In Appleton v Norris  NSWCA 311, the Court of Appeal was called upon to revisit a damages assessment.
Liability had been admitted by the surgeon for unsuccessful reconstructive breast surgery. The surgery and subsequent operations resulted in a serious infection and disfigurement and asymmetry of the patient’s breasts.
The patient’s case before the trial judge was that the condition of her breasts and the psychological consequences caused her to close the beauty therapy business she conducted at the rear of a hairdressing salon, and to have an unplanned pregnancy (as a result of which her daughter was born) and substantially reduced her self-esteem. She also claimed that she required domestic care assistance of more than six hours a week for more than six months following the surgery: .
Apart from dealing with an arithmetical issue, the Court of Appeal did not alter the trial judge’s damages findings.
On the pregnancy causation issue, the Court said at :
Irrespective of whether the surgery had gone successfully, the appellant might have become pregnant since, by reason of her ovarian cyst syndrome, she did not use contraception. The effective cause of her pregnancy was intercourse without contraception. That Justin happened to be her partner at the relevant time, rather than Mark or someone else, may have been a result of the surgery, but the pregnancy ought not for that reason be regarded as having been caused by the surgery. The negligence was not a necessary condition of the pregnancy and therefore factual causation was not established: s 5D(1)(a) of the Civil Liability Act 2002 (NSW)…