BOGUSLAWA Kula by her Next Friend Marek Kula v Stuckey

[2000] WADC 193

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   BOGUSLAWA KULA by her Next Friend MAREK KULA -v- STUCKEY & ORS [2000] WADC 193

CORAM:   FENBURY DCJ

HEARD:   2, 3, 7-10, 13-17, 20-22  MARCH 2000

DELIVERED          :   28 JULY 2000

FILE NO/S:   CIV 1736 of 1992

BETWEEN:   BOGUSLAWA KULA by her Next Friend MAREK KULA

Plaintiff

AND

BRONWYN STUCKEY
First Defendant

TERRANCE THOMAS
Second Defendant

THE BOARD OF MANAGEMENT OF KING EDWARD MEMORIAL HOSPITAL FOR WOMEN
Third Defendant

Catchwords:

Negligence - Breach of duty - Endocrinologist and Gynaecologist - Infertility treatment - Duty to warn of risk of stroke - Failure to warn - Whether material risk - Causation

Negligence - Breach of duty - Endocrinologist and Gynaecologist - Negligent treatment - Causation

Negligence - Damages - Stroke - Loss of intellectual capacity, permanent left sided partial disability, loss of use of left arm - Non English speaking migrant - Aged 44

Legislation:

Nil

Result:

Second defendant negligent and claim allowed.  Claim against first defendant and third defendant dismissed

Representation:

Counsel:

Plaintiff:     Mr T Lampropoulos and Mr M Herron

First Defendant             :     Ms C McLure QC

Second Defendant         :     Ms C McLure QC

Third Defendant           :     Ms C Thatcher

Solicitors:

Plaintiff:     Gibson & Gibson

First Defendant             :     Minter Ellison

Second Defendant         :     Minter Ellison

Third Defendant           :     State Crown Solicitor

Case(s) referred to in judgment(s):

Bennett v Minister of Community Welfare (1992) 176 CLR 4098

Chappell v Hart (1998) 195 CLR 232

F v R (1983) 33 SASR 189

Hoogwerf, 63 ACR 302

Morris v Zanki (1997) 18 WAR 260 at 270D

Rogers v Whitaker (1992) 175 CLR 479

Scarf v State of Queensland & Anor [1998] QSC 233

Western Australia v Watson (1990) WAR 248

Wilson v McLeay (1981) 106 CLR 523

Case(s) also cited:

Adelaide Stevodoring Co Ltd v Forst (1940) 64 CLR 538

Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542

Anderson v Bowden, unreported; FCt SCt of WA; Library No 970674; 4 December 1997

Barnett v Chelsea and Kensington Hospital [1969] 1 QB 428

Cassidy v Ministry of Health [1951] 2 KB 343

Commissioner for Government Transport v Adamcik (1961) 106 CLR 292

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553

Gensicke v Keep, unreported; SCt of Tas; BC9400392; 4 May 1994

Grams v Grams & Anor, unreported; SCt of NSW; BC9604455; 29 August 1996

Hunter v Scott [1962] Qd R 77

John James Memorial Hospital v Keys [1999] FCA 678

Jones v Dunkel (1959) 101 CLR 298

Kite v Malycha 71 SASR 3-8

May v O'Sullivan (1995) 92 CLR 654

Naxakis v Western General Hospital [1999] HCA 22

Newman v Nugent (1994-95) 12 WAR 119

Percival v Rosenberg [1999] WASCA 31

Roe v Minister of Health [1954] 2 QB 66

Royal Perth Hospital & Anor v Frost, unreported; FCt SCt of WA; Library No 970069; 26 February 1997

Shoemakers of Australia Ltd v Fernandes (1976) 10 ALR 303

Tai v Saxon, unreported; FCt SCt of WA; Library No 960113; 8 February 1996

TABLE OF CONTENTS

The plaintiff's capacity.................................................................................... 6
The plaintiff's history...................................................................................... 7
Fertility treatment procedures......................................................................... 8
The allegation of failure to warn ‑ the pleading.............................................. 11
Dealings between the plaintiff and Dr Stuckey - warnings and advice............. 12
Mr Kula....................................................................................................... 12
Dr Stuckey................................................................................................... 16
Findings on warnings given by Dr Stuckey................................................ 20
Knowledge of the risks of OHSS ‑ stroke...................................................... 21
Causation..................................................................................................... 23
Allegation of failure to warn ‑ Dr Terrance Thomas the second defendant....... 24
Evidence of Dr Terrance Thomas.................................................................. 24
Findings on warnings given by Dr Thomas................................................ 28
Allegation of failure to warn ‑ KEMH third defendant................................... 29
Finding on warnings given by KEMH........................................................ 29
Alleged negligent treatment ‑ first defendant................................................. 29
Evidence of Dr Stuckey's on infertility treatment of plaintiff.......................... 31
Expert evidence concerning Dr Stuckey's treatment ‑..................................... 36

Professor Jansen.................................................................................. 37
Dr Keeping.......................................................................................... 39

Findings on appropriateness of administration of Metrodin ........................

by Dr Stuckey................................................................................... 42

Alleged failure to measure oestradiol on 21 March ‑ and allowing plaintiff to inject Profasi.................................................................................................................... 48
Findings on allegations of negligence against first defendant ‑ Dr Stuckey 50
24 March ‑ Admission to KEMH.................................................................. 52
Laboratory investigations on admission......................................................... 60
Plaintiff's fluids on 24 and 25 March............................................................. 60
Allegations of negligent treatment against second defendant Dr Thomas........ 61
The issues concerning blood tests and fluids.................................................. 63
Dr Thomas' evidence concerning 24 and 25 March........................................ 63
Expert witnesses ‑ Re: 24‑25 March.............................................................. 73

Dr Cameron the intensivist ‑ for the plaintiff........................................ 73
Dr William Carroll - neurologist.......................................................... 77
Dr Barrie Walters ‑ physician for the defendant.................................... 79
Dr P J Richardson ‑ plaintiff's GP........................................................ 85
Dr Raven and Dr Baker ‑ opposing haematologists............................... 87
Dr Baker............................................................................................ 91

Infertility experts.......................................................................................... 96

Professor Jansen for the plaintiff......................................................... 96
Dr  Keeping for the defendant.......................................................... 108
Dr Campbell for the defendant.......................................................... 118

Findings on allegations of negligence against second defendant

Dr Thomas...................................................................................... 125

Whose patient was the plaintiff................................................................... 126
Causation................................................................................................... 127
Findings on allegations of negligence against the third defendant........... 129
ASSESSMENT OF DAMAGES................................................................. 130
The injury.................................................................................................. 130
Pre‑accident history.................................................................................... 133
Non‑pecuniary loss..................................................................................... 136
Economic loss............................................................................................ 138
Past economic loss..................................................................................... 138
Past loss of superannuation......................................................................... 143
Interest....................................................................................................... 144
Future economic loss.................................................................................. 144
Loss of future superannuation..................................................................... 145
Past gratuitous care ‑ whilst plaintiff in hospital........................................... 145
Past gratuitous services ‑ period 14 July 1990 to trial................................... 145
Interest on past gratuitous services.............................................................. 155
Future care and services.............................................................................. 155
Gardening and home maintenance............................................................... 156
Past medical expenses................................................................................ 157
Future medical expenses............................................................................. 157
Future cost of appliances and aids............................................................... 158
Additional holiday expenses....................................................................... 159
Administration of Trust costs...................................................................... 160
GST expenses............................................................................................ 160
Assessment................................................................................................ 160

1FENBURY DCJ:  This is an action for damages for negligence brought by a woman who suffered severe disability caused by a stroke allegedly triggered by the side effects of a programme of ovarian stimulation treatment for infertility.  The plaintiff brings the action by her next friend who is her husband.

