ACT v Gillan; Gillan v ACT
[2018] ACTSC 223
•17 August 2018.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | ACT v Gillan; Gillan v ACT |
Citation: | [2018] ACTSC 223 |
Hearing Dates: | 27 October 2015; 17 May 2016 |
DecisionDate: | 17 August 2018. |
Before: | Penfold J |
Decision: | 1. The ACT’s appeal is dismissed. 2. Mr Gillan’s appeal is upheld to the extent necessary to give effect to the new awards set out at [156] below, and to make any necessary consequential changes to the other awards made by the Magistrate. 3. By 24 August 2018, the parties are to prepare draft orders to give effect to Order (2), and: (a) the parties are to file an agreed draft order; or (b) if agreement cannot be reached, each party is to file and serve a draft order. 4. Unless either of the parties wishes to be heard on costs, the ACT is to pay Mr Gillan’s costs of the appeal and the cross-appeal. |
Catchwords: | APPEAL – APPEAL AND NEW TRIAL – Appeal from Magistrates Court – medical negligence – failure to explain treatment options – economic loss – errors in assessment of damages – appeal upheld. |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) Supreme Court Act1933 (ACT) pts 2, 2A Court Procedures Rules 2006 (ACT) r 5115(1)(b) |
Cases Cited: | Arkinstall v Jenkins [2001] QSC 421 JL v Director-General, Community Services Directorate [ECD] [2015] ACTSC 24 Wallace v Kam [2013] HCA 19; 250 CLR 375 |
Parties: | Australian Capital Territory (Appellant) Andrew Bruce Gillan (Respondent) |
Representation: | Counsel Mr Stretton SC (Appellant) Mr Segal with Mr Hogan (Respondent) |
| Solicitors ACT Government Solicitor (Appellant) Slater & Gordon (Respondent) | |
File Number: | SCA 39 of 2015 |
Decision under appeal: | Court/Tribunal: ACTMC Before: Magistrate Cook Date of Decision: 13 April 2015 Case Title: Gillan v ACT Court File Number: CS 138 of 2013 |
Introduction
Andrew Gillan was a long-distance bus driver. He ruptured his Achilles tendon in an accident (the accident) that created no entitlement to compensation for him.
Mr Gillan went to Queanbeyan District Hospital, where his leg was put in a half-cast, and he was referred to the Canberra Hospital (TCH). He was seen several times at TCH, by several different doctors. His leg was examined, and new casts were put on. There was no surgical intervention, and none of the TCH doctors discussed the possibility of surgical intervention with him.
Mr Gillan‘s leg healed with some lengthening of the tendon, which was said by him to have reduced his capacity to maintain his employment as a bus driver, and particularly as a long-distance bus driver.
Mr Gillan took action in negligence against the Australian Capital Territory (the ACT), in which he asserted that the ACT, through TCH, had breached its duty of care to him, and that this had caused compensable injury.
Mr Gillan claimed damages for the breach of duty under various recognised heads, including past and future economic loss arising from the effect on his ability to work of the healing of his tendon in the lengthened position.
His Honour found the ACT liable in negligence, and awarded Mr Gillan damages calculated at $81,514.80, and his costs.
The ACT has appealed against his Honour’s decision on liability. Mr Gillan has cross-appealed against his Honour’s assessment of damages. Both parties have also filed notices of contention.
Notices of contention
Rule 5115 of the Court Procedures Rules 2006 (ACT) deals with notices of contention. That rule relevantly suggests that a notice of contention is the means by which a respondent (without filing a cross-appeal) may contend “that the order appealed from should be confirmed on a ground other than the ground relied on by the court or tribunal that made the order” (r 5115(1)(b)). Neither notice of contention identifies a ground in support of the decision defended by the relevant respondent that is different from the grounds on which the relevant decision was based. In my view, the notices need no further attention.
Nature of appeal
Counsel for the ACT referred in his written submissions to the general principles applying to this appeal, which are said to be set out in The Australian Capital Territory v Crowley, The Commonwealth of Australia and Pitkethly [2012] ACTCA 52; 7 ACTLR 142 at [5]. That explanation refers to appellate jurisdiction conferred by pt 2A of the Supreme Court Act1933 (ACT), whereas the jurisdiction to be exercised in this appeal is the Supreme Court’s original jurisdiction conferred by pt 2 of the Supreme Court Act. However, I accept the general proposition that the current appeal is an appeal in the nature of a rehearing, but in which error must be identified before the judgment at first instance can be overturned (see JL v Director-General, Community Services Directorate [ECD] [2015] ACTSC 24 at [9]–[14]).
The case before the Magistrate
10. In his closing submissions in the Magistrates Court, counsel for Mr Gillan made it clear (as had also been made clear in the pleadings) that Mr Gillan’s case was not about whether conservative treatment was negligent or whether surgical treatment was the only proper treatment in the circumstances. Rather, counsel said, TCH had a duty to warn Mr Gillan of the risk of non-surgical treatment and the availability of alternative treatment, and the asserted negligence was TCH’s failure to warn Mr Gillan about the possible risks of non-surgical treatment, especially the lengthening of the tendon, and the failure to explain to him the relative benefits of the alternative, surgical, treatment.
11. In making this case, counsel referred to evidence:
(a)that at no stage during either of Mr Gillan’s first two visits to TCH had any of the doctors spoken to him about the possibility of surgical repair of the damaged tendon;
(b)that the risk of the tendon lengthening was significantly greater for non-surgical treatment than for surgical treatment (less than 1% for surgical treatment and about 5% for non-surgical treatment);
(c)that if Mr Gillan had been told about the option of surgical treatment and its advantages and disadvantages compared with non-surgical treatment, he would have chosen to have surgery;
(d)that the injury suffered by Mr Gillan, being the lengthening of his tendon, was caused by the non-surgical treatment which was all that was offered to him.
12. Counsel also mentioned that the risk of a lengthened tendon was a relevant risk for Mr Gillan, and that the Magistrate accepted (at [22] and [32] of his judgment), in effect, that Mr Gillan’s particular employment made the risk of a lengthened tendon a relevant or material risk, because of the impact a lengthened tendon would have had on his capacity to drive buses long distances, and also to load and unload baggage from a bus.
13. In the Magistrates Court, counsel for the ACT did not dispute that this was Mr Gillan’s case. In fact he summarised Mr Gillan’s case as being:
(a)that he should have been told of the surgical option as an alternative to non-surgical treatment, and should have been advised of the advantages and disadvantages of the two options, so that he could make a choice; and
(b)that he would have chosen surgery.
14. In response to that case, counsel for the ACT argued:
(a)that Mr Gillan’s evidence was not sufficient to establish that he would have chosen surgery if advised about the options; and
(b)that the literature suggests that treatment by surgical as opposed to non-surgical methods has no different outcome in the long term.
15. Having failed to establish what kind of treatment he would have chosen, counsel said, Mr Gillan simply had no case.
16. Thus, the liability issue before the Magistrate was, in essence, whether Mr Gillan had proved all the elements of his case on liability; the only possibly missing element was that, if properly advised, he would have chosen not the treatment that caused his injury, but a different treatment that carried a much lower risk of the injury concerned. This was relevant to whether Mr Gillan could establish causation: that is, he needed to be able to show that the risk that “came home” was a material risk that he would have avoided, or at least substantially reduced, if he had been properly advised by TCH, and therefore that the injury he suffered was a consequence of TCH’s failure to advise him of the existence of options and of their advantages and disadvantages.
The Magistrate’s decision – general comments
17. It has to be said that the Magistrate’s decision, although reserved for some five months, would have benefited from proof-reading and revision. There is much repetition, many paragraphs that make little or no sense unless one mentally corrects many typographical errors and then reads in extra words (in some cases quite a lot of extra words), and many paragraphs that seem to be out of place. Some of those flaws suggest that the judgment might reflect the use of dictating software without subsequent checking and correcting.
The Magistrate’s decision – liability
Undisputed facts
18. In his judgment at [2], his Honour summarised the undisputed facts. Those facts relevantly include:
(a)that a ruptured Achilles tendon may be treated either surgically or without surgery (at [2(f)]);
(b)that the TCH records included a note that Mr Gillan was a coach driver (at [2(g)]);
(c)that at Mr Gillan’s second visit to TCH (7 February 2011), the doctor recorded that his tendon was “in continuity” (at [2(i)]);
(d)that on 21 February 2011, another doctor at TCH recorded that Mr Gillan was a bus driver with an Achilles tendon rupture who had not been offered surgery (at [2(p)]), and Mr Gillan became aware that there was a higher rate of re-rupture in patients treated without surgery (at [2(r)]), but that surgery was not suggested then and the non-surgical treatment was continued (at [2(s)]).
