East Metropolitan Health Service v Martin - [2017] WASCA 7

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: EAST METROPOLITAN HEALTH SERVICE -v- MARTIN [2017] WASCA 7

CORAM: NEWNES JA
MURPHY JA
BEECH J

HEARD: 18 NOVEMBER 2016

DELIVERED : 13 JANUARY 2017

FILE NO/S: CACV 10 of 2016

BETWEEN: EAST METROPOLITAN HEALTH SERVICE
First Appellant
SOUTH METROPOLITAN HEALTH SERVICE
Second Appellant
AND
ROY CHARLES MARTIN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :BOWDEN DCJ
Citation  :MARTIN -v- MINISTER FOR HEALTH [2016] WADC 15
File No  :CIV 3195 of 2013

Catchwords:

Professional negligence - Medical negligence - Delay in treatment following failed attempt to insert catheter line - Causation - Whether delay in treatment caused injury to right median nerve - Whether corrective surgery could have been undertaken in time to prevent or minimise injury to right median nerve

Damages - Economic loss - Whether evidence to support findings

Damages - General damages - Whether judge erred in applying s 9 of the Civil Liability Act 2002 (WA)

Damages - Gratuitous services - Whether need for gratuitous services arose from the negligence - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed in part

Category: B

Representation:

Counsel:

First Appellant               :     Mr D R Clyne
Second Appellant          :     Mr D R Clyne
Respondent:     Mr D I Connor

Solicitors:

First Appellant               :     Panetta McGrath Lawyers
Second Appellant          :     Panetta McGrath Lawyers
Respondent:     Connor Legal

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

Brocx v Mounsey [2010] WASCA 196
Carter v Railway Motel Pty Ltd [2016] WADC 102
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Kars v Kars [1996] HCA 37; (1996) 187 CLR 354, 361
Kember v Thackrah [2000] WASCA 198
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
Martin v Minister for Health [2016] WADC 15
Newman v Nugent (1992) 12 WAR 119
Raso v Raso [2007] WADC 53
Redding v Lee; Evans v Muller [1983] HCA 16; (1983) 151 CLR 117
Rizhao Steel v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 91
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679
Ross v Profile Packaging Pty Limited [2008] WADC 8
Saunders v The Public Trustee [2015] WASCA 203
Scarf v State of Queensland [1998] QSC 233
Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537
The National Insurance Company of New Zealand Limited v Espagne [1961] HCA 15; (1961) 105 CLR 569
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327
Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15; (2014) 46 WAR 219
Wann v Fire & All Risks Insurance Company Limited [1990] 2 Qd R 596
REASONS OF THE COURT:

Introduction

This is an appeal against the decision of Bowden DCJ in Martin v Minister for Health[1] (primary decision). The primary decision concerned a claim for damages for personal injuries by the respondent (Mr Martin) against the appellant (Minister). Mr Martin alleged that hospital staff, for whom the Minister was liable, at Armadale‑Kelmscott Memorial District Hospital (Armadale Hospital) and Fremantle Hospital, were negligent in failing to carry out, within a reasonable time, investigations and surgery following a medical incident involving his right arm on 23 November 2012. The judge found the hospital staff to have been negligent in the delayed treatment of Mr Martin following the incident, and that the delay caused injury to Mr Martin. His Honour awarded Mr Martin damages. The Minister now appeals that decision on the issues of causation and the assessment of damages.
[1] Martin v Minister for Health [2016] WADC 15.

Background

In 2012, Mr Martin, aged 60 years, was experiencing problems with his back and sought treatment from his general practitioner and Fremantle Hospital.[2] At this time, Mr Martin was very unwell and was being treated for a multitude of medical conditions, including issues with respect to his back, vision and hearing.[3]
[2] Primary decision [24].
[3] Primary decision [29], [227] ‑ [228].
On 20 November 2012, Mr Martin was taken to the emergency department of the Armadale Hospital where he was diagnosed with septic arthritis of the L5/S1 facet joint of the spine (that is, a serious infection of the lower spine) and was admitted for treatment.[4]
[4] Primary decision [1], [24] - [25], [81].
On 23 November 2012, Mr Martin was taken to theatre for the insertion of a central catheter line via his arm, at about the crook of the elbow, so that he could be treated with antibiotics. An attempt was made in each arm to insert the catheter line, but each attempt was unsuccessful. According to Mr Martin, the attempted insertion in the right arm was very painful. Later, another attempt was made to insert the catheter line, but this caused so much pain that the attempt was abandoned.[5]
[5] Primary decision [25].
On 25 November 2012, Mr Martin continued to mention that the failed attempt to insert the catheter line was painful and he did not want to undergo a repeat procedure.[6] He maintained that he first complained about tingling in his fingers on his right hand at around this time, although there was no medical note supporting his evidence in this regard.[7]
[6] Primary decision [15], [26].
[7] Primary decision [235].
On 26 November 2012, hospital staff convinced Mr Martin that they should try the insertion of the catheter line again. He agreed. He was taken to theatre and this time it was inserted without any trouble.[8]
[8] Primary decision [27].
As at 1 December 2012, Mr Martin was still experiencing pain and had difficulty with fine motor skills. He brought this to the attention of nurses and a consultant physician, Dr Ryan. Dr Ryan was, at all relevant times, in charge of Mr Martin's care at the Armadale Hospital.[9]
[9] Primary decision [29], [79].
On 2 and 3 December 2012, Mr Martin first complained that he had numbness in his right hand and fingers, and had had tingling in his right hand for a couple of days.[10] It was noted by Dr Tate that Mr Martin was '[c]omplaining of decreased sensation and pain [in his] right hand [and] arm since [the] failed [catheter line in his] right upper arm' and that there was 'probably [a] nerve problem'.[11] At this stage, the hospital staff queried whether Mr Martin had carpal tunnel syndrome.[12]
[10] Primary decision [15], [83], [86]
[11] Primary decision [15], [244].
[12] Primary decision [83].
On 3 December 2012, when Dr Ryan saw Mr Martin, there was a complaint of median nerve distribution numbness.[13] Dr Ryan admitted, in evidence, that it was quite likely that he did not read Dr Tate's notes in their entirety.[14]
[13] Primary decision [84].
[14] Primary decision [89].
Also, by 3 December 2012, the multitude of other issues facing Mr Martin were largely under control, to the extent that he was being assessed for discharge.[15]
[15] Primary decision [230], [264].
On 6 December 2012, Mr Martin was discharged from Armadale Hospital to Fremantle Hospital's 'Hospital In the Home' programme.[16]
[16] Primary decision [30], [229].
Between 7 and 23 December 2012, Mr Martin visited the clinic at Fremantle Hospital on four occasions and a nurse came to his house every day. He told the nurse he was in pain and was prescribed pain medication on 7 December 2012. This dosage was later increased.[17]
[17] Primary decision [30].
On 19 December 2012, Mr Martin attended Fremantle Hospital to discuss the results of an electromyography (EMG), which he had privately obtained. The EMG showed a median nerve palsy and Mr Martin was referred to the plastic surgery department.[18]
[18] Primary decision [31].
As at 31 December 2012, Mr Martin said he was still suffering from constant pain in his arm.[19]
[19] Primary decision [31].
On 10 January 2013, Mr Martin attended the plastic surgeon and there was some suggestion of surgery to his arm.[20]
[20] Primary decision [32].
On 24 January 2013, Mr Martin had an ultrasound of his right forearm.[21] The record of the ultrasound indicated:[22]
a large haematoma in the forearm measuring 2.3 cm in length, 1.4 cm in depth and 1.6 cm in width. This [was] immediately adjacent to the brachial artery and compresse[d] the adjacent vein and the median nerve within the proximal forearm. No focal abnormality of the nerve itself [was] seen. Comment large haematoma extrinsically compressing the median nerve.
[21] Primary decision [3], [15], [32]. The primary decision refers to '24 January 2014', but this appears to be a typographic error.
[22] Primary decision [15].
On 28 February 2013, Mr Martin underwent surgery to remove the haematoma and decompress the right median nerve. He stayed in hospital after the surgery until either 2 or 3 March 2013.[23]
[23] Primary decision [3], [32], [238].
After the surgery, the pain in Mr Martin's hand disappeared. However, he still had limited movement and some discomfort. He underwent hand therapy twice a week and was unable to drive.[24]
[24] Primary decision [33].
By 13 August 2013, Mr Martin attempted to return to his previous occupation as a lecturer in telecommunications cabling at Balcatta. Mr Martin worked 30 hours in August 2013 and about 60 hours in September 2013, but ceased thereafter. He could not carry out demonstrations, hold or cut the cable, or manage the whiteboard. Nor could he mark assessments.[25] (These matters in particular, and Mr Martin's employment history generally, are referred to in more detail later in these reasons.)
[25] Primary decision [22], [34].
In late July 2014, Mr Martin underwent back surgery, after which he had no problems with his back and could walk unaided.[26]
[26] Primary decision [36], [335].

