some patients it looks convincing and some not. It all depends upon the building blocks available. The outcome will vary from patient to patient. There is a range of appearances just as there is in biological women. If 100 women were examined, all their nether regions would vary;

(t) the surgical fee is $7,500 (which includes the anaesthetist’s and colo-rectal surgeon’s fee, 12 months follow up consultations, and further surgery by me in the event of a complication). The fee payable last consultation before operation. In evidence the defendant denied that he told the plaintiff that the procedure was $12,000. He said that the cost would have been $6,500, and he denied ever receiving $12,000 cash, a matter that was ultimately conceded by Mr Cassidy [my emphasis].

After this, the defendant asked plaintiff whether she wanted to proceed. She said “yes”. Dates were discussed and the date selected.

In relation to paragraph 18 of the defendant statement (paras (a) - (t) outlined above), the defendant said that he discuses various aspects of the surgery depending upon where we are at in terms of the “transitioning process” because it is inappropriate to discuss detailed surgery when you are a long way out. Once patients are examined for working out what type of operation they have [in this case on 9 March 1994] the specifics of the whole thing are discussed in great detail.

The defendant said that he believed that it was at the consultation on 9 March 1994 that he gave a copy of booklet entitled “Neo-Vaginal Surgery - Patient Information” (Exhibit 1). Under cross-examination the defendant says that he cannot say definitely that it was at this time he gave the plaintiff the booklet - he says that this date was “extrapolated” from the plaintiff’s statement. He added that he would normally give patients the booklet at the last consultation before surgery, but many times it is given earlier if there is going to be 2, 3, or 4 consultations. Under cross-examination the defendant said that his “usual practice” is to give many items (including the information booklet) at the consultation a few days before the operation. He said that he does not actually recall the day he gave the booklet to the plaintiff. But it appears that it was probably on 9 March 1994 when it in fact happened. I am satisfied that the booklet was in any event received by the plaintiff before the operation and was read and understood by her. The defendant said that the patient is given the information long in advance of surgery. The Friday before surgery is merely to go through it all again, and to talk about the pre-operative bowel preparation, shaving etc. Notwithstanding this, the defendant said that he did not go through the book or read any portion of it to the plaintiff. All that said as I have indicated there is no dispute that the plaintiff received the booklet, and in my opinion read it before surgery. It is common ground that the defendant made available the booklet, the plaintiff obtained it.

The defendant saw the plaintiff on 20 May 1994, gave her a prescription for antibiotics and pain relief, a dilating kit and vaginal training kit.

In accordance with usual practice, he says he did the following (statement pp 9-10): 1. ask whether patient is certain that they want to proceed; 2. ask whether they have any questions; 3. talk about bowel preparation; 4. advise about shaving prior to surgery; and 5. refer her to Nurse 1 to discuss matters in booklet.

Under cross-examination, the defendant said this consultation would have been slightly longer than 20-30 minutes.

In relation to the final consultation before surgery, the defendant said that he had developed his usual practice of what he did since he started the surgery in 1988 (and by 1994 he had done about 100 of these operations). Before the operation the defendant saw plaintiff and checked she was comfortable, that she wanted to proceed, and had no specific worries.

The defendant was assisted by Dr Bursle, - the anaesthetist was Dr Yeo, and there were two other sisters.

In his statement the defendant said that visited the plaintiff in hospital on 25 May 1994. He also said that the plaintiff’s post-operative recovery was normal, and the usual instructions for treatment were given. It is the defendant’s evidence that he made another hospital visit on 27 May 1994 whereby he removed neo-vaginal pack, the catheter and sutures, examined the vaginal cavity using a speculum and a special light, flushed the neo-vagina, and inserted a number three dilator. He said he noted that the plaintiff did not say anything to indicate that this was excruciatingly painful, and if she did it would have been recorded in the notes. He noted 100% viability of neo-vagina and neo-clitoris. He also said that the plaintiff made excellent progress and she was discharged. The defendant said that he told the plaintiff to contact the hospital if she had any problems and Nurse 1 would see her regarding instructions as to dilation and personal hygiene.

The defendant said that he saw plaintiff in his rooms on 3 June 1994. He said that he noted that the plaintiff was convalescing well, but had problems with dilating. He said that he stressed the importance to keep dilating. The defendant’s evidence is that he believed at all times the plaintiff told him that she had been using the number three dilator. In his statement the defendant said that he saw the plaintiff on 10 and 24 June 1994, where on each occasion she was progressing well without difficulties. He added that he saw the plaintiff on 10 August 1994 and noted that she was progressing well. He noted that her urinary stream was straight - indicating no urethral difficulties, her clitoris was sensitive but not hypersensitive. He added that the plaintiff gave a history of unsuccessfully attempting intercourse on three occasions. The defendant added that this did not concern him greatly as “I knew that there had been some degree of division of the lower fibres of the levator ani and I expected it to settle in due course.” He also added that “she had had an orgasm and she gave a history of ejaculation”.

In his statement the defendant said that he next saw the plaintiff on 28 September 1994. He stated that the plaintiff was happy with her appearance although the neo-clitoris was a bit big. He noted also that her urinary stream seemed fine with no infection. He also noted that the plaintiff was still unable to have intercourse and had difficulty with tightness above the introitus. He added: “I considered that this was caused by the lower edge of the levator ani which required continual dilation.” The defendant said that he discussed the need to keep dilating. He said that the plaintiff gave a history of no difficulties with her bowel and she was happy with the appearance of her genitalia. He added that the appearance of the labia was discussed, and this led to a labioplasty being performed in December 1994. I accept this evidence too.

On 2 December 1994 a labioplasty was performed to give the perineum a more feminine appearance thus providing some cover for the neo-clitoris. The neo-clitoris was not reduced in size. The defendant denied that he said to the plaintiff that he would reduce the size of the neo-clitoris, rather he claims: “I would have told her that to reduce its size courted losing it.” The labioplasty was an attempt to give a more feminine appearance and hide the prominence of the clitoris. I accept this evidence of the defendant.

In his statement Dr Haertsch said that he reviewed the plaintiff on 13 January 1995. At that time the defendant said that the plaintiff told him that the neo-clitoris remained sensitive and that she was happy with its appearance. Dr Haertsch said that he noted that the plaintiff’s urinary stream was fine, with no frequency difficulties, and that she was maintaining dilation without difficulty, however her sex life not as she wanted.

The defendant said that the plaintiff, after that date, never returned to see him, and she now raises claims which were never before brought to his attention. The defendant also said that: “At no stage did I ever advise [the plaintiff] that I could perform surgery which would create specific genital features to enable her to carry on life as a female and all that entails, save and except the bearing of children.” The defendant said that he told the plaintiff that she would probably be able to have vaginal sexual intercourse in about 6 weeks (post-operative), but that it very much depends upon healing. This however was something subject to his other warnings and the booklet. It is not suggested that he could guarantee any result. The defendant denied saying to the plaintiff that she had the looks to carry the surgery off. I accept this evidence too.

The defendant said that when he examined the plaintiff he would have told her that it is usually a one stage operation and there are a number of aspects to it: the total amputation of the penis, the clitoral revision, the urethral reconstruction, the vaginal reconstruction. He said that he then would have talked about the fact that she needed an anaesthetic; that she would be in hospital for X number of days and the aim of the operation is to reconstruct something that is similar to, with no guarantees for a spectrum of appearance. After this he said he would go back and go through everything that happens. He added that he would go through the clitoris and all the things relating to the clitoral area, and urethra, and the vagina, and he would say that there will occasionally be people who have trouble with the urethral bulb. I accept this evidence. He said that he discussed this at length on 20 May 1994.

The defendant said that before the operation he told the plaintiff that there was a possibility that the operation might be unsuccessful, as there are no guarantees. He said that he never said to the plaintiff that there was a chance that she may not ever be able to have vaginal intercourse. He said that he told the plaintiff that she would have to dilate for the rest of her life - either manually or physiologically. He also said that his practice would be to tell patients that as a direct result of skin incision there will be a scar, but under normal circumstances it shouldn’t be obtrusive, noticeable. I accept the defendant’s evidence where it conflicts with that of the plaintiff. I accept he did what he did, said what he said. I accept his evidence as being reliable and credible. In doing so I have also had further regard to his demeanour as a witness. In addition, I too have regard to his contemporaneous notes. I accept he followed his well established practice, procedure and routine in terms of providing warnings, advice and information. Nurse 1

I now turn to consider the evidence of Nurse 1, which I found to be very impressive. I accept her evidence. I accept it where it is in conflict with that of the plaintiff.

I have little doubt that in respect to the plaintiff she too followed her usual well established practice and routine which she performed regularly and uniformly.

Nurse 1 is a registered nurse, and has been for 13 years. In March 1990 she underwent gender reassignment surgery, which was performed by Dr Haertsch, and since May 1990 has worked with the defendant to provide support and information to patients undergoing gender reassignment, having undergone gender reassignment herself. There was empathy. Nurse 1 impressed as being very diligent, conscientious and highly experienced in the performance of her duties and routine.

