George v Survery

[2009] NSWSC 1348

CITATION:	George v Survery [2009] NSWSC 1348
HEARING DATE(S):	6/10/09, 7/10/09, 8/10/09, 12/10/09, 13/10/09, 14/10/09
JUDGMENT DATE :	9 December 2009
JUDGMENT OF:	Hoeben J
DECISION:	Judgment for the plaintiff in the sum of $776,095.79. Defendant to pay the plaintiff's costs.
CATCHWORDS:	DAMAGES - medical negligence - failure to diagnose heart condition leading to heart transplant - plaintiff's life expectancy after heart transplant - which statistics should be used - whether deduction for vicissitudes - economic loss - earnings of business - how contribution of wife should be treated - deduction for vicissitudes - non-economic loss.
LEGISLATION CITED:	Civil Liability Act 2002 Workers Compensation Act 1987
CATEGORY:	Principal judgment
CASES CITED:	Husher v Husher (1999) 197 CLR 138 Zhang v Golden Eagle International Trading Pty Limited [2006] NSWCA 25
TEXTS CITED:	"Braunwald's Heart Disease" (8th ed, 2008, Braunwald et al) "Outcomes in Patients Older than Sixty Years of Age Undergoing Orthotopic Heart Transplantation: an Analysis of the UNOS Data Base – The Journal of Heart and Lung Transplantation", Volume 27 (para 28), No 2 - February 2008 (Eric S Weiss MD)
PARTIES:	Kevin George - Plaintiff Dr Hafizur Survery - Defendant
FILE NUMBER(S):	SC 20221/2006
COUNSEL:	Mr DE Graham - Plaintiff Mr M McCulloch SC - Defendant
SOLICITORS:	Slater & Gordon - Plaintiff Paul Tsaousidis - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Wednesday, 9 December 2009

20221/2006 – Kevin GEORGE v Dr Hafizur SURVERY

JUDGMENT

1 HIS HONOUR:

Nature of proceedings
The plaintiff brought a claim in negligence against the defendant who was his general practitioner. The claim was that the defendant had been negligent in failing to diagnose that the plaintiff was suffering from either ischaemic heart disease or an acute coronary syndrome. The defendant has admitted liability. Accordingly, this matter proceeded as an assessment.

2 I should note here that counsel for both parties have shown a high level of co-operation in agreeing to heads of damage. This meant that the Court was only required to decide matters which were genuinely in dispute. Court time was not wasted on issues which should have been agreed by the parties. The conduct of this case by counsel and those instructing them provides a good example of how an assessment of damages trial should be conducted.

Factual background

3 In order to understand the damages claims which were in issue, it is necessary to set out in some detail the factual background.

4 The plaintiff was born in February 1946 and was 63 at the date of trial. At the time when he first experienced chest pain, he was working as a self-employed truck driver. He was married at the time with no dependent children.

5 On 12 June 2003 when aged 57, the plaintiff consulted the defendant for advice and treatment in relation to chest pain. An electrocardiograph (ECG) was carried out on 13 June 2003, which was reported as normal. The plaintiff continued to experience chest pain and saw the defendant on five more occasions in June 2003. When the chest pain continued, he was referred to a cardiologist on 15 July 2003.

6 On 22 July 2003 the plaintiff presented to the Emergency Department at Mt Druitt Hospital, where an acute myocardial infarction with left ventricular failure was diagnosed. He was then transferred to Westmead Hospital. One of the earliest investigations, which was a gated heart pool study, showed that 81 percent of the left ventricle in the heart was destroyed by blockage. He underwent urgent coronary angiography and angioplasty. While that was occurring, he suffered a cardiac arrest and required resuscitation. A stent was put into the left anterior descending coronary artery.

7 After the plaintiff was resuscitated, he required an intra-aortic balloon pump to assist the function of the left ventricle. He was discharged from Westmead Hospital on 5 August 2003. On discharge he was told that nothing could be done for him because too much of his heart had been damaged and because he was too old. He was given a life expectancy at that time of about two years.

8 While at Westmead Hospital, the plaintiff developed some associated conditions. As a result of the left ventricular damage and its inability to pump properly, he developed left ventricular failure which led to a build up of fluid in the lungs, pulmonary oedema and pulmonary effusions. Because of his immobilisation he developed deep vein thromboses in two veins in the left leg and required Warfarin and anti-coagulant treatment for a period. He also developed right lower lobe pneumonia.

9 Following discharge, the plaintiff commenced a long and hard process of cardiac rehabilitation to the extent that he could. This involved medical consultations and therapy sessions. Because of the substantial damage to his left ventricle, he was short of breath on minimal exertion, often at rest, and could do very little. He continued to have chest pain on exertion but not to the same degree as prior to the infarct. He was very much dependent upon his wife during this period.

10 The plaintiff was told that the only way his life expectancy could be extended would be if he underwent a heart transplant. He applied for the program and after successfully completing a number of tests, was found to be suitable. After a year on the waiting list, he underwent a heart transplant operation on 8 April 2005 which was successful.

11 After the transplant, the plaintiff’s exercise tolerance improved considerably but he was still left with some physical weakness and muscle wasting involving his thoracic cage and upper limbs. He put on weight and suffers fatigue more easily than before his infarct. He has developed bilateral shoulder pain. He has some cognitive impairment in the sense that his ability to take in information and process it is reduced and his memory is impaired. It is not clear what this is due to. The alternatives were hypoxic brain damage or psychological damage as a result of what he had been through. He has experienced bouts of depression.