2The first defendant is an endocrinologist who conducted the programme of ovarian stimulation of the plaintiff.  The second defendant is a gynaecologist to whom the plaintiff was referred for advice and treatment for infertility by her general practitioner.  The second defendant referred the plaintiff to the first defendant for ovarian stimulation.  The third defendant is the hospital where the plaintiff was admitted a short time prior to the "cerebro‑vascular accident", the stroke, occurring.

3In the statement of claim the plaintiff alleges that the first and second defendants were negligent in failing to warn of the risks and side effects of the programme of ovarian stimulation and the risk of developing ovarian hyper-stimulation (OHSS).  The plaintiff also alleges negligence in management and treatment on behalf of both the first and second defendants and also the third defendant.

The plaintiff's capacity

4I was informed by counsel for the plaintiff that she brings the action by her next friend because of disabilities she suffers as a result of the stroke.  Those disabilities are exacerbated by the plaintiff's linguistic problems.  The combination of the plaintiff's difficulties has resulted, I was told, in the plaintiff being unable to conduct the proceedings herself.  Furthermore, at T34 counsel for the plaintiff said:

"We won't be calling the plaintiff herself because she can't give reliable evidence."

5The plaintiff did not give evidence.  This was the subject of criticism by counsel for the first and second defendants.  The effect of the criticism was that the Court should have been required to go through the exercise of attempting to receive evidence from the plaintiff in spite of the information provided by her counsel.

6Counsel referred to the case of Hoogwerf a decision of the Court of Criminal Appeal in Western Australia reported in 63 ACR 302 where the principles governing the competence of an intellectually handicapped witness were discussed. It is a question of fact for the trial judge.

7This trial ran for 14 days.  The plaintiff and her husband were present throughout.  The plaintiff and her husband barely ever communicated with each other during the trial.  On some occasions the husband appeared to try and explain something to the plaintiff and she appeared to listen.  On no occasions did I ever see the plaintiff appear to say anything to her husband during the trial.

8Having regard to the medical evidence, the evidence from the occupational therapists and the evidence from the friends of the plaintiff and my own observations, I do not agree that the plaintiff's failure to give evidence should be held against her in any legal sense.  Although I did not hear from her I am satisfied on the balance of probabilities that she could not give reliable evidence.  I think it is likely she would have been called if she had had any value as a witness.  Calling her to demonstrate her handicap did not seem to me to be necessary.

The plaintiff's history

9The plaintiff was born on 13 January 1956 in Warsaw, Poland.  She and her husband met at an early age.  The plaintiff completed secondary schooling in Warsaw and then at about the age of 19 commenced studies with a view to becoming a teacher or coach in physical education.  The plaintiff was an only child who was active in sport.  She was athletic and showed skill in the 100m hurdles.

10The relationship between the plaintiff and her husband became more serious when she was in her mid 20's.  She had married disastrously previously and when she became able to do so she and her husband commenced to live together.  They then decided they would emigrate to Australia.

11Prior to entry into Australia the plaintiff and her husband left Poland and went to Greece where they stayed for an undefined period and where they eventually married on 21 January 1987.  In due course they made their way to Australia, arriving in Perth via Melbourne in September of that year.  At the time of arrival the plaintiff's English was very limited.

12Prior to arriving in Australia the couple had already experienced concerns about their ability to have children.  Shortly after their arrival in Australia they sought help concerning infertility from a general practitioner, Dr Peter Richardson,  They were referred to a specialist obstetrician and gynaecologist, Dr Mary Watt.  Various steps were taken by Dr Watt in 1988 and in November of that year it became known that the plaintiff suffered from polycystic ovary syndrome (PCOS).  The plaintiff was referred to Associate Professor Giles at the premises of the third defendant for further fertility treatment and she was in due course seen by Dr Thomas, the second defendant, in April 1989.

13On 19 April 1989 Dr Thomas wrote a letter referring the plaintiff to Dr Stuckey the third defendant for infertility treatment (exhibit 10.14).  Dr Stuckey was then located at the Reproductive Medicine Research Institute at the Queen Elizabeth Medical Centre, also known as Sir Charles Gairdner Hospital.  After referring the plaintiff to Dr Stuckey Dr Thomas had no further dealings with her until March 1990, apart from carrying out ultrasound examinations on behalf of Dr Stuckey and the Reproductive Medicine Research Institute.

Fertility treatment procedures

14The first defendant is a specialist endocrinologist and expert in the treatment of infertility for women who had pregnancy problems caused, inter alia, by polycystic ovary syndrome (PCOS).  The plaintiff suffered from this syndrome which affects one in five women.  It manifests itself in various degrees of severity.  In his report (exhibit 17 p31) Prof Jansen explains PCOS as:

"A condition in which there is a deficiency of the natural hormone follicle stimulating hormone (FSH) and an increase in the other hormone (LH) (luteinizing hormone) with the result that ovulation fails, many small follicles accumulate (which gives the ovary a micropolycystic look on cross‑section) and tissue around the follicles produce an excess amount of androgen, or male sex hormone."

15When a woman with the plaintiff's problems is treated for infertility, hormones are administered to her in carefully measured and timed doses in order to stimulate her ovaries.  This is done at precise stages of the menstrual cycle.  Once stimulated and if a suitable follicle is produced, then carefully scheduled natural intercourse takes place with, hopefully, conception.  Sometimes too many follicles are produced for safe single conception to be contemplated and thus intercourse does not take place, and the cycle is abandoned and deemed a failure.  Another attempt can be made in the following month (cycle).

16Put in more technical terms, the treatment for the plaintiff involved the administration of three drugs named Lucrin, Metrodin and Profasi.

17Lucrin is a drug used to desensitise the pituitary gland to natural gonadotrophin‑releasing hormone (GnRH) normally produced by the brain to drive the pituitary's production of FSH and LH.  Lucrin is used in IVF treatment so that the patient's own pituitary gland is inhibited from responding to rising ovarian oestrogen production by releasing a surge of LH.  Such an LH surge is what normally triggers ovulation of a follicle that has been matured by exposure to FSH.  An LH surge that occurs prematurely spoils the treatment cycle because the follicles are too small to respond properly.  (Exhibit 17 p32).

18In patients with PCOS the administration of Lucrin can cause hyper-stimulation of the ovaries.

19Metrodin as Prof Jansen explains on p33 of exhibit 17:

"Is a human menopausal gonadotrophin (hMG) from which LH has been extracted, yielding almost pure FSH, or follicle stimulating hormone. …Metrodin must be monitored with frequent estimations of serum oestradiol (formed here by the Reproductive Medicine Research Institute Inc) and observations of ovarian follicle size and number by ultrasound (performed here by Dr Thomas' IVF ultrasound service)."

20Profasi is human chorionic gonadotrophin (HcG) which mimics LH and causes mature follicles to undergo the process of ovulation, which usually follows 38 hours later; further doses are typically given to support progesterone production from the post ovulatory ovary (p33).

21It was common ground that a person, like the plaintiff, who suffered from PCOS, was more susceptible to the development of ovarian hyper-stimulation (OHSS) as a result of receiving infertility treatment.

