Bailey v Rayner

[1987] TASSC 128

B58/1987
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Bailey v Rayner [1987] TASSC 128; B58/1987

PARTIES:  BAILEY, Neville
  v
  RAYNER, R J

FILE NO/S:  3213/1981
DELIVERED ON:  22 December 1987
JUDGMENT OF:  Cox J

Judgment Number:  B58/1987
Number of paragraphs:  22

Serial No B58/1987
List "B"
File No 3213/1987

NEVILLE BAILEY v R J RAYNER & ORS

REASONS FOR JUDGMENT  COX J

22 December 1987

1. This is an assessment of damages for personal injuries sustained by the plaintiff as the result of medical negligence. On the 8 June 1980 the plaintiff who was born on the 9 February 1950 was bitten on the toe by a leech while gathering firewood near Nugent. He suffered an immediate allergic reaction and, in a semi comatose state, was driven by a friend to the surgery of his family doctor at Sorell where he resides. The members of that practice had engaged the services of a locum tenens and the latter, while giving him injections of phenergan and adrenalin in the buttocks caused severe damage to the sciatic nerve. Conduction studies later undertaken by Dr Robert Hjorth in Melbourne showed minimal damage to the tibial portion of the nerve, but the perineal or lateral popliteal portion showed severe damage with complete wallerian degeneration and complete denervation of all appropriate muscle groups supplied by this division.

1. He was taken the same day to the Royal Hobart Hospital intensive care unit. When he regained consciousness and stood up, he noticed that his right leg was dead and numb. He was allowed home and the following day returned to work, but found that his foot had "dropped". After some unsuccessful physiotherapy he was sent back to the Royal Hobart Hospital for approximately eight days. The sensation of numbness in his leg increased and he developed a painful burning sensation in the sole of his foot. His leg was put in a plaster cast, but when he tried to walk on crutches he fainted. The cast was replaced with a plastic splint. As the burning sensation in the foot continued to cause pain, he was referred to neurosurgeon, Dr Cull, who first saw him on the 2 July 1980. At the initial consultation Dr Cull found that he had an area of blunted sensation involving the whole of the calf from just below the knee. There was an area of absent appreciation of pin prick and light touch sensation extending from the lateral maleolous across the dorsum of the ankle into the dorsum of the foot, stopping short of the toes. Sensation in the sole of the foot was virtually intact and stimulation around this area produced pain, particularly around the region of the little toe. His main complaint, apart from weakness and numbness, was severe pain in the sole of the foot which he described as a burning type pain made worse by knee extension and touch to the area. Dr Cull initially treated him with several lumbar epidural injections of local anaesthetic and a right para–vertebral lumbar sympathetic block with marcaine. This gave him some relief for the pain in the foot. Dr Cull then carried out a right lumbar sympathectomy with rather inconclusive results. The plaintiff felt that it had not improved his pain, but after a week or so he was able to wear a sock and weight bear on the foot which he had been unable to do previously. He was transferred to the Royal Hobart Hospital under the care of Dr Hjorth for further management following this operation. There examination of the sensation of the right leg revealed a decreased, almost lost sensation to light touch, pin prick and temperature over the lateral border of the foot, extending up to the lateral aspect of the calf, across the dorsum of the foot. Over the sole of the foot he had an area of hyperaesthesia to light touch and pin prick. The remainder of the neurological examination was normal. A diagnosis of almost complete lateral popliteal nerve palsy and slight posterior tibial nerve palsy was made. He was referred to Dr David Brownbill, neurosurgeon of the Royal Melbourne Hospital, who felt that surgery had little to offer. A metal splint was attached to the plaintiff's shoe and physiotherapy was commenced. Following this there was a dramatic decline in his symptomatology and towards the end of his stay there was virtually no functional impairment caused by pain which was noted in his ward behaviour. He was discharged on the 9 August 1980.

