Bloodworth v The South Coast Regional Health Authority t/a Gold Coast Hospital

[2004] NSWSC 234

CITATION:	Bloodworth v The South Coast Regional Health Authority t/a Gold Coast Hospital and Anor [2004] NSWSC 234 revised - 23/04/2004
HEARING DATE(S):	3.11.03, 4.11.03, 5.11.03, 6.11.03. 7.11.03, 10.11.03, 11.11.03, 12.11.03, 14.11.03, 17.11.03, 18.11.03, 19.11.03, 20-.11.03, 21.11.03, 24.11.03, 25.11.03, 27.11.03, 28.11.03, 1.12.03, 2.12.03, 9.12.03, 10.12.03, 11.12.03, 12.12.03, 6.04.04, 14.04,04
JUDGMENT DATE:	14 April 2004
JURISDICTION:	Common Law - Professional Negligence
JUDGMENT OF:	Mathews AJ
DECISION:	I enter verdict and judgment for the plaintiff in the sum of $1,769,391.65. Costs (para 402). I order that execution of the judgment be stayed until judgment is given by the Court of Appeal, or an appeal to that Court be withdrawn, whichever be the earliest, upon the following conditions: first, that payment be made to the plaintiff of $100,000 within 28 days of today, and secondly, that a notice of appeal with appointment be lodged within 28 days of today.
CATCHWORDS:	Medical negligence - laparoscopic cholecystecomy - anoxic brain damage - whether surgery negligently performed - adequacy of warnings given before surgery - whether plaintiff suffered psychiatric injury - whether plaintiff had pre-existing disorder - epilepsy
LEGISLATION CITED:
CASES CITED:	Whitehouse v Jordan WLR 246 at 263 Ainsworth v Levi (unreported) NSWCA 30 August 1995 Rogers v Whittaker (1992) 175 CLR @ 479 Rosenberg v Percival (2001) 205 CLR 434 Chappel v Hart (1998) 195 CLR 232
PARTIES :	Charles Bloodworth - Plaintiff The South Coast Regional Health Authority t/a Gold Coast Hospital & Anor - Defendants
FILE NUMBER(S):	SC 20052/95
COUNSEL:	A S Morrison SC and D W Elliott - Plaintiff J L Glissan Q C and J A McDougall - Defendants
SOLICITORS:	Gerard Malouf & Partners - Plaintiff Tress Cox and Maddox - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

MATHEWS AJ

14 April 2004

20052/95
BLOODWORTH v SOUTH COAST REGIONAL HEALTH AUTHORITY - T/AS GOLD COAST HOSPITAL & ANOR
JUDGMENT

1 Her Honour: The plaintiff Charles Bloodworth is claiming damages for negligence following a surgical operation which was performed by the second defendant at the first defendant’s hospital on the 28 January 1992.

Introduction

2 The background of the matter, very briefly, is as follows.

3 Mr Bloodworth was born on the 17 June 1957. His schooling was mixed: he obtained good results at the school certificate, but received unfavourable reports about disruptive and surly behaviour. He was a reasonable sportsman, but his real passion was music, particularly the piano.

4 He left school at age 17, without attempting the higher school certificate. He then undertook a number of jobs, most of them relatively unskilled and all of them of quite short duration. In 1984 he went overseas and returned late the following year. Between March 1986 and October 1987 he worked as a bus driver with the Urban Transit Authority. He then went to Coffs Harbour where he registered a business called “Worth Concrete Pumping”. The business did well for some time, until a major client went bankrupt owing him a substantial sum of money, which resulted in the collapse of his business. Other personal problems beset him at about this time, and in May 1989 his mother arranged for him to consult Doctor Kay Wilhelm at the Mood Disorders Clinic of Prince Henry Hospital in Sydney. This was the plaintiff’s only psychiatric consultation before January 1992. Doctor Wilhelm’s report following this consultation featured prominently in later medical and psychiatric assessments, and I shall be discussing it later.

5 At about this time the plaintiff met Wendy Pepper, whom he later married. In January 1990 the two of them moved to the Gold Coast where the plaintiff worked for Mr David Joffe on a number of construction projects. Their son, James, was born in October 1990.

6 On 17 June 1991, his 34th birthday, Mr Bloodworth suffered a bout of severe abdominal pain. He consulted his general practitioner, Dr Brennan, who tentatively diagnosed gallstones, a diagnosis which was confirmed by subsequent investigations. In July of that year the plaintiff went to see Dr Thiele at the Gold Coast Hospital. Dr Thiele referred him to the second defendant, Dr Miller.

7 Mr Bloodworth saw Dr Miller on 19 September and again on 15 November 1991. I will be discussing later what transpired between them on these occasions. One of the heads of claim in this case is that Dr Miller failed to give Mr Bloodworth appropriate warnings, and these meetings are crucial to this aspect of the case. Suffice it to say here that Dr Miller told Mr Bloodworth that he would need a cholecystectomy for removal of his gall bladder. A laparoscopic procedure was recommended. After the second consultation, in November 1991, Dr Miller gave Mr Bloodworth a booking form so that he could undertake the surgery early in the following year.

8 Over the ensuing Christmas/New Year period Mr Bloodworth suffered further severe bouts of pain. He saw Dr Miller again on 21 January 1992 and early surgery was arranged.

9 On the afternoon of 28 January 2002 the surgery commenced. I shall later be giving a detailed description of the course of this surgery, and of laparoscopic cholecystectomies generally, for this is central to the issues in this case. Suffice it to say for present purposes that the surgery commences with the insertion of a needle, called the veress needle, into the abdominal cavity. Carbon dioxide gas is then pumped through the needle in order to distend the cavity and create a working space. When sufficient gas has been introduced, the needle is withdrawn and a larger instrument, called a trocar, is introduced through the same hole. In Mr Bloodworth’s case, one of these instruments lacerated the right iliac artery and punctured the left iliac vein. This caused carbon dioxide to enter his venous system which in turn caused a cardiac embolism and cardiac arrest. At this point the surgery was abandoned and external cardiac resuscitation measures were applied. These were successful, and after 12 to 14 minutes blood pressure was restored. However Mr Bloodworth’s blood pressure remained low and his heart rate high. Some 40 minutes later signs of haemorrhaging were noted and open surgery was immediately performed. Two to three litres of blood were found in the peritoneal and retroperitoneal space. The injury to the iliac vessels was discovered and a vascular surgeon was called into theatre to repair them.

10 Given the disastrous nature of the surgery, Mr Bloodworth’s post-operative recovery was markedly uneventful. He remained in intensive care for some 36 hours and was eventually discharged from hospital on 8 February 1992.

11 After his discharge from hospital Mr Bloodworth continued to suffer severe abdominal pain, both from the gallstones (which had not been removed) and from the effects of the surgery. He had lost a great deal of weight and was unable to stand upright. On 7 July 1992 Dr Peter Van Gelderen conducted an open cholecystectomy and removed the offending gall bladder. Mr Bloodworth’s recovery from this surgery was uneventful.

12 It is not apposite here to discuss the details of the continuing physical, psychological and neurological problems which Mr Bloodworth claims to have suffered as a result of the surgery on 28 January 1992. The neurological symptoms are probably the most controversial: the plaintiff’s case is that Mr Bloodworth suffered permanent anoxic brain damage which has manifested itself in behavioural difficulties, cognitive deficits and epilepsy. The defendants dispute that Mr Bloodworth has any continuing symptoms as a result of this surgery. In particular they dispute that the incident led to any brain damage at all. The defendants’ case, at its highest, is that Mr Bloodworth is a malingerer who has deliberately manufactured his symptoms for the purpose of this litigation.

The course of these proceedings

13 These proceedings have a lengthy history. The statement of claim was issued on 27 January 1995. Numerous pre-trial processes followed. These included the taking of evidence in London from two medical experts, Professors Davidson and Boulos, in June 1999.

14 Between 1 November and 2 December 1999 the first hearing of this case took place before McInerney AJ. This occupied 21 hearing days. On 1 September 2000 his Honour delivered his first judgment in the matter. On 6 November 2000 he entered a verdict for the plaintiff in the sum of $1,093,680.45. The defendant appealed from this judgment. The hearing before the Court of Appeal took place in September 2001. On 22 May 2002 the Court unanimously upheld the appeal, set aside the judgment entered by McInerney AJ and ordered that a new trial be held.

15 In July 2003 further evidence was taken on commission in London from Professors Davidson and Boulos.

16 The hearing before me commenced on 4 November 2003 and occupied 24 hearing days. Mr Bloodworth was represented by Dr Andrew Morrison SC, Mr David Elliot and Mr Adam Casselden of counsel. The defendants were represented by Mr James Glissan QC and Mr J McDougall. All counsel were very familiar with the case, having appeared at the previous hearing as well as on the appeal. During the hearing before me there was a high level of co-operation between counsel, for which they are to be commended. In particular, a great deal of evidence was adduced through the tendering, by consent, of the transcripts of evidence taken at the first hearing. This served to reduce the hearing time, but it also increased the bulk of material to be considered by me in a case which was already exceedingly complex. It will not be possible in this judgment to refer directly to all items of evidence which bear upon each issue in the case. However I have in fact perused and noted all items of evidence which counsel have suggested bears any relevance to the issues in the case.

The issues in this case

17 The plaintiff claims that the second defendant, Dr Miller, was negligent in three respects:

1. that he negligently performed the operation, thereby perforating the iliac vessels and causing the subsequent injury to Mr Bloodworth (“the negligent performance ground”).
2. that he negligently failed to perform a laparotomy immediately after Mr Bloodworth had been resuscitated (“the delayed laparotomy ground”).
3. that he failed to warn Mr Bloodworth of the dangers inherent in the laparoscopic procedure and of the limitations in his own experience in performing this type of operation (“the failure to warn ground”).

18 It is accepted that, if Dr Miller was negligent in any of the above respects, the first defendant is vicariously liable for his negligence.

19 Before I turn to discuss these grounds, I should give more details of the factual matrix in which these issues arise. I shall commence with a brief history of laparoscopic surgery. I shall then describe the course of this type of surgery, and the risks involved in it. I shall give an account of what happened in Mr Bloodworth’s case. Finally, I shall discuss the nature of the medical evidence in the case.

History of laparoscopic cholecystectomies

20 Laparoscopic procedures have been used in gynaecological surgery since the 1960s. This procedure, which is sometimes called “keyhole surgery”, involves making several small incisions instead of a single large one. In the absence of complications, it significantly reduces postoperative trauma to patients.