Nurse 1’s particular role is to assist patients with learning appropriate hygiene practices and with dilation exercises. By May 1994 she estimates that she has performed this role with over 100 patients. Nurse 1 said that her particular role was to assist people with learning appropriate hygiene practices and dilation exercises, and was part of a checking process - to go through with the patient all the appropriate areas that have been covered [by the defendant]. Her role was generally “educational”, she tried to gauge the patient’s level of understanding of what the operation involved, and the effect of the operation, and give information accordingly.

Nurse 1’s evidence was that she would explain to patients how they needed to prepare themselves pre-operative, to go through the information booklet and answer any questions.

At the first meeting, Nurse 1’s usual practice was to ensure the patient had received and read the information booklet. She said that she starts by talking about the aims of the surgery, in particular whether patients were aware of the risks of the procedure and that it is irreversible.

Under cross-examination Nurse 1 said that depending upon whether she saw the patient before or after the defendant she would vary her practice according to whether the patient answered her questions - ie whether they had received the booklet or not.

A typical question she asked the patient was: “Do you have any questions about risks of surgery that you’ve talked to Dr Haertsch about?” “Do you understand what a fistula is?”

In her statement Nurse 1 said that she would see the patient in hospital and assist with dilating properly, give them a dilating routine, and discuss the need for future dilating.

Nurse 1 said that she then went through the booklet with the patient and ensures that the patient knows what they are undertaking and the seriousness of the operation.

In her statement Nurse 1 said that she first saw the plaintiff on Friday 20 May 1994 at the defendant’s rooms. In evidence however (both in examination-in-chief and cross-examination) Nurse 1 said (from looking at her diary entry) that this consultation would “probably be more likely it was the Wednesday [18 May 1994]”. It is appropriate to observe that whether it was the 18th or the 20th May does not make any difference or of significance to what I find she did pre-operation. Any error as to date I believe is of no significance, and is perhaps possibly attributable to clerical error or perhaps even more probable a change in her rostered working day(s) at or about this time. I am of the view and find Nurse 1 followed her usual practice of explaining things, and she took the plaintiff through the information booklet at this time, and told her to take it to hospital with her and read it again. Nurse 1 said that it was during this first consultation that she first went through the booklet with the plaintiff. Nurse 1’s procedure regarding the booklet was to take the patient to a quiet area, but as general rule they have previously received booklet prior to that visit, and ask them whether they have read the booklet (which they have in the majority of cases) and ask whether they have any questions and if they understood the booklet.

At this time Nurse 1 said she asks about the discussions they have had with the defendant regarding the risks of surgery and expected outcomes. The patient is then given an opportunity to ask questions regarding those matters and anything else they did not understand. She would ask questions regarding risks that the defendant explained to assess their level of comprehension. She would go through the booklet (not word for word even if they have not previously read it) and make sure they’re aware of the aim of surgery. She goes through each section and paraphrase topics and goes through particular concerns. She makes sure they know what they need to bring to hospital, home preparation, and then goes through the following sections of the booklet with them. This is Nurse 1’s usual practice - she does not recall word for word. That said, the usual practice was to have this consultation shortly before the operation. I infer and accept the usual practice was followed in the case of the plaintiff prior to the operation, even allowing for the Wednesday/Friday “minor” dispute.

Regarding the matter of putting ticks beside some of the points in the booklet, Nurse 1 said that she would also go through them by running her finger down the page. But these ticks would not highlight things that were important, but to emphasise to the patient particular things that they need to remember for hospital.

Nurse 1 said in her statement that she explained to the plaintiff that dilating is something that will have to be done for the rest of her life. Nurse 1 said that, per her usual practice, if the patient was in a sexual relationship, then it would be six weeks post-operative before she could have sexual intercourse. The consultation would have taken one hour. Nurse 1 could not actually recall whether she had told the plaintiff that she too had had “this” operation. I say nothing as to the plaintiff’s probable knowledge or suspicions as to the situation of Nurse 1.

In evidence Nurse 1 said that as part of assisting patients with dilating she ensures that they are aware of their new anatomy - where the clitoris is - as it is very swollen and they need to know where to put the dilator.

Nurse 1, in her actual statement, said that she saw the plaintiff on Friday 27 May 1994 after she had been seen by the defendant and before she was discharged. She added that during this consultation Nurse 1 followed her usual practice: reinforced post-discharge hygiene; used the booklet as a reference; direct/support first dilation (using third largest dilator) ie dilator number 3. She then asked whether the plaintiff had any concerns she wished to raise. Nurse 1 never heard from the plaintiff again.

In terms of a fee, Nurse 1 said that the single fee represented both pre and post-operative visits. Nurse 1 said that it was her usual practice to see every patient before the surgery in 1994, and if she could not then she would charge less. Similarly, if she could only see the patient on one occasion (eg only before surgery or only after surgery) then she would charge a lower fee.

To sum up Nurse 1’s evidence. I am very confident that she was a witness whose evidence was reliable and credible and I would have little or no hesitation in acting upon it.

It is my view that Nurse 1’s evidence supports the conclusion that the plaintiff’s evidence is unreliable. I shall point to three examples. Firstly, the plaintiff asserts that she did not have a meeting with Nurse 1 before the operation. Nurse 1’s evidence, (which I accept) however, is that in fact she did meet with the plaintiff before the operation. Secondly, the plaintiff asserts that the contents of the booklet were not discussed with her in detail. This assertion is contradicted by Nurse 1’s evidence. Thirdly, the plaintiff asserts that she was not warned of the risks associated with the operation by the defendant or anybody else. This too is contradicted by Nurse 1’s evidence. I accept the evidence of Nurse 1 where it conflicts with that of the plaintiff.

I find that Nurse 1 was a very credible, reliable and impressive witness. I am also satisfied that after the operation Nurse 1 attended to the plaintiff and assisted with the insertion of the number three dilator, being her usual practice.

I am satisfied that in accordance with her usual practice, Nurse 1 provided the plaintiff with excellent pre-operative and post-operative care. I believe Nurse 1 took all appropriate steps to ensure that the plaintiff was fully and properly educated and informed in the manner referred to. Professor Steinbeck

I turn to consider the evidence of Professor Steinbeck of particular relevance on the issue of duty to warn and causation. I accept his evidence

Professor Steinbeck is a consultant physician in general medicine with a specialty in endocrinology.

The plaintiff was first referred to Professor Steinbeck by Dr Pauline Shockman of St Kilda, Victoria in April 1991 - regarding the plaintiff’s pituitary adenoma. Professor Steinbeck first saw the plaintiff on 26 August 1991. According to Professor Steinbeck the plaintiff told him that at the time she was 22 years old and had seen a general practitioner (Dr Carseldine) and a psychiatrist in Melbourne.

In his statement Professor Steinbeck said that he noted upon examination that the plaintiff had good breast development, had obtained the HSC (with score of 305) and was “ determined to go ahead with the [gender reassignment] procedure.” (emphasis added). After discussion about mammaplasty and the gender reassignment issue (as to who would perform the operation) Professor Steinbeck referred the plaintiff to the defendant. Professor Steinbeck said he wrote in this referral that she had been “passed by the Melbourne group.”

In his statement Professor Steinbeck said that the plaintiff “appeared to have been well informed about the surgery and initiated conversation in respect to the choice of surgeons…” [my emphasis]. He added that it was his usual practice to tell patients contemplating gender reassignment surgery that “one can only know how good the operation will be after surgery.”

In 1993 Professor Steinbeck wrote to the defendant (Exhibit 6(c)) confirming that he had seen the plaintiff for more than 2 years (a copy of this letter was sent to Dr Orsmond and Dr Greenway). Professor Steinbeck informed these latter two doctors that the plaintiff had advice from Melbourne that she was acceptable. Such information was gained from the plaintiff and talking to Dr Shockman.

Professor Steinbeck said that the plaintiff “appeared to be quite consistent and appropriate in her decision to go ahead with gender reassignment surgery. It was apparent that she had talked to other people about the operation and had gathered a degree of information…”. Professor Steinbeck said that his “overall impression was that [the plaintiff] was making an informed and reasonable decision to go ahead with the surgery.”

As I have said, I accept Professor Steinbeck’s evidence, including where it is in conflict with that of the plaintiff. Dr Orsmond

Dr Orsmond gave evidence too. It is also of particular relevance to the issue of duty to warn and consider. I accept his evidence where it is in conflict with that of the plaintiff. I accept his evidence generally.

Dr Orsmond is a consultant psychiatrist, and has been practising as such for about 35 years.

In his statement (Exhibit 13) Dr Orsmond first saw the plaintiff on 1 November 1993 when she was aged 24 on referral by the defendant. Dr Orsmond said that the plaintiff told him that she had seen Dr Trudy Kennedy in Melbourne regarding counselling and assessment “for transsexuals considering the operation” about two years previously.

She said that she had seen the defendant three times previously, and Professor Steinbeck for hormonal treatment for several years. Indeed, she also said that she had seen Dr Trudy Kennedy in Melbourne on three occasions. Additionally, Dr Orsmond said that the plaintiff told him that she had seen another psychiatrist on one occasion in Melbourne, but she didn’t know the name.