12 As a result of having the heart transplant, he is required to take a large number of imuno-suppressant drugs. These are new drugs which are designed to improve aspects of cardiac function, but they have side effects. By way of example, the plaintiff now has bilateral osteoporosis of each of the femoral necks in his hips. He has developed gout, which affects his right foot and ankle. Some of the medications accelerate the development of skin cancers, which have had to be removed. As a result, the plaintiff is limited in his capacity to remain in direct sunlight.

13 The change in his lifestyle has been significant. He helps about the house but is not particularly active. He does some gardening and works in the garage. After such activities, he often falls asleep in a lounge chair. He exercises on a treadmill three times per week for 30 minutes on the flat. This causes some fatigue so that after such exercise he usually requires rest before he can do anything else. He is able to drive a motor vehicle.

14 As a result of his inability to work, the plaintiff received payments of compensation from GIO Workers Compensation (NSW) Limited (GIO). That compensation comprised weekly compensation payments, medical expenses and lump sums pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (WCA). On 12 January 2009 Harrison J declared that the injuries to the plaintiff occurred in circumstances giving rise to an indemnity to the employer pursuant to s 151Z(1)(d) WCA against the defendant for the compensation paid to and on behalf of the plaintiff. The employer and GIO have been indemnified by the defendant in respect of the compensation paid. Accordingly, it was agreed between the parties that the amount of compensation received by the plaintiff would need to be deducted from the damages awarded in these proceedings.

15 On 10 June 2009 consent orders were made to the effect that the defendant would pay the plaintiff the sum of $80,000 by way of an interim payment. This amount also will need to be deducted from the damages awarded to the plaintiff.

Damages

16 Because one of the items in dispute was the plaintiff’s life expectancy, agreement could not be arrived at as to a number of heads of damages which depended upon the resolution of that issue. Nevertheless, agreement was reached as to the entitlement to damages and as to how that entitlement would be calculated once the life expectancy issue was decided.

17 The following agreements were reached in relation to matters which were not dependent upon the plaintiff’s life expectancy.

Future Health Professional Costs	$165.00
Future Home Modifications	$3000.00
Past care	$74,162.00
Past transport assistance	$25,000.00
Past out of pocket expenses paid by GIO	$140,072.23
Medicare repayment	$6,433.00


Life expectancy

18 The plaintiff submitted that the life expectancy figure which should be used was 12.5 years. The defendant submitted that 8.5 years was the appropriate figure.

19 The evidence on this issue was in the reports, including a joint report, of Professors Anne Keogh and Michael O’Rourke. Their oral evidence was taken concurrently. Both are cardiologists. An indication of their extensive qualifications and their areas of expertise within that overall classification can be seen from the evidence which they gave by way of introduction.

“PROFESSOR KEOGH: … I'm the joint head of the Victor Chang Research Institute, Clinical Research Programme. My work involves transplant, pre-transplant care, keeping people alive till the transplant, looking after them for ever after that and that comprises about 60% of my practice. I have a PhD and it was based in medical aspects of heart transplantation and I did my overseas training at Stanford University Hospital in California with the transplant unit there.” (T.122.11)
“PROFESSOR O’ROURKE: … I am a doctor of medicine and doctor of science at the University of Sydney - both at the University of Sydney. My specialty is arterial disease and arterial function. I have run the Coronary Care Ward at St Vincents Hospital for some 20 years and I have practised as a regular cardiologist. I was involved in the very earliest times of heart transplantation at St Vincents, but less so in recent times. And I would see Anne as having greater expertise - and I think I have said that in my report - than I in the details of heart transplantation and management of patients after heart transplantation.” (T.122.28)

20 Professor Keogh gave evidence in the plaintiff’s case and Professor O’Rourke in the defendant’s.

21 The basis for the opinion of Professor Keogh was data which had been collected in relation to transplant patients in Australia and New Zealand from 1984 until December 2008. The data involved the follow up of each transplant patient following his or her operation and in particular, the recording of that patient’s death from whatever cause. Professor Keogh contended that the data from Australia and New Zealand had a high level of accuracy since she herself individually followed up situations where contact with a patient may have been lost. For those reasons, the data from Australia and New Zealand was far more accurate than (for example) that collected in Russia, Slovenia and other Eastern European countries.

22 Professor O’Rourke was concerned that this data had not been peer reviewed over the last 10 years. He would have expected it to have been set out in medical journals and thereby be available for comment and discussion.

23 Professor Keogh explained that the data for Australia and New Zealand was collected by the Australia and New Zealand Cardiothoracic Organ Transplant Registry (ANZCOTR). That registry produced the data upon which she relied in an annual report. It was readily available and was often referred to in medical journals. The data was also readily available on the internet. It was regularly presented at international medical conferences and seminars. Professor Keogh pointed out that it is difficult to peer review data. Conclusions arrived at from data can be peer reviewed, but not the data itself.

24 I am satisfied from the evidence given by Professor Keogh and from her explanation of certain slides, which she provided (exhibit K), that the data upon which she relied is as accurate as can be obtained. The fact that it has not been peer reviewed in a formal sense is largely irrelevant. What is clear is that this data is readily available in medical circles. If there were problems with the data, one would have expected some criticism to have appeared in medical journals. This has not happened. I have concluded that Professor Keogh was entitled to rely upon the ANZCOTR data to substantiate her conclusions.