21 It was not until about 1989 that laparoscopy moved into the field of general surgery. Indeed it was probably not until 1990 that the first upper abdominal laparoscopic procedures were performed in Australia. The procedure was therefore in its infancy in January 1992, when Dr Miller operated on Mr Bloodworth. Indeed Dr Miller himself had only started performing this type of surgery a few months earlier, in October 1991. By the time of Mr Bloodworth’s operation he had performed 15 laparoscopic cholecystectomies either as principal or assistant surgeon.

22 Since then, laparoscopic cholecystectomies have become routine surgical procedures. For example, in the twelve months between July 1999 and June 2000, 36,639 of these procedures were undertaken in Australian hospitals. As Professor Guy Maddern commented, this has resulted in considerable benefits to patients and reductions in hospital and health-care costs.

23 For obvious reasons, most of the literature concerning the risks of laparoscopic cholecystectomies postdates January 1992. Much of this literature was referred to during the hearing of this matter. This literature provides valuable information as to, for example, the incidence of vascular injuries in laparoscopic surgery. However, when considering the reasonableness of Dr Miller’s conduct, both in his performance of the surgery and in the warnings he gave to Mr Bloodworth, it is important to apply only the information and techniques which were available at that time.

A description of laparoscopic cholecystectomies

24 All laparoscopic procedures involve the injection or “insufflation” of gas into the abdominal cavity (or peritoneum). This so-called cavity is in fact only a potential space. In normal conditions, the peritoneal structures inside the abdominal cavity will lie upon and adjacent to each other. The purpose of insufflating the abdomen with gas is to separate these structures so as to create a working space. In medical terms this is described as obtaining pneumoperitoneum. (literally “air in the peritoneum”).

25 In the early stages of laparoscopic surgery, the gas used for this purpose was air. However, this created a particular hazard if by mischance the gas entered the body’s circulatory system. Air takes a considerable time to dissolve, and very serious consequences, including death, can result if air bubbles prevent the normal flow of blood through the heart. For this reason, air was replaced by carbon dioxide (CO2), a soluble gas which dissolves rapidly within the bloodstream.

26 For the purpose of this surgery, the patient is often put into what is called the “Trendelenberg” position. This means that the operating table is sloped downwards, with the patient’s head lowered and the feet elevated. The purpose of this is to displace the small bowel into the upper part of the abdomen, thus removing it from the operating area.

27 The procedure utilised in Mr Bloodworth’s case routinely commences with the making of a minor incision into the umbilical area. The veress needle is then inserted through the incision. This is a sharp, narrow tube approximately two to three millimetres in diameter. In order to provide counter-traction for the insertion of the needle, the surgeon generally lifts the skin of the abdominal wall in the area of the incision, at the same time pressing down upon the needle. The surgeon will normally know when the needle has penetrated the abdominal wall as it immediately gives way and the sharp end retracts. Certain tests are then carried out in order to ensure that the tip of the needle is where it should be. Once these tests have been satisfactorily performed, the external end of the needle is connected to an insufflating machine which pumps CO2 through the needle and into the abdominal cavity. The amount of gas, and the pressure at which it is inserted, is monitored by the machine. Once a preset level of pressure has been reached within the abdomen (normally 12 to 15 mm Hg), insufflation is discontinued and the veress needle is withdrawn. The trocar (or “port”) is then inserted through the incision left by the needle. The trocar is a much larger instrument. It consists of an outer tube which is 13 centimetres long and 11 to 12 millimetres in diameter. Inside this tube is a further shaft with a very sharp trihedral point which protrudes beyond the end of the instrument and enables it to cut through the various layers of the abdominal wall.

28 In spite of the sharpness of this point, the insertion of the trocar can sometimes require a degree of downward pressure, which in turn can cause the internal abdominal wall to “tent” inwards. In order to reduce this effect, some surgeons lift the abdominal wall whilst inserting the trocar, normally with the assistance of clips which hold up the skin in the area of the incision.

29 The trocar is designed so that, once resistance on the tip has ceased, the sharp point will spring back into its protective sheath, thus converting the trocar into a blunt instrument which should be incapable of damaging internal abdominal structures. This springing action is discernible to the operator and serves as an indication that the trocar has penetrated the abdominal wall.

30 Once the trocar has pierced the abdomen wall, the surgeon removes the internal shaft. The external plastic layer (“the cannula”) remains in place, enabling instruments to be passed through it into the abdomen. The first instrument to be inserted is usually a camera, which means that the balance of the surgery can be performed under vision. The trocar also has an insufflating device which, when attached to an insufflator, maintains the CO2 pressure within the abdomen at the desired level.

31 In cholecystectomies three further trocars are generally inserted into the abdominal cavity. Through these ports the various instruments can be passed to enable the dissection and removal of the gall bladder. Unlike the original trocar, these trocars are inserted under vision, so that the surgeon can ensure that they cause no internal damage.

32 It is unnecessary for present purposes to describe the balance of this surgical procedure. In Mr Bloodworth’s case, the surgeon had just completed inserting all four trocars when signs of CO2 embolism were detected. The surgery was then abandoned. What happened thereafter will be described shortly. Before doing so, however, it is apposite to say something about the anatomical structures which are relevant to this case.

The relevant anatomical structures

33 As indicated, both the veress needle and the first trocar are routinely inserted through an incision in the umbilical area, usually in the lower part of the umbilicus. The anterior abdominal wall is at its thinnest at this point. The abdominal wall comprises several layers. These include the linea alba and the peritoneum, both of which are fibrous structures which can constitute a major source of resistance to the introduction of the trocar. Both these layers are quite thin, Professor Davidson estimated a few millimetres each. In addition, there is a layer of subcutaneous fat, the thickness of which depends upon the build of the person. The evidence indicates that there would have been little if any fat in a person of Mr Bloodworth’s build. Accordingly, the abdominal wall in his case would have been quite thin.

34 Immediately behind the abdominal wall lies the greater omentum. This is a layer of fat which separates the abdominal wall from the small bowel. Insufflation is designed to take place between the abdominal wall and the omentum.

35 The omentum and the small bowel constitute the major structures in the peritoneal cavity, at least in the area underlying the umbilicus. Further back again lie the retroperitoneal structures, which are separated from the peritoneum by the retroperitoneal layer, a thin membrane-like structure which Dr Miller likened to gladwrap. The blood vessels which were damaged in this case were the right common iliac artery and the left common iliac vein, both of which lie in the retroperitoneal area.

36 The retroperitoneum contains various blood vessels. First, the descending aorta which brings blood from the heart, and which bifurcates or divides into two branches. The two branches are the right and left common iliac arteries. These in turn later bifurcate into the internal and external iliac arteries. The right and left common iliac veins take blood back towards the heart, and join together into the vena cava. At one point the right common iliac artery overlies the left common iliac vein, which means that both vessels can be damaged by a single penetrating event, as apparently occurred here.

Alternative methods of commencing laparoscopic surgery

37 The method of surgery described above is the method which was adopted by Dr Miller in Mr Bloodworth’s case. At that time it was the standard technique in laparoscopic surgery. However the fact that the veress needle and the umbilical trocar were introduced blind led a number of doctors to brand this type of surgery as extremely hazardous. This was certainly the view of Dr Sheldon, a surgeon who gave evidence for the defendants at the first hearing. Dr Sheldon found it “worrying” that the veress needle, which he described as a “razor sharp instrument”, was inserted blindly into the peritoneal cavity. After performing about ten of these procedures, he felt so uncomfortable with it that he abandoned the veress needle technique in favour of an alternative procedure which is commonly called the open or “Hasson” technique. Essentially this procedure involves doing away with the veress needle. A larger initial incision is made, followed by the direct insertion of the Hasson trocar through which the abdomen is insufflated with CO2. This instrument incorporates a camera and thereby enables the whole process of insufflation to be conducted under vision.

38 Professor Maddern gave an interesting account in his evidence of the polarisation of the medical profession between those who prefer to use the veress needle/trocar method of obtaining pneumoperitoneum and those who prefer to use the open or Hasson technique. A number of practitioners, he said, were passionate advocates of the particular technique which they used, and regarded the other technique as inherently unsatisfactory or unsafe. Professor Maddern is Protocol Surgeon and Chairman of an organisation called ASERNIP-S (Australian Safety and Efficacy Register of New Interventional Procedures – Surgical), established by the Royal Australian College of Surgeons. Because of the divergent views in the medical profession as to the respective merits and risks involved in the needle/trocar and the Hasson techniques, ASERNIP-S conducted a major review of these methods, which explored the available literature and studies on this subject from around the world. This review presented its report in October 2001. Professor Maddern described the outcome of the review as demonstrating, in a nutshell, that “both techniques were probably equally valid.” No definitive difference was demonstrated between the safety and efficacy of either one.

39 The ASERNIP-S report was tendered before me. It provides some information as to the risks associated with the various techniques of obtaining pneumoperitoneum, a subject to which I now turn.

Risks of this surgery

40 We are concerned here only with the risks involved in obtaining pneumoperitoneum. There is ample evidence that the commonest injury sustained in laparoscopic cholecystectomies is injury to the bile duct. However the bile duct is near the gall bladder, and this injury is sustained when the surgeon is attempting to gain access to the gall bladder, a stage which had not yet been reached in Mr Bloodworth’s case. Accordingly it is appropriate to examine the risks of obtaining pneumoperitoneum in all types of laparoscopic surgery, not only cholecystectomies. This is what the ASERNIP-S review set out to do.

41 The major risk of laparoscopic surgery is bowel injury. The ASERNIP-S survey found that 56 percent of all major complications related to bowel injury. The risk of this injury was higher with the open access technique than with the needle/trocar technique. A major contributor to the risk of bowel injury was found to be prior abdominal surgery, causing the bowel to adhere to the abdominal wall and thus making it extremely difficult to avoid when the peritoneum is perforated.

42 The rate of vascular injury was almost non-existent with the open technique and ranged from .003 percent to 1.33 percent with the needle/trocar technique. The review concluded that the incidence of this injury was so low in both groups that differences were difficult to discern without exceptionally large sample sizes. It must be remembered also that the classification of “vascular injury” includes injury to a number of other vessels quite apart from the iliac artery and the iliac vein.

43 A review conducted by Molloy and others called “Laparoscopic Entry: A Literature Review and Analysis of Techniques and Complications of Primary Port Entry”, which was published in the ANZ journal of Obstetrics and Gynaecology in 2002, compares the rate of vascular injury using the needle/trocar technique in gynaecological procedures and in general surgery. In general surgery, vascular injuries occurred in .7 cases in one thousand. Again, this included injury to other vessels.

44 A French study, conducted by Champeault and others, of serious trocar incidents in laparoscopic surgery, found an incidence of .5 vascular injuries in one thousand laparoscopic procedures. The actual number of vascular injuries was forty-seven, sixteen of which comprised injury to the iliac vein. The iliac artery was not mentioned.

