George v Biggs

[2015] NSWDC 11

District Court

New South Wales

Medium Neutral Citation:

George v Biggs [2015] NSWDC 11

Hearing dates:

21, 22, 23, 27, 28, 29, 30, 31 October, 3, 4, 20 & 21 November, 5, 9, 10 & 17 December 2014; close of submissions 2 February 2015

Decision date:

24 February 2015

Jurisdiction:

Civil

Before:

Levy SC DCJ

Decision:

1.Verdict and judgment for the plaintiff in the sum of $330,999.85;

2.The defendants are to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

3.The exhibits may be returned;

4.Liberty to apply on 7 days notice if further or other orders are required.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

TORTS –negligence – medical treatment – whether consent properly obtained for neuro-otologic surgery for removal of a right sided acoustic neuroma of the 8th cranial or vestibular nerve – inadvertent intra-operative division of adjacent right 7th cranial or facial nerve causing right-sided facial paralysis – whether relevant failure to provide plaintiff with adequate information, advice and warning of potential adverse result – non-English speaking patient – role of interpreters in health care setting – interpreters not called to give evidence – whether plaintiff’s facial nerve palsy was relevantly caused by a departure from required standard of care – utility of evidence of usual professional practice absent relevant recollection on the part of the practitioners concerned and absent complete clinical records – resolution of divergent expert opinions where some experts were not called – consideration of defence of alleged materialisation of an inherent risk pursuant to s 5I of the Civil Liability Act 2002 – consideration of whether treatment provided to plaintiff was in accordance with contemporary peer professional practice in Australia pursuant to s 5O of the Civil Liability Act 2002

PRACTICE & PROCEDURE – amendment of pleadings after close of evidence

DAMAGES – assessment of claimed heads of damage

Legislation Cited:

Civil Liability Act 2002, s 5B, s 5D, s 5E, s 5I, s 5O, s 16
Civil Procedure Act 2005, s 56, s 57, s 58, s 64
Evidence Act 1995 (NSW), Dictionary cl 4(2) Pt 2, s 59, s 60, s 63, s 64, s 67, s 97
Evidence Act 1995 (Cwth), s 59
Health Services Act 1997 (NSW), s 62
Supreme Court Rules 1970, Pt 20 r 1(2)
Uniform Civil Procedure Rules 2005, r 24.13, r 31.24, r 31.35, sch 7, cl 5(c)

Cases Cited:

Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538
Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542
Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Bergman v Haertsh [2000] NSWSC 528
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Browne v Dunn (1894) 6 R 67
Bustos v Hair Transplant Pty Ltd & Anor [1997] NSWCA 55
Condos v Clycut Pty Ltd [2009] NSWCA 200
Coote v Kelly [2013] NSWCA 357
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
De La Espriellavelasco v The Queen [2006] WASCA 31
Dobler v Halvorsen [2007] NSWCA 335, (2007) 70 NSWLR 151
Elayoubi v Zipser [2008] NSWCA 335
Elliott v Bickerstaff [1999] NSWCA 453; (1999) 48 NSWLR 214
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
F v R (1983) 33 SASR 189
Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345
Gaio v The Queen (1960) 104 CLR 419
Goddard v Central Coast Health Network [2013] NSWSC 1932
Jackson v Verco, unreported, 17 January 1992, Full Court of the Supreme Court of South Australia
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
K & M Prodanovski Pty Ltd v Calliden Insurance Limited [2012] NSWCA 117
Leotta v Public Transport Commission of NSW: (1976) 9 ALR 437
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Mason v Demasi [2009] NSWCA 227
Ming v Uvanna Pty Ltd t/as North West Immigration Services (1996) 140 ALR 273
Neville v Lam (No 3) [2014] NSWSC 607
Paul v Cooke [2013] NSWCA 311
Penrith City Council v Parks [2004] NSWCA 201
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
R v Attard (1958) 43 Cr App R 90
R v Saraya (1993) 70 A Crim R 515
Reece v Reece [1994] NSWCA 259
Richard Evans & Co Ltd v Astley (1911) AC 674
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262
Shoalhaven City Council v Humphries [2013] NSWCA 390
State of NSW v Fuller-Lyons [2014] NSWCA 424
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Strong v Woolworths Ltd [2012] HCA 5, (2012) 246 CLR 182
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442
Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375
Watson v Foxman (1995) 49 NSWLR 315

Texts Cited:

Australian Law Journal, the Hon PW Young QC, (2014) 88 ALJ, November 2014
Final Report of the Special Commission of Inquiry into Campbelltown and Camden Hospitals; B Walker SC, 30 July 2004, Chapter 10
NSW Health Privacy Manual (Version 1) 2004
Wigmore on Evidence, 4th ed (1985) vol VI

Category:

Principal judgment

Parties:

Sandra George (Plaintiff)
Dr Nigel Biggs (First defendant)
St Vincent’s Hospital Sydney Limited (Second defendant)

Representation:

Counsel:
Mr J Anderson (Plaintiff)
Ms L Young (Defendants)

Solicitors:
Martin Bell & Co (Plaintiff)
TressCox Lawyers (Defendants)

File Number(s):

