Burton v Allen - [2010] NSWDC 265

NEW SOUTH WALES DISTRICT COURT

CITATION:
Burton v Allen [2010] NSWDC 265
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2008/00321687

HEARING DATE(S):
10 May 2010 to 14 May 2010

JUDGMENT DATE:
24 November 2010

PARTIES:
Joshua Anthony Burton (Plaintiff)
Philip Allen (Defendant)

JUDGMENT OF:
Sidis DCJ

COUNSEL:
Mr K W Andrews (Plaintiff)
Mr J J Priestley (Defendant)

SOLICITORS:
W. H. Parsons & Associates (Plaintiff)
Tress Cox Lawyers (Defendant)

CATCHWORDS:
MEDICAL NEGLIGENCE
Incomplete carpal tunnel release
Anomaly in position of median nerve
Whether apparent to defendant in course of standard carpal tunnel release
Whether appropriate means of check that nerve fully decompressed adopted
Standard of post operative care provided
If inadequate whether causative of plaintiff’s ongoing pain and disability
Assessment of damages

LEGISLATION CITED:
Civil Liability Act 2002
Workers Compensation Act 1987
Workplace Injury Management Act 1998

CASES CITED:
Downes v Amaca Ltd [2010] NSWCA 76
National Insurance Company of New Zealand Limited v Espagne (1961) 105 CLR 569
Redding v Lee (1983) 151 CLR 177

TEXTS CITED:
Crown Employees (Police Officers Death & Disability) Award (2005)

DECISION:

Verdict for the defendant.
The plaintiff is to pay the defendant’s costs of the proceedings on an ordinary basis as assessed or agreed. This order is suspended for a period of seven days to allow the parties, should they wish to do so, to re-list the matter for further argument on the issue of costs.
The exhibits will be retained for 28 days.

JUDGMENT:

JUDGMENT

Joshua Anthony Burton claimed that Dr Philip Allen, orthopaedic surgeon, was negligent in the performance of an open carpal tunnel release on his left hand and in providing him with post operative care. He claimed that as a result he suffered ongoing pain and disability in his left hand, wrist and arm, psychological injury and loss of income earning capacity. He claimed that he was deprived of the opportunity to secure a better outcome in relation to the condition of his left arm through subsequent surgery.

The defendant denied any breach of duty of care and relied on s 5O of the Civil Liability Act 2002 as to the standard of care provided to the plaintiff.

The issues were:

1 whether the defendant was in breach of his duty of care to the plaintiff in the performance of the carpal tunnel release;

2 whether the defendant was in breach of his duty of care to the plaintiff in failing to provide appropriate post operative treatment;

2 the extent of the plaintiff’s loss and damage.

History

The plaintiff developed symptoms in his right hand in 2001 that affected his capacity to operate a keyboard and disturbed his sleep. Nerve conduction studies indicated a mild level of compression of the median nerve that did not at that stage warrant surgery. He was able to continue in employment as a police officer.

The symptoms in the plaintiff’s right hand increased over time and developed also in the left hand, although to a milder degree. In 2005 he was referred to the defendant for advice and treatment.

He consulted the defendant on 22 July 2005 and was provided with a document titled Philip Allen Orthopaedic, Moving Forward, Carpal Tunnel Syndromeⁱ. The defendant operated on the plaintiff’s right wrist on 11 August 2005.

The plaintiff said that his recovery from this surgery was uneventful. His right hand felt comfortable immediately after the surgery and he required no painkilling medication. There was no recurrence of his symptoms and he suffered only a mild reduction in grip strength. He returned to his employment as a police officer on 26 August 2005 on restricted duties.

The defendant operated on the plaintiff’s left wrist on 15 September 2005. The operation was performed under general anaesthetic. The plaintiff said that on recovering from anaesthesia he noticed immediate pain in his left hand. He reported a throbbing pain to nursing staff. The defendant did not examine the plaintiff before he left the John Flynn Hospital on the Gold Coast that evening.

The plaintiff said that he suffered intense pain during the night that he attempted to relieve by taking painkilling medication. The next day, a Friday, his left hand was shaking and he experienced shooting pains into his arm and numbness in his fingers.

He telephoned the defendant’s office and spoke to a secretary and nurse. He was advised to call back the following week. Over the weekend he continued to suffer from significant pain and he continued to take painkilling medication.

On Monday, 19 September 2005 the plaintiff rang the defendant’s office, spoke to his staff and reported significant pain. He said he told them that something had gone wrong with his hand. He was told that the defendant would ring back.

On Tuesday, 20 September 2005 he attended the defendant’s surgery. The defendant examined him. The plaintiff said he told him: It’s a bit strange. The defendant provided him with a prescription for Panadeine Forte and advised him to wait to see if the pain settled. A further appointment was made for the following Friday.

The plaintiff consulted his general practitioner on 21 September 2005 complaining of significant pain. He said he was concerned that the defendant was not taking his complaints seriously. His general practitioner told him to continue to consult with the defendant because of the difficulties of locating an alternative surgeon. A NSW Police rehabilitation officer provided the same advice on 22 September 2005.

On 23 September 2005 he once more attended the defendant’s surgery. No nerve conduction study was undertaken. The plaintiff said he asked the defendant if the nerve had been damaged or cut. The defendant denied this occurred. By this stage, the symptoms in the plaintiff’s left hand included numbness in his middle finger and half of his ring finger, a burning sensation over the palm and shooting pain in the nature of electric shocks extending from his fingers along the inside of his left arm to his shoulder. He continued to use Panadeine Forte to relieve his symptoms.

He was working on restricted duties as duty officer. On 26 September 2005 a colleague noticed that his hand had turned a yellow colour. He telephoned the defendant and arranged to consult him that day. The defendant referred him to physiotherapy.

Physiotherapy on 27 and 28 September 2005 increased his symptoms. At a consultation on 30 September 2005 the plaintiff told the defendant that his pain was twice as bad and was causing him distress. The defendant told him that he would undertake exploratory surgery on 14 October 2005.

The plaintiff said that by this stage he lost faith in the defendant and he therefore asked his general practitioner to refer him to another surgeon. He was referred to Dr Coroneos whom he consulted on 6 October 2005.

In the meantime he continued with physiotherapy. He said that in this period he was unable to work and unable to sleep. As a result he became irritable and impatient. He was angry with the defendant. His hand was swollen and discoloured, some of his finger tips were numb and the hand appeared wrinkled and scaly. It felt cold.

Dr Coroneos referred the plaintiff to Dr Cameron for nerve conduction studies and neurological opinion. The studies were undertaken on 6 October 2005. Dr Cameron reportedⁱⁱ to Dr Coroneos on 10 October 2005 that there was median electric disturbance persisting in the plaintiff’s left wrist. He suspected that the plaintiff developed adhesions around the left median nerve with symptoms that were increasing. He recommended an MRI scan and re-exploration of the carpal tunnel.

The MRI scan was performed on 7 October 2005. The reportⁱⁱⁱ noted that the median nerve was swollen and of increased signal. It made no comment about the cause of these findings.

Dr Coroneos performed surgery on 10 October 2005 and reviewed the plaintiff before he was discharged from hospital on 11 October 2005.

The particulars of negligence relied upon by the plaintiff alleged that the defendant failed to advise the plaintiff of the method by which the surgery would take place or of the inherent risks of surgery.

The defendant described to the Court his practice of advising patients of the nature of the procedure and its attendant risks, nominating them as ranging from death involving general anaesthetic to minor irritation or problems with scarring. His practice was also to provide patients with a copy of the document^iv that he provided to the plaintiff. This document set out in some detail the risks involved in the procedure.

The plaintiff agreed that he read the document given to him by the defendant and that the defendant explained to him the procedure and the associated risks and that he understood them. This aspect of the claim was not therefore pursued.

The remaining particulars of negligence fell into two main categories:

1 The performance of the surgery itself^v; and

2 The post operative care provided^vi.

ISSUE 1 - The surgery

The defendant was trained in South Africa, England and New Zealand before migrating to Australia in 1999 and commencing practice on the Gold Coast as an orthopaedic surgeon.

The surgery involved the release of compression upon the median nerve as it passed through the carpal tunnel. The defendant estimated that he had performed between 600 and 1,000 carpal tunnel release procedures.