The argument
19. His Honour at [2] set out the undisputed facts, and then summarised Mr Gillan’s claim, including that TCH should have advised him of the two treatment options, and should have explained the advantages and disadvantages of the two options, including in particular that non-surgical treatment carried an increased risk of the tendon healing in a lengthened position (possibly resulting in weakness of plantar flexion, with consequences for Mr Gillan’s capacity to do certain things, possibly relevant to his employment, either at all or without pain).
20. The Magistrate then at [3]–[6] summarised the defence argument as follows:
The defence to the claim, is primarily that the application of clinical examination and history was the relevant standard to be applied on presentation by Mr Gillan on 31 January 2011 at TCH. Secondly, both procedures are an accepted form of treatment for a ruptured Achilles tendon.
The ‘decision as to treatment is that of the doctor, provided that there is legitimate recognised school of thought in medical circles which supported that treatment’, see Hoeban J [sic] in Richards & Ors v Rahilly & Anor [2005] NSW 352 at PN225.
In this case the defendant properly advanced that there are two different schools of thought in relation to the treatment of a ruptured Achilles, with either treatment considered appropriate.
Hoeben J went on to say: ‘Different doctors of different schools of thought will have different attitudes to particular treatment options. So long as those attitudes are not inconsistent with a reasonable standard of care, it is not negligent to adopt or propound or offer one to the exclusion of the other’, see Hoeban J [sic] in Richards & Ors v Rahilly & Anor [2005] NSW 352 at PN225.
21. Curiously, his Honour did not mention the defence assertion to the effect that Mr Gillan had not established causation, in that he had not proved that, if offered, he would have chosen surgery over non-surgical treatment.
22. Nor did his Honour identify that the claim that both surgical and non-surgical treatments are considered appropriate for a ruptured Achilles tendon does not directly respond to a claim based on a failure to advise about the existence of the two options and their possible outcomes.
The Magistrate’s reasons
Failure to investigate
23. Mr Gillan’s claim of negligence included a claim that TCH had not taken adequate steps to determine the condition of his Achilles tendon, relying for this purpose solely on clinical examination and a patient history and not using either ultrasound or radiology to get a clearer picture of his injury. His Honour appears to have found (at [15]–[17]) that the standard of care required of TCH in relation to investigating Mr Gillan’s condition was not satisfied by a clinical examination and a patient history, especially having regard to Mr Gillan’s employment.
24. However, it is not clear to me that TCH’s approach to investigating the state of Mr Gillan’s tendon had any particular significance in the broader context of how he was treated in TCH. TCH’s failure to discover the extent of the damage to the tendon would not excuse a failure to advise Mr Gillan about alternative treatment options, although it might explain such a failure. If TCH had conducted further investigations and discovered the extent of the damage, the breach of the duty of care alleged would have been even more significant.
25. Accordingly, I see no need to pursue further in this appeal the question whether TCH should have undertaken further investigations of the condition of Mr Gillan’s tendon.
The duty to advise of options
26. In the course of his judgment, his Honour referred to various authorities about the duty of care owed by people and institutions providing medical treatment and care. For present purposes, the applicable law can be summarised as follows.
27. In Rogers v Whitaker (1992) 175 CLR 479, the plurality (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ) said at 483:
The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a "single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment"; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. It is of course necessary to give content to the duty in the given case.
28. At 487, the Court went on:
… particularly in the field of non-disclosure of risk and the provision of advice and information, … the courts have adopted the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to "the paramount consideration that a person is entitled to make his own decisions about his life".
29. At 488:
… the amount of information or advice which a careful and responsible doctor would disclose depended upon a complex of factors: the nature of the matter to be disclosed; the nature of the treatment; the desire of the patient for information; the temperament and health of the patient; and the general surrounding circumstances.
The issue under consideration is a different issue from that involved where the question is whether the doctor carried out his professional activities by applicable professional standards. What is under consideration here is the patient's right to know what risks are involved in undergoing or foregoing certain surgery or other treatment.
30. At 489–90:
… the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors.
… except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. ... But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice.
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.
The law should recognize that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.
31. In the same case, Gaudron J said at 493:
[the doctor-patient relationship] also gives rise to a duty to provide information and advice. That duty takes its precise content, in terms of the nature and detail of the information to be provided, from the needs, concerns and circumstances of the patient. A patient may have special needs or concerns which, if known to the doctor, will indicate that special or additional information is required. In a case of that kind, the information to be provided will depend on the individual patient concerned. In other cases, where, for example, no specific enquiry is made, the duty is to provide the information that would reasonably be required by a person in the position of the patient.
32. In Wallace v Kam [2013] HCA 19; 250 CLR 375, the Court (French CJ, Crennan, Kiefel, Gageler and Keane JJ) said at [8]:
The component of the duty of a medical practitioner that ordinarily requires the medical practitioner to inform the patient of material risks of physical injury inherent in a proposed treatment is founded on the underlying common law right of the patient to choose whether or not to undergo a proposed treatment. In imposing that component of the duty, the common law recognises not only the right of the patient to choose but the need for the patient to be adequately informed in order to be able to make that choice rationally. The policy underlying the imposition of that component of the duty is to equip the patient with information relevant to the choice that is the patient's to make.
33. At [9]–[10], the Court went on:
… the damage suffered by the patient that the common law makes compensable is not impairment of the patient's right to choose. …
For particular physical injury sustained by a patient as a result of medical treatment the patient has chosen to have carried out to be compensable, it must be determined to have been caused by the particular failure of the medical practitioner to exercise reasonable care and skill to warn the patient of one or more material risks inherent in that treatment.
34. In KL v Farnsworth [2002] NSWSC 382, Simpson J dealt with a case in which the plaintiff claimed that her doctor had not properly informed her of the advantages and disadvantages of the two forms of surgery that he had offered, as a result of which she had chosen a form of surgery that had significantly problematic results for her because of her work arrangements, family responsibilities and other matters.
35. Simpson J found that Dr Farnsworth had not provided complete or sufficiently detailed information about the consequences of the kind of surgery that he considered preferable and that the plaintiff had chosen. At [134], her Honour said:
I have not the slightest doubt that Dr Farnsworth acted with the best intentions, and in what he perceived as KL’s best interests. But the overriding theme of cases such as Chappel v Hart and Rogers v Whitaker is patient autonomy: patients are in control of their own lives, and even if they are not best placed, objectively, to decide on whether or not to undergo a particular form of surgery or other medical treatment, they nevertheless have the right to be placed in a position which enables them to make an informed decision. Such a decision is based only in part on the medical issues on which, plainly, the medical practitioner has a significant advantage: another important aspect of the decision is the impact the particular surgery or treatment will have upon the particular patient’s life: this, in turn, depends upon an intimate knowledge of the patient’s lifestyle, what is important to him or her, the strengths and weaknesses of the patient in coping with particular kinds of adversity. This the patient is best placed to know. He or she is to be put, so far as possible, in possession of sufficient information about the proposed procedure to make an informed decision having regard to the likely impact on his or her life.
36. See also Arkinstall v Jenkins [2001] QSC 421.
37. The Magistrate referred to some but not all of the propositions extracted above from the several cases mentioned. The logical progression by which his Honour relied on the various propositions to reach his conclusions is not immediately apparent, and this is reflected in two of the ACT’s appeal grounds. However, his Honour’s conclusion, while not elegant, is clear enough. At [59], his Honour said:
On this issue I accept Mr Gillan’s evidence that, from his perspective, he was given no information at the relevant times set out within the claim as to either surgical or nonsurgical options available to him and the advantages or disadvantages of either procedure. Accordingly satisfied the defendant owed a standard of care required of a competent and skilled doctor dealing in Achilles tendon ruptures. That the application of that standard TCH an obligation to explain two options that were available on the likely consequences of those options. Satisfied duty of care owed by the defendant to the plaintiff has been breached.
38. I note first that the quoted paragraph appears in a section of the judgment headed “Advised Mr Gillan of the two treatment options available on either 31 January 2011 or 7 February 2011”, which addresses the question whether TCH had breached its duty of care to advise of treatment options.
39. The paragraph seems to reflect the following:
(a)a factual finding that Mr Gillan was not given any information or advice about the availability of surgical treatment or about the advantages and disadvantages of surgical and non-surgical treatment;
(b)a conclusion that the duty of care owed by TCH and its doctors included an obligation to advise Mr Gillan about the availability of surgical and non-surgical treatment for his tendon and about the advantages and disadvantages of each kind of treatment; and
(c)a conclusion that TCH’s duty of care was breached by the failure to advise Mr Gillan accordingly.
40. Two further findings of his Honour are usefully mentioned at this point.
41. At [62], his Honour said “I accept Mr Gillan’s evidence as being reliable and given as an honest witness”. This comment was made at the beginning of a paragraph in which his Honour considered the video footage tendered by the ACT as proof of Mr Gillan’s capacity to move “relatively freely” and to engage in a variety of activities involving his Achilles tendon. However, it follows on from a paragraph in which his Honour accepts the evidence of Mr Gillan about an entirely different matter, and I consider it to be a general comment about Mr Gillan’s credibility.
