Burrows v State of Queensland

[2001] QSC 344

SUPREME COURT OF QUEENSLAND

CITATION:	Burrows v State of Queensland [2001] QSC 344
PARTIES:	ADRIAN FRANCIS BURROWS (Applicant/Plaintiff) v
STATE OF QUEENSLAND
(Respondents/Defendants)
FILE NO:	S54/1994
DIVISION:	Trial Division
DELIVERED ON:	14 September 2001
DELIVERED AT:	Rockhampton
HEARING DATE:	25th & 26th June 2001
JUDGE:	Dutney J
ORDERS:	The action is dismissed. I order the plaintiff to pay the defendant’s costs of and incidental to the action to be assessed on the standard basis.
CATCHWORDS:	PERSONAL INJURY – NEGLIGENCE – Whether the plaintiff injured during physiotherapy – Whether injury was a result of physiotherapist’s negligence.
Rogers v Whittaker (1992) 175 CLR 479 referred to.
COUNSEL:	P Land for the Applicant/Plaintiff A Mellick for the Respondent/Defendant
SOLICITORS:	Morrin Lawyers for the Applicant/Plaintiff Grant & Simpson for the Respondent/Defendant

[1]        Dutney J: The plaintiff claims damages for injuries to the middle finger on his right hand. Liability and quantum are in issue. As far as liability is concerned the issue is whether the plaintiff ruptured his flexor digitorum profundus tendon (“FDP tendon”) during physiotherapy on 10 January 1992 or subsequently and if he did whether this was through the negligence of the physiotherapist Ms Mars.

[2]        The FDP tendon operates on the distal interphalangeal (“DIP”) joint. The DIP joint is the joint at the tip of the finger. The next joint below the DIP joint is the proximal interphalangeal (“PIP”) joint. This is the joint above the palm. This joint is operated by the flexor interphalangeal superficialis tendon (“FDS tendon”). The joint where the finger meets the palm is the metacarpophalangeal (“MCP”) joint.

[3]        The plaintiff had a long history of injury to the right middle finger. Dr Milroy extracted the history from hospital notes. Some is disputed by the plaintiff. In 1989 the plaintiff attended the Rockhampton Base Hospital with pain and swelling around the DIP joint. He gave a history of having fractured the finger two years earlier in 1987. The x-ray taken in 1989 showed soft tissue swelling around the DIP joint. The joint itself showed deformity consistent with the 1987 injury. The plaintiff told Dr Coleman that a friend had bitten his middle finger in a nightclub. The result was that that the top joint became fused and he had stiffness and swelling around the DIP joint.

[4]        In 1990 the plaintiff was seen again. He stated that he had injured his right hand in a fight. That injury was not in relation to the middle finger.

[5]        On 31 January 1991 the plaintiff presented again. The notes record that he injured his right middle finger in a brawl. The plaintiff was back on 30 March 1991 with a cigarette burn near the DIP joint on the right middle finger. The burn had happened on 27 March 1991. The plaintiff suffered a crush injury to the same finger on 28 March 1991. Probably as a consequence the burn area became infected.

[6]        The plaintiff suffered a further injury playing football on 1 July 1991 and again on 6 July 1991. A culture taken on 10 July 1991 revealed Staphylococcus Aureus and Streptococci. The infection was drained in Rockhampton on 12 July 1991 and again on 15 July 1991. The infection had not healed by 5 August 1991. On 5 November 1991 the plaintiff was referred to the hand clinic at the Princess Alexandra Hospital and a tenolysus operation was performed under general anaesthetic on 8 November 1991. Post operatively the plaintiff had physiotherapy at the PA hospital until 23 December 1991 and then returned to Rockhampton.

[7]        On 7 January 1992 the plaintiff attended at the Rockhampton Base Hospital for physiotherapy. By that time the plaintiff says that he had recovered movement in the PIP and DIP joints of the finger to the extent that he could almost make a fist.

[8]        The plaintiff commenced physiotherapy with Ms Mars on 10 January 1992. Ms Mars had graduated as a physiotherapist in 1991 and had taken up an appointment in Rockhampton on 6 January 1992. This was her first placement as a physiotherapist.

[9]        Accounts differ as to what took place on 10 January 1992. The plaintiff says that he was asked to place his hand palm up on the table and flex his middle finger against pressure which Ms Mars applied by placing her finger on the tip of the plaintiff’s middle finger and exerting pressure in the opposite direction. With her other hand Ms Mars immobilised the plaintiff’s right wrist. The plaintiff said that he complained of the pain caused by the exercise but persevered at the urging of Ms Mars until he heard a loud snapping noise like a rubber band breaking. Following the noise the plaintiff says that he could not move his finger, which also started to swell. The plaintiff says that he became quite upset and said words to the effect of, “What have you done! You know, like, it’s stuffed. I mean I can’t move it.”