The defendant said he performed surgery on the plaintiff’s left wrist on 15 September 2005 in standard fashion. This involved anaesthetising the plaintiff, applying a tourniquet to the left arm and extracting blood from the arm, preparing the arm with Betadine and alcohol and draping the surgical site. The hand was then placed on a table and an incision made in line with the ring finger, using an existing skin crease to minimise scarring. A self-retaining retractor was placed in the skin and the dissection continued until the flexor retinaculum or transverse carpal ligament was found. A small incision was made through the transverse carpal ligament. A McDonalds dissector was inserted to protect the nerve. The defendant described this instrument as flat, like a spatular. It was placed between the ligament and the nerve.

The defendant’s nursing assistant placed the blade of a Catspaw or Kilner retractor under the skin to elevate it so that the defendant was provided with a clear view of the operating field. At this point a knife was placed with the blade facing up away from the nerve to divide the entirety of the transverse ligament. The defendant marked on a diagram^vii the approximate position of the incision through the transverse ligament. He then probed further into the arm for about one centimetre with the McDonalds dissector to ensure that the nerve was free and that it was not constricted by any other band that needed to be addressed.

The defendant said he saw the nerve clearly and was able to feel that it was free and not constricted. He was satisfied that the procedure had achieved its purpose in relieving pressure on the median nerve within the carpel tunnel.

He said the procedure was a quick straightforward and a fairly standard and simple procedure. It’s not a very involved or technical dissection as one would expect rather more involved surgeries.^viii

Dr Coroneos described the steps involved in the re-exploration procedure that he performed. Similarly to the defendant, he listed identification of the correct limb, exsanguination, preparation with Betadine, draping, placement, infiltration with anaesthetic and adrenalin and then incision.

Dr Coroneos reported^ix to the plaintiff’s general practitioner, Dr Sterne on 18 October 2005 that, after opening the previous incision and observing that the nerve was intact but swollen, he extended the surgical incision distally and he noted that the nerve was not compressed. His report proceeded:

We then extended the incision proximally just proximal to the wrist crease to allow complete and adequate exposure of the nerve given the circumstances of the case. The median nerve had a most unusual course (and this was actually evident on the MRI although not reported) with the nerve being in the standard position in the mid carpal tunnel but at the wrist level it veered acutely to the ulnar side and was almost at the position where the ulnar nerve normally is. It was in line with the fourth to fifth finger interspace at the level of the wrist. Of more interest was the fact that there was a midline septum and the median nerve at the forearm and proximal carpal tunnel compartment had a separate roof – I assume one would call this extension of the transverse carpal ligament. The usual transverse carpal ligament section ie medial to the septum had been divided but the nerve had already veered over to the other side and remained compressed. This was a most unusual anatomical variation that I have never seen. We divided the transverse carpal ligament ie ulnar section and it popped open to such a degree that the theatre nurse was surprised. The nerve was significantly compressed at this site and it was thoroughly decompressed after division of this ligament. Just distal to this site there was swelling of the nerve as shown on the MRI. There was no evidence of any injury or surgical trauma to the nerve.

Was the roof of the transverse carpal ligament adequately divided?

Dr Coroneos said he made an incision in the area of the surgical scar resulting from the initial surgery and extended the incision distally, or towards the fingers, and proximally, or into the forearm. He located no compression at the distal part of the incision. The nerve in the area of the transverse carpal ligament was satisfactorily decompressed but swollen.

The incision was extended proximally to the point of the wrist crease, this being the usual point of commencement of the transverse carpal ligament. Dr Coroneos identified this mark on a diagram^x shown on the ulnar (or right side of the left hand) as the wrist crease. He identified the transverse carpal ligament on that diagram as the band lying between the radial artery and the ulnar artery through which a dotted line was drawn. He noted that the transverse carpal ligament was also referred to as the flexor retinaculum.

Dr Coroneos marked on the diagram the position of the incision made in the transverse carpal ligament by the defendant.

He described the area proximal to the wrist crease as the distal forearm compartment. He said that in this area of the plaintiff’s forearm, the median nerve veered to the ulnar side of the arm proximal to the transverse carpal ligament.

The defendant’s document^xi explaining the procedure stated:

A small incision (+/- 3cm) is made in the palm of the hand. In some severe cases, the incision needs to be extended across the wrist into the forearm.

The defendant said the need to extend the incision usually arose in cases of rheumatoid arthritis with deformity or very florid or extensive inflammatory arthritis, bleeding or a post traumatic crush or injury to the median nerve. This did not apply to the plaintiff’s case and there was no indication that an extended incision would be required.

Associate Professor Connolly said that he read Dr Coroneos’ report concerning the surgery that he performed as indicating the proximal one third of the transverse carpal ligament was not divided. He said he therefore no longer held the view expressed in his report^xii of 1 September 2008 that the roof of the carpal tunnel or the flexor retinaculum was divided by the defendant in accordance with the suggested acceptable carpal tunnel release. He maintained this view notwithstanding that Dr Coroneos reported^xiii that: the usual sites of compression of the median nerve with typical carpal tunnel syndrome had been attended to.

Dr Coroneos also reported that: The usual transverse carpal ligament section ie medial to the septum had been divided.

I attached significance to the opportunity provided to Dr Coroneos to view directly the division made by the defendant before reporting in this fashion. I concluded that this part of Associate Professor Connolly’s opinion was based upon a misconstruction of Dr Coroneos’ report.

I did not accept that the transverse carpal ligament was not divided in accordance with standard practice.

This being the only criticism of this feature of the surgery I proceeded on the basis that the transverse carpal ligament was divided in accordance with standard practice and therefore adequately for the purposes of decompression of the median nerve within the carpal tunnel.

Did the median nerve suffer traumatic injury during surgery?

The defendant described two methods by which he provided protection to the median nerve during the course of the procedure. The first was the positioning of the McDonalds dissector between the ligament and the nerve. The second was to place the blade of the knife used to divide the transverse ligament upwards and away from the nerve. He was satisfied that in this fashion the nerve was not damaged during surgery.

The nerve conduction studies undertaken on 6 October 2005 and the MRI scan of 7 October 2005 made no reference to injury to the median nerve.

Dr Coroneos observed the median nerve when he performed re-exploratory surgery on 10 October 2005. He described the median nerve as intact and swollen and reported that the usual site of compression of the median nerve had been attended to.

Associate Professor Connolly reported^xiv on 20 August 2008 that the most likely diagnosis of severe burning and shooting pain was injury during to the median nerve in the course of the surgery caused by bruising, contusion or retraction. This opinion could only have been expressed on a hypothetical basis since Dr Coroneos’ evidence that there was no traumatic damage to the nerve was not challenged.

Associate Professor Connolly also reported^xv that nerve conduction studies undertaken on 4 February 2008 found neuropathy of part of the left median nerve at the wrist and an MRI of 30 January 2008 indicated low grade neuritis at the left wrist. He said there was no suggestion of denervation or median nerve injury.

Both Dr Honner^xvi and Dr Ross^xvii reported that there was no evidence of traumatic injury to the median nerve within the carpal tunnel.

Dr Ross noted that the plaintiff complained primarily of sensory abnormalities only in a portion of the median nerve. He said that in most cases ongoing sensory abnormality after a carpal tunnel release would be expected to cause dysfunction in the entire median nerve.

Dr Ross said the presence of partial dysfunction raised the question of whether there might have been bruising to the nerve due to retraction during surgery. He said this could lead to temporary neuropraxic injury that would be expected to resolve. He noted, however, that on 10 October 2005 Dr Coroneos examined the nerve in detail for evidence of injury and observed no traumatic damage to the median nerve as a result of the surgery performed by the defendant on 15 September 2005.

I find that there was no traumatic injury to the median nerve as a result of the surgery performed by the defendant on 15 September 2005.

Should the defendant have noted the anomaly in the position of the median nerve?

The plaintiff claimed that the defendant failed to sight the anomaly in the position of the median nerve because he inadequately dissected the transverse carpal ligament, he used the wrong method of checking by sight or feel that the median nerve was fully decompressed and that he performed the surgery with undue haste.

