Espinos v Jane Elizabeth Popovic as Executor and Holder of a Grant of Probate of the Estate of the Late EMIL Popovic
[2018] WADC 94
•8 AUGUST 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ESPINOS -v- JANE ELIZABETH POPOVIC as Executor and Holder of a Grant of Probate of the Estate of the Late EMIL POPOVIC [2018] WADC 94
CORAM: BRADDOCK DCJ
HEARD: 8 - 19 MAY 2017 & 26 JUNE 2017
DELIVERED : 8 AUGUST 2018
FILE NO/S: CIV 3292 of 2013
BETWEEN: BARRY JOHN ESPINOS
Plaintiff
AND
JANE ELIZABETH POPOVIC as Executor and Holder of a Grant of Probate of the Estate of the Late EMIL POPOVIC
Defendant
Catchwords:
Torts - Medical negligence - Multiple surgeries - Causation - Incapacity - Damages - Loss of income - Back injury - Future losses - Accounting evidence - Business earnings
Legislation:
Civil Liability Act 2002 (WA), s 5B, s 5C, s 5D, s 5P, s 5PB
Result:
Judgment for the plaintiff
Damages assessed
Representation:
Counsel:
| Plaintiff | : | Mr G Droppert |
| Defendant | : | Mr J R B Ley |
Solicitors:
| Plaintiff | : | Friedman Lurie Singh & D'Angelo |
| Defendant | : | Denman Popperwell Lawyers |
Case(s) referred to in decision(s):
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
Purkess v Crittendon [1965] HCA 34; (1965) 114 CLR 164
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434
Shirt v Wyong Shire Council (1980) 146 CLR 40
Strong v Woolworths Ltd t/as Big W [2012] HCA 5
Western Australia v Watson [1990] WAR 248
Wilson v McLeay (1961) 106 CLR 523
BRADDOCK DCJ:
Introduction
This is a medical negligence case. The plaintiff, Barry John Espinos (Mr Espinos), first saw Dr Popovic, a neurosurgeon, in October 2010. At that point, Mr Espinos was aged 55, and was engaged in running a business in Geraldton called Espinos Sand Supplies. Mr Espinos had had back problems for some time and pain down his left leg. He had consulted Dr Goonatillake, Dr McCloskey another orthopaedic surgeon, and Dr Kent and received conservative treatment, prior to seeking a referral to Dr Popovic. Dr Popovic advised a fusion operation at L5/S1, with dynamic stabilisation at the level above (L4). Mr Espinos decided to undergo this procedure and signed a consent form accordingly.
At surgery on 10 November 2010, Dr Popovic fused the L4/5 level and stabilised to L3 above. He did not perform a fusion operation at L5/S1. In these proceedings it is admitted that, in so doing, he breached his contract with Mr Espinos and was negligent. After this procedure, Mr Espinos experienced increased pain in his back and bilateral leg pain. He consulted his general practitioner. He was referred back to see Dr Popovic. Dr Popovic advised further surgery. On 17 December 2010, surgery on Mr Espinos' spine was commenced. An infection was found to be present and the surgery did not proceed. Mr Espinos was treated for the infection until late January 2011.
On 2 February 2011, Dr Popovic performed an L5/S1 fusion and also replaced screws at the L4 and L5 level. An 8 mm screw penetrated the nerve canal at the S1 level. In relation to this further surgery, Mr Espinos signed a further consent form which described the procedure as 'revision lumbar fusion'. After this surgery, Mr Espinos suffered further symptoms, including severe neurological pain down his right leg. On 4 February 2011, a CT scan was performed. This scan showed the misplacement of two of the screws used in the surgery. One emerged laterally out of the spine, which did not appear to have caused a problem, but another screw penetrated into the spinal canal. This misplacement was not reported by the radiologist. It appears that Dr Popovic did not see this misplacement on the CT scan. Dr Popovic brought in Dr Holthouse, a pain management specialist, who advised a myelogram to attempt to find the origin of Mr Espinos' pain. Dr Popovic did not organise a myelogram, rather he arranged for a nerve root injection into Mr Espinos' spine at L5.
Nine days later, Dr Popovic performed further surgery on Mr Espinos' spine. He removed, replaced and repositioned the screws correctly. Thereafter, Mr Espinos remained in great pain and could not walk unaided.
Some little time after this, Dr Popovic died. The defendant in these proceedings is Dr Popovic's widow and executor.
Mr Espinos sought a second opinion from Mr Miles in March 2011. Together with Dr Holthouse, Mr Miles made attempts to address Mr Espinos' pain. Ultimately, Mr Espinos underwent further surgery in November 2011. Mr Miles and Dr Holthouse operated together, Mr Miles, as neurosurgeon, on the spine and Dr Holthouse implanted a neurostimulator into the spine to address Mr Espinos' pain.
In total, Mr Espinos has undergone eight spinal operations. The consequences of all of this for Mr Espinos have been disastrous.
The action
On 11 October 2013, Mr Espinos issued a writ seeking damages for negligence and breach of contract against Jane Elizabeth Popovic as the executor of Dr Popovic's estate (the defendant). Many of the pleaded facts are uncontroversial, or concerned events after Dr Popovic's involvement. The allegations of breach of duty by Dr Popovic were expressed as follows:
51.1Unnecessarily performed L4/5 decompression during the 10 November 2010 surgery, despite having consented (sic) Mr Espinos to undergo an L5/S1 decompression and interbody fusion/fixation with L4/5 dynamic stabilisation.
51.2Unnecessarily performed L4/5 fusion during the 10 November 2010 surgery, despite having consented Mr Espinos to undergo an L5/S1 decompression and interbody fusion/fixation with L4/5 dynamic stabilisation.
51.3Failed to perform interbody fusion at L5/S1 during the 10 November 2010 surgery.
51.4Failed to adequately stabilise Mr Espinos' spine from L3 to S1 during the 10 November 2010 surgery.
51.5Failed to adequately stabilise Mr Espinos' spine from L3 to S1 during the 2 February 2011 surgery.
51.6During the 2 February 2011 surgery inserted a right S1 pedicle screw that was medially malpositioned and which damaged the right S1 pedicle and right S1 nerve root.
51.7Failed to exclude extrinsic compression of the S1 nerve root as a cause of the new or worse right radicular pain Mr Espinos was experiencing subsequent to the 2 February 2011 surgery until investigation during the 11 February 2011 surgery.
51.8Failed to correct the position of the right S1 pedicle screw during the 2 February 2011 surgery.
51.9Failed to correct the position of the right S1 pedicle screw prior to 11 February 2011 and especially subsequent to the 4 February 2011 lumbar CT scan.
52.Further and in the alternative:
52.1it was an express term of the treatment contract that Dr Popovic would perform fusion at L5/S1 during the 10 November 2010 surgery ('the express term').
52.2Dr Popovic did not perform lumbar fusion at L5/S1 during the 10 November 2010 surgery.
52.3The failure by Dr Popovic to perform lumbar fusion at L5/S1 during the 10 November 2010 surgery comprised a breach of the express term and a breach of the treatment contract.
The particulars of injury were given as:
53.1Damage to right S1 nerve and right S1 pedicle.
53.2Acceleration of degenerative back condition due to unnecessary L4/5 decompression and unnecessary fusion performed on 10 November 2010, which was performed without Mr Espinos' consent and the 2 February 2011 right S1 screw placement.
53.3Psychological injury.
The defendant admitted unnecessarily performing a decompression and fusion of the L4/5 level of Mr Espinos' spine, failing to fuse L5/S1 and failing to stabilise the spine between L3 and S1, on 10 November 2010, as pleaded in par 51.1 to 51.4 of the statement of claim.
The defendant admitted this breached his duty to exercise reasonable care in giving advice and treatment, in relation to Mr Espinos' back condition, as presented to him on 18 October 2010.