2012/372183

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1] – [5]
Factual background	[6] – [29]
Case for the plaintiff	[30] – [33]
Case for the defendants	[34] – [39]
Issues	[40] – [45]
Evidence overview on liability issues	[46] – [60]
Evidence ruling on usual professional practice	[61] – [66]
Unavailability of some of Dr Biggs’ notes / correspondence	[67] – [69]
Entries in hospital records	[70] – [74]
Credibility and reliability of testimony	[75] – [190]
Plaintiff	[78] – [132]
Professor Paul Fagan	[133] – [140]
Dr Nigel Biggs	[141] – [167]
Dr Payal Mukherjee	[168] – [178]
Professor Thomas Havas	[179] – [181]
Dr Warwick Stenning	[182] – [184]
Ms Kate Morris	[185] – [187]
Dr Michael Schultz and Professor Vincent Cousins	[188] – [189]
Expert reports on damages	[190]
Amendment to particulars of negligence	[191] – [207]
Facts	[208] – [397]
Plaintiff’s pre-operative health history	[209] – [217]
Consultation with Professor Fagan on 6 March 2009	[218] – [248]
Consultation with Dr Biggs on 3 April 2009	[249] – [265]
Dr Biggs’ usual professional practice	[266] – [281]
Letter advising of operation on 2 November 2009	[282] – [283]
Pre-admission clinic events on 14 October 2009	[284] – [327]
Plaintiff’s presentation for cancelled operation	[328] – [350]
Cancellation of operation on 2 November 2009	[351] – [354]
Re-booked operation on 30 November 2009	[355] – [373]
Potential witnesses not called to give evidence	[374] – [377]
Plaintiff’s post-operative course in hospital	[378] – [388]
Subsequent problems and remedial treatment	[389] – [397]
Issue 1 – Findings: Due incorporation of second defendant	[398] – [401]
Issue 2 – Findings: Whether plaintiff was a public patient	[402] – [415]
Issue 3 – Findings: Relationship of doctors and the hospital	[416] – [448]
Issue 4 – Findings: Duty of care owed by defendants	[449] – [458]
Issue 5 – Findings: Content of duty: Consent	[459] – [475]
Issue 6 – Findings: Content of duty: Intra-operative events	[476] – [480]
Issue 7 – Findings: Conversations through interpreters	[481] – [543]
Issue 8 – Findings: Appropriateness of the surgical option	[544] – [573]
Issue 9 – Findings: Consent issues	[574] – [830]
Consultation on 6 March 2009	[580] – [629]
Consultation on 3 April 2009	[630] – [697]
Pre-admission clinic 14 October 2009	[698] – [779]
Pre-operative admission 30 October 2009	[780] – [826]
Cancelled operation 2 November 2009	[827]
Operation 30 November 2009	[828] – [830]
Issue 10 – Findings: Alleged negligence: Consent	[831] – [917]
Particulars of negligence as to adequacy of consent	[833] – [836]
Legal principles	[837] – [841]
Statutory preconditions: s 5B of the CL Act	[842] – [846]
Whether precautions were required: s 5B(2) of the CL Act	[847] – [851]
What constituted adequate information and advice	[852] – [856]
Validity of consent: 6 March 2009 – Professor Fagan	[857] – [865]
Validity of consent: 3 April 2009 – Dr Biggs	[866] – [875]
Validity of consent: 14 October 2009 – Pre-admission	[876] – [884]
Validity of consent: 30 October 2009 – Dr Mukherjee	[885] – [913]
Validity of consent: Operation dates	[914] – [916]
Conclusion on consent issues	[917]
Issue 11 – Findings: Mechanism of facial nerve injury	[918] – [962]
Issue 12 – Findings: Alleged materialisation of inherent risk	[963] – [996]
Issue 13 – Findings: Alleged intra-operative negligence	[997] – [1063]
Construction to be placed on the operation note	[1018] – [1030]
Appropriateness of imaging investigations	[1031] – [1053]
Whether intra-operative negligence occurred	[1054] – [1061]
Conclusion on alleged intra-operative negligence	[1062] – [1063]
Issue 14 – Findings: Causation	[1064] – [1142]
Issue 15 – Findings: Injuries and disabilities	[1143] – [1171]
Issue 16 – Findings: Assessment of damages	[1172] – [1197]
Life span	[1173]
Mitigation	[1174] – [1176]
Non-economic loss	[1177] – [1183]
Future domestic assistance	[1184] – [1190]
Future out-of-pocket expenses	[1191] – [1195]
Past out-of-pocket expenses	[1196]
Summary of assessment	[1197]
Disposition	[1199]
Costs	[1199]
Orders	[1200]

Nature of case

1. On 30 November 2009, the plaintiff, Sandra George, then aged 63 years, underwent complex intra-cranial neuro-otologic surgery within the base of her skull for the excision of a right-sided non-malignant growth on the sheath of the right 8th cranial nerve, also known as the acoustic nerve. The growth was detected by magnetic resonance imaging, and comprised an acoustic neuroma, also described as a Schwannoma or a tumour. The operation took place at St Vincent’s Hospital in Sydney.

2. The proceedings arise because during the operation there was an iatrogenic “inadvertent division” of the plaintiff’s adjacent right 7th cranial nerve, also known as the facial nerve. That occurrence was also described in the documentary and oral evidence as a transection in which the nerve became severed. This has caused the plaintiff to suffer a right-sided facial palsy in the distribution of that nerve.

3. The plaintiff brings these proceedings claiming damages for personal injury for the alleged negligence of the first defendant, Dr Nigel Biggs, in respect of the claimed inadequate provision of pre-operative information, advice and warnings material to her assessment of risk before she gave her consent to undergo the procedure.

4. The plaintiff also claims that there was negligence on the part of the second defendant, St Vincent’s Hospital Sydney Limited [“St Vincent’s Hospital] in respect of the claimed inadequate provision of pre-operative information, advice and warnings material to her assessment of risk, and in relation to the conduct of the procedure itself.

5. The hearing was estimated to take 4 days. It concluded after 16 non-consecutive hearing days. The structure and length of these reasons reflects the multiple complexities and recurring themes concerning multiple dates within the issues and sub-issues raised by the evidence. The proceedings are governed by the provisions of the Civil Liability Act 2002 [“CL Act”].

Factual background

6. The plaintiff’s acoustic neuroma was located in the cerebro-pontine angle within the right intra-auricular space within the cranium adjacent to the pons and cerebellum. The 8th cranial nerve is also known as the auditory or vestibular nerve. The right 8th cranial nerve was in close anatomical proximity to the right 7th cranial or facial nerve, which tracts from the brain stem to enervate the muscles of the right side of the face.

7. The following photograph which comprises an extract of Exhibit “F”, is of an anatomical model showing something of the general area in question, including the internal auditory canal in which part of the neuroma was located. The translucent end of the blue tipped flag on that exhibit displays the relative location of the internal auditory canal when viewed from above and inside the cranium:

8. The surgery for removal of the neuroma was performed on the plaintiff at St Vincent’s Hospital by a team of surgeons provided by that hospital. The perspectives and the descriptions of the procedure within the evidence reveals the surgery to have been complex, in which deep and delicate neurological structures of importance to normal physiological function were at risk of injury by reason of the nature and the location of the surgery.

9. The following photograph, which comprises an extract of Exhibit “G”, shows an anatomical cross-section model of portion of the brain demonstrating the perspective locations and relative juxtapositions of the cerebellum, the pons, the medulla, and part of the spinal cord as well as the nerves as they exit the brain stem:

10. The surgical team who performed the operation on the plaintiff was led by Dr Biggs, a specialist neuro-otological surgeon who was at the time, and still is, the surgical head of the department of otology at St Vincent’s Hospital. In addition to the anaesthetic and theatre staff present at the time, the surgical team also comprised Dr Phillip Chang, Dr Channa Panagamuwa and Dr Leo Pang, all of whom were also versed in specialised neuro-otological surgery. They had varying experience and hierarchical professional status at the hospital at that time.

11. The pre-surgical work-up took place over a period of months, during which steps were taken aimed at obtaining the plaintiff’s consent for the recommended operation. Those steps were said to have been incrementally or cumulatively undertaken by Professor Paul Fagan, Dr Biggs and a hospital registrar and trainee ENT surgeon, Dr Payal Mukherjee, in that order. That process occurred after consideration of the results of a number of relevant investigations and tests, and various interpreted discussions with the plaintiff.

12. The discussions leading to the plaintiff agreeing to have the surgery were complicated by the plaintiff’s language difficulties. The plaintiff required, but did not always have, the services of a professional Macedonian interpreter. The plaintiff said she agreed to have the subject operation because she believed, based on her understanding of what she had been told by Professor Fagan, through her accompanying friend who did the translating, that she had a tumour in her brain, which she had understood to have required removal.

13. That stated belief was mistaken. In fact the plaintiff had a benign tumour near her brain, located on the sheath of the right 8th cranial nerve, but not in her brain. The plaintiff said she would not have had the operation if she had understood this to have been the case. That evidence must be evaluated according to the requirements of s 5D(3)(b) of the CL Act.