Duty, breach and causation

It was not disputed that Fremantle Hospital and Armadale Hospital owed a duty of care to Mr Martin and that the Minister was vicariously liable for the negligence of its employees.[27]
[27] Primary decision [209].
Mr Martin suffered an injury to the interior of his right arm on 23 November 2012, resulting from the failed insertion of the catheter line. A haematoma developed, which caused a compression of the right median nerve in the arm.[28] Professor Myers explained the process by which the right median nerve was damaged as follows:[29]
It is clear that he has had a neuropraxia to the median nerve from thrombus compressing the nerve.
Any amount of blood in tissues … will clot and if sufficiently large will exert pressure on the surrounding tissue.
Clearly this thrombus was adjacent to the median nerve which was therefore compressed.
…
[Mr Martin] has suffered an injury to his median nerve from pressure from haematoma.
[28] Primary decision [238] - [239]. Although there was some dispute about whether the cause of the compression of the right median nerve was a haematoma or false aneurysm, the judge accepted Professor Myers' evidence that it was a haematoma: primary decision [238].
[29] GB 231.
By 3 December 2012, Mr Martin had pain in his right arm, and he had median nerve symptoms. His hand function, including his grip, was affected.[30]
[30] Primary decision [258].
Contrary to the Minister's submission, the judge found that a 'watch, wait, see and monitor' approach was unreasonable in the circumstances and that no reasonable health professional would have acted in accordance with that practice in this case.[31] Further, the judge found that Dr Ryan's evidence was not that he had adopted a watch, wait, see and monitor approach, but that he 'frankly admitted that he overlooked a portion of Dr Tate's notes and consequently had not considered the prospect that the failed insertion caused damage to the median nerve'.[32] Had Dr Ryan read the medical notes in full, he would have made the link between the decreased sensation in Mr Martin's right hand and the catheter line procedure, and he would, and should, have carried out an ultrasound well before 7 December 2012.[33] There was an 'abundance of evidence' that by 3 December 2012, investigations ought to have been carried out in relation to Mr Martin's complaints of pain to the right arm, involving at least an ultrasound.[34]
[31] Primary decision [261], [269].
[32] Primary decision [270].
[33] Primary decision [241].
[34] Primary decision [243].
An ultrasound would have been available within 24 hours, seven days a week.[35] An ultrasound would have revealed the haematoma.[36] This would have led to surgery within days.[37]
[35] Primary decision [250].
[36] Primary decision [232], [242], [250].
[37] Primary decision [250].
His Honour summarised the position as follows:[38]
There was every reason for early investigation by 3 December 2012. Mr Martin was in pain, he had median nerve symptoms, those symptoms were being linked to a failed [catheter line insertion] and his hand function, including his grip, was affected.
Investigation was required to ascertain the cause of the symptoms because the potential for nerve damage by way of either compression on the nerve or an actual cut to the nerve fibres was high and foreseeable and the consequences of a failure to repair or decompress either of those conditions was the entirely foreseeable risk of dysfunction of the hand.
Mr Martin was in the hospitals' care. They had a duty to use reasonable care to diagnose and investigate his right upper arm injuries. A reasonable medical practitioner in those circumstances would have conducted early investigations by, at the latest, 4 December 2012 by way of, at the least, an ultrasound which was readily available and, if performed, inevitably would have led to surgery within days.
[38] Primary decision [258] ‑ [260].
Accordingly, the judge found that early investigation should have occurred after 3 December 2012, and an ultrasound could and should have been performed by at least 4 December 2012. This would have revealed the injury to the right arm, following which surgery could have occurred by 6 or 7 December 2012. On the balance of probabilities, surgery performed by that date would have resulted in Mr Martin suffering no permanent disability to his hand. Therefore, the failure to investigate, which should have led to surgery by 6 or 7 December 2012, was a necessary condition of the harm and caused the hand disability Mr Martin now suffers.[39]
[39] Primary decision [250], [299] ‑ [301].
The judge added that, even if the evidence could not establish that the failure to investigate and perform earlier surgery was a 'necessary condition' of the harm suffered, he was nevertheless satisfied, on the balance of probabilities, that it materially contributed to Mr Martin's harm.[40]
[40] Primary decision [308].
Having found breach and causation to be established, the judge proceeded to an assessment of damages. Before setting out the judge's findings in that regard, it is convenient to refer to the judge's findings concerning Mr Martin's employment history, which were largely based on the evidence of Mr Martin (whose evidence the judge generally accepted),[41] and Mr Martin's employer in August/September 2013 (whose evidence the judge also evidently accepted).

Employment history[42]

[41] Primary decision [56].

[42] See primary decision [16] - [22], [33] - [35].