The defendant denied that Mr Espinos suffered any damage to the S1 nerve root during surgery on 2 February 2011 but pleaded that, if it had occurred, it was no breach of duty because incorrect positioning of screws was an accepted complication of such surgery. It was admitted that the position of the S1 pedicle screw was not altered until 11 February 2011, but denied that was a breach of the duty of care. Other allegations in the particulars were the subject of a general denial.
The defendant admitted the terms of, and the breach of, the contract pleaded.
The particulars of injury were not admitted, or alternatively, it was denied that they were caused by any breach of the defendant's duty of care. The defendant went on to plead that any injuries and disabilities were the result of a grader accident on 30 October 2009, or that Mr Espinos would have suffered some, or all, by reason of his history of back problems or other health problems.
There is a dispute, on the pleadings, about what Dr Popovic told Mr Espinos on 18 January 2011, prior to the third surgery. The consent forms describes the procedure as 'revision lumbar fusion'.
Although the misplacement of the screw, the breach of the pedicle and encroachment into the right S1 nerve canal was admitted at trial, damage from this was denied. The defence asserted that Dr Popovic was entitled to rely on the radiology report after the third surgery.
At the start of the trial and again after the close of Mr Espinos' case counsel for the defendant sought leave to amend the defence. The purpose was to plead reliance upon s 5PB(1) and s 5P of the Civil Liability Act 2002 (WA) (CLA). I refused both applications for reasons given at the time (ts 75 – 78, 697 – 698).
The defendant admits that, as a result of the admitted breach of duties in relation to the first surgery, he is liable for the costs of the second and third surgeries. The quantum of further surgical costs is agreed, but liability for those costs after the third surgery is denied. In addition, the defendant says that the costs of the first surgery are not recoverable.
Chronology
A brief chronology of significant dates is set out below for reference.
Date
Description
30/10/1955
Mr Espinos born.
~ 1973
Commenced Espinos Sand Supplies ('ESS').
~ 1988
ESS moved to Geraldton.
~ July '01
Left shoulder acromioplasty.
~ March '02
Left knee medial meniscectomy.
10/06/2007
Marriage to Sue Espinos.
Sep '09
ESS restructured as partnership between Mr Espinos and B J Espinos Pty Ltd ('BJE').
30/10/2009
Grader incident.
02/11/09
Attendance on Dr Buckley.
29/01/2010
Sale of landfill and weighbridge operation.
19/05/2010
Reviewed by Mr McCloskey, orthopaedic surgeon.
06/ 2010
Facet joint injection by Dr Kent.
18/10/2010
Initial consultation with Mr Popovic.
10/11/2010
First operation by Mr Popovic. No L5/S1 fusion. L4/L5 fusion.
23/11/11
Consult Mr Popovic.
09/12/2010
First review by Dr Vasey, general practitioner.
13/12/2010
Review by Mr Popovic.
17/12/10
Second operation by Mr Popovic. Infection found.
02/02/2011
Third operation by Mr Popovic. Right S1 screw medially misplaced.
07/02/11
Initial attendance upon Mr Holthouse, neurosurgeon and pain specialist.
08/02/11
L5 nerve root sleeve injection.
11/02/2011
Fourth operation by Mr Popovic. S1 screw removed and repositioned, inter alia.
11/03/11
Initial consultation with Mr Miles, neurosurgeon. Scans ordered.
21/03/2011
Review by Mr Miles. Diagnosis of nerve injury.
26/05/2011
Review by Mr Miles.
July 2011
Attendance on Mr Holthouse.
02/09/2011
Unsuccessful attempt by Mr Holthouse to insert leads for epidural stimulator.
23/09/2011
Review by Mr Miles. Further spinal surgery recommended.
24/09/2011
Temporary return to Geraldton.
20/11/2011
ESS closed.
22/11/2011
Joint operation by Mr Miles and Mr Holthouse.
Spinal surgery and insertion of epidural stimulator.
14/04/15
Assessment by Ms Williams, occupational therapist.
10/05/2016
Attendance on Mr Holthouse with increasing back pain. Reprogramming of stimulator.
15/06/2016
Spinal injections by Mr Holthouse.
01/08/2016
Attendance on Mr Miles.
21/10/2016
Insertion of replacement epidural stimulator by Mr Holthouse.
Issues
Liability for the consequences of the first surgery is not in issue. What those consequences were and are, and the extent of them, is a significant issue.
It is common ground that there is no liability for the infection discovered at the second surgery.
Liability for the misplacement of the right S1 pedicle screw in the third surgery is at the heart of this trial. Did Dr Popovic breach his duty to Mr Espinos in:
1.placing the right S1 pedicle screw where he did; and
2.failing to recognise (and exclude) nerve compression as a possible cause of Mr Espinos' pain after the third surgery, and failing to act to ameliorate it, sooner than he did.
Further issues are whether the screw misplacement caused injury to the nerve, resulting in pain. The defendant argues that Mr Espinos has the same pain as he suffered in the right leg after the first surgery.
The defendant also puts in issue whether the delay in replacing the screw caused further injury and whether any such injury was permanent.
An acceleration of Mr Espinos' degenerative back condition is pleaded as an injury caused by the first surgery. Thus, the effects of the misplaced S1 pedicle screw from the third surgery becomes an issue to be evaluated in context of natural degeneration in a spine such as that of Mr Espinos.
A number of discrete further issues arise in the proper assessment of damages which it is more appropriate to detail when considering that assessment.
However, there are medical issues which condition the basis on which damages are assessed:
1.What was the prognosis for Mr Espinos' back before he met Dr Popovic?
2.What was the prognosis for Mr Espinos' back had the first fusion been competently executed at the intended level, and specifically would Mr Espinos have returned to work and with what degree of residual incapacity?
3.What is Mr Espinos' current level of disability?
The trial
Mr Espinos
Mr Espinos was born on 30 October 1955. At the time of trial he was living in the northern suburbs of Perth with his second wife, Sue. He had four children by his first marriage. He had married Sue Espinos on 10 June 2007. Between them they have 11 grandchildren but no mutual children. Mr Espinos left school early, which he described as 'doing a couple of days of high school'. He wanted to go out to work with his brothers. He was about 14 when he left school. His work has always involved trucks, driving and machine maintenance, a business that his father had at the time. Mr Espinos does not read and write well. He started his own business in carting, when he was about 18, in Northampton. In 1988, he moved his business to Geraldton, at the suggestion of a local builder. His business was earthmoving, sand supplies and carting. In Geraldton, he bought five acres of land, where he was able to stockpile materials and keep machinery.
Essentially, he sourced sand locally using his knowledge of the countryside and his relationships with the local farmers. He obtained the necessary licences, extracted the sand, brought it to his depot, and then graded it for various uses. His business grew. He employed his brothers and other drivers. He supplied sand to builders for concrete and mortar and also for the racecourse and other uses. In addition to the sand supply business, he carted grain for the local farmers, seasonally. He knew, it seems, precisely what was required by builders developing Geraldton town. Although he was barely literate, he could read plans and calculate the amount of sand required for their execution and organise it.
In later years, Espinos Sand Supplies procured a contract with the City of Geraldton and Greenough to run the city weighbridge at a landfill site, to organise the rubbish, compact it and make it safe. In addition to that, Espinos Sand Supplies mulched waste materials and for that purpose bought a specialised machine. They also recycled materials. In the business, Mr Espinos was 'hands on'. He could maintain and drive the vehicles and did so. He enjoyed machinery. He was also the contact with the farmers and the builders, organising their jobs, maintaining and building those relationships.
At the weighbridge landfill site, he personally operated the mulching machine, in addition to his duties in the sand business. He said that he would work very long days. His wife, Sue Espinos worked in the office doing the accounts and administrative work. There came a time when his father became ill and had to be taken to Perth for residential care. At this point Mr Espinos bought an aeroplane, obtained a licence to fly it and arranged to fly down with his wife at the weekends in order to see his father and catch up with his grandchildren. He obtained special dispensation to get a pilot's licence without doing a written test. He acquired land at Gingin, built an airstrip and a hanger there, and flew from Geraldton to Gingin and then drove into Perth. At that point, he and his wife bought property in Jindalee where they now live. A house was built on the land and he did all the work outside the house once it was completed.
