Chester v WA Country Health Service
[2019] WADC 152
•13 NOVEMBER 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: CHESTER -v- WA COUNTRY HEALTH SERVICE [2019] WADC 152
CORAM: GOETZE DCJ
HEARD: 2-6, 9 SEPTEMBER 2019
DELIVERED : 13 NOVEMBER 2019
FILE NO/S: CIV 19 of 2012
BETWEEN: JESHUA JOHN CHESTER
Plaintiff
AND
WA COUNTRY HEALTH SERVICE
Defendant
Catchwords:
Alleged medical negligence - Causation - Damages
Legislation:
Civil Liability Act 2002 (WA)
Result:
Action dismissed
Representation:
Counsel:
| Plaintiff | : | Mr T Offer |
| Defendant | : | Mr D R Clyne |
Solicitors:
| Plaintiff | : | Ian Watson Lawyer |
| Defendant | : | Panetta Mcgrath Lawyers |
Case(s) referred to in decision(s):
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
Rogers v Whitaker (1992) 175 CLR 479
Tabet v Gett [2010] HCA 12
Wright v Minister for Health [2016] WADC 93
GOETZE DCJ:
By this action, the plaintiff, Jeshua John Chester, alleges that the defendant, WA Country Health Service, breached its duty of care owed to him when he attended duty doctors at the Busselton Regional Hospital on the night of 31 July 2009 and again on the following morning.
Mr Chester alleges that a left shoulder injury suffered by him was incorrectly reported as a subluxation, rather than a dislocation, of his left acromioclavicular joint, and further, that the attending medical officers failed to advise him to seek orthopaedic review to determine the most appropriate form of treatment for his injury. He claims to have continuing problems with his injury.
This action therefore concerns the liability of the hospital and if found to be so liable, it is necessary to assess the loss and damage, if any, suffered by Mr Chester.
The parties, attending medical practitioners and witnesses
Jeshua John Chester
Mr Chester was born on 1 February 1983 and was, at all material times, a plasterer. He was originally from Perth but, in 2006, he moved to Busselton with his partner. Their daughter was born on 15 September 2008.
Busselton Regional Hospital
Busselton Regional Hospital is a public hospital providing an emergency service. It did not have an orthopaedic department. The nearest place for orthopaedic review was at Bunbury, being some 30 minutes driving time from Busselton.
Save that the electronic version of the diagnostic imaging report dated 1 August 2009 identifies the referring physician as being Hendrick Gildenhuys, the names of the two doctors from the hospital who attended Mr Chester on 31 July and 1 August 2009 were not otherwise revealed in evidence.
Dr Anthony Timothy Marshall Taylor
Dr Taylor was, at all material times, Mr Chester's general medical practitioner practising privately at a surgery in Busselton.
Dr Rene Lim
On 12 August 2009, Dr Lim was working as a junior general medical practitioner in Dr Taylor's private practice when Mr Chester first attended that practice in respect of his left shoulder injury.
Witnesses
Mr Chester called the following witnesses:
1.Mr Barry Slinger, orthopaedic surgeon;
2.Professor Alan Skirving, orthopaedic surgeon;
3.Associate Professor Dr David Mountain, emergency physician; and
4.Dr Christopher Hammersley, occupational physician.
The only witnesses to give evidence on behalf of the hospital were Dr Taylor and Mr Michael Alexeeff, orthopaedic surgeon.
Mr Chester's attendance at the hospital on 31 July/1 August 2009
On the evening of 31 July 2009, Mr Chester overindulged in alcohol and engaged in some physical activity which resulted in him suffering a left shoulder injury in respect of which, at approximately 10 minutes before midnight, he was taken to Busselton Regional Hospital, where he consulted a medical practitioner.
The hospital's emergency department notes indicate that Mr Chester complained of a painful left shoulder with general bruising and some grazing of the skin. His clinical presentation was that of a left acromioclavicular joint subluxation. The first attending medical practitioner at the hospital prescribed analgesia, an ice pack and a broad arm sling, referred Mr Chester to an X‑ray service and asked him to return on the following morning.
The radiological diagnosis was reported as a 'dislocation of the left AC joint'.
On the following morning after X-ray, the second attending medical practitioner at the hospital 'noted' the diagnostic imaging report. He or she wrote in the hospital notes that Mr Chester suffered an 'A/C joint dislocation' but, for some unknown reason, that same practitioner wrongly wrote in the discharge summary given to Mr Chester that the diagnosis was 'AC joint subluxed L shoulder'.
Mr Chester was given analgesia. His evidence was that he was told to keep his arm in the sling for four to six weeks, during which time his injury would improve steadily and he would be back at work in six weeks. Mr Chester was advised to consult his general medical practitioner in two weeks.
The hospital did not have any further involvement in Mr Chester's treatment.
Consultation on 12 August 2009 with Dr Lim
On 12 August 2009, Mr Chester attended Dr Taylor's private surgery and consulted Dr Lim, in the absence of Dr Taylor, taking with him the hospital discharge summary. Dr Lim's typed records indicate the diagnosis as 'left AC jt subluxation … x‑rays confirm this'. Mr Chester's pain was improving, but still present. Mr Chester said his shoulder mobility was still reduced. Dr Lim measured Mr Chester's range of arm movement. He continued to be managed conservatively with a sling and was advised to return in another two weeks. Dr Lim took no further role in Mr Chester's management.
Consultation on 2 September 2009 with Dr Taylor
On 2 September 2009, Mr Chester consulted Dr Taylor, still complaining of trouble moving his painful left shoulder. Recovery was slower than expected. Dr Taylor recorded the reason for this visit as 'AC joint subluxation'. Dr Taylor prescribed medication. There is no record in the notes that Mr Chester was required to utilise a sling at this time. However, Mr Chester's evidence was that he was told by Dr Taylor to continue using the sling and that he did so for another four to six weeks.
Dr Taylor's diagnosis of the injury
Dr Lim's notes follow the emergency department discharge summary confirming AC joint subluxation following X‑ray. Dr Taylor's first consultation records also refer to an AC joint subluxation.
Dr Taylor's evidence was that when first consulted by Mr Chester, he had the discharge summary indicating a subluxation and the diagnostic report indicating a dislocation of the left AC joint. He wrote 'subluxation' in his notes. His evidence was that he based his decision as to treatment on what had been reported to him and Mr Chester's clinical presentation.
Dr Taylor said in evidence that it is a matter of degree whether the injury was one of subluxation or dislocation and that there is no difference between treating a grade 3 AC joint subluxation or dislocation. Either way, the patient would be provided with a sling, pain relief and rest. This conservative treatment would take place over a period of up to three months.
Consultation on 25 September 2009 with Dr Taylor
Mr Chester again consulted Dr Taylor on 25 September 2009. He was then experiencing pain whenever he took any weight through his left AC joint. Review by Ms Kay Pratsis, an orthopaedic surgeon based in Bunbury, was then sought.