1. After his return from Melbourne, he was seen on several further occasions by Dr Cull, who arranged for rehabilitation sessions at the Douglas Parker Rehabilitation Unit and for the fitting of a caliper at the amputee unit at the Repatriation General Hospital, Hobart. Prior to reviewing the plaintiff in June 1982, Dr Cull last saw the plaintiff on the 24 September 1980. Over the following 18 months or so there was little change in the plaintiff's condition and he took no medication. He continued to suffer pain, numbness and weakness in his leg, the burning sensation although improved since his admission to the Royal Melbourne Hospital being constantly present. He continues to suffer the same level of burning pain in the foot. By June 1982 he was complaining of pain extending to the hip down to the knee. He found it difficult to describe but said it did not throb, it was just a pain that was there all the time. From being a nagging pain, it became one which "really started to hurt", so he returned to Dr Cull who referred him to Dr Jackson who has been primarily responsible for his management ever since. On the 24 June 1982 Dr Cull reviewed the plaintiff and reported as follows:–

"I last saw Mr Bailey on 24th September, 1980. He said that since I last saw him he has been back at work at the Hydro Electric Commission reading meters and has had no time off, apart from visits to doctors for check–ups.

He said that the pain, numbness and weakness in his leg have remained much the same as they were when he first went back to work.

He is currently complaining of the following

1         Pain in the right buttock, particularly when he lies down at night.

2His right foot aches all the time, particularly following a change in the weather.

3         His foot and lateral calf are numb and tingle.

4         He has no movement in his ankle or toes.

5         Cramps in his calf first thing in the morning.

He has not been taking any drugs as he said that all the analgesics he took did not help the pain or help him to sleep. He also commented that his toes swell by the end of the day. He has noticed that by tickling his right buttock, he can produce tingling right down into his foot and that this tingling will relieve the pain whilst he continues to tickle. Once he stops tickling the pain returns. The tickling also makes him feel nauseated.

EXAMINATION: He walked with a limp and was wearing a caliper. There was moderate wasting of the right thigh and marked wasting of the right calf. There were no gross changes in the skin of the foot or the leg, the peripheral skin circulation being normal. The temperature of the skin was also normal. Hair growth was reduced on the dorsum of the foot on the right.

There was fixed flexion deformity of the right ankle, producing a foot drop and passive movements of the toes were also reduced, indicating contractures of these joints.

The only movement in the ankle or toes was a flicker of dorsiflexion of all toes. This would represent grade 15 function.

He had reduced appreciation of pin prick, light touch, pain and temperature in the lateral aspect of the calf extending across to the dorsum of the foot and involving the dorsum of the toes. The sole of the foot was hyperaesthetic (touch and pin prick produced an exaggerated appreciation of these sensations). He localised his pain to the dorsum of the foot and the sole of the foot.

There was also some weakness of hip flexion, knee extension and, to a lesser extent, knee flexion.

He was tender over the sciatic nerve in the right gluteal region and this produced tingling and increased the pain in his leg. I could not palpate any lump in this region.

OPINION: There has been no improvement in the range of movement or power of ankle flexion, extension, eversion, inversion, or toe flexion or extension.

As it is now two years from the time of the original injury, I do not think that there will be any further improvement in the neurological function of the foot.

The pain which he describes shortly after the time of the injury has persisted. It may mean the development of a neuroma or scar tissue formation around and within the fascicles of the nerve.

My experience with nerve injuries following injection in the region of the nerve is limited. The literature suggests that most of these injuries recover spontaneously but recovery is incomplete. I can find no references in the literature to the treatment of pain following a nerve lesion in this way by operation on the nerve itself.

However the experience with neuroma formation due to direct mechanical injury on a nerve is not encouraging. Therefore I think it is unlikely that exploration and excision of any neuroma found around the nerve would help his pain.

It would certainly not help his degree of weakness and sensory loss.

I think that simpler measures directed at pain relief would be more appropriate in Mr Bailey's case. I will arrange for him to have a course of cutaneous nerve stimulation over the sciatic nerve at the site of the injury.

It is also possible that an epidural implant may help his pain. None of these measures would help the weakness or sensory loss.

In my opinion, the sensory loss and weakness will be permanent and no therapeutic measures are likely to improve them."

The referral to Dr Jackson was to see if the plaintiff was a suitable candidate for insertion of a posterior column stimulator, but prior to attempting this procedure a low lumbar sympathetic block was carried out on the 30 July 1982. This gave some relief for a few weeks only.