22Prof Jansen described how the process of ovarian stimulation operates and he also explained the GIFT procedure.  He then explained the way in which ovarian hyper-stimulation syndrome can result.  He described the nature of that condition as follows at transcript 321:

"It’s a clinical condition, potentially serious, that only occurs with ovaries that have been stimulated not just with follicle stimulating hormone but have also been induced to ovulate with either natural LH or exogenously given, administered in other words, HcG (Profasi ‑ my insertion).  It's well known that the ovaries can enlarge hugely as a result of follicle stimulating hormone treatment, but provided that no HcG is given then there is no risk of the ovarian hyper‑stimulation syndrome.  What characterises or what distinguishes the syndrome from just large ovaries and abdominal discomfort from the big ovaries is an increase in permeability of blood vessels in the abdominal cavity particularly.  It was recognised by the 1970's that this syndrome existed and could be dangerous and also that it absolutely required the administration of HcG for the risk to be run.  Understanding of all the things that go wrong has been slow but it has been recognised that a leakage of water out of the blood vessels and into particularly the abdominal cavity is a feature of the condition and that complications largely follow from that which include dehydration within the blood vessels which can be difficult to pick clinically because the tissues themselves can be quite water logged because the water has seeped out of the circulation system, out of the blood vessels, and into the tissues.  The serious risks are a blood clot forming in a major vessel, either a vein or an artery, and those complications had been recorded by the 1970's as characterising ovarian hyper stimulation syndrome.  So it does require follicle stimulation hormone but the syndrome itself will not happen without the administration of HcG.  One of the difficulties with forecasting this condition is that its not known why some people seem to develop it more easily than others.  Its occasionally been reported for instance even with I believe a natural ovulation yet others with very many follicles and oestrogen levels that are comparatively high don't necessarily develop the syndrome to a clinically important extent."

23According to the evidence of Dr Stuckey, the first defendant, there are two different regimes in which Lucrin is administered, being known as long and short "down regulation".

24Short down regulation occurs where the Lucrin is given at the same time as the Metrodin for 2 or 3 weeks.  Long down regulation is where the Lucrin is given for a period prior to the commencement of the Metrodin.  Where a patient receives long down regulation it is necessary to give Profasi in the luteal phase (post ovulation).  It was the procedure at the Institute where Dr Stuckey was based that Lucrin and Profasi would be administered by the patient herself after she received appropriate instruction and that was the procedure followed in the case of the plaintiff.  She self administered both Lucrin and the post luteal phase Profasi.

25It was common ground that the plaintiff underwent five treatment cycles with Dr Stuckey in the period from May 1989 to March 1990.  I think it is useful to pause there and note that each cycle, having failed to result in conception, produced a rising level of disappointment for the plaintiff and her husband, as it does for every couple struggling to conceive.  The processes are inconvenient, time consuming and unpleasant.  Having regard to the object of the exercise to submit to the procedures of taking the drugs, having blood tests and urine tests and the like for up to a month per cycle and then to realise it has all been for nothing, causes particular disappointment and anguish.  Quite understandably members of the medical profession who practice in the area empathise with their patients and are strongly motivated to maximise the chances of their patient falling pregnant and maintaining the pregnancy.  Similarly, in a sense, it seems to me that couples who undergo infertility treatment and suffer the disappointment of one abandoned cycle after another can quite understandably become desperate to succeed.

The allegation of failure to warn ‑ pleadings

26The particulars of negligence alleged against the first defendant, Dr Stuckey, are contained in par 24(a), par 24 (b) and par 24 (d) of the statement of claim which read as follows:

"24.The first defendant was negligent in that she:

(a)failed to advise the plaintiff of the known dangers and side effects of the prescribed medications Lucrin, Profasi and Metrodin and in particular, that there was a risk they would cause hyper-stimulation, thus depriving the plaintiff of the opportunity to consider proper advice and to make an informed decision whether to proceed with further ovarian stimulation;

(b)failed to explain to the plaintiff or warn the plaintiff of the risks of hyper-stimulation and the clinical symptoms of hyper-stimulation, including the fact that too much hyper-stimulation may adversely affect the patient's health, thus depriving the plaintiff of the opportunity to consider proper advice and to make an informed decision whether to proceed with further ovarian stimulation; …

(d)failed to explain to the plaintiff or warn the plaintiff of the risk of a cerebro‑vascular accident from the taking of gonadotrophic medications, thus depriving the plaintiff of the opportunity to consider proper advice and make an informed decision whether to proceed with further ovarian stimulation."

Evidence of warnings given by first defendant ‑ Dr Stuckey

27The plaintiff's husband, Mr Marek Kula and Dr Bronwyn Stuckey were the only witnesses who gave evidence about what occurred from the period commencing 18 May 1989 and thereafter up until about March 1990.  There was a conflict of evidence concerning what was said at various meetings but much of what happened in a medical sense was uncontentious.

Mr Kula

28As I have mentioned, because of the incapacity of the plaintiff, essential evidence on her behalf was given by her husband Mr Kula.  Mr Kula was obviously an intelligent and educated man who had a much better command of English in 1990 than his wife.  Given the passage of time since these events it is not easy to judge how fluent Mr Kula was 10 years ago.  However he says that he acted as his wife's interpreter at all times save for the first interview that she had with Dr Stuckey on 18 May 1989.  On that occasion Mr Kula arranged for the plaintiff to attend upon Dr Stuckey accompanied by an independent Polish interpreter.  The interpreter was not called to give evidence in the trial.  Mr Kula organised for the interpreter to attend because he was concerned his wife might feel reluctant to discuss matters relating to her infertility if he was present.

29In his evidence in chief Mr Kula said that he could recall that his wife said nothing, following her meeting with Dr Stuckey, about any risks of undergoing ovarian stimulation.  Objection was taken to this evidence upon the basis that it was hearsay.  It was asserted that it is just as objectionable for a witness to say what another person did not say to him, that person not being called, as it is for him to give evidence of what was said.  Although allowed to be led I agree that Mr Kula's statement that he could recall that his wife said nothing about any risks following the meeting is hearsay and I place no weight upon it.  In any event, in cross‑examination, Mr Kula qualified his evidence by saying that he could not remember anything that his wife told him following that meeting with Dr Stuckey.

30Mr Kula said that if he had heard warnings of the risks of undergoing ovarian stimulation then he would have urged his wife to proceed and take any risks until events occurred which gave rise to an increasing chance of the risk arising. 

31In giving his evidence Mr Kula sometimes spoke in the plural which resulted in objection on the part of the first and second defendants.  Clearly it was the plaintiff, Mrs Kula, who was the person who was seeking and consenting to medical treatment.  She was running any risk, not Mr Kula.  Thus the question is whether Mrs Kula was informed when she gave her consent to the procedure.  Not her husband.

32On the other hand I cannot ignore the reality of the situation.  The procedure is, in a sense, a joint procedure.  The wife undergoes the ovarian stimulation and at an appropriate and carefully calculated time her husband is required to have sexual intercourse with her.  It is very unlikely that a wife would participate in the procedure without the consent of her husband.  Similarly the husband would be likely to support his wife in undergoing the procedure.  Mrs Kula had a right to be informed of risks of the procedure but there can be no doubt that she would make her decision influenced by the views of her husband.  I think it is unlikely that she would make a relevant decision in opposition to his views.