42. At [64], his Honour said:
I am satisfied that had Mr Gillan been given that opportunity he would have chosen surgery as was his evidence over nonsurgical because of his employment and the need to recover in the shortest time frame as possible and not to suffer from the disability of having a lengthened Achilles tendon.
The duty to explain advantages and disadvantages
43. This matter is dealt with by his Honour under the following heading:
Advising the plaintiff having regard to his employment:
a) the pros and cons of each of the two options available,
b) explaining the risk of re-rupture;
c) the risk of the tendon healing in the lengthened position;
d) the consequences of it doing so having regard to the plaintiff’s employment and general life activities.
44. Under this heading, his Honour considered the medical evidence about the surgical and non-surgical options, and Mr Gillan’s evidence about what choice he would have made, and noted:
(a)Mr Gillan’s evidence that, having regard to the different levels of risk of the surgical and non-surgical treatment, and his need, given his occupation, for “fully functioning legs and feet”, he would have chosen surgery;
(b)that there was a greater chance that the risk of tendon lengthening would materialise from the non-surgical approach than from the surgical approach (at [69]);
(c)that Dr Lunz observed, based on the available literature, that “there is no real preference for adopting either the surgical and [sic] nonsurgical approach” (at [70]) but (at [71]) that:
it was a matter [Dr Lunz] discussed with each and every patient as to the pros and cons of surgical and non-surgical treatment [and] he explained to patients the differences and that he allowed the patient to make a decision.
(d)by reference to the evidence of Dr Lunz and Dr Saxby, that “following a rupture of an Achilles tendon a patient, whether treated operatively or non-operatively that most patients would not have an ongoing disability. Although … a small percentage do” (at [72]), but (at [73], and see also [77]) that “the risks from associated tendon rupture with a non-surgical treatment is greater and the risks for over-lengthening is greater with non-surgical treatment”.
45. Having noted the ACT’s reliance on comments made by Hoeben J in Richards v Rahilly [2002] NSWSC 943 (quoted at [20] above), his Honour at [88] dismissed the relevance of Richardsv Rahilly in this case, noting that:
This is not such a case. This case had only two options relatively straightforward, relatively frequent in relation to the general community. I am satisfied that the issue here and its cornerstone involved the warning of a material risk inherent in a proposed treatment and that duty is recognised by Rogers v Whitaker for the reasons I have expressed and that that the standard of care attaching to that duty fail to be delivered the standards required as a consequence the duty was breached by the defendant. [sic]
46. His Honour concluded his consideration of the liability issue at [89] as follows:
I find a breach of duty has been established against the defendant that the breach caused the damage to the plaintiff and the judgement in favour of the plaintiff be entered.
Appeal – liability
47. The grounds of TCH’s appeal, as amended including at the beginning of the hearing, are as follows:
(a)His Honour, Magistrate Cook, having found that the Appellant provided an appropriate standard of care to the Respondent, erred in finding that the Respondent required a higher standard of medical care given his employment history and the nature of his injury.
(b)His Honour erred in failing to explain what constituted this higher standard of care.
(c)His Honour erred in failing to explain how this higher standard of care was breached by the Appellant.
(d)His Honour erred in failing to give appropriate weight to the evidence of Dr Luntz, Dr Saxby and Dr Griffith regarding the appropriateness of non-surgical treatment of injuries of the kind sustained by the Respondent.
...
(g)His Honour erred in failing to evaluate the conflicting medical evidence, in failing to provide any process of reasoning for preferring one medical expert over another and in failing to adequately state either the reasons for his decision or any basis on which an understanding of those reasons could be gleaned.
48. A problem for the ACT is that the grounds of appeal against his Honour’s findings about liability do not seem to respond to his Honour’s conclusions about the case that Mr Gillan put before him.
Duty and standard of care
49. The first three appeal grounds criticise comments made by his Honour about the duty and standard of care owed by the ACT. The comments complained of are as follows:
15. TCH had an obligation to warn of a material risk inherent in a proposed treatment, (see Rogers v Whitaker 175 CLR 479). I am satisfied that because of Mr Gillan’s history of being employed as a coach driver, a fact known to Dr Amarasekera, that the defendfant [sic] had an obligation to investigate further than by clinical examination through appearance and feeling of the tendon.
16. The latter course of action while constituting an appropriate medical standard of care altered requiring a higher standard of care, having regard to the history of the patient, specifically the nature of his employment in light of the injury that was presented.
17. It was not a sufficient basis for making a decision about what treatment option should be applied as a standard of care required the treating doctor to have regard to both clinical examination on presentation and history of the patient which not only would have constituted is [sic] medical history as to his physical and mental well-being and also what he did a [sic] way of employment.
50. Section 42 of the Civil Law (Wrongs) Act 2002 (ACT) (the Wrongs Act) explains the concept of a standard of care in the context of a determination of negligence as follows:
[T]he standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
51. The ACT criticises his Honour’s comments at [16] specifically, and it is hard to read that paragraph as saying anything sensible about how to identify the content of a duty of care found to have been owed by a person, often referred to as the standard of care required of that person. In particular, in the context of the explanation of the standard of care in the Wrongs Act, it makes very little sense to say that a specified course of action reflected an appropriate standard of care but that as a result of something “altering” (grammatically, the subject of “altered” is “the latter course of action”, but this makes no sense), a higher standard of care was required. On the other hand, it is meaningful, if not helpful in the paragraph concerned, to think in terms of the applicable standard of care differing having regard to the information available to the person who owes the duty of care; this concept is implicit in the legislative explanation of the standard of care.
52. However, as noted at [23] above, these comments were made in the course of his Honour’s consideration of the first part of the negligence claim, namely the claim that TCH should not have relied solely on clinical examination and medical history in assessing the condition of Mr Gillan’s Achilles tendon. For reasons explained at [23] to [25] above, his Honour’s conclusions about TCH’s investigation of the condition of Mr Gillan’s tendon are effectively irrelevant to his conclusions about the alleged breach of duty constituted by TCH’s failure to advise Mr Gillan about the treatment options and their respective risks and benefits.
53. That is, there is nothing in the first three appeal grounds that identifies any error in his Honour’s consideration of the duty to advise Mr Gillan about treatment options and their advantages and disadvantages, or his conclusion that the duty was breached.
54. I note at this point that counsel for the ACT did not dispute that tendon lengthening was a particular problem for Mr Gillan because of his occupation, and did not dispute that TCH had enough information to be aware of this potential problem.
55. As it happens, I am not convinced that this matter was of special relevance to long-distance bus drivers rather than more generally relevant to a larger class of patients, at the very least encompassing people of Mr Gillan’s age (48 years at the time he injured his Achilles tendon, and therefore many years away from retirement age) whose employment opportunities were likely to involve a significant degree of physical rather than intellectual exertion. In particular, this would mean that the TCH doctors did not need to have any particularly detailed understanding of exactly what was involved in the work of bus drivers in general or long-distance bus drivers particularly.
Treatment of medical evidence
56. The last two appeal grounds relate to how the Magistrate treated the medical evidence before him.
57. His Honour is criticised for failing to give appropriate weight to the evidence of the three doctors about whether non-surgical treatment was an appropriate response to a ruptured Achilles tendon.
58. He is also criticised for:
failing to evaluate the conflicting medical evidence, … failing to provide any process of reasoning for preferring one medical expert over another and … failing to adequately state either the reasons for his decision or any basis on which an understanding of those reasons could be gleaned.
59. Again, the appeal grounds do not address Mr Gillan’s case as put in the Magistrates Court, or his Honour’s conclusions about Mr Gillan’s case.
Was non-surgical treatment appropriate?
60. As asserted by the ACT, the medical evidence was to the effect that, as a general proposition, non-surgical treatment was an acceptable form of treatment for a ruptured Achilles tendon. However, Mr Gillan’s case was not that the ACT had breached its duty of care by providing non-surgical treatment: Mr Gillan’s case was that the ACT had breached its duty of care by not advising him of the surgical option, and not advising him of the advantages and disadvantages of the two options. The medical evidence relied on in the appeal ground would only have been relevant if the claim had been, in effect, that provision of non-surgical treatment was a breach of duty as such.
Treatment of conflicting medical evidence: were reasons adequate?
61. The last appeal ground (quoted at [47] above) refers to his Honour failing to evaluate the conflicting medical evidence and, in short, failing to give adequate reasons for his decision; I assume, given its location, that this latter criticism alleges a failure to give adequate reasons for his Honour’s conclusions about the medical evidence rather than about Mr Gillan’s claim more generally.
62. I note first that, by the time cross-examination had concluded, there was very little conflicting medical evidence before his Honour that was relevant to the issues that his Honour needed to decide.