45 Dr Miller, in his evidence, described this as a “rare” injury, occurring in one of three to four thousand cases.

46 Finally, on the subject of risks, it is standard practice if something appears to be going wrong with a laparoscopic procedure, for a surgeon to immediately “convert” to an open laparotomy. Prospective patients are routinely warned of this possibility and are asked to sign consent forms for an open laparotomy if this were to become necessary.

47 I turn now to discuss the course of the surgery in Mr Bloodworth’s case.

Mr Bloodworth’s surgery

48 Mr Bloodworth’s surgery commenced at 2.45 pm with the first administration of anaesthesia. The surgery itself probably commenced fifteen to twenty minutes later. At that time, Mr Bloodworth was in a Trendelenberg position, with his head angled downward. Dr Miller said that he inserted the veress needle through an incision in the sub-umbilical area and pushed it at a downward angle of about 45 degrees until he felt the spring inside the needle retract, indicating that it had passed through the abdominal wall. He then performed the normal tests to ensure that the needle was in fact within the abdominal cavity. Having satisfied himself on this account, he connected the veress needle to the insufflating machine and commenced to inject CO2 into the abdomen, initially at a low rate of 1.5 litres per minute, which was gradually increased to five to six litres per minute. The insufflator, which had been pre-set to 15 mm Hg, stopped when that pressure was achieved. This would have taken about two to three minutes. At that point Dr Miller removed the veress needle and commenced to insert the trocar through the same incision and along the same line, namely at an angle of about 45º. Dr Miller said that he felt minimal resistance as he inserted the trocar through the abdominal wall. He then felt it click, indicating that the trocar had passed through the wall and the sharp point had retracted. At this point he removed the insert from trocar, leaving the external cladding (the port) in position. He connected this to the insufflator in order to maintain the carbon dioxide pressure within the abdomen. He next inserted the laparoscope and the camera into the port. The camera showed a normal looking intra-abdominal cavity with normal omental fat and normal small bowel sitting around it. Dr Miller noted a small amount of blood on the omentum immediately below where the port had been inserted. This was not an abnormal finding, as the introduction of the needle and the trocar can cause minor bleeding into the abdominal cavity.

49 Dr Miller proceeded to insert three further ports into Mr Bloodworth’s abdomen. The camera showed that they were inserted without misadventure.

50 By now it was approximately 3.15 pm. At this point the anaesthetist, Dr Doolan, noted that Mr Bloodworth’s End Title CO2 (“ETCO2”) level had dropped from 36, which was normal, to 21. The anaesthetist’s notes at this point read:

“Following insufflation of CO 2 and initial examination with camera the patient became sweaty and there was a rapid decrease in ET CO 2. ”

51 According to Dr Doolan, a rapid decrease in ETCO2 is often an early indication of a venous gas embolism. In Mr Bloodworth’s case, because it occurred shortly after the abdominal cavity had been insufflated with carbon dioxide, Dr Doolan immediately suspected a CO2 embolism. He directed Dr Miller to abandon the surgery. Dr Miller did so. He turned the gas off, and pulled out all the ports except the original umbilical port, which he left open in order to vent the abdomen of any remaining CO2 .

52 In the meantime Mr Bloodworth’s systolic blood pressure had reduced from 100 to 70 or 75. At 3.20, his carotid pulse became impalpable and Dr Doolan called a cardiac arrest. He replaced the anaesthesia with pure oxygen and external resuscitation techniques were commenced.

53 Some twelve to thirteen minutes later, shortly after 3.30 pm, Mr Bloodworth’s pulse returned and his systolic blood pressure went from zero to sixty. This indicated that the heart was functioning again. However things were still not right. Mr Bloodworth’s blood pressure remained low whilst his pulse was elevated. Dr Miller said that Dr Doolan expressed concern about Mr Bloodworth’s condition and asked if there was any chance that he might be haemorrhaging. Dr Miller said ‘no’, and continued:

“The port went in so easily and the needle and I couldn’t imagine that there was any damage to any blood vessels.”

54 At about 4.15 an event occurred which alerted the medical team that Mr Bloodworth must be haemorrhaging. Dr Miller said that blood started coming out of the top of the umbilical port. Dr Doolan said that Mr Bloodworth’s abdomen started swelling. Whichever it was, it was an immediate danger sign. Dr Miller forthwith commenced to perform an open laparotomy, involving a very long vertical midline incision. This revealed a substantial quantity of blood in the peritoneal cavity. Dr Miller lifted the small bowel and omentum and ascertained that the blood was coming from the pelvis. He compressed the aorta and put a clamp on it in order to prevent any further bleeding. Suction evacuators were used to empty the blood.

55 It was very fortunate that a vascular surgeon, Dr Dinnen, was in the adjacent operating theatre and could be brought in quickly to repair Mr Bloodworth’s damaged vessels. The right common iliac artery was found to have a star shaped defect which required resection. The left common iliac vein, directly behind the artery, had a small hole which was sutured. Massive blood transfusions were required.

56 By the end of the laparotomy, Mr Bloodworth had lost approximately four litres of blood. Two to three litres of this had been lost before the laparotomy was commenced. One of Mr Bloodworth’s heads of claim is that the laparotomy should have been performed much earlier, thereby reducing the blood loss and diminishing some of the long term complications which arose from this surgery. I shall be discussing this aspect of his claim a little later.

57 It is beyond question that either the veress needle or the trocar pierced Mr Bloodworth’s right iliac artery and left iliac vein. The injury to the artery caused most of the blood loss. The injury to the vein caused the CO2 embolism which in turn was responsible for the cardiac arrest. There was a suggestion in the evidence that there might never have been a CO2 embolism, and that the cardiac arrest might have been caused by the blood loss alone. However, the bulk of the evidence strongly supports the proposition that a CO2 embolism occurred, which then led to the cardiac arrest. This was Dr Doolan’s analysis of the situation, and he was in the best position to make these assessments. I therefore accept that this was the probable course of events. The real question is whether this denoted a breach of duty on the part of Dr Miller. In order to determine that matter, a number of further issues will need to be addressed. First, I should say something about the nature of the medical evidence in this case.

The medical evidence

58 The medical issues in this case are complex, and a number of medical experts gave their opinions on them. I am referring at this stage only to issues relating to liability. A large volume of further evidence went to matters of damages, but it is unnecessary to refer to this here.

59 The plaintiff essentially relied upon the evidence of Professors Davidson and Boulos, from whom evidence on commission was taken in London in June 1999 and again in July 2003. In addition, both these doctors gave evidence by way of video link during the previous hearing in November 1999. Much of the first two weeks of the hearing before me was occupied in watching the video of their evidence, the transcripts of which were exhibits in this case. Both doctors had previously furnished written reports which were also in evidence.

60 The effect of the evidence of both Professors Davidson and Boulos was that the injury to the iliac vessels which occurred in this case was an unacceptable injury which should not have occurred if reasonable care had been taken. In the absence of anatomical anomalies or prior adhesions, the only explanation for the injury was that Dr Miller miscalculated both the angulation and depth of either the needle or the trocar, most probably the trocar.

61 I shall be referring again to the evidence of these doctors when I come to discuss the central question of negligence. In general I place much greater weight on the evidence of Professor Davidson than that of Professor Boulos. Dr Davidson was a most impressive witness and, in spite of his boyish looks, a very experienced surgeon. When he gave his evidence he was Professor of Surgery at the Royal Free Hospital and School of Medicine. He had extensive experience in both general and laparoscopic surgery. His evidence was clear, concise and given in an objective and open manner.

62 Professor Boulos’s evidence was less persuasive. Professor Boulos is a very experienced general surgeon specialising in colorectal surgery. He first performed laparoscopic procedures in 1990 and continued to perform them for approximately five years after which he gradually withdrew from this type of surgery. Accordingly, his knowledge of laparoscopic techniques was not as recent as that of Professor Davidson. Moreover, Professor Boulos displayed a degree of rigidity in his evidence. He appeared reluctant to accommodate to other opinions or theories. During his cross-examination by Mr Glissan, in July 2003, he became so angry at what he considered to be an attack on his expertise that he refused to answer any questions until the subject was changed.

63 Mr Glissan objected to the reception of much of Professor Boulos’s evidence on the grounds of bias and lack of expertise. I ruled against him on both grounds, and allowed the whole of Professor Boulos's evidence to be admitted. However, the matters which led to Mr Glissan’s challenge are highly relevant to the weight to be attached to Professor Boulos’s evidence. In the circumstances I cannot and do not accord it the same weight as that of Professor Davidson or, for that matter, the evidence of many of the other experts whose evidence was before the court.

64 The plaintiff called no further expert witnesses before me on the issue of liability, although numerous doctors gave evidence on matters going to damages. Amongst the numerous reports tendered by the plaintiff, only one went directly to the issue of liability. That was a report dated 11 June 1993 from Dr V H Cumberland, a surgeon who examined Mr Bloodworth in July 1992. This report gives a concise and precise account of laparoscopic procedures and suggests two possible mechanisms by which these blood vessels might have been damaged during this surgery. However Dr Cumberland did not express an opinion as to whether either of these scenarios indicated a lack of care on the part of the operating surgeon.

65 In short, therefore, the plaintiff’s case on negligence is based on the evidence and opinions of Professors Davidson and Boulos.

66 Both Dr Miller and Dr Doolan gave evidence in the defendants’ case. Both of them had given extensive evidence at the previous hearing, but neither had furnished any reports. Accordingly, their evidence was, at least in theory, restricted to matters of fact rather than opinion, and particularly to their account of what happened during the course of Mr Bloodworth’s surgery.

67 The defendant called only one witness solely on the issue of liability. That was Professor Guy Maddern, a highly experienced surgeon and a very impressive witness. Professor Maddern first became involved in this case in 2003 and therefore did not give evidence at the prior hearing.

68 The defendants also called an experienced anaesthetist, Dr Ross Holland, but his evidence went more to issues of neurological injury than it did to the performance of the surgery.

69 Finally, the defendants tendered both the reports and the prior evidence of three surgeons, Drs Glen, Aroney and Sheldon, none of whom was called to give evidence before me. A further surgeon, Dr Truskett, provided a report but was not called to give evidence at either hearing.

70 Much of the evidence which was tendered by the defendants appeared to be cogent and reliable, but some was less so. Dr Aroney, in particular, was criticised by Dr Morrison for his lack of objectivity, a criticism which appeared to have a solid foundation.

71 In general the defendants’ doctors refuted the proposition advanced by Professors Davidson and Boulos, namely that the mere fact of this injury denoted a lack of care. They said that vascular injury is an unfortunate and rare complication of this type of surgery which can occur even with the most experienced surgeon utilizing the utmost care.