He described that it became difficult at times getting reliable operators to work at weekends, when he was trying to get away to Perth. The business was approached by a large refuse company with a view to acquiring the landfill, weighbridge and mulching operation. This was first in 2008. There were various negotiations which ultimately resulted in a contract to sell that part of their business to a company, Veolia, which contract was completed in January 2010.
On 30 October 2009, Mr Espinos was involved in an incident where a grader rolled over. He was driving the grader on a levee bank, when the grader slipped. He was unable to recover it. When it became apparent it was going to roll over, he jumped out of the grader cab from the upside door and landed heavily on his backside. The grader rolled and landed on its roof. As a result of his fall, he sustained a serious bruise on his backside. On the following Monday he visited his general practitioner, Dr Buckley. He said that he thought he may have also visited a chiropractor. He continued to work notwithstanding the incident.
He continued to work full‑time in his business into 2010 without interruption. In 2010, after the completion of the sale to Veolia, the business comprised only the carting and sand supply operation. He and his wife worked full‑time together in the business.
Mr Espinos had had surgery on his left knee in 2002 and left shoulder in 2001, both performed by orthopaedic surgeon, Mr Goonatillake.
In 2010, he had developed pain in his back and down the back of his left leg. He described it as being 'in his hamstring'. His wife described it as being sciatica. He spoke to his general practitioner who referred Mr Espinos back to Mr Goonatillake. As a result of his consultations with Mr Goonatillake, he was referred to Mr McCloskey, who referred him to Mr Kent for a localised facet joint injection for his then symptoms. Mr Espinos did not think that the injection assisted him at that time. He was still working. At about that time he heard from a friend about Dr Popovic. He asked for a referral to go and see Dr Popovic.
Mr Espinos' evidence detailing all the operations of his business, and his work with the machinery and vehicles and the maintenance of it clearly established that he was interested and enthusiastic about all aspects of his work. He had worked hard all his life, from the time he left school at 14. He was skilled at what he did. He was an intelligent man who had not permitted his limited education to stand in the way of a rewarding, full life, acquiring skills and assets, including learning to fly. The arrangements that he made to fly down and to spend weekends in Perth when his father was aging illustrate his practicality and commitment to family. His brothers worked in his business, two of whom are now deceased, but his remaining brother, he said, was still working at the age of 75.
He impressed as a man who took both prior surgeries, for his shoulder and knee difficulties, in his stride and continued to work. The letters from Dr Goonatillake show that the knee continued to cause problems, nevertheless. Mr Espinos did not make a fuss about the accident with the grader, which clearly would have been quite dramatic. He did, on the evidence however, suffer a heavy fall at this time and I find was suffering from increasing back or sciatic problems in the early part of 2010. This is evidenced by the fact that he was referred again to see Mr Goonatillake, who described his back as the 'more pressing symptom' in April 2010. The conservative approach taken by Mr McCloskey and Mr Kent did not satisfy Mr Espinos, hence his referral to Mr Popovic. I am satisfied Mr Espinos had, by mid‑2010, persistent back‑originated pain problems.
Together with his wife, Mr Espinos first saw Mr Popovic on 18 October 2010 in Perth. Mr Espinos was clearly impressed by Mr Popovic. He understood that he would be 80% better if he were to have surgery. He agreed to undergo surgery. After the first procedure on 10 November 2010, he described himself: 'I wasn't too good at all. I was in a lot of pain and they kept giving me more tablets. In the end I didn't know where I was'. After some days in hospital, he went home to the house in Jindalee (Perth), and described himself as being 'in terrible pain, unable to move anywhere in a hurry'. On one occasion an ambulance was called to take him to hospital, but his wife rang Mr Popovic who suggested that she come and get him some further medication, which she did.
Mr Espinos next saw Mr Popovic on 23 November when he said he was in a wheelchair and could not walk. He described having a line of chairs for the purpose of support so he could get to the bathroom at home. Mr Espinos' recollection was that Mr Popovic told him that the surgery was 'all good'. Mr Espinos' condition did not improve through November into December of that year. He saw Mr Popovic again in December and then came to further surgery on 17 December. He has very little recollection in relation to those consultations. Mr Espinos was vague about what Mr Popovic was going to do, but came away afterwards with the understanding that the surgeon had found an infection at that second surgery. He understood that he was being treated by antibiotics intravenously in the hospital and then subsequently at home until he saw Dr Popovic on or about 18 January 2011. He gave no evidence of what he was told on that date.
As a witness, Mr Espinos was idiomatic in his expression, literal minded and forthright. As a historian, his recollection of the period of time after spinal surgery and continuing to trial had clearly been impaired by the medications that he had required and used at various periods and was still prescribed at the time of trial.
After the third surgery, he described being in terrible pain. He said that he had remarked upon it to his wife in terms 'they must have left something in there because I can feel like they have left something' to which his wife's response was 'don't be so stupid'. However, Mr Espinos' description was that it was 'driving into his legs or hip' and that he did not know what day it was. He accepted that he subsequently had various scans, but as to the detail said he 'would only be guessing'. His wife was present at all consultations with Dr Popovic and present when he was taken, or took him, to various rooms for procedures. He recalled that his wife looked at the reports from the scans after the third surgery. He spoke to Dr Holthouse, and recalled having a further injection. He was very vague in his recollection of the fourth operation conducted by Mr Popovic, but remembers being discharged and having a wheelchair because he was in terrible pain.
He recalled the last time he saw Mr Popovic on 23 February 2011. He remembered being taken up in a wheelchair, and into Mr Popovic's office. He remembers telling Mr Popovic that he was worse and that he could not walk. He recalled that Dr Popovic said to him 'I buggered the first one, the first operation and I haven't been able to fix it.' Whilst for the purposes of these reasons, I am referring to the dates of the consultation, Mr Espinos in evidence was not able to confirm the dates of his medical consultations but accepted them when given to him.
He gave evidence of an initial attempt to provide him with a nerve stimulator, as a form of pain relief, in September 2011 which was unsuccessful. He was later advised by Mr Miles that he needed further surgery. He first saw Mr Miles in March 2011. He subsequently had a joint operation by Mr Miles and Dr Holthouse. In relation to that operation, he spoke of the nerve stimulator as a machine that sends an electric shock up his spinal cord. He said that he wears a belt which 'contains a battery charger' and that the machine helps him with the pain. He said it was helpful but 'it did his head in a bit'. He said he had sold his aeroplane because he did not want to hurt anybody. He did not consider that he could remember things well enough to fly. He uses the stimulator constantly except when he is driving. The stimulator and battery are worn subcutaneously. He attends Dr Holthouse for adjustments to the stimulator.
He said he attended and continues to attend his general practitioner, Dr Vasey for pain relief patches and other medications. He confirmed that he has undergone physiotherapy, hydrotherapy, consults a chiropractor, has orthotics, sees a podiatrist and takes a lot of medication. His wife organises his medications for him and ensures that he takes the correct medication. He considered it would be dangerous for him to organise it himself. He has a machine for sleep apnoea.
Mr Espinos said that the business in Geraldton was not doing well whilst he was away receiving treatment because he could not attend to matters. In about July 2011, he and his wife came to the conclusion that they needed to do something about it. He recalled that one of the doctors said that he would not work again. As a result he and his wife went up to Geraldton in July of 2011 and organised the sale of the machinery of the business. He said that it was not able to be sold as a 'going concern' and he was not in a condition to be able to do the work.
He described his present daily routine. He gets up in the morning, has some breakfast and then by about lunchtime, he says, if he tries to do anything much he is pretty tired. He has lunch and then he can fall asleep very easily. If he has an appointment his wife will drive him to those appointments. His wife prepares his meals and takes care of the home. He said that he did try to help her but he was not 'much chop'. Prior to his surgery, he said that they helped each other. He had engaged in the heavier maintenance duties around the house and that he built things at the new house in Perth. He would clean gutters and do any other major works outside. He maintained his own vehicle and enjoyed driving his trucks. He had built a recreational vehicle for them both to travel around Australia and he enjoyed flying his plane.