25 An anomaly which emerged from the evidence was that according to the ANZCOTR data, some patients in their eighties who had undergone heart transplants had a longer life expectancy than persons who had not. Professor Keogh dealt with this issue as follows:

“WITNESS KEOGH: From the Furzer Crestani report, which is the company that puts out the actuarial survival codes for the normal population in Australia, which tells us that if you are born in 2008 and you are female you are likely to live to 85, and if you are born in 2008 as a male you are likely to live to 84 and a half, normal population actuarial, that's all we are doing. What this actuarial covers is the same thing but it is from the time of transplant on. Professor O'Rourke's point is that you are not likely to live as long after a transplant as a non transplanted person and that might sound sensible on the surface but we have the data for the reality and the reason survival is good after transplant is because the patients are very highly selected, they undergo a battery of 25 test before the transplant to make sure that the only thing that that they need is a heart and they are going to get a good long survival. So apart from the heart the transplant population is very highly selected. So we know they don't have silent cancers, serious blockages in any arteries, other serious pathology.(T.132.33-46)
…
GRAHAM: Yes. Now in relation to screening of patients as being suitable for a heart transplant, what factors are considered?

WITNESS KEOGH: Kidney function, liver function, whether they have any liver diseases, hepatitis A, B, C, screen for AIDS, the cardiac function obviously that the heart's actually needing to be binned, not got any prospect of recovery, arterial disease in the legs, arterial disease to the brain, exclude silent cancers with the brain, chest, abdomen, pelvic, CAT scan, PSA with prostate cancer test in the blood, CSA which is the bowel cancer test in the blood, endoscopy, colonoscopy, as I said before, pap smears, mammograms, so, as I said before, top to tail screening of the person's health for all other organs.” (T.161.38-49)

26 Another factor to which Professor Keogh drew the Court’s attention was that from the year 2000 survival rates had significantly increased because of the availability of drugs such as Everolimus and Sirolimus. These drugs reduced the rejection of transplanted hearts and significantly reduced the occurrence of coronary artery disease in transplanted patients.

27 An area of divergence between the witnesses was that Professor Keogh relied upon the Australian and New Zealand data when preparing her graphs and survival curves, whereas Professor O’Rourke considered that the more accurate data came from the International Society of Heart Lung Transplantation (ISHLT). That latter data was produced in peer reviewed medical journals. It showed that life expectancy was significantly less for persons undergoing heart transplants between the age of 50 and 60 than did the Australian and New Zealand data. Professor Keogh rejected the validity of the comparison on the basis that the Australian and New Zealand statistics were more accurate and that the post operative care provided to transplant patients in Australia and New Zealand was significantly better than that provided in many countries whose statistics were relied upon to produce the international data.

28 I have carefully reviewed the texts which rely upon statistics and data obtained from ISHLT “Braunwald’s Heart Disease” (8^th ed, 2008, Braunwald et al, p 682 and figure 27/14), “Outcomes in Patients Older than Sixty Years of Age Undergoing Orthotopic Heart Transplantation: an Analysis of the UNOS Data Base – The Journal of Heart and Lung Transplantation”, Volume 27, No 2 - February 2008 (Eric S Weiss MD et al). I have reviewed the 2008 13^th annual report of ANZCOTR (Anne Keogh and Ross Petterson, 2008). I have also had regard to the evidence given by Professor Keogh generally as to the level of care provided in Australia for patients who have undergone heart transplants.

29 As a result, I have concluded that the survival rates of patients who have undergone heart transplants in Australia and New Zealand are significantly higher than those in the rest of the world taken as a whole. This is not surprising. The ISHLT figures, as well as including countries such as America and Scandinavia where high levels of care and follow up are provided, also include countries where levels of care and follow up are problematic at best. I have concluded that while the ISHLT figures provide a general guide as to life expectancy for patients who have undergone heart transplants, the more accurate data for the purposes of calculating the plaintiff’s life expectancy, is that produced by the ANZCOTR.

30 Professor O’Rourke explained how he arrived at his estimate of a life expectancy for the plaintiff of 8.5 years. He took as his start point the life tables prepared by Messrs Furzer Crestani. These showed a normal life expectancy for a 63 year old Australian male of about 22 years. Professor O’Rourke then took into account factors which would lead to a discounting of that start point.

31 The first matter he took into account was that at 59, on his reading of the ANZCOTR data, the plaintiff was 14 years older than the average heart transplant recipient when he underwent his operation. The average age for such recipients, according to that data, was 45. Professor O’Rourke considered that this age factor alone required some discount to be applied. His next consideration was the cause of the plaintiff’s heart failure and need for a transplant. He noted that there were usually two causes for heart transplants – heart disease due to cardiomyopathy or coronary artery atherosclerosis. Cardiomyopathy usually affected the heart only, whereas atherosclerosis affected other arteries in the body, principally the aorta and brain arteries. The plaintiff’s heart disease was of the atherosclerotic type. Professor O’Rourke considered that a cerebral MRI report of 2 April 2007 showed evidence of cerebral vascular disease in the plaintiff which indicated a potential, if not a likelihood, for there already being existing damage to arteries in other parts of his body.

32 Finally, Professor O’Rourke took into account what he described as other co-morbidities from which the plaintiff suffered, in addition to his atherosclerosis, which would adversely affect his life expectancy and which would not apply to the average patient who had undergone a heart transplant. Professor O’Rourke referred specifically to renal insufficiency, type 2 diabetes mellitus, osteoporosis of the femoral neck with greatly increased risk of osteoporotic bone fracture, the predisposition to skin cancers and a propensity to develop venous thromboembolism if inactive. He identified a need to exclude prostate cancer.

33 Taking those factors into account, Professor O’Rourke concluded that the plaintiff’s life expectancy had been reduced by approximately 60 percent to 8.5 years.