72 This is the central matter to be determined under the first ground relied on by the plaintiff. I shall be discussing it very shortly. However there is one further preliminary matter to be disposed of, namely whether the damage to the blood vessels in this case was caused by the veress needle or the trocar.

Was it the needle or the trocar?

73 It is beyond dispute that the vascular injuries sustained by Mr Bloodworth were caused either by the veress needle or the umbilical trocar. On one view it might not matter which it was. Both Professors Davidson and Boulos thought that it was probably the trocar which did the damage. However, they both went on to say that even if it was the needle it still denoted lack of care on the part of the surgeon. Both doctors considered that the star shaped breach in the artery was highly suggestive of a trocar injury. Professor Davidson pointed out that the needle is very fine and would be unlikely to cause this type of injury. In any event, the saline test carried out after insertion of the needle would almost certainly have shown if the needle had penetrated the vascular system. The timing also, both doctors considered, was consistent with trocar injury.

74 Professor Maddern essentially agreed with the plaintiff’s experts. He considered that the star shaped injury and the timing of events suggested that the damage was caused by the trocar. This was not, however, the view of at least two of the other defendants’ experts. Dr Aroney considered that the evidence overwhelmingly pointed to the needle as the culprit. The literature, he said, showed that in only two out of fifteen cases was the trocar responsible for vascular injury. He considered also that the sequence of events supported a needle injury, probably a shearing injury on the side of the artery which then penetrated the front of the vein. Dr Sheldon assumed in his report that the needle was responsible. In his later evidence he said that the timing was more consistent with a needle injury, although the nature of the injury was consistent with either. By the end of his cross-examination he appeared to concede that it could have been either instrument. Dr Glen assumed, both in his report and in his evidence, that the trocar was responsible for the injury. Nothing was put to him in opposition to this view. To the contrary, Dr Morrison asked him a number of questions in cross-examination which assumed that it was indeed the trocar.

75 Dr Miller, it appears, has always believed that this was a trocar injury. In a letter dated 6 March 1992 to Dr Brennan, he referred to the “insertion of the laparoscopic port” as resulting in injury. This was also the assumption which underpinned the whole of his evidence, including his cross-examination.

76 In spite of the evidence of Drs Aroney and Sheldon, I must assume that it was the trocar which inflicted the injury on Mr Bloodworth. This is not only the assumption which underpinned the evidence of a number of the witnesses in the case, but it is also the scenario which is supported by the bulk of the evidence.

77 The question which remains is, in many ways, the central question in this case. Did the injury to Mr Bloodworth occur through a lack of due care on the part of Dr Miller? Or, to put it another way, was Dr Miller in breach of his duty of care to Mr Bloodworth? If the answer is in the affirmative, then Mr Bloodworth will have established the first ground upon which he relies. I now turn to discuss that matter.

Was Dr Miller in breach of his duty to Mr Bloodworth?

78 The steps described by Dr Miller when he undertook this surgery appear in all respects to conform to standard surgical practice. Professors Davidson and Boulos both acknowledged this. Dr Gotley, who supervised Dr Miller in the early stages of his laparoscopic practice, said that Dr Miller’s description of his technique in this case conformed exactly to the technique he had been taught which was the technique in general use at that time. The course of events, however, incontrovertibly shows that something went seriously wrong with this operation, and the real question to be determined is what this was.

79 It appears from the evidence that the mere fact that this injury occurred means that the trocar must have been inserted both too far and at the wrong angle.

80 The proposition that the trocar was wrongly angled did not receive a great deal of attention during the hearing, but the evidence appears to be all one way. Professor Boulos, in his report dated 21 January 1998, assumed that Dr Miller had miscalculated the angulation and depth required for the insertion of the needle or the trocar. He went on to say that this should not occur if reasonable care had been used.

81 Dr Sheldon was asked by his Honour at the last hearing how it was possible that these injuries occurred if, as Dr Miller described, the instrument was introduced at the midline at an angle of 45º. The doctor replied that, at that angle, neither the iliac artery nor the iliac vein would have been struck. The doctor went on to say:

“He has been off course. He must have been off course. The point I have been trying to make, it is easy to go off course. You only have to be a few degrees off, you are that close. I can understand how the injury occurred.”

82 Dr Aroney was also asked by his Honour whether, if the needle was placed in the midline at an angle of 45º, it could cause this damage. He replied:

“Certainly it should not. It can vary; you can get anatomical variation where the prominence of the sacrum, where it meets the rest of the spine and it is very prominent and pushed the vessels forward in some women, not quite so often in men but it can occur. There can be anatomical variation that can damage these vessels.”

83 Professor Maddern was also asked about this matter during his cross-examination. He said the damage to the vessels showed that the line which was taken was not, as he put it, the line that the surgeon would have been setting out to achieve. By definition, he said, Dr Miller was off line. However, Professor Maddern went on to say that it is not always easy to appreciate the angle at which one is going, and it is a mistake that is easy to make. He said:

“It alarms me when I see where some of my trocars are going when I think they are in a completely different orientation.”

84 An interesting article concerning this matter was contained in exhibit P33. It is called “Three Spectra Of Laparoscopic Entry Access Injuries” by Chandler and others and was published in the Journal of the American College of Surgeons (2001). This recorded that 18.5 percent of all primary entry injuries surveyed in the study were sustained by the iliac artery, and 8.9 percent by the iliac vein or another retroperitoneal vein. More importantly for present purposes, the article contained an analysis of the degree to which a trocar or needle needs to be off target in order to strike both the right iliac artery and the left iliac vein. The area in which the artery crosses in front of the vein is quite small, making it possible to know with reasonable accuracy the precise point at which the injury must have occurred. According to this article, the transverse (or sideways) deviation of the needle or trocar needs be only about 10º to strike these vessels. However the sagittal (or vertical) deviation needs to be 40º, which the authors describe as “considerable”.

85 In addition to being off course, the trocar, by definition, must have penetrated too far in order to cause these injuries. Even Dr Miller acknowledged that this had to be the case.

86 It is to be remembered that the trocar contains a safety mechanism whereby the sharp point retracts back into the sheath as soon as pressure is released, which normally means that the trocar has passed through the abdominal wall. Dr Miller said that he stopped pushing the trocar as soon as he felt this happen. Assuming that he did this, and assuming also that it was the trocar which inflicted Mr Bloodworth’s injuries, the trocar must already have penetrated well beyond the abdominal wall before this happened. For as soon as the point retracts, the trocar becomes a blunt instrument which would have been incapable of inflicting this type of injury.

87 The trocar used on this occasion was a disposable one and was thrown away by Dr Miller after the surgery. It has from time to time been suggested that the trocar might have been defective, in that the point failed to retract when it should have. However there is no evidence in support of this proposition, and in the end it was expressly disclaimed by Mr Glissan on behalf of the defendant. There remains a possibility, however, even with a properly functioning trocar, of a slight delay between the release of pressure and the retraction of the point.

88 There was a considerable body of evidence in this case as to the distance between the abdominal wall and the iliac vessels. The distance, of course, will vary according to whether pneumoperitoneum has been established. The evidence indicates that in the absence of pneumoperitoneum, there can be a very small distance between the abdominal wall and the major vessels, at least in a thin person as Mr Bloodworth was. This is why, Professor Davidson said, it is of crucial importance that the surgeon lift the abdominal wall whilst inserting the veress needle. This evidence, however, becomes academic if one assumes, as I think I must, that it was the trocar which inflicted the injury in this case. For when the trocar is introduced, the abdomen has already been fully insufflated, thereby significantly increasing the distance between the abdominal wall and the retroperitoneal vessels.

89 Accordingly, the discussion which follows deals only with the evidence relating to the dimensions and distances in a fully insufflated abdomen.

90 The medical evidence varied considerably as to the distance between the abdominal wall and the retroperitoneal vessels in a fully insufflated abdomen. One matter which all witnesses agreed upon was that the space varies according to the age, fitness level and build of the patient. In a young, thin person the space will be significantly less than in an older or fatter person with a lax abdomen. Mr Bloodworth was thirty-four at the time of this surgery. On all accounts he was a thin, fit man, accustomed to manual labour. He would therefore be likely to have fallen into that end of the spectrum which has a relatively low intra-abdominal space. On the other hand, there is no suggestion that Mr Bloodworth had any anatomical abnormality. Accordingly, he fits within the normal spectrum, albeit that he was probably towards one end of it.

91 Even the three surgeons called by the defendant at the last hearing diverged considerably in their assessment of the distance between the abdominal wall and the iliac vessels in an adequately insufflated abdomen. Dr Glen, in his earlier report, had surmised that the introduction of the trocar might have tented the abdominal wall down as far as the blood vessels so that it penetrated them before the resistance to the trocar ceased and the point retracted. However, as Dr Glen later conceded in his evidence, this hypothesis was based on the assumption that there had been inadequate insufflation of the abdomen before the introduction of the trocar. There is no evidence to support this assumption. Dr Glen was asked by his Honour to estimate the distance between the abdominal wall and the iliac vessels in a properly insufflated abdomen. He replied that in his opinion this distance might well be “several inches.” He agreed that the trocar had to go “a long way” in order to damage these vessels.

92 The other surgeons who gave evidence at the previous hearing did not agree with Dr Glen’s assessment of “several inches”. Dr Sheldon estimated that with a thin patient and standard insufflation the distance between the abdominal wall and these vessels might be only 1 to 2 cm. Dr Aroney did not estimate a distance, but he said that even with adequate insufflation, the tip of the trocar can go “perilously close” to the retroperitoneal vessels.

93 Professor Boulos agreed with Dr Glen that with a fully insufflated abdomen the distance from the abdominal wall to the iliac vessels would be several inches. “A long way”, he described it. Interestingly, Professor Davidson, without having been referred to Dr Glen’s evidence, used precisely the same phrase, “several inches”, to describe the distance between the abdominal wall and the injured vessels.

94 Professor Maddern emphasised the extent of the variation which occurs between young fit patients and older obese ones. With a young, fit person the distance from the inner lining of the abdomen to the retroperitoneum, he said, would be in the order of 2 to 3 inches.

95 Professor Maddern was, as I have said, an extremely impressive witness. So too was Professor Davidson, who estimated the distance at “several inches”. Of course the word “several” is very imprecise, as Dr Miller pointed out in his evidence. I would take it, however, as meaning more than two. In the circumstances, I think I should accept that, in a young thin person such as Mr Bloodworth, the distance between the abdominal wall and the retroperitoneal vessels in a fully insufflated abdomen would have been in excess of two inches, and probably in the order of three inches.