14. The subject operation required considerable skill on the part of the operating surgeons. It was conducted in two identified phases. The first phase involved obtaining access to and exposing the operative field. This was achieved by Dr Biggs as the lead surgeon. He incised the skin behind the plaintiff’s right ear and then drilled away and removed part of the right petrous temporal bone of the skull and then cut through the dura mata, which comprises the membranous covering of the brain to expose the neuroma in preparation for its removal. This was achieved in a trans-labyrinthine surgical approach. The second phase was carried out by one or more of the three other surgeons present, and involved the use of an operating microscope and other appropriate instruments to both view and manipulate the relevant structures, and to gradually dissect, cut away, and remove the neuroma.

15. By those means, the neuroma was apparently removed by a combination of progressively paring, peeling and suctioning morsels of it away from the sheath of the affected 8th cranial nerve.

16. The plaintiff’s facial nerve injury occurred after Dr Biggs had left the operating theatre in order that he attend to the needs of his other patients at his rooms. He did so because his role in exposing the operative field for the other surgeons to work on had been completed. He left the other surgeons who were then present to undertake the remaining dissection, morselisation, suctioning and removal of the neuroma from the right 8th cranial nerve.

17. The reason the operation was carried out in two phases with different lead surgeons in each phase was that the operation was a long one, and after some hours, in this type of surgery, a surgeon’s fine motor control can become fatigued when working around delicate structures for prolonged periods of time. The final part of the subject procedure involved dissecting the tumour off the acoustic nerve, which can take some hours.

18. Dr Biggs said that after he had completed his part of the operation, he handed over responsibility for the operation to Dr Chang. As has been acknowledged by several medical witnesses, the second defendant’s operating theatre records relating to the identification of the respective roles of the other three surgeons are in a confusing state of completion. It is not entirely clear from the documentary evidence as to whether, when Dr Chang took over from Dr Biggs, he then continued the procedure to completion, or whether at some stage the other surgeons then present were delegated to perform particular parts of the remaining procedure. Apart from Dr Biggs, none of the other surgeons were called to give evidence concerning the sequence or the details of the intra-operative events.

19. The subject procedure was undertaken in conjunction with the use of a sound emitting externally placed facial nerve monitor as was described in the evidence. The purpose of that physiological monitor was to objectively detect stimuli to the facial nerve, including potentially injurious stimuli, and to provide an audible and recognisable warning to the operating surgeons to let them know if they were operating near the facial nerve.

20. When Dr Biggs left the operating theatre, the plaintiff’s right facial nerve was intact. He said he had not been operating anywhere near that nerve, which was later found to have been divided or transected in the region of the neuroma, and not in the area he had exposed.

21. The plaintiff makes no criticism of the role of Dr Biggs in relation to the manner in which he fulfilled his role in the surgery. There is no suggestion that he had done anything other than to skilfully perform his part of the operation.

22. The precise circumstances or the sequence of events that led to the division of the plaintiff’s right facial nerve remain unknown. A number of inferences were possible in that regard. The resolution of that question cannot be resolved by unreasoned speculation: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352. No interrogatories had been directed at establishing those matters.

10. After the division of the facial nerve was recognised intra-operatively, Dr Biggs was called back to the operating theatre to perform a microsurgical cable graft repair of the severed nerve. This involved harvesting a portion of the right greater auricular nerve. The plaintiff makes no criticisms of Dr Biggs in relation to his attempted repair of the severed nerve.

11. The primary operation was expected to take up to 12 hours. In fact the entire operation, including the attempted nerve repair, took 7 hours and 55 minutes. On the evidence, nothing turns on the length of that time interval.

12. Over time, the nerve repair procedure proved to be unsuccessful, and the plaintiff required several subsequent remedial plastic and reconstructive procedures to her right eyelid, mouth and face. Despite a degree of improvement in the cosmetic appearance of the paralysed right side of her face following a number of plastic surgery procedures, she nevertheless still suffers considerable residual disabilities of a physical, cosmetic and psychological nature.

13. The plaintiff gave her evidence effectively and responsively through the assistance of a skilled and NAATI accredited professional Macedonian interpreter, Mr Boris Petrusev.

14. This case appears to have arisen in part because of difficulties with doctor / patient communication issues. This is because despite the plaintiff’s request, an accredited Macedonian interpreter had not been made available to assist the plaintiff at the pre-hospital admission consultations, at which important aspects of her condition and its proposed treatment were being discussed with her.

15. On those occasions, it would ordinarily have been expected that material information, advice and warnings would have been provided to the plaintiff to assist her in making a decision as to whether or not to undergo the surgery that was recommended to her, as opposed to considering alternative treatment options, including the option of non-operative conservative management.

16. The plaintiff claims she was either not given information to that standard, or alternatively, whatever information was given to her, was given in a manner and in circumstances that did not lead to her acquiring a proper and confirmed understanding of what was involved in the subject surgery, including the risks and the potential adverse sequelae.

Case for the plaintiff

30. The first limb of the plaintiff’s case was the allegation that there had been a negligent failure on the part of the defendants to appropriately and adequately inform and provide her with an understanding of material information as to the risks associated with the operation before she consented to have the recommended surgery: Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479.

31. In considering the nature of the subject surgery, it must be remembered that it was the plaintiff who was undertaking, amongst other risks, the risk of possible injury to her right facial nerve, along with the significant and identifiable possible adverse consequences of such an injury. She claims she was not made aware of that risk, or of those potential adverse consequences associated with that risk.

32. The second limb of the plaintiff’s case involved the proposition that it was evident from the handwritten notes made by one of the surgeons present during the subject procedure, and which set out the operative findings as recorded in the second defendant’s hospital records, that causally relevant negligence had occurred during the course of the operation.

33. In that regard, the plaintiff’s argument was that the lastmentioned proposition reasonably arose from the terms of a portion of the handwritten note made by one of the three remaining operating surgeons present when the facial nerve transection occurred, namely, Dr Panagamuwa. The relevant portion of Dr Panagamuwa’s note stated that intra-operatively, the plaintiff had suffered an “inadvertent division” of the right 7th cranial nerve. The construction to be placed on that note is an issue to be determined.

Case for the defendants

34. The defendants made numerous attacks on the plaintiff’s credit as a witness. Those matters will shortly be considered in the course of these reasons.

35. The case for the defendants was that the plaintiff had in all appropriate respects, been properly and materially advised of the risks involved in having the recommended surgery; that the subject surgery had been carried out competently; that the plaintiff had been treated appropriately and in accordance with the contemporary standards of practice of peer professional surgeons in Australia performing neuro-otologic surgery of the kind in question: s 5O of the CL Act. Those matters require evaluation.

36. In particular, the defendants claim that the plaintiff had been adequately informed of the risks involved with the subject surgery, and that such information had been given to her with the assistance of Macedonian interpreters on the crucial occasions when the plaintiff was at the second defendant’s hospital, and when consent issues were discussed with her. Significantly, although those interpreters who had provided that assistance to the plaintiff in the hospital setting were identifiable in the evidence, they were not called to give evidence of such interpreted conversations and information.