34 Professor Keogh challenged that conclusion on the basis that a 60 percent reduction was quite arbitrary and that the assumptions underlying such a substantial reduction in life expectancy had not been made out.

35 She pointed out that the life expectancy tables had only limited applicability to the plaintiff since unlike most average male Australians, he had been extensively tested for other co-morbidities before being allowed to undergo the heart transplant procedure. (The nature of those tests has already been referred to.) This meant that many diseases, which might otherwise affect males of the plaintiff’s age in the community, had been excluded. In relation to his heart, he had received the heart of a young person in his twenties and now 4 ½ years post operation, the heart was functioning well and there were no signs of rejection or other problems.

36 Professor Keogh accepted that there was no way that atherosclerotic disease could be entirely excluded, but unlike average members of the male population, the plaintiff was being regularly checked and monitored so as to identify the onset of such a condition should it arise. The same comment was applicable to any renal insufficiency which the plaintiff might be suffering from, his osteoporosis and his skin cancers. All of these were closely monitored and were being treated where necessary.

37 Professor Keogh did not agree that the plaintiff still suffered from diabetes mellitus. She accepted that when he had initially been admitted to Westmead Hospital he had been glucose intolerant, but tests over the last five years had shown no sign of diabetes. If he had a propensity to develop diabetes, this was being controlled by his diet. (It was common ground that although references occurred in hospital notes to the plaintiff suffering from diabetes mellitus, apart from the initial test there was no evidence in any of those notes of any subsequent tests which produced such a result.) Professor Keogh did not accept that the tests and monitoring of the plaintiff showed any renal problem, prostate cancer problem or artery disease in the brain.

38 In relation to those latter matters, I am not satisfied that the plaintiff currently suffers from diabetes mellitus. It seems to me that references to that in hospital notes are simply a transcription of the initial finding at Westmead Hospital and are not based on any subsequent tests. On the contrary, tests carried out over the last five years have been negative. The only evidence in relation to the cerebral MRI scan is the report of the radiologist which does not support a positive finding of artery disease although this cannot be excluded. Similarly, in relation to the plaintiff’s kidneys and prostate. There were no positive findings of disease or cancer but the possibility of these conditions being present cannot be excluded.

39 The medical notes make it clear that the plaintiff’s renal function at the present time is satisfactory or at worst, mildly impaired. The risk of venous thromboembolism is low in that the plaintiff uses the treadmill three times per week. Like other potential risk factors, this is being closely monitored. The MRI scan of the brain of April 2007 demonstrated multiple small circumscribed areas of ischaemic glyosis/locunes, which were not excessive for the plaintiff’s age. The opinion of the radiologist was that these were essentially age related changes.

40 Professor Keogh said that the average age of heart transplant recipients, according to the ANZCOTR data, was 52. Accordingly, while the plaintiff was older than the average recipient, the age difference was not of significance. In any event his age was picked up by the ANZCOTR statistics for transplant recipients between the ages of 50 and 60.

41 Despite the relatively small sample, i.e. less than 2000 heart transplant patients, I have concluded that the ANZCOTR data in relation to those transplant patients is a more reliable indicator of the life expectancy of the plaintiff than the more general international data. In addition, Professor Keogh and her team provide the day-to-day treatment of the plaintiff as part of their follow up procedure. They see him on monthly basis. They are fully aware of his actual state of health, as distinct from some kind of statistical model. I have concluded that Professor Keogh’s estimate of the likely life expectancy of the plaintiff is more reliable than that of Professor O’Rourke.

42 One matter which does cause me some concern is the extent to which there should be, if at all, some deduction from Professor Keogh’s 12.5 years life expectancy prediction to have regard to vicissitudes of life which have not been tested for as part of the monitoring program or which are of such a kind that they could occur suddenly and without warning, e.g. a motor vehicle accident or fall. Whereas conventional actuarial life expectancy tables pick up these kinds of matters, it was not clear to me whether regard was had to these matters in the tables prepared by Professor Keogh and based on the ANZCOTR data.

43 I have concluded that such matters are picked up in the ANZCOTR data since it includes death from all causes not merely disease. It is also of significance that this plaintiff has been much more closely examined from a health point of view than most plaintiffs who come before the courts. Insofar as his pre transplant screening was concerned, he satisfied 28 out of 33 health factors which need to be considered when assessing patients for a heart transplant. Taking those matters into account, and also that which Basten JA said in Zhang v Golden Eagle International Trading Pty Limited [2006] NSWCA 25 at [50], I have decided that no further deduction for vicissitudes should be applied to the figure put forward by Professor Keogh. I find that the plaintiff’s life expectancy is 12.5 years.

44 Because of the agreement between the parties, once the life expectancy figure has been arrived at, the amounts for other heads of damage can be calculated.

45 These heads of damage are:

Future cardiology consultations	$2,816.00
Future dermatology consultations	$4,506.00
Future general practitioner consultations	$1,455.00
Future blood tests	$1,352.00
Future chest x-rays	$2,441.00
Future Coronary angiography	$2,196.00
Future aids and equipment	$1,876.00
Future care	$156,192.00

46 There was not full agreement on the plaintiff’s requirement for a dobutamine stress echocardiogram in the future. The defendant submitted that set off against this claim should be the costs of two yearly exercise stress tests, an additional annual ECG and angiography and stenting which would have been required by the plaintiff’s underlying condition, even without the defendant’s negligence. There is some force in this submission but I do not accept that the set off is equal to the whole of the claim. I propose to allow $3,500.