Mr Martin was born in South Africa on 24 September 1952. After leaving school he qualified as a telecommunications technician with South Africa Telecom and later obtained the position of chief Telecom electrician. He remained with Telecom for 18 years.
He came to Australia in 1988. Initially he could not obtain work in the telecommunications industry and worked in a variety of occupations, including factory work. However, he completed various TAFE courses and was able, in 1989, to commence employment with Telstra. Whilst so employed, he obtained further trade certificates.
He trained and worked as a linesman for a number of years on domestic and commercial buildings. This work included digging trenches, putting conduit together, threading it through cables, feeding it through cavities, across roofs and down to sockets.
He ultimately left Telstra in 2000 and started his own business involving underground, aerial and structural cabling. In 2003 ‑ 2007, business was not going well because there were other issues and his earnings were not high. It seems that he was pre‑occupied with a daughter's difficulties with drugs. However, from 2007 ‑ 2010 his work picked up. In 2007, his taxable income was $58,121, increasing to $72,677 in 2010.
In July 2010, he hurt his back while moving a caravan and his income dropped dramatically to $14,852 in the year ending 30 June 2011 as he only took light work to protect his back. He was looking to keep away from anything involving heavy jobs or lots of exertion.
In the latter part of 2011, he commenced work as a lecturer in telecommunications cabling at Balcatta, working a nine‑day fortnight, 37 hours one week over five days and 30 hours the next week over four days. His duties involved teaching installation and cabling, both theory and assessment, and his lectures included demonstrating to students how to climb ladders, how to remove sheaves from cables, using plyers, and threading and installing cable. Such activities required the use of both hands. He was required to show students what they did wrong and demonstrate the correct procedures. He also used computers, spreadsheets, whiteboards and overhead projectors to illustrate diagrams. He would stand and observe students whilst assessing them. For a nine‑day course, he received approximately $3,366.
After the surgery on 28 February 2013 to remove the haematoma and decompress the right median nerve, the pain in Mr Martin's right hand disappeared. However, he still had limited movement in the hand which felt like it was receiving an electric shock and was burning. He underwent hand therapy twice a week and was unable to drive.
By 13 August 2013, he attempted to return to lecturing. He worked 30 hours in August and about 60 hours in September at $50 per hour, but could not cope. He could not carry out demonstrations for the students, hold or cut the cable, or manage the whiteboard. Nor could he mark the students' assessments. As he could not perform his duties, he stopped working.
Mr Martin's employer in August/September 2013 was Mr Robertson, who operated a cable telecommunications business, providing training services to the telecommunication industry. The judge recorded his evidence as follows:[43]
The current training course is 13 1/2 days over three weeks, half of the course involved theoretical components, the other half practical. Mr Robertson said that he currently employed three casual employees and two subcontractors. Employed staff were paid $45 per hour and on top of that they received a superannuation component which took them up to $45 [sic].
He said as casuals they were allowed to work 30 hours per week on average. Their ages ranged from 52 ‑ 77 years.
An instructor was required to instruct the students on the regulations, the colour codes applicable to cables, installing the cables, and test the students' competency in these areas. An instructor was also required to prepare documents associated with those tasks and demonstrate how to cut cable, remove the sheath from the cables without cutting the cable cords, and how to place the cables on the various telecommunications frames.
He said he employed Mr Martin in about August 2013 but the latter experienced health problems and had to withdraw. He said Mr Martin was a consistent and enthusiastic worker and had a good relationship with the students.
He said that currently he would not be in the position to employ Mr Martin and said there was not much chance of Mr Martin obtaining employment with his business.
[43] Primary decision [112] - [116].
Although Mr Martin's back was painful in August and September 2013, it did not restrict his lectures because he was able to sit whilst lecturing and his back was not painful whilst he sat. Towards the end of 2013, however, his back pain got worse. He saw Dr Wong in February 2014 and was put on the waitlist for surgery. Between February 2014 and 31 July 2014, he said his back caused him difficulties and whilst he could not walk great distances, he said he could have worked (but for the injury to his right median nerve) because when he was sitting his back was not painful.[44]
[44] Primary decision [35].

The judge's assessment of damages

Degree of permanent impairment and general damages

His Honour accepted evidence that Mr Martin has a permanent 29% hand impairment, and experiences difficulties with fine motor control.[45] He also accepted evidence that Mr Martin experiences considerable pain in his hand and is no longer able to partake in certain recreational and other activities.[46] He awarded general damages of $50,000.[47] (His Honour's findings are set out in greater detail later in these reasons.)

Pecuniary loss

[45] Primary decision [312] ‑ [313].

[46] Primary decision [315] ‑ [316].

[47] Primary decision [318].

With respect to pecuniary loss, the judge found that Mr Martin initially remained out of work primarily because of his 'back pain and infection', ie, septic arthritis. Whilst, at the time of trial, there was no current position available at his previous place of employment, Mr Martin would, nevertheless, but for the injury to his right median nerve (which the judge sometimes referred to as his 'hand injury'), have been able to obtain work in the telecommunications training industry as a lecturer when he was fit to return to work.[48] The judge found, in effect, that Mr Martin was fit to return to work and would have been able to obtain work, but for his 'hand injury' (and not because of some other issue, such as back pain), for a total of 124 weeks up to the date of trial.[49] In this regard, the judge made, in effect, the following findings in relation to Mr Martin's employment capacity in the period 20 November 2012 to 5 February 2016 (the date of trial):[50]
[48] Primary decision [325].
[49] Primary decision [344].
[50] Primary decision [336] - [344].
(a)he would not have been able to work:
(i)from 20 November 2012 to 1 February 2013 because of his septic arthritis;
(ii)from 24 October 2013 to 24 December 2013 because of his chronic back pain;
(iii)from 28 July 2014 to 28 November 2014 by reason of back surgery; and
(iv)for four weeks on account of a diplopia and temporal lobe infarction; and
(b)he would (correspondingly) have been able to work but for the negligence:
(i)from 1 February 2013 to 28 July 2014, less the 12‑week period in October ‑ December 2013 in respect of his chronic back pain, ie, a total of 66 weeks; and
(i)from 28 November 2014 to 5 February 2016, less four weeks (on account of the diplopia and temporal lobe infarction), giving a total of 58 weeks.
The judge calculated past economic loss over this period of 124 weeks at a rate of $824 net of tax per week, being Mr Martin's net weekly income in his capacity as a lecturer/trainer in the 16 months leading up to November 2012.[51] This gave a gross figure of $102,176. His Honour deducted from this figure $4,800 for actual earnings made by Mr Martin in August and September 2013, and also made a 15% deduction for contingencies. In relation to contingencies, the judge said that he bore in mind 'the risk of further flare ups of back pain, depression, arthritis, cardiac disorder and the like that have affected him in the past and the vagaries of the economy'.[52] This resulted in a final figure of $82,769 for past economic loss.[53] Interest was also awarded.[54]
[51] Primary decision [343].
[52] Primary decision [346].
[53] Primary decision [344] ‑ [346].
[54] Primary decision [347].
On the basis that Mr Martin would have worked until the age of 70, and using the same net weekly figure and allowing the same percentage for contingencies, his Honour assessed future economic loss to be $209,419.[55]

Gratuitous services

[55] Primary decision [353] - [355].

Damages for past gratuitous services were awarded at $21,681, plus interest of $2,058.[56] Damages for future gratuitous services were assessed to be $69,172.[57]
[56] Primary decision [388] ‑ [389].
[57] Primary decision [401] ‑ [402].

Appellant's case

The Minister raises ten grounds of appeal, covering the topics of causation, economic loss (past and future), general damages, and gratuitous services. They are to the following effect:

Causation

1.The judge erred in law in finding, in the absence of evidence, that had surgery been performed by 6 or 7 December 2012, Mr Martin would have suffered no residual disability at all.
2.The judge erred in law in finding, in the absence of any evidence, that surgery which could have prevented disability could or should have been performed by 6 or 7 December 2012.
3.The judge erred in finding causation in circumstances where the evidence did not show the extent to which Mr Martin's disability would have been better, in terms of residual symptoms, had there been earlier intervention.

Economic loss - past and future

4.The judge erred in law in his assessment of past economic loss in awarding the sum of $824 net per week from 1 February 2013 in that:
(a)there was no evidence to support a finding of fitness for work (save for the 'hand injury') from 1 February 2013;
(b)there was no evidence that work was available for Mr Martin to perform;
(c)there was no evidence as to whether that work was full time, part time, permanent or casual;
(d)there was no evidence of the rate of pay in any position; and
(e)there was no proper basis for a finding of loss in the amount of $824 net per week.

5.The judge erred in law in finding, in relation to past economic loss, that there was no onus on Mr Martin to show that he would have been able to 'reobtain employment', and in that regard he failed to apply s 5D of the Civil Liability Act 2002 (WA).
6.The judge erred in law in assessing future economic loss at $824 net per week to age 70, in that there was no evidence at all of the availability of employment as a lecturer in telecommunications at that rate and on a full time basis and, in any event, the finding ignores Mr Martin's numerous other physical and psychological disabilities.