37. The defendants also maintained that there was no intra-operative breach of duty of care owed to the plaintiff, and that the plaintiff’s facial nerve injury was simply the materialisation of an inherent risk of the surgery she had agreed to undertake, and in respect of which, it was argued, she had been sufficiently informed beforehand: s 5I of the CL Act. The defendants submitted that the proceedings should be resolved in their favour on this preliminary point of claimed inherent risk: Paul v Cooke [2013] NSWCA 311, at [53] – [54].

38. In the alternative, the defendants disputed the construction sought by the plaintiff concerning that expression appearing within in the operation record as being “inadvertent division” of the facial nerve. The defendants disputed the proposition that the terms and the context of that note constituted an acknowledgment of any intra-operative carelessness or negligence on the part of the hospital or the surgical team that operated on the plaintiff.

39. In the context where no oral evidence was called from the author of the note, Dr Panagamuwa, or any other person who had been present during the second phase of the operation to explain the factual significance of the note made by him, this raises factual questions concerning the meaning and the significance of the cited note, as well as the conclusions that could reasonably be drawn from its content and context.

Issues

40. This case raises multiple and complicated issues with repeated recurring themes that need to be addressed in relation to a number of relevant dates. This has inevitably influenced the length of these reasons: Paul v Cooke [2013] NSWCA 311, at [112]. At the commencement of the hearing the parties adopted something of a minimalist approach to the identification of the issues calling for decision: T7.47 – T8.4; MFI “2”. On examination of the pleadings, the evidence and the submissions of the parties, I consider that the issues arising for determination in these proceedings can be conveniently stated to be as follows:

Issue 1 -    Whether the second defendant was duly incorporated as alleged by the plaintiff and denied by the defendant;

Issue 2 -    Whether the plaintiff was a public patient at the second defendant’s hospital;

Issue 3 -    The relationship between the second defendant hospital, Dr Biggs, Dr Panagamuwa, Dr Chang and Dr Pang, and the legal significance of that relationship;

Issue 4 -    The nature of the duty of care the defendants owed to the plaintiff in respect of each component of the medical services that had been provided to her;

Issue 5 -    The scope of the duty of care the defendants owed to the plaintiff in respect of the pre-operative information, advice and the consent component of the medical services that had been provided to her;

Issue 6 -    The scope of the duty of care the defendants owed to the plaintiff in respect of the intra-operative component of the medical services that had been provided to her;

Issue 7 -    The evidentiary value and admissibility of accounts of clinical conversations conducted with the plaintiff through interpreters, where those interpreters were not called to give evidence of those discussions and the interpretation of those discussions;

Issue 8 -    Whether the surgical procedure recommended to the plaintiff was appropriate to her circumstances, having regard to the duty of care owed to her, and having regard to the provisions of s 5O of the CL Act;

Issue 9 -    Determination of the relevant facts surrounding the provision of material information to the plaintiff which preceded her consent being obtained to undergo the surgical treatment in question, and the adequacy of that information, as was interpreted to her. This issue involves recurring themes concerning the events of 6 March 2009, 3 April 2009, 14 October 2009 and 30 October 2009, 2 November 2009 and 30 November 2009, individually and in combination. I shall shortly return to expand upon this issue after identifying the further issues that follow;

Issue 10 -    Whether the defendants departed from the standard of care expected of them concerning the provision of information, advice and warnings at times when the plaintiff’s consent to the subject surgery was being obtained, documented and confirmed, and if so, should this be characterised as having occurred due to negligence on the part of the defendants;

Issue 11 -    The determination of the most probable mechanism and manner by which the plaintiff’s right facial nerve came to be severed intra-operatively;

Issue 12 -    Whether, having regard to the terms of s 5I of the CL Act, the plaintiff’s right facial nerve palsy was due to the materialisation of an inherent risk associated with intra-cranial surgery using the trans-labyrinthine approach for the removal of an acoustic neuroma located in the cerebro-pontine angle;

Issue 13 -    Whether, having regard to the terms of s 5O of the CL Act, the defendants had departed from the standard of care expected of them in the circumstances so as to justify a finding of negligence on their part, and if so, in what particular respects: s 5B of the CL Act;

Issue 14 - On the assumption of a finding that there had been a relevant breach or relevant breaches of duty of care owed, whether the harm suffered by the plaintiff was caused by the negligence claimed: s 5D of the CL Act;

Issue 15 -    Following a review of the evidence of the plaintiff, and a review of the medical evidence, the determination of the extent to which the plaintiff’s claimed injuries and disabilities were relevantly caused by the events in question;

Issue 16 -   The assessment of the plaintiff’s entitlement to damages, including whether the plaintiff has incurred an injury-caused need for domestic assistance.

41. A consideration of Issue 9 involves a number of sub-issues. These relate to the provision of information, advice and warnings to the plaintiff that would have been material to her decision to consent to undergo the surgical treatment, and the content and the adequacy of the respective interpretations of the communications passing between the plaintiff and those advising her in respect of risks associated with the treatment options that had been recommended to her.

42. A further matter requiring consideration is the significance of the notes made by those respectively consulting with, treating and advising the plaintiff, and the interpretations and inferences to be drawn from those notes.

43. That lastmentioned matter also involves a consideration of the significance of the absence of any notes of a consultation the plaintiff had with Dr Biggs in Moree on 3 April 2009, and the absence of any related correspondence from Dr Biggs concerning that consultation, and the role of evidence of usual professional practice in determining, on the balance of probabilities, what had been relevantly told to the plaintiff in the course of that consultation, before she indicated her consent to have the operation.

44. A related consideration is whether the matters discussed in consultation with the plaintiff were properly understood by her, having regard to the language and the interpretation issues which prevailed at the relevant times.

45. Before setting out my findings on factual matters, and then moving on to address the above issues, it is convenient to first identify an overview of the evidence on the liability issues; to identify a ruling made on the admissibility of evidence of usual professional practice in the absence of a relevant recollection and relevant records; and to make some observations about entries in medical records. It is also necessary to outline my impressions on the credibility and reliability of testimony of the respective witnesses before engaging with the issues identified at paragraph [40] above.

Evidence overview on liability issues

46. In addition to the plaintiff’s own evidence, in the case for the plaintiff, expert oral evidence on the liability issues was given by Professor Thomas Havas, a consultant otolaryngeal, head and neck surgeon, and by Dr Warwick Stenning, a consultant neurosurgeon. Both of these experts identified criticisms of the care that the defendants had provided to the plaintiff. They were cross-examined in respect of that evidence. As the criticisms by the experts were based on assumed facts, those experts properly conceded variations in their opinions on an assumed acceptance of the different factual scenarios they were asked to consider.

47. In the case for the defendants, factual evidence as to matters of pre-operative assessment, information, advice, warnings and the consent process, was given by Professor Fagan and by the first defendant, Dr Biggs, both of whom are well recognised specialist otological surgeons skilled in base of skull surgery, and by Dr Payal Mukherjee, who was at the relevant time a surgical registrar in Dr Biggs’ team, and who at that time, had almost completed her specialist training.

