Gould v South Western Sydney Local Health District

[2017] NSWDC 67

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Gould v South Western Sydney Local Health District [2017] NSWDC 67

Hearing dates:

15, 16, 17, 19 and 26 February, 19 October, 7 and 16 November 2016, (close of submissions 5 December 2016)

Date of orders:

30 March 2017

Decision date:

30 March 2017

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff in the sum of $240,930.10;

 

2. The defendant is to pay the plaintiff’s costs on the ordinary basis until 18 December 2015, and on the indemnity basis thereafter;

 

3. The exhibits may be returned;

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

Catchwords:

TORTS – negligence – public hospital – emergency medical and surgical treatment of severe thumb injury in 8 year old child – development of infection and gangrene resulting in surgical amputation of tip of thumb – whether breach of duty of care arising from delayed surgical irrigation, exploration and repair of wound – whether breach of duty of care arising from choice of particular antibiotic therapy and post-operative care – consideration of conflicting expert opinions – consideration of rationality of opinions basing defence claimed pursuant to s 5O of the Civil Liability Act 2002 – consideration of claimed defence of novus actus interveniens – whether causation established; DAMAGES – assessment of claimed heads of damage

Legislation Cited:

Acts Interpretation Act 1987, s 21
Civil Liability Act 2002, Pt 1A, Pt 5, s 5B, s 5C, s 5D, s 5E, s 5O, s 13, s 16, s 42
Evidence Act 1995, s 60

Cases Cited:

Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538
Ainsworth v Ainsworth [2002] NSWCA 130
Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542
Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Blacktown City Council v Hocking [2008] NSWCA 144
Bonitto v Fuerst Bros & Co Ltd [1944] AC 75
Browne v Dunn (1894) 6 R 67
Cupac v Cannone [2015] NSWCA 114
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Dobler v Halvorsen [2007] NSWCA 335; (2007) 70 NSWLR 151
Glen v Sullivan [2015] NSWCA 191
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
Hope v Hunter and New England Area Health Service [2009] NSWDC 307
Hunter and New England and Local Health District v McKenna [2014] HCA 44
Larson v Commissioner of Police [2004] NSWCA 126
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522
Majkic v Bonnano [2008] NSWCA 253
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Manly Municipal Council v Skene [2002] NSWCA 385
Melchior and Ors v Sydney Adventist Hospital Ltd and Anor [2008] NSWSC 1282
Moage Ltd (in liq) v Jagelman [1998] 153 ALR 711
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58
Penrith City Council v Parks [2004] NSWCA 201
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
Shaw v Thomas [2010] NSWCA 169
Solomons v Pallier [2015] NSWCA 266
St Clair v Timtalla Pty Ltd and Anor (No 2) [2010] QSC 480
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Strinic v Singh [2009] NSWCA 15; [2009] 72 NSWLR 419
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

Texts Cited:

Concise Oxford Dictionary, 8th ed (1990)
RB Gustilo and JT Anderson, “Prevention of Infection in the Treatment of One Thousand and Twenty-Five Open Fractures of Long Bones : Retrospective and Prospective Analyses”, American Journal of Bone and Joint Surgery: 1976
Hull et al, Journal of Bone and Joint Surgery, March 2014
Ibrahim T, et al, “Delayed surgical debridement in paediatric open fractures : systematic review and meta-analysis”, Journal of Child Orthopaedics (2014)
New Shorter Oxford English Dictionary, 3rd ed (reprinted 1993)
Macquarie Dictionary, 6th ed (2013)
Skaggs, et al, “The Effect of Surgical Delay on Acute Infection Following 554 Open Fractures in Children”, DL Journal of Bone and Joint Surgery: Jan 2005
Therapeutic Guidelines – Antibiotics (2010)

Category:

Principal judgment

Parties:

Robert Gould by his tutor Carol Anne Gould (Plaintiff)
South Western Sydney Local Health District (Defendant)

Representation:

Counsel:
Dr SC Thornton (Plaintiff)
Mr RJA Sergi (Defendant)

  Solicitors:
Schreuder Partners (Plaintiff)
Curwoods (Defendant)

File Number(s):