General damages

7.The judge erred in law in assessing general damages in the sum of $50,000 by failing to comply with s 9(2) of the Civil Liability Act, in that he has failed to deduct 'Amount A' from his assessment.

Gratuitous services

8.The judge erred in law in assessing gratuitous services, both past and future, on the basis that it was the 'hand disability alone' which led to the need for gratuitous services, when the evidence was that the need for services pre‑dated the alleged breach and was consequent upon multifactorial disabilities.
9.The judge erred in law in his assessment of gratuitous services in finding there was no onus on Mr Martin to show that the ongoing provision of the Disability Pension was a consequence of the hand symptoms, rather than the disabilities originally certified, and in that regard failed to apply s 5D of the Civil Liability Act.
10.The judge erred in law in his assessment of gratuitous services in that there was no additional financial loss consequent upon his hand disability given that (as at the date of the alleged breach) he was already on, and remained in receipt of, full time paid care.

Respondent's notice of contention and application to adduce additional evidence

Mr Martin filed a notice of contention, alleging, in effect:
1.In the event that the Minister were to succeed on grounds 2 or 3, the judge's finding on causation should be upheld on the bases that:
(a)the onus was on Mr Martin to show that some harm was caused by the pressure on his median nerve that would have been relieved by earlier surgical treatment;
(b)the relevant harm was severe arm and/or hand pain, and as pressure on the median nerve was prolonged, an increasing level of permanent damage to that nerve resulted in loss of motor function and sensation in the distribution of that nerve;
(c)at the very least, surgical treatment by 6 or 7 December 2012 would have saved Mr Martin from the severe arm pain he suffered from when he ought to have been treated until 28 February 2013, when the pain 'disappeared' following surgery;
(d)alternatively, causation could also be satisfied on the basis that some of Mr Martin's present loss of function of his median nerve could have been prevented by earlier surgery, even if the degree of that loss of function could not be determined.
2.If the court were to find, in accordance with grounds 8, 9 or 10, that Mr Martin's wife was in receipt of a carer's payment which prevented recovery for gratuitous services, Mr Martin would contend that his wife was not in fact in receipt of such payment. In this regard, Mr Martin would seek to rely on his application to adduce additional evidence, referred to below.
3.If the court were to find that damages ought to be reduced for economic loss in terms of grounds 4, 5 and 6 of the grounds of appeal, any such deduction should be offset on the basis that the assessment of general damages was manifestly inadequate.
By application dated 17 June 2016, Mr Martin applied for leave to adduce additional evidence at the hearing of the appeal. The evidence comprised two letters, one dated 2 March 2016 and the other dated 18 April 2016, from officers of the Australian Government Department of Human Services. Mr Martin contended that the effect of this evidence was to show that, insofar as he and his wife (Mrs Martin) gave evidence at trial to the effect that Mrs Martin was in receipt of a carer's pension for her care of Mr Martin, that evidence was in error. It was contended that the effect of the evidence was to indicate that, insofar as Mrs Martin received a carer's pension, it was to care for her mother, and not Mr Martin.

Disposition

Grounds 1 and 3

Ground 1 should be dismissed. There was evidence of Professor Myers to support the finding. Whilst his evidence was, no doubt, to be considered as a whole, it included the following evidence, as recorded by the judge:[58]
It is most likely that if the compression had been relieved earlier that his symptoms may have been much less and recovery may well have been much quicker … It is my view that he should have investigations much earlier than he did and that he may have benefited from a surgical exploration of the area prior to that which was carried out … There is absolutely no doubt in my mind that if he had been treated earlier he would've had a better result. It is likely, but not absolute, that he may well have escaped with no permanent median nerve injury at all, if treatment had been performed earlier … He has suffered permanent nerve damage to the median nerve which, in my view, had every possibility of being avoided with earlier and judicious investigation and treatment …
…
… Well, if the nerve was intact, which it clearly was, from the operation note, then one would expect that he would probably and I stress probably get returned to full function. You might not but you probably would. It depends on how much - how severe the compression has been. But, yeah, the earlier treated the better results you are going to get ...
Well, you can't put percentages on it … You can only talk about probabilities or likelihood … but the bottom line is the earlier this was decompressed, the better the outcome was likely to be. The longer it went on the worst the outcome was likely to be … So the earlier it's decompressed the better but you can't put figures on it. You can't put percentages on it, it's just - without being - without being rude, it's a bit like asking how long is a piece of string. I mean, it's just not an answerable question. I think the likelihood is if he had been treated earlier he probably would have had no disability. (emphasis added)
[58] Primary decision [286] ‑ [287].
This evidence was to be understood in the context that Professor Myers had said that early investigation, at least by ultrasound, should have been performed within '10 days' of the failed catheter insertion and, in effect, that the ultrasound would have revealed the haematoma and the need for surgery without delay.[59] Further, Professor Myers' evidence explained the potential consequences of delay. Compression of the nerve causes loss of nutrients; compression for sufficient time would cause irreparable damage.[60]
[59] Primary decision [104].
[60] ts 255, accepted by the primary judge [285].
The judge accepted Professor Myers' evidence.[61] Mr Martin established causation, and not merely (as the Minister had submitted), the loss of a chance of a better medical outcome.[62]
[61] Primary decision [297], [300].
[62] cf Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537.
Counsel for the Minister said that if ground 1 did not succeed, ground 3 would not arise for determination.[63]

Ground 2

[63] Appeal ts 10.

Ground 2 alleges, in effect, that there was no evidence that surgery could have been performed within the public hospital system by 6 ‑ 7 December 2012. The Minister says[64] that there was evidence from Dr Ryan that an EMG could not have been performed in the public system within two to three months, even on an urgent basis.
[64] Appellant's written submissions, par 5; WB 10.
Mr Martin's preliminary objection to this ground was that the point was not raised at trial and, as it could have been met with evidence, the point cannot permissibly be raised on appeal:[65] Rizhao Steel v Koolan Iron Ore Pty Ltd.[66] The Minister's response was to the effect that, even though the matter had not been raised on the Minister's pleadings, the point 'only arises as a consequence' of the judge's findings, and 'there was simply no evidence that it could have been done within that timeframe'.[67]
[65] Respondent's written submissions, par 12; WB 24.
[66] Rizhao Steel v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 91 [51] ‑ [54].
[67] Appeal ts 5.
Mr Martin's preliminary objection should be rejected. The onus was on Mr Martin to establish that he would have undergone (relevantly for present purposes) corrective surgery within a time which would have prevented, or minimised, the injury involving the impairment of the median nerve in his right arm.[68]
[68] Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 [45], [104].
Nevertheless, ground 2 should be dismissed. There is no dispute that an ultrasound was available on 24 hours' notice, seven days per week. The Minister's submissions about an EMG not being available for some time raise a false issue when the unchallenged finding is that an ultrasound would have detected the haematoma.[69] The evidence of Professor Myers was that there should have been surgery 'within two weeks'.[70] The plain implication of this evidence was that surgery within two weeks was a realistic timeframe for the treatment of someone in Mr Martin's position, had the haematoma been detected earlier. Similarly, Dr Allison's evidence[71] that there should have been 'prompt exploration, that is, surgery within days', carried the same implication.[72] Moreover, Dr Allison, in his report, said:[73]
This was an acute injury, albeit one that happened in hospital. As I stated before, if it had happened outside the hospital he would have had his cubital fossa explored promptly. The guidelines [as to categories of surgery] in themselves refer to elective cases; this was an emergency in my view and so [the guidelines as to categories of surgery] is not relevant.
Neither do I consider that the fact that it was at the particular time of the year relevant; emergencies are dealt with at any time.
[69] Primary decision [232], [250], [299].
[70] GB 233; see also primary decision [104].
[71] Primary decision [73].
[72] Primary decision [247].
[73] GB 267.
Finally, the judge also referred to Dr Strahan's evidence[74] to the effect that surgery could have occurred within days. Even though Dr Strahan did not himself operate 'within days' after 10 January 2013 when he first saw Mr Martin, by that time, the injury had reached the point where it appeared that re‑section and nerve grafting could be required.[75]

Ground 4

[74] Primary decision [299].