I am also satisfied that the plaintiff told Dr Orsmond of a number of other matters including that: she lived primarily as a female since 1988; she resided in Sydney for 2.5 years and previously in Melbourne for 12months; she currently with heterosexual boyfriend (for two years); she had a part-time job as waitress; she most of her friends knew of her transsexuality; as a child felt girlish, she had looked female and teased at school, predominantly mixed with girls and sexually attracted to males; she said she felt normal the way she was; she associated with many transsexuals in Melbourne who had had the operation; she discussed the operation with them; she was told of the Monash center through transsexual friends; she began seeing Dr Trudy Kennedy but did not attend an assessment course; she and her partner practiced anal and oral intercourse for a number of years - but she had not experienced orgasm (T 308); and she had “extensively” discussed the operation with several friends who had already had the procedure.

Dr Orsmond said that the plaintiff did not exhibit any signs of a major psychiatric illness or depression (not even mild depression). In terms of adjusting well to her “dilemma” (ie being born with male external parts, but being psychologically orientated towards womanhood) Dr Orsmond said that his view was that he thought “she was doing remarkably well, up to that stage.”

Dr Orsmond said he explored the plaintiff’s expectations about gender reassignment surgery. At the end of this consultation Dr Orsmond concluded that the plaintiff was a “primary transsexual”. This, he said, was evidenced by early manifestations of cross-dressing, her feeling of being female, and her identification with transsexuals in Melbourne in her late adolescence.

Dr Orsmond later saw the plaintiff on 30 November 1993, 4 and 25 January 1994, and 24 February 1994. On 25 January 1994 Dr Orsmond concluded that the plaintiff was a “genuine primary transsexual.” This, he said, was evidenced by her having had a breast operation, she was eating and sleeping well, she presented well as a female - both in looks and mannerisms. Dr Orsmond said that the plaintiff “had knowledge of the gender reassignment surgery from transsexual friends who had had the procedure and her desire for the operation was supported by parents and boyfriend.” I would note in passing that neither the plaintiff’s mother or then boyfriend (as at 1994) gave evidence on behalf of the plaintiff.

In his statement (Exhibit 13) Dr Orsmond added: “Her expectations and knowledge of the operation were realistic and she had the capacity to understand the complications as they were explained. These complications included the possibility that her expectations may not be realised particularly in respect to her sexual relationship.”

In relation to this, Dr Orsmond said that he always tries to explain the that there are going to be complications. He said that he would say that some people, even with successful surgery, find it difficult to adjust to the “new persona.” He added that he also said to the plaintiff that the surgery is not always successful.

In relation to the “checklist” that Dr Orsmond used, he said that it was more of an aide memoir or guide rather than a strict checklist. He added that in relation to “understanding the operation” he said that he meant that “certain things are going to be taken off and certain indentations are going to be made” and things do not always go according to plan. Additionally, he pointed out to the plaintiff that the result of the operation “may not always look in the way she would expect a female to look, and that is part of the risk.” He also pointed out that on the sexual side of things the operation “may not always be as rewarding or as satisfying as she would like, particularly with the orgasm problem.”

Dr Orsmond conceded that he could not categorically remember what he said, but from looking at his notes of the interview with the plaintiff he said it seemed clear to him that he asked some questions with this in mind. I find that what he said is correct. He said his first topic raised was the plaintiff’s sexual history and he told her that considering her lack of previous orgasm not to expect “orgasm to suddenly pop out of the band box”, but to “be realistic about this.” He added (in relation to what he infers he said to the plaintiff): “You are going to have a vagina, but it might not function as well as you would wish” (T 315). I accept this evidence.

Dr Orsmond said that the plaintiff told him that she wanted the operation to feel complete. She wanted to be satisfied with sexual intercourse with a male. She wanted to be able to wear a bikini and look like a female when she was doing so, and she wanted to stop being upset.

Dr Orsmond said that he regarded the plaintiff’s answers to questions about risks as appropriate. He added that he would have expected the plaintiff to understand, because she pointed out that she had had a lot of contact with other transsexuals who had the operation and she knew all about it. At this consultation, Dr Orsmond gave clearance to the plaintiff to go ahead with the surgery subject to her mother’s consent and Dr Trudy Kennedy’s support.

In his statement Dr Orsmond said that after speaking with Dr Greenway by telephone, Dr Greenway agreed after the plaintiff’s visit with him that she was a very confident female who was appropriate for the surgery. He added that Professor Steinbeck likewise agreed that she was an appropriate candidate for gender reassignment surgery.

On 1 March 1994 Dr Orsmond wrote to the defendant and said of the plaintiff that “she looks a most suitable candidate for gender reassignment surgery and I believe that both Professor Steinbeck and Dr Greenway have this view.”

Important to his decision to “allow” for the plaintiff to undergo the surgery, Dr Orsmond in evidence said that he had contact with Professor Steinbeck (who had been prescribing hormones to the plaintiff for a number of years) and had contact with the plaintiff’s general practitioner Dr Townson. The importance of the fact that the plaintiff had been receiving hormones for a number of years was that it shows she has been preserving the idea of wanting to remain more as a female as possible, and it gives a long enough time for the hormones to be well and truly working. Dr Orsmond added that three years would therefore be important in terms of the fact that she has taken the right sort of steps towards this, and her body is probably reacting “now” to female hormones rather than to male hormones.

Dr Orsmond gave evidence that as the plaintiff had been receiving hormones for a relatively long period of time, this also demonstrated that the idea to want the surgery was not “a flash in the pan” to use Mr Cassidy’s words.

Dr Orsmond referred to the plaintiff’s then partner Darren R, as being in attendance at one of his consultations with the plaintiff. Size and Use of Dilators

It is appropriate if I here discuss the matter of dilators and dilation in the context of the issue of liability although it is also relevant to any issue of damages were the plaintiff entitled to a verdict.

Where there is conflict between the plaintiff and the defendant and between the plaintiff and Nurse 1 on the matter of dilation and dilators I accept the evidence of the defendant and Nurse 1 respectively. Where there is conflict on the subject between the plaintiff and the defendant and I accept the defendant’s evidence.

Dr Haertsch also agreed that there was a need to dilate the vagina. The matter of dilators after the operation is too of importance in the healthy care and maintenance of the non-natural orifice created, namely the neo-vagina: see inter alia Exhibit 1. In my view the neo-vagina when constructed at the time surgery was of adequate and proper dimensions. As to the specific matter of depth or length if there was any reduction in length or depth after surgery, such was not due to any breach of duty or the surgery itself but was probably due to a failure on the part of the plaintiff to properly dilate.

The plaintiff too has credibility and reliability problems on the issue of the use of dilators and what she was told. I reject her evidence where it conflicts with the other evidence.

In her evidence the plaintiff described the size of the dilators: number 4 being the largest, number 3 the second largest. She said that she has never been able to use dilator number 4 or 3. It was agreed between counsel that the dimensions of the various dilators are as follows: Number 1 (smallest): 2.3 centimetres in diameter (being 7.23 cm in circumference); Number 2: 2.6 cm in diameter (being 8.17 cm in circumference); Number 3: 3.5 cm in diameter (being 11 cm in circumference).

Mr Greenwood submitted that the number 3 dilator is 10 cm in circumference and 14cm in length. This statement was not the subject of any challenge by Mr Cassidy.

The plaintiff claims that she was not told that she would have to dilate for the rest of her life, but rather “just until you can start to have sex with your partner, about six to eight weeks.” This claim (which I do not accept) also stands in the face of the evidence that I accept. Following this type of surgery there was a need for ongoing dilation. I do not accept the plaintiff’s evidence that this was not a matter addressed or discussed on the subject of warning or advice. It too is also a matter addressed in the information booklet which the plaintiff read. The plaintiff said that had she known this she does not think that she would have gone ahead with the operation. I do not accept these claims or any of them. I too reject the plaintiff’s evidence on this point.

The plaintiff said in evidence that on 22 October 1993 the defendant said that dilation would be initially uncomfortable, but she was told to dilate for 6 to 8 weeks until she could have vaginal intercourse, and to then use a man’s penis as a dilator. I do not accept this evidence. There was a need for dilation as the evidence would suggest, apart from the uncertain availability of regular penis-vagina sexual intercourse.

The plaintiff agreed that the defendant gave her, inter alia, a dilating kit. On the Friday before going into hospital the plaintiff says that the defendant gave her a set of dilators, but she did not receive a demonstration as to their operation.

The plaintiff remained in hospital for a number of days post operative. Shortly before being discharged the hospital, packing was removed and The defendant inserted a number 4 dilator. The plaintiff claims, in her affidavit and in evidence during the trial, that this was “excruciatingly painful.” She says that the defendant said: “use whatever dilator you can manage and just keep dilating.” The plaintiff said that she discussed the use of the dilator and personal hygiene matters with Nurse 1 at this time. The plaintiff also said that Nurse 1 showed her how to use the dilators on the Friday at the end of her hospital stay. After her discharge from hospital after the operation the plaintiff said that she dilated four or five times a day and took salt bath. The plaintiff also said that she tried to use dilator number 3 after the operation, but it was too sore and swollen, so she used number 2 from then on and never again used number 3. Where there is conflict with the defendant and/or Nurse 1 I again reject the plaintiff. The plaintiff agreed under cross-examination that the defendant emphasised the importance to keep dilating, and she said that is what she did. She said she was dilating “right through to 22 May 1998”. (T 63) On the balance of probabilities, and for reasons that will appear, I reject this evidence. Under cross-examination the plaintiff said that she recalls reading the section entitled “Dilating” in the information booklet. She said that there was nothing that she did not understand in that section. She had full opportunity to read and understand it. I am satisfied that she did so.