33Mr Kula's evidence in chief was to the effect that Dr Stuckey did not give him any warnings concerning his wife undergoing the procedure.  He did not translate any warnings for his wife.

34In cross‑examination Mr Kula appeared less certain in respect of these matters.  He found difficulty in recollection.  This is not surprising given the passage of time.  This action having commenced in about 1992 then it is probable that he was not required to recall details of what he and the plaintiff were told until 2 years after the event.

35It needs to be emphasised that the determination of these issues is made especially difficult by the language problem.  Not only is there an issue about whether a warning or warnings were given but it must also be considered whether any warnings that were given were understood by the plaintiff and her husband.  In any event however it seemed to me following the cross‑examination of Mr Kula that he was less certain than he was in chief about whether or not a warning of any description was given.

36Mr Kula came across as a decent, pleasant, man, who gave me no reason to doubt his honesty.  I think he was doing his best to give me truthful evidence.  The difficulty is his recollection.  His demeanour is not only affected by that but also by the nature of these proceedings being, as they are, proceedings for a substantial sum of damages for the catastrophic effects of his wife's stroke.

37In evidence in chief at T67 Mr Kula was asked:

"If you had been told that there was a risk of over stimulation, and a very small risk that your wife could suffer a stroke or even death, would you have proceeded with the programme?---Possibly we would.

If you had been told that if the signs of over stimulation did appear you would be told and then you would be given the option of continuing or stopping, would you have continued with the programme?---No.

Why not?  You're being asked…if you're told 'there's a risk of over stimulation but we can stop the cycle if that happens' would you have then gone ahead with the programme?---You mean if we were told that there is something ‑ could be something wrong and we were told how it can be seen…

Yes?---…And that if we see the signs we should decide then continue or stop, we probably would continue.

And continue on what basis, from your point of view?---That we can recognise the symptoms and stop the development of the problem.

If you had been told what were the signs of hyper-stimulation and what to look out for what would you have done?---We would be carefully looking at those signs.

For what purpose?---Not to endanger my wife's health and life."

38Mr Kula was obviously referring to a meeting subsequent to the first meeting.

39Mr Kula threw more light on the issue in cross‑examination.  At T219 Mr Kula said:

"I wanted to say that the treatment, to my understanding, was the same for everyone and since people actually are going to the treatment and everyone has the same risk, there must be some kind of controlled risk of something quite bad, that the risk is under control by the doctors, so if we were told that there is some kind of a small risk involved with this, we probably for this reason would go ahead with the treatment.

Can I stop you there.  What's your understanding of the degree of risk of a cerebro‑vascular accident following GIFT infertility treatment?  What have you been told?---Nothing…

Sorry, told nothing or no risk?---I really don't recall that anybody told me about any risks.  Actually, if I understand, the question was what would you do if you were told about the risk?"

40During this trial I became concerned about lack of mutual understanding during the cross‑examination and having expressed those concerns counsel put the question again at T221:

41I am going to start back with Mr Lampropoulos' question:

"If you had been told that there was a risk of over stimulation and a very small risk that your wife could suffer a stroke or even death, would you have proceeded with the programme?  The question I asked you was, what did you understand by the extent of the risk of a stroke at the time you answered this question from Mr Lampropoulos?---Now or then?

When you answered the question last week what did you understand him to mean when he said there was a very small risk?---I would say that quite, quite small ‑ I mean, like, I don't know, like, 1 per 100,000 or something you know very small very really small but you know, this is really ‑ I'm not even sure about this.  I don't really know what to answer it."

42Later on Mr Kula agreed that he believed the risk of stroke following the GIFT procedure to be very small and that he would have proceeded with the GIFT procedure if he had known this at time.  By that of course he means that his wife would have proceeded with the GIFT procedure.

43In re‑examination Mr Kula was asked to explain what he meant when he had made reference to a belief that the risk was controlled following the GIFT procedure and he said at T462:

"I meant ‑ what I actually meant, that the risk we were exposed of ‑ and the other people with similar situations.  This was the infertility clinic so they had the same problem, so I would say that if the treatment is offered the risk is calculated and under control.  That's really my understanding, that they realise that ‑ I would say, importance of dealing with the risk and seriousness of the situation."

Dr Stuckey

44Dr Bronwyn Stuckey is a medical practitioner of considerable experience and expertise in her area of speciality, namely endocrinology.  Dr Stuckey's account of the conversation she had with the plaintiff and Mr Kula also suffered from the fact that it was quite some time after the event that she was first asked to recall what she had stated to her patient and her patient's husband in the nature of warnings.  Concerning her first interview with the plaintiff in the presence of an interpreter on 18 May 1989 Dr Stuckey kept a note which is reproduced in exhibit 10 on pp16 and 17.  Dr Stuckey explained the process to the plaintiff and in particular the mechanism by which the pituitary runs the ovary.  She did this with the aid of a diagram.  Dr Stuckey said that she discussed with the plaintiff the possibility of more than one egg forming and of multiple pregnancy.  However when describing what she said in the nature of warning she often prefaced her remarks by saying "I would have".  At T777 she was asked:

"Are you able to recollect now whether you had a discussion with Mrs Kula on 18 May or your first consultation concerning hyper-stimulation syndrome?---I can't recall it as clearly as I can recall the later discussions, but it was ‑ I always did discuss multiple pregnancy, hyper-stimulation, the fact that we didn't always have control over the cycle, no matter how much we tried ‑ with every patient who came through."

45Dr Stuckey said that her usual practice in May 1989 was:

"to talk ‑ was to talk about large ovaries, painful ovaries, fluid into the abdomen and clotting into the blood.  I can't remember if I said clotting of blood in that first meeting but it was my usual practice to talk about it I mean, I certainly wouldn't have said, 'stroke'.  There's no doubt I wouldn't have said stroke."

46Dr Stuckey said that her invariable practice was to advise her patients that it was very important that what was occurring was carefully monitored.  Patients were advised to ring if they had any problems such as feeling sick, feeling nauseated, pain in the abdomen and swelling in the legs.

47Dr Stuckey said that she was not aware of the risk of stroke but she was aware of the risk of deep venous thrombosis.  She said that in 1990 she had not heard of anybody having a stroke following ovulation stimulation treatment.  Dr Stuckey explained her views at T780:

"[Stroke] was not in the reviews of OHSS and it was not discussed.  I mean they used to talk about thromboembolic disease and when they discussed thromboembolic disease they always discussed deep venous thrombosis and clots to the lungs which, incidentally, was another thing I used to talk about, clots in the lungs so the risk of clotting in veins is much higher because the blood flows more slowly and its much more liable to clot under all influences of high oestrogen including the pill and including pregnancy whereas the incidence of clotting in an artery is very uncommon in young women and I wouldn't have extrapolated from my knowledge of venous clotting to clotting in an artery that has presumably got good vessels in a young women that's a long way from the site of the action.  Its not being pressed on by any abdominal distension and so I wouldn't have considered that stroke was part of the risks."

48Dr Stuckey stated that she had a long conversation with the plaintiff and Mr Kula concerning the fourth cycle which was abandoned.  Dr Stuckey said that she explained it should be abandoned because of the risk of hyper-stimulation.  She said at T795:

"In discussing that, I very clearly discussed the risks of ascites and thickening of the blood and clots in the blood vessels and in the lungs."