47 In relation to the cost of future medication, the plaintiff’s claim in his schedule was put at $13,357 whereas the explanatory note to that head of damage calculated the claim at $5,500. The issue was whether or not the plaintiff would be eligible to apply for a Commonwealth Seniors Health Card when he turns 65. It seems to me from the material I have been shown, that he would have such an entitlement. I propose to allow $5,500 for future costs of medication.

Economic loss and loss of earning capacity

48 In order to understand the economic loss dispute, it is necessary to say something more about the plaintiff’s work history and how his business was structured at the time when he was forced to cease work. The following summary, except where otherwise indicated, should be taken as my findings of fact on this issue.

49 The plaintiff left high school in 1960 at the end of year 8 when he was 14 years old. Thereafter he worked in various labouring jobs until he was 18. At that age he commenced working as a truck driver. He continued working as a truck driver until he was forced to cease work in July 2003.

50 The plaintiff bought his first truck in the mid 1970’s. His business was then structured as a partnership with his wife, known as “K and E George”. In 1980 the plaintiff commenced working as a subcontract truck driver for David Holdings. He operated out of their Blacktown depot. He continued to work as a contractor for David Holdings until he suffered his infarct.

51 From time to time while he was performing work for David Holdings, the plaintiff changed trucks. For the purposes of this case, the last two trucks which he used are of importance.

52 In about 1997 the plaintiff purchased a new bogey drive Iveco prime mover. He did this because a bogey drive prime mover was needed to move the larger loads. It was the plaintiff’s evidence, which I accept, that the Iveco would frequently break down. It was often off the road for the purpose of repairs. This meant that earnings were reduced and the expenses of running the truck increased. In the case of expenses, that evidence is borne out by the record of business costs for the years 2000 and 2001.

53 In September 2001, the plaintiff replaced the Iveco prime mover with a Volvo bogey drive prime mover. It was the plaintiff’s evidence, which I accept, that the Volvo bogey drive was a good prime mover and he intended to keep it until he retired.

54 The plaintiff said that he always looked after the trucks which he drove. He was careful to drive so as to minimise wear and tear. He cleaned and serviced his trucks regularly. This evidence is borne out by the fact that when he was forced to sell the Volvo prime mover in 2005, he received a very good price for it.

55 The plaintiff purchased his trucks through a lease arrangement. In the case of the Volvo prime mover, the lease would have expired in September 2006. The residual amount which he would have had to pay was $57,307.58. The plaintiff did not think he would have been able to pay out the residual value of the lease in September 2006 and would have probably refinanced by taking a loan or a lease for the residual amount. He accepted that the Volvo may have required more repairs as it got older and thereby been more expensive to run. He estimated the cost of a new engine, if one were required, at $20,000.

56 In the years before he was forced to give up work, the plaintiff’s routine was fairly regular. He worked six days per week. He would get up at about 2-3am each morning and would commence work at about 5am. He spent Sundays with his family, although from time to time he would clean the prime mover on Sunday mornings. He used to work between 12 and 18 hours per day.

57 There were aspects of his work which were physically very heavy. The unloading of pallets from the trailer was often difficult because a manual pallet jack had to be used. A full load would comprise 18-20 pallets per trailer. The unloading task could become even more difficult if one of the pallets had moved or been displaced during the journey. It was then necessary for the plaintiff to push and pull the pallet into position so that it could be removed.

58 Depending on the nature of the loading dock, it was on occasions necessary for the plaintiff to wind down the legs at the front of the trailer so that it disengaged from the truck. This also involved heavy work. The plaintiff said that until he commenced experiencing chest pains he had no difficulty in performing this work despite its difficulty. He travelled as far a field as Tamworth, Taree, Port Macquarie, Nowra, Sussex Inlet, Quirindi, Canberra and Lightning Ridge in the course of his work.

59 In 1997 the plaintiff incorporated his business. The company was known as “K and E George Pty Limited”. The plaintiff and his wife were the directors and shareholders of the company.

60 The plaintiff’s wife did the banking, paid expenses and all the bookwork associated with the business. She spent about 2-3 hours per week performing this work. The plaintiff said that if his wife had not done that work, he would have done it himself. He would not have paid someone else to do it. He did not pay his wife anything for performing that work. For income tax purposes, the income earned from the company was divided equally between he and his wife.

61 I had the benefit of seeing both the plaintiff and his wife give evidence. It is clear to me that the plaintiff’s wife is an astute and clever woman. At the time when the evidence was given, it was clear that the plaintiff deferred to her when it came to financial matters. This was most clearly demonstrated when the plaintiff was attempting to answer questions about some plans which he had to subdivide a block of land.

62 The difficulty for the Court in deciding the extent of the plaintiff’s wife’s contribution to the business is that there is evidence that the plaintiff’s acuity has been reduced as a result of what has happened to him. It may be that his presentation in the witness box reflected that fact rather than the situation which existed in relation to the business before his infarct.

63 Even making allowances for that, I am satisfied that the plaintiff’s wife did make a real contribution to the running of the business and that she looked after the paperwork side. On the basis of the business records which have been referred to and discussed by the accountants in their evidence, the estimate of 2-3 hours per week to maintain the records of the business, seems reasonable.

64 Given the long hours which the plaintiff was working and my impression of both him and his wife, I am not satisfied that had the plaintiff’s wife not performed this aspect of the business the plaintiff would have been able to do so himself. I have concluded that the plaintiff’s wife made a real contribution to the business.