[75] GB 47; cf primary decision [181].

Ground 4 challenges the judge's assessment of past economic loss.
In support of this ground, the Minister contended that there was no evidence that Mr Martin could (but for the negligence) have returned to work on 1 February 2013. The Minister also challenged the judge's use of the sum of $824 net per week, or $1,010 gross per week. The Minister referred to Mr Martin having been a telecommunications technician, who ceased heavier manual work in 2010 due to severe back pain, and that he changed career and commenced lecturing in telecommunications in the latter part of 2011. The Minister submitted that there was insufficient evidence that he would have been able to obtain work in the telecommunications training industry as a lecturer when he was fit to return to work. The Minister also submitted that the judge had overlooked the fact that Mr Martin was out of work from 2003 to 2006 due to depression and family problems.[76]
[76] Appellant's written submissions, pars 22 - 26; WB 13 - 14.
Reference was also made to his past taxable income, which ranged from a low of $14,853 in 2010/2011 to a high of $72,677 in 2009/2010.[77]
[77] Primary decision [327].
In oral submissions, counsel for the Minister also emphasised that Mr Martin had been on a disability pension since 12 December 2012. Counsel also referred in particular to a 'Carer Payment and/or Carer Allowance Medical Report' dated 11 December 2012, signed by Mr Martin's general practitioner, Dr Thonell (Carer Payment Medical Report).[78]
[78] Appeal ts 13 - 15; GB 66 - 80.
This ground should also be dismissed.
The judge adopted a gross figure of $1,010 per week (ie, $52,520 gross per annum). This was based, in effect, on Mr Martin's actual earnings as a telecommunications lecturer in the 16‑month period prior to his hospitalisation.[79] That approach was consistent with the submissions made at trial by the Minister, save for a mathematical error identified by the judge, and for which the judge made the necessary adjustment.[80] There is no suggestion in this appeal that the judge's adjustment was not necessary.
[79] Primary decision [340] - [343].
[80] Primary decision [341] - [342].
Further, the figure of $1,010 per week (gross) took proper account of the fall in Mr Martin's earnings from the 2009/2010 year ($72,677 or $1,398 per week) when Mr Martin had been running his own business and had been able to undertake heavier work, which was later foreclosed to him in 2011. Moreover, there was evidence that in 2013, Mr Robinson was paying $45 per hour for a 30 hour week to telecommunication lecturers, ie, $1,350 gross per week, or $70,000 gross per annum.[81] Even assuming a 40 week year (as opposed to 52 weeks), that would give a gross annual income of $54,000. In the circumstances, the figure used by his Honour was supported by the evidence and was not unreasonable.
[81] Primary decision [112] - [113], [340].
Further, the judge did not overlook Mr Martin's difficult working history in 2003 ‑ 2006. The judge made direct reference to Mr Martin's depression as a result of 'family problems' in that period, and explained the particular circumstances giving rise to those issues.[82] There is no reason to suppose that those particular circumstances would result in any long term diminution in earning capacity. Indeed, as the judge observed, Mr Martin's taxable income increased to $72,677 for the 2009/2010 year.
[82] Primary decision [20], [327].
As to Mr Martin's fitness to return to work on 1 February 2013 (but for the injury to his right median nerve), the Minister's challenge to the relevant finding, in large measure, is subsumed within the overall contention that Mr Martin had a variety of medical conditions which effectively precluded him from being fit for work in any event. In this context, as noted earlier, the Minister referred to the fact that Mr Martin had been on a disability pension from 12 December 2012, and to certain other medical conditions for which he was being treated, as described by his general practitioner in the Carer Payment Medical Report. That medical report indicated that in addition to his septic arthritis, Mr Martin had ischaemic heart disease, a benign prostate, and rheumatoid arthritis.[83] It also referred to anxiety and depression.[84] It nevertheless described the septic arthritis as the condition with 'most impact'.[85]
[83] GB 67.
[84] GB 79.
[85] GB 73.

The following observations may be made about these submissions.
The judge dealt with the evidence concerning Mr Martin's disability pension in the following terms:[86]
[The Minister] says that there should be no award for past economic loss because:
(a)Mr Martin was on a disability pension relating to his other health issues including his back pain, heart problems and rheumatoid arthritis[.]
…
As to (a), the medical certificates relating to Mr Martin being placed on a disability pension included references to septic arthritis, ischemic heart disease, rheumatoid arthritis, severe low back pain, and also refers to 'sensory functions normal except right hand'. There are no reports showing the reason for his continuance on the disability pension. The issue of whether any disabilities, hand or otherwise, prohibited Mr Martin from working was the subject of evidence at the trial and shall be decided on that evidence.
[86] Primary decision [320], [322].
No error is revealed in these observations by the judge. There was detailed expert evidence given at the trial on the question of Mr Martin's capacity for work. Each party called an occupational physician. The Minister's expert was Dr Gillett, and Mr Martin's expert was Professor Thompson. Professor Thompson 'examined each of Mr Martin's previous health issues from a work capacity point of view'.[87] The judge set out his evidence in detail.[88] The judge also referred in detail to Dr Gillett's evidence on the topic of Mr Martin's capacity for work.[89] His Honour also referred to a report by Ms Valente, upon which the Minister had relied for trial, although Ms Valente was not called as a witness.[90]
[87] Primary decision [124].
[88] Primary decision [125] ‑ [135]. (His Honour's reference to 'October 2012 - December 2012' at primary decision [125] was evidently intended to be a reference to 'October 2013 - December 2013': primary decision [334].)
[89] Primary decision [171] - [176], [331] - [333], [335].
[90] Primary decision [329] - [331].
His Honour's finding that Mr Martin would (but for the nerve injury) have been fit for work commencing 1 February 2013 was broadly consistent with Dr Gillett's evidence.[91] It is also consistent with his Honour's finding that by 3 December 2012, the multiple issues confronting Mr Martin were 'largely under control'.[92] The judge did not accept Dr Gillett's evidence that Mr Martin would have been unable to work for the whole of the period between 24 October 2013 and 28 October 2014,[93] but accepted, including having regard to Professor Thompson's evidence, that he would have been unable to work for three months in the period October ‑ December 2013.[94] The judge's finding that Mr Martin was unable to work because of his back surgery for four months was broadly consistent with the evidence of Dr Gillett and Professor Thompson.[95] His Honour's finding that Mr Martin would also have been incapacitated for a four‑week period as a result of the diplopia and temporal lobe infarction was also broadly consistent with Dr Gillett's evidence.[96]
[91] Primary decision [171].
[92] Primary decision [230], [264].
[93] Primary decision [332].
[94] Primary decision [334].
[95] Primary decision [335].
[96] Primary decision [339].
In relation to Mr Martin's other conditions, such as rheumatoid arthritis, cardiac issues, anxiety and the like, the judge evidently accepted Professor Thompson's evidence that they would not have prevented Mr Martin from working as a lecturer in telecommunications.[97]
[97] Primary decision [337] - [338], read with [127] - [134].
Accordingly, the contention in ground 4(a) that there was no evidence to support the judge's finding that Mr Martin could have recommenced work on 1 February 2013 after having been treated for septic arthritis cannot be accepted. Nor does the mere fact that he was in receipt of a disability pension, and that he was being treated for a number of other conditions prior to the injury to his right median nerve, reveal any error in the judge's findings based on the expert evidence.
The other substantive matter raised by the Minister in relation to this ground is the contention that there was insufficient evidence that work was available to Mr Martin as a telecommunications lecturer and, to the extent that there was such evidence, there was no evidence as to whether that work was full time, part time, permanent or casual. Those submissions cannot be accepted.
Mr Martin had been employed as a telecommunications lecturer for 16 months prior to the bout of septic arthritis.[98] On the judge's findings, he would have recovered from that by 1 February 2013, and (but for his right median nerve injury) would then have been in a position to resume employment. Moreover, he in fact found work in that field in 2013, when he sought (ultimately unsuccessfully on account of his nerve injury) to return to employment as a telecommunications lecturer. Despite his disability at that time, he was a 'consistent and enthusiastic worker and had a good relationship with the students'.[99] His employer at that time, Mr Robertson, had three casual employees and two subcontractors. The casual employees could work up to 30 hours per week on average. The employees ranged from 52 ‑ 77 years of age. Although at the time of trial, Mr Robertson did not have any spare employment capacity, the judge accepted evidence to the effect that there were 'other TAFE and private companies providing similar services'.[100] The Minister did not adduce or elicit any evidence at trial which raised a question as to whether there would or might have been any difficulties in finding employment in that particular field in the period 1 February 2013 ‑ February 2016 (or beyond). As noted above, Mr Martin in fact found employment in that field within that period. In these circumstances, it was open to the judge to assess Mr Martin's past economic loss on the basis that, subject to the question of contingencies, Mr Martin's earnings would have been broadly similar to the actual earnings he received in the 16‑month period prior to the bout of septic arthritis which interrupted his employment in late 2012.
[98] Primary decision [343].
[99] Primary decision [115].
[100] Primary decision [324].
Moreover, any criticism of the judge's approach to past economic loss would need to take into account his reasons as a whole on that topic, including in relation to contingencies. The judge said, without contradiction by the Minister in this appeal, that '[i]t is accepted that 15% is a very heavy discount for contingencies'.[101]
[101] Primary decision [345]. His Honour referred to certain cases, including Kember v Thackrah [2000] WASCA 198 [27] and Brocx v Mounsey [2010] WASCA 196 [63].
For the above reasons, ground 4 should be dismissed.