1. The stimulator is a device which offers pain relief only and does not improve the function or feeling in the leg. It is usual for a patient to spend a week in hospital and to have two visits to the operating theatre. On the first visit the electrode is placed in the epidural space of the spine with the patient awake. It is necessary for the patient to report where he experiences tingling during trial stimulation. The aim is to place the electrode over the spinal cord to produce tingling in the same area as the patient's pain. The patient is then returned to the ward with the electrode wires coming through the skin and a period of trial stimulation is carried out. If the patient feels the pain relief is worthwhile, then the electrode wire is attached to a receiver implanted under the skin, usually just below the breast on the left side. This involves a general anaesthetic. Outside the body, a further transmitting device is worn with leads connecting to the receiver in the chest. It is powered by batteries and, if effective, the electrical stimulation has the effect of significantly reducing pain. The initial operation is a lengthy one requiring the patient to be conscious to report on the effects of the insertion of the electrodes in the epidural space and precise positioning is essential.

1. The plaintiff has had an unfortunate history so far as this procedure is concerned. Dr Jackson made several attempts to successfully complete the two phase operations and then referred the plaintiff to Dr Giles in Perth, Western Australia. Dr Giles is recognised as the pioneer and master of this relatively new technique in Australia. He reported that the operation was carried out on the 24 February 1983 with the second stage being completed on the 3 March 1983. A good result was obtained and no complications ensued. A lengthy sojourn in Western Australia was necessitated and the plaintiff was required to avail himself of 53 days of long service leave. The implant significantly improved the pain in his hip and leg, but did not relieve the burning sensation of the foot. The implant continued to give relief for a further 18 months or so. In the meantime the plaintiff had five lumbar sympathetic blocks, a high lumbar sympathectomy and an intercostal nerve block in an effort to help the plaintiff to cope with the burning sensation in the foot. They gave relief only for a week or so at a time, notwithstanding referrals to leading neurosurgeons in Melbourne.

1. By the end of July 1984 it was found that the stimulator had ceased to function due to a fractured lead. The electrode was removed from the spine and successfully replaced with another lead. The following February the lead was found to have again fractured and the two phased operation was repeated, because not only the lead but the receiver had to be replaced due to advanced technology which made the replacement lead incompatible with the other receiver. In November 1985 he had a further nerve root block for chest pains associated with the implant, a lumbar sympathetic block in March 1986 for the causalgic pain in the foot and in April 1986 an intravenous guanethidine, which is analagous to a chemical sympathectomy, for a like purpose, but with little result.

1. In September 1986 the implanted lead again fractured and the stimulator system broke down once more. Yet another two phased operation was undertaken in September/October 1986. But, on the second occasion, the attempt to reposition the lead was unsuccessful and in February 1986 the entire system was removed and a new one inserted in a two phase operation in March 1987. Though initially successful the system again broke down and a new lead was substituted for the fractured lead in July 1987. The stimulation pattern was not successful and in August 1987 a further attempt was made to programme it satisfactorily. Again there was a lead failure and at the time of the trial in October 1987 the system had still not been rectified and the plaintiff was suffering the full effects of his hip and leg pains.

1. Dr Jackson is presently waiting on a more sophisticated system which he hopes will be more successful and anticipates that the plaintiff will require this type of treatment to be repeated every five years or so for the rest of his life.

1. The plaintiff is now nearly 38 years of age. He is married with two children, a son of 17 and a daughter of 14. He was brought up in Campania and attended the area school there to grade 9, leaving when he was 15 years old. He immediately got a job wood cutting and from 1967 to 1970 worked on a farm. He then worked in Hobart pressing apples for six months and in June 1970 commenced employment with the Hydro Electric Commission as a meter reader. Since leaving school to the present day he has never been unemployed. Prior to the injection he enjoyed good health and in addition to his regular job engaged in a number of other income producing or expense saving activities. During many of his annual holidays he worked for local farmers. He procured loads of wood from the bush, he cultivated a large vegetable garden, supplying much of his own family's needs and selling the surplus, and he regularly worked two hours per day on five days of the week at the Sorell Bakery commencing early in the morning before his normal day's work as a meter reader. He enjoyed fishing and hunting, played football in his younger days and attended as a spectator thereafter and had a regular social life revolving around the local football and RSL clubs.