65 After the plaintiff was forced to cease work on 22 July 2003, his wife tried to keep the business going by obtaining the services of replacement drivers. This procedure appears to have worked reasonably well until December 2004. The subcontract drivers were paid one third of the gross earnings of the business. From December 2004, however, the replacement drivers were only prepared to drive three days per week and the business started to lose money. The plaintiff had no alternative but to stop trading and sell his truck. The truck was sold on 15 June 2005 for $187,000. After paying back the amount outstanding on the lease and the residual value of the truck, the plaintiff received $67,000.

66 The plaintiff said that the business expenses for the years ending 30 June 2004 and 2005 (excluding the payments to the subcontract drivers) reflected the usual annual operating costs of the business. He said that the gross income for those years also reflected the income which he would have been able to earn had he not suffered his infarct if one made allowance for the fact that in the financial year ending 30 June 2005, the subcontract drivers had only driven for three days per week.

67 In relation to his employment intentions the plaintiff said that until he became ill he had not given any thought about when he would retire. He said that he intended to work as long as he could and that he had no doubt that he would have worked past the age of 70. He said he loved his job. As an incentive to continuing to work he said that he had no savings and that there was a $300,000 mortgage on his home which he needed to pay off.

68 That evidence of the plaintiff requires further analysis. The medical evidence indicates that as of June 2003 the plaintiff was in good health. He had previously suffered from elevated blood pressure and high cholesterol. These conditions had apparently been adequately treated by medication. Although he had been a heavy smoker for about 20 years, he had given that up many years before.

69 According to Dr Michell, the plaintiff (had he been properly treated) would have undergone angioplasty (stenting) and probably a single coronary artery bypass graft to the right coronary artery stenosis. He would have been able to return to work within three months of that process. Dr Michell thought that the plaintiff would have been able to continue working but heavy lifting could have been potentially dangerous. Dr Michell suggested that the plaintiff would have required an electric pallet jack to reduce his need to engage in heavy physical activity. Similarly, Professor O’Rourke in his report of 22 February 2007 said that had he been properly treated, the plaintiff would have been able to continue with his normal activities. Professor O’Rourke thought that his skin lesions would have been far less of a problem and he would not have suffered from kidney failure, heart failure, gout or shoulder problems.

70 I believe the Court has received more information about the nature of the plaintiff’s work than did Dr Michell. I accept that an electric pallet jack would have made the plaintiff’s work easier for him but it would not have eliminated the need to perform heavy work from time to time. In particular, there would still have been the need to adjust the legs of the trailer from time to time and to manoeuvre a loaded pallet if it had become displaced during the course of a journey.

71 One also cannot ignore the inevitable effect of the aging process. It seems to me that it would have become increasingly difficult for the plaintiff to work between 12 and 18 hours per day, six days per week, on a consistent basis. This is particularly so when his work day started so early and may have involved heavy physical activity from time to time which could not be avoided.

72 In reaching my conclusions as to the plaintiff’s capacity to work in the future, I have had regard to s 13 of the Civil Liability Act 2002 (CLA).

“13(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.”

73 I am satisfied that the plaintiff had real incentives to continue working beyond age 65. There was the need to pay off his truck and pay off his home. The lack of any substantial savings provided a further incentive. The issue is the plaintiff’s capacity to continue in such a demanding job at the same level in his late 60’s.

74 I have concluded that the plaintiff would have been able to maintain his pre-illness level of work until at least 67 years of age. Thereafter, I am satisfied that he would have continued to work as a truck driver but at a significantly reduced rate. I am not satisfied that he would have been able to work as a truck driver beyond the age of 70. In line with those findings and in accordance with s 13(2) CLA, I propose to apply a substantial discount by way of vicissitudes in respect of the period from age 67 to 70.

75 The evidence as to the actual detail of the earnings of the business, came from the reports of the accountants retained by the parties. Mr Rossetto was retained on behalf of the plaintiff and Mr Ivey on behalf of the defendant. The parties agreed when providing instructions to the accountants that the principles outlined in Husher v Husher (1999) 197 CLR 138 should be applied. Their task was to ascertain:

“The financial loss occasioned by impairment of earning capacity [which] is the loss of what [if there had been no accident] the injured plaintiff would [as opposed to could] have expected to have had under his or her control and at his or her disposal by exercising that capacity.” Husher [18].

76 An initial dispute between the accountants related to how one should treat the contribution of the plaintiff’s wife to the business. Mr Rossetto’s approach was to ignore the contribution on the basis that it was minimal and to accept the plaintiff’s evidence that if Mrs George had been unable to perform that work, it would have been performed by the plaintiff. The approach of Mr Ivey was to take account of that work as forming an integral part of the business and to give it a value. The value which he gave it was the amount of $7,800 per year. This was the amount apparently attributed to that work by the plaintiff’s accountant in the 2004 financial year. That was the only year in which any separate amount had been allocated to the plaintiff’s wife. Since Mrs George’s capacity to perform that work had not been adversely affected by the plaintiff’s illness, Mr Ivey submitted that its value should be deducted from the earnings of the business when calculating past and future economic loss.

77 For the reasons previously given, I do not accept the plaintiff’s evidence that he would have been able to perform the bookwork for the business had his wife not been willing or able to continue doing so. Nevertheless, it is still necessary to appropriately characterise that work. I am guided in that exercise by the underlying rationale behind tort damages, i.e. to put a plaintiff, as best one can from a financial point of view, in the same position that he or she would have been in, had they not been injured.

78 In this case the monies received by the business came from the exertions of the plaintiff. Without that actual production of income for the business, the work of Mrs George had no value. Accordingly, even though she retained the capacity to look after the records and books of the business, that capacity had no value unless a business continued to exist. Accordingly, I have concluded that the most appropriate way to treat the input of Mrs George into the business is to ignore it. The true loss of the plaintiff is represented by the actual receipts of the business with no deduction for the two or three hours per week contributed by Mrs George.