In her affidavit the plaintiff said that some time after the operation she saw the defendant to convey her concerns regarding the problems she was having. She said in her statement: “Dr Haertsch reassured me for some months that everything’s OK just keep dilating”. The plaintiff said that she told the defendant that after the operation (during his post-operative visit) she was using the number two dilator not number three.

In her evidence the plaintiff said that she attempted intercourse six weeks after the operation and continued to attempt intercourse for around eight months after that. This was unsuccessful She said that during this time she continued using the dilator, but “could only ever use the size two dilator.” (T 17)

The plaintiff gave evidence that she was dilating since the operation through to May 1998 and currently dilates three times per day for half an hour. I reject this evidence.

The plaintiff said that since the August 1999 operation in New Zealand she has used a dilator. This particular one was manufactured in Canada and does not have a particular number in terms of size.

In her affidavit the plaintiff also said that “regardless of how often I dilated, when aroused I was unable to insert anything into the vaginal space. When I was not aroused it was impossible for me to insert anything wider than a few centimetres.” (plaintiff’s affidavit p 6) I do not accept this evidence.

In his statement the defendant said that when he saw the plaintiff on 9 March 1994, he inter alia, told the plaintiff that it would be necessary to dilate (physiologically or manually) post-operative, and that dilation would initially be uncomfortable but would improve. The defendant also said in his statement that he told the plaintiff that Nurse 1 will speak to the plaintiff both before and after surgery and will assist with any questions or problems with the surgery “and in particular, regarding vaginal dilation.” He later gave evidence that “every patient is told that they will have to dilate for the rest of their life, either manually or physiologically.” (T 288). I accept this evidence of the defendant as well.

In his statement the defendant says that he saw the plaintiff on 20 May 1994 and gave her, inter alia, a dilating kit. I am satisfied she received it before the operation.

It was the defendant’s evidence that during the appointment before the patient goes to hospital he tells “the patient exactly which dilator they will have inserted following the surgery…number three is what I open out, show them, and tell them that this is the dilator they will be using.” (T 182)

The defendant gave evidence that the reason that he uses a number three dilator is because it is about equal to the average erect male penis in terms of dimensions, and this is what he aims for. “Quite often they go up to the bigger size…but number three is the size I use.” (T 182)

The defendant said that he saw plaintiff in his rooms on 3 June 1994. He noted that the plaintiff was convalescing well, but had problems with dilating. He stressed importance to keep dilating. The defendant’s evidence is that he believed at all times the plaintiff told him that she had been using the number 3 dilator. I again accept such evidence.

The defendant also said that when he visited the plaintiff in hospital after the operation on Friday, 27 May 1994, he, inter alia, “inserted a number three dilator to determine that there was sufficient width and depth to the neo-vagina and no undue amount of discomfort. The number three dilator is the second largest dilator and larger than most erect penii. I noted 100% viability of the neo-vagina and clitoris.” (see Statement p.12) On both 3 June 1994, and 28 September 1994 the defendant says that he emphasised to the plaintiff the importance of maintaining dilation. The defendant noted that when he saw the plaintiff on 13 January 1995 she claimed she was dilating without difficulty.

The defendant also said in evidence that “I’ve inserted a number three [dilator into the plaintiff’s neo-vagina] and there has been no problem whatsoever either with the vagina itself or with the insertion of the dilator.” (T 258)

Nurse 1 too gave evidence on the subject.

In her statement Nurse 1 said that she explained to the plaintiff that dilating is something that she will have to do for the rest of her life. Nurse 1 said in evidence that: “As part of assisting them with dilating, I do need to observe the entrance of the introitus and so on… I also, as part of my routine with assisting them dilating, ensure that they are aware of their new anatomy….” (T 334). I have no hesitation in accepting the evidence of Nurse 1.

During Nurse 1’s post-operative consultation with the plaintiff (Friday 27 May 1994) Nurse 1 followed her usual practice and inter alia, reinforced post-discharge hygiene directed/supported first dilation - using the number 3 dilator “which is usual”. She added: “I instructed [the plaintiff] to continue to dilate until she saw Dr Haertsch on the next visit and speak to him about when she should start using a larger dilator. He would give further instructions about dilation from there.” (statement p 4)

Nurse 1 said that she gets the patient to insert the dilator, but will assist them if need be. She then gets them to insert it again and gives them instructions of how to go about doing that in a way that is safe and pain free as possible. She added that her usual practice is to use the number 3 dilator, which was the one the defendant would insert.

Nurse 1 clarified to the Court that the dilator was a number three. She said that following the operation she attended the plaintiff to ensure that the plaintiff could dilate properly with the number 3 dilator. I accept Nurse 1’s evidence on this point as well.

Nurse 1, in her statement, also said that she would provide detailed instructions as to the method and regularity of dilation as outlined in the booklet. I accept her evidence.

In his report (Exhibit 7(b)) Dr Korda addressed to the defendant’s solicitors Dr Korda said that the plaintiff “alleges not to have been able to use any of the larger dilators, and ceased using the dilators during the Christmas period of 1994.” The plaintiff, in her evidence, denies that she stopped dilating during this period. I accept the history given by the plaintiff to Dr Korda.

I would also mention in passing that as at 31 May 1995 Professor Millard reported that the vaginal reconstruction seemed to be adequate in depth [my emphasis] but that there was still some problem with erectile tissue. He considered that her claim of inability to have intercourse was “multi-factorial” with some minor revision was required.

Dr Walker gave evidence (as to the need for a dilator) that the size of the number three dilator is about 14cm long, and the number two dilator about 10½cm long. During cross-examination Dr Walker was asked the following question and gave the following answer: “Q. If the fact is that in 1994 and up to 1996 the plaintiff had a vaginal depth of 10cm or more, but that it has reduced in the period ’96 to ’98, would that not suggest to you that the plaintiff has not been diligently dilating? A. Certainly you do need to dilate to maintain the depth and width, sir. Perhaps the vagina wants to constrict and, sir, getting down to that number 2 dilator, would be normal, I would say, and it is difficult to maintain it at the original size of the number 3 dilator.” (T 108, 109)

Dr Walker “suggested” that having sexual intercourse would have the same effect as dilating. The dilators are more rigid and subsequently can cause more stretching but regular intercourse could keep it functional. This of course assumed an availability of regular penile intercourse with an available male partner. The importance of dilation would it seems be further highlighted absent such a partner involved in regular penile intercourse. Dr Walker added that if there is a partner available he would consider daily dilation still appropriate. With regular intercourse it would be okay to dilate three or four days a week he said. As I understand it Dr Walker made the position clear that the plaintiff would need to dilate for the rest of her life even if there was a male partner involved in regular penile vaginal intercourse. Dr Walker seemed to accept a need to dilate either every day or perhaps four days a week with to without regular intercourse. The importance of ongoing regular dilation in respect of the artificially created neo-vagina was in my view one of significance.

Mr Cassidy submitted that there was room for a finding that the history given to Dr Korda that she dilated to December 1994 did not in the context deal with the time after the relationships with Darren R ceased. He submitted that there was evidence that she dilated after that. Mr Greenwood SC submits that there was a probable failure to dilate or properly dilate after 1994, that any reduction (if any) in the measured depth of the vagina from 1994 to 1998 suggested a failure to properly dilate and that in any event the plaintiff would have been able to engage in vaginal intercourse since mid 1998 if the plaintiff had been properly dilating. I accept this submission. I also consider that probably there was no reduction in any proper or adequate depth that I consider was created with proper and reasonable care by the defendant’s surgery.

Further, I would accept the evidence of Dr Korda that at November 1998 that he was able to easily admit a medium size speculum into the plaintiff’s vagina whilst she was awake and insert it to its full depth. I accept that as at November 1998 there was no apparent reason why she could not have vaginal intercourse. I too find none. I particularly reject the plaintiff’s evidence that she continued to use (or at the very least regularly use) dilators up to the operation in May 1998 and beyond. Indeed even after the colo-vaginoplasty operation in New Zealand in 1999 (apart from there being no reason why the plaintiff could not also engage in vaginal penile intercourse) Dr Horky (her then gynaecologist) was too caused to report on 25 July 1999 that he initially advised “Chanelle to return with greater enthusiasm to dilation of the artificial vagina.” I find that the plaintiff has not probably properly dilated after the 1994 surgery up to and including the operation of May 1998 and/or beyond.