49In large part Dr Stuckey's evidence of what she said was based upon what she believes she would have said.  She did not have much specific recollection.  This is not surprising.  She certainly knows what she did not say.  Dr Stuckey said she reiterated the risks that she had mentioned earlier including the risk of anaesthetic death.  She said:

"We had a discussion about the risks basically revolving round ovarian hyper-stimulation in situations where there was a high oestrogen and I think I probably said, in fact I think I said the only other risk on top of that is the risk of the anaesthetic."  (T802)

50In cross‑examination Dr Stuckey was again asked about her recollection of the conversation of 18 May 1989.  She said she didn't recall words that were used but she does recall issues that were discussed.  She did her best to reconstruct the words that she used during the conversation with the plaintiff and stated that she had a discussion with the plaintiff about ovarian enlargement as part of her "risk discussion" (T823).  At T824 Dr Stuckey said:

"The substance of what I said was that the ovaries would enlarge ‑ might enlarge ‑ and that I would have talked about multiple pregnancy possibly and painful, swollen ovaries and abdomen.  I don't know if I would have said anything about ‑ its hard ‑ I don't specifically recall talking about ‑ I don't know if I did specifically talk about venous thrombosis at that discussion.  I know I talked about it later on but I'm not sure that I talked about it at that discussion.

Is it fair to say that you probably didn't have that discussion in that first consultation?---No, its not fair to say that at all.  No."

51Later Dr Stuckey agreed that she had no recollection of discussing the risk of venous thrombosis at the first consultation.

52Dr Stuckey was then asked about conversations she had with the plaintiff and her husband at the end of October 1989 following an ultrasound and a decision made to abandon the cycle.  She was not able to recall details.  She was then taken to discussions following the fifth cycle and specifically she was asked about conversations she had with the plaintiff and Mr Kula on 14 March when the issue of abandoning the cycle and going on to the GIFT procedure was raised.  At T857 Dr Stuckey said:

"I can recall that we discussed the two options of abandoning the cycle and going on to GIFT.  No, I think that might have been before then, but whichever day I discussed with Mr and Mrs Kula the procedures involved with GIFT we discussed: (a) how high the oestrogen would have to go, because we had had a discussion about it wasn't too good for the oestrogen to go too high previously, and I said that that would depend upon the ultrasounds and when the doctors at Concept thought that the eggs looked ready for pick‑up, but that ‑ and I think I probably foreshadowed that they would have more Metrodin at Concept.  We discussed the procedures of GIFT, how they would do it.  We discussed again the aspects of hyper-stimulation.  I probably didn't use the word hyper-stimulation.  I mean I can't imagine that I did.  I would have used words like 'abdominal swelling' or 'tummy swelling' and 'swollen legs' and 'fluid shift' and both at the abandoned cycle and this cycle I am positive that I discussed venous thrombosis but I didn't discuss arterial thrombosis. Well, I discussed clots in the blood vessels, but I didn't say 'stroke'.

What did you say about that then?---I would have said that.

You say you would have.  Why do you say you would have said that?---I just can't remember the exact words."

53At T858:

"So can you actually recall anything of what you said at this conversation really Dr Stuckey?---I can recall that I discussed ‑ there are things that I very clearly remember.  I very clearly remember discussing the risks of hyper-stimulation, maybe not using that word ‑ that was the whole basis of the discussion about the abandoned cycle."

54Dr Stuckey was pressed on a recollection of what she actually said to Mr and Mrs Kula and she was not able to give the exact words.

55At T859 she was asked:

"Alright.  Is it the case that according to your recollection you said to this couple, basically, that Mrs Kula might get swollen legs, might get a swollen tummy and might get some blood clots?---In the blood vessels and lungs and I would have said 'and that can be dangerous' but I wouldn't have said that, you know, there would be a life long haemaparesis or anything.  I mean…"

56Following the plaintiff's stroke Dr Stuckey attended at Sir Charles Gairdner Hospital, on the evening of 25 March 1990 to see the plaintiff.  She then made some notes in a document which is reproduced at exhibit 10 p113 (T868).

57Dr Stuckey was asked about an entry at the end of her notes which read as follows:

"The major problems usually encountered are shift of fluids to the abdomen, haemoconcentration, renal failure and potassium shifts with rehydration, thrombosis, venous and arterial, and pleural effusion.  Her major problems at present are neurological. …"

58Counsel put to Dr Stuckey that the entries she made on that evening "are obviously something you knew at least on the morning of 25 March" to which the answer was:

"Well, I mean, this is clearly wrong, isn't it?  I mean, the major problems in hyper-stimulation are not venous and arterial thrombosis.  They are quite uncommon problems."

59By way of explanation for her remarks and the note Dr Stuckey indicated that she had inaccurately expressed herself in the document.  She was upset about the matter and had been advised of the plaintiff's stroke after being woken up from deep sleep.  It was quite clear Dr Stuckey felt badly about what had happened.  I do not think any great significance can be attached to the way Dr Stuckey expressed herself in that note.

Findings on warnings given by Dr Stuckey

60On the issue of whether and what warnings were given to the plaintiff the only witnesses are Mr Kula and Dr Stuckey.  Both of them suffer from the obvious difficulties of lack of accurate recollection.

61Dr Stuckey struck me as a concerned caring medical practitioner who was obviously stressed by the proceedings but who was doing her best to give truthful and accurate evidence.  She had a degree of candour that I found impressive.

62Dr Stuckey did not keep a record of the instructions that she gave to the plaintiff and she has difficulties with her recollection.  However, having regard to the way she presented in the witness box I accept her evidence and I think it more likely than not that she did acquaint the plaintiff with the nature and risks of undergoing the ovulation stimulation procedures such as she appreciated them to be.  Whether or not she went into much detail in the first meeting is not clear but I am quite satisfied that she did so at relevant times later.  Accordingly I find that Dr Stuckey did advise the plaintiff of a variety of risks including the symptoms of OHSS and the risk of blood clots.

63However, as she stated, Dr Stuckey did not advise the plaintiff of the risks of stroke.  Counsel for Dr Stuckey submitted that a warning of development of clots was broad enough to include a stroke.  Of course a stroke is the name given to an arterial clot in the brain ‑ a "cerebro‑vascular accident" and thus it is a form of clot.  However I do not agree that merely warning a patient of the risk of the development of clots is equivalent to warning her of the risk of a stroke that might lead to haemaparesis or death.

Knowledge of the risks of OHSS ‑ and stroke

64At T866 Dr Stuckey was asked what she knew about the dangers of OHSS and particularly arterial thrombosis.  She stated that she could not remember whether she was aware of the risk of lower limb arterial thrombosis and when asked why she said:

"Because you are talking about young women having an extraordinary event in arterial thrombosis that doesn't normally happen in people of that age and that ‑ you can understand sort of I mean well you can certainly understand why some people might have venous thrombosis although not everybody of course does, and you can understand why, if you've got a swollen enlarged abdomen that is pressing on every structure in the abdomen including the iliac and femoral arteries, that you could slow the flow in those arteries and predispose to a thrombotic event in those arteries but the head is, you know, well away from the site of the abdomen and the ascites and all of the events within that, so you know, its all very well to say you can extrapolate from arterial thrombosis in the lower limb to say 'well if it can happen in the lower limb it can happen in the head', but I don't think that that's correct."