48. The defendants contended, based on the evidence of those practitioners, and upon the contents of the pre-operative clinical notes and progress notes, that there had been no relevant failures within the process by which the plaintiff’s consent had been obtained for the subject surgery.

49. An issue arose in that regard because of the limited content of those notes, and because, unfortunately, Dr Biggs’ notes and subsequent correspondence concerning his consultation with the plaintiff at the Pius X Clinic at Moree on 3 April 2009, or copies of those documents, could not be located.

50. A further issue arose in that there were no notes made by Dr Biggs in the second defendant’s hospital progress notes concerning the plaintiff’s attendance at the hospital pre-admission clinic on 14 October 2009, at which time the plaintiff’s consent for the operation was said to have been formally documented by the fact of her signature on a consent form requesting treatment.

51. On the issue of whether there was a relevant breach of the duty of care owed, the defendants relied upon two expert otolaryngeal surgical opinions contained in the respective reports of Dr Michael Schultz and Associate Professor Vincent Cousins. In essence, based on the assumptions they had been asked to make, those experts stated that in their respective opinions, there had been no relevant departures from the expected standard of care.

52. The assumptions the defendants’ experts were asked to make on instructions from the defendants’ solicitors raised a discrepancy between the evidence of Dr Biggs and those assumptions. The assumptions referred to the actual recollections of certain matters by Dr Biggs, whereas in his oral evidence, no such recollections were claimed. This is a matter that requires a more detailed analysis.

53. Neither of the defendants’ experts was required by the plaintiff for cross-examination on the content of their respective reports. Those reports, and the opinions expressed in them, therefore stand to be evaluated according to their contents and the underlying assumptions on which they are based, alongside the other expert evidence and the facts as they are ultimately found.

54. That evaluation was rendered more difficult in this case because the authors of the defendants’ expert reports were not called to give evidence. In those circumstances, despite the inherent difficulties, the exercise is one that must nevertheless be undertaken within the limitations imposed by those circumstances.

55. As seems to be increasingly more common as the default position in personal injury cases conducted in this court, it becomes necessary for the court to engage with, and if not resolve, then reconcile conflicting opinions in medical reports as best can be achieved in circumstances where some of the authors of the opinions in conflict did not give oral evidence, either in chief or in cross-examination.

56. That task requires an examination where relevant, of the underlying assumptions upon which those opinions were based, in order to determine whether, on the basis of the admissible material tendered by the parties, those assumptions have a reasonable foundation in the evidence: Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [35], [39], [91] and [92]; K & M Prodanovski Pty Ltd v Calliden Insurance Limited [2012] NSWCA 117, at [25]; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [64]; Shoalhaven City Council v Humphries [2013] NSWCA 390, at [36], and in other cases along those lines.

57. As a result of the forensic decisions made by the parties, there had been no pre-trial arrangements made to convene a conference between the respective experts as contemplated by UCPR r 31.24(1), and in the circumstances, where it had been decided that the defendants’ experts would not be called or required to give oral evidence, it was therefore not feasible to require or to arrange for the experts to give their evidence concurrently, as contemplated by UCPR r 31.35. Those forensic decisions did nothing to shorten the length and the cost of the trial.

58. The plaintiff’s court book, which comprised the expert reports and the clinical notes, comprised 632 pages in two volumes: Exhibit “C”. The defendants’ court book, including the expert reports and copies of clinical records, comprised 416 pages: Exhibit “3”. The parties had not taken any pre-trial steps to seek to co-operate to avoid the inclusion of significant and unnecessary overlap in the content of those volumes. Unfortunately, some of those records had been poorly and incompletely photocopied, and in parts, inaccurately transcribed. Such surplusage has from time to time been the subject of critical comment, the latest such comment being the observations made by the editor of the Australian Law Journal, the Hon PW Young QC, at (2014) 88 ALJ, pages 763 – 764, November 2014.

59. A number of packets of miscellaneous medical records and subpoenaed documents were also tendered. These will be referred to in appropriate detail, where it becomes relevant to do so.

60. The resources available to the Court comprised some anatomical models which were made available to the parties to assist with the understanding of the factual and expert evidence. The parties obtained photographs of those models to enable the photographs to be tendered to form part of the record of the proceedings, if required. The photographs were ultimately tendered: Exhibits “F” and “G”.

Evidence ruling concerning “usual professional practice”

61. During the course of evidence by Professor Fagan, Dr Mukherjee and Dr Biggs, in the absence of their specific recollections on particular matters of historical fact concerning their professional dealings with the plaintiff, objection was taken to those witnesses giving their evidence based, not on their recollections of what actually occurred in those dealings, but on what they described as their usual professional practice in such circumstances. Each of those witnesses gave such evidence.

61. In the evidence of Professor Fagan, this was at T208.24 – T209.33 and following, to T222. In the evidence of Dr Biggs, this was at T308.30 – T320; T325.21 – T329.26; T343.15; T345.26; T352.3 – T357.42; T364.13 – T364.16; T367.26; T371.26 – T371.30. In the evidence of Dr Mukherjee, this was at T190.15; T242.19 – T245; T248.14.

62. On behalf of the plaintiff it was submitted that in the absence of any notice served pursuant to s 97 of the Evidence Act 1995 concerning tendency evidence, such evidence of usual professional practice should not be allowed.

63. Although there was some force to that submission, in the circumstances of this case, a ruling was made that evidence along those lines should be admitted as it was not only relevant to a fact in issue, namely whether or not the events occurred as claimed in the evidence of those witnesses, but also because such evidence was relevant to an assessment of the credibility and the reliability of the evidence of those witnesses.

64. In making that ruling, I considered that although the evidence was admitted, it still required evaluation as to its relative weight and probative value. This was the approach taken in Elayoubi v Zipser [2008] NSWCA 335, per Basten JA, at [86], and in Neville v Lam (No 3) [2014] NSWSC 607, per Beech-Jones J, at [103] – [108] which followed Elayoubi. In Elayoubi, at [86], Basten JA stated:

“…Evidence of usual practice may be of assistance in circumstances where mechanical steps or routine tasks are in issue and the witness who supposedly undertook the task on a particular occasion has no recollection of the occasion. The weight to be given to such evidence will depend upon the possibility or likelihood of departure from such practice. However, the present case was not concerned with a mechanical step or routine task: it was concerned with a quite unusual procedure in professional practice. Nor was the task itself in any sense mechanical: rather, it involved conveying important medical information to a patient in a hospital ward.”

66. Accordingly, reliance on evidence of usual professional practice by Professor Fagan, Dr Biggs and Dr Mukherjee stands to be evaluated in the course of determining whether, in each claimed instance, where reliance was placed on those usual practices in the absence of an actual recollection of events, the claimed usual practices were in fact more probably than not, followed by those witnesses. My consideration of those instances is set out in the context in which such questions arise for determination.