79 Another area of disagreement between the accountants was the way in which they calculated the income and expenses of the business. Mr Rossetto chose the financial year 2004 as being representative of both the potential income of the business and its expenses. Mr Ivey challenged that approach on the basis that the plaintiff had not actually performed any work during that year and that there might be matters included in that year (which do not appear from the figures) and which would make that year inappropriate to be used as representative of the earnings of the business.

80 Mr Ivey was also critical of an approach which took only one year as representative of the earnings and expenses of the business. He contended that the better approach was to take the performance of the business over a period of time and average the results. He averaged the performance of the business for the financial years 2001 – 2003 in reaching his conclusions.

81 Both accountants gave evidence concurrently. In the course of that process I made it clear to them that I favoured the average approach. I also made it clear that I thought there were difficulties in taking the financial years 2001 – 2003 as being representative of the performance of the business. This was because those years included the unsatisfactory Iveco truck, which had caused a reduction in earnings, and an increase in expenses. I expressed the view that a better indicator of the performance of the business would be the average earnings and expenses of those years when the Volvo truck was operating.

82 As a result of those indications, both accountants reworked their figures and produced an average of the earnings and expenses of the business for the financial years 2002 – 2004. Those reworked figures became exhibits L and 7 respectively.

83 Another issue upon which the accountants disagreed was how the lease payments for the Volvo truck were to be dealt with in the future. It was common ground that had the plaintiff not suffered his infarct the lease payments would have ceased in 2006. It was the plaintiff’s evidence which I have accepted that he would have once again leased a truck for its residual value. Mr Rossetto allowed for that by taking into account that such lease payments were tax deductible. For the financial years 2007 and 2008 he included such payments as part of the operating expenses of the business.

84 Mr Ivey included in his expenses of the business for both the past and the future the full amount of the lease payments, i.e. $37,000. In relation to the post 2006 period, he justified this by reference to the capital asset which the plaintiff was obtaining by paying off the truck and by reference to the increase in running costs which would be experienced by the business as the Volvo truck became older.

85 While I agree that some allowance after 2006 needs to be made for the likelihood that maintenance costs for the Volvo would increase as it became older, the continuation of the full lease payment amount as part of the expenses of the business cannot be justified. The lease payments constitute a significant expense and to take them into account in that way is quite arbitrary. I do not accept Mr Ivey’s approach on this issue. The evidence and discussion of this issue is at T.87-89.

86 After averaging the earnings and expenses of the business for the financial years 2002 – 2004, Messrs Rossetto and Ivey produced figures for past economic loss which were not significantly apart. Mr Ivey calculated a loss of $308,036. Mr Rossetto calculated a loss of $336,729. An explanation for the difference is that Mr Ivey took into account as an expense the contribution of Mrs George to the business and for the years after 2006 continued to treat the full lease payments as a business expense. It is also clear from cross-examination (T.95.15-25) that Mr Rossetto allowed nothing for increased motor vehicle expenses for the years after 2006 to take into account the increasing age of the Volvo.

87 For the reasons set out above, the calculations of Mr Rossetto accord more closely with my assessment of past economic loss than do those of Mr Ivey. As I have indicated, I do not consider it appropriate to treat the contribution of Mrs George as a business expense, nor do I regard it as appropriate to deduct the full cost of the vehicle leasing expenses for the period after the lease ceased. On the other hand, I think some increase in vehicle maintenance expenses needs to be allowed for, both for the past and future, to allow for the fact that the Volvo was getting older. Following that approach, I propose to allow the amount of $330,000 for past economic loss.

88 In relation to the future, for the same reasons, the calculations of Mr Rossetto accord more closely with my conclusions as to the loss actually suffered by the plaintiff’s business. Even so, some further adjustments are required. In exhibit L Mr Rossetto calculated the future loss of income if the plaintiff retired at age of 67 at $237,971. If an allowance is made for a modest increase in the maintenance expenses of the Volvo during that period, that figure becomes $225,000.

89 That does not end the matter. Although I have concluded that without his illness the plaintiff would probably have been able to continue to work fulltime as a truck driver to the age of 67, some allowance has to be made for vicissitudes. The work was physically hard and as Dr Michell pointed out, even if the plaintiff had been appropriately treated for his heart condition, he would still have needed to be careful after he returned to work. In my opinion, a deduction in the conventional amount of 15 percent is appropriate. This produces a figure of $191,250.

90 I have concluded that the plaintiff would probably have been able to work as a truck driver to age 70 but if he had, his level of output would have been significantly reduced because of his age leaving aside other health considerations. In order to take that into account, I propose to apply a discount of 50 percent to the plaintiff’s likely earnings between age 67 and 70. On the basis of exhibit 11, the difference in earnings between the plaintiff retiring at age 67 and age 70 was approximately $182,000. Applying a 50 percent discount to that figure produces $91,000.

91 It follows that my assessment of the plaintiff’s past economic loss is $330,000 and of his future loss of earning capacity is $282,250.

Non-economic loss

92 I have already outlined in the factual background some of the plaintiff’s history and the extent of his present disability. In assessing non-economic loss I have taken into account his initial period in hospital and the extensive treatment which that involved. I have taken into account the shock and upset he must have felt when initially told upon discharge that he had a life expectancy of 2 years. I have taken into account the severe level of his disability until he underwent his heart transplant procedure when even very minor activity caused breathlessness and forced him to rest. I have taken into account that his life expectancy has been reduced despite the transplant.