Whether non-surgical treatment was appropriate in general
63. All three doctors agreed that non-surgical treatment, as such, could be an appropriate response to a ruptured Achilles tendon.
64. Dr Lunz in his report dated 21 September 2012 said that in most otherwise healthy individuals he would prefer to perform a surgical repair of a ruptured tendon, but in oral evidence he agreed that non-operative treatment of a ruptured tendon was accepted medical practice in Australia.
65. Dr Griffith in his report said it was regrettable that Mr Gillan “was not sent to surgery”, but described Mr Gillan’s tendon tear as “well healed, stable and most unlikely to recur”, while noting his continuing level of discomfort in driving for long periods. In oral evidence, Dr Griffith identified various advantages of surgical treatment, but did not assert that non-surgical treatment was inappropriate.
66. Dr Saxby said in his report dated 23 July 2013 that in January 2011 “both operative and non-operative are acceptable forms of treatment and there was no clear-cut advantage of one over the other”.
Whether non-surgical treatment carried a greater risk of tendon lengthening
67. All three doctors agreed that the risk of the particular adverse consequence suffered by Mr Gillan, being the healing of the tendon in a lengthened state, was greater in non-surgical treatment.
68. Dr Lunz in his report said that Mr Gillan would have been less likely to have had ongoing disabilities if a surgical reconstruction had been undertaken. In cross-examination he said that “the risks for over-lengthening is greater with non-surgical treatment”. He was reluctant to agree with the specific figures put by counsel for the ACT and set out in Dr Saxby’s report, being that the risk of retraction (indicating lengthening) would be 1% or less for surgical treatment and perhaps 5% for non-surgical treatment, but he agreed that the risk would be higher for non-surgical treatment.
69. Dr Griffith said in evidence that:
it’s quite a significant serious injury and if treated conservatively, as in this case, there are additional complications due to slow healing and healing of the tendon in a lengthened position compared to that which it would normally have following the rupture which may compromise gait, comfort in the calf …
70. Dr Saxby said in his first report (dated 23 July 2013) that lengthening of the Achilles tendon:
is a recognised complication of non-operative treatment. … Certainly surgical treatment reduces the risk of healing in an elongated position … but the problem with surgical treatment is that the patient is now exposed to the risk of an infection …
71. Dr Saxby in his second report (dated 18 February 2014) said that the risk of a failure to heal at the normal length “is greater with non surgical treatment compared to surgical treatment”. He estimated the risk for surgical treatment at 1% or less and for non-operative treatment, “perhaps in the order of 5%”.
72. In cross-examination, Dr Saxby said that his numerical assessment were not based on any consistent data, because “the data is all over the place”.
Whether long-term outcomes were the same for surgical and non-surgical treatments
73. On appeal, counsel for the ACT said that:
There was evidence from experts, backed up by literature, that treatment by surgical as opposed to non-surgical results has no different outcome in the long term. The outcome will be the same, whichever one you choose.
74. This was in my view a gross oversimplification, possibly amounting to a misrepresentation, of the material on which counsel relied for this claim.
75. Three papers reporting studies of “complications” of treatment for tendon rupture were in evidence: all of the papers considered re-rupture, and mentioned some or all of other identified complications including sural nerve damage; wound healing problems; thickening of the tendon; deep vein thromboses; and tendon lengthening.
76. It is clear that the incidence of particular “complications” differs between the surgical and non-surgical treatments, with, for instance, increased infections but reduced re-rupture and tendon lengthening among patients treated surgically rather than non-surgically.
77. It is also notable that several of the studies referred to in the papers put in evidence considered the impact of early mobilisation compared with extended immobilisation of patients after the rupture, with early mobilisation appearing to provide significant reductions in some complications across both surgical and non-surgical treatments (at [81] and [82] below). I am not aware of any evidence suggesting that Mr Gillan was offered non-surgical treatment that included early mobilisation.
78. The three articles relied on were as follows:
(a)Complications of the Treatment of Achilles Tendon Ruptures (Molloy and Woods);
(b)Surgical Versus Nonsurgical Treatment of Acute Achilles Tendon Rupture (Soroceanu et al);
(c)Acute rupture of tendo Achillis (Möller et al)
(a) Complications of the Treatment of Achilles Tendon Ruptures
79. This paper concluded relevantly as follows:
The spectrum of complications differs between operative and nonoperative treatments. Rerupture, elongation of the tendon (and diminished function), and tendon thickening may occur with either technique, although rates seem to be higher with nonoperative management. … Whether nonoperative or operative treatment is utilised, there is robust evidence that early functional, but controlled, mobilisation gives better results.
Absolute polarisation toward either operative or nonoperative treatment is not clinically sound. Appropriate informed consent needs to be undertaken. This must take into account the patient’s level of activity and wishes coupled with an understanding of their comorbidities and the effects that they will have upon complication rates.
(b) Surgical Versus Nonsurgical Treatment of Acute Achilles Tendon Rupture
80. This meta-analysis of randomised trials considered re-rupture rates, and rates of other complications (including infections, skin damage, DVT and over-lengthening of the tendon) grouped in a single pool. Re-rupture rates were lower in the surgically-treated group, but further analysis indicated that:
if a functional rehabilitation protocol with early range of motion was used, surgical treatment and nonsurgical treatments were equivalent with regard to the rerupture rate, suggesting that no absolute risk reduction was achieved by performing surgery.
81. The paper concluded:
According to the results of our meta-analysis, nonsurgical treatment represents a reasonable treatment choice at centers that use functional rehabilitation with early range of motion since surgical repair did not decrease the rerupture rate and was associated with a higher rate of other complications. Surgical repair can be considered at centres that do not employ early range of motion, or for patients who are poor candidates for this more time-consuming post-injury protocol; although it was associated with a higher overall rate of other complications, it reduced the rerupture rate. The increased risk of having a complication other than a rerupture in the surgical group … appears to be more important than the increased risk of having a rerupture … in the non-surgical group. Nevertheless, given that not all complications are major, some patients and surgeons may consider the increased rate of other complications following surgical treatment to be an acceptable trade-off for the reduced rerupture rate. We believe that this information should be part of the informed consent discussion when surgery is being considered.
(c) Acute rupture of tendo Achillis
82. This paper described a prospective, randomised, multi-centre study, conducted in Sweden, of 112 patients with acute, complete rupture of tendo Achillis. The authors concluded that:
surgical treatment followed by early functional rehabilitation is a safe and reliable method of treatment for rupture of tendo Achillis. With careful surgery, the risks of significant complications can be minimised, and both surgical and non-surgical methods produced equally good long-term results in those patients in whom rerupture did not occur. Conservative management resulted in failure in every fifth patient, and cannot be regarded as acceptable in healthy, active patients under the age of 65 years.
Does the literature support the ACT’s position?
83. Irrespective of the answers that were given by the various doctors, in cross-examination, to seriously vague questions about these papers, I cannot see that any of the papers relied on permits the conclusion that the ACT apparently seeks to assert. That conclusion, which would respond to the claim that Mr Gillan ought to have been offered surgery as an alternative treatment and to have been given advice sufficient to enable him to make an informed choice about which treatment to accept, seems to be that for any particular patient, the choice between surgical or non-surgical treatment is meaningless because the outcome for the particular patient will in the longer term be the same either way. The conclusion does not seem to be supported by the literature put before the Court.
Conclusions
84. Most of this medical evidence was largely irrelevant to Mr Gillan’s complaint about not being given advice about the options and their advantages and disadvantages.
85. As already noted at [60] above, Mr Gillan’s complaint was not that non-surgical treatment was inherently inappropriate, but that he should have been given the option of choosing surgical treatment because that treatment would have been more appropriate for him, having regard to the nature of his employment generally, his wish to return to work as soon as possible, and the particular risk of the tendon healing in a lengthened position, which was a significantly greater risk of non-surgical treatment and a significant risk for him given the demands of long-distance bus-driving.
86. The relevant distinction was made in Rogers v Whitaker, quoted at [30] above, when the plurality said:
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.
(emphasis added)
87. Thus, in relation to matters actually in issue, there was no real need for his Honour to choose among the medical experts, and accordingly no need to explain which parts of whose evidence he accepted and why.
88. For this reason, there is also no need for me to consider the authorities provided by the ACT about the need for judges to give adequate reasons for their findings and conclusions (see O’Brien v Noble [2012] ACTCA 13 and authorities cited therein).
89. As already noted, his Honour’s reasons are not elegant, and there are parts of them that are almost incomprehensible without a willingness to correct, interpret, infer and, regularly, to mentally re-arrange the contents of the judgment. However, as appears at [36] to [42] and [51] above, albeit with somewhat more effort than would usually be required, it is possible to extract from the judgment both findings of fact and conclusions about legal issues, together with explanations for those findings and conclusions, and to conclude that those findings, conclusions and explanations in fact respond to the case put by Mr Gillan and the defence put by the ACT.