Events leading to surgery on 24 February 2010
Unfortunately, Ms Pratsis was unable to review Mr Chester. He was therefore referred to another orthopaedic surgeon, Mr Neil Openshaw, also in Bunbury. An appointment was scheduled for February 2010.
On 22 October 2009, Mr Chester attended Dr Taylor for an unrelated matter. When Mr Chester attended Dr Taylor on 6 November 2009, he complained of left shoulder joint instability and he also raised another unrelated matter. Next, Mr Chester suffered further left shoulder pain following some work on his motor vehicle and on 16 November 2009, he returned to see Dr Taylor, who then organised for Mr Chester's review with Mr Openshaw to be brought forward to 7 December 2009.
Upon review, Mr Openshaw placed Mr Chester on a public waiting list as a semi-urgent case for left shoulder surgery, being a reconstruction of his acromioclavicular ligaments, probably in combination with excision of the distal clavicle. Mr Chester's evidence was that there was a 13 month delay before he could proceed to this surgery as a public patient.
Mr Chester continued to suffer left shoulder pain and a financial downturn from not working. Dr Taylor's records dated 21 January 2010 reveal that, by then, Mr Chester was trying to borrow funds so that he could undertake Mr Openshaw's proposed surgery as a private patient. Mr Chester said he borrowed funds from his brother to do this. It was not revealed in evidence when this loan was made, or its terms.
Mr Openshaw then performed reconstruction surgery on 24 February 2010 with Mr Chester being a private patient. By reference to Mr Openshaw's records, Professor Skirving described this as a standard reconstruction. This surgery produced a good anatomical result as revealed by later X-rays, but Mr Chester now suffers pain in the left shoulder and restrictions in terms of his daily activities.
The issue
There is no doubt that the hospital discharge summary provided to Mr Chester wrongly recorded a radiological finding of an AC joint subluxation instead of a dislocation.
There is also no doubt that the second medical practitioner at the hospital omitted to write in the discharge summary of the need for Mr Chester to seek immediate orthopaedic review as to his choice between conservative or surgical treatment for his acromioclavicular joint dislocation. Mr Chester's evidence that he was not so advised to attend for orthopaedic review is consistent with the discharge summary. There is no reason to not accept his evidence.
Given these failures by the hospital medicos, were they causative of Mr Chester's ongoing complaints? This, in turn, leads to the consideration of further sub-issues detailed below.
Causation
The Civil Liability Act 2002 (WA) (CLA) sets out general principles relating to causation and the onus of proof thereof as follows:
5C.General principles
(1)A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements -
(a)that the fault was a necessary condition of the occurrence of the harm (factual causation); and
(b)that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).
(2)In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) -
(a)whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and
(b)whether and why the harm should be left to lie where it fell.
(3)If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the tortfeasor had not been at fault -
(a)subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and
(b)evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.
(4)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor.
5D.Onus of proof
In determining liability for damages for harm caused by the fault of a person, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
By s 5C(1)(a) of the CLA and following Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 [45], factual causation is determined by the 'but for' test, ie but for the negligent act or omission, would the harm have occurred?
The question can be framed in this way:
but for the negligent diagnosis noted in the discharge summary of a subluxation, rather than a dislocation, and the omission to advise Mr Chester, either orally or in the discharge summary, to consult an orthopaedic surgeon, without delay, to determine the choice of surgical or conservative treatment, would the unsatisfactory result of which Mr Chester now complains have occurred?
In determining causation, it is necessary to consider what Mr Chester would have done had the hospital not been at fault and given him a correct diagnosis and advice of whom to consult. Mr Chester's evidence about this is inadmissible: s 5C(3) of the CLA. The burden of proof rests upon Mr Chester: s 5D.
Further, s 5PB of the CLA, relevantly, provides as follows:
5PB.Standard of care for health professionals
(1)An act or omission of a health professional is not a negligent act or omission if it is in accordance with a practice that, at the time of the act or omission, is widely accepted by the health professional's peers as competent professional practice.
(2)…
(3)Subsection (1) applies even if another practice that is widely accepted by the health professional's peers as competent professional practice differs from or conflicts with the practice in accordance with which the health professional acted or omitted to do something.
(4)Nothing in subsection (1) prevents a health professional from being liable for negligence if the practice in accordance with which the health professional acted or omitted to do something is, in the circumstances of the particular case, so unreasonable that no reasonable health professional in the health professional's position could have acted or omitted to do something in accordance with that practice.
(5)A practice does not have to be universally accepted as competent professional practice to be considered widely accepted as competent professional practice.
(6)In determining liability for damages for harm caused by the fault of a health professional, the plaintiff always bears the onus of proving, on the balance of probabilities, that the applicable standard of care (whether under this section or any other law) was breached by the defendant.
Here, what is relevant is the practice 'widely accepted by the health professional's peers as competent professional practice'. This reference to peers must be to an emergency department medical practitioner: Wright v Minister for Health [2016] WADC 93 [87] (Sweeney DCJ). There was an absence of evidence as to the qualification of the two attending hospital doctors.
The differing grades of an AC joint injury
It is agreed between the expert medical witnesses that injuries to the acromioclavicular joint may give rise to six different grades of injury. Grade 1 and 2 injuries involve a stretching or partial rupture of the acromioclavicular ligaments, being a partial dislocation of the AC joint, so that the bones are misaligned, but still in contact.
A grade 3 injury involves a complete rupture of the acromioclavicular and coracoclavicular ligaments, which also occurs in a grade 5 injury. The displacement of the clavicle to just under the skin is greater in a grade 5 injury than in a grade 3 injury.
Grade 1 and 2 injuries are properly referred to as a subluxation. Grade 3 and 5 injuries are properly described as a dislocation, where the displacement is vertical and upwards.
Grade 4 and 6 dislocations are rare and involve horizontal displacement of the clavicle in either a posterior or an anterior direction.
Dr J Labuscagne, radiologist, provided the X-ray report on 1 August 2009 noting that Mr Chester suffered a 'dislocation of the AC joint', without grading that dislocation. Later in 2015, Dr M Krieser, consultant radiologist, examined the 2009 X-ray and identified a grade 3 injury. Professor Skirving said it was 'certainly a grade 3 … with more than usual displacement'. Mr Slinger's evidence was that Mr Chester 'most likely' suffered a grade 3 injury. Professor Mountain agreed that it was at least a grade 3 injury, obviously disrupted and close to grade 5. Dr Hammersley did not grade Mr Chester's injury. Mr Alexeeff's opinion was that it was a grade 3 injury. Dr Taylor accepted that it was grade 3, but he deferred to the experts.
The grading of Mr Chester's injury
Based on the radiological and orthopaedic medical evidence, it can be found that Mr Chester suffered a grade 3 dislocation.
