Garling v Patiniotis [2024] TASSC 29 (Link to JADE)
As summarised in the judgment at [2]:
No issue is taken with the defendant’s recommendation of the stapled haemorrhoidectomy as the appropriate procedure to deal with the plaintiff’s haemorrhoids. However, the plaintiff claims that the defendant negligently performed the procedure, and as a result she has been left with permanent and disabling injury, with ongoing symptoms causing pain and affecting the operation of her bowels and gastrointestinal system. She has required a further operative procedure to deal with the impact of her bowel function, namely a loop ileostomy, and this has had its own impact on her life. It is alleged that there has also been a severe aggravation of pre-existing psychological illness. In short, the plaintiff alleges that the impact of the defendant’s negligence is permanent and productive of severe disability.
The defendant denied breach of duty and causation.
The trial judge was satisfied on the balance of the probabilities that the defendant inserted the staples in a position which was across or below the anatomical position of the dentate line. ([81]). This this conclusion lead inevitably to a finding that the defendant has breached his duty of care and skill in the performance of the stapled haemorrhoidectomy .([84]).
In relation to causation the trial judge said at [106] and [109]:
It is a reasonable assessment of the evidence in this case that there is no direct proof of the requisite causal link. In particular, there is no direct evidence which establishes what damage has been caused by the low placement of the staple line in the anal canal, or the excision of tissue which included the dentate line. However, the plaintiff relies on circumstantial reasoning. The relevant circumstances include the absence of symptoms apart from rectal bleeding prior to the procedure, but their presence immediately after the procedure and thereafter, combined with expert evidence concerning the possible association between such symptoms and the placement of the staple line low in the anal canal.
Having regard to the whole of the evidence, and applying the principles set out above, I am satisfied on the balance of probabilities that the breach, that is the placement of the staple line over the dentate line, which necessarily involved staples placed low in the anal canal, and the excision of material from that area which included the dentate line, is the cause of the nerve damage diagnosed by Associate Professor Boesel, and the harm experienced by the plaintiff as a result of this damage.
Damages were assessed as follows:
| Pain, suffering and loss of enjoyment of life $75,000 Loss of earning capacity $50,000 Past out of pocket expenses $50,000 Future outgoings $240,000 |
| Past domestic assistance $1,475 |
| Future domestic assistance $320,000 Interest $19,000 Total $755,475 |
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