Causation: would Mr Gillan have chosen surgery?
90. It is necessary to comment, however, on a claim made on behalf of the ACT before the Magistrate, and put again in the appeal hearing despite not apparently being raised by the appeal grounds, being the claim that Mr Gillan’s evidence was not adequate to establish that, if properly advised, he would have chosen surgery.
91. Mr Gillan’s evidence in chief on this question was as follows:
MR SEGAL: I want you to assume that Dr Amasakra or Dr Amad had said to you, “Well, you can have surgery as an option, and you can have conservative treatment, where we put you in a cast or a boot, and if you take that conservative treatment, there’s a risk of you finding that the tendon will either re-rupture or result in it being lengthened so that it might affect the use of your foot and/or leg, but there is a somewhat lesser risk of that occurring if you had surgery.” I want you to assume somebody said that to you, and I want you to assume somebody had said to you that the risk of it happening with a nonsurgical approach was about a one in 20 chance, whereas surgically the risk of that happening, if the surgery was done, was 5 per cent – sorry, 1 per cent chance. What decision would you have made?---Well, based on my occupation I would have gone with the surgery.
Have you ever had surgery before? --- Yes.
More than once?--- I have to have a think. Yes.
Have you had anaesthesia?--- Yes.
Had that given you any difficulties?--- No, it did not.
92. In cross-examination, Mr Gillan gave the following evidence:
MR STRETTON: You were asked a question about what you would have done if you had been offered surgical treatment?---Correct.
Correct?---Correct.
I take it that if someone had suggested you have surgical treatment, before deciding whether to have it or not you would want to know what the risks were associated with that surgery? ---That’s correct.
You would assess those risks, would you not?---Correct.
And then having heard the risks of surgery as opposed to non-surgery, you would make a decision based upon the risks of which you’ve been informed?---Correct.
…
You would understand that surgery may involve completely different risks to conservative treatment?---That’s correct.
93. At [64] of his judgment (quoted at [42] above), the Magistrate referred to Mr Gillan’s evidence, and at [68] his Honour said:
Mr Gillan stated if it had been explained to him that there were two options for treatment and that surgery had less than 2% chance of causing his current injury and the nonsurgical approach, which was in fact the treatment applied to him, had 12% chance of causing the injury that materialised, given his occupation and need for fully functioning legs and feet he “would have gone with the surgery.’
94. In submissions before the Magistrate, counsel for the ACT referred to his recollection that in evidence Mr Gillan had “agreed that without knowing the pros and cons he couldn’t say what approach he would have taken to that situation”. However, this did not in my view properly represent Mr Gillan’s evidence quoted at [91] and [92] above, and accordingly, taken together with the finding about Mr Gillan’s credibility (at [41] above), I am satisfied that his Honour’s finding that Mr Gillan would have chosen surgery was open to him.
95. On appeal, counsel for the ACT summarised Mr Gillan’s evidence in cross-examination (at [92] above) as “I’d wait, I’d hear what the risks are and once I’ve heard that I would make a decision.” Counsel went on:
That doesn’t come up to proof, with great respect, of had I been given the option of surgical treatment as opposed [to] conservative treatment, I would have taken it.
96. However, Mr Gillan had already given evidence (quoted at [91] above) that he had previously had surgery, that he had had no problems with general anaesthetics, and that he would have chosen surgery having regard to his occupation. In cross-examination, after giving the evidence relied on by counsel for the ACT, Mr Gillan agreed that he was aware that surgery carried different risks from non-surgical treatment.
97. I can see no basis on which Mr Gillan’s evidence, taken as a whole rather than selectively sampled, prevented his Honour finding that, given the option, Mr Gillan would have chosen to have surgery. Indeed, one might think that Mr Gillan’s evidence was more credible than a claim that he would have chosen to have surgery irrespective of, and without considering, the attendant risks.
Conclusions
98. Neither the five appeal grounds relied on by the ACT, nor the other matter raised by counsel in the course of the appeal hearing, provide any basis for setting aside his Honour’s conclusions:
(a)that the ACT breached the duty of care it owed to Mr Gillan by failing to advise him of treatment options and their advantages and risks;
(b)that if Mr Gillan had received such advice he would have opted for surgery;
(c)that the injury suffered by Mr Gillan as a result of not being offered surgery was an injury significant to him, and the risk of which would have been significantly reduced if he had been offered, and had accepted, surgery; and
(d)that on the balance of probabilities the injury was caused by the ACT’s breach of duty, and was accordingly compensable.
99. Accordingly, the ACT’s appeal must be dismissed.
The Magistrate’s decision – damages
His Honour assessed Mr Gillan’s damages as follows (references to years are to the financial years ending in the year mentioned):
Head of damage Award
$Explanation Past economic loss: 2011 7,920.00 This amount refers to that part of the period between Mr Gillan’s accident and his actual return to work in which, his Honour found, Mr Gillan would have been able to resume work if his Achilles tendon had been treated by surgery. It is not challenged on appeal. 2012 Nil Because Mr Gillan’s income was higher than in 2011, his Honour found that he had suffered no loss. 2013 20,000.00 His Honour compared Mr Gillan’s income this year with his income in 2012. 2014 Nil 2015 (to date of hearing) Nil Future economic loss 25,000.00 His Honour described this as a “nominal amount”. General damages 20,000.00 Interest on past general damages at 4% 2,240.00 Past out-of-pocket expenses 1,092.00 Past domestic assistance 500.00 Superannuation 4,762.80 Calculated as 9% of amount for past and future economic loss.
Cross-appeal – damages
Mr Gillan challenged three aspects of the assessment of damages, being the awards for past economic loss; future economic loss; and general damages. Changes to any of those awards will require re-calculation of other awards such as for interest or superannuation.
Past economic loss
The Magistrate’s approach
Mr Gillan was injured on 26 January 2011, and gave evidence that at that point, he had been earning around $990 nett per week.
He claimed economic loss for the financial years 2012, 2013 and 2014, and for the first 19 weeks of the 2015 financial year, that is, that part of the 2015 financial year up to the completion of the trial.
Mr Gillan gave evidence about his employment arrangements, as did Ian Bensley on behalf of Mr Gillan’s employer, a company trading as Bensley Bus and Coach (Bensley’s).
Their evidence, which was not challenged in cross-examination and was apparently accepted by his Honour, was to the following effect:
(a)Mr Bensley’s evidence:
(i)Mr Gillan was a permanent employee of Bensley’s;
(ii)Mr Bensley considered Mr Gillan a good driver and a valued employee;
(iii)Mr Gillan performed the same work as Mr Radcliffe and Mr Johnstone, and if he were still employed as a full-time driver, he would still be paid similar amounts as were paid to the other two men (Mr Bensley said “my three permanents are all within a few thousand dollars of one another”).
(b)Mr Gillan’s evidence (referring to a handwritten document on the letterhead of Bensley’s and referring to the 2014 year):
(i)Bensley’s allocated work to the drivers on the basis of seniority; [ab106]
(ii)before Mr Gillan’s accident, the relevant order of seniority for the allocation of work appeared to be: Mr Bensley; Mr Gillan; Mr Radcliffe (also a permanent employee); Mr Johnstone (also a permanent employee); other drivers.
As well as his tax returns for the financial years ending since his accident, Mr Gillan’s 2009 and 2010 tax returns were in evidence, and in cross-examination counsel for the ACT drew attention to the fact that the 2009 and 2010 returns showed taxable incomes of $43,598 and $53,819 respectively. Counsel then put to Mr Gillan that this suggested that he had not been earning “anything like the money that exhibit P2 would suggest that Mr Radcliffe and Mr Johnstone were earning”. This suggestion was made having regard to the gross incomes of $91,840 and $90,530 respectively shown for Mr Radcliffe and Mr Johnstone in exhibit P2. However, that exhibit related to the 2014 year, and as noted by counsel for Mr Gillan, relying on the 2014 document to draw inferences from Mr Gillan’s 2009 and 2010 tax returns was to that extent a non-sequitur.
Furthermore, Mr Bensley gave evidence the day after Mr Gillan and, as noted at [105] above, gave specific evidence that Mr Gillan, Mr Radcliffe and Mr Johnstone (whom he referred to as his “permanents”) earned annual amounts within a few thousand dollars of one another. He was not cross-examined about that evidence.
His Honour’s judgment included the following reasoning about the claim for past economic loss:
90. The plaintiff made a claim for past economic loss based upon loss of income as result of the injury occurring on 26 January 2011. Mr Gillan’s evidence was that at the time he was a permanent full-time employee working 5 to 6 days per week earning approximately $990 nett per week.
91. Mr Gillan stated that his tax return for the financial year ending 30 June 2009, revealed total income before tax of $43,598.