The medical literature as to treatment of a grade 3 injury
Mr Alexeeff provided medical literature dealing with the views of the medical profession concerning the treatment of injuries to the AC joint. The literature includes, by way of example, the following:
1.In 2015, the Canadian Orthopaedic Trauma Society conducted a randomised clinical trial of operative versus non-operative treatment for AC joint dislocations, using modern surgical fixation with both conservative and surgical procedures in order to determine which treatment method was superior. The results indicated that there were no demographic differences between the two groups. Mechanisms of injury were similar. The disability score was significantly better in the non-operative group at six weeks, but with the surgical group at three months. There were no significant differences between the two groups at six months or one or two years after injury. Radiographic results were better in the operative group, but results were not clinically superior to the non-operative group. The reoperation rate was significantly lower in the non-operative group.
2.Bone and Joint, Issue 6, December 2017 noted that although high grade AC joint dislocations are common injuries, their management remains controversial, with current evidence being inconclusive in terms of supporting either operative or non‑operative treatments.
3.A 2018 report from Cook and Krul reported that the treatment of AC joint separations has been fraught with conflict since the earliest reports in both ancient and modern literature. Conservative treatment remained the mainstay for treatment for low and most mid-grade injuries, with high grade injuries often necessitating surgery. There was little consensus on the timing or technique.
The optimal treatment for grade 3 injuries has long been the subject of debate over the past 20 to 40 years resulting from non‑surgical treatment having fewer complications and a faster return to work without benefit from surgery.
By way of summary:
AC joint separations are common in the athletic population, yet continue to be challenging to treat. Most ACJ injuries are low or middle grade and should be treated non-surgically. Surgical intervention is traditionally reserved only for those who fail non-surgical treatment or those who have the most severe of injuries. However, evidence of good or better results with acute surgical intervention may lead to a change in this treatment algorithm. Currently, data have failed to show improved long term outcomes with acute repair versus initial non-surgical treatment. Finally, at present, there is no single superior surgical technique with quality long term follow up.
The treatment of a grade 3 injury - in general terms
Based on the expert evidence and the literature, it can be seen that it is widely accepted that both conservative and surgical treatments are competent professional practice for AC joint dislocations of the kind suffered by Mr Chester.
If treatment for the kind of injury suffered by Mr Chester is to be surgical, then it is agreed by his expert witnesses that that surgery should be carried out within two to four weeks post‑injury, after allowing time for swelling to dissipate with the arm being kept in a fixed position by way of a broad arm sling. The procedure then conducted is by way of reduction, ie effectively returning the clavicle back into its proper position relative to the acromion. Physiotherapy will follow after such surgery.
If such surgery is not so undertaken within this approximate time frame, but is still necessary at a later time, then it will invariably be necessary to reconstruct the shoulder, including excising the distal end of the clavicle in order to fix it back into its proper position. Again, physiotherapy will follow such surgery.
If treatment is to be conservative, then the patient's arm is to be kept immobilised in a broad arm sling for between four and eight weeks. Immobilisation is important so as to enable the AC joint to reduce and realign itself into its proper position. After an appropriate time, which will depend upon the healing process, physiotherapy can be commenced.
The disagreement between the experts is as to the most appropriate method of treating this kind of injury in the case of Mr Chester, being a plasterer by trade. Mr Slinger, Professor Skirving and Dr Hammersley all preferred surgery for Mr Chester, whereas Dr Taylor and Mr Alexeeff believed conservative treatment was appropriate.
Expert evidence on the need for referral for advice as to treatment
Professor Mountain practises in the emergency department of a large Perth hospital. He might be regarded as the Busselton Regional Hospital's two medical practitioners' 'peer'. He considered the referral to Dr Taylor and the provision of ice and a sling, with analgesia and the taking of an X-ray, to be appropriate emergency department treatment, so far as it went.
Professor Mountain's evidence was that all doctors are obliged to consider all available information and to keep an open mind. In an emergency department, there is a need to know whether an injury is severe or subtle and the difference in management such an injury might require, recognising the need for an early decision as to operative or non-operative treatment, so as to ensure optimal management of the injury. However, although the referral to Dr Taylor together with the provision of ice and a sling, medication and the taking of an X‑ray were all appropriate, the decision as to the type of treatment, whether conservative or surgical in this case, was a decision which required orthopaedic 'follow up', probably through a Bunbury hospital, even if there was doubt as to the severity of the injury. Professor Mountain thought that only a grade 1 or 2 subluxation should be managed conservatively by a general medical practitioner.
Professor Skirving said that the decision as to which form of treatment for this kind of injury is most appropriate is not easy. The decision as to how to proceed should be determined by reference to an orthopaedic surgeon. It requires knowledge of the patient's particular circumstances, including work, sporting activities, age and general medical health. It is not a decision to be made by a general medical practitioner, unless that practitioner has a particular interest and experience in this area.
There is no direct evidence to suggest that Dr Taylor did not have such interest or experience. He did not give any evidence about this. Yet it might be inferred that he did not have such interest or experience given that:
1.the radiological report did not grade Mr Chester's injury and Dr Taylor did not see the X-ray. It is therefore difficult to understand how he could grade the injury, if he did at that time, and then proceed to conservative treatment, without excluding a high level grade 3 or even a grade 5 injury, which might require surgery;
2.Dr Taylor did not advise Mr Chester of the possibility of a surgical remedy. Indeed, his evidence was that it was a matter of degree whether the injury was a subluxation or dislocation. There is no difference in treatment. Either way, treatment is conservative; and
3.Mr Chester was not directed to physiotherapy at four to eight weeks post injury, ie in or about late September 2009. It was not until 13 and 18 November 2009 that he received physiotherapy and then he only attended those two sessions.
However, as Dr Taylor has not had the opportunity to comment on these matters, the inference should not be drawn.
Mr Slinger was of the view that if there is any suspicion as to whether conservative or surgical treatment is to be preferred, then a general practitioner should refer the patient to a specialist.
Mr Alexeeff agreed that it was necessary for an orthopaedic opinion to advise on the option of surgery. His evidence was that the emergency department treatment was reasonable.
It can be found, on the agreed expert evidence, that the hospital should have referred Mr Chester for orthopaedic review or recommended he seek orthopaedic advice upon his choice of proceeding to surgery or conservative treatment. However, the referral to Dr Taylor cannot be criticised, as will now be seen.
Facts and findings relating to the referral to Dr Taylor
It was the hospital's emergency department which first dealt with Mr Chester's injury. In dealing with its failure to refer or advise Mr Chester either orally, or in writing in the discharge summary, to seek orthopaedic review as to the choice of conservative or surgical treatment, it must be noted that first, the hospital did not have an outpatient orthopaedic department and secondly, there was no evidence that the hospital provided a general medical practice, such that Mr Chester was advised to report to his own general medical practitioner in two weeks.
The hospital played no further role in Mr Chester's treatment.
The result is that Mr Chester's usual general medical practitioner, being Dr Taylor, or Dr Lim in his absence, thereafter took over, and attended to, the care of Mr Chester's injury.
Dr Taylor brought his own mind to Mr Chester's injury and treated him accordingly. He went about this as if the emergency department at the hospital was a mere referral agency to his surgery. Once Mr Chester attended at Dr Taylor's surgery, the surgery became responsible for Mr Chester's injury and treatment.