2014/91004

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1]
Factual background	[2] – [21]
Photographic images	[22] – [24]
Classification of antibiotics	[25] – [28]
Claims by plaintiff	[29] – [31]
Defence	[32]
Evidence overview	[33] – [37]
Expert witnesses	[38] – [40]
Expert evidence – difficulties for analysis	[41] – [48]
Medical records	[49] – [51]
Anomalously dated Hand Clinic note - 30 September 2011	[52] – [66]
Credibility and reliability of testimony	[67] – [86]
Mrs Gould	[68] – [75]
Mr Gould	[76]
Plaintiff	[77] – [78]
Dr Geraghty	[79] – [82]
Dr Scott	[83] – [84]
Dr Sathasivam	[85]
Expert witnesses	[86]
Relevant legislation	[87] – [91]
Issues	[92] – [97]
Factual findings	[98] – [240]
(1) The plaintiff’s circumstances	[99] – [101]
(2) Injury circumstances	[102] – [111]
(3) First aid before receiving medical treatment	[112]
(4) Treatment at Campbelltown Hospital	[113] – [118]
(5) Chronology of treatment at Campbelltown Hospital	[119]
(6) Transfer and treatment at Liverpool Hospital	[120] – [130]
(7) Chronology of medical treatment at Liverpool Hospital	[131] – [135]
(8) Evidence of Dr Geraghty – plastics/hand surgery registrar	[136] – [159]
(9) Evidence of Dr Scott – treating hand surgeon	[160] – [186]
(10) Subsequent injury to left hand on 28 August 2011	[187] – [191]
(11) Evidence of Dr Sathasivam – trainee plastic surgeon	[192] – [204]
(12) Chronology - Hand Clinic on 30 August 2011	[205]
(13) Chronology - Campbelltown Hospital 4 September 2011	[206] – [209]
(14) Chronology - Hand Clinic after 6 September 2011	[210] – [212]
(15) Chronology - 15 September 2011 - thumb amputation	[213]
(16) Post-amputation Hand Clinic reviews	[214]
(17) Stump revision surgery	[215] – [216]
(18) Rehabilitation post-amputation	[217]
(19) Subsequent medical and allied assessments	[218] – [229]
(20) Disabilities	[230] – [238]
(21) Mitigation	[239] – [240]
Expert opinions on liability issues	[241] – [372]
First report of Dr Raftos – for plaintiff	[242] – [248]
First report of Dr Mansour – for plaintiff	[249] – [253]
First report of Dr Gatus – for defendant	[254] – [287]
First report of Dr Haertsch – for defendant	[288] – [295]
Second report of Dr Haertsch	[296] – [300]
Dr Gatus’ comments - Dr Raftos and Dr Mansour	[301] – [303]
Dr Mansour’s comments - Dr Gatus	[304] – [310]
Dr Raftos’ comments - Dr Gatus and Dr Haertsch	[311] – [313]
Joint report by Dr Raftos and Dr Gatus	[314] – [338]
Concurrent expert evidence - Dr Raftos and Dr Gatus	[339] – [372]
Evaluation of expert evidence for reliability	[373] – [457]
Evaluation of Dr Mansour’s reports	[375] – [381]
Evaluation of Dr Haertsch’s reports	[382] – [383]
Evaluation of evidence by Dr Raftos	[384] – [397]
Evaluation of evidence by Dr Gatus	[398] – [457]
Conclusions following evaluation of expert evidence	[458] – [467]
Issue 1 – Identification of relevant risk of harm	[468] – [477]
Issue 2 – Duty of care and its scope and content	[478] – [488]
Duty of care	[479] – [480]
Scope and content of duty of care	[481] – [488]
Issue 3 – Breach of duty of care	[489] – [579]
(1) Initial assessment and treatment plan	[494] – [511]
(2) Delay until surgical washout	[512] – [542]
(3) Adequacy of in-patient antibiotic regime	[543] – [555]
(4) Adequacy of antibiotic regime on discharge	[556] – [558]
(5) Adequacy of care by Hand Clinic	[559] – [579]
Issue 4 – Causation	[580] – [607]
Factual causation : s 5D(1)(a) of CL Act	[583] – [600]
Scope of liability : s 5D(1)(b), s 5D(4) of CL Act	[601] – [606]
Conclusions on causation	[607]
Issue 6 – Defence – s 5O of the Civil Liability Act 2002	[608] – [673]
Whether defendant is a person	[612] – [614]
Peer professional opinion in Australia	[615] – [618]
Rationality proviso	[619] – [672]
Conclusion on s 5O Defence	[673]
Issue 7 – Defence – Novus actus interveniens	[674] – [693]
Issue 8 – Assessment of damages	[694] – [717]
Plaintiff’s probable life span	[695]
Plaintiff’s most probable circumstances but for injury	[696] – [697]
Non-economic loss	[698] – [702]
Future loss of earning capacity	[703] – [709]
Future treatment	[710] – [715]
Out of-pocket expenses	[716]
Summary of damages assessment	[717]
Disposition	[718]
Costs	[719]
Orders	[720]