65The evidence established that prior to 1990 there was a large body of medical literature that identified the potential seriousness of OHSS.  Copies of many of the relevant articles and professional references were tendered in evidence.  However I do not think they need specific reference in these reasons.  As counsel for the plaintiff put it in his submissions:

"It is unnecessary to dwell upon the available literature, and therefore knowledge…prior to 1990 because the first and second defendants (and indeed other medical practitioners called to give evidence in this matter, including Drs Ferri, Mazzucchelli, Walters and Prof Jansen) gave evidence that they knew of the risk of OHSS, the escape of fluid from the vascular system, and that possible serious complications including renal failure, thrombosis and even death (could occur).  Drs Stuckey and Thomas had actual knowledge of those matters.  If they did not, they would have been visited with constructive knowledge." ‑ And counsel then refers to Western Australia v Watson (1990) WAR 248.

66I agree with counsel's observation generally and I also agree with counsel's submission that the issue concerning warnings was the question of what warnings were in fact given, and were those warnings adequate, rather than whether warnings were required.  On that point counsel submitted that:

"a finding should be made that warnings concerning possible adverse defects to health were not given, or if they were, they were not adequate to communicate the risk to the Kulas and to enable them to make an informed decision."

67Counsel for the first and second defendants stressed that the issue was whether the defendants were under a duty to advise of the risk of a stroke because the duty to warn "must relate to the complication suffered by the patient which gives rise to the claim for loss and damage".  In turn this requires consideration of whether a stroke was a material risk inherent in the proposed treatment of ovarian stimulation.  In Rogers v Whitaker (1992) 175 CLR 479 the High Court at 490 said:

"The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it."

68The High Court in Rogers v Whitaker approved of the observations of King CJ in F v R (1983) 33 SASR 189 where at 192‑193 the Chief Justice considered:

"that the amount of information or advice which a careful and responsible doctor would disclose depended upon a complex of factors; the nature of the matter to be disclosed; the nature of the treatment; the desire of the patient for information; the temperament and health of the patient; and the general surrounding circumstances."

69Obviously the smaller the magnitude of the risk the less likely a reasonable person in the plaintiff's position would be to attach significance to it if warned about it.  That view however might well change if, as was the case here, the small risk was of catastrophic harm.  Counsel for the first and second defendants put it like this:

"…the court is solely concerned with the objective question ‑ would a reasonable person in the plaintiff's position if warned of the risk of the consequence that eventuated (stroke) be likely to attach significance to it.  The relevant factual material in which to make this judgment include; (a) the quantitative degree of risk of stroke; (b) the consequences in the event that risk eventuates; (c) the plaintiff's particular circumstances and the other means available to achieve the targeted result."

70The evidence in this case established that prior to 1990 no person in Australia had suffered a cerebro‑vascular accident arising from OHSS that was caused by infertility treatment.  That fact appeared to be common ground in the case.  Neither has any person in Australia suffered a stroke in these circumstances since that date.  Prior to 1990 there was only one reported case of stroke which was in 1965 in England.  That was at a time when the procedures for monitoring ovulation induction were relatively primitive.

Causation

71The evidence of Drs Jansen and Keeping all pointed to the conclusion that the risk of stroke was statistically insignificant.

72However there was no doubt that neither the plaintiff nor her husband were advised of the risk of stroke.  There was no evidence from the plaintiff concerning what significance she would have attached to it if she had been advised of the very small risk of stroke.  Given the plaintiff's undeniable longing to have children and the extensive efforts that she had undertaken to fall pregnant I think it likely that she would, if she had known about the risk, not have attached significance to it.

73In order to succeed the plaintiff must prove that if she had been warned about the risk of stroke that she would have acted on it and not undergone the treatment for stimulation of her ovaries and the GIFT procedure.  Although the plaintiff did not give evidence on the point I do not think that matters.  I agree with the submission of counsel for the defendants that the evidence "compels a conclusion that the plaintiff and her husband would have proceeded with the GIFT procedure even if they had known of the risk of stroke".  One only needs to look at the extensive efforts made by the plaintiff prior to her stroke in falling pregnant.  All of her friends called to give evidence spoke about her desperation to have children.  As was pointed out by counsel it is not insignificant that even following the stroke the plaintiff's husband made enquiries about whether fertility treatment was available.

74It seems to me that even if it could be established that the first defendant was negligent in failing to warn the plaintiff of the risk of stroke, this was not causative of the plaintiff's damage because the plaintiff would be likely, nevertheless, to have proceeded with the treatment.  I think she would have taken the risk.

Allegation of failure to warn made against the second defendant Dr Terrance Thomas

75The particulars of negligence alleged against the second defendant are contained in par 25(a) and par 25(b) of the statement of claim and are in identical terms to those alleged against the first defendant.

Dr Terrance Thomas

76Dr Terrance Thomas, the second defendant, is a specialist obstetrician and gynaecologist.  He became a member of the Royal College of Gynaecologists in London in 1969.  He was born in October 1937.  He is a fellow of the Colleges of Gynaecologists in England and Australia.  He was head of the Department of Gynaecology at Royal Perth Hospital between 1978 and 1985 and is an obstetrician gynaecologist at King Edward Memorial Hospital since 1973.  He was the medical director for Concept Reproductive Technology Unit from 1983 to 1996.  He has published a number of times in professional literature.

77Dr Thomas has been involved in the treatment of infertility since about 1980.  He commenced IVF and GIFT procedures in about 1983/84, GIFT perhaps being in 1985.  As I have mentioned earlier Dr Thomas had contact with the plaintiff in about April 1989 when she was referred to him by Dr Mary Watts concerning infertility.  Dr Thomas wrote a letter to Dr Stuckey on 19 April 1989 referring the plaintiff for treatment (exhibit 10.14).

78Dr Thomas saw the plaintiff in a private capacity which was not associated with King Edward Memorial Hospital or with Concept.  Dr Thomas does not recall having any other contact with Mrs Kula from April 1989 before March 1990 although he conceded that he must have carried out some ultrasound examinations of her at Concept on behalf of Dr Stuckey and the Reproductive Medicine Unit at SCGH.  He thinks that this was in about November 1989.

79Dr Thomas recalled having a conversation with Dr Stuckey relating to the plaintiff having over‑responded in that she had produced a large number of follicles of small size.  He thinks that the plaintiff had already been through two or three cycles and the discussion was about whether she should convert to the GIFT programme but he felt that it would be too much of a risk.  According to him there were too many follicles and if they were stimulated and they all grew then the E2 (oestradiol) level would become far too great resulting in a high risk of producing a hyper-stimulation problem.

80Dr Thomas had no involvement with the ovulation induction programme conducted by Dr Stuckey.  Dr Thomas did not provide any warnings to the plaintiff or her husband whatsoever relating to the ovulation induction programme.  Apart from having some input into the ultrasound examinations of the plaintiff on behalf of Dr Stuckey, Dr Thomas had no involvement with the plaintiff until March 1990 when she was transferring from the ovulation induction procedure to the GIFT procedure.

81The plaintiff's counsel submitted that this event was:

"the first time that there had been a transfer from ovulation induction to GIFT in the circumstances, and there had not been the opportunity for the Kulas to go through the normal counselling process which took at least two weeks and involved an explanation of the process.  No medical explanation about the risks (apart from the anaesthetic risk) was given to the Kulas at the time of transfer to GIFT."  (Par 15 of plaintiff's written submissions).