Dr Taylor was not misled by the reference to subluxation in the discharge summary. He said his decision as to treatment was based on what had been reported to him and the clinical presentation. There is no reason to not accept this evidence.
It follows that, in terms of Dr Taylor diagnosing Mr Chester's injury, nothing turns on the incorrect reference in the discharge summary to a subluxation, rather than a dislocation.
Further, Dr Taylor was not misled by the failure in the discharge summary to advise of the need for orthopaedic review. Even if Mr Chester told Dr Taylor that the hospital required him to seek orthopaedic review, it was a matter for Dr Taylor to bring his own medical judgment to the task in order to determine what the appropriate treatment was. He did this.
Dr Taylor's preferred course of treatment for Mr Chester's injury was to proceed conservatively. He did not suggest that he gave Mr Chester any advice about surgery or as to surgery being an alternative to conservative treatment.
One consequence of the failure to advise Mr Chester of the need for orthopaedic review was to deny the choice of surgery to Mr Chester.
It is clear that the type of treatment, either surgical or conservative, was a choice which should have been decided by Mr Chester: Rogers v Whitaker (1992) 175 CLR 479 at 488 and 490.
However, the mere fact of the referral to Mr Chester's usual general medical practitioner as such cannot, in itself, be criticised as being inappropriate.
The consequences of any alleged failings by Dr Lim and Dr Taylor in their advice to, and treatment of, Mr Chester are irrelevant. They are not parties to this action.
The expert evidence as to treatment of Mr Chester's grade 3 injury
Professor Skirving gave evidence that a grade 3 injury will not reduce spontaneously and will leave some malfunction, the degree of which will vary. Conservative treatment over a period of say, six months, might lead to a bad result, in which case surgery then remains an alternative.
Professor Skirving said that Mr Chester's presentation was the kind of grade 3 injury which causes the most controversy between medical practitioners as to treatment. His own opinion has changed from time to time as to whether surgery or conservative treatment is the most appropriate option.
Professor Skirving referred to surgery which might fail. There can be complications from the administration of a general anaesthetic. Further, there may be surgical infection. As Professor Skirving said, he has 'lots and lots and lots of patients who would get a perfect resolution out of … some forms of surgery … and some don't'.
Professor Skirving thought Mr Chester's occupation as a plasterer demanded a functional recovery expected from surgery that might not be obtained from conservative treatment.
Mr Slinger also referred to a grade 3 injury being treated conservatively or surgically, noting that there are differing opinions. He noted opinions that results of surgery and non-surgery are comparable. If there were to be surgery, then he would normally prefer it to be undertaken within two weeks of the injury. Once the decision is made to operate, then surgery can occur on the same day or the following day.
Mr Slinger's opinion was that for Mr Chester, early reduction surgery would have given him a better chance in terms of recovery due to his personal situation as a plasterer, as compared to someone whose employment or lifestyle might be more sedentary in nature.
Mr Alexeeff gave evidence that conservative treatment is the preferred option for this kind of injury. This requires the arm to be maintained in a fixed position in a broad arm sling for say, six to eight weeks, but certainly never less than four weeks. Without such a sling, the arm hangs down. The sling lifts the arm up and realigns it into its proper position, such that the joint is reduced and becomes aligned.
Mr Alexeeff would not operate at two to three weeks post‑injury. Time was required to allow the initial swelling to settle and any such surgery in that time would interrupt the healing process with the arm being immobilised in the sling. Surgery was not made more difficult by waiting. The deltoid was still required to be split and there may or may not be a need to excise the distal end of the clavicle.
Mr Alexeeff also referred to the 'downsides' of operative treatment.
Mr Alexeeff's opinion was that the current evidence from the medical literature is that the situation is inconclusive as to whether the best treatment is surgical or conservative. The medical literature does not suggest that there is a better outcome by initial stabilisation under surgery versus secondary reconstruction at a later time, although it is not possible to simply reduce the clavicle after a three month post‑injury period. He said there is even disagreement as to the best form of surgical treatment. He outlined different types of surgical procedures for AC joint repair which, over time, have resulted in failure. In this respect, Mr Slinger also observed that there are numerous surgical procedures available for this kind of injury, which is an indication that no one of those procedures is necessarily effective. He added that surgery would not necessarily be successful.
Mr Alexeeff reserved surgery for those who fail to achieve a satisfactory conservative outcome, or for the most severe injuries, which Mr Chester had not suffered. His view was that a better result could not be obtained from surgery than might have been obtained from conservative treatment.
Mr Alexeeff thought that immobilisation for four to six weeks was appropriate treatment and if symptoms thereafter persisted, then the patient should be referred to an orthopaedic surgeon. It was, however, only after this time that mobilisation by way of physiotherapy could begin, but in some cases it could even be for a period of up to eight weeks.
Findings on the preferred treatment
There are competent orthopaedic surgeons who are divided as to conservative or surgical treatment for this kind of injury. The medical literature clearly establishes that, even today, in general terms, the treatment of a grade 3 joint dislocation by conservative means is in accordance with a practice widely accepted as competent professional practice, with the literature being inconclusive as to whether the best treatment is surgical or conservative. The results are comparable.
As indicated above, the choice between surgery or conservative treatment for this kind of injury is a choice to be made by a fully informed patient. There are merits in either form of treatment.
The evidence of Professor Skirving and Mr Slinger as to Mr Chester's employment as a plasterer supports a preference for early reduction surgery, but there is the opposing view of Mr Alexeeff for conservative treatment, for which there is ample support in the medical literature. It cannot be found, as a fact, that surgery was the preferred treatment or, as will be seen shortly, early surgery would have probably have resulted in a better outcome than conservative treatment handled correctly, as to which see [115] - [118] below. Mr Chester has failed to prove surgery was the preferred treatment.
Delayed surgery
Professor Skirving thought that Mr Chester has had a satisfactory outcome and alignment of the acromionclavicular joint from Mr Openshaw's reconstructive surgery. He said that Mr Chester described his shoulder as slowly getting better for the first few years after this surgery, but not to the extent it allowed him to return to sport and his usual work.
Professor Skirving's view was that the delayed surgery was unlikely to completely resolve Mr Chester's shoulder symptoms because of damage to the AC joint and certainly almost because of the excision at the distal end of the clavicle and so, it was probably a little different from the expected outcome had surgery been performed sooner. He said the delayed surgery may have prolonged Mr Chester's recovery and perhaps impaired the final outcome.
Professor Skirving also indicated that pain is not an infrequent complication of reconstruction surgery. He said that the excision of the distal end of the clavicle is probably the most likely cause of Mr Chester's pain with bone rubbing on bone. Mr Alexeeff strongly disagreed with this explaining that a fibrous joint is recreated some six to eight weeks after the excision. Such an excision is usually performed with the aim of preventing osteoarthritic changes in later life.
Mr Slinger was of the view that Mr Chester has had a good result from Mr Openshaw's surgery. However, his evidence was that early surgery would have given Mr Chester a better chance in terms of recovery by reason of his work as a plasterer. Possibly, a full reconstruction and a tendon graft might have been avoided.