Nature of case

1. The plaintiff, Robert Gould, is aged 13 years. He brings these proceedings by his paternal grandmother and tutor, Mrs Carol Gould. His claim is framed in negligence against the defendant, the South Western Sydney Local Health District, which is the entity that has legal responsibility for the actions of the staff of Liverpool Hospital. The plaintiff claims he was medically mistreated at that hospital on 22 August 2011, and in the ensuing days, following his admission there on that date for the treatment and management of a traumatic injury to his left thumb. The proceedings are governed by the Civil Liability Act 2002 [“CL Act”].

Factual background

2. At an unknown time, which was assumed to have been shortly before 17:30 hours on the afternoon of Monday 22 August 2011, the plaintiff, then an 8 year old Year 3 student, was playing outdoors when he sustained a severe complex crushing injury to his left thumb, and an injury to his middle finger. He was initially taken to Campbelltown Hospital emergency department, where an extensive comminuted and acute fracture of the distal portion of his left thumb was identified on x-ray examination. At that hospital, his wounds were temporarily dressed with a saline soaked gauze bandage, he was given pain relief and the antibiotic flucloxacillin, and he was then transferred by ambulance to Liverpool Hospital for further assessment and treatment.

3. At about 20:05 hours on the same day, the plaintiff arrived at Liverpool Hospital, which was at the time, a tertiary referral trauma centre equipped with 15 operating theatres, where only one such theatre had been allocated as open for emergency use that evening.

4. After being medically assessed at Liverpool Hospital, the plaintiff was scheduled to undergo emergency surgery as the next patient in line for the operating theatre on that evening. The scheduled procedure was described as being for wound exploration, irrigation, washout, debridement, and possible fixation of his fractures. At the time, general anaesthesia in an operating theatre was the only feasible means to achieve cleaning of the plaintiff’s wound: T121.4 – T121.7.

5. Unfortunately, as events unfolded, it was decided by those caring for the plaintiff that the planned surgery would be postponed due to the later arrival of other emergencies that hospital staff had assessed as having higher priority. In those circumstances, the surgery that had been planned for the plaintiff, ultimately took place later, on the following morning, some 16 hours after he had been transferred into the care of staff at Liverpool Hospital. Had the procedure been carried out on the evening of 22 August 2011, as had been initially planned, this would most probably have occurred within 6 hours of the plaintiff’s presentation to that hospital, a matter of some relevance to the issues in contention in this case.

6. The procedure actually performed on the plaintiff was described as surgery for the exploration of the left thumb wound, and a wound washout, followed by the insertion of K-wires for fracture management, along with a surgical repair of the extensor tendon and the nail bed of the left thumb, and a repair of the nail bed of the left middle finger. The plaintiff also received antibiotic therapy at the hospital. The nature of the prescribed antibiotic regime is the subject of contention in these proceedings.

7. The plaintiff was discharged from Liverpool Hospital on 24 August 2011, with antibiotic therapy ordered to be continued, as was then prescribed. Just prior to his discharge from hospital, the plaintiff's antibiotic regime of intravenous cephazolin or cefazolin, as variously described, was 500mg 6 hourly (Exhibit "1", Tab 1, p 284). At the time of that discharge, the antibiotic regime was changed to oral Augmentin Duo Forte 500mg BD: Exhibit "1", Tab 1, p 262. The prescribed antibiotic regime was the focus of criticism from experts who evidence was tendered in the plaintiff's case. In contrast, that regime was defended by the defendant's experts.

8. In the course of these reasons, the various spellings of the antibiotic drug cephazolin or cefazolin, or cephalexin, are used according to the cited context. There is no issue that wherever those references appear, they refer to the same entity, a cephalosporin antibiotic drug.