92. Then the following year ending 30 June 2010 revealed taxable income of $53,819.
93. On a hand written document on the letterhead of Bensley Bus and Coach marked loosely as a 2014 tax year, Mr Gillan sought to explain his loss of earnings as a reference to that document. He used as a comparator the person identified as Mr Stewart Radcliffe, Mr Ian Bensley and Mr Scott Johnstone.
94. Mr Gillan confirmed that Mr Radcliffe was employed at the same time that he had been employed and in exactly the same role with Bensley’s Bus and Coach as Mr Gillan.
95. Mr Gillan confirmed that document revealed in essence seniority a basis for the work distribution. With Ian Bensley heading the list and that Mr Gillan was second, followed by [Stewart] Radcliffe them [sic] by Scott Johnstone then by others down the line.
96. Mr Gillan stated he purchased his own bus and now does work occasionally for Bensley’s Bus and Coach service from time to time he refers work that he cannot do because of his injury to them.
97. Mr Gillan stated that a comparison with the work performed by Bensley’s particular Mr Radcliffe, was that Mr Radcliffe does a lot of long-distance driving, as well as local work.
98. The plaintiff stated that in accepting variances from year to year that in 2014 Mr Radcliffe had earned $91,840 gross, with Mr Johnstone who was fourth on the list earning $90,530 gross.
99. I am not satisfied that the income earned by both Mr Radcliffe and Mr Johnston[e] in 2014 is able to be effectively used to demonstrate lost income by Mr Gillan. The document is too vague in relation to the distribution of income between for instance the top 10 drivers. Three of whom earn $90,000 with everyone else earning considerably less. There is no account of how much income would drop with an added driver.
100. I accept Mr Bensley’s evidence that it [sic]Mr Gillan was employed with him today he would be earning approximately the same amount of money as both Radcliffe and Johnstone subject to their availability.
101. However, had Mr Gillan been employed they may have all earned considerably less, I accept the defence proposition that cannot be the basis for determining a loss of income for Mr Gillan. It neither does so reasonably, fairly or in way that is open to an appropriate calculation to determine the comparable wage loss. I acknowledge Mr Bensley indicating the same there is a lack of underpinning financial information form [sic] me to form a concluded view.
...
109. In considering then the claim for past economic loss I’m satisfied that the injury occurred on 26 January 2011 and that Mr Gillan did not return to work until 31 May 2011. I am satisfied based on the evidence of Dr Griffith that this was a serious and sniff in [sic] injury requiring three months to hear [sic] accordingly that would take Mr Griffith [sic] all or will out of the workplace until at least 1 April 2011. Factoring his turn [sic] in the end of May 2011 satisfied he should be awarded eight weeks loss of pay as a result of the extended healing from the election to treat non-surgically is [sic] injury and infection in his heel.
110. Taking into account the 3 month recovery period, the loss of income of eight weeks from 1 April 2011 until 31 May at $990 a week it was an amount of $7920 nett is appropriate award.
111. There is no calculation provided to me for the income that Mr Gillan received for the financial year ending 30 June 2011 there would incorporate his earnings up until date of injury and the amount that I have awarded for the eight weeks of his injury continued until 31 May until he could return back to work.
112. Mr Gillan earned in the financial year ending 30 June 2012 the amount of $51,613 nett. What that is in gross figures is $74,774 gross set out in Mr Gillan’s tax return.
113. I am not able to ascertain any real financial loss for the financial year ending 2012 and I make no award of damages for that period further I’m unable the evidence before me to make any real sense of loss of income for the subsequent years.
114. In May 2013 Mr Gillan reports a loss of income because the inability to drive long distances and only being given driving duties consisting of short distance local Canberra work on a casual basis.
115. For reasons expressed at the hearing of this matter indicated that the 2014 financial return provided for two other drivers did not seem to make any relevant comparable measure of loss of income over the relevant period that there were too many vagaries to the determination of that figure which had not been made clear in the evidence.
116. Accordingly, I am not satisfied that financial losses have been established for the year ending 30 June 2013 other than recognising that there was a diminution in the earning capacity of Mr Gillan which did in fact force him to leave his employer, notwithstanding that he embarked on a process of creating his own business Horizon Coach Charter.
117. I am satisfied a nominal amount should be awarded, having regard to nett income received the previous year being $51,613 and the difference in comparison to the 2013 income as an appropriate award.
118. That the nett calculation in that regard is an amount of $20,000. I note that this is not an exact science giving a total for past economic loss at $27,920.
In effect, his Honour noted the evidence of the earnings of those other drivers employed by Bensley’s who had similar seniority to Mr Gillan for work allocation purposes, but declined to accept that evidence as providing any basis for calculating what Mr Gillan had lost during the relevant years, saying, for instance, at [115], that:
the 2014 financial return provided for two other drivers did not seem to make any relevant comparable measure of loss of income over the relevant period …
Appeal grounds
The relevant grounds of the cross-appeal were as follows:
d. His Honour erred in failing to correctly calculate the amount of the plaintiff's past economic loss;
e. His Honour erred in concluding that the amount of the plaintiff's economic loss was not demonstrated by the evidence when there was uncontradicted and unchallenged evidence of the income that the plaintiff would have earned but for his injury;
f. His Honour erred in wrongly inferring that, if the plaintiff would have remained in his previous employment, there would be a drop in the plaintiff‘s income below that which comparable employees were receiving because, as His Honour wrongly concluded, the availability of the plaintiff to the employer would have reduced the income paid to comparable employees and the plaintiff when no such matter was put to the employer and where the employer's unchallenged evidence was to the contrary;
g. His Honour erred in concluding that the evidence given by the plaintiff’s former employer and the documents produced by him did not demonstrate any relevant comparable measure of loss of income;
I am satisfied that the Magistrate fell into error in calculating Mr Gillan’s past economic loss. Three comments can be made about his Honour’s approach to past economic loss.
First, the information about the comparable earnings before and after tax of Mr Gillan and his two former colleagues that was submitted to me on appeal was set out in a table, which clearly showed the relevant income and tax figures, for each of Mr Gillan, Mr Radcliffe and Mr Johnstone, and for each of the 2012, 2013 and 2014 financial years, including:
(a)the average nett income for Mr Gillan’s two colleagues; and
(b)the difference, for each year, between that average nett income and Mr Gillan’s actual nett income.
The table accordingly permitted an easy comparison of the various figures, and the final column showed Mr Gillan’s claim for each year, and the total of those claims, being the amount claimed by Mr Gillan for past economic loss.
Most of that information was also apparently available to his Honour, in that it was set out in a document filed on behalf of Mr Gillan at the end of the hearing headed “Amended Plaintiff’s Claim for Past and Future Economic Loss”, but without the clarity provided by a table. Among other things, the Magistrates Court document obscured, rather than illuminated, the fact that the total claim for past economic loss represented the sum of the differences, for each relevant year, between Mr Gillan’s nett income and the average of his two colleagues’ nett incomes.
I do not suggest that the relative obscurity of Mr Gillan’s document entirely explains his Honour’s odd and somewhat disorganised comments at [112] – [118]; however, it may be that his Honour would have found it easier to come to grips with the claim for past economic loss if it had been set out in the relatively clear way in which it was put before me.
Secondly, his Honour’s general approach to Mr Gillan’s claim was erroneous to the extent that he compared Mr Gillan’s income in 2012 with his income in the previous year, the year of his accident, and concluded that he was “not able to ascertain any real financial loss for the financial year ending 2012” (at [113]), apparently because he had been given no consolidated figures for the 2011 financial year (at [111]). However, in seeking to establish Mr Gillan’s economic loss, in circumstances where his income from employment did not involve a fixed wage but varied having regard, at least, to the work available to his employer, his Honour should have compared Mr Gillan’s 2012 earnings not with what he had earned in the previous year (which was incidentally the year in which his accident had left him unable to work for several months, at least some of that inability being non-compensable) but with what he could expect to have earned in 2012 had he not suffered the disability caused by TCH’s breach of duty.
Finally, it seems that, instead of proceeding to assess the economic loss in 2012 and subsequent years by reference to what Mr Gillan could have expected to earn but for the breach of duty and the resulting disability, his Honour was distracted by the proposition that the income of the two “comparable” drivers would have dropped with “an added driver”. As his Honour sought to explain at [99]–[101] in the judgment, “had Mr Gillan been employed they may all have earned considerably less”.
This argument seems to have emerged after counsel for Mr Gillan clarified that the evidence about the 2014 income of Mr Gillan’s two colleagues was intended not as evidence of what Mr Gillan had previously earned but as evidence of what he would have been earning if he had still been working for Bensley’s. His Honour reacted to this by suggesting that if Mr Gillan had still been working there, then his two colleagues might not have earned as much as they had because Mr Gillan would have been allocated some of the work that was in fact allocated to them.