Mr Slinger said the delay in surgery was a factor slowing Mr Chester's recovery and may have produced a less than favourable result. He found it difficult to be certain that late surgical intervention was associated with a less than expected recovery, but it may have produced a less than favourable result. It could have been better had there been earlier surgery and physiotherapy.
Mr Alexeeff did not offer an opinion on Mr Openshaw's surgery.
Findings on the expert evidence as to treatment and the delay in surgery
In summary:
1.both Professor Skirving and Mr Slinger thought that Mr Chester has had a satisfactory outcome from reconstruction surgery.
2.Professor Skirving said that Mr Chester's occupation as a plasterer demanded a more functional recovery that might not have been obtained from conservative treatment. Mr Slinger said that early reduction surgery would have given Mr Chester a better chance at recovery for his occupation. It could have been better with earlier surgery.
3.Professor Skirving said that delayed surgery perhaps impaired the final outcome, which was probably a little different from the expected outcome of earlier surgery. Pain after reconstruction is not infrequent, but Mr Alexeeff strongly disagreed with that proposition. Mr Slinger said it could have been better had there been earlier reduction surgery. Later reconstruction surgery may have produced a less than favourable result.
4.Professor Skirving referred to failed surgeries and those which produce complications. Mr Alexeeff also spoke of failed surgeries and Mr Slinger referred to numerous types of AC joint repair surgeries indicating that no one of them is necessarily effective.
The evidence of Mr Slinger and Professor Skirving is not persuasive of a finding that it is more probable than not that Mr Chester's ongoing left shoulder pain has been caused by a failure to proceed with early reduction surgery.
Matters not in evidence
First, the rhetorical question can be posed as to why would someone proceed to surgery if there is an alternative conservative option for which the evidence in the literature is inconclusive as to whether there is a better outcome by way of either initial reduction surgery or conservative treatment?
Secondly, accepting that the hospital should have sent Mr Chester for orthopaedic review or advised it and/or requested his general medical practitioner to make such a referral, and even if it is assumed that either or both Dr Lim and Dr Taylor would have referred Mr Chester for orthopaedic review in mid August/early September 2009 if so directed by the hospital, it is not known to whom that referral could or would have been made and if made, with what result.
If it is assumed that the referral might have been made to Ms Pratsis or Mr Openshaw in nearby Bunbury or to another orthopaedic surgeon, if any, employed at a Bunbury hospital or any other orthopaedic surgeon in Bunbury, it is not known what opinion Ms Pratsis or Mr Openshaw or such employed or other surgeon held as to conservative treatment versus surgery, both in the general sense and in what they might have recommended for Mr Chester, given his personal circumstances. Ms Pratsis was not called as a witness. Mr Openshaw is now deceased. There was no evidence from other orthopaedic surgeons, if any, employed in hospitals or in private practice in Bunbury.
Dr Taylor's opinion on treatment may have been shaped by his interest, or by past experience, in injuries of this kind and by way of past referrals to, and advice from, Ms Pratsis and Mr Openshaw or other orthopaedic surgeons in Bunbury, or elsewhere. It might be that Dr Taylor would refer a patient to a surgeon with views sympathetic to his own. These matters were not examined in evidence. Nor was there any examination with a view to demonstrating that Dr Taylor did or did not have an interest in, or the relevant experience to deal with, an injury of the kind Mr Chester suffered. Professor Skirving indicated that a general medical practitioner might have such an interest or experience and therefore be able to determine appropriate treatment.
Likewise, there is no evidence whether a public patient, such as Mr Chester, could have received immediate or early reduction surgery in any event. This is the case even if the Busselton Regional Hospital referred Mr Chester directly to a Bunbury hospital. It might well be the case that the Busselton emergency department doctors knew that Bunbury hospitals do not have an orthopaedic department and that they therefore left the need for Mr Chester's orthopaedic review to his usual general medical practitioner to be determined two weeks later when swelling had settled. Further, it is not known if an emergency department doctor can make a referral to an orthopaedic surgeon in private practice, given that the emergency department will cease to monitor that patient.
Mr Slinger did say that immediate treatment could be obtained the same or the next day for this kind of injury once the decision was made to operate. However, this was not qualified by evidence to show that such early treatment was available to a public patient, either in Bunbury or Perth. Further, Professor Mountain was not able to comment on the placement by Mr Openshaw of Mr Chester on a semi‑urgent list and said that it would be necessary to ask Mr Openshaw the reason for that.
Dr Taylor's surgery records show that on 12 August 2009, Dr Lim provided Centrelink claim forms to Mr Chester.
On 7 December 2009, Mr Openshaw placed Mr Chester on a 13 month public waiting list. It took an unknown period of time from before 21 January 2010 for Mr Chester to borrow funds for surgery. Ultimately he was able to do so and that surgery proceeded on 24 February 2010. It is not known whether he would have been able to raise funds from his brother or anyone within an approximate one month period from his original injury so as to become a private patient for early reduction surgery.
Mr Chester's personal and financial circumstances of being a public patient without ready funds for privately funded surgery and probably being unable to raise funds within a limited time all lead to the inference of him not being able to proceed with that early surgery. This would, in any event, have left him requiring later the reconstruction surgery, which he ultimately had, with good result.
Even if Mr Chester had been able to raise funds and had consulted an orthopaedic surgeon by mid‑August or even late August/early September 2009, it cannot be assumed that, if then offered the reduction surgery, he would have accepted it. Given his financial circumstances, the probable requirement to repay borrowed money, the inconclusive evidence in the medical literature as to the likelihood of a better or quicker result from surgery and the risks of surgery, he may not have been persuaded, at that time, to undertake the risk of surgery on borrowed funds.
These matters all needed to be advised to, and discussed with, him so as to enable him to make an early, fully informed consent to any proposed surgery. The fact that immediately following his injury these matters were not discussed with him by an orthopaedic surgeon does not now mean that he would have elected to proceed to surgery, have been able to raise funds for that surgery without delay, and even if he did so elect and could raise funds for it, that such surgery would have been more successful than his reconstruction surgery.
Further, it is not known what type of reduction surgery might have been offered to Mr Chester. It is not disputed that some types of such surgery did not provide good results.
There is a lack of evidence pointing to a probable better outcome from reduction surgery in the event of it having happened. Professor Skirving advised that surgery is not always successful. There are risks with surgery. Mr Slinger only said there could have been a better result from early reduction surgery and if undertaken, then a full reconstruction and tendon graft might possibly have been avoided, but no one procedure is necessarily effective.
Mr Slinger referred to the numerous types of surgery available, which indicates that no one procedure is necessarily effective. Mr Alexeeff agreed, but said that a good result was open with appropriate conservative treatment, with surgery being a fall back. If surgery failed, then conservative treatment would not be an option.
Finally, once early September 2009 had passed without surgery, any later surgery was inevitably by way of a reconstruction and that is what occurred in February 2010. In January and June 2011, X-rays revealed Mr Chester's left shoulder AC joint to be normal. The reconstruction surgery which was ultimately performed provided a good result, at least in terms of anatomical presentation under X-ray.