Next, I would here note that I am further satisfied that after the operation of May 1998 the plaintiff had a fully functional neo-vagina in terms of depth and width (if she continued to dilate). The operation in 1999 was probably brought about by a desire to have a vagina of greater length/depth to accommodate a new male partner with whom she was having intercourse. The 1994 surgery too created a neo-vagina of adequate appropriate or proper length of depth involving no breach of duty in its creation. There was no breach of duty or of contract to provide a neo-vagina to accommodate all or any sized male penis. The Plaintiff’s Submissions

Mr Cassidy has submitted that I should accept the submission that the plaintiff was not warned of material risks and further that she would not have undergone the operation had she been warned of the risks particularly of the possibility that she would not have been able to have vaginal intercourse. I reject both of these submissions. I find that she was properly warned. The duty to warn was discharged. I do not accept the plaintiff’s evidence of not being warned of material risks. Further or alternatively I do not on the “causation aspect” relating to duty to warn accept the plaintiff’s asserted “subjective intentions”. Even were I wrong on the matter of the plaintiff having been properly warned as to material risks, and that even if the situation were otherwise ie that the plaintiff was not properly warned, I nevertheless find that she would not have changed her course of action. I specifically find she would have still have elected to have proceeded to gender reassignment surgery when she did, with the defendant.

Mr Cassidy too put a submission (T 363) as to the possibility that the defendant’s usual practice of warning “may have slipped up”. As I understand it in relation to the matter of warning, ultimately it was rather submitted that “there was a possibility that the usual practice for warning both of him and of Nurse 1 may have slipped up” [my emphasis]. The submission appeared to address not the adequacy or content or the appropriateness of the usual practice of warning but rather that “it” may have perhaps “slipped up”, in its implementation. That said, whatever be the correct analysis of the submission, I reject the argument that there may have been a “slipping up” even in terms of a possibility. I specifically find that the usual practice of the defendant and Nurse 1 both or either, did not in terms of the submission “slip up”.

The plaintiff submits that I should accept the plaintiff’s evidence as to lack of warnings of material risks, advice or information on surgery. I reject her evidence on this issue. I accept the evidence of the defendant and Nurse 1. I accept the evidence too of Dr Orsmond, Dr Greenway and Professor Steinbeck. These are but some of the reasons. I do not repeat what I have already said. The plaintiff’s claims I reject.

As regards the contract count, Mr Cassidy also submitted that at the very least the defendant promised to carry out the aims specified in Exhibit 1 “Neo-Vaginal Surgery - Patient Information” which the plaintiff received pre operation. In my view the defendant implemented the aims without negligence or without breach of contract. Those complications and risks in the surgical procedure did not involve either negligence or breach of contract on the part of the defendant.

Next, Mr Cassidy submitted that I should find an implied term of the type postulated in the creation of the neo-vagina involving “fitness for purpose and purpose of merchandise” (T 374) in addition to the ordinary term implied in a contract for professional services. I reject as I have already said this submission, finding no such additional implied term. However, even if it were otherwise I would still find no breach of it.

As regards the claim of “defective technique” in surgery the plaintiff submitted that the evidentiary reports of Dr Mark and Perry tendered in the plaintiff’s case “must be accepted”. This submission should be rejected in terms stated and otherwise. Even where there is conflicting medical evidence it is for me to determine what expert evidence I accept or reject, whether in whole or in part. Indeed, I am not bound to accept any particular expert opinion or view: see Ahmedi ; Adamcik ; Public Trustee ; Rogers ; Naxakis ; Williams supra.

Mr Cassidy also submitted that Dr Royle’s evidence should be rejected for a number of reasons. I do not accept this submission or the reasons advanced for such. Where there is conflict between his evidence (and opinions) and that called on behalf of the plaintiff as I have said, I specifically accept the expert evidence and opinions of Dr Royle.

Mr Cassidy submitted that the opinion(s) of Dr Royle could not be decisive or displace my function to ultimately decide whether there was a breach of duty of care to what the defendant did was “reasonable”. I acknowledge the general correctness of the submission in that his expert opinion cannot be decisive. Judges not experts decide whether negligence has been established. The judge does not abdicate that responsibility to any expert. That said, I accept his opinion(s). My views coincides with that expressed by Dr Royle.

I reject the submission of the plaintiff that the evidence of Dr Royle should not, in effect, be accepted, or acted upon. In doing so I have also had full regard to all of the extensive medical evidence adduced in the case.

Next it was submitted that the duty to warn cannot “be satisfied by the delivery of an 18 page book.” The simple fact is that it was not suggested by the defendant that of itself, such delivery could necessarily discharge the duty. It does not stand alone on the subject of warning. That said, it too was relevant to the duty to in the contract, and part of it. Further, in determining whether the duty was satisfied, the provision of the booklet (which the plaintiff read, and in my view understood), is part or portion of the evidentiary material which I can accept and act upon in determining whether in all the circumstances the duty to warn was discharged, or indeed whether there was a breach of contract.

Mr Cassidy also submitted that in any event that there were still a number of risks of which no warnings were given. I again state where there is conflict, I reject the plaintiff (who rather seeks to put a case of no warning of material risks) and accept the defendant and/or Nurse 1 as well as the other evidence to which I have referred. I thus reject this submission of the plaintiff. The risks to be warned of are material risks as stated in Rogers at 490. The material risks were the subject of proper warnings both given and explained, and further or alternatively, understood by the plaintiff. The plaintiff’s evidence that they were not is rejected. In the circumstances of this case the duty to warn and warn of material risks was thus properly discharged.

Next, Mr Cassidy submitted that even accepting for the purposes of argument that the “booklet” defines “the duty of care” in terms of the contract, the alleged independent medical evidence, is that it was not in the event satisfied in that “every effort” was not made to provide a functional vagina; the area was not similar to that of a biological female. I reject these arguments. In my view every effort (whatever such may mean) was reasonably and properly made. The defendant discharged his duty of care and skill in all the various respects.

As to the matter of dilation Mr Cassidy submitted that there is evidence that the plaintiff dilated after December 1994 despite Dr Korda’s evidence. Further or alternatively he submitted that even if she did not continue to dilate after December 1994 that such is understandable in the light of a so called “psychiatric reaction”. In my view this submission is rejected. I accept that the plaintiff gave the history recorded to Dr Korda.

I reject the plaintiff’s submission that if she did not dilate or dilate properly (which I accept that she did not) I reject any suggestion that such was or should be attributable to any so called “psychiatric reaction” or more particularly one resulting from breach of duty by the defendant. I do not accept there was a relevant psychiatric reaction or one that caused the plaintiff not to dilate or dilate adequately or properly.

Mr Cassidy submitted that failure to dilate might have been relevant to the negligence count, if contributory negligence had been pleaded (which it has not been). He submitted that it is not relevant to the contract count. At the risk of repetition it is appropriate if I here state that no defence of contributory negligence has been pleaded based upon a claim of failure to dilate or any other contributory negligence. It is also appropriate to note that the defendant’s amended defence does not in terms assert that the plaintiff for example was in breach of any implied term in the contract by not dilating. At the trial the defendant did not suggest (at least in terms) that the failure to dilate might represent contributory negligence (or that contributory negligence could be an answer to any claim of breach of contract): see Astley . He did not as I would understand by argument in terms or otherwise suggest that a failure to dilate could would or should be found to break the chain of causation in contract or in tort: cf Medlin v State Government Insurance Commission (1995) 152 CLR; Kavanagh v Akhtar (1998) 45 NSWLR 588. No breach of duty being established the matter of causation would not really arise. That said as I understand the defendant’s case (and I repeat) the matter of failure to dilate or dilate properly (credibility and reliability of the plaintiff aside) was also advanced in support of the argument particularly if there was a reduction of length of the neo-vagina following the 1994 surgery (and between 1994 and 1998), the failure to dilate and not any breach of duty was the probable explanation for it. As I have said I too have found no negligence including as regards the creation of the depth of the neo-vagina.

The plaintiff’s submissions should be rejected. Defendant’s Submissions

The defendant’s argument is that the plaintiff was fully and adequately informed about the surgery and of the relevant material risks not only by the defendant but also by a number of doctors and as a result of the plaintiff’s own independent research and enquiries. I agree with this submission. It accords with my view of the evidence. Next, the defendant submits that the plaintiff’s relevant “denials” on the subject of lack of warning should not be accepted. I too agree with this submission. That said the issue of causation (in the context of failure to warn of material risks) strictly does not arise. Nevertheless, even if I be wrong I would find the issue of causation against the plaintiff. Even were I to assume that the plaintiff’s evidence should be accepted in terms of non warning, or inadequate warning, the onus would still be on the plaintiff to prove on a “subjective basis”, that she would not have undertaken the surgery had the appropriate warning been given, or that she would have exercised a different option not to have proceeded to surgery, or that her course of action would have been different. I also accept the defendant’s further submission that even if the plaintiff’s “denials” in relation to a warning be accepted (and I positively reject it), that she would still have exercised a decision to submit to surgery when she did and by the defendant: Chappel supra per McHugh J at 247; per Kirby J at 272-273. I do not accept her self serving assertions on the matter of subjective intention any more than accept her claims of absence of warnings or proper warnings. I would also repeat again that part of the history given by the plaintiff to Dr Dent and which I accept was given, “but if you have the wrong genitals you’d do anything”. Perhaps in one sense this answer too says much, on the causation issue. Next, the defendant further submits that the surgery itself was performed without breach of duty and that there were sound medical grounds or reasons for what the defendant did. Further or alternatively, the occurrence of complications or risks inherent in surgery without more do not establish breach of duty or of contract.