Prior to his surgery, his relationship with his wife had been good. They were happy to work together every day, and they had a good physical relationship. The latter does not continue. He described falling asleep anywhere, he described the pain in his legs if he walked too much and that he could not 'keep up with grandma let alone his wife'. He said he could walk to the park but not to the shops, about a 10 minute walk. He drives short distances, for example to get himself a haircut, but otherwise his wife does the driving. He does not drive far because of the tiredness. He described his inability to play with his grandchildren as previously and that the children do not understand why he is always falling asleep. He described how his social life had suffered, how his concentration was no good, and how they could no longer take holidays as they previously had to Tamworth, Broome, New Zealand.
In cross‑examination, he confirmed that he still owned the 5 acres of land in Geraldton but said that he could not sell it due to the depressed market. He said that it had been rented out for a few years. He said that he had tried to sell the business as a going concern, but that was unsuccessful and therefore they sold the equipment, because 'something had to be done'. He said at the time they had six or eight drivers and plant operators. He was cross‑examined, to no great purpose, in relation to the structure of the business, the purchasing of various equipment, and confirmed that he had still serviced some machines himself prior to these events. He confirmed that he cut his hours back when he 'got on top of the landfill' and after it was sold. He confirmed he started work at 6.00 am and did what had to be done until it was finished each day. He said that if everything was going right he would take a Friday off and go to Perth in the aeroplane.
He accepted that prior to the grader accident he had had some pain in what he described as 'his hamstrings' and he would go to the physiotherapist. He said it never stopped him from working. When it came to what he had said to particular doctors on particular occasions he was not able to assist counsel greatly. He had very little reliable recollection of what was said. He accepted that he had had some pain in his left leg which he described as 'I used to get a bit of, like sciatica, it was' before he met Dr Popovic. He demonstrated it as being up and down the back of his left thigh down to the knee. He was adamant that when he saw Dr Popovic he was still working.
He agreed that, in 2010, he had had a doctor 'check out his heart' at the emergency department at Geraldton Hospital. His evidence, under cross‑examination, was that was nothing to do with his heart, but the heat. He said that he had been out in the sun too long and the heat had 'got a hold of him' and he went and had it checked out. He said he had nothing wrong with his heart. He agreed that he was referred to a Dr Tan, a cardiologist and that he continues to see her. I accept her diagnosis of angina rather than Mr Espinos' account of the problems. He agreed he also suffers from sleep apnoea. He categorically and repeatedly denied that the sale of the mulching and landfill business had anything to do with his health. He said that he worked for a year after the grader accident.
Cross‑examination of Mr Espinos established that he signed a document on 5 December 2010 (exhibit H200) - a claim form of AXA, an insurance company. Save for acknowledging his signature, Mr Espinos provided no further cogent evidence about that document. He was unable to recall either the circumstances of it, the signing of it or the content of it. He did not complete the form. He referred counsel to his wife in that regard. He did confirm that he never received a payout from the insurance company.
Mr Espinos accepted that after the grader accident he had pain in his back and leg, but said that he carried on. He denied that he took any Panadol or medications of that sort. He accepted that he had pain in relation to his left knee, but said that he carried on. He went to Dr Goonatillake and accepted that he told him about his pain in his left leg. When prompted, he accepted that he had seen a further doctor about his knee more recently, but could not remember what he was told, and only recalled the consultation by reference to the location of the practice - near the cemetery. He confirmed that he had not had a knee replacement. When asked whether he was going to have one he replied that he was 'still walking around' on it.
A formal concession was made by Mr Espinos' counsel to the effect that details in medical reports as to complaints of symptoms, treatments discussed or referrals and investigations were as recorded in the treating doctors' reports, save for those by Mr Popovic.
Mr Espinos was firm that he had not intended to retire due to his medical problems prior to his surgery with Mr Popovic.
Mr Espinos was cross‑examined upon video recorded footage taken of him and his wife by surveillance investigators instructed by the defendant. Mr Espinos identified himself and what he was engaged in doing on each of the segments. He was questioned generally about what he was doing and why he was doing it. It was not put to him directly or indirectly in cross‑examination that any particular activity or movement seen in the video material contradicted his evidence as to his disabilities or difficulties in any material respect.
It was obvious that Mr Espinos' memory was impaired and that his concentration was limited throughout his evidence. He could at times be reactive in his responses to counsel. To an extent, I formed the view that he was covering his deficits. He tended to minimise his medical problems, both back and heart, prior to surgery. It was obvious, without any disrespect to Mr Espinos that he could not be relied upon for dates or details, especially after his surgeries. Nevertheless, I considered him to be basically honest in his oral testimony. It was apparent that he was stoic, very dependent upon his wife and yet maintained a sense of humour.
Susan Irene Espinos
Mrs Susan Irene Espinos was an impressive witness. She had a businesslike grasp of the affairs of the Espinos Sand Supplies and dates in relation to both the business and the medical treatment of Mr Espinos. She attended all appointments with her husband relevant to this trial. I accept her as a reliable historian, in conjunction with the written material, in relation to these events.
She confirmed that her husband was not good at reading or writing, meaning although he could read, he could not read a book. She said that if you gave him a piece of paper with a few words on it he would be able to read it, but he was not fluent. She said that he was able to arrange things, speak to the farmers, and that he had people in the office who followed up with the details. She confirmed that she worked in the office and had two girls working with her. She confirmed that in relation to the work he did in the business it was all 'recorded in Mr Espinos' head'.
In relation to the sale of the landfill and mulching business to Veolia, she confirmed that there were negotiations back in 2008 and 2009, leading to the contract for sale to Veolia, which ultimately was completed. She saw Mr Espinos in the evening after work on the day that he had the grader accident. She was aware of it because she had heard that there had been an accident over the two‑way radio system. She observed he had a large bruise on his bottom and she took a photograph of it. She made him an appointment to attend the doctor on the following Monday. She went with him to that appointment. She said that the doctor did not refer Mr Espinos for any X‑rays or imaging. She said that after that doctor's appointment Mr Espinos went straight to work. An accident report form was completed for the City of Geraldton in relation to the accident.
Subsequently, a claim form was completed for the insurance policy that her husband held with AXA. She wrote part of the accident report form. Her evidence was that the insurance claim form came to be completed after it was apparent that her husband was not getting better. Dr Popovic suggested that he might make a claim if he had any work insurance. It related the injury to the grader accident. She said that Dr Popovic completed the doctor's side of the claim form and that she later filled out the rest of the form on her husband's behalf.
The form gives a date of 'ceasing all work' as 24 September 2010. She explained that this was the date that her husband was taken ill 'with his heart racing', and went to the Geraldton Hospital. From there he had been referred to Dr Tan and flew down for tests in Perth. She said that he had returned to Geraldton for a few days after this consultation, before returning to Perth for his first appointment with Dr Popovic. Prior to surgery on 10 November 2010, she and her husband returned to Geraldton to organise their affairs prior to the operation.
She described her husband as being in terrible pain after the operation. She said her husband was discharged on 15 November 2010. He subsequently had a follow up appointment with Dr Popovic, who recommended that her husband do some physiotherapy, which was undertaken at Quinn Physio. She and her husband remained in Perth during this period. It was her observation that her husband was getting progressively worse not better and she described him being unable to walk from the bed to the toilet, without her placing a line of chairs so that he could lean upon them as he moved. She had to physically help him when he showered and help him from the shower back to the bed so that she could dry him. She described him as being in horrendous pain and looking very unwell, to the point that she called an ambulance at one time. On this occasion, she telephoned Dr Popovic before the ambulance took him from the house. She went to obtain further medication for her husband from the Mount Hospital.