96 The evidence shows, however, that pressure on the trocar, before it penetrates the abdominal wall, can produce an extensive downward bulging or “tenting” effect on the inside of the abdominal wall which will reduce the distance between the wall and the internal structures. This was illustrated in the videos which were produced by the defendant and shown in court during the course of Dr Miller’s evidence. It will be remembered that the veress needle is only 2 to 3 mm in diameter whereas the trocar is much thicker. Even with the trocar’s sharp point, the abdominal wall, which consists of fibrous tissue, can be resistant to penetration, particularly in a young fit person. It is for this reason, Professor Davidson said, that counter-traction should be utilised when inserting the trocar, normally by lifting the abdominal wall with the assistance of clips. Dr Miller did not mention adopting this procedure when he described Mr Bloodworth’s operation. It would seem unlikely that he did so. However I do not think that I should use this in any way against him. There was considerable evidence in the case that this device can be ineffective in a fully insufflated abdomen. Moreover Dr Truscott said that the use of counter-traction is “not common accepted practice in Australia.”

97 This brings me back to the central question, namely whether Mr Bloodworth’s injuries were attributable to a lack of care on the part of Dr Miller.

98 It is axiomatic that there must have been an error of technique on Dr Miller’s part, or this injury would not have occurred. The trocar went in at the wrong angle and it went in too far. The real question is whether this was a mere misadventure, an inherent risk of this type of surgery which can occur notwithstanding that all due care is taken; or whether, on the other hand, it was an avoidable error which denoted a lack of appropriate care.

99 At this stage it is apposite to refer to the following passage from Whitehouse v Jordan (1981) 1 WLR 246 at 263, which was quoted by Ipp J.A. in his judgment in this case (insert citation of appeal judgment)

“The true position is that an error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have a standard and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligent”.

100 As I have indicated, there is a sharp division between the medical experts on this matter. Both Professors Boulos and Davidson considered that this was an unacceptable and avoidable injury. Professor Davidson described it as “extremely unlikely” that this injury would occur if due care was taken by the surgeon. As Professor Davidson put it, “there are some injuries which might occur in laparoscopic cholecystectomies despite excellent technique and a very high standard of care”. However he did not consider that major vascular injury fell within that spectrum.

101 The surgeons called by the defendant at the last hearing did not agree with this assessment. Drs Sheldon and Glen considered that injury to the iliac vessels was an intrinsic risk associated with the blind introduction of sharp instruments into the peritoneal cavity. Even with an experienced and careful surgeon, they said, this type of injury can occur. Professor Maddern, in his report dated 28 May 2003, made the following comment about Professor Davidson’s assertion that this was an unacceptable injury.

“I find it difficult to accept, given that trocar injuries do occur and have been reported to occur widely in the literature from careful surgeons. It is an unfortunate and rare injury, but to state that it is unacceptable shows little regard for problems of mechanical failure, unusual anatomy or accepted misadventure which occurs with any surgical intervention.”

102 In this particular case, we can put aside the possibility of mechanical failure or unusual anatomy. There is no evidence of any malfunction in the disposable trocar used by Dr Miller which was thrown away immediately after this operation. Nor was there any suggestion that Mr Bloodworth had an “unusual anatomy.” His only previous surgery was an appendectomy. The evidence indicates that this is unlikely to leave adhesions in the area where the iliac vessels lie. Indeed Mr Glissan expressly disclaimed the suggestion that Mr Bloodworth had any relevant anatomical abnormality.

103 The third category mentioned by Professor Maddern was “accepted misadventure”, and the central question here is whether Mr Bloodworth’s injury was indeed an accepted misadventure, or whether it was an unacceptable one which denoted a lack of appropriate care. The onus, of course, lies upon the plaintiff to establish the latter, so that if I am unable to say which it was, then he must fail.

104 As discussed earlier, this injury is an extremely rare one. The incidence of vascular injury generally is very low in laparoscopic surgery, and this is only one of the vascular injuries which can occur. If anything, this probably weighs in favour of the plaintiff. If the risk of this type of injury is an ever present feature of this type of surgery, as the defendants’ experts say, why does it happen so rarely?

105 It is to be remembered that the fact of this injury inevitably denotes a two-fold error on Dr Miller’s part. Not only was the trocar inserted too far, but it was inserted at the wrong angle.

106 I acknowledge the evidence of the defendants’ experts that the misangulation of the trocar is an easy mistake to make. Nevertheless, it is an extremely dangerous mistake which a careful surgeon should seek at all costs to avoid. It was suggested in the evidence that an operating surgeon might become disorientated by the patient being in the Trendelenberg position, thus leading the surgeon to miscalculate the angulation of the needle or the trocar. But, as Professor Davidson pointed out, it is the surgeon who puts the patient in this position, so he or she should not be disorientated by it.

107 This was, however, only one of the errors made by Dr Miller during this operation. The second, of inserting the trocar too far, is even more inherently dangerous. It is also, in my view, an error which can be avoided with the exercise of due skill and care. In this respect it is to be remembered that the trocar passed not only through the fully insufflated abdomen, but it also penetrated through the retroperitoneum and the iliac artery before piercing the iliac vein, which lies behind the artery. Moreover Mr Bloodworth was, as I have said, a thin, fit man. It was likely that he had little if any subcutaneous fat, and his abdominal wall would therefore have been quite thin, as Dr Miller should have known. Yet in order to inflict these injuries, the trocar must have been inserted to a considerably greater depth than would have been required in order to pierce this wall.

108 There are two respects in which I find it extremely difficult to reconcile Dr Miller’s account of this surgery with the fact that these injuries occurred. The first, which is probably of little importance to the central question of negligence, is simply this. Assuming that the injury was caused by the trocar, which by definition must have been inserted too far, why did this not become obvious when Dr Miller inserted the camera? Dr Miller said that the camera showed a normal abdominal cavity, with normal omental fat. In other words, when the camera was inserted, the trocar was in its correct position, immediately inside the abdominal wall. There are two possible explanations for this. The first and most likely, is that Dr Miller had already retracted the trocar some distance before he inserted the camera. The only other explanation is that it was the veress needle which caused the injury, and the trocar never penetrated beyond the abdominal cavity. However for the reasons given above I must assume that it was the trocar, not the needle, which caused this injury.

109 The other portion of Dr Miller’s evidence which I find difficult to reconcile with the fact of this injury is his description of the insertion of the trocar. In his previous evidence, Dr Miller said that he felt “minimal” resistance as he inserted the trocar into Mr Bloodworth’s abdomen. He repeated this on a number of occasions. It was one of the reasons he told Dr Doolan that he thought internal haemorrhaging was unlikely.

110 It is, as indicated, difficult to reconcile an easy entry of the trocar with the fact of this injury. Most doctors assumed that the abdominal wall must have tented downward whilst the trocar was being introduced, thus bringing it closer to the iliac vessels. But the evidence relating to the tenting of the abdominal wall is based on the assumption that the wall is resistant to the trocar, and that the trocar needs to be pushed downward on the wall before penetrating it. If this did not happen in Mr Bloodworth’s case, it is difficult to understand how the trocar travelled the distance between the abdominal wall and the iliac vessels without Dr Miller realising it. Why did the sharp point of the trocar not retract in the meantime?

111 These are unanswerable questions on the present state of the evidence. It is always possible, of course, that it was the veress needle that did the damage. But for the reasons already given, the trocar seems to be by far the most likely culprit.

112 It is also more than likely that Dr Miller’s account of this surgery is coloured by hindsight. This is no reflection on the doctor’s credibility. It can and does happen with the most honest of witnesses, particularly when they are describing an unpleasant and unexpected event. Moreover by the time Dr Miller came to give his account of this surgery, a number of years had already passed since January 1992.

113 in January 1992 Dr Miller was relatively inexperienced in laparoscopic surgery. He was experienced in general abdominal surgery and he should have been thoroughly familiar with the anatomical structures involved in this operation. But laparoscopic techniques were still relatively new to him. He was, as he put it, on a “learning curve”. This does not affect the duty he owed to Mr Bloodworth which was a duty to exercise the degree of skill and care that, as a skilled professional, he was expected to have and to take (per Mahony AP in Ainsworth v Levi (unreported, NSWCA, 30 August 1995). But Dr Miller’s inexperience provides a likely explanation for the occurrence of these injuries, rare as they were. The evidence strongly indicates that the incidence of penetrating injuries in laparoscopic procedures is higher with inexperienced surgeons than with experienced ones..

114 In the end, I must conclude that these injuries would probably not have occurred had Dr Miller exercised the requisite degree of skill and care when he conducted this surgery. I make this finding not on the basis of the unanswered questions which I posed earlier. I am well aware of the need for the plaintiff to affirmatively prove his case. And in my view he has done so. This was, as everybody agrees, an inherently hazardous procedure involving the blind insertion of extremely sharp instruments. As such, the operating surgeon was under a duty to take particular care to ensure that the instruments were correctly angled and that they did not penetrate too far. This, on my finding, Dr Miller failed to do.

115 I therefore find in favour of the plaintiff under the first head of negligence.

116 On one view, this makes it strictly unnecessary to deal with the other grounds of negligence relied upon by the plaintiff. However, given the history of this matter, counsel have suggested that I should deal with all heads of negligence. I shall do this, but I propose to be much briefer in my discussion of the other heads than I would have been had they stood alone.

The delayed laparotomy ground

117 This claim is based on the proposition that Dr Miller, as a reasonably prudent surgeon, should have performed an open laparotomy on Mr Bloodworth immediately after he had been resuscitated from his cardiac arrest. This happened at about 3.32 pm. The laparotomy was not performed until after 4.15 pm, when Mr Bloodworth showed signs of haemorrhaging. At that time two to three litres of blood were found in the retroperitoneum and the peritoneal cavity. This was a very significant blood loss, amounting to approximately half of the body’s normal blood. Mr Bloodworth urges that much of this blood loss would have been averted had an earlier laparotomy been performed. This might in turn have reduced the long term damage suffered by Mr Bloodworth as a result of this surgery, particularly his neurological damage.

118 The plaintiff’s case under this head is based upon the proposition that there is such a strong correlation between a CO2 embolism and major vascular injury that a prudent surgeon would not have waited for overt signs of haemorrhaging, but would have immediately conducted an open laparotomy in order to investigate the source of the embolism and prevent any further blood loss. In this, the plaintiff is again relying on the reports and evidence of Professors Davidson and Boulos. Professor Boulos, particularly in the early stages of his evidence, expressed the strong view that a CO2 embolism was inevitably associated with major vascular injury. This proposition was disputed by a number of the other experts. Professor Boulos also said that a CO2 embolism could result from arterial injury, a proposition which all other doctors described as untenable, given that the artery pumps blood away from the heart at much greater pressure than the maximum pressure of CO2 in a fully insufflated abdomen. The damage to the artery would certainly have been responsible for most of Mr Bloodworth’s blood loss, but it was clearly the breaching of the vein which caused the embolism, as it enabled the CO2 to travel up to his heart.