Unavailability of some of Dr Biggs’ notes and correspondence

67. Dr Biggs was asked to produce documents comprising relevant diaries and records. The non-production by Dr Biggs of the documents called for was explored in his evidence. In that evidence, Dr Biggs was at a loss to explain why:

• the 3 April 2009 notes of his consultation with the plaintiff at the Pius X Clinic in Moree were not in the records produced by that clinic;

• the photocopy of the 3 April 2009 handwritten notes that he said he had taken to Sydney from Moree in order to dictate his notes and correspondence, was not available to him;

• a copy of his letter to the treating general practitioner following his 3 April 2009 consultation with the plaintiff in Moree was not available to him, and had apparently not been retained as part of his own records that his private practice secretary would have ordinarily retained in electronic form on a computer.

68. In identifying those matters, there is no suggestion that Dr Biggs was in anyway disingenuous in respect of his responses as summarised above. The absence of Dr Biggs’ contemporaneous materials, which might otherwise have refreshed or informed his memory of the matters discussed in the 3 April 2009 consultation, remains an unresolved mystery.

69. The result of those circumstances is that Dr Biggs was at a significant disadvantage in discussing the events of 3 April 2009, absent specific detailed recollections, and absent the records referred to. Whilst there is every sympathy for that disadvantage, an analysis evaluating the plaintiff’s evidence based on her stated recollections, and Dr Biggs’ evidence based on what he believed would have been his usual professional practice at the time, must necessarily proceed.

Entries in hospital records

70. Some of the significant handwritten entries in the second defendant’s hospital records had been left in a state of incomplete annotation.

71. The general subject of legible completion of medical records where those making the relevant entries are required to identify themselves by name and designation, as well as by signing, dating and timing those entries, has previously been the subject of sharply pointed remarks and a plea for compliance with the requirements of the NSW Health Privacy Manual (Version 1) 2004, as was referred to in the Final Report of the Special Commission of Inquiry into Campbelltown and Camden Hospitals; Brett Walker SC, 30 July 2004, Chapter 10, pages 139 – 141.

72. The second defendant’s records in this case comprising the handwritten hospital progress notes indicate that the letter and the spirit of that plea has, at times, been met with mixed degrees of compliance, or non-compliance, despite the fact that at the top of each page of the second defendant’s form for hospital progress notes, compliance is stipulated by the second defendant to be a mandatory requirement of practitioners making entries in the hospital’s patient notes: Exhibit “3”, pages 98 – 131.

73. The subject matter of the Special Commission of Inquiry referred to above, concerned the treatment of some 68 patients at the identified hospitals involved in the NSW Public Health System between 2000 and 2002. It may be reasonably assumed that not too long after publication in 2004, the findings and recommendations of that Commission of Inquiry would have been disseminated to other area health services and public hospital administrators in NSW, including to the second defendant.

74. However, it is not necessary to invoke that assumption in this case as at the relevant time, the evidence comprising the progress notes in Exhibit “3” shows it was the second defendant’s stated mandatory requirement of practitioners and staff that the hospital records should be appropriately noted in the manner described above.

Credibility and reliability of testimony

75. As the determination of these proceedings is to a significant degree dependent upon the credibility and the reliability of the testimony of the respective witnesses, it is appropriate, in the following paragraphs, and in the order in which the witnesses were called, that I record my impressions and assessments of the respective witnesses on those matters, including on matters which were the subject of credit challenges and submissions.

76. Before doing so, I recognise that the task of determining such matters involves difficulties where witnesses who are apparently honest and sincere in their differing recollections of an event, both cannot be correct.

77. It is recognised that in such circumstances, conflicting testimony requires reasoned analysis to determine which of the competing versions is likely to be correct. The process involves the assessment of memory that may be fallible on some points of contention, but reliable on others: M v The Queen [1994] HCA 63; (1994) 181 CLR 487, at 534. Evidence has to be assessed to try to identify and distinguish actual recollection from reconstruction: Watson v Foxman (1995) 49 NSWLR 315, at 319. Due allowance must be made for such matters on the balance of the evidence: Coote v Kelly [2013] NSWCA 357, at [51].

Plaintiff

78. At the hearing, the plaintiff was aged 68 years. She arrived in Australia in 1998 and she became a citizen in 2003. She has been widowed since the death of her second husband in 2006. In Macedonia, she had trained and had worked as a nurse, including carrying out triage and reception work in a radiology clinic. At the time of the events in question in these proceedings she was not working, and she was living in Moree, where there was limited access to tertiary specialist medical services.

79. After making due allowance for the fact that the plaintiff gave her evidence through an interpreter, and that she was at times upset, and in eye discomfort, needing eye drops (T127.1), matters that can pose difficulties in assessing oral evidence and demeanour, I nevertheless concluded she was an impressive, intelligent, honest and careful witness concerning the factual matters in issue between the parties.

80. Although the subject matter of the plaintiff’s evidence was at times visibly upsetting to her, and although she was clearly embarrassed by her facial appearance, she gave her evidence in a reasonable, moderate, calm and non-histrionic manner. That aspect of the assessment of her demeanour and her credit as a witness was necessarily limited, given her limited use of English.

81. Nevertheless, through the sworn interposition of the interpreter, the plaintiff gave cogent details of her medical history, and her background. This included her experiences concerning the respective terminal illnesses suffered by each of her parents, and the effect the deaths of her parents had upon her thinking about the subject of cancer. Her mother had died of uterine cancer in her fifties and her father had died of lung cancer in his seventies. She thought that in her family, cancer might be hereditary.

82. On account of those factors, I am persuaded that the plaintiff had good reason to accurately focus upon matters of detail that concerned her health such that her evidence on those matters was likely to be reliable insofar as she was able to understand what was said to her in that regard, both in terms of her hearing problems, and on account of translation issues.

83. On critical matters of her recollections of relevant events, I considered the plaintiff had a generally reliable recollection of the key events as she understood them in the context of what she was told by way of interpretation of what was said to her by her doctors. Her evidence in that regard chimed true, and it was not inherently improbable on its face.

84. The plaintiff had kept a diary of significant health events whilst she lived in Moree, including the events the subject of this litigation. In the post-operative period, she was required to leave her housing in Moree in distressing circumstances that meant she needed to abandon some of her belongings so as to take minimal essential possessions with her when she moved to her present and much smaller accommodation in Liverpool. She destroyed her diary in the course of those events: T97.16 – T97.17; T99.19 – T99.21.

85. The plaintiff was cross-examined closely on that evidence. In that regard, it was suggested to her she had invented her evidence about the diary and its destruction in an endeavour to make her evidence seem more credible. She rejected that assertion: T103.40 – T104.5. On behalf of the defendants it was submitted that the evidence of the plaintiff on those matters was “incredulous”.

86. In rejecting that submission, it is sufficient to record my impression that her evidence in that regard was not inherently improbable. In my view her explanation was within the array of understandable reactions to the stressful circumstances she found herself in at the time.

87. I am satisfied that the plaintiff’s account of why her diary was no longer available to her was truthful. In any event, I considered the plaintiff to have a good recollection and grasp of significant health-related events in her life. I do not consider that the absence of her diary raised a true issue on her credit or on the reliability of her evidence.