The defendant submits that the plaintiff was an unsatisfactory and unreliable witness and that where it is in conflict with any other witness, the other witness should be believed. I accept this submission as I stated that she was unreliable and unsatisfactory. Mr Cassidy properly conceded she was an unsatisfactory witness (T 351) see also my views (at T 350). That said, as I have indicated, it appears to be common ground that the plaintiff’s credibility or reliability as a witness does not concern the issue of whether or not the surgery was or was not negligently performed and rather that her credit has to do with the “failure to warn and damages” (T 350).

The defendant submits in respect of her case on the issue of adequate information and advice and information on damages, the issue of the plaintiff’s credibility is of considerable importance with the plaintiff’s very much case depending on acceptance of her evidence. I have already indicated my views and my general acceptance of the submission and my inability to accept the plaintiff’s evidence.

As to the matter of the proper performance of surgery, in oral submissions the defendant argued a number of matters including that no one had said that what the defendant did was not in accordance with proper practice (at least in respect of the surgery) “at the time”. Mr Greenwood submitted that there was not a “scrap of evidence” to suggest that anything the defendant did when performing the subject on 23 May 1994 was other than appropriate. I accept the general thrust of the submission although it may be overstating the matter to suggest that there is not a “scrap of evidence”. He also argued that in relation to surgery, I should also infer the absence of negligence, given the number of witness doctors who have given evidence in writing without in terms making any “criticism at all of the way in which the surgery was performed”. I have had full regard to all of the medical evidence, with the main “expert” competing views being found in the evidence of Dr Walker and Dr Royle and my acceptance of the views of Dr Royle. I have further had careful regard to all views including that of the defendant. I generally accept the submission advanced.

The defendant also submitted that on the issue of warning and advice Dr Haertsch acted in breach of a duty to inform the patient of material risks inherent in the operation that I should reject the plaintiff’s case that she was not informed that the operation might not be successful. I too accept this submission. Mr Greenwood argues that the evidence that the plaintiff was well informed is “overwhelming”. Whether one would use the word “overwhelming” perhaps need not be determined. The evidence is at least “very strong” in terms of pointing to the plaintiff being well informed.

The defendant too submitted that the plaintiff agreed to many of the things that the defendant said in his statement, were said. I would accept this argument. I accept the defendant’s submission that the defendant’s evidence about the content of the conversations that he believes he had with the plaintiff. They were generally detailed and consistent and logical in the circumstances. I saw and heard him in the witness box. My impression was as stated. He further impressed as being generally reliable as a witness, and whose evidence I can and do accept. The defendant’s evidence too gains considerable “support” from the evidence of his professional Nurse 1.

The defendant too submitted that I should in any event further accept the evidence of Dr Orsmond, Dr Royle, Dr Greenway and Professor Steinbeck on the matter of warnings and of her understanding of them. I do so. The defendant pointed to a number of matters which I have referred to including to the fact that on the plaintiff’s own evidence obtained a detailed booklet about the surgery months before the operation was performed, that on her own admissions the plaintiff appears to have accepted that she was spoken to at some length by the defendant about the operation. She saw the defendant on 9 March 1994 and again for final pre-operative conference in May (there is some dispute of no relevance or significance) but on Wednesday 18 May or Friday 20 May being admitted to the Westside Hospital on 22 May 1994. The operation was performed on 23 May 1994. Also of importance she further signed a consent form in terms stated in the hospital consent form (exhibits 11 and “J”) and proceeded with the surgery. Prior to the operation the plaintiff had entered a exclusive story see Woman’s Day story. The arrangement with Woman’s Day to pay $12,000 for her story was organised before surgery - September 1994 (Exhibit 4).

In my opinion the duty to warn was discharged by the defendant. Against this background and other matters to which I have earlier made reference, in my opinion even assuming I am wrong that the plaintiff was given warnings as to material risks, the defendant nevertheless, has made good his submission that the plaintiff’s evidence and case, that she would not have proceeded with the surgery if she had been given warnings or proper warnings as to material risks should be rejected. I find as a fact she would have proceeded to surgery with the defendant when she did.

The defendant has submitted that the plaintiff has also not established on the probabilities that the defendant was actually negligent in the performance of the surgery. This is a view that I too accept.

Apart from the defendant’s “forensic” argument (by reference to the claim of the plaintiff having allegedly seen some 40 doctors or so in Australia (between 1991-1999 and with 298 invoices in that total period), the defendant also referred to the plethora of doctors asked by the plaintiff or by her solicitor to comment upon the procedure. In concentrating on particular parts of the medical evidence particularly that of Dr Walker and Dr Royle (both called) I have not ignored as I have any of the extensive medical evidence tendered. Mr Greenwood also submitted that no single doctor invited by the plaintiff to comment on the actual procedure by the defendant “has identified any single negligent act of the defendant” in the surgery. He submitted that the plaintiff’s case is simplistic and should be rejected.

The defendant too submits that on proper analysis the plaintiff is really in “terms”, submitting that the doctrine of res ipsa loquitur is applicable. I have already my view that it is not open in a case such as the present for res ipsa loquitur to be used in order for the plaintiff to try to make out a case of negligence in circumstances of this complex major gender reassignment surgery performed by the defendant. Indeed, as I earlier indicated, in my view on proper analysis of the authorities supra, the so called principle of res ipsa loquitur is inapplicable to the facts and circumstances of this case involving surgery of the type here involved: cf also the recent decision of the High Court in Schellenberg supra.

Further, to the extent that the plaintiff if at all, seeks to argue breach of duty in the performance of the surgery by reference to actual result(s) such argument should be rejected. Post hoc ergo propter hoc is a proposition that has no application. There are risks inherent (and of complications) in surgery carried out with reasonable care and skill. Conclusions on Liability

There was no breach of the duty of care in any respect in the performance of the gender reassignment surgery in 1994. There was no breach of contract in any respect. Further or alternatively, despite the defendant being diligent, careful and exercising reasonable care in the performance of surgery some attendant risks in the surgery arose or occurred. Indeed, there is no liability for accidental injury resulting from properly performed surgery (as the defendant’s surgery was). Even if the situation be otherwise, and even if there were errors of judgment (and I have found none) in the performance of the surgery, then such were not negligent errors or mistakes. Further, no negligent act or omission of the defendant caused any injury harm or damage as alleged. I note the plaintiff’s submissions that the “primary issue” in this case is the quality of the defendant’s surgery and the defendant has failed to meet the requisite obligation. The defendant is entitled to a finding that he did not fail to meet such “requisite obligation” in any respect and further that his duty to exercise reasonable care and skill was discharged in the various respects.

As to the matter of alleged breach of duty to warn of material risks, there was no such breach. The duty to warn was properly discharged. Further or alternatively, as to the matter of causation in the context of an alleged failure to warn, and such does not strictly arise. That said, upon the hypothesis that I am wrong and that there was a failure to properly to warn (and there was none), I find that the plaintiff would still have elected to proceed to surgery with the defendant when she did. I would find thus against the plaintiff on the causation issue in the context of failure to warn as well, if that question arose. No act or omission in the context of a duty to warn caused the plaintiff’s alleged injury loss or damage. There was also no breach of contract in relation to any failure to warn issue.

The cause of action in assault is rejected.

There should be a verdict and judgment for the defendant. Damages

The plaintiff is not entitled to recover damages.

I indicated to the parties that I would endeavour to assess damages only in the event that I was in error in concluding that liability on the part of the defendant had not been established. This is a most difficult task bearing in mind not merely a rejection of the plaintiff’s case on liability in all its various respects.

The plaintiff’s action has been brought in both contract and tort. It has not been argued that were liability to be established, that the measure of damages would be different. The case has not been conducted upon the basis that for example even if mere breach of contract was established the plaintiff would still nevertheless be entitled to at least nominal damages: see Chappel supra.

Thus, I would approach the matter of hypothetical assessment having regard to the parties have conducted the case namely that relevant “causation” in both contract and tort needs to be established.

Next, I approach the matter of assessment of damages upon the hypothesis that even if there be negligence (and there is none) then it is only in the performance of the surgery itself. This in one sense too reflects inter alia an ultimate observation made by Mr Cassidy in his final submissions. Indeed, in further dealing with a remark of mine in argument that what was really in focus was the issue of negligence in the performance of surgery, Mr Cassidy replied (as I have already said) “I always thought that is what this case was about.” These matter(s) in my opinion also support the view that the matter of any hypothetical assessment of damages should thus be seen only in the context of any theoretical negligent surgery. Next, whether to what extent if at all, any assessment of damages might even vary depending upon whether there was negligence in failing to warn as opposed to negligent surgery (both or either) is not a matter that needs to be explored further.

Mr Greenwood submitted that any damages for pain and suffering would depend upon the findings “in relation to the specific breach(es)”. For example, he submitted that if it were found that the defendant was negligent in not removing more spongiosum from the urethra the damages would relate to the further operation to rectify the situation and no more. This is an interesting submission in a case such as the present where there have been wide ranging particulars of negligence (with none being found) and of different “types” of harm allegedly resulting from the surgery,.