She described her husband as being in a wheelchair in order to get from the car to an appointment with Dr Popovic on 23 November 2010. Dr Popovic then organised a bone scan, after which he said he wanted to take her husband back into surgery. It was at this point that Dr Popovic suggested a claim be made, if they had any insurance. After 23 November 2010, they did not return to Geraldton. She said that her husband was in extreme pain and mostly in his bed. She confirmed that the second operation was on 17 December, at which the infection was discovered. She said he was on antibiotics immediately, they grew a culture and intravenous antibiotics were administered. Her husband spent a week in hospital and then was discharged, still receiving intravenous antibiotics and treatment on a daily basis from Silver Chain nursing. Her husband remained on oral antibiotics for a very long time, she said until he came under the care of Mr Miles and Dr Holthouse.
After Christmas 2010, her husband continued to suffer pain and consulted Dr Popovic again. She said he said he could do the second operation at the beginning of February. After surgery on 2 February 2011, her husband was in more pain than he had been before. She said he could not stand and walk because he had horrendous pain down his right leg every time he tried to put pressure on it. She said there was imaging done two days after the operation, after which a packet of images were delivered to her husband's room. They were placed in an envelope in a drawer on the wall. She said she took them out of the packet and looked at them against the window. She said she could clearly see one screw that was poking out into mid‑air. She spoke to Dr Popovic about this when he came in later on. His response was 'don't worry about it, it should be okay'. He then took the images away. She did not see a written report in the envelope.
She said that by 7 February her husband was still in a lot of pain, struggling to get to the toilet. She spoke to the nurse manager. Through the nurse manager and Dr Popovic, Dr Holthouse came to see her husband. She said that Dr Holthouse said that her husband might need a myelogram which would detect if there was any nerve damage. As far as she was aware no myelogram was conducted. Dr Holthouse reorganised some of her husband's pain medication. Then Dr Popovic organised a nerve injection. She said that she thought that the pain eased slightly after the injection but she was not sure because of the other medication Dr Holthouse had arranged as well. To her observation she said she thought he was not in as much pain. At this time, she believed that Dr Holthouse prescribed methadone. She said that before the next surgery, on 11 February, there were further changes to her husband's medication because he was hallucinating.
She took her husband home on 14 February, at which time she observed that he was distressed, he was unable to walk properly and that he had been much better before he had seen Dr Popovic. She drove her husband to an appointment with Dr Popovic on 23 February 2011, when he was able to walk into the surgery with a stick. On this occasion, she recalled that Dr Popovic said he had 'stuffed up the first operation and hadn't been able to get it right since'. This was the last occasion that she saw Mr Popovic.
Her husband saw Mr Miles on 11 March 2011. She attended this appointment. She took with her all the X‑rays that they had. Mr Miles organised further scans, which were conducted and they returned to see him again on 21 March. He recommended that her husband see Dr Holthouse with regard to a nerve stimulator to help control the pain. There was a trial of pain control, with leads attached to her husband's spinal cord, before any internal stimulator was inserted. She believed that was done in September after they saw Mr Miles.
By September they had been told by Mr Miles and Dr Holthouse that it would be very unlikely that her husband would be able to return to his business. He had not been doing any work. She had been doing the accounts which had been emailed down to her and she said that the business had run down significantly, because her husband was not there. She contacted Laurie Graham, who had assisted them in the selling of the landfill business. She told him that they were interested in selling the business. She said that he did some research but it was not successful. There were no purchasers for the business. Accordingly, when they returned to Geraldton, just before the surgery in November 2011, she and her husband sold all the trucks and equipment. What was not sold then, was subsequently sold. After that surgery they returned to live at the house in Jindalee and consult with the local doctor, Dr Vasey.
Mrs Espinos had attended appointments and driven her husband to appointments throughout and compiled a schedule from her diary of all the dates and locations.
She also identified a list of her husband's medications, which she administers.
She said that prior to his first surgery her husband cooked a barbeque at home once or twice a week, and would wash the dishes. She said he used to do the heavy work, cleaning floors, and maintenance tasks. He did the gutters and the gardening, while she washed the clothes. Since the surgery all this has changed completely. She said that her husband did not do anything currently. She did all the cooking, she did the floors, she scrubbed the showers, she said they got somebody in to do the gutters. She said she had a gardener come in and do the garden once, but otherwise she generally she attended to it. She did the shopping, the laundry, the cooking, the meal preparation, the clearing up afterwards. She estimated she spent three or four hours a day engaged in this fashion. She confirmed that after the surgery when he was discharged home from hospital he was not capable of doing anything for himself. She had to help him in the shower, to dry him, to help him dress, she had to help him sit in and out of a chair and help in and out of bed.
When asked about what her husband was reported by Mr Liddell to have said about when he ceased work, she said that her husband 'gets a bit confused'. She confirmed her husband did not cease work until the incident in September 2010 when he attended Geraldton Hospital.
Mrs Espinos had viewed the surveillance video footage taken of her husband. Where the footage showed her husband gardening at their home, she described her husband as weeding after she had done some work fixing sprinkler heads and broken reticulation pipe. She said that after he spent 40 or 50 minutes in the garden, he went inside, sat in his recliner chair and slept for the rest of the day.
She described life prior to Mr Espinos' surgery as one where she and her husband worked together all day, enjoyed each other's company and got on very well. She described her husband as a spontaneous sort of person, a happy person and said that they had 'a lovely marriage'. She said her husband was no longer the happy person he used to be and that he found it very hard to cope. She was more or less his carer. She said there was no physical intimacy in the way that they used to have.
In cross‑examination Mrs Espinos confirmed that the sale of the mulching and landfill business was nothing to do with her husband's ill health. She said that occasionally he would complain, in 2009, of back pain if he had 'overdone it', for example if the mulcher had jammed and he had to climb inside and clear it out. She said he would complain that his back hurt but that it was 'not an ongoing problem'.
She accompanied her husband to see Mr Goonatillake and confirmed that, in April 2010, he had back pain and some left leg pain. She described it as a 'sciatica type' pain that used to run down his leg and it was 'starting to worry him'. She confirmed the further consultations with Dr McCloskey and Mr Kent. She explained that the date of 24 September 2010, which she had written on the claim form for AXA, was the date that his heart was racing and he went to the Geraldton Hospital. He did not work on the machines after that date. He only did some organising. Subsequently, he was referred to Dr Tan and underwent a stress and other tests.
The policy with AXA was trauma insurance policy. She elaborated that Dr Popovic had asked about insurance and he had organised for his office to print out the form in order that he could complete his section. She completed her section after that, not until 5 December. She confirmed the writing on the document was hers and that she followed Dr Popovic's description as to the injury. She said she thought it was correct to say he did 100% manual work. She said that she wrote in the form that there had been a drop in the amount of work that could be undertaken, because her husband was the person that organised all the contracts and the work. He was not in Geraldton to keep things 'ticking along' as they normally did. She explained that his brother was in charge of the business at that time but had 'unfortunately never run a business'. She said people wanted to deal with her husband directly. She was in daily contact from Perth to Geraldton. She confirmed that the claim was rejected.
She subsequently wrote to the financial ombudsman. When it was put to her that she suggested in the letter to the ombudsman that the claim related to the grader accident she responded that Dr Popovic had said to claim on the trauma policy and that there had been a trauma but 'beyond that she did not know'.
She described Dr Popovic as drawing a picture at their first consultation of the spine and that he told them that her husband would be 80% better. She was unclear about levels of the spine in relation to the fusion. She confirmed that her husband did not resume work after the first operation. They determined to sell the business by July of 2011 because the business was failing, she was paying the bills and they were more than the income. She said there was no way of replacing her husband in the business, because he had built it over 35 years and everybody knew him.
She confirmed that after the first operation her husband had pain in both legs and across the hips. She said that before the operation it was just left leg pain. She kept notes in her diary in order to be able to tell doctors what the pains were. She was asked about the last appointment with Dr Popovic and she agreed that he had given her his mobile number and asked her to call him when she came to Perth. This was not something Dr Popovic had done before.