The motor vehicle crash - 20 November 2011
Complicating matters is the fact that on 20 November 2011, Mr Chester was involved in a motor vehicle crash in which his principal injuries were to his left hand. Relevantly however, contemporaneous X-ray evidence revealed he also suffered a 'widening of the left AC joint, with slight inferior subluxation of the left acromion'. At that time, he complained of left shoulder pain. This therefore leads to a further AC joint injury from the motor vehicle crash.
Mr Slinger was consulted about this crash but, Mr Chester failed to advise Professor Skirving and Dr Hammersley that he had been involved in it, yet he continued to consult them for further reports about his 2009 injury and its consequences. They only found out about the crash in the days leading up to the trial in this action.
A CT arthrogram performed on 21 November 2012 revealed a tear in the left shoulder supraspinatus and labral detachment.
Professor Skirving was unable to say whether Mr Chester's present symptoms are related to the original incident or to his motor vehicle crash. He thought that the partial supraspinatus tear might be the cause of Mr Chester's pain and that it could have been caused in the motor vehicle crash. Such a tear is not usually associated with a dislocation of the clavicle. He also thought the tear in the supraspinatus could simply be an incidental finding without symptoms. The difficulty is that the injuries to the supraspinatus and labrum have never been investigated.
Mr Slinger said the supraspinatus tear was possibly caused by the crash. There is no way of knowing. Further, such tears commonly occur in labourers without symptoms and after injury. The tear might not be symptomatic and if there had been a subluxation after the car crash, then symptoms would last for six to eight weeks, following which there would be a full recovery.
Dr Hammersley accepted that the supraspinatus and labral tears could have resulted from the motor vehicle crash. He could not rule out the tear as a possible explanation for Mr Chester's present pain. The labral tear does not normally provide symptoms in normal day to day life, but Mr Chester's plastering work could be an explanation, rather than the operation bed. Radiological investigation after the crash did not reveal any adverse feature in relation to the coraco‑clavicular reconstruction procedure. Dr Hammersley said this requires further investigation by a shoulder surgeon.
Like Dr Hammersley, Mr Alexeeff thought the partial supraspinatus and labral tears were physiological findings frequently found in a plasterer. Mr Alexeeff said the tears were not part of the original injury or the motor vehicle crash.
Mr Alexeeff thought that the labral injury which causes joint clicking is not part of the AC joint, but he was unable to say whether it is the cause of Mr Chester's pain. He found it to be significant.
It can be seen that the consequences of the motor vehicle crash have never been investigated and their role in the causation of Mr Chester's ongoing shoulder pain and discomfort remains unclear.
Failure to immobilise the arm during August and September 2009
Further complicating Mr Chester's recovery by way of conservative treatment is an apparent failure to have ensured that Mr Chester's arm was kept immobilised for the required period of between four and eight weeks post-injury until sufficient healing had occurred to enable physiotherapy to begin. On the evidence:
1.on 12 August 2009, Mr Chester complained of reduced mobility in the left arm and Dr Lim examined that arm's range of movement.
2.On 2 September 2009, Mr Chester complained that he still had a lot of trouble moving the shoulder.
3.On 25 September 2009, Mr Chester complained of the joint popping out when he took weight through it. This was about the eighth week post injury.
4.Mr Chester only attended for two physiotherapy sessions over five days in mid-November 2009.
Mr Chester's failure to properly immobilise his left shoulder may be the cause, or a contributing cause, to the failure of conservative treatment under Dr Taylor's care. This issue was not addressed during the trial.
Clearly, from Mr Alexeeff's evidence, if the preferred treatment was to be conservative, then Mr Chester's left arm should have been properly immobilised at all times until at least early September, or even late September, when the clavicle should have realigned into its proper position and reduced itself and physiotherapy could then commence. However, on the evidence, the arm was not kept properly immobilised and Mr Alexeeff was critical of this.
Mr Slinger was also critical of Mr Chester not receiving essential physiotherapy following his conservative treatment, such that it was bound to fail with him then requiring reconstruction surgery. Mr Slinger's attention was not drawn to the two physiotherapy attendances referred to above, but they may well have been too late in mid‑November 2009 and insufficient to be effective. However, as noted above, this issue was not pursued at trial.
Findings
Following Tabet v Gett [2010] HCA 12, the issue can be framed in this way:
Can Mr Chester prove that it is more probable than not that had the hospital referred him for orthopaedic review, the present problems suffered by him would have been avoided?
It is not sufficient to say that possibly the present problems could have been avoided. It is not open to argue that with early reduction of the AC joint, Mr Chester's present position might not have eventuated and also to say that, what he now suffers from has resulted in loss and damage. The present position does not permit retrospective reasoning. The loss of a chance is insufficient. Mr Chester cannot argue that his loss and damage result from the possibility that the present position would have been less severe had he proceeded to early reduction surgery: Tabet v Gett [54], [60] and [152].
The requirement of causation is not overcome by redefining the mere possibility that Mr Chester's ongoing problems might not have eventuated as a chance and then saying that that chance has been lost, given that now he does have problems with his left shoulder. It is not open to reason that the present position of shoulder pain must be the result of the negligent act or omission of the hospital.
There is an absence of cogent evidence that Mr Chester is worse off by not having early reduction surgery than by proceeding to treat his injury conservatively and when that failed, by later having reconstruction surgery and being where he is today. That early surgery might have made a difference does not prove causation: Adeels Palace at [45] and see also [54] – [56].
It is not possible on the matters outlined above to find that the failures of the hospital to report the need for orthopaedic review, either orally or in the discharge summary, have caused Mr Chester to suffer a result which is less than he might have had in the event he had been referred to an orthopaedic surgeon, who may or may not have proceeded with reduction surgery within the two to four week period post injury. The 'but for test' in Adeels Palace [45] has not be met.
Further, accepting that advice should have been given to attend an orthopaedic surgeon, either in the discharge summary or orally to Mr Chester, it remains that the written advice was for him to see his general practitioner in two weeks, which still left another one to two weeks as being the optimum time within which any surgery by way of reduction could have been undertaken. Even assuming that Dr Lim blindly followed the discharge summary without more, he still required Mr Chester to return within two weeks, being at the end of the optimum time for surgery. Mr Chester did return as directed at which time, Dr Taylor then determined his own course of treatment as outlined above. Dr Taylor did not see the need for a referral because his view was that for Mr Chester's subluxed or dislocated AC joint, the treatment was essentially the same in the initial phase. Dr Taylor was not misled by the discharge summary. There is no acceptable reason to consider his advice would have been otherwise had the hospital's medical practitioners suggested orthopaedic review.