9. After the plaintiff was discharged from hospital, he went on to develop infection and gangrene to the tip of his left thumb, which one expert thought was due to ischaemia or blood loss, and which another expert thought was due to osteomyelitis infection. At no time prior to the plaintiff's discharge from hospital was there any contemporaneous notation in the medical records to the effect that circulatory perfusion to the plaintiff’s left thumb was considered to have been compromised.

10. On 28 August 2011, a few days after the plaintiff's discharge from Liverpool Hospital, the plaintiff’s grandmother took him to the Emergency Department of Campbelltown Hospital, with a presenting history of having on that day bumped his injured left thumb when he fell from a swing whilst playing with friends: T19.18 – T19.32. At the time of that presentation, the plaintiff's left thumb bandage appeared to Mrs Gould to be “a little bit wet” (T19.28), and when the bandages were unwrapped, it had what was described by her as having “a funny smell”: T19.41.

11. On 28 August 2011, whilst at Campbelltown Hospital the bandage on the plaintiff's left thumb was observed to have what appeared to be water on the outside: T20.9. The thumb had not been bathed between 24 August 2011 and 28 August 2011: T21.34. During an attempt at removal of the bandage on 28 August 2011, it was found to have been stuck to the packing which had been placed around that thumb. The bandage was later removed after soaking. The top part of the plaintiff's left thumb was then observed by Mrs Gould to have “a blackish colour” (T20.38), and it appeared to her perception, to have an unpleasant odour of decay, although the strength of that odour seemed to her to have decreased after the thumb had been washed at the hospital: T20.49 - T21.26.

12. On that occasion, a Sunday, after the plaintiff's thumb wound was re-bandaged, Mrs Gould was given a letter to take to the Liverpool Hospital Plastic Surgery and Hand Clinic, where the plaintiff was already scheduled to attend for a post-operative review at 13:50 hours on 30 August 2011: T21.33; Exhibit “1”, Tab 1, p 23. Accordingly, a further two days passed before the plaintiff was seen at that clinic.

13. Unusually, Mrs Gould’s evidence concerning the plaintiff's 28 August 2011 attendance at Campbelltown Hospital was not reflected by the appearance of any corresponding entries in the tendered copy of the Campbelltown Hospital notes. Mrs Gould's evidence of having taken the plaintiff to that hospital on 28 August 2011 was confirmed by her during cross-examination: T34.8 – T34.16. Mrs Gould’s evidence as to that hospital attendance was also confirmed by the evidence of Mr Gould: T45.24 – T45.36. That body of evidence remained unchallenged.

14. Apart from the fact that the 28 August 2011 visit to Campbelltown Hospital was not reflected by any corresponding entries made in the tendered copy of the hospital notes, there is no reasonable basis upon which to consider that there might be doubt about the accuracy of the evidence of Mr and Mrs Gould in that regard. The unchallenged evidence of those witnesses was not glaringly or inherently improbable.

15. Given the state of the tendered copies of the hospital notes, I am not prepared to conclude that the above-cited evidence of Mrs Gould and Mr Gould was anything other than truthful and accurate. There were no submissions made to the contrary, and in the course of the defendant's submissions, it seems to have been accepted that the plaintiff was taken to Campbelltown Hospital on 28 August 2011, as described by Mrs Gould: Defendant's primary written submissions, par 27.

16. Following his discharge from Liverpool Hospital, and during the period between 30 August 2011 and 15 September 2011, the plaintiff was referred to and remained under the care of the Liverpool Hospital Plastics and Hand Clinic. In that time, signs and symptoms emerged of him having developed what was initially described as superficial skin necrosis, and then later, infection and gangrene in his left thumb. In these proceedings, there is a dispute as to the cause of those problems. On 30 August 2011, the registrar at the Hand Clinic recorded in the notes that the plaintiff had superficial skin necrosis to his left thumb. At that time, the wound was washed and a dressing was applied: Exhibit “1”, Tab 1, p 9.

17. The plaintiff was due to revisit the Hand Clinic on either 7 or 8 September 2011. However, in the intervening period, as earlier described, the plaintiff was taken to Campbelltown Hospital on 4 September 2011. This was due to the malodorous condition of the thumb, and because of concerns expressed by Mrs Gould as to post-operative wound infection. At that hospital, after the thumb dressing was removed, the tip of the plaintiff’s left thumb was observed to have become black, and his wrist was observed to be red and sore. At that time the plaintiff was in pain, and there was some peeling skin and sloughing of tissue evident in the plaintiff’s left thumb. A wound swab was taken, the wound was soaked, dressed again, and it was noted that the plaintiff was due for review at the Hand Clinic on the following Tuesday.