88. The plaintiff’s credit was also attacked on the issue of whether she had exaggerated her evidence as to the post-operative difficulties she described in connection with the wearing of dentures: T565 – T570. In my view, there was clearly a semantic misunderstanding between the plaintiff and the cross-examiner as to whether an upper denture (which incorporated a full set of upper teeth) was a singular denture or more properly described as being dentures in the plural sense. In my view there was no relevant exaggeration. No adverse credit implications flowed from that evidence.

89. The plaintiff’s credit was further attacked with the suggestion she had made an error in her evidence regarding the date on which she claimed to have been diagnosed with a tumour in her brain. It was suggested that she had then tailored her evidence to seek to excuse that purported mistake: T123.38 – T124.44. In my view, when that evidence is read as a whole it is clear the plaintiff was talking about tracing her diagnosis back to its foundations, namely to 5 December 2008, which was the date when she had an MRI brain scan, and that the diagnosis she was referring to was the date of the scan, as was recounted to her in later consultations where that scan was discussed. In my view, no relevant credit issue arises on this point.

90. In the defendants’ initial written submissions (MFI “7”) it was claimed that there were examples of matters in the evidence that reflected poorly on the plaintiff and which, it was argued, diminished the credibility and the reliability of her evidence. Those matters are analysed in the paragraphs that follow.

91. First, it was claimed that because the plaintiff claimed, at T43.33, that she was a regular church-goer before her surgery, and attended pensioner groups, and yet said at T177.20, there were no church pensioner groups in Moree, there was an inconsistency in her evidence. Several matters need to be stated with regard to that submission. At T43.38 the plaintiff said she “used to go to the church”. She did not say she went to a church regularly in Moree. Furthermore, part of her answer at T43.37 was unfortunately not transcribable. In my view, the claimed inconsistency does not necessarily arise. The church attendances the plaintiff was talking about were not necessarily restricted to Moree. The issue is peripheral, and in my view, it is irrelevant.

92. Secondly, it was suggested that the plaintiff’s credit had been diminished because of her evidence at T185.17 to the effect that she thought Dr Moisidis, the plastic surgeon who carried out reconstructive surgery on the plaintiff’s facial deformity resulting from facial nerve palsy, had used her as an experiment in carrying out that remedial surgery. It was submitted that such evidence was illogical. I do not accept that submission. In the context, the plaintiff was in effect, taciturnly, and with some bitterness, expressing her opinion in ironical terms on the results of the attempted remedial surgery carried out by Dr Moisidis, and her realisation of disappointment with those results. It was an opinion she was entitled to hold. In making that finding I do not intend that this finding be read as any direct or implied criticism of Dr Moisidis, who was not called to give evidence. The basis of the plaintiff’s opinion concerning that treatment was not explored in detail in the evidence, and in the circumstances, I consider that it would be unreasonable to describe her evidence as illogical, as was suggested in the submissions of the defendants.

93. Thirdly, it was suggested that the plaintiff’s actions in interrupting a consultation that Dr Biggs was having with another patient in Moree reflected poorly on her credit. I do not consider that submission to be the inevitable consequence of her self-described actions. This is because to the extent the issue was explored in evidence, it does not exclude the possibility of a misunderstanding having arisen as to her entitlement to enter the consulting room. It is also consistent with her evidence that she was concerned about delaying her accompanying friend Mr Ljubomir Madjistorov, a diabetic, who was to act as her informal interpreter, and who was getting tired while they had been kept waiting, and where the appointment time had passed, and no-one had been seen entering or leaving the room whilst they had been waiting: T118.40 – T118.47. In my view, this is a peripheral matter which has been overstated as being a matter affecting the plaintiff’s credit as a witness. I do not accept the submission.

94. Fourthly, it was also submitted that the plaintiff’s evidence to the effect that the neuroma, referred to in the consultation as a tumour, would grow if not operated upon within 6 months, reflected poorly on her credit. I do not see the force of that submission, as the phenomenon of the growth of tumours is a common perception in the community. That phenomenon of tumours growing over time is recognised in the report of the defendants’ expert, Dr Schultz: Exhibit “3”, pages 7 and 10. Furthermore, in considering the issue, there must be some scope allowed for the plaintiff’s emotional response to the diagnosis, based on what she had understood from what had been said to her by Mr Madjistorov on that matter, especially having regard to language issues. The defendants’ submission makes no such allowance. In my view, the plaintiff’s perception of the circumstances was not an irrational one as was submitted on behalf of the defendants. I therefore do not accept the submission.

95. Fifthly, it was submitted the plaintiff’s evidence of only ever having been told there was a 1 in 1000 chance of death from the surgery in question, despite seeing three separate surgeons, reflects poorly on her credit. In considering that submission I do not overlook the scope for interpretation confusion to have arisen over the 1 in 1000 figure. The factual evidence that this was the figure for a lifetime chance of developing an acoustic neuroma, although there is no need to decide that point. In my view, the submission is overstated. In fact, the plaintiff only saw two surgeons, not three, namely Professor Fagan and Dr Biggs. Dr Mukherjee was not a surgeon at the time. She was a registrar. This issue is not determined by a credit assessment alone, but also in the context of the other evidence, including out-of-court interpretation issues, which will be taken up in connection with my reasons concerning Issue 9, dealing with the plaintiff’s consent to the subject operation.

96. Sixthly, it was submitted that there was a credit inconsistency between the evidence of the plaintiff of having been told by Professor Fagan there was a 1 in 1000 chance of death, and her evidence at T90.28 – T90.29 to the effect that she wouldn’t have accepted the operation if it could have led to a fatal outcome. In my view, the submission misunderstands the two different contexts of the evidence cited. According to the plaintiff’s evidence, Professor Fagan had also explained to her that he had not experienced a death from such surgery, or at least that was the plaintiff’s understanding of what he had said, as was related to her by her friend Mr Madjistorov in his interpretation of what Professor Fagan had said. In my view the submission should not be accepted for reasons associated with the need to make due allowance for the difficulties associated with the interpretation of what Professor Fagan had told her. This is a matter which will be further developed in my findings of fact.

97. Seventhly, it was submitted that the plaintiff’s evidence to the effect that Mr Madjistorov had left Australia in 2010, was inconsistent with the clinical records. An examination of those records does not satisfactorily demonstrate the claimed inconsistency. The evidence invoked by the defendants in support of that submission was not compelling. At pages 647 and 673 of the plaintiff’s evidence bundle, which comprised Exhibit “C”, the copies of the records kept by the treating general practitioner made reference to “Lou” as the plaintiff’s contact person in 2011 and 2012. It may be reasonably assumed that this was a reference to Mr Ljubomir Madjistorov.

98. In my view, for a number of reasons, the credit conclusion contended on behalf of the defendants in respect of the above points should not be sustained. First, the records in question were not prepared or maintained by the plaintiff, so the entries relied upon by the defendants should not be regarded as an admission as sought by the defendants in respect of the above points. Secondly, when the purpose of the records is considered, it is apparent that the purpose was to record and maintain the plaintiff’s medical records, and not to necessarily record or maintain the details of her contact person: Mason v Demasi [2009] NSWCA 227, at [2]. Thirdly, it would appear from an examination of the documents that the reference to “Lou” on the document may be a replication of a document header as would be expected as a pre-set word-processing formatting function. Fourthly, and more importantly, the allegation made in the course of this submission was never put to the plaintiff in order that she could have the fair opportunity to be confronted with the assertion in order to have the opportunity to answer it: Browne v Dunn (1894) 6 R 67.