I have already decided that I should accept the evidence of Dr Coroneos that he directly observed that the transverse carpal ligament was divided in accordance with standard practice. The question therefore was whether, if divided in accordance with standard practice, the abnormality should have been noted.

Associate Professor Connolly, Dr Honner and Dr Ross agreed that the position of the median nerve as described by Dr Coroneos was very rare. It was so rare that none had seen such an anomaly in any carpal tunnel release they performed. Nor were they aware of any report or text book reference that described an anomaly of this nature.

Dr Honner and Dr Ross accepted the anomaly reported by Dr Coroneos.

Associate Professor Connolly was sceptical of it. He asked for a diagram indicating the precise position of the median nerve as located by Dr Coroneos but none was provided. He said he was being polite in saying Dr Coroneos’ observations were hard to follow when he meant that he did not believe his report of his observations. He agreed that Dr Coroneos described a median nerve that was not in the median position but was to the ulnar side of the wrist and a midline septum that was also to the ulnar side of the wrist. He said he had never come across this before. Associate Professor Connolly subsequently resiled from stating that he disbelieved the observations reported by Dr Coroneos.

It was not put to Dr Coroneos that his observations were in any way fabricated and I therefore proceeded on the basis that I could rely upon his evidence concerning the anomaly in the position of the median nerve.

The defendant said he noticed nothing unusual about the nerve as it travelled in the direction of the forearm. He said he was first able to sight the median nerve when he began dividing the transverse carpal ligament. He described as having: a shiny white almost milky appearance, a similar appearance in a way to a tendon with a sheath around it^xviii. Initially he was able to see only a small part of the nerve but he said it was clearly visible in its entirety within the carpal tunnel when the transverse ligament was completely transected. Outside the tunnel it could not be seen because it travelled into the forearm and the fingers.

Dr Coroneos said he was only able to observe the abnormality in the position of the median nerve after he extended the incision proximally.

Although Dr Honner agreed with Associate Professor Connelly that it was necessary to sight the median nerve beyond the wrist crease and that most surgeons did so, his opinion was that the defendant did not breach his duty of care to the plaintiff by failing to identify the unusual course of the median nerve. He said there was no clinical or electrical evidence to indicate that there was compression of the nerve in the distal forearm solely or additionally to the carpal tunnel.

In his report 27 May 2009^xix Dr Honner said there was no evidence that the operation was not performed correctly. He noted that Dr Coroneos found the usual site of compression of the median nerve with typical carpal tunnel syndrome had been attended to and there was no evidence of damage to the nerve within the carpal tunnel. Further, the median nerve was in the left distal forearm, outside the usual area of exploration involved in a standard carpal tunnel release.

Dr Ross said it was unlikely that any surgeon performing either a standard or an endoscopic carpal tunnel release would identify such an anatomical variation and that virtually every hand surgeon performing a carpal tunnel release would have failed to detect this anatomical variation. He would not expect the defendant to identify it in the initial routine surgical treatment of carpal tunnel syndrome. In his opinion the abnormality would be identified only if the surgeon was performing an extended exposure of the median nerve over a lengthy incision of the type employed in revisionary surgery. An extended incision of this type was not routinely used in primary carpal tunnel release surgery.

In response the plaintiff relied on Associate Professor Connolly’s firm opinion that, had the defendant performed the procedure with due care, he would have noted the abnormality in the position of the median nerve and relieved the compression that it was causing to the nerve.

He said the standard expected of a reasonable hand surgeon required locating and viewing the whole of the median nerve from just proximal to where it entered the carpal tunnel to ensure that it was decompressed in its entirety from that point to its terminal branches. It appeared to Associate Professor Connolly that the defendant did not identify the median nerve at the proximal area of the carpal tunnel and distal forearm and therefore did not adequately decompress it.

He said it was critical to see the nerve as it entered the carpal tunnel. There could be variations in the median nerve that were all unusual but the nerve was described as median or midline. It was never reported other than midline. If there was unusual anatomical distribution he would expect to see it in the course of the standard procedure.

His opinion was that competent professional practice in performing carpal tunnel release involved finding and identifying the median nerve and finding where within the carpal tunnel it was being compressed. In finding and identifying the nerve, its distribution was identified. If there was an unusual distribution of the median nerve it was important to identify it to ensure the nerve was decompressed.

Associate Professor Connolly said that the anomaly was just proximal to the carpal tunnel and that a standard surgeon would look at the course of the median nerve through the carpal tunnel and at the proximal part. If there was an anomaly he would find it as he retracted the skin flaps at the wrist crease and if he placed a finger in the decompressed carpal tunnel he would feel some residual compression.

He agreed that in revisionary surgery the incision was extended but said that the incision made by the defendant should have allowed him to lift the flap with a retractor to see for one to two centimetres.

He said he would not necessarily extend the cut if he was able to see the nerve and that the extended excision of one to two centimetres made by

Dr Coroneos was not routinely used in initial surgery. It would be extended if the surgeon was unable to see the nerve as it entered the tunnel.

The defendant was questioned concerning his evidence that he had a clear recollection of performing surgery on the plaintiff. It was put to him that his evidence was based on standard practice rather than actual recollection. He claimed that he was able to remember specifically the treatment provided to the plaintiff. He denied that his evidence was based on his standard practice. His reason for retaining a clear memory was that after surgery the plaintiff’s recovery was not standard and he continued to review him. Further, he reviewed the case in his mind and from his notes immediately upon being alerted to Dr Coroneos’ findings.

The defendant had difficulty remembering other procedures performed on 15 September 2005, of which there were several, including two total knee replacements, a bone graft, release of a right De Quervain’s tenovaginitis, manipulation under anaesthetic of a rotator cuff and a left knee arthroscopy.

He agreed the operation reports for the procedures performed on 11 August 2005 and 15 September 2005 were identical and were therefore in standard form. The only record produced that set out the plaintiff’s symptoms was the summary contained in his original letter^xx to Dr Sterne dated 22 July 2005.

The defendant said that, having made the incision and believing the median nerve was decompressed, he checked whether it was compressed elsewhere within the carpal tunnel. He denied that his evidence that he could see the median nerve was based on standard practice and without independent recollection or that his memory of events was inaccurate and that he did not properly visualise the full length of the median nerve to ensure that it was not compressed where it entered the carpal tunnel.

He also denied that he failed to determine where the nerve entered the carpal tunnel before closing. He sSaid he saw this when the carpal tunnel was divided. He rejected the proposition that had he properly identified the median nerve to the point where it entered the carpal tunnel he would have found that it was compressed elsewhere, that the nerve did not follow a normal anatomical distribution and he could then have taken further action to find the compression located by Dr Coroneos.

The defendant said the compression located by Dr Coroneos was proximal to the carpal tunnel at the distal end of the forearm and it was not reasonable to expect a surgeon to continue a dissection more proximally into the forearm on the basis that he might find an anatomical variation that was very rare. He equated this suggestion to asking someone to see around a corner.

Associate Professor Connolly was critical of the method adopted by the defendant to check and confirm that compression with the carpal tunnel was fully relieved. His preferred method was to use a double gloved finger to ensure that there was no compression in the proximal part of the carpal tunnel. He denied that this was an antiquated method and said that two thirds of surgeons would not rely only on the McDonalds dissector used by the defendant.

He disagreed that there was no reason to look for anatomical abnormality if the defendant, after release of the transverse ligament, palpated the area proximal of the carpal tunnel with a McDonalds dissector and found no indication of compression. His opinion was that the surgeon should use a finger to see and feel the nerve and feel the tunnel.

The defendant disagreed that the most appropriate method by which to check that no compression remained within the carpal tunnel was to use a gloved finger. He disagreed that the gloved finger provided a better feel than the McDonalds retractor.

The defendant was challenged about whether the surgery was performed with undue speed at the end of a day on which he had performed a large number of significant surgical procedures.

The procedure performed on the plaintiff was the second last of those performed by the defendant on 15 September 2005. The defendant confirmed that it was not a lengthy procedure. He said it took between 9 and 15 minutes to perform. Hospital notes indicated that the procedure undertaken on the right hand took 11 minutes. The defendant said this would be roughly right^xxi.