I now turn to the matter of causation of damage. In an action at law based on negligence a question also remains as to what damage has the injured plaintiff sustained by that negligence or breach of duty. The plaintiff must prove that the breach of duty caused the particular damage that the plaintiff suffered, or, to put it another way the plaintiff carries the onus of proving that the breach of duty alleged was the cause of the damage shown: Chappel at 242 and 271. Further, mere proof of breach will not of itself be sufficient to establish an entitlement to damages for every harm that thereafter occurs, or that proof of default followed by injury does not necessarily show that the default caused the injury. To reason such a way would involve the logical fallacy of post hoc ergo propter hoc: Chappel at 273, St George Club (at 107), and my judgment in Williams . The defendant too is only liable for the consequences of the legal wrong done and not for consequences if any from the causes apart from those resulting from such legal wrong. Thus in the present case even assuming negligent surgery, it does not follow that the defendant is necessarily or automatically liable for all or any harm in or following surgery, but only that harm found to be due to an established breach of duty. The defendant is only liable for that harm, caused by a breach of duty, not for harm not caused by a breach. The causation theory insists that the plaintiff thus must prove that the injury is relatively connected to the breach of duty established.

Next, in his opening Mr Cassidy (T 6) in referring to the plaintiff’s claim for economic loss also accepted that the case would be a difficult one to assess damages because the plaintiff had “never worked with great success to earn amount of money before the surgery” a statement clearly supported in fact by the evidence. Indeed, it is somewhat of an understatement of the situation. Indeed the evidence does not support a view that the plaintiff really worked very much at all at least in the 1990’s (or indeed before) in the period preceding the surgery in 1994. Further for all intents and purposes she has not worked at all since the surgery. These too are matters complicating any hypothetical assessment of damages for economic loss as well.

It too is appropriate to turn to another matter, namely, that following convalescence after the May 1998 operation the plaintiff in my view was then at least able to have sexual intercourse with penis-vagina penetration. Mr Cassidy (T 373) accepted and conceded that if this was found by me (and he argued that I should not make such a finding) then the claim for damages would involve a closed period claim. He accepted that once the width of the introitus was fixed at the operation of 1998 that: “we don’t get damages for any period after the immediate recovery from the 1998 operation and we don’t get the costs of the 1999 operation. I have got to concede that” (T 374).

Mr Cassidy too appears to have acknowledged that unless I found that there was vaginismus “probably the result of her psychiatric reaction of the failure of the first operation” then he would concede “that is a supervening factors that lets the defendant off the hook”!

I find that any vaginismus problem (after the 1998 operation) was not due to any suggested psychiatric reaction of the type claimed. I find there was no such psychiatric reaction. I further find that even if there was such a psychiatric reaction then it too, was not due to any negligence in respect of the 1994 operation, or of any breach of duty by the defendant. Such finding(s) thus leaves the plaintiff in the position as conceded by her counsel. Further or alternatively, I find that there was after the May 1998 operation (and convalescence) no physical or psychiatric reason (resulting from the 1994 surgery or breach of duty) why the plaintiff was unable to have penile vaginal intercourse.

The defendant has submitted that mere proof of negligence in performance of surgery does not prove that all harm complained of or any harm complained of is due to breach. In terms of the provision of services (medical/hospital) it must be shown that the service was reasonably needed in consequence of the plaintiff’s personal injury harm or damage caused by a breach of duty. As the defendant argued the plaintiff does not recover damages for services unless the reasonable need for such was caused by personal injury in turn caused by negligence of the defendant. This too, it was submitted, involves an identification of any relevant breach of duty and what harm resulted from it.

Next, the defendant disputed that any surgery, including suggested revisional surgery, or any other surgery performed on the plaintiff in New Zealand in 1998 or 1999, was reasonably necessary as a “result” of the defendant’s surgery whether such involved a breach of duty or otherwise. Further or alternatively, he argued (as I understand the submission) that because surgery is done after injury such does not mean that everything found at subsequent surgery or every aspect of the subsequent procedure in effect automatically is due to injury caused by breach of duty.

The matter of any assessment is further complicated by the fact that I regard the plaintiff as not entirely an impressive witness (“as conceded”) but one whose evidence I regard as not credible, reliable or acceptable in a number of significant areas including also on the matter of damages. I am able to accept some parts of her evidence, but not other parts on material significant matters.

I should here also state that whilst I am not prepared to find any negligence, if any negligence is to be identified for theoretical purposes of assessment of damages, not only is it in the matter of surgery but further it should be confined to that aspect of it concerning the introitus impeding penile vaginal sexual intercourse between 1994 and 1998, and in no other respects. This view is not to be taken as suggesting negligence in any such respect. There was no negligence. Further, this approach is, I believe, consistent with my findings that once the width of the introitus was fixed (as I have found) at the operation of May 1998, the plaintiff would not be entitled to damages after the convalescence or recovery from that operation.

Another matter relevant to the claim for damages for inability to have vaginal sexual intercourse (with a male) in the period 1994 to 1998 (when in my view surgery restored in my view full physical capacity for such intercourse) is the need also to consider the chances or indeed prospects of the plaintiff in that period finding and entering into a male/female relationship on a regular or irregular basis, and further one involving participation in penile vaginal intercourse. Thus the ability to have actual penile vaginal sexual intercourse in the period 1994-1998, would still have depended upon the availability of male partners ready willing and able to have both a relationship and penile sexual intercourse with the plaintiff. As to the situation since the 1998 operation that too would still be the situation, save for the fact that I find since the 1998 operation there has been no physical or psychiatric reason (with regular dilation) for the plaintiff being unable to have such sexual intercourse let alone any such inability arising from any breach of duty. Regular dilation as well would be needed to avoid “difficulties” with the neo-vagina. In my view the fixing of the width of the introitus in the 1998 surgery addressed any problem of inability to have penis-vagina sexual intercourse arising from the 1994 surgery.

Next, I am prepared to accept that following the operation there was distress about what the plaintiff “perceived” to be failures of surgery. That said I am not prepared to accept that breach caused psychiatric disability. That said, the only psychiatrist called for the plaintiff was Dr Dent (who was qualified for medico-legal purposes). He was “qualified” to expert express views in June 1999. I have problems in accepting his views which are in part based upon a history that I do not find has been proved or proved in material respects. The plaintiff is an unreliable historian in a number of respects and unreliable as to material matters. There are questions about the accuracy of what the plaintiff told Dr Dent. I am not generally impressed with his views or opinions and do not accept them. Next, the plaintiff’s account of her situation including that of “loneliness” (see history to Dr Dyball 16 November 1998) too is not in my view shown to be due to any breach of duty even if such had been established. Her claimed lifestyle including that of loneliness too is in part inconsistent with media photographs of attendances at functions after the May 1998 operation: cf the colour photograph of the plaintiff in the Sun-Herald 22 November 1998 (Exhibit “A”) and in Woman’s Day of the plaintiff (described as a “model”) at the largest nightclub in Melbourne later in 1999 (Exhibit 10). The “picture painted by the plaintiff” about inability to socialise suggested to Dr Dyball (16 November 1998), is something I do not accept as an accurate one. I believe the photographs in part illustrates a lifestyle in 1998 (and later in 1999) inconsistent with the plaintiff’s “presentation” and history in 1998 and later in 1999. I thus have difficulty in accepting her evidence on lifestyle. Further, the plaintiff’s mother was not called to give evidence (nor was any lay witness) as to any suggested changes in the plaintiff’s personality before or after her operation. The plaintiff had not sought real counselling after the 1994 operation, or if so, no oral evidence of such was called from any psychiatrist. As I have mentioned there was no evidence from any “boyfriends” including James S, Darren R or others touching upon difficulties in post operation relationships or any aspects of such. There was no evidence from them as to the reasons for any “break up” of such relationships. In the circumstances I would also consider that the appropriate inference should be drawn from the failure of the plaintiff to call either or both of these men: Jones v Dunkel (1959) 101 CLR 298; RPS v The Queen (2000) 74 ALJR 449 at 454-455. Indeed, such inference aside I do not in any event accept the plaintiff’s evidence as to the cause of the break up with Darren R (or even with James S). The reasons for such have not been established to my satisfaction. I do not accept that after recovery from the May 1998 surgery she has been unable to have penile vaginal intercourse or at least due to any breach of duty by the defendant. Further, as I have said I am satisfied that there was a capacity to engage in penile vaginal intercourse following convalescence after the May 1998 operation. There was no physical or psychiatric reason caused by any breach which prevented the plaintiff from doing so. The need for regular ongoing dilation continued as before in 1994 and continues even now. One other particular matter too may be mentioned. The plaintiff in her history to Dr Dyball (November 1998) significantly gave no history of her relationship with James S (which had apparently commenced and lasted for six months after the May operation). The history given was I consider somewhat selective and incomplete. There was no reason given as to why the plaintiff had been unable to have penile vaginal intercourse with him, at least none that I would accept arising from any hypothetical breach of duty. Despite the claim of lack of ability to have sexual intercourse (penile vaginal), there too is the history given by the plaintiff to Dr Perry inter alia in connection with having further surgery in 1999 to address the issue “of the length of the vagina despite its adequacy and appropriateness” following the 1994 surgery. This matter too was not in terms taken up in her history to Dr Dent. Her complaint of being “lonely” does not accord with my finding of vaginal capacity for sexual intercourse consequent upon the May 1998 operation. The suggested “loneliness” is not satisfactorily explained as being caused by any break up. Any claimed inability to “find” a male person or one willing to participate (at least following convalescence after May 1998 operation) in vaginal sexual intercourse is not on my findings attributable to any physical or psychiatric incapacity to do so, let alone to any breach of duty on the part of the defendant in the performance of the gender reassignment surgery.