[10]      The plaintiff says the physiotherapist then went outside to speak to someone else. When she returned she said that everything would be all right. They had just overdone things and the finger would calm down in a few days.

[11]      The plaintiff returned for his next session with the physiotherapist. He has no recollection of what occurred on that occasion. He retuned a third time to Ms Mars on 17 January 1992. The day before the third visit the plaintiff had an altercation with his flatmate, which he said, was purely verbal. In any event, the plaintiff says that on this occasion his right middle finger was very sore. He could bend the finger at the DIP joint but not at the PIP joint. The plaintiff does not recall whether this was the final visit but recalled that at some stage after 10 January 1992 when he attended for physiotherapy he was referred to an orthopaedic clinic by the physiotherapist. The doctor who saw him apparently explained to Mr Burrows that he had broken the pulleys through which the tendons ran and in Mr Burrow’s presence telephoned the PA Hospital to arrange a further operation By Dr Coleman. This operation was performed but was unsuccessful in that it has left the plaintiff with a finger protruding permanently out of alignment with the other fingers of his right hand. The only further surgery that might be considered is amputation of the finger. Mr Burrows is understandably reluctant to lose the finger. At the PA Hospital Dr Coleman performed a tenolysis of the FDS tendon on 21 February 1992. A flexor tendon sheath pulley was reconstructed using loops of the palmaris longus tendon. It was noted at that time that the FDP tendon was ruptured at the point where it split off from the FDS tendon.

[12]      Not surprisingly, Ms Mars had no real recollection of events but relied on detailed notes she made at the time and on her “usual” practice. Relevantly, the notes record that on 10 January 1992 the plaintiff had 90 degrees flexion in his PIP joint and –30 degrees extension with tightness. This means that his flexion was normal but he could not straighten the finger at the PIP joint to less than 30 degrees. The records reveal that the physiotherapist heard a loud clicking noise, which was followed by a reduction in flexion in the PIP joint to 60 degrees. The plaintiff complained of soreness following the noise. The DIP joint had active flexion and extension prior to the physiotherapy treatment of 40 degrees and –10 degrees respectively which compares to between 80 and 90 degrees flexion in a normal finger.

[13]      Ms Mars gave evidence that the noise was heard during the assessment rather than the treatment stage of the visit. Ms Mars disagreed that she had applied a resisting pressure to the finger at and prior to the noise. She also gave evidence that following the noise the plaintiff underwent a normal treatment phase and this appears to be consistent with the notes. Ms Mars opined that the noise was most likely the sound of adhesions in the tendon braking free. The breaking of the adhesions might cause initial pain and restriction of movement due to swelling but should ultimately result in a freer movement.

[14]      The medical evidence came from Drs Milroy and Coleman. Significantly, both experts expressed the view that the DIP tendon would be unlikely to flex at all if the FDP tendon was ruptured. Restricted movement in the PIP joint can also be caused by a rupture of the FDP tendon. If ruptured the FDP tendon can retract into the operating space of the FDS tendon and restrict its movement.

[15]      When the plaintiff returned to the hospital for his next physiotherapy session on 14 January 1992 the notes record the flexion and extension in the DIP joint unchanged from the earlier occasion and the flexion in the PIP joint restricted to 65 degrees. Extension was unchanged. If Drs Milroy and Coleman are accepted in relation to the unlikelihood of the DIP joint moving actively with a ruptured FDP tendon I must conclude that the tendon was unlikely to be ruptured by this time. The hospital notes record two further visits on 17 January 1992 and 24 January 1992. Movement in the DIP joint was unchanged on either occasion. Flexion in the PIP joint increased marginally to 70 degrees and extension was unchanged.

[16]      Ms Mars denies ever referring the plaintiff to an orthopaedic clinic and there is no record of such referral in the physiotherapy notes of the hospital nor of any attendance in the orthopaedic notes of the hospital. The notes record that Ms Mars wrote a referral letter to the PA hospital on behalf of the plaintiff following the visit on 17 January 1992.

[17]      The physiotherapy notes do, however, record that the plaintiff injured his hand in a fight on 16 January 1992 although in view of the medical evidence it seems unlikely this caused the rupture of the tendon either.

[18]      Overall I prefer the evidence of Ms Mars as to the sequence of events based as it is on detailed contemporaneous records. I also prefer her evidence as to what activity she was carrying out with the plaintiff at the time of the noise and as to whether or not the session was able to be continued.