The hospital notes recorded that the operation performed on the left hand on 15 September 2005 took six minutes. The defendant said that it took longer than this. He did not accept that a standard carpal tunnel procedure would normally take about 30 minutes to perform.

He challenged the accuracy of the hospital notes, stating that they were made by nurses who had many tasks to perform and the record of times involved was frequently inaccurate. He said the reason for these inaccuracies was that the records were often completed after the procedure was finished.

The defendant was taken through the steps he said were undertaken in performance of the procedure. He agreed that they could not be performed in six minutes but maintained that the hospital records were wrong and that he normally required between 11 and 15 minutes to complete the procedure.

Associate Professor Connolly said he took 30 minutes or more to complete a carpal tunnel release from when he started cutting to the insertion of sutures, longer in more severe cases.

Dr Ross said the time required for carpal tunnel release depended upon its complexity and the surgeon performing the procedure. He said the average was about 15 minutes, that 30 minutes was fairly long and that the times involved varied significantly. He did not accept that a procedure undertaken in six minutes indicated that the surgery was rushed. He considered that 30 minutes was the time needed to perform a complex revision carpal tunnel. He said he had performed many of these procedures, most of them in ten minutes.

I was not satisfied by Associate Professor Connolly’s evidence that the plaintiff established, as required by s 5O of the Civil Liability Act 2002, that some aspect of the procedure was performed by the defendant in a manner that, at the time the surgery was performed, was not widely accepted in Australia by peer professional opinion as competent professional practice.

Dr Coroneos, after direct observation, said that the anomaly in the position of the median nerve was only apparent to him when the incision was extended and that such an incision was extended only in complex non-standard or revisionary surgery. The evidence of all of the medical experts that the anomaly in the position of the median nerve was extremely rare.

Three of the four experienced hand surgeons were not critical of the defendant’s failure to identify this anomaly. Dr Honner said that, not only was the position of the median nerve unusual, there was no pre-operative indication of compression of the median nerve in other than the carpal tunnel. Dr Ross said the nature and locality of the anatomical variation would make it very difficult to identify in the course of the performance of a standard carpal tunnel release.

Associate Professor Connolly and the defendant disagreed about the best method to be adopted to check that the nerve was fully decompressed within the carpal tunnel during surgery. It was not suggested that the method adopted by the defendant was condemned by medical practitioners generally and Associate Professor Connolly appeared to accept that one third of surgeons took the same view of its suitability as the defendant. In the circumstances, I did not regard the defendant’s preference for the use of the McDonalds retractor rather than a double gloved finger for this purpose as evidence of medical negligence on his part.

The only remaining area of criticism of the surgery was the suggestion that it was performed with undue speed and therefore in a fashion that did not allow the defendant time within which to fulfil all of his obligations of duty of care to the plaintiff. The evidence of the defendant, Dr Ross and Associate Professor Connolly made it clear that, even if the defendant failed to undertake that part of the procedure that involved viewing the median nerve as it exited the carpal tunnel, it would not have been possible for him to perform the remainder of the surgery in the space of six minutes. I therefore accepted the contention of the defendant that the hospital records were inaccurate.

The claim that the defendant breached his duty of care to the plaintiff in the performance of surgery on 15 September 2005 failed.

ISSUE 2 - Post Operative Care

The plaintiff claimed that the defendant breached his duty of care by failing to undertake post operative testing to determine the cause of his complaints of significant pain and for failing to undertake re-exploratory surgery earlier than that performed by Dr Coroneos on 10 October 2005. He claimed that, had the defendant acted more promptly, he would have been afforded the opportunity to secure a better outcome in the condition of his left hand.

The dispute between the plaintiff and defendant as to who initiated contact with his office on the day after surgery was of little consequence, although Associate Professor Connolly thought the defendant should have made contact with the plaintiff on that date. The defendant said he was informed of the plaintiff’s symptoms when they were reported to his office the day after surgery but he was unable to review the plaintiff until 20 September 2005 because of his other professional commitments.

The defendant said that on 20 September 2005 the plaintiff told him that he had pain in his hand. He examined it, concerned that the cause was infection, bleeding or swelling that was irritating or compressing the nerve. He saw no evidence of this. He told the plaintiff that it was unusual to have so much pain at that point of time. He agreed, but did not remember, that he could have said that the plaintiff’s presentation was: a bit strange^xxii. He said he told the plaintiff that if the pain did not settle it might be necessary to re-explore the hand.

The plaintiff did not remember that the defendant raised the need for possible re-exploratory surgery at this consultation. He denied that his memory of events was blurred by the stress and pain that he experienced. He remembered only that the defendant spoke of further surgery on 30 September 2005 with the intention of undertaking it on 14 October 2005. The defendant’s evidence that he considered revisionary surgery on 20 September 2005 was supported by a letter^xxiii he wrote to Dr Sterne on that date in which, in respect of the plaintiff’s left hand, he said:

On examination today there is no swelling, erythema or tenderness around the scar. It may be that we have to explore this again if things do not settle and I will review him again on Friday to assess this.

The defendant said he made the decision not to re-explore the left wrist immediately because there was no clinical evidence of bleeding or infection and he knew from his observations during surgery that the nerve was not damaged. He thought that the nerve was suffering from some form of irritation and needed time to settle. He made arrangements to review the plaintiff again on the following Friday, 23 September 2005.

The defendant said that on 23 September 2005 he saw no evidence of infection and no abnormal swelling. Sensation in the fingers of the hand indicated that there was no inadvertent transection of the nerve. He continued with the opinion that the nerve was inflamed. He decided to continue to review the plaintiff and to organise for him to see a physiotherapist. He wrote^xxiv in these terms to Dr Sterne on 23 September 2005

He considered that physiotherapy was warranted because the amount of pain of which the plaintiff complained was disproportionate to the procedure performed. He was concerned that the plaintiff might be developing an abnormal pain syndrome. He said physiotherapy was the standard form of intervention against the development of this condition.

He reviewed the plaintiff once more on 30 September 2005. The plaintiff continued to complain of pain and he decided that if there was no considerable improvement he would undertake further surgery in 14 days time, that is, on

14 October 2005.

He did not see the plaintiff again for treatment.

This was because the plaintiff was not happy with the post operative care provided by the defendant. He said he wanted further investigation and he was concerned because the defendant was not taking his complaint of pain seriously, there were too many patients in the waiting room, the defendant did not return his calls, did not investigate the source of his pain and did nothing to relieve his pain.

The defendant said that matters he considered as the cause for the disproportionate pain level were bleeding or haematoma around the nerve, inflammation or infection.

That was in essence what I thought about and let me put it this way those would be in large writing at the top of the list and further on down constriction at other levels which may extend from the cervical spine through the elbow and through the forearm which had been, up until this point, undiagnosed and we sometimes get that in nerve injuries, the so-called double crush with a patient has perhaps an arthritic neck as well as carpal tunnel syndrome and releasing the carpal tunnel syndrome only releases part of it and there were a number of other things that I thought about at that time, so a second compression, inflammation of the nerve, I also thought about damage to the nerve, haematoma and inflammation.^xxv

He said it was too early at the first visit to consider reflex sympathetic dystrophy or regional pain complex. He did not mention RSD to Dr Sterne but did mention it to the physiotherapist. He said this was not a firm diagnosis and his purpose in referring the plaintiff to physiotherapy was to prevent its development.

The defendant acknowledged that Dr Coroneos immediately arranged nerve conduction tests, an MRI scan and operative treatment. He did not accept that he should have carried out these investigations. He said Dr Coroneos was providing a second opinion and did not have the benefit of seeing the anatomy at the time of surgery. He acknowledged in hindsight that he could have proceeded with re-exploration earlier. He did not accept that earlier intervention would possibly have reduced the plaintiff’s ongoing pain.

Dr Coroneos stated that the plaintiff complained on first consultation of severe pain in his left hand. After nerve conduction testing and receiving the recommendation of Dr Cameron the plaintiff was placed on an emergency operating list for 10 October 2005.

Dr Coroneos reported^xxvi to Dr Sterne on 18 October 2005 that when he examined the plaintiff on 6 October 2005 he offered him two options for treatment. The first was to allow a further period of time with pain medication before taking further action; the second was to undertake tests and consider early re-exploration and possible decompression. The plaintiff elected the take the second course because he could not tolerate the pain from which he was suffering.