There thus is some element of uniqueness about any theoretical assessment of damages in a case such as this. That said, if liability is established compensation is not to be denied merely because of difficulties in the computation of such. The 1994 operation produced certain undisputed results. That said, I would conclude that prior to the May 1998 surgery that there was no impediment to the vaginal intercourse due to the length/depth of the vagina or by the width of the vagina itself. There was no breach of duty in respect of that matter. I accept part of Dr Walker’s evidence given to this effect and that he would have expected the plaintiff to have engaged in vaginal intercourse since mid-1998 if she had been dilating properly at least with a male of average penile size. I also accept Dr Korda’s evidence and findings as at November 1998. I accept Dr Royle’s evidence. I accept the defendant’s evidence. Next, in my view the plaintiff would, even if negligence be found, be entitled to recover damages including the cost of treatment in May 1998 and none thereafter. I do not accept that there is or would be liability for the second operation namely the new colo-vaginoplasty procedure in 1999 arising from any breach of duty even if such were established (and it has not been). I believe that the explanation for this 1999 operation lies in the history given by the plaintiff to Dr Perry. The gender reassignment surgery in 1994 produced a neo-vagina of adequate and proper appropriate depth/length. The operation in May 1998 then removed tissue at the introitus, and further removed any impediment to male penile penetration in terms of width of the introitus.

The plaintiff told the Court that she had not been able to have vaginal intercourse since the 1994 operation, (despite my view as to her capacity to do so at least after surgery of May 1998). Indeed, I believe that she probably had such after the 1998 surgery. In May 1999 the plaintiff underwent an operation to apparently have the length of the vagina inter alia increased, as she was having some difficulty in accommodating a then current particular partner. This 1999 operation too was not performed for injury caused by any breach of duty by the defendant. Indeed in my view it was further undertaken for reasons independent of any theoretical assumed breach and was done to meet a personal wish or need of the plaintiff. Indeed, at least following the operation in May 1998 the width of the vagina and of the entrance was adequate for appropriate penile vaginal intercourse. Further, in my opinion at all times between 1994 and 1998 the length or depth created by the surgery too was adequate proper and appropriate and not in breach of duty in the performance of the surgery. Further, if it ceased to be of adequate length in that period 1994-1998 such was probably due to a failure to properly dilate and not to negligence in respect of any surgery (and there was none). The width of the vagina above the introitus, too was adequate and appropriately created by surgery and not narrowed, in consequence of any breach of any duty in the performance of the 1994 surgery.

I reject any claim that there was between 1994 and 1998 a psychiatric condition caused by any breach of duty of the defendant. Further, there has been no such condition since 1998 or now that I accept or at least one due to any breach in 1994. The views of Dr Dent, Dr Dyball are not in my opinion properly founded in fact or on the evidence. The factual foundation for such opinions is not established: cf Ahmedi supra. As to the importance of the disclosure and reliability of information from a patient to a psychiatric: see Williams supra where I quote from Jaffe v Redmond (1996) 518 US at 1 10: “Effective psychotherapy depends upon an atmosphere of confidence and trust in which the plaintiff is willing to make a frank and complete disclosure of facts emotions memories and fears.” [my emphasis].

The plaintiff is I consider an unreliable source of information for the views of Dr Dent or indeed Dr Dyball. I am not bound to accept the opinions of either or both of them.

Next, I do not accept that there was a need for colo-vaginoplasty procedure in May 1999 arising from any breach of duty by the defendant. It was, as I consider, primarily done to address a matter of length (or depth of the neo-vagina). Between 1994 and 1999 the neo-vagina in my view was of appropriate and adequate length or depth.

I have already indicated that if I were wrong in my view as to liability I would at most hold that the plaintiff would be entitled to the cost of the May 1998 surgery in New Zealand but not the 1999 surgery. She would not be entitled to damages for pain and suffering following convalescence after the 1998 surgery or associated with the 1999 surgery..

For these reasons had the plaintiff been entitled to a verdict I would have allowed the sum of $40,000 for the “closed period 1994-1998” by way of general damages. Interest

I grant liberty to the parties to apply in respect of the matter of any interest on general damages. Such would need to be done having regard to the principles reflected in well established case law: cf Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54; Pacific Power v Royal (1999) 47 NSWLR 366 at 373. Economic Loss

In a case such as the present I am not prepared to allow any significant sum for past economic loss. None is warranted for “loss” after 1998 or in the future. Mr Cassidy in opening conceded that the plaintiff had prior to surgery never worked with great success. This is clearly so. He accepted it would be difficult to assess damages for economic loss. I am not prepared to make findings as to past loss by reference to the plaintiff’s evidence or otherwise. Her prospects of income earning as a “model” (which she described herself as being in October 1999 ) provide no measure or guidance. I do not accept she has been or is unable to work as either or both due to any injury caused by negligence. As to pursuing a career as a beauty therapist, I am unable to see why she could not have done so. According to the evidence of Mr Blinman, earnings of a beauty therapist are in the order of $500 per week net plus overtime. Save for perhaps limited periods for example, associated with seeing doctors or being operated upon in 1998 there really has been no proved loss of earning capacity in the past ie since 1994 and up to 1998. Indeed, I do not accept that the plaintiff has established a past incapacity to work as a model or beauty therapist because of any breach of duty or at all. There may be some small periods of incapacity between 1994 and 1998 including the surgery period. At most there may have been some loss but of a minor order. By way of value judgment I would have allowed $5,000 plus interest on that sum. I grant the parties liberty to apply in respect of interest on that sum. Out of pocket expenses: past, present and future

The plaintiff spoke in terms of hoping to have another operation “for that to let me lead my life as a normal female would.” I am not satisfied that there is any reasonable need for such operation arising from any breach or for that otherwise, even if the plaintiff had established a case of negligence. Having regard to the medical evidence no breach or accident caused need for such has been established. Further, there is not medical evidence, or medical evidence I would accept showing that any future operation is reasonably needed or for that matter will possibly or otherwise take place. Indeed to say the least I have further considerable reservations whether any surgeon would undertake any further procedure. If he/she did such not be due to breach of duty by the defendant. Next the plaintiff says she takes Zinax for “claimed panic attacks”. I do not accept that any breach, even if found, is the cause of such panic attacks. The explanation of such (if any) is unproven.

As to the claims for psychiatric care, I reject it. I do not accept Dr Dent’s view on past or future psychiatric need. I do not accept a view of any psychiatric condition having been caused by a breach of duty or at all. Even assuming some breach of duty negligent or accident caused need has not been established for drugs or other consultative treatment relevant to such psychiatric condition. Further I do not consider the plaintiff needs such consultative treatment or would undertake it.

Thus I do not accept there is, or was, any psychiatric condition “proved” requiring an allowance in the past, present or future for any expenses relating to any such alleged condition.

If I am wrong in finding no negligence, I would made a finding of entitlement to expenses relating to the May 1998 “revisionary” procedure but not otherwise. I allow nothing for the 1999 procedure. Such, as I understand it and according to the parties agreement (9 March 2000), is to be allowed in the amount of $7,362.98. Interest thereon is to be calculated by the parties if they wish. I grant leave to bring in such an interest calculation. Aggravatory and Exemplary Damages

A claim for such was made on the eve of the hearing. I do not know why! In the circumstances I see there is no tenable basis for such, and the claims are without merit, even assuming liability had been established. There is no warrant for any award of any such damages both or either: see Williams ; Lamb v Cotogno (1987) 164 CLR 1; Trend Management Pty Ltd v Borg (1996) 40 NSWLR 500; Gray v Motor Accident Commission (1998) 196 CLR 1. The authorities referred to also discuss the difference between aggravatory damages and compensatory damages. Further, there is no need to explore the question of whether exemplary damages can be awarded in any event for breach of contract, as to which the case law would suggest a negative answer. Ordinarily the question of aggravatory or exemplary damages would not arise in cases of professional negligence. That said, there have been few cases far removed from the present where exemplary damages have been awarded in medical negligence cases in circumstances far removed from those involved in the present case: cf B v Marinovich (1999) NTSC 127; Backwell v AAA (1997) 1 VR 182. Nevertheless, I would not have allowed any exemplary or aggravated damages in the circumstances to be found even had the plaintiff been entitled to a verdict, which she is not.

Had the plaintiff been entitled to a verdict (interest aside) I would have assessed damages in the sum of $52,362.98.

The orders I make are as follows: 1. Verdict and judgment for the defendant. 2. The plaintiff to pay the defendant’s costs. 3. Grant liberty to the parties to bring in “interest” calculations if they consider such to be appropriate within 14 days. 4. Exhibits may be returned.