Mrs Espinos was cross‑examined extensively, but none of her evidence was factually challenged. I accept Mrs Espinos as an honest and straightforward witness, who readily accepted the limits of her knowledge and recollection. She had clearly compiled contemporaneous records, which were agreed by counsel in relation to doctors' visits and allied health consultations. I accept Mrs Espinos' account of the manner in which the insurance claim to AXA came to be completed. Its contents do not conflict with the evidence of the effects of Dr Popovic's treatment. It is obvious Mr Espinos had a back or 'sciatic' problem which concerned him, otherwise he would not have sought treatment from Dr Popovic. The fact that a trauma claim was made does not lead to a conclusion that all subsequent spinal symptoms were due to the grader accident.
I accept her chronology as to the time at which her husband ceased to work in his business. None of the matters raised in cross‑examination caused me to have any difficulty with her reliability or credibility as a witness.
Medical evidence
Andrew Nicholas Miles
Mr Miles was called to give evidence on behalf of Mr Espinos. Mr Miles is a neurosurgeon in practice in Western Australia, a fellow of the Royal Australian College of Surgeons and a specialist in complex spinal surgery. Mr Miles explained that 'complex spinal surgery' is that which involves the implantation of metal hardware, screws, rods and the like into the spine. Most neurosurgeons do not undertake the type of spinal surgery where instrumentation is implanted in the spine. It requires a post‑fellowship level of training.
Mr Miles treated Mr Espinos from March 2011. He was initially consulted for a second opinion. When he first saw Mr Espinos he was not in possession of all the materials relevant to Mr Espinos' treatment up to that point. When he first examined Mr Espinos he did not appreciate that there had already been several episodes of spinal surgery. He had been supplied only with a limited referral letter from Mr Espinos' general practitioner and he took a history from Mr Espinos himself. Subsequently, Mr Miles reviewed all the imaging and commissioned further scans.
Mr Miles attended to give evidence with a model of the lumbar spine containing examples of the screws and hardware that were implanted in a spinal fusion. The model illustrated the five lumbar vertebrae and the sacrum. Mr Miles explained the interventions that were relevant to Mr Espinos. He explained in detail precisely what a neurosurgeon does in performing a spinal fusion. He outlined that the problem with fusing a spine at any level is that the rest of the spine is then required to move without the facility of the fused levels. In effect if there is a two level fusion of the lumbar spine, the remaining three vertebrae are required to do the job of the five in terms of turning, twisting or bending. This is a recognised problem, a long term consequence of spinal surgery which may mean that the remaining mobile segments wear out faster than average.
At the time Mr Miles met him, Mr Espinos had already undergone four spinal surgeries, initially on 10 November 2010, 23 December 2010 when the infection was discovered, on 2 February 2011 and on 11 February 2011. In his report dated 12 January 2016 directed to Mr Espinos' solicitors, Mr Miles set out the history of Mr Espinos' treatment. He did this having reviewed all the operative reports as well as pre‑operative and post‑operative imaging. On 10 November 2010, Dr Popovic performed an L4/5 decompression and interbody fusion/fixation combined with L3/4 dynamic stabilisation of Mr Espinos' spine. This was not the procedure which Mr Espinos had consented to in writing prior to surgery. A post‑operative CT scan undertaken on 12 November 2010 confirmed satisfactory positioning of the L3, L4 and L5 pedicle screws bilaterally. Pedicle screws are part of the hardware inserted into a patient's spine during a fusion and they go through the vertebra at the relevant spinal level.
Mr Miles went on to confirm that on 2 February 2011, Dr Popovic could be seen to have revised the surgery of 10 November 2010 and extended the decompression and fusion down a level, to L5/S1. He had replaced the L4 pedicle screws with a larger pair of screws. The L5 pedicle screws were also removed and replaced with larger screws. At the S1 level, new pedicle screws were positioned. Mr Miles referred to the post‑operative lumbar CT scan performed on 4 February 2011 in detail. His evidence was that it demonstrated two significant errors in the screw positioning. Mr Miles had produced for the purposes of his report, and in evidence, a number of copies of the relevant parts of the CT imaging. He demonstrated the positioning of the right L4 pedicle screw and its repositioning at that third operation to leave it on the lateral side of the L4 vertebral body and predominantly not within the bone. In his opinion this malpositioning of the right L4 pedicle screw was unlikely to have had any particular clinical significance.
However, the CT scan also demonstrated what he described as very significant malpositioning of the right S1 pedicle screw. He produced copies of the CT scan showing the positioning of the screw relative to the bony edges of the pedicle and the nerve canal. He pointed out the edges of the bone of the vertebra in relation to the left S1 screw and demonstrated the way in which the left S1 screw was visibly positioned laterally (ie, on the outside) to the left S1 nerve canal. However, in relation to the right S1 pedicle screw, he said that the image demonstrated that the screw unequivocally entered the right S1 nerve canal and occupied a substantial part of that nerve canal. Mr Miles used film copies of the CT scans for the purpose of the display in court of these positionings. Hard copies of the images produced were tendered where on he had drawn lines to identify the anatomical structures and the screws (exhibit B49 ‑ 54). The features which he pointed out where clearly visible.
In his opinion, malpositioning of the right S1 pedicle screw would have been associated with a very significant risk of direct trauma and injury to the right S1 nerve root. He further said that he had measured, using digital instruments available, the extent of entry into the nerve canal. This was 75% of the space normally occupied by the nerve root, and also 6 mm of the screw used. The screw was an 8 mm screw, an example of which was tendered in evidence (exhibit Z). In his report, Mr Miles noted that the mispositioning of this screw was not reported by the radiologist, whereas the mispositioning of the L4 pedicle screw was noted.
Mr Miles explained that the S1 nerve root goes on to be the predominant nerve that creates the sciatic nerve, which runs down the back of the leg. He said that every time you move your leg the nerve is gently pulled in and out of the hole through which it exits the spine. If a nerve were impinged by a screw sitting in the nerve canal, every time the leg moves it would pull on the nerve and rub it against the screw. He said the amount of movement was a couple of millimetres. That this was the origin of the classic straight leg raise test. If a nerve were impinged, then this test resulted in pain down the leg. He said it is a classic sign of a pinched nerve. As the S1 nerve travels down the back of the leg, it supplies the big muscles in the back of the thigh and the calf, the skin on the back of the calf and the sole of the foot and sometimes part of the top of the foot. It terminates in the little toe.
On 2 February 2011, he confirmed that Mr Espinos had an L5/S1 fusion, in addition to his previous L4/5 fusion with dynamic stabilisation to the level above at L3/4. Mr Miles explained that the dynamic stabilisation, brought about by the introduction of further metal scaffolding in the spine, allowed for some, but minimised the movement at that level above the fusion. It was Mr Miles' opinion that the malpositioning of the S1 screw and the description of the right leg pain given to him by Mr Espinos fitted with the compression or irritation of the S1 nerve root. He said that considering the imaging, it was the only and most obvious explanation for the 'new' right‑sided leg pain that had developed, after 2 February 2011.
The CT scan of 4 February 2011 had been organised because of Mr Espinos' complaint of severe right‑sided radicular neuropathic leg pain. Mr Miles opinion was that the CT scan, whilst showing the mispositioning of the right S1 pedicle screw, showed no indication of any problem related to the right L5 nerve root. He noted that Dr Popovic organised an L5 nerve root sleeve injection which was performed on 8 February by Dr Holthouse.
On 11 February 2011, Mr Miles said the record showed that Dr Popovic returned Mr Espinos to theatre for further surgery to 'explore the right L5 nerve'. However, in addition to exploring and decompressing the right L5 nerve, Dr Popovic also removed and repositioned the right S1 pedicle screw. Mr Miles referred to the note of the operation which records 'the original right S1 screw was replaced and repositioned further laterally'.
It was Mr Miles' opinion that if a patient undergoes lumbar fusion and afterwards complains of a new or worse radicular referred leg pain, it is essential to exclude reversible extrinsic compression of nerve roots as soon as possible, after surgery and reverse or correct that compression as soon as possible to reduce the risk of permanent injury to the nerve. He expressed the view that the mispositioning of the S1 pedicle screw in surgery on 2 February 2011 was a major technical error that was not corrected for a week after the CT scan on 4 February 2011.