1. His somewhat frenetic energy and preoccupation with earning extra money to pay household expenses was the source of some matrimonial disharmony, and not long before the injection his wife commenced proceedings in the Family Court because she felt he was too frequently away from home working and took too little interest in her and their children. As a result he agreed to curtail his extra work and some effort was made to re–arrange his activities to accommodate his family. He continued however to work at the bakery, stopping only when the injection disabled him from continuing. I find that but for the injection and its effects upon him he would have continued to have engaged in some extra activities although, because of his wife's attitude, not to the same extent. He is no longer able to cultivate the garden, or to do any of the other profitable activities he used to do. The bakery is now under different management and his earlier earnings were not disclosed to the Taxation Department. There is some substance in Mr Proctor's submission on behalf of the defendant that it is by no means certain that he would have remained in that job had it not been for the injection. However, I think he would have continued to do so for some time and that, if not from that source then from his garden, wood cutting and perhaps other forms of employment, he would have continued to acquire a benefit equal in value to the wages he would have received if he had continued to work ten hours per week for the bakery. I propose to allow for past and future economic loss on that basis in respect of the destruction of that potential.

1. Notwithstanding the causalgic pain in the foot, which continues unabated, and the pain he experiences in his hip and leg during the prolonged periods when the stimulator is not functioning, the plaintiff has managed to remain in his employment as a meter reader throughout the seven years since the injection. He has used up all his sick leave and most of his long service leave entitlement to date for treatment and hospitalisation. I accept his evidence that a large part of his annual recreation leave has been similarly utilised (apart from one period when he injured himself with an axe in an unrelated incident).

1. Since his engagement in 1970 he has been the sole meter reader for the Sorell district. The number of meters within that area has increased very substantially in that time, and since 1980 in particular, and officers senior to him called on the trial acknowledged that there was a strong case for getting additional assistance and that no one man could be expected to cover the area alone. The sort of work to be done includes moving from house to house in closely populated areas and travelling to relatively isolated places and reading meters on farms, at homesteads and other parts of the property where for example pumps are installed. The plaintiff has found considerable difficulty in doing the house to house readings in suburban areas. A lot of walking makes him tired and causes pain. There are times when the pain and fatigue have been so intense that he has "hidden" and put his feet up for hours. However, his supervisor has been sympathetic and understanding and has endeavoured to ease his workload by engaging him to do work normally done by linesmen, namely delivering disconnection orders to consumers who fail to pay their accounts, and taking special readings in the case of a change of consumer. These activities do not require the same amount of walking and about one half of his time is now spent on that work, with the linesmen helping out on readings in the closely populated areas.

1. The most hotly disputed issue in this claim has been whether or not the plaintiff is likely to become disabled from work with the Commission. Mr Mackay, on his behalf, submits that all indications are that he will not be able to continue enduring the pain and fatigue which economic circumstances have thus far forced him to submit to and that certain imminent changes in the manner of conducting the reading of meters will lead to his being laid off. A psychiatrist, Dr Burges–Watson, gave evidence that in his opinion the plaintiff had been showing signs and symptoms of a reactive depression, secondary to the pain and frustration due to his curtailed lifestyle and the stresses created by deterioration in his personal relationships. Any long term prognosis was dependent upon the control of his pain and Dr Burges–Watson anticipated that a resolution of the present claim would probably help him to adjust to the limitations he will have. While not requiring specific psychiatric treatment at the moment, the plaintiff will be likely, in the doctor's view, to present with depressive symptoms sufficiently severe to warrant treatment with anti–depressant medication. I think the disposition of this case and the security which an award of damages will give the plaintiff will have a marked effect upon his morale and I see no reason why, as he has survived the last seven years without developing a psychiatric illness, he should be likely to suffer significant psychiatric symptoms hereafter, especially if the stimulator can be effectively replaced to control a substantial part of his pain.