18. On Tuesday, 6 September 2011, the plaintiff presented at the Hand Clinic earlier than was scheduled. This was because his grandmother was concerned about the condition of his hand. On this occasion, the same registrar who had seen the plaintiff on 30 August 2011, noted that the dorsal distal aspect of the plaintiff’s left thumb was necrotic, and made the notation “Dry gangrene”: Exhibit “1”, Tab 1, p 38. At that time, a repeat x-ray was interpreted as showing “no obvious signs of osteomyelitis”, a dressing was applied, and arrangements were made for the plaintiff to return to the clinic on 13 September 2011. At that 6 September 2011 visit, the plaintiff was also then referred for a further opinion to be obtained from a specialist hand surgeon, different to the one who had operated on him on 23 August 2011, concerning the appropriate management for his condition, as it had developed.

19. The chronological sequence comprising those events will require examination in closer detail in the factual evaluation required in this case. One of the factual matters of significance and requiring evaluation is the recorded observation by the Hand Clinic registrar on 6 September 2011, of the presence of dry gangrene in the plaintiff’s thumb, as distinct from wet gangrene. An inherent difficulty with that evaluation is that the registrar who made that note was called to give oral evidence, and the factual correctness or otherwise of that recorded observation was not challenged by cross-examination.

2. Ultimately, on 15 September 2011, due to the presence of infection and gangrene in the plaintiff’s left thumb, it was determined that it had become necessary for him to undergo amputation of the distal phalanx of his left thumb. On 10 July 2012, his amputation stump required further revisionary surgery which resulted in a further shortening of the residual portion of that thumb: Exhibit “B”, p 2. Following that surgery, the plaintiff received antibiotics variously described as ciprofloxacin or “cipro”, and Flagyl. These antibiotics were of a different kind and action to those which had previously been prescribed.

3. In the course of these reasons, the chronology of the events that occurred within the circumstances of the above factual outline will require a more detailed analysis in order to identify and clarify the sequence of relevant events, the matters relating to the duty of care owed, whether there were relevant breaches of that duty of care, and whether any such breach or breaches had relevantly caused the successive procedures for the amputation of portions of the plaintiff’s left thumb.

Photographic images

22. The copy photograph incorporated below, comprising Exhibit “C”, provides something of a graphic representation of the appearance of the plaintiff’s left thumb as it appeared before he received the initial surgical treatment on 23 August 2011:

23. The copy photograph incorporated below, comprising Exhibit “F”, taken at an unknown time after 24 August 2011 and before amputation surgery, provides something of a graphic representation of the plaintiff’s left thumb before the top of that thumb was amputated on 15 September 2011:

24. The copy photograph incorporated below, taken some time after 10 July 2013 and comprising Exhibit “G”, provides something of a graphic representation of the plaintiff’s left thumb after the stump revision surgery that was carried out on 10 July 2012:

Classification of antibiotics

25. The evidence and the submissions of the parties concerning the classification of antibiotics were left in a state of relative confusion. This was despite an invitation to the parties to provide supplementary submissions to clarify that subject, given it is inappropriate for a Court to proceed upon the basis of assumed knowledge or to undertake independent research on such matters which would ordinarily involve expert evidence: Strinic v Singh [2009] NSWCA 15; [2009] 72 NSWLR 419, at [112], [115].

26. The classification confusion arose because, in Dr Raftos’ report dated 10 April 2013, at page 11, in dealing with what antibiotic treatment had been required for the wound in question, he was of the opinion that: “Antibiotic prophylaxis for such a wound should include broad spectrum antibiotics such as a combination of a second generation cephalosporin (cephazolin, cephalothin) and gentamycin. … intravenously”: Exhibit “A”, p 213.

27. The parties have made a submission that did not completely deal with the second generation component of that evidence. In response to an invitation for the parties to clarify the classification of the antibiotics referred to in the evidence, in a supplementary submission dated 17 November 2016 (MFI “3”), the parties stated that “Cephalozin, cefalozin or cephaloxin, are first generation cephalosporins”. No specific challenge was made to the second generation component of the opinion of Dr Raftos.