119 The fact that CO2 embolisms are associated with venous, as opposed to arterial injury, is significant, as some of the experts indicated that a CO2 embolism can readily arise from a relatively small venous injury, which will then close up without surgical intervention.

120 There are a number of difficulties inherent in this claimed ground of negligence. Even if I were to find that there had been some lack of care on the part of Dr Miller, the assessment of damages would have been an impossible task. The bulk of the evidence indicates that any brain damage suffered by Mr Bloodworth as a result of this surgery was almost certainly sustained during the period of cardiac arrest. It would not be possible to assess how much, if any, of Mr Bloodworth’s subsequent impairment was attributable to the blood loss he sustained in the forty minutes or so after his revival from the cardiac arrest and before the performance of the laparotomy.

121 This difficulty, however, does not need to be addressed. For I am firmly of the view that no lack of care has been demonstrated in relation to this ground.

122 It is to be remembered that Mr Bloodworth’s cardiac arrest occurred at about 3.20 pm. At that stage the anaesthetist, Dr Doolan, took over the management of the emergency. It was only after heart function had been restored, at about 3.32 pm, that the possibility of laparotomy could be contemplated. At this time Mr Bloodworth was in a critical condition. Very good reason would be required before a patient in that condition should be subjected to major surgery such as laparotomy.

123 The evidence indicated that Dr Miller, as the operating surgeon, had the ultimate responsibility for deciding whether to perform a laparotomy. This decision would generally be made in consultation with the anaesthetist. Interestingly, the anaesthetist in this case, Dr Doolan, was the only expert involved in this case who had any previous experience of a CO2 embolism during the course of laparoscopic surgery. On this previous occasion, the patient had made a full recovery without the need for surgical intervention. Dr Doolan acknowledged that there was a “significant risk” of internal bleeding from a vascular injury after a CO2 embolism, but he would place the risk factor no higher. He emphasised that, for a patient in a critical condition, as Mr Bloodworth was, a laparotomy was a dangerous procedure which should only be performed for good reason.

124 Dr Holland, an experienced anaesthetist, said that it is common to have a CO2 embolism without severe bleeding. Venous injury is always a possibility, he said. However he did not think it was necessary in this case to perform a laparotomy on the basis only of the occurrence of the CO2 embolism.

125 A number of the experts commented that the techniques used by Dr Doolan and the surgical team in dealing with Mr Bloodworth’s emergency were exemplary. The only criticism levelled by the plaintiff, or anyone else for that matter, related to the delay in performing the laparotomy.

126 I do not consider that this criticism is warranted. Still less do I consider that there was any negligence on the part of Dr Miller in delaying the performance of the laparotomy until it was clearly necessary. To the contrary, I think that there would have been a much stronger case against Dr Miller if he had performed an early laparotomy which turned out not to be necessary and which had adverse consequences to Mr Bloodworth.

127 On my finding this ground has not been made out.

128 The remaining ground relates to what were said to be inadequate warnings given by Dr Miller to Mr Bloodworth as to the hazards of laparoscopic surgery and as to his own lack of experience in this field.

The adequacy of warnings given by Dr Miller

129 Mr Bloodworth saw Dr Miller on three occasions before the surgery, on 19 September 1991, 15 November 1991 and 21 January 1992. It was after the second consultation, in November 1991, that Mr Bloodworth was booked in for surgery early in the following year.

130 Mr Bloodworth made a statement in May 1992 in which he said that he saw Dr Miller in about October 1991. Dr Miller explained to him that there was a new procedure for removing gallstones, called a laparoscopic cholecystectomy. The statement continued:

“Not knowing what precisely this term meant, Dr Miller said the procedure involved making a small incision, of no more than 10 cm in length in my lower stomach and inserting into the incision, an instrument which was similar to a gas valve and could be pumped up externally. This gas valve (for want of a better term) was then used to inflate my abdomen so that surgical instruments could be entered through the incision to get up to the area of my gallstones and remove them.
Dr Miller told me that the apparatus for doing this sort of surgery was just coming into the Gold Coast Hospital and that I should wait for about 2 months until around Christmas or after Christmas 1991 to have the surgery done so all the new equipment could be in place.
Dr Miller also told me that I was a prime candidate for this sort of surgery because I was fit and healthy and did not carry much excess body fat at all. Dr Miller did mention that he could not give a guarantee that the surgery would be 100% successful. He asked me to sign a form permitting him to do the removal of the gallstones with the usual incision under the rib cage if there were problems that arose using the new laparoscopic method.
I signed the consent form which would permit Miller to remove my gall bladder using the “old method” which was essentially an incision under the rib cage. Miller did not tell me of any specific dangers or risks in the laparoscopic procedure. He in fact assured me that this new laparoscopic method would be a method adopted for removing gallstones from now on into the future. He implied that the procedure was relatively safe and without major risks or dangers. At least that is what I understood him to mean.
On another consultation prior to the surgery he said to me words to the effect that he was looking forward to working on me because I was a good physical specimen and an ideal candidate for this type of procedure.”

131 Mr Bloodworth’s statement then went on to describe a further consultation with Dr Miller, following which he (Mr Bloodworth) booked himself into the Gold Coast Hospital for an operation the following January. There was no reference to any conversation at that consultation except in relation to Mr Bloodworth’s status as an intermediate or public patient.

132 At the previous hearing Mr Bloodworth gave evidence that Dr Miller told him, at either the first or the second visit, of the advantages of laparoscopic surgery. Mr Bloodworth could not recall on which occasion any specific statement was made. Dr Miller told him that laparoscopic procedures were less traumatic, there was a shorter stay in hospital and that there would be minimal scarring. He said that this was the surgery of the future. Dr Miller did not, Mr Bloodworth said, tell him of any disadvantages in this type of surgery, but he did warn him that it sometimes had to be converted to an open procedure because of, for instance, blood on the camera. Dr Miller told him that he had to do this in two or three of the last fifteen operations he had performed. As to Dr Miller’s level of experience, Mr Bloodworth said that he knew from Dr Miller’s business card that he had an honours degree from Sydney University. As he put it, “I was happy as Larry with that.” At some stage, Mr Bloodworth said, he asked Dr Miller a question about surgical experience in laparoscopies. He was unable to remember the precise terms of the question, but he did remember the answer, which was; “all our surgeons have done the same amount of operations. We have all had the equipment the same amount of time.” He did not remember Dr Miller telling him that he was on a learning curve. Mr Bloodworth said that if he had been told that Dr Miller was “relatively inexperienced” in the laparoscopic technique, he would not have used his services.

133 As to Dr Miller’s version of these events, the plaintiff tendered his answers to interrogatories dated 27 March 1997. In these answers, the doctor said that he did not have an exact recollection of what was said at each consultation with Mr Bloodworth. However he recalled that Mr Bloodworth asked a number of questions about the benefits and risks of the laparoscopic procedure and that he was very thoughtful and pondered the responses to his questions. Based on his recollection and on his usual practice at that time, Dr Miller said that he would have told Mr Bloodworth of the benefits of undergoing laparoscopic cholecystectomy, which included avoiding a large cut in the abdomen and a much shorter recovery time. He said that he would have told Mr Bloodworth that the risks of the procedure included problems resulting from difficulties with the identification of the patient’s anatomy and excessive bleeding. He would have stressed that if there were any problems at all, the operation would be converted to an open cholecystectomy while he was still under general anaesthetic. As to his level of experience, Dr Miller said as follows:

“I would have told the plaintiff that the LC was a new procedure that had only been available for about two years in Queensland and that we had been performing it in the Gold Coast Hospital since May 1991. I recall that I told the plaintiff that we were still on a learning curve.”

134 In fact, the evidence shows that, when Dr Miller first saw Mr Bloodworth, in September 1991, he had yet to perform his first laparoscopic cholecystectomy. Indeed the equipment was not yet available at the Gold Coast Hospital to enable this type of surgery to be performed.

135 Dr Miller’s training and experience in laparoscopic cholecystectomies was the subject of considerable evidence at the previous hearing. It started with Dr Miller’s evidence in chief. He said that in about September 1990 he went to a two-day course in Melbourne which involved training in laparoscopic cholecystectomy. The first day and part of the second day involved a series of lectures. They were then put into small groups and given a practical demonstration of the procedure in an animal laboratory using a pig. Subsequent to this Dr Miller attended the Princess Alexandra Hospital in Brisbane where he observed colleagues performing laparoscopic cholecystectomies. He did not participate in the surgery himself, except on one occasion when he held the camera.

136 Dr Miller was unable to remember, when he first gave his evidence, when it was that he first performed a laparoscopic cholecystectomy himself. He thought it was in the latter part of 1991. The first two operations, he said, were performed together with Dr Michael Borten, the director of surgery at the Gold Coast Hospital. One of them had to be converted to an open procedure. They were not happy with the procedure, Dr Miller said, so he contacted Dr Gotley, who was then senior lecturer at Princess Alexandra Hospital, and whom Dr Miller had seen performing a number of laparoscopic cholecystectomies. Dr Gotley agreed to come to the Gold Coast Hospital and perform the procedure for them, with Dr Miller acting as assistant.

137 Dr Miller was cross-examined on the last occasion on the basis that he told Mr Bloodworth, in November 1991, that he had performed fifteen laparoscopic cholecystectomies. He had not performed fifteen at that time, he responded, and he would not have told Mr Bloodworth that he had. He said that he told Mr Bloodworth that the surgeons at the Gold Coast Hospital all had much the same degree of experience in this procedure. He denied that he told him that he had the same level of experience as other doctors in the country.

138 The plaintiff tendered a document setting out a chronology of laparoscopic cholecystectomies performed by Dr Miller at the Gold Coast Hospital. The first of these was performed on 7 October 1991, with Dr Miller and Dr Bennett as principal surgeons and Dr Borten as assistant surgeon. The fourth procedure, on 28 October 1991, showed Dr Miller as principal surgeon and Dr Gotley as assistant. By 15 November 1991, when Dr Miller saw Mr Bloodworth for the second time, he had performed seven laparoscopic cholecystectomies. By the time he performed Mr Bloodworth’s operation, on 28 January 1992, he had performed fifteen, most of them as principal surgeon or joint principal surgeon. These were the only laparoscopic cholecystectomies performed by Dr Miller at that time. He was performing these procedures exclusively at the Gold Coast Hospital.