Ground 5

Ground 5 seeks to challenge a finding purportedly made by the judge to the effect that there was no onus on Mr Martin to show that he would have been able to 'reobtain employment'. It is said that by this finding, the judge had failed to comply with s 5D of the Civil Liability Act. The Minister's arguments under ground 5 also canvassed a number of arguments that had been made in relation to economic loss under ground 4. In this context, the Minister also referred to the uncontroversial proposition that damages for both past loss and future loss are allowed to an injured plaintiff because the diminution of his or her earning capacity is, or may be, productive of financial loss, and it is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss.[102] This ground should be dismissed for the following reasons.
[102] Reference was made to Graham v Baker [1961] HCA 48; (1961) 106 CLR 340, 346 ‑ 347; Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 [7] - [8].
First, the ground misstates the judge's findings. The relevant part of his Honour's reasons are as follows:[103]
The [Minister] says that there should be no award for past economic loss because:
…
(c)Mr Robertson's evidence was that there is no position for Mr Martin at the College of Electrical Training (ts 287).
…
As to (c), there is no requirement for Mr Martin to show that he would have been able to re-obtain employment with the business he previously worked for. Mr Robertson's evidence was that there are other TAFE and private companies providing similar services. (emphasis added)
[103] Primary decision [320], [324].
The judge was correct in that regard. No error is shown.
Secondly, s 5D of the Civil Liability Act provides, relevantly, that the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. Here, Mr Martin established causation by proving that the negligent delay in investigating his symptoms and treating the haematoma in his right arm led to the injury to his right median nerve. For the reasons given in relation to ground 1, the onus of proof on Mr Martin under s 5D was discharged.
Thirdly, insofar as the Minister's arguments under ground 5 seek to cover broader arguments about past economic loss canvassed under ground 4, they should be rejected for the reasons previously given in connection with ground 4.

Ground 6

By ground 6, the Minister alleges that the judge erred in his assessment of future economic loss, essentially on the same bases raised in connection with grounds 4 and 5. In light of the disposition of grounds 4 and 5, ground 6 should also be rejected.