1. Dr Jackson was of the view that the plaintiff should not continue to work as a meter reader, because the level of physical activity was too demanding, and it imposed stresses which accounted for the breakdown of his stimulator equipment. Mr G. P. Duffy, neurosurgeon, however was of the view that "with reasonable recognition of his disabilities he would be able to continue in that employment" and that he ought to be able to engage in rural meter reading, service of disconnection orders and special readings, although constant house to house reading requiring him to travel for long periods of time on foot would be beyond him. Furthermore, Mr Duffy said he could see no reason why he could not do door to door calls by car and that frequent getting into and out of the car would not unduly exacerbate his condition or impose any threat to the internal leads and stimulator equipment. Clearly added activity can lead to added pain, but it is also important, as Mr Duffy recognised, and in his best interests that the plaintiff continue to be gainfully occupied. I prefer the opinion of Mr Duffy.

1. The Commission intends to shortly introduce a computerised meter reading instrument into which the readings will be entered by means of pressing a keyboard. This will require a few days' training of the operator and it will be possible to detect any significant time gap between the reading of meters, whereas to date his employer has not had the means of knowing whether the plaintiff is constantly on the move or has the breaks his pain sometimes forces upon him. It was submitted that the continued employment of linesmen to do meter reading would not be acceptable to the Commission in the interests of efficiency as they were trained to do more complex tasks and that the Commission would not wish to have to train more personnel in the use of the new equipment. It is abundantly clear from the evidence of the three officers from the Commission called by the plaintiff that the Commission is sympathetic to the plaintiff who is now an employee of 17 years' standing and that both his immediate superior and those in higher echelons of the organisation would be prepared to use all reasonable endeavours to keep him in employment if he could be usefully employed. Clearly he can be. The disconnection orders and special readings can be done by him. They do not require special skills and in fact his doing them relieves linesmen of that task. Further, the meter reading for the whole area is well beyond the capacities of one man, no matter how fit, and the plaintiff's time could be usefully filled up by doing the rural readings. There seems no difficulty in training other employees in the use of the new instrument and obviously someone else would have to be trained to use it while the plaintiff is on ordinary annual leave. A car is provided to him and, although he may not have used it on a house to house basis in closely populated areas, there is no hindrance from the Commission in his doing so. His foot drop creates a degree of hazard to his driving which so far has not resulted in any accident, but I am satisfied on the evidence that this risk could be minimised by the provision of an automatic vehicle and that the provision of specialised equipment to disabled employees would be regarded favourably by the Commission were the need demonstrated to it.

1. Having regard to the whole of the evidence I am of the view that there is little likelihood that the Commission would put any pressure on the plaintiff to perform at any higher level of physical effort than he has already shown himself capable of achieving. But on the other hand the Commission would be likely to accommodate him by varying his responsibilities from time to time to accord with his capabilities in the future and that, although the plaintiff will not be free from pain and will suffer a greater level of fatigue than one without his injury, he will be able to maintain to the end of his working life the ability to earn the same income from his position as a meter reader as he would had he not been injured. Save in respect of his other activities, which I have already canvassed, his injuries are not likely to be productive of any economic loss.

1. The plaintiff nonetheless has been gravely damaged by the defendants' negligence and has undergone a dramatic change in lifestyle. His physical activities are reduced, he tires easily, he is in constant pain, he suffers from sleeplessness, shortness of temper and he has lost the ability to enjoy, at least in the same way, many of his former pleasures. He may still go out to a club or a cabaret as frequently as before, but his ability to enjoy the outing is reduced. The same reduction of enjoyment is experienced by him in respect of his sporting interests. There has also been a very marked decline in his sexual relationship with his wife. He has lost the benefit of many weeks of recreational and long service leave, has endured many highly uncomfortable and distressing operative procedures and faces the unenviable prospect of many more. He will continue to suffer pain for the rest of his life. The extent of it will vary with the success or otherwise of his spinal stimulator. For past and future pain and suffering and the loss of amenities and enjoyment of life I award $50,000.

1. Although I find he will continue to be able to earn his living as a meter reader, he should be compensated for his loss of supplementary income which I have said I propose to base as a convenient yard stick on what he would have earned in the bakery. So far as the past is concerned, he was receiving $2.50 per hour in 1980 and thus losing $25 per week. At present the net wage is about $8.00 per hour. Obviously there have been periodic increases in the seven and a half year period. I shall allow $2.50 per hour for three years, $5.00 per hour for the next three years and $8.00 per hour for the last 18 months. On the basis of ten hours per week for a 48 week year I calculate his loss to date at $16,560. As to the future the present value of a weekly loss of $80 to age 65 is $74,400. Allowing for further vicissitudes I award $70,000 under this head.