139 It is unlikely that this document was available to counsel during Dr Miller’s previous evidence. He was not, so far as I can see, directly cross-examined upon it, although the document itself was later admitted into evidence. He was certainly cross-examined about it during his evidence before me. Dr Morrison asked him why he had said in his answers to interrogatories that he and other Gold Coast surgeons had been performing cholecystectomies since May 1991, when in fact they did not commence this procedure until some months later. Dr Miller replied that, when he answered the interrogatories, the medical records were unavailable so he used his best recollection of the dates and numbers of laparoscopic procedures performed by him. Dr Morrison put to him that, when he first saw Mr Bloodworth on 19 September 1991 and advised him to undergo a laparoscopic cholecystectomy, not one of these procedures had been performed at the Gold Coast Hospital, which did not yet have the requisite equipment. Dr Miller agreed that, in retrospect, this was so. However by the time of Mr Bloodworth’s second consultation, some procedures had been performed. He said “I am not sure of the exact dates but there was no attempt to mislead Mr Bloodworth.”

140 Neither Mr Bloodworth nor Dr Miller could recall, by the time they came to give their evidence, what had been said on each of the specific occasions when they met. However some conclusions can be drawn from the surrounding circumstances. For instance, it must have been on the first occasion, in September 1991, that Dr Miller described the laparoscopic cholecystectomy procedure to Mr Bloodworth and told him that the equipment was not yet available. By the time of the second consultation, in November 1991, the equipment had already been installed and some operations had been performed. Similarly, I think it likely that Dr Miller’s reference to the “last fifteen laparoscopic cholecystectomies” was probably made on 21 January 1992. At that time he had in fact performed fourteen. And I do not think that Dr Miller was deliberately dissembling to Mr Bloodworth, in spite of the fact that he grossly understated the number of laparoscopies which had been converted to open procedures by that time.

141 One thing which is clear from the evidence is that Mr Bloodworth was never told that there were specific risks associated with laparoscopic procedures which did not exist with the open procedure. Even on Dr Miller’s version of what was said, the impression was clearly conveyed that any complications which occurred during the laparoscopic procedure could be rectified by converting to an open procedure.

356 In the twelve years or so since the failed surgery Mr Bloodworth has undertaken no form of paid employment. I accept that he has been, to all intents and purposes, unemployable. I consider that his overall condition will almost certainly improve once the stress of this litigation is finally behind him. Even so, I think that his cognitive deficits and his psychiatric problems make it extremely unlikely that he will ever be able to join the paid workforce on any sustained basis. His residual earning capacity must be very limited indeed. McInerney AJ placed it at $100 per week. I take a more pessimistic view. I would assess it at nil up till now, and $50 per week for the future.

357 Notwithstanding Mr Bloodworth’s lack of application, he was, to use his own words, in charge of his life before the failed surgery. Since the surgery his anger, frustration and anxiety have taken over. His behaviour has on occasions become sufficiently extreme to require involuntary admission to hospital. His wife has been forced into the position of being his carer, which has been extremely taxing for her. He is very fortunate indeed that she has had the fortitude to continue in this role.

358 I am certain, as I have already indicated, that matters will significantly improve for Mr Bloodworth after the completion of this litigation. The history of his seizures over the last four years, between the hearing before McInerney AJ and that before me, provides strong support for this. At a time when it seemed that the litigation was probably over, Mr Bloodworth’s condition improved markedly and he suffered very few major seizures. The situation changed dramatically after the Court of Appeal’s judgment. Mr Glissan suggested that this indicated deliberate malingering on Mr Bloodworth’s part. I have already found against him on this issue. Whilst I am strongly of the view that Mr Bloodworth has been exaggerating and embellishing his symptoms, I do not believe that he has been manufacturing them. It would, in any event, not be possible to fake the tonic-clonic seizures which, on my finding, he has experienced.

359 Mr Bloodworth is the first to admit that many, and probably most of his seizures are stress related, and are therefore pseudo seizures. In my view the incidence of these seizures will very significantly decline with the resolution of this litigation.

Qantum of damages

360 The stage has now been reached for me to express my findings in monetary terms. Some of the final figures are not presently available. Were I required to give my final judgment at this point, I would probably need to reconvene the hearing in order to clarify them. However, as I propose to include a component in the plaintiff’s damages for fund management, it will be necessary in any event to deliver this judgment on an interim basis and defer my final judgment until the necessary actuarial calculations have been made. It follows that there will be ample opportunity to remedy any present deficiencies in monetary details.

361 First, Mr Bloodworth’s non-pecuniary damages. McInerney AJ awarded him general damages in the sum of $175,000. However there are a number of respects in which my findings differ from his Honour’s. Most importantly, I accept that Mr Bloodworth now suffers from epilepsy. In addition, I consider that Mr Bloodworth’s psychiatric problems are to a large extent attributable to the failed surgery. These are all likely to improve after the litigation is over, but nothing will ever restore him to the person he was before January 1992.

362 In my view an appropriate sum for general damages is $250,000 of which $150,000 is attributable to past losses. I will leave it to the plaintiff’s representatives to calculate interest on that figure at the appropriate rate as at the date of final judgment.

363 The plaintiff has tendered a schedule of out-of-pocket expenses to date. These total $43,925.65. So far as I am aware, the defendants do not dispute this amount. If I am wrong on this, then the defendants will have an opportunity to address the matter. Otherwise I propose to allow that amount in full.

364 Mr Bloodworth is also entitled to interest on out of pocket expenses which have already been paid. The evidence before me does not indicate the extent to which these expenses have been paid. I propose to allow interest on paid expenses at the rate of 11 percent over half the period since the surgery, or 5.1/2 percent over the whole period.

365 I come now to past economic loss. Dr Morrison suggested that Mr Bloodworth’s earnings when he was employed by David Joffe should be the measure of the his continuing economic loss. A similar submission was made to McInerney AJ and rejected by his Honour. His Honour assessed Mr Bloodworth’s weekly earning capacity from 14 February 1992 (the date Mr Bloodworth would notionally have resumed employment following a successful operation) at $450 net per week. His Honour considered that for much of the intervening period Mr Bloodworth would have had a residual earning capacity of $100, which was therefore deducted from this amount. A further discount of 25 percent was made because of likely periods of unemployment during that time.

366 Dr Morrison suggests that Mr Bloodworth should be awarded $625 net per week since February 1992, with no deductions other than the normal 15 percent for vicissitudes. This amount of $625 assumes that Mr Bloodworth’s net earnings would have been $500 per week in 1992, rising to $750 at the present time. This is approximately equal to the net average weekly earnings of all employees in New South Wales in full-time employment. Dr Morrison asserts that this figure strikes an appropriate balance between Mr Bloodworth’s “variable employment history”, and his potential to earn more than the average weekly earnings.

367 In my view this figure fails to take adequate account of Mr Bloodworth’s previous employment difficulties. It is quite possible that Mr Bloodworth, absent the failed surgery, might have settled down and applied himself in some profitable endeavour which held his interest. This possibility must be accommodated for in the crystal ball gazing which marks this exercise. On the other hand, it is very likely that he would have continued to drift from one job to another, interspersed with lengthy periods of unemployment. He certainly had the intellectual ability to earn more than the average weekly wage. However given his lack of application and drive, the likelihood is that his overall earnings would have been significantly reduced by periods of unemployment.

368 Were it not for the failed surgery, Mr Bloodworth would in my opinion, have earned an average of $450 per week between February 1992 and the present time. This would have risen from approximately $350 net per week in 1992 to $550 at the present time, the average being $450.

369 A question remains as to whether I should apply the usual discount of 15 percent for vicissitudes or whether I should increase it, as McInerney AJ did, in order to take account of Mr Bloodworth’s likely periods of unemployment, given his pre-existing employment record. The answer is that I have already taken account of this matter in setting notional earnings which are significantly lower than those suggested by Dr Morrison. I therefore propose to apply the normal discount of 15 percent. The calculation of the final figure must await the date of final judgment.

370 Interest on past economic loss should be allowed at the usual rate of 11 percent over the whole period or 5.5 percent over half the period.

371 As to Mr Bloodworth’s future economic loss, I have notionally fixed his current loss at $550 net per week. From this figure the amount of $50 is to be deducted in accordance with my earlier finding that this is the likely extent of his future residual earning capacity. The resultant figure, of $500 net per week, will become the measure of his loss to age sixty-five. The only remaining question is the discount rate for vicissitudes. Again, I have taken account of Mr Bloodworth’s variable employment history in setting his current loss. Accordingly, the normal rate of 15 percent will apply. The precise amount can be calculated at final judgment.

372 A further claim is made for loss of superannuation benefits. On the assumption that Mr Bloodworth would have worked as an employee from time to time, he would clearly have been entitled to some superannuation benefits. Dr Morrison suggested a round figure of $60,000 would be an appropriate award under this head. I am not sure how this amount has been calculated and am not presently in a position to make a finding on this matter. I leave it to the parties to try to resolve it between them. In order to assist their calculations, my finding is that 50 percent of Mr Bloodworth’s income would probably have been derived through working in an employment situation. If the parties cannot agree on this matter, I will take further submissions on it when I return for final judgment.

373 Dr Morrison has provided a schedule of future out of pocket expenses involving consultations with specialists. These, in combination, total a very large amount of money. They include fifteen consultations each year with Dr Morse, five with Dr Watson, two with a gastroenterologist, plus the cost of nineteen days hospitalisation as a private patient in either Royal Prince Alfred Hospital or the St John of God Hospital, Burwood.

374 Clearly Mr Bloodworth will require professional assistance from time to time in the future. However in my opinion the amounts presently claimed are unrealistically high. The predicted level of care is based upon Mr Bloodworth’s experiences during a particularly difficult and stressful time leading up to the re-hearing of this matter. Just as Mr Bloodworth was able to dramatically reduce his medical consultations after McInerney AJ’s judgment was delivered, so I believe will be the case once this litigation is completed. He will nevertheless require periodic consultations with some specialists, particularly Dr Watson. The reduction in stress will almost certainly reduce the incidence of Mr Bloodworth’s pseudo-seizures, but it will not affect his underlying epilepsy.

375 The costs of these specialist consultations range from $100 per hour to $220 per hour, depending on the doctor and the length of consultation. In my view it would be reasonable to assume that Mr Bloodworth will need about five specialist consultations a year, and that they are likely to be reasonably lengthy. I therefore allow $1,000 per year for attendances upon psychiatrists, neurologists and gastroenterologists. I think he will be unlikely to need hospitalisation at anything approaching the claimed rate. A shared room at St John of God Hospital costs $500 per day. Being as generous as possible, Mr Bloodworth might require four days of hospitalisation in any one year. I therefore allow $2,000 for this component.