Mitigation

1174. The medical and hospital records show that the plaintiff has sought out and obtained medical treatment to try and ameliorate the effect of her disabilities on her. In my view, this amply demonstrates that she has taken reasonable steps to mitigate her damages. The defendants bear the onus of proving the contrary proposition. The defendants have not discharged that onus.

1175. The defendants sought to argue that the failure of the plaintiff to proceed with remedial dental treatment was a relevant failure to mitigate her damages. An assessment of the plaintiff’s personal circumstances is a relevant consideration on the mitigation issue. In my view, the plaintiff’s impecuniosity and her inability to afford that dental treatment until now is a complete answer to the submission on mitigation made by the defendants: Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345. So too is her experience-based sceptical attitude, as to what further plastic surgery might have to offer her by way of improvement in her condition.

1176. I now turn to the assessment of the claimed heads of damage.

Non-economic loss

1177. On behalf of the plaintiff, it was submitted that damages for non-economic loss should be assessed at a minimum of 50 per cent of a most extreme case, which equates to a monetary assessment of $286,000: s 16 of the CL Act.

1178. In contrast, on behalf of the defendant, it was submitted the appropriate assessment would be 27 per cent, which equates to $57,000.

1179. The assessment of damages for non-economic loss pursuant to s 16 of the CL Act must proceed in accordance with the statutory scale of between 1 per cent and 100 per cent with its in-built threshold discounts. The factors relevant to an assessment of s 16 damages include the nature and extent of the plaintiff’s injury, the ongoing effects of that injury, the plaintiff’s relative age and remaining life span, and the extent to which the plaintiff’s amenity and enjoyment of life have been adversely impacted by the effects of her ongoing disabilities.

1180. The plaintiff’s ongoing disabilities have been identified at paragraphs [1143] to [1171] of these reasons. Those disabilities continue to significantly and adversely affect the amenity of the plaintiff’s life in the physical, psychological and cosmetic senses.

1181. In my view, after making due allowance in the form of a discount for the factor of the plaintiff’s relatively advanced age (Reece v Reece [1994] NSWCA 259) and recognising she nevertheless has a statistical life span of almost two decades ahead of her, and in which she will have to continue to endure the identified problems which include physical, emotional, cosmetic and psychological burdens, I consider that the appropriate assessment of damages for non-economic loss is 48 per cent of a most extreme case, which is the monetary equivalent of $274,500.

1182. In arriving at that view, I have applied discounting factors to reflect the fact that, consistent with my findings in respect of Issues 10 and 11, had she not had the subject surgery, she would have a substantial loss of hearing in her right ear, possibly progressing to a total hearing loss over time, and the prospect of ongoing problems with her balance and disequilibrium.

1183. I therefore assess the plaintiff’s damages for non-economic loss in the amount of $274,500.

Future domestic assistance

1184. The plaintiff makes an undiscounted claim for the value of 2 hours per week of domestic assistance commercially costed at $44.92 per hour or $88.84 per week projected over her remaining life span at 5 per cent over 19 years (x 646.2), namely $58,054.60.

1185. The basis of the plaintiff’s claim of an entitlement to an assessment of such damages is that if she had been properly advised and warned of the risks of the surgery, she would not have undergone that surgery. It therefore follows, that if she had not undergone the surgery, she would most likely have continued to have problems with her balance and disequilibrium.

1186. In those circumstances, where there was a risk of falls, the plaintiff would have in any event continued to need a degree of assistance with transport and outings absent the surgery, in my assessment, the claim for 2 hours of future paid domestic assistance should not be allowed in full.

1187. In those circumstances, it remains to assess the differential position that would most likely have prevailed but for the surgery. Dr Scoppa has noted the difference between balance problems experienced 2 – 3 days per week, as opposed to such problems being constant since the surgery.

1188. It is difficult to formulate a precise sum for projection in those circumstances, I will therefore approach the assessment of that differential claim in the form of a modest buffer sum.

1189. In my assessment, a lump sum of $15,000 would represent a proper sum that is both fair to the plaintiff and not unfair to the defendant: State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536; Penrith City Council v Parks [2004] NSWCA 201; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13.

1190. I therefore assess the plaintiff’s damages for future domestic assistance in the amount of $15,000.

Future out-of-pocket expenses

1191. The plaintiff claims damages for future out-of-pocket expenses in the amount of $60,000. In contrast, the defendants submit that such damages should be limited to the sum of $25,043.19.

1192. In my view, the defendants’ submissions should not be accepted because they have been calculated on the basis that the plaintiff would have had the subject surgery in any event, contrary to my findings in respect of Issue 14. Accordingly, the defendants’ discounted submissions should be viewed in that light.

1193. That said, if the plaintiff had not had the subject surgery, some of the amounts claimed would have been incurred in any event, such as some general practitioner consultations, some ENT consultations over time, periodic MRI imaging for comparison purposes to monitor the neuroma as part of a wait and see conservative management approach. Furthermore, the plaintiff would have had to incur some recurring pharmaceutical expenses in any event.

1194. Balanced against those matters is the plaintiff’s need for specific medical and dental attendances and costs identified by Dr Scoppa, Dr Curtis and Dr Stratis. In those circumstances, a general buffer amount that includes sums estimated by Dr Scoppa, Dr Curtis and Dr Stratis, plus some allowances for ongoing expense should be allowed, quantified along the lines identified in State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536 and the related cases already cited.

1195. In my assessment, a lump sum of $35,000 would represent a proper sum that is both fair to the plaintiff and not unfair to the defendants. I therefore assess the plaintiff’s damages for future out-of-pocket expenses in the amount of $35,000.

Past out of pocket expenses

1196. The parties have agreed that the plaintiff’s out-of-pocket expenses have been incurred in the amount of $6,499.85. I therefore assess the plaintiff’s damages for past out-of-pocket expenses in the amount of $6,499.85.

Summary of damages assessment

1197. My assessment of the plaintiff’s damages is summarised as follows:

(a) Non economic loss	$274,500
(b) Future domestic assistance	$15,000
(c) Future out-of-pocket expenses	$35,000
(d) Past out-of-pocket expenses	$6,499.85
Total	$330,999.85

Disposition

1198. As the plaintiff has succeeded in the litigation she is entitled to a verdict and judgment in her favour against the defendants in the sum of $330,999.85.

Costs

1199. The plaintiff is entitled to have her costs of the proceedings paid by the defendants on the ordinary basis unless a party can show an entitlement to some other costs order.

Orders

1200. I make the following orders:

1. Verdict and judgment for the plaintiff in the sum of $330,999.85;

2. The defendants are to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Liberty to apply on 7 days notice if further or other orders are required.

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Appendix

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Decision last updated: 24 February 2015