28. In those circumstances, I must accept Dr Raftos’ unchallenged expert evidence on that antibiotic classification question. That said, despite the apparent classification confusion, to avoid doubt and uncertainty, where it is possible to do so, my consideration and findings will proceed upon the basis of the antibiotics as named in the evidence according to the spectrum of their activity, rather than according to their generational classification.

Claims by plaintiff

29. The plaintiff claims that unreasonable hospital treatment delays occurred, during which it is claimed that his injuries were mismanaged. This was in circumstances where those injuries needed urgent surgical treatment in the form of surgical wound irrigation, cleansing and debridement under general anaesthetic. The plaintiff claims that when the required surgical treatment was ultimately carried out, this took place after an unreasonable delay. The plaintiff also claims that whilst he was in the care of Liverpool Hospital he was provided with inadequate prophylactic antibiotic therapy against the risk of infection. In that regard, the expert evidence called by the plaintiff was to the effect he should have been given a broad spectrum antibiotic, with gentamycin added, a matter disputed by the defendant’s experts.

30. As a result of these events, the plaintiff claims that he was unnecessarily exposed to a significantly increased risk of developing osteomyelitis and gangrene due to delayed and inadequately treated bacterial contamination of the crushing wound to his left thumb. The plaintiff claims those events ultimately led to the otherwise needless surgical amputation of the distal phalanx of his left thumb. The plaintiff claims he suffered this untoward outcome due to avoidable negligence on the part of the defendant.

31. The outcome of cases of this kind centre around familiar issues, simply stated as being: duty, breach and causation of damages: Wallace v Kam [2013] HCA 19, (2013) 250 CLR 375, at [7]. In this case, consequent upon the need to consider the implications of complicated factual circumstances that evolved over time, the resolution of those matters, and the resolution of the related conflicting expert evidence, involves complexity, and this has contributed to the length of these reasons.

Defendant’s response to claims by plaintiff

32. The defendant denies that the plaintiff had been treated negligently in any respect. The defendant also seeks the benefit of a statutory defence to the effect that the treatment received by the plaintiff should not attract a finding of negligence because, it is claimed, the treatment which the plaintiff received, amounted to competent practice according to widely accepted peer professional opinion in Australia: s 5O of the CL Act. For such a defence to be established, the peer professional opinion must be shown to be rational. The defendant also argues the plaintiff has suffered no assessable damage because of the claimed intervening effect of the further injury to his left thumb on 28 August 2011.

Evidence overview

33. In the plaintiff’s case, oral evidence on factual matters was given by his maternal grandmother, Mrs Carol Gould, who has the day to day care of the plaintiff, and also from the plaintiff’s father, Mr Peter Gould. The plaintiff also gave oral evidence.

34. In the case for the defendant, oral evidence on factual matters was called from the treating hand surgeon, Dr Christopher Scott. The defendant also called oral evidence from Dr Sivapirabu Sathasivam, who was at the time, a trainee doctor in plastics, and who saw the plaintiff at some of his follow-up attendances at the Hand Clinic at Liverpool Hospital.

35. The defendant tendered an evidentiary statement from Dr Michéal Geraghty, who, at the time of the events, was a hand surgery registrar at Liverpool Hospital. He had undertaken the initial assessment of the plaintiff in the Emergency Department at Liverpool Hospital. He also discussed the plaintiff’s treatment plan with Dr Scott on the evening of 22 August 2011, and he ultimately assisted Dr Scott at the initial operative procedure performed on the plaintiff on 23 August 2011: Exhibit “1”, Tab 8, pp 501 – 507. The plaintiff did not require Dr Geraghty for cross-examination on the content of his statement: T76.49 – T76.50. His statement of evidence was therefore tendered without challenge: Exhibit “1”, Tab 8, pp 501 – 517. That statement nevertheless required evaluation concerning some of the factual matters described therein, in light of other evidence.

36. The parties each tendered a compendious folder containing copies of medical notes concerning the plaintiff’s treatment at both the Campbelltown and Liverpool Hospitals: Exhibit “1” and Exhibit “A”. There was overlapping content of those folders comprising the copies of hospital notes. The state of copying of the notes was problematic for analysis, a matter to which I shall shortly return. The folders of exhibits also included reports from the respective experts, and other documents. These will be referred to where it becomes relevant to do so.