One problem with his Honour’s approach is that the hypothetical proposition with which the actual position was to be compared is not Mr Gillan’s addition, or return, to an exclusive pool of drivers sharing a limited volume of work, but his continuing membership of an existing pool of drivers (the three “permanents”) in which he had considerable seniority and therefore an expectation of being allocated work at the same rate as, at least, the two drivers immediately below him in seniority.
The proposition that his two colleagues would have earned less in 2014 if Mr Gillan had still been employed and available for all kinds of work relied on an assumption that there was a limited pool of work available to the “permanents”, and that the income of the other two drivers in 2014 reflected that, in the absence of Mr Gillan, each of the other two had been allocated a larger share than previously of that limited pool. There was no evidence to the effect that the work available to the permanents was limited in any way. It may be that one or more of the drivers with less seniority than the “permanents” would have been allocated less work if Mr Gillan had remained available, but that is a different matter.
Mr Bensley’s evidence, about which he was not cross-examined, that the “permanents”, being his three senior drivers including Mr Gillan, all earned “within a few thousand dollars of one another”, does not directly address the question whether if Mr Gillan had remained available for all work, those three amounts would all have been in the order of the roughly $90,000 amounts in fact earned by Mr Gillan’s two colleagues in 2014. However, it was not put to Mr Bensley at any point that there was any distinction between the kind of work that could be allocated to the permanents and that which could or would be allocated to the other, less senior, drivers, or that since Mr Gillan’s injury, or his resignation from Bensley’s, his two colleagues were earning higher incomes because they now had better access to a limited pool of work that had previously been allocated among three drivers, being them and Mr Gillan.
Rather, the evidence from Mr Bensley was that his three permanents earned similar amounts, and that in the 2014 financial year his two uninjured drivers earned in the order of $90,000 each. There was other evidence that in 2012 the income of the two drivers was lower, but not disproportionately lower (nearly $90,000 for one driver and nearly $85,000 for the other) and that in 2013 the two had earned respectively just over $83,000 and just over $84,000. That is, there was nothing about the 2014 amounts that suggested that, instead of normal earnings for the two drivers, they reflected unusually higher earnings resulting from the fact that the relevant work was being shared between the two of them rather than between three of them as in the past.
Thus, there was evidence allowing his Honour to reach general conclusions on the balance of probabilities about Mr Gillan’s economic loss since his accident (although certainly the evidence would have been more useful if anyone had pursued the question whether the 2014 earnings of his two colleagues reflected a higher workload due to Mr Gillan’s absence, increased demand for Bensley’s services, or a market in which Bensley’s could charge higher prices). However, in the absence of any contrary evidence about the income of comparable employees, I consider that his Honour fell into error in rejecting, on speculative grounds, the evidence that was before him as inadequate for anything more than a finding of a “nominal” loss (and in concluding that even that nominal loss was suffered in only one of the relevant years).
The claim made in the Magistrates Court that the amount for past economic loss should have been $103,729 was revised during the hearing, by removing the effect of concessional deductions that had reduced Mr Gillan’s taxable income in the 2012, 2013 and 2014 years. The revised claim (which, although not accepted by counsel for the ACT as showing a proper basis for the assessment of damages, was agreed by him to contain correct calculations) was for $103,035, made up as shown in the following table provided on appeal (re-formatted in minor respects for inclusion in this judgment):
| Radcliffe | Johnstone | Average of Radcliffe & Johnstone | Gillan | Difference between Radcliffe/ Johnstone & Gillan | |
| 2012 Financial year | Gross $89,591 Less tax $22,365 (AB412) $67,226 | Gross $84,292 Less tax $20,324 (AB412) $63,698 | $65,462 | Gross $74,774 Less tax $17,682 (AB412) $57,092 | $8,370 |
| 2013 | Gross $83,130 Less tax $20,540 (AB412) $62,590 | Gross $84.300 Less tax $20,754 (AB412) $63,546 | $63,068 | Gross $47,850 Less tax $ 9,495 (AB412) $38,355 | $24,713 |
| 2014 | Gross $91,840 Less tax $22,940 (AB412) $68,900 | Gross $90,530 Less tax $22,730 (AB412) $67,800 | $68,350 | Gross $20,765 Less tax $ 3,652 (AB412) $18,715 | $51,237 |
| 2015 (up to date of trial) | For the period 30/6/14 to 24/11/14 being 19 weeks at $985 per week | $18,715 | |||
| Total | $103,035 |
Counsel for the ACT made no oral submissions in response to the submissions about past economic loss except to point to the evidence given by Mr Gillan before the Magistrate, during which his Honour raised the issue that is discussed at [117]–[123] above. In written submissions, counsel said:
The learned Magistrate’s awards for past and future economic loss were based on a proper assessment of the evidence. In so far as the evidence required the learned Magistrate to make a discretionary judgment that discretion is not to be interfered with in the absence of demonstrated error.
Having regard to the evidence set out at [105] above, and the information organised in the table above, I consider that his Honour’s reasons for rejecting the calculation method for past economic loss advanced in the Magistrates Court reflect error on his part, and that his Honour’s award for past economic loss in the 2012, 2013 and 2014 financial years should be replaced with a total award of $103,035.
Future economic loss
The Magistrate’s approach
In the Magistrates Court, Mr Gillan gave uncontradicted evidence that he estimated that by 2018 (that is, five years from 2013), “with no major setbacks and operating relatively constantly”, his financial position would have returned to a position equivalent to his position before the accident (and, by implication, that until then he would remain at some disadvantage). In cross-examination he said:
Now, you have said in answer to a question from Mr Segal that you thought it would take, doing the best you can, allowing about five years to get back to where you would have been?---Basically where I am at the moment, yes, correct.
And I take it that within that five year period there would be incremental improvement? ---You would like to hope so.
In making your estimate that’s what you took into account?--- Yes, that’s correct.[ab115]
Despite this, his Honour concluded that the award for future economic loss should be “a nominal amount”, and assessed that award at $25,000. Among his Honour’s explanations for this nominal award, he said at [123]:
Mr Gillan gave an assessment of 5 years [from May 2013 when he left Bensley’s and bought his own coach] to reach the comparable pay levels now being received by employees at Bensley’s. I am not satisfied that I have sufficient financial information before me that would allow me to make a reasonable assessment as to that calculation on that basis.
It seems that his Honour’s broad-brush approach to future economic loss was at least in part a result of his confused approach to past economic loss and in particular his failure to recognise the significance of the evidence of the amounts earned, since Mr Gillan’s accident, by comparable employees of Bensley’s. That is, if his Honour had identified past economic loss on the proper basis, and reached a figure in the order of $100,000 as claimed by Mr Gillan, he would presumably have realised also the significance of that figure in assessing future economic loss.
Appeal ground
The relevant appeal ground was:
h. His Honour erred in failing to give any weight to the plaintiff's uncontradicted and unchallenged evidence that it would take approximately another five years before his new business would achieve the same level of income that he would have been earning had he remained in the employment of his former employer;
Counsel for Mr Gillan in written submissions on appeal offered two alternative methods of calculating future economic loss.
First, counsel noted:
(a)that by the date of trial, Mr Gillan’s nett loss of income per week was $827.42;
(b)that in November 2014, at the end of the hearing, this left a period of three and a half years for which future loss needed to be accounted for;
(c)that the future loss would diminish over time, and disappear by the end of the five years (May 2018);
(d)that “if one were to apply the 3% tables for [the period of three and a half years], the discounted loss would be approximately $134,800”; and
(e)that because the future loss would diminish over time, “the appropriate approach would be to divide that figure in half [and this] would give an allowance for future economic loss in the amount of $67,400”.
By reference to these calculations, counsel said that the $25,000 buffer awarded by his Honour on the basis that he did not have sufficient financial information to make a proper calculation was erroneous.
Alternatively, counsel suggested, a buffer could be provided for lost earning capacity until Mr Gillan’s intended retirement age of 65 years, being a period of 13 years. A buffer calculated at $5,000 per year to recognise Mr Gillan’s ongoing loss of earnings due to his inability to undertake long bus trips would total $65,000.
Counsel for the ACT made only the written submission quoted at [125] above in response to those written submissions about future economic loss, and made no specific oral submissions.
Having regard to the conclusions I have reached about his Honour’s approach to past economic loss, and to Mr Gillan’s unchallenged evidence about how long he expected it would take him to recover to his previous financial position, I accept that the $25,000 buffer awarded by his Honour is inadequate. Noting counsel’s submissions as summarised at [131] to [134], I would allow a buffer of $65,000.
General damages
The Magistrate’s approach
His Honour awarded Mr Gillan $20,000 as general damages, saying only (at [124] of his judgment):
The assessment of general damages in this case is difficult. The video evidence provided by the defendant shows that Mr Gillan is able to do a full range of movement albeit, on his evidence with discomfort. There is no doubt he suffered a period of pain and discomfort because of the procedure afforded to him by the defendant and that on a diminishing basis is likely to continue into the future. Taking all the considerations before me into account I assess the general damages in the amount of $20,000.