The plaintiff denied that Dr Coroneos gave him the option of waiting to see if his condition settled. He said that Dr Coroneos told him he would arrange the nerve conduction studies and MRI and, depending on the outcome, decide whether to proceed with further surgery. He said he needed to carry out the tests quickly.

He agreed that both the defendant and Dr Coroneos proposed re-exploration but said that the defendant was not proposing any pre-surgery tests.

Associate Professor Connolly said throbbing pain, colour change, numbness and swelling and symptoms of severe burning and shooting pains should have alerted the defendant to the possibility of intra-operative nerve damage or, more likely, compression of the median nerve. Other possible causes of these symptoms were pressure from sutures, dressings or plaster, internal pressure from bleeding or blood clot. He said he would not wait if he thought the pressure was from unrelieved constriction.

Associate Professor Connolly addressed the issue of delay in re-exploration in three reports. In his report of 1 September 2008^xxvii he said colour change in the plaintiff’s forearm and palm and shooting pain with increased sensory disturbance suggested incomplete release of compression of the median nerve. He said the defendant should have adopted the same course as Dr Coroneos and treated the plaintiff with medication, investigation and possibly revision surgery. In Associate Professor Connolly’s opinion waiting 14 days post operatively before considering surgery did not accord with standard care. He said that, if the decision to re-investigate had been made earlier, a better outcome was likely. He said his reference to a likely better outcome was intended to convey that it was more likely than not that the outcome would be better.

In a further report dated 20 August 2009^xxviii Associate Professor Connolly said if symptoms persisted for more than a few days exploratory revision surgery should be carried out as soon as feasible, preferably within 10 to 14 days. He said timing was important, because if it was necessary to repair the median nerve, early intervention allowed a greater prospect of successful repair. The long term risks of delay could extend the time period for median nerve recovery and expose the plaintiff to the significant risk of development of complications such as reflex sympathetic dystrophy and chronic pain syndrome.

In his report of 22 December 2009^xxix he said the defendant on 23 September 2005, when uncertain of the reason for the persistent symptoms, could have suggested nerve conduction studies but in most cases diagnosis should be made on clinical grounds and if there was doubt a nerve conduction study might be helpful.

Dr Honner said that nerve conduction studies were not helpful because, although they detected damage to the nerve they did not quantify or localise damage accurately.

Associate Professor Connolly disputed the proposition that delay in providing relief would not adversely impact the plaintiff if the post-operative pain was caused by continuing compression of the septum or proximal part of the transverse ligament in a similar fashion to the pressure that existed prior to surgery. He said the pressure would be greater because it was only partially relieved and an incomplete release placed far more pressure on the median nerve.

He did not accept that, if there was no damage to the nerve, there was no basis for his assertion that compression was responsible for the plaintiff’s ongoing pain. He said there was always damage when the nerve was compressed and that severe pressure, even for a month, could cause a major problem and pain that could last a long time.

He agreed he would be reluctant to re-explore the hand if the symptoms did not a clearly indicate continued compression.

He agreed that a conservative approach was appropriate if it was considered that the symptoms were the result of bruising that might resolve but did not accept that this was the appropriate course if the symptoms included pain.

Dr Honner concluded from the documentation provided to him that the defendant intended to re-explore the left carpal tunnel area on or about 14 October 2005. He said the defendant was not in breach of his duty of care by failing to undertake the re-exploration that he proposed because the plaintiff sought treatment elsewhere.

Dr Honner also said the delay in re-exploring the left carpal tunnel release from 20 September to 10 October 2005 did not affect the plaintiff’s prognosis. His opinion on this aspect of the claim was based on period of time over which plaintiff suffered from the condition prior to surgery and on his 30 years of experience as a hand surgeon.

Dr Honner was not provided with a history of the complaints made by the plaintiff immediately after surgery and up to 20 September 2005 and he did not see the result of the MRI scan taken at the request of Dr Coroneos.

He agreed that relevant to the treatment to be provided were the plaintiff’s complaints of throbbing pain in his hand and wrist immediately after recovering from anaesthetic as were complaints of pain the day following surgery and changes of colour in the hand. He said swelling in the hand and wrist was common after surgery. He said that, although the factors listed were relevant to the determination of future treatment, it was not his opinion that surgery should have been undertaken before 10 October 2005.

Dr Honner said the nerve conduction studies undertaken at Dr Coroneos’ direction indicated that there was some continuing abnormality at the left wrist and it was clear as time progressed that re-exploring the nerve was the correct treatment. It was a question of judgment to determine when on clinical grounds that step should be taken.

Dr Mark Ross in a report dated 21 October 2009^xxx said that surgeons did not take decisions to perform re-exploration lightly because of the risk of exposing the patient to further complications such as infection, the risk of which is higher after early revision surgery, and anaesthetic. He, like Dr Honner, said a value judgment was involved. His opinion therefore was that there was no strong indication that defendant failed to provide an adequate standard of care in delaying re-exploration.

Like Dr Honner, Dr Ross was not informed of the plaintiff’s immediate post operative complaint of throbbing pain in hand and wrist, of the complaint one day later of shooting pains extending up his arm towards the shoulder, of colour change and swelling in the hand and swelling by 20 September 2005 and that the plaintiff by then appeared to be in severe pain.

Dr Ross did not accept that, taking these factors into account, it was necessary to investigate as soon as possible. He said it was important to undertake a clinical assessment of the situation. Some of the factors enumerated were within the normal spectrum of post-operative response to surgery. Some indicated the possible early onset of conditions, such as regional pain syndrome. None would be considered an indication for any investigation or emergency surgical re-exploration at the consultation that took place on 20 September 2005 although they might indicate that exercise, hand therapy or occupational therapy was required.

Dr Ross said that analgesia and encouragement of movement and hand therapy, if symptoms did not settle, were successful in most cases in averting the development of chronic pain syndrome.

He thought a factor that was critical to the determination of the cause of the post operative symptoms experienced by the plaintiff was that there were sensory abnormalities in only a portion of the median nerve. He explained that he used the word only to point out that part of the distribution of the nerve was affected. In the majority of cases post operative complications were expected to cause dysfunction in the entirety of the nerve. The complications that were likely to cause this level of dysfunction and to require early re-exploration were haematoma developing within the carpal tunnel or a partial unreleased band of tissue compressing the nerve, both of which caused median nerve compression.

In the plaintiff’s case there was partial dysfunction of the median nerve suggesting that there might be bruising of the nerve and temporary neuropraxic injury that would be expected to resolve.

Associate Professor Connolly’s diagnosis of the plaintiff’s ongoing pain and discomfort was of median neuralgia affecting the middle and ring fingers and giving the plaintiff weakness of grip and grasp.

Associate Professor Connolly’s opinion was that the most likely cause of the ongoing pain and discomfort in the plaintiff’s left hand was damage to the nerve resulting from its continued compression.

Dr Ross said he used the term implication in dealing with the question of whether the anatomical variation was responsible for secondary compression of the median nerve in the proximal aspect of the carpal tunnel and in the distal part of the forearm. He said the symptoms could also have been the result of other factors such as the formation of scar tissue or post operative adhesions.

No medical expert suggested that exploratory surgery should have been undertaken immediately following the consultation on 20 September 2005. Nor was it suggested that the conservative approach adopted by the defendant at that time was inappropriate in the circumstances.

While the plaintiff did not recall receiving advice to that effect, the documentary evidence indicated that the defendant, as early as 20 September 2005 considered the question of re-exploratory surgery.

The defendant, Dr Honner and Dr Ross put forward reasons supportive of the adoption of the conservative approach taken by the defendant of deferring further surgery until the wait and see option failed to result in improvement in the plaintiff’s condition. Dr Ross explained that re-exploratory surgery was not without risk. He also recognised as an available option the physiotherapy recommended by the defendant as a means of preventing the development of regional or chronic pain syndromes.

Although the plaintiff once more did not recall the advice given, it was not put to Dr Coroneos that he was untruthful in his evidence that he gave the plaintiff the option of a further period of conservative treatment or immediate surgery.