82Dr Thomas' evidence about the background of the transfer from the ovulation induction procedure to GIFT was a bit sketchy.  He recalled having a conversation with Dr Stuckey relating to the plaintiff having over‑responded in that she had produced a large number of follicles of small size during the ovulation induction procedure.  He thought that the plaintiff had already been through two or three cycles and the discussion was about whether she should convert to the GIFT programme but he felt that it would be too much of a risk.  There were too many follicles and if they were stimulated and they all grew then the E2 oestradiol level would have become far too great resulting in a high risk of producing a hyper-stimulation problem.

83Dr Thomas remembered Dr Stuckey contacting him again concerning the same problem of an excessive number of follicles being produced and asking whether GIFT could be used on this occasion.  At T904 Dr Thomas said:

"Obviously Dr Stuckey pointed out the sort of desperation of the situation.  We were now in the fifth cycle.  She had been treating her for nearly two months on that cycle alone and that cancelling it would occasion some distress.  We decided that perhaps GIFT would be acceptable because the follicles were of different sizes."

84Dr Thomas said that the procedure of transferring from an ovulation induction to a GIFT cycle was a novel procedure which was not planned or programmed.  However he appears not to have had any discussion with Mrs Kula about it.  At T906 he was asked:

"Did you ever have any personal contact with Mrs Kula in connection with this ovulation or induction and then GIFT cycle?---No."

85Dr Thomas said that he had participated in the discussion concerning the plaintiff coming into the GIFT procedure at Concept Fertility Centre and he said that he was keen for the plaintiff to be told what was going on and to understand risks and also the cost involved given that she was moving from the public sector into a private sector which had cost implications.

86There was no evidence that Dr Thomas said anything significant to the plaintiff about the risks of the GIFT procedure.  He appears to have assumed that Dr Stuckey had done so and I have already outlined the evidence of what Dr Stuckey recalls discussing with the plaintiff and her husband prior to the GIFT procedure.

87In order to undergo the GIFT procedure the plaintiff was referred to the Concept Fertility Centre which was located at King Edward Memorial Hospital.  I have already concluded that the plaintiff was warned by Dr Stuckey about the risks of the GIFT procedure

88Although Dr Thomas gave no relevant warnings, his assumption that Dr Stuckey had done so was correct.  Of course there was no mention of the risk of stroke.

89Once the plaintiff was referred to the Concept Fertility Centre the timing of the next medical step in the procedure was determined by the plaintiff's cycle.  As the timing for her laparoscopy when she had eggs taken then replaced fell on the weekend of 18 March, when Dr Thomas was not on duty, the procedure was performed by Dr Mazzucchelli on 18 March. 

90There was no evidence that Dr Thomas had anything to do with the plaintiff during those few days.  However it seems that the plaintiff was indeed Dr Thomas' patient having regard to the contemporaneous documentation.

91Exhibit 10.51 is a copy of the King Edward Memorial Hospital admission registration form dated 17 March 1990 and it identifies at the bottom of the page the consultant for the plaintiff as being Dr Thomas.  Dr Thomas said he had not seen this form before.

92The document reproduced at exhibit 10.53 is headed "Person responsible for fees" and the word "spouse" is circled and the name of the plaintiff's husband written in.  The name of the general practitioner is Anna Bach who does not figure in these proceedings.  The document was signed on 16 March 1990.

93The document reproduced at exhibit 10.54 is a request form for invitrofertilisation under the heading "WA Invitro Laboratory" dated 17 March 1990 and it is addressed to the Concept Fertility Centre.  There is no reference to the sorts of risks of the procedure about which Dr Stuckey spoke, and which I have dealt with earlier, save for the risk of multiple pregnancy.  The third last line comprises a statement as follows: "The procedures and risks were explained to me by a doctor…" but this has not been completed.

94The document reproduced at exhibit 10.57 is a "patient treatments" document headed King Edward Memorial Hospital for Women.  It refers to Dr Thomas as being the plaintiff's doctor and deals with the various procedures that were taken on 16 and 18 March 1990.  Similarly the admission assessment and discharge plan document reproduced at exhibit 10.58 relates to the admission for the follicle aspiration that was to occur on 18 March and again Dr Thomas is the nominated doctor.

95In spite of all of this Dr Thomas seemed to be of the view that he had little if anything to do with the plaintiff during this period.  He said she was not his patient.  He had no responsibilities towards her.  The follicle aspiration was performed by Dr Mazzucchelli, as I have indicated, because he was the doctor on call at the Concept Fertility Centre at the time when the plaintiff needed the procedure.  The pre‑op/theatre check list reproduced at exhibit 10.63 asks the question whether "consent correct and signed" and somebody has written "in unit" ‑ and circled "yes".  A copy of the consent document does not appear to have been reproduced as an exhibit.

576The claim is put on behalf of the plaintiff on the same basis as the claim for past care.  It is asserted that the economics of the situation justify the award of damages under this head on the basis that she should be provided with 24 hour live‑in care which assuming a multiplier of 803.2 (the plaintiff is aged 44 years and has a life expectancy of 39 years according to the Australian Bureau of Statistics Life Expectancy Table for 1994)  Upon that basis a calculation is then presented which results in a claim under this head for the sum of between $763,000 and $955,000.  There is then a claim for the cost of workers compensation insurance in the sum of between $25,000 and $34,000, stamp duty between $1200 and $1700, all totalling a claim between $845,000 and $1,047,000.

577The defendants assert that, consistent with submissions made in relation to past gratuitous services, an award should be made upon the basis that the plaintiff requires domestic assistance for 9.5 hours per week and heavy cleaning for 16 hours per year.  At the rate of $15.50 per hour this calculates at a total sum of $122,337.35.

578Again a stark difference between the opposing points of view.  I have already reached the conclusion that the plaintiff has a present need for services in whatever form that would require the attendance and efforts of a person for about 3 hours per day 7 days per week.  There is no doubt that should the plaintiff's husband not be available then her needs will be greater than that.  Furthermore when she reaches the age of 60 and commences to suffer a decline in her abilities and a greater risk of other disabilities, her need for care will increase.  On the other hand if her husband returns to employment then there might be greater pressure upon the plaintiff to cope and she may therefore acquire greater independence and consequently a drop in the level of her need for services.  It could be arguable, I think, that an allowance of 3 hours per day is on the generous side when contemplating her need for future care.  But I think it is balanced out by the matters to which I have referred.  In my view an assessment of her need for future care can reasonably be based upon the same assumption that I have already made for past care, that is, 3 hours per day.  Thus my calculation is:

21 hours x $15.50 x 803.2 = $261,441 for future care.

Gardening and home maintenance

579The plaintiff seeks an allowance for the cost of gardening and home maintenance which a schedule purports to justify in the sum of $55 per week for life which applying the 6 per cent multiplier of 803.2 calculates at $44,126.  The plaintiff relies upon p53 of exhibit 48 which is a handwritten quote from R R Property & Maintenance which sets out the fee for the first hour of gardening and cleaning work at $30 with $24 per hour "after that".  It is asserted in the schedule that there is a need for this degree of gardening and maintenance weekly.

580As is pointed out in the first and second defendants' submissions there is no or very little evidence given by Mr Kula as to the need for gardening and maintenance.  So little in fact that I am quite unable to accept that there is justification for making an award in the amount claimed or at all.

Past medical expenses

581The plaintiff seeks the sum of $347.15 for medical expenses sustained at King Edward Memorial Hospital during the brief period of the plaintiff's admission as an in‑patient on 24 and 25 March 1990.