Mr Miles' further opinion was that Dr Popovic missed two opportunities to correct the malpositioning of the right S1 pedicle screw. Firstly, he said that it was routine surgical practice to palpate the medial (inner) border of all pedicles adjacent to neurological structures (nerve roots) to ensure that the medial (inner) border of the pedicle had not been breached by a screw, thereby potentially causing an injury to an adjacent nerve root. Mr Miles elaborated that spinal surgeons have a set of metal probes which they use to feel the positioning of hardware in the spine. They can also look directly at the position of nerves and structures. The probes are used to feel around corners. If there were something present that should not be, for example, this screw, it could be felt. He described the instrument as being a very fine metal blunt probe with an angle on it. It is about 2 mm in diameter and gives a surgeon feedback around corners where they cannot necessarily see.
His evidence was that if a surgeon had palpated the edge of the bone on the inside of the canal in this case, the screw would have been felt. He said it would be very hard not to notice that extent of screw in the spinal canal. When challenged in cross‑examination on this practice, his response was that every surgeon he had trained with did it, and that he had operated with Dr Popovic and knew that he did it. Further he said:
And again, I suppose with – with both of those things they're both things done after you've put the screw in. It's quite possible, isn't it, that you put the screw in and cause damage then? --- Yes, but see the – the – the way we put them in is we have a standard entry point that we – which is more or less text book. The entry point for a pedicle screw is this bone here, exactly the midpoint. It's stock standard. Every surgeon who does this procedure knows that. That is not the hard part. The hard part is knowing whether you put it this way, this way, this way or this way so it's your angles. And the way we get the angles is by putting this probe in and having a feel and I put – I put the probe in there and I've got my – my instrument there and I'm – I'm feeling where the inner border of the bone is and I'm creating a 3D image in my mind of – of what angle I need to put this screw in to avoid going into the spinal cord. So, you know, we – we palpate before we put the screw in as well. That's how we get our angles.
I have considered the applicability of an allowance for the employment of a part‑time driver, at $24,000 per annum. Save for the year ending June 2011, the loss of profit would still exceed the cap if such a deduction were made. Accordingly, no adjustments are required for this, in practical terms.
The combined salary and profit losses exceed the cap significantly, save for the first year, 2011. The amount by which the losses exceed a cap are greater than the 13% discount rate Mr Posma applied to future profit losses, whether applied before or after a deduction for a part‑time driver, except in the year ending 2011. Only one third of that year is included in the loss calculations and that period would have been transitional in any event. Given the existing number of employees, I do not propose to make any deduction in that period.
Future losses
I calculate future losses to the age of 70, for the reasons that I have already indicated. From 10 August 2018, until retirement at 70, (30 October 2025) is 7.27 years. The 6% discount multiplier for 7 years is 300 and I adopt this figure:
Annual loss $190,738 = $3,660 per week
Future discounted loss: $3,761 x 300 = $1,097,877
I propose to make a further deduction for contingencies in relation to these future losses for considerations personal to Mr Espinos, such as other illness or injury. These are general contingencies, which would apply to the notional Mr Espinos who had a successful fusion and returned to work as he hoped to do. I take into consideration the stability and treatment of his other medical conditions. Nevertheless it is always possible that a working life may be curtailed by other unforeseen eventualities. I propose to deduct a 10% from the future loss of $1,128,300 = $1,015,470.
General damages
Mr Espinos is entitled to be compensated for his financial losses, his prospective future financial losses and other costs and the pain, suffering, inconvenience and loss of enjoyment of life that he has suffered. Damages for non‑pecuniary loss are governed by s 9 of the CLA. General damages are not capped under the CLA, but they are subject to restriction at the lower levels. Currently, the restrictions apply up to $82,000, after which no deductions are stipulated.
Considering my findings in relation to the losses that Mr Espinos has suffered, and continues to suffer in terms of his physical restrictions, pain and enjoyment of life and the fact that he has undergone eight surgeries requiring in‑patient treatment with pain, incapacity, significant medication and will require further surgery in future to replace the neurostimulator in 10 years, it is my view that a substantial award in excess of $82,000 is appropriate. It is exceptionally difficult to represent in dollar terms losses such as those suffered in this case. Bearing in mind the practical physical manner in which Mr Espinos has enjoyed his life, which he has now lost together with his preferred activities, as well as the pain and suffering and restriction on his life in my view an award of $220,000 for general damages is required.
Treatment expenses
I have found that the condition that Mr Espinos now suffers and has suffered since February 2011 was caused or contributed to by the negligence of Dr Popovic on 10 November 2010 and 2 February 2011. Therefore, the costs of his surgical treatment, both neurosurgical and by way of pain relief by Dr Holthouse are all recoverable.
There are further costs by way of medical treatment and allied health support which have been incurred by Mr Espinos over this period. These costs were set out in a schedule at the end of the trial, annexed to counsel's closing submissions. They total $260,602.50. The defendant conceded that all past treatment expenses had been incurred. The issue remained only the expenses for which Mr Espinos was to be compensated, beyond the costs of the second and third surgery. Due to my findings set out above, the quantum is as contained in sch 11 attached to the closing submissions of counsel for the plaintiff, which is the whole of the surgical expenses. Schedule 12 contains the full allied health costs of $15,388.46, none of the quantum of which was disputed.
Mr Espinos will require future medical treatment including the costs of medical practitioner reviews, the replacement of the battery in his neuro‑modulation machine, pain medications, allied health therapy, physiotherapy, hydrotherapy, acupuncture and the like and the associated travel. Dr Holthouse's evidence was that his newer current neuro‑modulation machine required to be replaced at 10 yearly intervals.
It is agreed that Mr Espinos' life expectancy is 86.4 years. He will be 63 on 30 October 2018. The multiplier on the 6% table for discounting future funds to be received now, is 697. Treatment costs for the replacement of the neuro‑stimulator battery are $40,000 each. As the current model was implanted in October 2016, its replacement will not be required for eight years and thereafter the next replacement in 18 years. The accelerated receipt of the costs of this future treatment required them to be reduced by appropriate amounts, using the 6% table, to produce a present value. The first replacement in eight years is reduced by 0.6274 giving a sum of $25,096 and the second replacement by 0.3503 giving a cost of $14,012. The total costs therefore for the replacement of the battery of the neuro‑stimulator is $39,108.
The cost of a general practitioner visit is $37.05, Dr Vasey estimated a monthly review giving a yearly cost of $444.60. The cost of a visit to the pain management neurosurgeon is $400 and one visit per year is anticipated. Physiotherapy with its cost of approximately $95 each. Thirty such appointments in my view are a reasonable estimate of requirement for Mr Espinos considering his past attendances. This results in an annual cost of $2,850.
The evidence was that Mr Espinos required to see a podiatrist every six weeks for expert attendance to his feet and I accept this as a reasonable requirement. The annual cost would therefore be $520 per annum. In relation to his medications, the figures extracted from his past usage and prescriptions give a monthly cost of $90 for his pain medications only. Therefore the annual cost would be $1,080. Records of past travel to various appointments indicate the cost of travel to be approximately $150 per year. I accept Ms Williams' recommendation that some occupational therapy assistance would be valuable in the future for Mr Espinos and her recommendation of four hours a year is modest. The charge for four hours at $165 an hour plus two hours travelling at $145 per hour is $950 a year. Excluding the cost of replacement of the neurostimulator battery, the annual requirement for medical and other health related services is $6,394. This equates to $124 a week. Applying the multiplier 697 for Mr Espinos' life expectancy gives a total of $86,428.
Total future medical treatment expenses are therefore $125,536.
I award a further $7,936 for the expenses which I deduce will have been actually incurred since the end of the trial.