Again, three experienced hand surgeons were not critical of the defendant’s post operative treatment of the plaintiff. In the circumstances, I accepted that the defendant at the time treated the plaintiff in a manner that was widely accepted by professional opinion as competent medical practice.

Criticism of the defendant’s failure to refer the plaintiff for nerve conduction tests could not be sustained in the light of the opinions expressed by Associate Professor Connolly and Dr Honner that the results were unlikely to be helpful to the exercise of judgment involved in the treatment to be offered to the plaintiff.

The claim of loss of opportunity to secure a more favourable outcome could succeed only if there were clear evidence that the plaintiffs’ ongoing symptoms were more likely than not the result of an unreasonable period of unrelieved compression of the median nerve. In this case, Dr Ross indicated that there were other plausible causes for those ongoing symptoms. The evidence as to causation was therefore insufficient to sustain that part of the plaintiff’s claim.

Damages

The plaintiff was 36 years old at the time of the surgery performed by the defendant. He is now 42 years old. He is right hand dominant.

The plaintiff said that the re-exploratory surgery performed by Dr Coroneos had the result that the shooting pain into his arm settled over time. He continued to suffer from pain in his hand although the burning sensation over the palm of the hand was diminished. He continued with physiotherapy and complied with recommendations that he use his hand as much as possible to avoid further damage. He continued to rely on medication to relieve pain.

By February 2006 he remained in pain, suffering from sleep deprivation but trying to use his left hand on advice. He continued to consult his general practitioner and to rely on painkillers.

In March 2006, on the recommendation of the Commonwealth Rehabilitation Service, he consulted Ms Carla Bingham, a hand therapist, who massaged his hand and advised him to use a glove and splint. The plaintiff said he used the splint at night without effect.

Nerve conduction studies were also undertaken in March 2006, following which the plaintiff again consulted Dr Coroneos. He did not recommend further surgical treatment to relieve his condition.

The plaintiff said that by June 2006 the discomfort in his left hand continued and he was not coping well psychologically. He said his symptoms were affecting his home life and his relationship with his wife. He was less active with his two young children.

The Commonwealth Rehabilitation Service recommended that he obtain counselling. He consulted Dr Sandara Masih for treatment of symptoms of anger, depression, agitation, and fear of loss of employment as a police officer.

He was particularly troubled when he could no longer work as a police officer, this being the only career in which he had any training.

He continued to consult Dr Masih. In December 2008 his general practitioner referred him to Dr Scurrah, psychiatrist, whom he continued to consult.

The plaintiff’s current situation was that his relationship with his wife continued to be affected. He said he tried to use his hand as much as possible, although excessive use aggravated the constant pain. He changed from a vehicle with manual gears to an automatic but otherwise driving was not a problem for him.

He no longer played golf or cricket. He continued to play soccer once a week on a Friday night. He sold his surf ski because he could not use it. He played touch football since his injury four times with police colleagues.

His said that his hand continued to discolour when it was cold, a condition that could occur at any time. He relieved the condition by running hot water on the hand. He continued to suffer from sleep deprivation, sleeping only about four hours each night.

Since he was discharged from NSW Police, the plaintiff had undertaken voluntary work for the Surf Lifesaving Association, managing its gymnasium and other facilities. He undertook a fitness leader’s course and first aid training in order to qualify for this work. He also participated in nipper training and beach patrols at weekends.

He used the gymnasium up to three times each week and supervised the training of other attendees. He said this activity assisted him because it provided him with an opportunity for activity and a distraction from his pain.

His activities with the nippers involved training them in water safety. This required him, with a number of other adults, to watch children aged up to 13 years old by entering the water of an open surf beach that was sometimes rough. He said he was confident of his capacity to assist the children if necessary.

He also patrolled as a volunteer lifeguard. He had expertise in first aid and defibrillation. He acknowledged that this role might require him to enter the surf to assist adults but said that to date he had been called on for first aid only. He said he would need assistance if required to employ resuscitation techniques.

He exercised, using all the equipment in the gymnasium. He said this was not high-tech equipment. He used free weights, with bars or dumb bells, and machines and benches for exercises such as leg presses. He agreed that he used a dumb bell in his left hand and a bar bell in both or just the left hand. He used a glove with the dumb bells.

He agreed that he ran with his now nine year old daughter. He did this irregularly depending upon her training schedule in the cross country season. He had no difficulty running.

The plaintiff’s wife, Christine Burton, said that prior to surgery the plaintiff loved his work as a police officer, that he had no emotional problems, enjoyed his children and was very social.

Mrs Burton said that in the six month period prior to his discharge from NSW Police in August 2009 the plaintiff was very angry. He was short tempered, intolerant and frustrated. He was fatigued and groggy from the medication that he was taking and he was forgetful.

Mrs Burton said that the voluntary work the plaintiff undertook helped his mental condition. He provided him with camaraderie and purpose. He enjoyed working with children.

The medical evidence was generally supportive of the plaintiff’s complaints of continuing symptoms, both physical and psychological.

Dr Ashwell, orthopaedic surgeon, in November 2006 diagnosed^xxxi the plaintiff as suffering from a Complex Regional Pain Syndrome Type 2 affecting the digital nerves of the middle finger and the radial digital nerve of the ring finger. He said the plaintiff’s complaints were consistent with his history.

Dr Watson, orthopaedic surgeon, examined the plaintiff in February 2007. He reported^xxxii that he was unable to confirm signs of a complex regional pain syndrome. He found no evidence of wasting and no difference in temperature or colour affecting the plaintiff’s left hand. He said the plaintiff appeared to have a fully functional median nerve with minor sensory signs around the middle finger in an unusual distribution. This unusual distribution was not the classical presentation of ongoing symptoms from carpal tunnel syndrome. He questioned whether it was the result of the abnormal anatomy in the plaintiff’s left wrist.

Dr Blenkin, orthopaedic surgeon, examined the plaintiff on behalf of the defendant in April 2009. He also diagnosed^xxxiii a Type 2 Pain Syndrome that he described as chronic pain in the presence of a demonstrated neurological injury. He said the plaintiff’s condition was stable and likely to remain symptomatic in the long term. He said neurological pain was a bad type of pain and tends to be wearing on the individual.^xxxiv He regarded as reasonable the plaintiff’s complaints of pain and of the limits that it placed on his activities.

Dr Acar, rehabilitation physician, examined the plaintiff in June 2009. He reported^xxxv that the grip strength demonstrated in the plaintiff’s left hand was 30% to 50% of that which might be expected. He noted no significant colour change, no temperature change and no motor change, except for the pain related loss of grip strength. He reported a v-shaped area of abnormal sensation that affected the palm, middle and ring fingers of the plaintiff’s left hand. He noted no discernible swelling. Dr Acar referred to the plaintiff’s complaints of pain as atypical. He noted also the reports of the psychological consequences to the plaintiff of his longstanding symptoms and concluded:

His ongoing atypical pains, dysfunction, and psychological disorder also are a feature of a chronic pain syndrome which should be explored further by way of multidisciplinary assessment and treatment. This does not appear to have stabilised.^xxxvi

Dr Masih, psychologist, treated the plaintiff between June 2006 and November 2007. She diagnosed^xxxvii an Adjustment Disorder with Mixed Depression and Anxiety. She said the plaintiff’s major concerns were his chronic intractable pain, the effects of pain medication on his ability to function at work, drowsiness, irritability, difficulties with concentration and anxiety concerning the long term effects of the medication. She said the plaintiff expressed disappointment with medical advice that his situation could not be improved by further surgery.

The plaintiff was referred by his general practitioner to Dr Scurrah, psychiatrist. He reported^xxxviii in May 2009 that the plaintiff was suffering from Chronic Depression as a result of the injury to his left hand and from Post Traumatic Stress Disorder resulting from exposure to traumatic situations in the workplace. Dr Scurrah said the hand injury had caused depression, marital stress and a period of separation, frustration and distress because of conflicting medical opinions. He said that treatment had resulted in some improvement in the plaintiff’s condition but there was a significant risk that the chronic depression would continue while the pain in the plaintiff’s hand continued. He considered that the plaintiff required treatment with the management of the pain in his hand as well as ongoing psychiatric treatment.