1. There was a lengthy list of special damages in respect of which the parties reached agreement on items totalling $40,334.90. The two items not resolved by agreement were an allowance for mileage from Sorell to Hobart for medical treatment and the fees charged by Dr Jackson. As to the former, it was agreed that an allowance should be made for 2,496 kilometres, but the rate of 20 cents claimed by the plaintiff was disputed by the defendant. I was given no guidance as to how I should determine what was a fair figure. I had the same problem in Brown v Vincent, unreported, B46/1986, and said there at p22:–

   "Since his accident the plaintiff has travelled some 5,120 kilometres in attending doctors and hospitals for review and treatment. He has claimed rates per kilometre ranging from 15 cents to 20 cents. Such mileage allowances are very artificial although I appreciate that they are regarded by many as modest reimbursement to those who are required to use their own vehicles regularly in their employer's service. In the plaintiff's case the cost of petrol and a small proportion of his overall maintenance and repair expenses will just about cover his actual cost. I think a figure of 10 cents per kilometre would more equitably compensate him for having used his own car for these journeys."

   In the present case I would be confident that 10 cents per kilometre at least would be justified, but the evidence is insufficient to persuade me that any greater sum should be awarded. I propose to use the same figure and to allow $249.60.

1. As to Dr Jackson's fees there is no dispute as to the vast majority of them, but it is submitted that the charges for some of the later operations are too high and that too many consultations have been charged for. The evidence I have is that the consultations were had and I have no reason for doubting that they were necessary. As to the operations, it is true that the fee charged in 1982 for the stimulator insert was $295 and that in late 1986 it had risen to $760. Dr Jackson claimed that this was a fair and reasonable charge for the complexity, responsibility and time involved, but conceded that his fee was above the award recognised by the medical insurance authorities and that in the case of an impecunious patient he would be prepared to discount it. The defendant however adduced no evidence as to what a reasonable charge would be, and as that charge has been rendered to the plaintiff and its reasonableness is attested by the oath of the surgeon, I see no reason for not regarding it as an expense validly and reasonably incurred by the plaintiff and accordingly I allow the claim for Dr Jackson's charges in full. The total amount allowed for special damages is $48,422.20.

1. The remaining claims concern the cost of future replacements of the stimulator equipment and the continuing cost of batteries and adhesive pads which hold the external leads in place. The evidence shows an ongoing cost of about 44 cents per week for batteries and for the pads about $4.62, a total of approximately $5.00 per week. Certainly, to date, the pads have not cost that much according to the list of special damages, but assuming inserts can be installed and continue to operate on the same principle with greater success than in the past, the cost may approach this. The present value of $5.00 per week to age 72 is approximately $5,500. However, there is a great deal of uncertainty about the future cost of installing and using this equipment. It is a new and changing technology. One would hope that its durability can be improved and that when it does malfunction the defective part can be replaced, rather than have the entire equipment removed and a substitute inserted. Dr Jackson was uncertain of the costs and of how much would have to be replaced at any given time. Using his figure of approximately $10,000 for a complete replacement and $3,800 for a lead replacement only, Mr Mackay produced a series of calculations of present value to the notional death of the plaintiff ranging from $27,850 for complete replacement every ten years to $51,226 for the same procedure every five years with correspondingly smaller figures for lead replacements only every five or ten years, while a combination of the two, that is a lead replacement and a total replacement every other five years, produced a figure of $36,849. The plaintiff clearly needs a complete replacement in the near future and thereafter there will be several further implants, but how many is speculative. Making the best estimate I can I allow $30,000 to cover all these remaining claims, including the cost of batteries and pads.

1. The plaintiff will have judgment for $214,982.20, made up as follows:–

Pain and suffering etc.  $50,000.00

Past economic loss  16,560.00

Future economic loss  70,000.00

Special damages  48,422.20

Future medical treatment and

maintenance of implant  30,000.00

$214,982.20