Counsel in closing submissions made calculations of the care and assistance provided to Mr Espinos since his first surgery in accordance with the evidence given by Mrs Espinos. Whilst Mr Espinos was in hospital, Mrs Espinos said that she gave assistance for a total of about 36 days and a daily allowance has been claimed at the rate of $175 per day pursuant to the principles in Wilson v McLeay (1961) 106 CLR 523. Further, Mrs Espinos provided gratuitous services following discharge from hospital and continuing. I accept that Mr Espinos had need of such services particularly immediately post‑operatively, but continuing due to the extent of his physical restrictions. There is no argument but that such services are compensable. Ms Williams identified and detailed Mr Espinos' limitations, and on her evidence, Mr Espinos would require 49 hours of assistance per week. This level of assistance exceeds the level allowed by s 12 of the CLA.
Section 12 of the CLA limits the damages for past gratuitous care to a maximum of 40 hours per week. The rate at which such services are to be calculated is to be taken from the average weekly earnings figures published by the Australian Bureau of Statistics:
Period Start
Earnings; Persons; Total earnings; Western Australia*
1/40 of earnings
01-May-10
1,060.00
26.50
01-Nov-10
1,072.70
26.82
01-May-11
1,138.90
28.47
01-Nov-11
1,192.90
29.82
01-May-12
1,204.50
30.11
01-Nov-12
1,244.00
31.10
01-May-13
1,297.90
32.45
01-Nov-13
1,296.30
32.41
01-May-14
1,314.30
32.86
01-Nov-14
1,346.70
33.67
01-May-15
1,340.00
33.50
01-Nov-15
1,326.80
33.17
01-May-16
1,319.70
32.99
01-Nov-16
1,327.60
33.19
01-May-17
1,333.20
33.30
01-Nov-17
1,332.50
33.21
*Extracted from Australian Bureau of Statistics Publication 6320.0, Table 13E, Ex. D60 (p. 61, last column)
I have no doubt that Mrs Espinos provided at least the assistance she indicated. Set out below are the periods for which the assistance was provided between 10 November 2010 up until 30 June 2018. Counsel in his closing submissions calculated those figures on the basis of two hours per day, whilst Mr Espinos was an in‑patient, then at 40 hours per week in the periods following surgeries. From February and November 2011 at 30 hours per week, and since 1 December 2011 at 25 hours per week.
Period
Start
End
Approximate hours per week
Notes
1
10-Nov-10
15-Nov-10
14.00
Inpatient for first surgery 10 November 2010
2
16-Nov-10
16-Dec-10
40.00
3
17-Dec-10
24-Dec-10
14.00
Inpatient for second surgery 18 November 2010
4
25-Dec-10
31-Dec-10
40.00
5
01-Jan-11
01-Feb-11
40.00
6
02-Feb-11
14-Feb-11
14.00
Inpatient for third and fourth surgery 2 and 11 February 2011
7
15-Feb-11
21-Nov-11
30.00
8
22-Nov-11
30-Nov-11
14.00
Inpatient for surgery performed by Dr Miles and Dr Holthouse
9
since 1/12/11
25.00
I accept those periods as reasonable and accurate and accept the calculations performed by counsel in relation to those periods, with one minor amendment to the rate of wages from 1 May 2017 to 19 May 2017, which results in a total of $273,524.73. In addition I add 64 weeks at 25 hours per week at $33.19 per hour totalling $53,104 as follows:
Period
Start
End
Weeks
Hours per week
Rate*
Total
1
10-Nov-10
15-Nov-10
0.71
14.00
26.82
268.18
2
16-Nov-10
16-Dec-10
4.29
40.00
26.82
4,597.29
3
17-Dec-10
24-Dec-10
1.00
14.00
26.82
375.45
4
25-Dec-10
31-Dec-10
0.86
40.00
26.82
919.46
5
01-Jan-11
01-Feb-11
4.43
40.00
26.82
4,750.53
6
02-Feb-11
14-Feb-11
1.71
14.00
26.82
643.62
7
15-Feb-11
31-Oct-11
36.86
30.00
26.82
29,652.49
7
01-Nov-11
21-Nov-11
2.86
30.00
29.82
2,556.21
8
22-Nov-11
30-Nov-11
1.14
14.00
29.82
477.16
9
01-Dec-11
30-Apr-12
21.57
25.00
29.82
16,082.85
01-May-12
31-Oct-12
26.14
25.00
30.11
19,680.67
01-Nov-12
30-Apr-13
25.71
25.00
31.10
19,992.86
01-May-13
31-Oct-13
26.14
25.00
32.45
21,206.76
01-Nov-13
30-Apr-14
25.71
25.00
32.41
20,833.39
01-May-14
31-Oct-14
26.14
25.00
32.86
21,474.72
01-Nov-14
30-Apr-15
25.71
25.00
33.67
21,643.39
01-May-15
31-Oct-15
26.14
25.00
33.50
21,894.64
01-Nov-15
30-Apr-16
25.86
25.00
33.17
21,442.04
01-May-16
31-Oct-16
26.14
25.00
32.99
21,562.96
01-Nov-16
30-Apr-17
25.71
25.00
33.19
21,336.43
01-May-17
19-May-17
2.57
25.00
33.30
2,139.53
19-May-17
10-Aug-18
64.00
25.00
33.21
53,136.00
Totals
326,666.63
Future care and assistance is claimed at 25 hours per week. This is $1,300 per week for the balance of Mr Espinos' life, approximately 24 years. Applying multiplier 697 results in a total of $906,100.
I accept Ms Williams' evidence that there is a need for modifications to Mr Espinos' bathroom, for safety reasons, to remove the high step into the shower, install suitable handrails and non‑slip tiles. A quotation has been obtained for the costs of such modifications which amounts to $15,846.50. In my view this is not an unreasonable claim. Although it is effectively completely remodelling the bathroom it appears to me that it is essential that the job be done fully and professionally. Ms Williams also recommended a number of aids to assist Mr Espinos at home which I accept as being reasonable to provide some additional independence and to make difficult tasks such as reaching and showering and getting out of the chair easier. I allow $23,170 as calculated by Ms Williams including replacements over Mr Espinos' life expectancy.
Mr Espinos can drive over short distances and can travel in a vehicle over longer distances subject to regular breaks to move around. He cannot drive himself over long distances. A claim is made for travel and transport expenses and assistance and car servicing in the future. Mr Espinos previously attended to his own car servicing. The claim is for four hours per week of assisted travel whether by his wife or a carer or by taxi. It is claimed at the rate of $200. I formed a view that Mr Espinos was able to get out himself without assistance and drive himself over short distances. The evidence did not therefore make out that Mr Espinos needed a carer for the purposes of leaving the house. However, I accept that Mr Espinos will incur the expense of having others service his vehicles and allow $8,000 for that expense, as a reasonable round figure, roughly equivalent to $600 per annum.
In addition, interest is payable upon the past gratuitous assistance at 3% simple @ 7.43 years amounts to $72,814.
Damages summary
| Head of Damage | Amount | Judgment paragraph |
| General damages | $220,000 | 308 |
| Past loss of earning capacity | $1,420,702 | 300 |
| Interest on past loss of earning capacity | $316,674 | 301 |
| Care and assistance, past | $326,666 | 320 |
| Interest on care and assistance | $72,814 | 324 |
| Past medical and hospital expenses including travel | $260,602 | 310 |
| Past allied health and sundry expenses including travel | $15,388 | 310 |
| Expenses since trial | $7,936 | 316 |
| Future medical treatment and related expenses | $125,536 | 312 - 315 |
| Future loss of earning capacity | $1,097,877 | 306 |
| Care and assistance, future | $906,100 | 321 |
| Home modification expenses | $15,846 | 322 |
| Car servicing | $8,000 | 323 |
| Future equipment expenses | $23,170 | 322 |
| Total | $4,817,311 |
Accordingly there will be judgment for Mr Espinos in the sum of $4,817,311 and I will hear counsel as to any consequential orders and costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JM
ASSOCIATE TO JUDGE BRADDOCK8 AUGUST 2018
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