Dr French, psychologist, examined the plaintiff in February 2009. She noted^xxxix Dr Scurrah’s opinion that the plaintiff’s hand injury was a major factor in his psychological condition and that it compounded a Post Traumatic Stress Disorder. She diagnosed a Mood Disorder due to a General Medical condition with Depressive Features, the onset of which was associated with the plaintiff’s physical impairment resulting in permanent injury. She considered that he did not fulfil the criteria for a diagnosis of Post Traumatic Stress Disorder but that his symptomatology was consistent with mood alteration following the injury to his hand.

Dr Parmegiani in July 2009 also rejected the diagnosis of Post Traumatic Stress Disorder. He noted^xl that the plaintiff’s mood was improved following treatment by Dr Scurrah but that he continued to have concerns for his future. He diagnosed Major Depression. He said, although there was a delay in treatment, it was appropriate and recommended that it continue.

The plaintiff was examined by Dr Steinberg, psychiatrist, for the defendant in July 2009. No report from Dr Steinberg was in evidence.

The defendant contended that the plaintiff suffered minimal consequences as a result of the surgery. He pointed to the evidence that there was no traumatic injury to the median nerve and to the following aspects of the plaintiff’s evidence:

1 He was asked about Dr Cameron’s report of 14 March 2006 that suggested there was no undue sensitivity in the left hand and that the coolness and sweating of which he complained were normal. He accepted these comments of Dr Cameron.

2 Asked if he used the left hand in a way that was no different to its use prior to the injury, he said he consciously used the hand to prevent a deterioration in his condition.

3 The plaintiff denied that his grip was firm, stating that it was not as strong as the right handed grip or as it had been prior to surgery.

4 He agreed the palm of his left hand was a significant cause of his pain and discomfort but he did not accept that his condition had improved further since the surgery of 14 October 2005.

The defendant also proposed that, if the plaintiff established that he suffered the physical and psychological injuries of which he claimed, I should find that they were partially the result of his employment.

The carpal tunnel syndrome affecting both hands, it was claimed, was caused or contributed to by the extensive keyboard use required in the course of his work as a police officer. It was also contended that, without the treatment provided by the defendant, the plaintiff would have suffered from the same level of disability in his left hand. In the absence of evidence to support them, I rejected both of these propositions.

The plaintiff’s treating psychiatrist, Dr Scurrah, diagnosed Post Traumatic Stress Disorder, a diagnosis with which Dr French and Dr Parmegiani disagreed. Dr French reported^xli that she spoke with Dr Scurrah who told her that the plaintiff’s hand injury was the major factor in his psychological condition. In the absence of a report, I inferred that Dr Steinberg’s opinion would not advance the defendant’s contention that the plaintiff’s psychological condition was the result of employment related post traumatic stress. I accepted the opinions of Dr French and Dr Parmegiani that the plaintiff suffered from a depressive disorder as a consequence of the injury to his left hand.

Although a number of the medical examiners noted that the plaintiff’s complaints were unusual or atypical, none suggested that those complaints were not genuine. The majority reported that the plaintiff presented to them in a forthright and straightforward manner. I noted in particular Dr Blenkin’s reference to a demonstrated neurological injury that resulted in pain that was particularly wearing.

Further, I noted that the plaintiff took a positive approach to his condition through training to maintain his physical fitness, sport, voluntary work and attempts to use his left hand as much as possible to minimise the prospect of the development of further disability.

Notwithstanding the matters raised by the defendant, I was satisfied that the plaintiff gave a truthful account of his ongoing symptoms and disability and of the consequences they had on his enjoyment of life.

I assessed the plaintiff’s non-economic loss at 33% of a most extreme case.

Income Loss

The plaintiff returned to work on 24 November 2005 with continued pain and numbness in the hand. He undertook restricted duties working at a desk. He was unable to undertake functions that required that he use a firearm because he could not load it. He was unable to deal with the public, criminals or persons reporting on bail. Initially he was unable to type. He was able therefore to do very little.

His income was also reduced because he was not able to earn overtime or shift allowances.

During 2006 the plaintiff’s condition was such that he did not work for some periods of time or worked on restricted duties undertaking investigative work and overseeing investigations.

In October 2006 he was allocated restricted duties on a full time basis as Investigations Manager. This was a sedentary position that involved computer work. He managed this by using a keyboard with a wrist mat and taking breaks.

The deterioration in his condition caused him to rely on medication that affected his capacity to perform his duties. He realised that he could not continue with this work when, one morning he reversed into his wife’s car. He ceased his work as a police officer in about November 2007 and was medically discharged in August 2009.

The plaintiff said he aspired to the position of Commander or Superintendent with NSW Police. He believed that he could have obtained a position as an inspector if he had been prepared to move from the North Coast of New South Wales. He did not do so for family reasons. He planned to stay in the area and to advance through the ranks. To do this, it was necessary that he remain active in the field and able to carry a firearm.

He said he intended to retire when he no longer enjoyed police work.

The plaintiff was discharged from the Police Force in August 2009. He made his first job application in March 2010. He said that in the intervening period he undertook a three month vocational course through the Commonwealth Rehabilitation Service. Applications for employment were made on completion of this course.

The plaintiff was asked about a number of potential employment prospects that were open to him. He undertook a real estate sales course by correspondence and engaged in work experience with North Real Estate in 2009. He was concerned that income from real estate was commission based and therefore not reliable.

Exhibit BB provided information concerning job applications made by the plaintiff since he was discharged from NSW Police. He said that this was not a complete list. It was not updated with another four to five applications made in the month prior to the hearing. He applied for jobs that he believed that he was capable of performing. The employment that he applied for, without success to the date of hearing, was of a management or supervisory nature. He continued to have difficulty with touch typing.

The plaintiff denied that he could undertake work that involved typing full time. He said he could touch type using his two index fingers but that his speed was slow and it was necessary to take breaks. Prior to the surgery he was able to type statements of up to 80 pages in length. Since surgery his capacity was limited to short three line advices as Investigations Manager.

The medical experts accepted that the plaintiff was not fit to resume employment as a police officer. Dr French referred to reports provided by NSW Police that indicated that he had been a very capable, excellent police officer who was well liked and proficient.

Dr Acar said he was capable of employment in a sedentary activity, that the work should not involve the repetitive use of his hands or lifting more than five kilograms. He recommended that the plaintiff avoid overuse of his hand. Dr Blenkin agreed that the plaintiff was limited to sedentary or light manual work that allowed some flexibility.

Dr Parmegiani recommended against any return to work with NSW Police. He suggested that, if the plaintiff responded well to further psychiatric treatment, he could make a full recovery and retrain into an alternative career.

The denied that he was discontented with his career with NSW Police when he spoke with Dr Sterne of a change in his career. He said this conversation was prompted by the need to change his career because of the symptoms in his hand. He maintained that was very happy as a police officer. He agreed he was frustrated by the limits on what he could do that were placed on him by a NSW Police panel in Sydney. He said those limits made his position unworkable.

The defendant noted that the report^xlii of Dr French also indicated that the plaintiff stated that he was disenchanted with his career with NSW Police. It appeared to me that these comments were also made in the context of his dissatisfaction with his situation after the injury to his left hand. The plaintiff denied that prior to this injury he considered any change of career.

I have already considered and rejected the propositions that the plaintiff’s capacity to continue to work as a police officer would have been affected in any event by carpal tunnel syndrome or post traumatic stress.

The defendant argued that the lump sum paid to the plaintiff under the Crown Employees (Police Officers Death & Disability) Award (2005)^xliii should be taken into account in assessing the compensation to be awarded for income loss. The basis for the argument was that the plaintiff’s medical discharge from NSW Police because he was partially or permanently disabled indicated that he was unable to perform his duties and it was for this reason that he ceased his employment. The defendant claimed that payment under the Award was dependent upon loss of income and that, on the authority of Redding v Lee^xliv, the payment should be taken into account in assessing this part of the plaintiff’s damages claim. I assumed that the defendant referred to the following passage from the reasons of Gibbs CJ:^xlv

The conclusion that the benefit is intended for the plaintiff personally and not in reduction of the damages may more readily be drawn when it is seen that the receipt of the benefit is not dependent on the loss of wages or earning capacity (I shall refer again to the distinction) for which the plaintiff claims damages (cf. Parry v Cleaver (1970) AC, at p 42, per Lord Wilberforce) and is not intended to replace the lost wages or remedy the loss of earning capacity. (at p 125).