Appeal grounds
The relevant appeal grounds were:
a. His Honour erred when undertaking the assessment of damages in wrongly concluding that the surveillance video, being Exhibit RI, demonstrated that the plaintiff had a full range of movement in his right leg;
b. His Honour erred in failing to take into account the uncontradicted evidence that the plaintiff's pain and discomfort would continue undiminished into the future;
c. His Honour erred in failing to take into account or give sufficient weight to the plaintiff's reduced amenity of life by reason of his permanent restriction of movement and ongoing pain and discomfort;
Cross-appellant’s submissions
On appeal, counsel noted again his Honour’s finding that Mr Gillan was a truthful witness, and emphasised that Mr Gillan did not claim substantial general damages, and did not contend that he suffered gross discomfort or pain, or that he could no longer do certain things such as squatting. Rather, counsel said, there are actions that still cause Mr Gillan some discomfort or pain, that his condition has now stabilised, and that the discomfort and pain are not going to further reduce, or disappear, over time. Counsel also pointed out that his Honour did not mention Mr Gillan’s “loss of amenities of life”, a component of non-economic loss under s 99(4) of the Wrongs Act. For all those reasons, counsel says, the $20,000 general damages award is manifestly inadequate.
Counsel for Mr Gillan pointed to the following relevant evidence:
(a)the video evidence showing Mr Gillan replacing a blown fuse in his daughter’s car;
(b)Mr Gillan’s evidence that “sitting for … long periods of time … is increasingly painful”, that “it’s like having one leg there and a brick on the other. It always feels heavy”, and that he avoids stairs where he can;
(c)evidence of what Mr Gillan had told the various doctors: these reports include that he often suffers cramps in his right calf from sitting for extended periods; that there is pain with walking; that driving coaches in cities sometimes causes soreness in his lower calf, extending into the medial thigh;
(d)the report of Dr Le Leu, an occupational physician, that there may be “accelerated degeneration of the right ankle due to laxity of the Achilles tendon”.
In cross-examination, Mr Gillan gave the following evidence about the video:
Do you agree with me that for a lot of the time you were shown, particularly near the engine bay, your weight was on your right foot, not the left foot?---I did note a couple of times it moved, and that’s what I’ve got to do, I move, but yes, I don’t go walking around and sort of, you know, if you like playing the cripple. If there’s something to do, and you’ve seen it there, and I’ve done it, yes. It doesn’t mean there was not pain associated with it, but certainly the first part of it, where my leg is outstretched, that’s the most comfortable position for me, and I can stand up; I’ve never said that I can’t stand up. It’s all there anyway.
I have viewed the video evidence, in court and subsequently. It shows Mr Gillan undertaking a range of actions, but in my view contains nothing inconsistent with Mr Gillan’s evidence that he can undertake those actions but with some discomfort, that he needs to move around to take the weight off his leg, and that the most comfortable position for him is to sit with his right leg stretched out.
Finally, counsel for Mr Gillan referred me to ss 99(1) and (2) of the Wrongs Act, which are as follows:
(1)In deciding damages for non-economic loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceeding.
(2)For that purpose, the parties to the proceeding or their lawyers may bring the court’s attention to awards of damages for non-economic loss in those earlier decisions.
Counsel referred to two earlier decisions of the ACT Supreme Court; I have read both decisions, and adopt counsel’s summary of them, as follows:
In Anthony James Grinsted v Tony Madden Refrigerated Transport Pty Ltd [2001] ACTSC 37 the plaintiff suffered a soft tissue injury to his ankle. He remained able to work and engage in extensive travel and related activities at the date of the trial. Though he was able to walk reasonable distances, the degree to which he could do so and his ability to ambulate on rough ground were restricted (at [35]). He was awarded an amount of $45,000 on account of non-economic loss.
In Warrener v Australian Capital Territory [2003] ACTSC 7, a 62 year-old plaintiff (14 years older than Mr Gillan at the date of injury) suffered an ankle injury, albeit of a more serious nature than Mr Gillan’s, and was awarded $50,000 for general damages.
I note that the $50,000 award identified in Warrener v Australian Capital Territory was never paid because, both in the ACT Supreme Court and in the Court of Appeal, the defendant was found not to be liable for the plaintiff’s injury. However, in the plaintiff’s unsuccessful appeal to the Court of Appeal, neither party criticised the Master’s assessment of damages.
Counsel for Mr Gillan said that a comparison with these awards (made in 2001 and 2003), and taking account of inflation since then, suggests an appropriate award for Mr Gillan’s general damages would be $40,000.
Cross-respondent’s submissions
Counsel for the ACT referred me to Mr Gillan’s evidence that he can walk as much as he wants to, and to Dr Griffith’s assessment that Mr Gillan’s condition has stabilised, that his level of discomfort in driving a bus for long periods “causes him to abstain from long distance coach tours”, and that the restriction on his ability to lead a normal life “has largely resolved, except for his frustration and ongoing symptoms”.
Counsel for the ACT submitted that the evidence does not establish that Mr Gillan will have pain and discomfort, continuing undiminished, or pain on a daily basis during his working life and possibly beyond, or that he has suffered any loss of amenity of life. In particular counsel said that Dr Griffith’s evidence about Mr Gillan’s loss of amenity of life should be disregarded because he is not qualified to provide a psychiatric assessment.
Dr Griffith’s report said:
Post-injury he exhibited typical manifestations of an acute adjustment disorder with depression and anxiety, irascibility and social withdrawal, now largely resolved as his symptoms have become less intrusive, but he is still frustrated that he is unable to resume a normal lifestyle such as that which he enjoyed previously.
The ACT did not apparently object to this part of the report going into evidence, and nor did counsel cross-examine Dr Griffith about his expertise when he gave oral evidence. I imagine that many doctors dealing with particular kinds of medical problems, and perhaps with disabling injuries in particular, develop some interest and expertise in assessing the mental and emotional effect of such injuries on their patients, if only because such effects may be relevant to the doctor’s capacity to provide effective treatment of the injury. I do not see any need at this stage to reject Dr Griffith’s report of Mr Gillan’s past depression and anxiety, or his continuing frustration about the ongoing consequences of his condition, although equally I do not consider that the doctor’s report has great significance in the assessment of general damages in this case.
Apart from criticising Dr Griffith, counsel for the ACT submitted only that there was no error in his Honour’s evaluation of or reasoning in relation to the evidence relevant to general damages.
I agree that no specific error in his Honour’s approach can be identified, with the possible exception of his failure to refer to loss of amenities as a relevant consideration. However, having regard to Mr Gillan’s evidence referred to at [140] above, and to the two decisions drawn to my attention on his behalf, I am satisfied that his Honour’s general damages award was manifestly inadequate, and that an award of $40,000 would be more appropriate.
Other appeal grounds
Two other grounds of the cross-appeal were specified in the notice of cross-appeal:
i. His Honour erred in failing to make any allowance for interest on past economic loss; and
j. His Honour erred in calculating lost superannuation by reason of the errors made in calculating past and future economic loss and failing to apply the correct percentage of income, being 11% of the nett amount allowed.
Neither of these errors was the subject of submissions on appeal, except that submissions on behalf of Mr Gillan noted that lost superannuation would need to be adjusted upwards if he succeeded in his arguments about past or future economic loss. In fact counsel for the ACT had already identified before the Magistrate that 11% was the proper figure to use in calculating lost superannuation.
If there is any remaining dispute about the appropriate method for calculating interest or lost superannuation, this will presumably emerge when the parties prepare draft orders to give effect to my decision.
Conclusions
The cross-appeal will be upheld, and the Magistrate’s original awards for past and future economic loss, and for general damages, will be replaced with the following new awards:
Head of damage Original award
$New award
$Past economic loss (2011) 7,920 7,920 Past economic loss (2012-2014) 20,000 103,035 Future economic loss 25,000 65,000 General damages 20,000 40,000
Orders
The orders are as follows:
(a)The ACT’s appeal is dismissed.
(b)Mr Gillan’s cross-appeal is upheld to the extent necessary to give effect to the new awards set out at [156] above, and to make any necessary consequential changes to the other awards made by the Magistrate.
(c)By 24 August 2018, the parties are to prepare draft orders to give effect to my decision, and:
(i) the parties are to file an agreed draft order; or
(ii) if agreement cannot be reached, each party is to file and serve a draft order.
Unless either of the parties wishes to be heard on costs, in which case further orders will be made, there will also be an order that the ACT pay Mr Gillan’s costs of the appeal and the cross-appeal.
| I certify that the preceding one hundred and fifty-eight [158] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: |
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