Ground 7

Ground 7 alleges that the judge erred in failing to comply with s 9 of the Civil Liability Act, which places restrictions on damages for non-pecuniary loss. Before dealing with the legal issues raised by ground 7, it is convenient to set out his Honour's principal findings of fact.
His Honour found that Mr Martin suffers the following permanent disabilities and difficulties, which are directly connected to the damage to the median nerve and no other condition:[104]
(1)He has a 29% hand impairment, involving limited 'pinch grip' strength, diminished sensation, hypersensitivity in certain areas, occasional stiffness and some hand and wrist discomfort.[105]
(2)He experiences difficulties with activities requiring the use of both hands and fine motor control.[106]
(3)He has difficulty driving a manual motor vehicle and starting any appliance which utilises a starter pull cord.[107]
(4)He experiences considerable pain in the hand.[108]
(5) He is no longer able to enjoy playing musical instruments.[109]
[104] Primary decision [317].
[105] Primary decision [312].
[106] Primary decision [313].
[107] Primary decision [314].
[108] Primary decision [315].
[109] Primary decision [316].
The judge set out the law with respect to s 9 as follows:[110]
Section 9(4) of the [Civil Liability Act] defines non-pecuniary loss as pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life, and bodily or mental harm.
The relevant amount for s 10(3) is $20,000 for amount A, $60,500 for amount C. The limit imposed by the [Civil Liability Act] only applies if the pecuniary loss is assessed at less than $80,500. (emphasis added)
[110] Primary decision [310] ‑ [311].
The judge concluded:[111]
For general damages, bearing in mind Mr Martin's age, I would award the sum of $50,000.
[111] Primary decision [318].
In the grounds of appeal, the Minister contends that the judge failed to comply with s 9(2) of the Civil Liability Act and deduct $20,000 when assessing general damages in the sum of $50,000. In written submissions, the Minister also said that the trial judge 'has failed to perform the relevant calculation as required in Section 9(3)'. Counsel for the Minister submitted in that regard that he had not been able to produce a final figure of $50,000 through a proper application of s 9(3).
Counsel for Mr Martin submits, in effect, that it is unlikely that the judge assessed damages as 'low' as $50,000 in light of his other findings. He submits the likelihood is that the judge assessed general damages at $65,000 and rounded the figure to $50,000 after applying the statutory deduction under s 9(3) of the Civil Liability Act. It may be noted here that counsel for Mr Martin referred to other cases involving higher awards for general damages,[112] including Raso v Raso[113] and Ross v Profile Packaging Pty Limited.[114]
[112] Appeal ts 44; BB 181 - 182.
[113] Raso v Raso [2007] WADC 53.
[114] Ross v Profile Packaging Pty Limited [2008] WADC 8.
Section 9 provides, relevantly:
9.Restrictions on damages for non-pecuniary loss (general damages)
(1)If the amount of non-pecuniary loss is assessed to be not more than Amount A for the year in which the amount is assessed, no damages are to be awarded for non-pecuniary loss.
(2) If the amount of non-pecuniary loss is assessed to be more than Amount A but not more than Amount C for the year in which the amount is assessed, damages for non-pecuniary loss are not to be awarded in an amount that is more than the excess of the amount assessed over Amount A.
(3)If the amount of non-pecuniary loss is assessed to be more than Amount C but less than the sum of Amount A and Amount C for the year in which the amount is assessed, damages for non-pecuniary loss are not to be awarded in an amount that is more than the excess of the amount assessed over the amount calculated as follows –
Amount A - (Amount assessed - Amount C)
Amount A and Amount C are defined in s 10.[115] Section 10(1) specifies figures for Amount A and Amount C for the financial year ending 30 June 2003. Section 10(2) provides that, for each financial year thereafter, Amount A and Amount C are to be obtained by varying each of their respective values for the preceding financial year according to s 4.[116] In accordance with s 10(3), on or before the beginning of each financial year, the Minister is to then publish a notice in the Gazette specifying the amounts that are to be Amount A and Amount C for that financial year.
[115] Civil Liability Act s 9(4).
[116] Civil Liability Act s 10(2).
The judge correctly identified Amount A as $20,000 and Amount C as $60,500.[117] Reading s 9 in light of these figures, it follows that:
(1) pursuant to s 9(1), if his Honour assessed non-pecuniary loss to be $20,000 or less, no damages were to be awarded for that loss;
(2) pursuant to s 9(2), if his Honour assessed non-pecuniary loss to be greater than $20,000 and equal to or less than $60,500, damages for that loss were to be no more than the amount assessed, less $20,000;
(3)pursuant to s 9(3), if his Honour assessed non-pecuniary loss to be more than $60,500 but less than $80,500 ($20,000 plus $60,500), damages for that loss were to be no more than the amount assessed, less a sum calculated on the basis of $20,000 minus the difference between the amount assessed and $60,500.
[117] Primary decision [311].
The judge's reasons on the topic of the application of s 9 of the Civil Liability Act are, with respect, not clear. On one view, his Honour may have assessed non-pecuniary loss to be $50,000, and then failed to deduct $20,000 in accordance with s 9(2). Alternatively, he may have assessed non-pecuniary loss to be some other unspecified figure to which a deduction was then made under s 9(3) to reach a final award of $50,000. In this regard, it may be noted that a figure of $65,250 as the 'amount assessed' produces an award of $50,000 as follows: $50,000 = $65,250 - [20,000 - ($65,250 - $60,500)].
There is, however, nothing in the judge's reasons indicating that he arrived at a figure of $65,250 as the assessed non‑pecuniary loss. Also, it would be unusual to adopt a figure which included the sum of $250, rather than a round figure. Further, there is no line of reasoning showing that his Honour actually applied the calculation under s 9(3), or that he rounded the final result (as suggested by counsel for Mr Martin), or otherwise awarded a final figure less than the restriction imposed by that subsection. Nor, having regard in particular to Mr Martin's age, would we conclude that a sum of $50,000 is so 'low' (in the sense of outside of a sound discretionary range) that it is to be inferred that it must be the product of a s 9(3) adjustment. The cases referred to in [87] above by counsel for Mr Martin related to hand injuries of a more traumatic kind, involving amputation (of the hand or fingers) to young persons at about the start of their adult lives. In the case of Raso, the figure was also agreed by the parties.[118]
[118] See Raso [46]; Ross [219] - [222]. cf Carter v Railway Motel Pty Ltd [2016] WADC 102 [149] ‑ [157], where a plaintiff who was left with a significant deficit in terms of the lack of strength and pain in his right arm, plus an impaired spine at L5/S1, with significant restrictions and who had suffered the fact and consequences of surgery, had general damages assessed at $48,000 prior to the reduction under s 9(2) of the Civil Liability Act.
Moreover, it appears that his Honour was not purporting to, and did not, apply s 9(3), in that he expressly said that the limit imposed by the Civil Liability Act only applies if pecuniary loss is assessed at less than $80,500,[119] and his Honour assessed pecuniary loss at a sum well in excess of $80,500. Insofar as his Honour considered that s 9(3) only applied if pecuniary loss is assessed at less than $80,500, his Honour was in error. The limit imposed under s 9(3) applies if, in effect, non‑pecuniary loss is assessed to be less than $80,500.
[119] Primary decision [311].
On a proper construction of his Honour's reasons read as a whole, it appears that he has:
(a)assessed non‑pecuniary loss to be $50,000 prior to the application of s 9;
(b)directed his attention to s 9(3) and (inadvertently) regarded the limitations imposed by s 9 as inapplicable; and
(c)proceeded to award general damages in the sum of $50,000, without making a deduction of $20,000 in accordance with s 9(2) of the Civil Liability Act.
Alternatively, even if his Honour's reference to pecuniary loss is taken as intended to be a reference to non‑pecuniary loss,[120] we do not think it can be inferred that his Honour assessed general damages of $65,250 and then applied s 9(3). For the reasons above, the better reading is (with respect) that his Honour assessed general damages at $50,000 and overlooked the application of s 9.
[120] Primary decision [311].
His Honour therefore erred in law in failing to apply s 9(2). Ground 7 should be upheld, and the award should be reduced by $20,000. Although ground 3 of Mr Martin's notice of contention alleged that the assessment of general damages was manifestly inadequate, that contention was premised on this court upholding grounds 4, 5 or 6 of the grounds of appeal in relation to economic loss. As those grounds of appeal have been dismissed, this aspect of the notice of contention does not arise for consideration. Even had it arisen for determination, we are not persuaded (as we have previously indicated), that the assessment falls outside a sound discretionary range, having regard to the well‑known principles of appellate restraint.[121] That restraint does not apply to a failure to make a reduction required by a statutory provision.

Ground 8

[121] See, eg, Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15; (2014) 46 WAR 219 [88].

Ground 8 alleges, in effect, that the judge erred in attributing the need for gratuitous services to the 'hand disability' alone, when the evidence indicated that the services were required for Mr Martin's pre‑existing 'multifactorial disabilities'. Reference was made in the Minister's submissions[122] to s 12(2) of the Civil Liability Act which provides, in effect, that no damages are to be awarded for gratuitous services if they would have been, or would be, provided to the plaintiff even if the plaintiff had not suffered the personal injury.
[122] The Minister's written submission, par 34; WB 16; appeal ts 25.