Having made this comment, Gibbs CJ noted that the High Court in a number of decisions followed and applied National Insurance Company of New Zealand Limited v Espagne^xlvi where it was decided that payments from a superannuation fund to which the plaintiff contributed were not to be taken into account in the assessment of damages.

The plaintiff relied on the following passage from the reasons of Windeyer J in National Insurance Company of New Zealand Limited v Espagne^xlvii:

In assessing damages for personal injuries, benefits that a plaintiff has received or is to receive from any source other than the defendant are not to be regarded as mitigating his loss, if: (a) they were received or are to be received by him as a result of a contract he had made before the loss occurred and by the express or implied terms of that contract they were to be provided notwithstanding any rights of action he might have; or (b) they were given or promised to him by way of bounty, to the intent that he should enjoy them in addition to and not in diminution of any claim for damages. The first description covers accident insurances and also many forms of pensions and similar benefits provided by employers: in those cases it is immaterial that, by subrogation or otherwise, the contract may require a refund of moneys paid, or an adjustment of future benefits, to be made after the recovery of damages. The second description covers a variety of public charitable aid and some forms of relief given by the State as well as the produce of private benevolence. In both cases the decisive consideration is, not whether the benefit was received in consequence of, or as a result of the injury, but what was its character: and that is determined, in the one case by what under his contract the plaintiff had paid for, and in the other by the intent of the person conferring the benefit. The test is by purpose rather than by cause.

This passage was also cited by Gibbs CJ in Redding and it was recently relied upon by the NSW Court of Appeal in Downes v Amaca Ltd^xlviii.

I noted that Justice Windeyer considered the decisive factor to be the character of the benefit and not whether it was received as a consequence of injury. One test he proposed to determine the character of the benefit involved the consideration of whether it was payable under a contract that obliged the plaintiff to pay for that benefit.

While it was true that the definition of partial and permanent disability in the Award referred to incapacity to continue employment, it was clear that the Award provided for the establishment of a benefit scheme to which police officers contributed by sacrificing a percentage of unearned salaries.

NSW Police was obliged by the Award to establish, in conjunction with First State Super, an insurance scheme to pay lump sum benefits. The payment of these Award benefits was additional to any superannuation benefit or payment under the Workers Compensation Act 1987 or the Workplace Injury Management Act 1998.

I was satisfied therefore that the Award established a benefit scheme providing police officers with insurance against partial and permanent disability for which they paid through contributions from salaries. I was satisfied that the payment made to the plaintiff under the Award was not to be taken into account in assessing his loss of income.

The plaintiff’s claim was based on his income at the time of surgery. Documentation^xlix provided in support of the claim indicated that he was employed consistently in the position of Acting Inspector. Other materials^l provided evidence of commendations and reports that were highly complimentary of the plaintiff’s competence, resourcefulness and leadership qualities.

On the basis of these materials I accepted that it was highly probable that the plaintiff would secure promotion to the rank of Detective Inspector and that his income loss should be assessed on the basis that his most likely future circumstances but for his injury were that he would be paid as an acting or appointed Detective Inspector.

I considered that it was reasonable that the plaintiff be compensated for his full income loss after his medical discharge in August 2009 to the date of hearing in May 2010 in order to allow him a period in which to search for suitable alternative employment. I therefore assessed his past income loss in the sum claimed of $140,262.17.

The plaintiff conceded that he maintained a residual income earning capacity. He claimed loss of income in the future on the basis of the difference between his superior income as a Detective Inspector and average weekly earnings. I did not accept that this difference appropriately reflected the plaintiff’s future prospects. He presented as a man of some intelligence. I have already noted the qualities referred to in the commendations earned during the course of his career with NSW Police. I considered that he would apply these qualities to a career in which he would earn greater than average weekly earnings.

I therefore assessed future income loss on the basis that he was capable of earning 125% of average weekly earnings and that, when continuing workers compensation entitlements were added, his direct loss of income earning capacity was minimal.

I considered it appropriate therefore to provide for a lump sum or buffer to take account of the potential difficulties faced by the plaintiff, still a relatively young man with more than 20 income earning years ahead of him, in retraining, securing and maintaining a position in the open labour market having regard to the condition of his left hand. The amount allowed was $75,000 inclusive of superannuation.

Domestic Care

The plaintiff said that prior to the injury to his left hand he contributed to the domestic requirements of his household by undertaking outside work such as cleaning the swimming pool and mowing the lawn. He also swept and mopped in the house, washed clothing and hung it out. He said he continued to undertake these tasks but at a slower pace, avoiding tasks such as vacuum cleaning and sweeping. He used a glove to avoid hypersensitivity in his hand when using a whipper snipper.

He now undertook a greater role in the care of his children. Assisting them in the mornings and helping them in the afternoons with homework. He coached his son’s soccer team.

He and his wife engaged a cleaner who cleaned the house once each fortnight. Although they both worked, they had not required this service prior to his surgery.

He lived in a two-storey house and employed a painter to paint the second storey. He agreed that he undertook some painting of the house since his injury. He could not remember the detail of the painting done but said it was done with his right hand only.

Mrs Burton confirmed that prior to the surgery the plaintiff did all of the outside tasks involved in their household. He also helped her with the inside work, although she did most of it.

Dr Blenkin accepted that the plaintiff required some domestic assistance and considered that three hours each fortnight was appropriate. Dr Acar’s assessment of his needs was in the range of two to four hours per week for assistance with home maintenance, automotive maintenance and domestic care.

Having regard to this evidence I decided that provision for domestic assistance was appropriate. I considered reasonable the claim of one hour per week of domestic care on a commercial basis.

I assessed this part of the claim at $10,935 for past care and $42,502.50 for the future.

ORDERS

Verdict for the defendant.

The plaintiff is to pay the defendant’s costs of the proceedings on an ordinary basis as assessed or agreed. This order is suspended for a period of seven days to allow the parties, should they wish to do so, to re-list the matter for further argument on the issue of costs.

The exhibits will be retained for 28 days.

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Exhibit CC
Exhibit 1.122
Exhibit 1.107
Exhibit CC
OSC, pp 13(b), (c), (d), (f)
OSC, pp 13(e), (g), (h), (i), (j)
Exhibit 4
Transcript 12.5.10, p13.26
Part Exhibit C
Exhibit 3
Exhibit CC
Part Exhibit E
Exhibit 1.105
Part Exhibit E
Part Exhibit E
Exhibit 1.18
Exhibit 1.32
Transcript 12.5.10, p14.24
Exhibit 1.18
Part Exhibit B
Transcript 12.5.10, p23.18
Transcript 12.5.10 p43.27
Part Exhibit B
Part Exhibit B
Transcript 12.5.10, p44.40
Exhibit 1.104
Part Exhibit E
Part Exhibit E
Part Exhibit E
Exhibit 1.32
Exhibit O
Exhibit 1.157
Exhibit 1.1
Exhibit 1.1.8
Exhibit R
Exhibit R.13
Exhibit K
^xxxviiiExhibit P
Exhibit Q
Exhibit S
Exhibit Q, p10
Exhibit Q, p.15
Exhibit 8
(1983) 151 CLR 177
at [7]
(1961) 105 CLR 569
at [599-600]
[2010] NSWCA 76, Campbell JA at 85
Exhibit X
^l Exhibit W

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AMENDMENTS:

23/12/2010 - By consent the Order for costs made on 24 November 2010 is amended to read:

1. The plaintiff pay the defendant’s costs as agreed or assessed on an ordinary basis up to and including 29 January 2010; and
2. The plaintiff is to pay the defendant’s costs as agreed or assessed on an indemnity basis from 30 January 2010. - Paragraph(s) 219, 220, 221

23/12/2010 - By consent the Order for costs made on 24 November 2010 is amended to read:

1. The plaintiff pay the defendant’s costs as agreed or assessed on an ordinary basis up to and including 29 January 2010; and
2. The plaintiff is to pay the defendant’s costs as agreed or assessed on an indemnity basis from 30 January 2010. - Paragraph(s) 219, 220 & 221

LAST UPDATED:
23 December 2010