[19]      Ms Mars arranged for the plaintiff to do home exercises involving stretching a rubber band with the PIP and DIP joints 10 times each, three times a day. It was submitted that this could have caused the rupture of the FDP tendon. Because of the continued movement in the DIP joint I do not accept that this is so.

[20]      The report of Dr Milroy of 13 October 1997 (exhibit 31) summarises the difficulty of the plaintiff’s case:

“In the case of Mr Burrows the flexor digitorum profundus tendon was found to be ruptured at operation on the 21st January, 1992. It is possible that that rupture was caused by the incident on the 10th January 1992. However, whether it was actually ruptured by that incident is impossible for me to determine on the evidence available. The patient did suffer subsequent injuries, which may have ruptured it if the finger was suddenly extended. If the tendon undergoes post-operative necrosis, it is possible for the tendon to rupture spontaneously when he is trying to flex the digit.”

“From the outline of the history of multiple injuries to this digit over a period of time and the fact that the patient suffered a severe infection in the finger which caused a major part of the restriction of movement before the initial tenolysis in November 1991 then in my opinion the prognosis for a satisfactory result in the right middle finger with or without a tendon rupture was poor. Considerable loss of function was inevitable and in my opinion it would be doubtful if a satisfactory functional result would occur in any case.”

[21]      Bearing in mind that both specialists now agree that the continued movement in the DIP joint is inconsistent with an FDP tendon rupture at any relevant time I cannot conclude that anything done by Ms Mars in the course of physiotherapy has resulted in the plaintiff’s present disability. The end result is a not unexpected level of disability having regard to the original condition of the finger. Some evidence was given by Dr Coleman in particular that the use of the rubber band at the early stage of post operative treatment may have been inappropriate but no evidence was led to establish that it resulted in any damage or aggravation. In circumstances where the tendon might spontaneously rupture I could not conclude, in the absence of a specific event, that the damage was caused by resistance exercises with a rubber band. Thus it is not necessary to consider whether what Ms Mars did do was reasonable for a professional in her position or amounted to a breach of duty: see Rogers v Whittaker (1992) 175 CLR 479.

[22]      In the result I am not satisfied that the plaintiff has proved that any damage he has suffered was occasioned by the negligence of the defendant.

[23]      I should assess quantum in the event the result I have come to proves to be erroneous.

[24]      The plaintiff has suffered a painful injury, which has left a limited use in the hand. This limitation is despite a further operation in Adelaide in 1994. Against this is the opinion of Dr Milroy as to the likely use of the hand in any event. In his report of 7 September 1998 Dr Milroy says:

“I am not certain in the light of the long history of injuries to his right middle finger prior to 10th January, 1992, and then in the absence of the alleged negligent physiotherapy treatment, if he would have been able to return to his work as a plumber. In my opinion he probably would have had minimal functional use of the digit in any case.”

[25]      With this limitation I assess general damages at $15,000.

[26]      Assessment of the plaintiff’s economic loss is no easier. In the 10 years since the injury the plaintiff has earned $129,859 or an average of $12,986 per year. His best years were 1996 when he earned $26,548 and 1997 when he earned $30,451. In those years the plaintiff was in full time employment as a packing machine operator with National Foods Milk Limited in Adelaide. This was work the plaintiff could do without difficulty but he resigned in September 1997. The plaintiff’s trade is as a plumber. The plaintiff completed his apprenticeship in December 1988. Between then and December 1990 the plaintiff worked mainly as a plumber. He did not work as a plumber in 1991. This was mainly due to his inability to find a job. The plaintiff had arranged a job to start in June 1991 but injured his finger playing football before he could commence. In the 18 months he was working after qualifying as a plumber the plaintiff worked for 5 different employers as well as a period of self- employment. Apart from the 12 months following the injury in June 1991 it is difficult to see that the plaintiff’s employment history is greatly different from what had been the case before the injury. I accept however that there has been some loss because one avenue of work has been made difficult. That is work as a plumber. That would be resolved by the finger amputation but I consider the plaintiff is acting reasonably in declining to undergo that surgery. In the result I assess pre-trial loss of earnings at a global sum of $20,000 including superannuation. I would calculate interest on that over 10 years at 5% in the sum of $10,000. For the future I assess a global sum of $20,000 including superannuation.

[27]      There are no special damages. The notice of charge from CRS Australia is in the sum of $1852.10.

[28]      The plaintiff has not claimed to have required any domestic assistance either in the past or for the future.

[29]      The total assessed damages therefore come to $66,852.10.

[30]      In the end result the plaintiff’s claim is dismissed and I order the plaintiff to pay the defendant’s costs of and incidental to the action to be assessed on the standard basis.