Ground 8 should be dismissed. The judge's findings were based on his assessment of the evidence at trial, including that of Mr and Mrs Martin. After noting that damages for gratuitous services cannot be awarded if the services would have been provided in any event, even if he had not suffered the injury,[123] the judge said:[124]
Mr and Mrs Martin's evidence satisfies me that the hand disability alone has led to the need for the gratuities [sic] services claimed … These are services which would not have been provided in any event by Mrs Martin and are now provided because of Mr Martin's hand disability. Mr Martin initially received a disability benefit and Mrs Martin a carer's benefit because of a combination of Mr Martin's hand injury and the other disabilities he suffered in December 2012/January 2013 ... Both were in receipt of those benefits when they gave evidence. There is no evidence from disability services or any other source as to what disability has led to the continuation of those payments. The evidence I have heard satisfies me that the gratuitous services claimed, past and future, were performed by Mrs Martin, directly and solely, as a result of Mr Martin's hand disability … The appropriate department's right to recovery [of] any part of the carer's pension is a matter for that department.
[123] Primary decision [365].
[124] Primary decision [366].
As noted earlier, his Honour generally accepted Mr Martin's evidence, and found him to be 'generally a straightforward witness'.[125] His Honour also found Mrs Martin to be a 'straightforward, conscientious witness of the truth' and accepted her evidence.[126] His Honour's findings of fact based on their evidence have not been demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', or to be 'glaringly improbable', or 'contrary to compelling inferences'.[127]
[125] Primary decision [56].
[126] Primary decision [64].
[127] See Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 [43].
His Honour also examined in detail the expert medical evidence in relation to the needs of Mr Martin arising from the injury to his right median nerve.[128] Moreover, his Honour was evidently careful to distinguish between the services required by Mr Martin necessitated by the injury to his right median nerve, and the gratuitous services otherwise provided by his wife.[129]
[128] Primary decision [379] - [385].
[129] Primary decision [377] - [380], [383] - [385].
The Minister has not demonstrated any basis upon which this court could conclude that the judge's detailed findings of fact about the nature and level of the services required by Mr Martin as a consequence of the injury to his right median nerve should be disturbed.

Ground 9

In respect of ground 9, the Minister contends that insofar as the judge found that there was no evidence from Disability Services, or any other source, as to what disability has led to the continuation of the disability payments, his Honour 'has misapplied the onus of proof' under s 5D of the Civil Liability Act.
As indicated earlier, causation for the purposes of s 5D of the Civil Liability Act was established by Mr Martin proving that the negligent delay in investigating his symptoms and treating the haematoma in his right arm led to the injury involving the impairment of his right median nerve. The next step was an assessment of damages. Mr Martin established by his own direct evidence, and that of his wife, and by expert evidence, the nature and extent of the services which were necessitated by the injury to his right median nerve. No error is shown. Ground 9 should be dismissed.

Ground 10

Ground 10 of the grounds of appeal alleges that the judge erred in law:
in his assessment of gratuitous services in that there was no additional financial loss consequent upon his hand disability given that (as at the date of the alleged breach) he was already on and remained in receipt of fulltime paid care.
Counsel for the Minister made the following written submission:
[T]he fact that [Mr Martin] was already in receipt of paid care for 24 hours per day ('constant care'), means that while there may be additional tasks which are performed for the benefit of [Mr Martin], there is no additional commercial detriment responsive to that need which requires compensation as a full time paid financial regime was already in place.
The Minister's oral submissions were to the same effect.[130] The Minister also referred to Newman v Nugent[131] in which the point is made that a claim for gratuitous services is founded on the injured person's need for services, not on a family's loss of the injured person's services in performing domestic and household tasks.[132]
[130] ts 26.
[131] Newman v Nugent (1992) 12 WAR 119, 122- 123.
[132] Appeal ts 26 ‑ 27.
Gratuitous services are gratuitous in the sense that they are services provided without payment by the plaintiff and without incurring any legal obligation to pay.[133] Thus 'gratuitous' is not a reference to whether the services are provided without payment to the provider of the services. Damages for gratuitous services are recoverable by a plaintiff for the loss of capacity which occasioned the need for the services. Once the need for the services is demonstrated, the plaintiff does not have to show that the need is, or may be, productive of financial loss.[134]
[133] Griffiths v Kerkemeyer (163, 170, 191, 193 ‑ 194).
[134] Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, 173 ‑ 175, 193; Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, 333, 340, 347; Kars v Kars [1996] HCA 37; (1996) 187 CLR 354, 361, 369 ‑ 370, 374.
The complaint made in ground 10 is that the Minister's negligence did not create any additional need for services because Mr Martin was anyway, regardless of that negligence, receiving full‑time caring from his wife, for which she was paid.
This ground has no merit. The judge found that Mr Martin's hand disability alone led to the need for the services that his wife provided.[135] The Minister's attack, by ground 8, on that finding has been rejected.
[135] Primary decision [366].
In that light, the judge was correct to find that:
(1)The basis for the claim for gratuitous services was Mr Martin's need for services.[136]
(2)The Minister's negligence caused the need for the services.[137]
(3)Consequently, the claim for gratuitous services should be allowed.[138]
[136] Primary decision [364].
[137] Primary decision [366].
[138] Primary decision [366] ‑ [368].
The Minister did not explain how, in those circumstances, the fact that Mrs Martin received a carer's pension meant that a claim for gratuitous services the need for which was caused solely by the Minister's negligence must fail. As the primary judge said, the stated basis, as between Mrs Martin as carer and the Commonwealth, of the need for full‑time care, and whether the Commonwealth could recover any part of the carer's pension paid to Mrs Martin, were different questions that do not control Mr Martin's claims for gratuitous services.[139] The Minister did not contend in this appeal that Mrs Martin's carer payment should be treated as reducing the damages which the Minister is liable to pay for the loss suffered by Mr Martin as a result of the negligence.[140]
[139] Primary decision [366].
[140] Such a contention, had it been raised, would have involved consideration of the terms of the Social Security Act 1991 (Cth), and cases such as The National Insurance Company of New Zealand Limited v Espagne [1961] HCA 15; (1961) 105 CLR 569; Redding v Lee; Evans v Muller [1983] HCA 16; (1983) 151 CLR 117; Wann v Fire & All Risks Insurance Company Limited [1990] 2 Qd R 596, 600; Scarf v State of Queensland [1998] QSC 233 [114], [122].
Ground 10 should be dismissed.

Notice of contention and Mr Martin's application to adduce additional evidence

It is unnecessary in light of the foregoing to determine the notice of contention and Mr Martin's application to adduce additional evidence. Nevertheless, for completeness, the merits of Mr Martin's application will be considered.
The relevant principles were recently outlined in Saunders v The Public Trustee.[141] It is unnecessary to repeat them here. The following observations may be made.
[141] Saunders v The Public Trustee [2015] WASCA 203.
First, the evidence is not, relevantly, fresh evidence. The question of whether Mrs Martin was in receipt of a carer payment for the care of Mr Martin is one which must have been known to Mr Martin, or which, with reasonable diligence, could have been discovered by Mr Martin, at the time of trial. Secondly, there is no adequate explanation as to why the evidence should be admitted on appeal. The additional evidence is proffered on the basis that Mr and Mrs Martin were in error when they gave evidence about this topic at trial. However, the affidavit in support of the application does not contain any direct evidence by Mr and Mrs Martin acknowledging or explaining any error on their part in the evidence they gave at trial. Thirdly, material aspects of the additional evidence has not been shown to be admissible. The additional evidence is contained in two letters from the 'Department of Human Services', each of which is addressed 'To whom it may concern'. The statements in the letters are, themselves, unverified. Counsel for Mr Martin contended that they were admissible under s 240(2) of the Social Security (Administration) Act 1999 (WA), which provides:
A statement in writing signed by a person referred to in subsection (1) that a person is or was receiving a social security payment under the Social Security law of the 1947 Act on a certain date at a certain rate is to be received in all courts as prima facie evidence that the person is or was receiving the social security payment on the date, and at the rate, stated.
Assuming, without deciding, that the foregoing provision applies to a carer payment under the Social Security Act 1991 (Cth), the two letters go beyond stating that Mrs Martin is or was receiving a carer payment on a certain date and at a certain rate. The effect of the correspondence is also to state that Mrs Martin received the carer payment as a carer for her mother, and not Mr Martin. That additional evidence, which provides the basis for the application, has not been shown to be admissible.
Had it been necessary to determine the application, it would have been dismissed.

Conclusion

The appeal should be allowed on ground 7, but not otherwise.