For all of the reasons outlined above, Mr Chester has not proved that it was more probable than not that anything turns on the incorrect description of a subluxation in the discharge summary or that, had the hospital's general practitioners required orthopaedic review of the dislocation forthwith, any defect from which he now suffers by reason of widely accepted conservative treatment followed by later reconstruction surgery would have been avoided in circumstances where:
1.the hospital did not cause Mr Chester's initial injury. It only provided initial treatment for that injury; and
2.the hospital did not have either an orthopaedic department or a general medical practice and so its doctors properly referred Mr Chester to his general medical practitioner for further review and treatment. Thereafter, the hospital took no further role in the management of Mr Chester's shoulder injury, which was then left to Dr Taylor and his surgery.
However, even accepting that the hospital should have referred Mr Chester direct to a Bunbury hospital or elsewhere for further orthopaedic investigation and review by an orthopaedic surgeon because:
1.his occupation as a plasterer demanded surgery for a better chance of a functional recovery than might have been achieved from conservative treatment;
2.early reduction surgery might have avoided the need for excision of the end of the clavicle; and
3.such early surgery might have produced a better result than the later reconstruction surgery, without pain from an excised clavicle,
the matters set out at [91] - [118] above, both individually and collectively, preclude a finding in Mr Chester's favour.
In the event that I am wrong as to the issue of causation, it is necessary that I determine the quantum of Mr Chester's loss.
Quantum
Mr Chester seeks damages for his loss of enjoyment of life, medical expenses and economic loss.
Loss of enjoyment of life
Assuming that Mr Chester's injury could have been repaired by early reduction surgery and that the difficulties he now experiences would thereby have been avoided, he would not now face difficulties impacting on his work as a plasterer, his domestic duties as a partner and father and in his sporting activities.
Mr Chester claims that by reason of ongoing pain and disability from his shoulder injury, he resumed his pre-injury consumption of illicit drugs to overcome shoulder pain, resulting in him seeking medical assistance between 2012 and 2016 for problems arising from that drug use.
Further, by reason of Mr Chester's reduced earning capacity, he claims that his marital situation deteriorated, resulting in separation from his partner between May 2014 and late 2017.
To allow these claims in assessing general damages, after deduction of the threshold, results in an award in the sum of $28,000.
Past medical expenses
Mr Chester claims the sum of $6,250.55 in respect of the surgery undertaken by Mr Openshaw. It was argued that had the emergency department referred Mr Chester to a Bunbury hospital direct or to an orthopaedic surgeon through Dr Taylor, then he could have been operated on as a public patient without the requirement to pay for that surgery. However, there is no evidence that reduction surgery was immediately available to a public patient.
The claim for past medical expenses must fail.
Future medical treatment
Mr Chester claims for $7,000 by way of future medical treatment. In his report dated 14 November 2017, Mr Slinger said that it is most unlikely that Mr Chester will require surgery or other medical treatment in the future. Professor Skirving's report dated 3 November 2017 is to the same effect. However, Dr Hammersley's report dated 9 October 2017 did provide for physiotherapy, medication and meditation to help with pain relief. I will allow $2,000.
Travel expenses
There is a claim for $750 travel expenses which, from the oral submissions, was simply a 'typical cover all travel' claim without any evidence to support it. It is not known whether Mr Openshaw was consulted in Bunbury or whether he may have conducted rooms in Busselton from time to time. However, Mr Chester did drive to and from Bunbury for his surgery and to visit Dr Taylor and the physiotherapist. I will allow $250.
Past economic loss
Before considering economic loss, it is necessary to understand Mr Chester's history.
Mr Chester left school in Year 10 and trained as a plasterer.
From about the age of 18 or 19 years, Mr Chester began using heroin and morphine. At age 19, he overdosed with consequential hospitalisation and residential rehabilitation before moving to Busselton in 2006 to avoid illicit drug connections. He said he then remained abstinent from illicit drugs until after he injured his left shoulder.
Mr Chester and his partner had a child born on 15 September 2008. Prior to his injury, Mr Chester was involved in sporting activities.
One working problem from Mr Chester's shoulder injury was that he became unable to pick up large amounts of plaster and 'slam it' on a wall. There were also difficulties in screeding walls. These problems resulted in a reduced income.
After his shoulder reconstruction in February 2010, Mr Chester received physiotherapy and was medicated with Oxycontin. His arm movement improved. Pain was reducing. He was able to use the shoulder a lot more and in evidence, he said that, in September 2010, he was able to return to light duties with a former business partner. He was however, reduced to work of a kind usually performed by early stage apprentices. The medical notes from Dr Taylor however, record that Mr Chester was working in May 2010, and also that by August 2010, he had returned to the use of amphetamines for pain relief.
After working three months, Mr Chester began to suffer pain in his right shoulder and neck. His left shoulder felt as if it was on fire and he determined that he would need to work without his left shoulder being under so much strain. Mr Chester then returned to an earlier employer with whom he had worked when he first moved to Busselton. However, he was unable to continue and, when that work 'started to slow down', Mr Chester was 'let go' in February 2011. Mr Chester then returned to Perth, where his parents could help care for his daughter and he hoped his partner could obtain some work to share the financial strain.
Around May or June 2011, Mr Chester began working for a friend over three days per week. He began sourcing illicit Oxycontin to assist control his shoulder pain which caused him to lose sleep. He did not seek any prescribed medication.
In October 2011, Mr Chester began his own business undertaking specialised plastering work, but was taking more and more Oxycontin. He was also using heroin around this time.
On 19 November 2011, Mr Chester suffered left hand injuries in a motor vehicle crash.
In January 2012, Mr Chester registered his own business name.
Mr Chester continued to take illicit opiates. In August 2012, he attended Swan Health Service with episodic chest spasm after taking intravenous heroin and marijuana and then he began attending Next Step until November 2014. He also attended Royal Perth Hospital in September 2012 with left sided lower limb weakness and lack of coordination in his left hand from amphetamine use. In November 2012, he was back at Royal Perth Hospital with the potential diagnosis of an embolic stroke after amphetamine use.
In August 2013, Mr Chester consulted Mr Slinger about the hand injury he suffered from the motor vehicle crash. Mr Slinger reported that Mr Chester's hand became stiff in the cold and that grip strength was reduced because of weakness and stiffness and also because of the lack of sensitivity in the hand as a whole. He had difficulty driving to work and would drop objects from his hand. It was necessary for him to hold his hawk, being an instrument used in plastering, in a modified form by reason of his left hand problems. Mr Chester did not inform Mr Slinger of the full details of his drug addiction.
Mr Chester told Mr Slinger he was unable to fully work for six months following the crash. During this period, he at first supervised his business for three months and then he closed it for three months until resuming part‑time light duties. It was a further three months before he was able to resume relatively normal duties on the tools, with some modifications. He was slower in his work. Holding his hawk was a particular aggravation.
In evidence however, Mr Chester claimed his left hand symptoms were improving and that they only impacted slightly on his work as a plasterer.
Mr Chester told Mr Slinger that he suffered depression and anxiety which had resulted from the motor vehicle crash. He had not referred to those symptoms as arising before the crash. In evidence, Mr Chester said his depression 'came and went' after the shoulder injury and that Mr Slinger had that information. However, it is not detailed in Mr Slinger's reports.