582The amount of Medicare benefits allowed for according to the certificate from the Health Insurance Commission on p60 of the first and second defendants' book of submissions is the sum of $376.35.  It seems from para 2.1 of the first and second defendants' submissions on quantum that this amount can be agreed and in the absence of any indication to the contrary I award the sum of $376.35 under this head.

Future medical expenses

583It is submitted on behalf of the plaintiff that she will require two reviews a year by her general practitioner as a result of the stroke.  The submission on behalf of the defendants is that the plaintiff's general health has not been adversely effected by the stroke.  The point is made that the plaintiff saw her general practitioner, Dr Richardson, on thirty one occasions between 1992 and 2000 and only two of those consultations related to issues that are relevant to this trial.  There does not appear to be any evidence of an increased need for attendances at the general practitioner as a result of the stroke and accordingly I do not think any allowance should be made for those attendances.

584The plaintiff's claim for the replacement of propylene AFO for her leg in the sum of $1853.54 is agreed by the defendants.

585The plaintiff's claim for replacement of her knee calliper every 3 years at a cost of $350 being the total sum of $1791.14 is also agreed by the defendants.

586The plaintiff claims the cost of modifications to her shoes to accommodate the calliper.  It is argued that 3 pairs of shoes will need to be replaced once a year and it is submitted that the cost would be $6947.68.  The defendants agree the cost of modification of one pair of shoes per year and in effect agree one third of the cost claimed namely $2313.22.  It seems to me to be reasonable for the plaintiff to have two pairs of shoes and accordingly I would allow the sum of $4626.44.

587Claims are made on behalf of the plaintiff relating to use of a knee brace in the sum of $1728.42.  This figure is also agreed.

588Finally the plaintiff claims for the cost of an arthroscopy upon her knee in the sum of approximately $1500.  I agree with the defendants that in the absence of any evidence from an orthopaedic surgeon confirming that an arthroscopy is likely then no allowance should be made for this claim.

589Accordingly I award the sum of $9999.54 for future medical expenses.

Future cost of appliances and aids

590The schedule of calculations put forward on behalf of the plaintiff contains a large amount of items which are agreed by the defendants.  The main contentious issue has been the need for a wheelchair before the plaintiff is 60 years of age and also the need for a scooter.  By and large, apart from that, most of the plaintiff's claim is agreed.  Putting aside the wheelchair and scooter issue the only other items which are not agreed by the defendants are the need now for a chair raising frame, bed rolling blocks and rail and a cordless telephone.  It is agreed that the plaintiff may need a wheelchair when she turns 60 years of age and that will require maintenance.  She may need a chair frame and also bed blocks and rails but not until she has reached that age.  Again, leaving aside for the moment the wheelchair and scooter it appears that the defendants agree the following amounts, taken by paragraph from the plaintiff's schedule, namely:

Para 1  $5,349.31

Para 2  $1,527.50

Para 3  $   148.77

Para 4  $     71.52

Para 5  $   134.16

Total  $7,231.26

In addition the defendants calculate for the cost in about 16 years time of the wheelchair, maintenance of the wheelchair, a chair frame and bed blocks and rails in the sum of $1714.93.  I award the total sum of $8946.19 for future costs of appliances and aids.

591The claim on behalf of the plaintiff that she has a need for a scooter is based upon the evidence of Dr Watson in exhibit 26D being his medical report of 29 February 2000.  He does not say that the plaintiff needs a scooter but that "such a device would provide for much better mobility".  Dr Watson agrees with the observations and recommendations of the occupational therapist Ms Sharp.  Ms Sharp's report was exhibit 45B.  In that report Ms Sharp says on p3:

"An appropriate electric scooter would enable Mrs Kula independent mobility over long distances and over a wider variety of terrain.  You will need to seek an opinion from her specialist regarding her right knee pain and any long term effect this will have on her ability to walk over longer distances, and therefore her need for an electric scooter."

592There is no evidence that the plaintiff has a need now for an electric scooter.  She might be better off with one but the plaintiff is able to walk albeit with a calliper on her leg.  I think that for her to be provided with automatic transportation may adversely affect her degree of independence.  Be that as it may there is no evidence that she has a need for a scooter and I do not propose to allow her claim for one.

593Nor is there any present need for the plaintiff to have a wheelchair.  I think that the approach taken on behalf of the defendants is reasonable and propose to allow the sum amounts set out above by way of damages under this head.

Additional holiday expenses

594A schedule supporting the plaintiff's claim for additional holiday expenses has been provided which sets out calculations and estimates those costs at $167,080.12.  The claim is based upon the report of Gail Sharp, exhibit 45B and Ms Trish McGinley, exhibit 47.

595Ms McGinley works as a consultant in an organisation called Disability Awareness Training Academy.  She specialises in arranging holidays for disabled people.  In exhibit 47 she explains how she arrived at her assessments about the special needs of persons like the plaintiff when they travel and the special costs that might be contemplated.

596In cross‑examination Ms McGinley said that she had spent about 2 hours with the plaintiff at her home.  She understood that the plaintiff had had a stroke, that she had impaired judgment, difficulties with her arm and leg, with toileting, personal hygiene and decision making.  She compiled her report upon those assumptions.

597It was obvious Ms McGinley knew nothing about the travelling that the plaintiff and her husband had succeeded in completing since the stroke.  They had travelled overseas to Poland on three or four occasions without the plaintiff having any assistance other than the company of her husband.

598Having heard Ms McGinley's evidence I got the strong impression that she assumed she was dealing with a person who suffered with greater physical disability than does the plaintiff, although of course the plaintiff's disabilities are significant.  The plaintiff is able to attend to matters of personal hygiene and to feeding herself and matters of that kind.  I am not convinced that the plaintiff does require the sort of assistance in travelling and holidays that is suggested and do not propose to allow any award under this head.

Administration of Trust costs

599There is no doubt that in the circumstances of this case fund management fees, and fees for financial advice for investment will be incurred.  That being the case, in the circumstances, it is appropriate that some allowance be made in the award of damages under this head.  The quantum of such an award however cannot be calculated until damages have been assessed.  I shall request the parties to provide a schedule on the date the judgment is delivered.

Schedule of GST expenses

600It appears there is no dispute that in relation to services that the plaintiff will require in the future that will require the hire of outside help, then some allowance must be made for GST.  The following would seem to me to be appropriate having regard to the calculation suggested on behalf of the plaintiff:

7 days x 3 hours = 21 hours x $15.50 = $325.50 per week.  10% of that is $32.55 x 803.2 = $26,144.16.

I am inclined to award this amount, however it would be appropriate for an opportunity to be given to the parties to make submissions upon it should they require.

Assessment

General damages for non‑pecuniary loss  $225,000.00

Past economic loss  $80,000.00

Past loss of superannuation  $2,946.06

Interest on past economic loss including

superannuation  $33,178.90

Future economic loss  $107,760.00

Loss of future superannuation  $6,619.35

Past gratuitous care:

Carer services whilst plaintiff in hospital                   $5,860.40

(inclusive of interest)

Past gratuitous services period

14.7.1990 to 28.7.2000-07-18  $154,462.00

Interest on that sum  $44,021.67

Future care and services  $261,441.00

Gardening and maintenance  nil

Past medical expenses  $376.35

Future medical expenses  $9,999.54

Future cost of appliances and aids  $7,231.26

Additional holiday expenses  nil

Administration of trust costs  (Amount allowed but subject to

calculation by counsel)

Schedule of GST expenses  (Amount allowed but subject to

calculation by counsel)

Total (Subject to above addition)  $938,896.53