376 A further claim is made for twenty-four attendances per annum upon Dr Salgo, Mr Bloodworth’s general practitioner. Dr Salgo has been extremely supportive of Mr Bloodworth and will no doubt continue to see him on a regular basis. However I very much doubt that twenty-four attendances will be required each year after the completion of this litigation. Dr Salgo’s consultations cost $50 or $100 depending on length. I propose to allow $600 on this account.

377 Finally under this head a claim is made for over $56,000 being the costs of future medication at an annual rate of nearly $3,000. Most of this is based on the amount apparently outlaid by Mr Bloodworth at the Hazelbrook pharmacy on unsubsidised rates. I cannot accept that this level of medication will be required indefinitely. Taking a broad-brush approach, I propose to allow two thirds of this amount, namely $2,000 per year.

378 A further claim is made for the cost of transport. Mr Bloodworth has sometimes driven during the twelve years since the surgery. He currently has a licence, but drives little if at all, largely because of the danger of suffering a seizure whilst at the wheel. Dr Morrison acknowledges that he can use public transport but points out that this is not always convenient or available. An allowance of $50 per week for life is sought for taxi fares. I propose to allow $15 per week under this head.

379 A major part of Mr Bloodworth’s claim is for gratuitous services. It is suggested that since the surgery Mr Bloodworth has needed supervisory care during daylight hours which has generally been provided by his wife and sometimes by his parents. The claim is made for ten hours of assistance per day, seven days a week at the rate of $15.50 per hour. There is also a claim for future care over the same period but at a higher rate.

380 I do not understand there to be any dispute as to the rate of these services, but there is a very significant dispute as to whether Mr Bloodworth had any need for care in the past and whether he will in the future. The total amount claimed for care, including interest on past care, is over $3 million. The defendants submit that a claim of this magnitude “is calculated to bring the law into disrepute”. Whilst I think that this language is a little excessive, I agree that the plaintiff’s claim is grossly excessive.

381 I do not propose, at this stage of the judgment, to go back over Mr Bloodworth’s history during the many years since the failed surgery. There have clearly been times when he has needed quite extensive care. particularly back in 1992. At other times he appears to have been able to cope quite well. His needs during these periods would have been minimal.

382 The claim for ten hours of care each day is based on evidence given by Professor John Yeo at the hearing before me. Professor Yeo referred to Mr Bloodworth’s tendency to forget his medication, his inability to drive and his proneness to seizures. He considered that Mr Bloodworth needs an assistant who acts in the role of “domestic assistant, observer, driver, and a person who is responsible for contacting medical services should he have another grand mal attack.” Professor Yeo noted that Mrs Bloodworth had demonstrated a remarkable willingness to fill these roles. However, he thought it unreasonable that she should become disabled through caring for her husband’s disabilities. Professor Yeo considered that Mr Bloodworth was at no particular risk at night. However, he considered that he should have an attendant carer provided during daylight hours.

383 This evidence was given in November 2003. Professor Yeo had previously assessed Mr Bloodworth in June 1996 and again in March 2003. He had provided the plaintiff’s solicitors with two reports. In each of these he suggested that Mr Bloodworth required domestic assistant for two hours a day “mainly to act in the role as observer and to ensure his safety and the appropriate completion of normal activities of daily living.”

384 On the basis of this material, the plaintiff’s claim before McInerney AJ was for domestic assistance for two hours each day, both in the past and the future. McInerney AJ considered that this was excessive, apart from a period shortly after the surgery, and allowed both past and future care for only one hour each day.

385 The change in Professor Yeo’s assessment of the amount of care needed by Mr Bloodworth was brought about, not by any change in Mr Bloodworth’s presentation between 1996 and 2003, but by Professor Yeo’s reading of Mrs Bloodworth’s evidence before me. He had not previously realised, he said, the extent of the burden upon her in caring for her husband.

386 A number of comments can be made about this. I have thus far abstained from making any observations about Mrs Bloodworth’s credibility. In general, I think that she is an admirable woman who has coped extraordinarily well with a very difficult situation. However I think that she, like her husband, has tended to exaggerate some of their difficulties. Moreover Mr Bloodworth’s numerous problems were clearly at their worst over the eighteen months before Mrs Bloodworth gave her evidence. I am firmly of the view, as I have said many times, that Mr Bloodworth will improve in all aspects of his life when this litigation is over and he again becomes, as he puts it, “de-stressed.”

387 I can find no justification, either in principle or in logic, for claiming past care of two hours per day in 1999 for the whole period since 1992 and then amending it to ten hours per day in 2003, again for the whole of the intervening period.

388 In many ways I agree with the conclusions reached by McInerney AJ on this matter. His Honour allowed care of one hour per day both for the past and the future. I propose to allow it at the rate originally sought, namely two hours per day. This is a reflection of my opinion that Mr Bloodworth suffers more serious problems than his Honour thought to be the case.

389 In the end, I propose to allow for care on the following basis. For one month after Mr Bloodworth’s discharge from hospital on 2 February 1992, I propose to allow five hours of care per day at the agreed rate. For the next five months I allow care at the rate of three hours per day, except for the period when Mr Bloodworth was in hospital for his second operation. Thereafter I allow it at two hours per day up to the time of judgment. I similarly allow it at two per day for the future. I allow interest on the cost of past care at the normal rate.

390 A claim is also made for handyman’s assistance for two hours a week. The evidence indicates that Mr Bloodworth is capable of undertaking most chores around the house, but he cannot work at heights. This, as I understand it, is the principal basis upon which this claim is made, I share McInerney AJ’s view that this level of assistance is not justified. His Honour allowed half an hour per week under this head, and I propose to do the same.

391 The final component in the plaintiff’s claim relates to fund management. Mr Bloodworth has, by reason of Dr Miller’s negligence, a reduced capacity to manage the significant amount of damages which will be awarded to him in this case. He will, in my view, require professional assistance in managing this award. Given that his inability in this respect is attributable to the defendants’ negligence, he is entitled to the cost of fund management. This cost cannot be assessed until actuarial calculations have been made based on the size of the award itself. The final amount will then become part of the plaintiff’s verdict.

392 The figures representing these findings as at the date of final judgment are set out in the “Summary” at the end of this judgment.

Footnote

393 On the 6 April 2004 I delivered an interim judgment in this matter in which I set out the heads of damages which I proposed to award. I set the matter down for hearing today (14 April 2004) in order for an actuarial report to be obtained in the meantime.

394 That report has now been obtained by the plaintiff's lawyers and all relevant calculations have been made upon the basis that final judgment is to be given today. The total figure is $1,769,391.65. The defendant does not dispute the accuracy of the calculations, or the fact the final figure correctly represents the findings I made in my interim judgment.

395 Two further matters remain outstanding. The first relates to costs. Dr Morrison, on behalf of the plaintiff, tells me that an offer of compromise was made by the plaintiff on 7 April 1999 to settle the matter upon receipt of $1.5 million, plus costs. Dr Morrison relies upon Pt 52A r 22 (4) in urging that I should order that the defendant pay costs on an indemnity basis from that day on.

396 The situation in this case is complicated by the fact that there was, in the latter part of 1999, an earlier trial, which resulted in a verdict for the plaintiff of a much lesser sum, a little over one million dollars. Accordingly, there was no question of indemnity costs on the basis of that award. The defendant appealed to the Court of Appeal, contesting both liability and quantum. The Court of Appeal did not deal with the issue of quantum, but allowed the appeal on the issue of liability. The Court ordered that there be a new trial, both as to liability and damages, and ordered that the costs of the first trial abide by the costs of the second trial. That was the trial before me.

397 I was initially concerned that the history of the litigation might derogate from the force of rule 22(4), and might provide a basis for me to make a contrary order. However, Dr Morrison has very strongly urged that this offer should have been accepted when it was made. If it had been, a great deal of time and expense would have been saved. I cannot but agree with this proposition. Indeed this was precisely the objective which gave rise to the rule in the first place.

398 I was also at one stage concerned that the five years which elapsed between the making of this offer and the giving of the judgment might have brought the amount of the offer up to the level of the judgment; or conversely, the judgment is relatively below the offer. However, I have been persuaded that this is not the case: the interest component in the judgment is relatively low. Nor have inflationary influences in the meantime been sufficient to bring about this result.

399 The final matter which has been raised relates to a stay of proceedings. Mr McDougall, for the defendant, tells me that he has instructions to appeal in relation to both heads of liability in which I found against the defendant, and also in relation to damages. Dr Morrison does not contest the making of a stay, but seeks a condition of payment out of $100,000. The only real issue is the amount of the payment out: Mr McDougall suggests $50,000 would be a more appropriate figure.

400 In the light of the very lengthy history of this matter, and the likely further delay before an appeal is heard, I think that the higher sum as sought by Dr Morrison would be appropriate.

401 I enter verdict and judgment for the plaintiff in the sum of $1,769,391.65.

402 I order, in accordance with Pt 52A r 22(4) that the whole of the costs of this case from 7 April 1999 be paid by the defendant to the plaintiff on an indemnity basis. It goes without saying that the costs until then will be paid on a party to party basis.

403 I order that execution of the judgment be stayed until judgment is given by the Court of Appeal, or an appeal to that Court be withdrawn, whichever be the earliest, upon the following conditions: first, that payment be made to the plaintiff of $100,000 within 28 days of today, and, secondly, that a notice of appeal with appointment be lodged within 28 days of today.

SUMMARY :

General Damages: $250,000.00

Interest on past general damages ($150,000): $36,642.00

Out of pocket expenses: $43,925.65

Interest on paid out of pocket expenses: -

Past loss of earnings:
(From 14.2.1992 to date of judgment $286,712.00
at $450 per week,

less 15 % for vicissitudes)

Interest on past economic loss: $96,279.00

Future economic loss:
($500 per week to age 65 less 15%) $311,822.00

Lost superannuation benefits: - past - $59,650
- future - $48,874
Total $108,524.00

Future medical, hospital and pharmaceutical costs:
($5,600 per annum for life) $118,138.00


Transport costs: - past $9,544.00
($780 - per annum for life) interest $3,198.00
future $16,512.00
Total $29,254.00
Loss of past care:
(at rates specified in judgment) $141,826.00


Interest on past care: $48,779.00

Future care:
(2 hours per day for life) $41,852.00

Handyman’s assistance: past $7,958.00
(½ hour per week for life)

interest $2,669.00

future: $13,760.00 $24,387.00

Fund management. $231,250.00

TOTAL $1,769,391.65

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Last Modified: 04/27/2004