93 I have also had regard to the significant improvement brought about by the transplant procedure. An example of his improvement was recorded by Dr Michell in his report of 17 October 2006 as follows:

“He told me that since the cardiac transplantation that he is considerably less breathless with effort. Today he parked his car in Bent Street, close to Phillip Street and walked to my rooms in Macquarie Street which is situated close to Queens Square. This is quite an uphill walk and he said that he only became moderately breathless. … On the whole I would assess his effort tolerance to be good. … He said to me that he gets the “shakes” quite a lot which he quite rightly attributes to a “nervous state”.
When I saw him in April 2004 his memory was certainly not good and he was quite depressed. Today I did not feel that he was particularly depressed but he still had memory lapses. According to his wife, his memory has been a little better since the transplant but she says that it is “still not good”. … He does not do very much in the way of physical activity. He watches television and reads newspapers. He does not read any books. He helps his wife with the housework and he does a little gardening but finds these tasks to be very tiring. …”

94 Following the transplant procedure, his chest pain has ceased altogether. His only pain now is bilateral shoulder pain which occurs with effort and pain in the hips which is due to his osteoporosis.

95 The side effects caused by the drugs which he has to take seriously interfere with his enjoyment of life. He has to be careful when going into direct sunlight to be wearing sunscreen, appropriate head covering and covering for his arms. His skin cancers have been aggravated by his medication. The drug regime has also brought about osteoporosis and gout.

96 The medical evidence concerning whether or not he has suffered hypoxic brain damage is equivocal. The hospital notes do not identify any particular episode. Professor Oakeshott’s opinion seems to be based primarily on the observations of Mrs George. The radiology report on the cerebral MRI of April 2007 does not suggest hypoxic brain damage. On the basis of that report if he did suffer hypoxic brain damage, it was of a relatively minor kind.

97 Regardless of its cause, what does seem clear is that the plaintiff’s memory has been adversely affected by what he has been through and he appears to be slower in decision making.

98 Perhaps the most significant change for the plaintiff has been the reversal of his position within the family. From being a robust and healthy man who was the family breadwinner, he is now unable to work at a job which he loved. He is often dependent upon his wife and has to restrict his physical activities. He also has to be regularly monitored by the heart transplant team to ensure that the side effects of his medication, or other co-morbidities, do not develop.

99 There is no doubt that his quality of life has been significantly degraded.

100 All of the above matters, and those referred to in the factual background, are not in dispute. The difficult question for the Court is how to appropriately assess those disabilities by reference to the test of “a most extreme case” as referred to by the CLA.

101 The competing submissions were 60 percent by the defendant and 70 percent by the plaintiff.

102 It seems to me that 70 percent is too high. While the plaintiff’s disabilities are clear and undoubted, one has to have regard to a spectrum of disabilities which the concept of “a most extreme case” invites. The Court has to do its best to appropriately assess the plaintiff by reference to that spectrum.

103 In this case he does retain a reasonable quality of life. While he has pain, it is quite manageable and was certainly not stressed, either in his evidence or in his histories to doctors. Taking all those matters into account, I would assess him at 65 percent of a most extreme case, i.e. $307,450.

104 The plaintiff has an entitlement under the CLA to interest on past economic loss. In order to calculate that figure, it is necessary to deduct from the amount awarded for past economic loss the payments of weekly compensation which the plaintiff has received. As of 13 August 2009 the amount was $131,852. Thereafter, the plaintiff has received $880 net per fortnight, i.e. $7,040. Accordingly, the total amount received by the plaintiff by way of weekly compensation which has to be deducted is $138,892. Applying the CLA interest rate, the plaintiff’s entitlement to interest on past economic loss is $32,106.

105 A further figure which needs to be taken into account is the plaintiff’s entitlement to be reimbursed for the amount of taxation which has been deducted from his worker’s compensation payments, ie the Fox v Wood amount. As of 7 December 2009 the tax paid on the plaintiff’s workers compensation payments amounted to $12,451.64.

106 It follows from the above calculations that the plaintiff’s entitlement to damages is as follows:

Non-economic loss	$ 307,450.00
Past economic loss	$ 330,000.00
Interest on past economic loss	$ 32,106.00
Fox v Wood	$ 12,451.64
Future loss of earning capacity	$ 282,250.00
Past out-of-pocket expenses paid by GIO	$ 140,072.23
Medicare repayment	$ 6,433.00
Past care	$ 74,162.00
Past transport assistance	$ 25,000.00
Future care	$ 156,192.00
Future home modification	$ 3,000.00
Future health professional costs	$ 165.00
Future cardiology consultations	$ 2,816.00
Future dermatology consultations	$ 4,506.00
Future General Practitioner consultations	$ 1,455.00
Future blood tests	$ 1,352.00
Future chest x-rays	$ 2,441.00
Future coronary angiography	$ 2,196.00
Future aids and equipment	$ 1,876.00
Future Dobutamine stress echo cardiograms	$ 3,500.00
Future medication	$ 5,500.00
Total	$1,394,923.87

107 As was agreed between the parties, the following two amounts have to be deducted from the damages schedule.

Payments made or to be made to the GIO $ 538,828.08

Advance by way of interim payment $ 80,000.00

Total $ 618,828.08

108 When that amount is deducted from the damages schedule, the plaintiff’s entitlement to damages is $776,095.79.

Orders

(i) There will be judgment for the plaintiff in the sum of $776,095.79.
(ii) Subject to any special costs orders being sought by the parties, the defendant should pay the plaintiff’s costs of these proceedings.

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