Mr Slinger had understood that Mr Chester was in full‑time employment prior to the motor vehicle crash, but in evidence, Mr Chester claimed that he was in restricted employment.
Mr Slinger's understanding from Mr Chester was that he had had to modify the way he worked with his hawk and if there was a heavy prolonged plastering day, then he would get help as a result of the hand injury, not the shoulder injury. In evidence, Mr Chester could not really understand what Mr Slinger had written in his report, but the fact is that the report was based on information provided by Mr Chester at the time.
Mr Chester also provided a list of tasks he was unable to perform by reason of his hand injury. Without detailing matters from such list, they are things which impacted on his domestic duties and working life, such as continually dropping things and not being able to perform his work efficiently. However, Mr Chester did not inform Dr Hammersley, the occupational physician, of the problems contained in the list.
In early 2014, Mr Chester realised that he could not undertake plastering work. Further, his relationship with his partner was very strained and they separated in early August 2014.
Swan Health Service notes record that in October 2014, Mr Chester had been injecting drugs, which he said was 'crystal meth'. In January 2015, Mr Chester was referred to Swan Health Service by reason of his illicit drug use. He was then using methylamphetamine and heroin. Medical records show he was still using illicit drugs in September 2015. He said he was on and off heroin over a two year period.
For the financial years ended 2015 and 2016, Mr Chester was a carer for his child in the absence of his partner.
In November 2016, Mr Chester ended up at Cambridge Health Service with respect to his drug problem. He also began to perform small amounts of plastering.
From January to December 2017, Mr Chester worked as a trade assistant for an air conditioning company. In late 2017, he reunited with his wife. He also transferred to another air conditioning company, mainly working as a duct installer. He held this job until October 2018, when he began working as a permanent casual in his present employment as a general labourer and is now earning $34 per hour over 70 to 80 hours per fortnight. On average, he now earns $911.40 net per week.
Mr Chester's left shoulder remains disabled with restricted movement and work capacity. He still continues with a reduced form of painkiller. If Mr Chester is unable to perform work as a plasterer, he is left to unskilled or semi‑skilled jobs requiring physicality and for which his shoulder injury results in a reduced capacity for employment.
If it be assumed that Mr Chester could have made a full recovery from early reduction surgery, then it is more likely than not that he would:
1.have remained in his trade as a plasterer in Busselton;
2.have continued to earn income from that trade;
3.not have needed to resort to illicit drugs from which he had been free for the period subsequent to his move to Busselton and prior to the shoulder injury; and
4.not have had matrimonial difficulties arising from lack of funding within the marriage to meet expenses and his relationship would have remained intact, such that there would not have been any need for him to give up work to care for his daughter.
Further, the motor vehicle crash probably precluded Mr Chester from working for about three months, even though he was able to supervise the work of others before closing down for three months and then returning later to work with others and taking a further three months 'to get back up to speed'. As a result of the crash, he received compensation for past and future economic loss in the sum of $25,000 before apportionment in respect of his own contributory negligence, amounting to a 20% reduction, such that he received $20,000 for economic loss. It is the full amount of $25,000 which should be deducted from his economic loss. It can be dealt with in past loss.
Mr Chester's known net annual earnings derived from plastering duties and his receipt of social security payments are as follows:
2007
$29,997.66
2008
$48,116.44
2009
$51,013.48
2010
Nil
+ sickness allowance
$9,763.00
2011
$31,293.07
2012
$22,771.08
2013
$31,575.84
2014
$32,847.52
2015
Nil
+ parenting payment
$13,408.00
2016
Nil
+ parenting payment
$19,047.00
2017
$17,059.00
+ parenting payment
$4,560.00
2018
$39,892.68
+ Newstart allowance
$6,041.00
2019
$47,392.83
Total 2010 - 2019
$222,832.12
$52,819.00
The average net annual earnings of Mr Chester for the 2008 and 2009 financial years is the sum of $49,564.96. Using this annual figure as a base for subsequent years to date, he has lost the following past income:
2010
$35,000 (approximate loss)
2011
$18,271.89
2012
$26,793.88
2013
$17,989.12
2014
$16,717.44
2015
$49,564.96
2016
$49,564.96
2017
$32,505.96
2018
$9,672.28
2019
$2,172.03
19 weeks to 8 November 2019
$751.85
$259,052.94
It must be appreciated that Mr Chester would have been off work for at least four months in the 2010 year in any event had he proceeded to early reduction surgery.
Further, social security benefits were paid to Mr Chester at various times. It is not known in any detail when such benefits were paid and when Mr Chester was not working due to various reasons including his shoulder injury, car crash injuries, drug addiction and domestic situation or any other reason.
There needs to be considerable flexibility in arriving at a figure for past economic loss by reason of these matters outlined above, together with:
1.at least one downturn in work for plasterers, which was acknowledged by Mr Chester.
2.Increases in plasterers' wages over the last 10 years, as to which the President of the Plasterers Association of Western Australia was listed to be called as a witness, however he was not so called. There is therefore a lack of evidence of pay increases, if any, to plasterers over this time frame and what they now earn.
3.Mr Chester's illicit drug abuse problem over five years resulting in a number of periods of hospitalisation or requirements to seek help.
4.The need to account for loss of earnings already compensated for following his motor vehicle crash, together with the receipt of social security payments.
5.Any inconsistencies between Mr Slinger's reports and other medical records based on Mr Chester's information and any deviation therefrom in his evidence.
In all the circumstances, the mathematical calculation for past economic loss must be tailored to accommodate these matters. I am prepared to allow past economic loss, including interest, in the sum of $250,000.
Future economic loss
Further, it is only possible to assess future economic loss in a global sense given Mr Chester's left shoulder injury and the impact of that injury upon his former work as a plasterer. Further, that injury will necessarily impact on any labouring or physical kind of employment.
Mr Chester was born on 1 February 1983 and is presently aged 36 years and 9 months. Allowing for a working age to 65, any 'guestimate' for future economic loss can be tested against a net loss of income of $41.76 per week based on his pre-shoulder injury income and his 2019 tax return, and calculated as follows:
2008/2009 average income:
See [163] above
$49,564.96
Less 2019 income:
$47,392.93
$2,172.03
÷ 52:
$41.76 net per week
This calculation provides a future economic loss in the sum of only $29,728.94 (multiplier 711.9). However, this is based on the 2008 and 2009 net taxable incomes and is insufficient. Some allowance must be made for presumed pay increases since that time. Accordingly, I am prepared to 'guestimate' an increased level of pay up to $140 per week so as to arrive at a figure for future economic loss in the sum of $100,000, after allowing for the vicissitudes of life.
There is no claim for past or future loss of superannuation by reason of Mr Chester having been self‑employed at the time of the shoulder injury.
Conclusion
Mr Chester's claim should be dismissed, but if I am wrong about that, then his compensation should be assessed as follows:
Pain and suffering
$28,000
Travel
Future medical expenses
$250
$2,000
Past economic loss
$250,000
Future economic loss
$100,000
$380,250
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JB
Associate to Judge Goetze8 NOVEMBER 2019
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