37. The relevant portion of the notes comprising the treatment of the plaintiff at Campbelltown Hospital, appear between pages 301 to 402 of Exhibit “1”. The relevant portion of the notes comprising the treatment of the plaintiff at Liverpool Hospital, appear between pages 1 to 300 of Exhibit “1”. For consistency, in these reasons, whenever it is possible to do so, references will be made to the content of Exhibit “1” when considering the content of the hospital notes and clinical records.

Expert witnesses

38. Both parties relied upon the evidence of expert witnesses. In the plaintiff’s case, reliance was placed upon the reports of Associate Clinical Professor John Raftos, an eminent and senior emergency physician at St Vincent’s Hospital and at other hospitals, and Adjunct Associate Professor Albert Mansour, an eminent and senior consultant hospital paediatrician at Westmead Children’s Hospital. Dr Mansour was not required for cross-examination on the content of his reports, and therefore he did not give oral evidence.

39. In the defendant’s case, reliance was placed on the reports of Associate Professor Barrie Gatus, an infectious diseases expert in the Department of Microbiology at the Prince of Wales Hospital, and Associate Professor Peter Haertsch, a plastic and hand surgeon, whose hospital appointments were not identified in the evidence. Dr Haertsch was not required for cross-examination on the content of his reports as he was absent overseas, and therefore he did not give oral evidence.

40. The experts each had the opportunity of providing supplementary reports in which they commented upon the reports which had been prepared by the other experts with differing opinions. Dr Raftos and Dr Gatus were asked to meet in a conclave in order to prepare a joint report. That joint report was tendered in evidence: Exhibit “1”, Tab 3, pp 403 – 413. On 19 February 2016, those two experts also gave their oral evidence concurrently, and they were cross-examined in the presence of each other, with opportunities for them to comment upon each other’s evidence, where they, or the respective legal representatives, considered this to be appropriate: UCPR r 31.35.

Expert evidence – difficulties for analysis

41. In the present proceedings, as in all such cases, the conflicting views of the experts require a detailed analysis, as key aspects of their differing opinions must be resolved rationally for the purposes of determining the issues calling for decision in the case.

42. In the present case, the added difficulty impacting upon that analysis, and impacting upon the task of making findings on the balance of probabilities concerning disputed and conflicting matters of fact and opinion, is that for whatever reason, each party selectively chose to decline to explore and test the basis for the opposing opinions through cross-examination of some of those experts, including on focal points within the evidence that could possibly have been determinative of key issues in the proceedings.

43. Although that approach is permitted in this court by the operation of UCPR r 31.30, it inevitably creates a problem for the court in seeking to justly resolve conflicting medical opinions especially where some of the authors of expert reports were not required to give evidence: Ainsworth v Ainsworth [2002] NSWCA 130, at [71].

44. As has been previously and repeatedly remarked upon in other cases, such circumstances serve to create a burdensome task for analysis, and where expert evidence is left untested but still in conflict, unless an assiduous analysis is undertaken, this can lead to a seriously deficient process: Cupac v Cannone [2015] NSWCA 114, at [17] – [18], following Manly Municipal Council v Skene [2002] NSWCA 385, at [21] – [22].

45. In cases such as this, where the expert evidence is left in an incompletely explored state of conflict, and where no rational basis emerges for preferring one expert opinion over another, and where parties have merely tendered medical reports without calling or requiring the authors of expert reports to give explanatory oral evidence, it is well understood that the result is likely to be that the party with the onus of proof on a particular issue may well fail on that matter at issue: Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [48].

46. In resolving such matters, the essential course to be followed is that of undertaking a close examination of the underlying facts to determine what has been satisfactorily proven, and to then examine the detail of the expert evidence in light of those proven facts, and the facts that the experts have assumed. In that process, where expert opinion is sought to be relied upon, such opinions should be capable of being seen to differentiate between the assumed facts upon which the opinions are based, and the opinions in question: HG v The Queen [1999] HCA 2; (1999) 197 CLR 414, at [39].

47. In the context of an evaluation along those lines, in accordance with both principle, and common sense, the facts the experts have been asked to assume for the purpose of their opinions, must be sufficiently like the facts found to have been proven in evidence to render the expert opinion to be of any guidance value: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9].

48. The foregoing difficulties and the complexity of the underlying facts requiring consideration are reflected in the length of these reasons.

Medical records

49. The tendered copies of the hospital notes appeared to be in a problematic state, with pages out of order, with duplications and the inclusion of some blank pages, and some pages with redactions of text: Exhibit “1”, Tabs 1 and 2. It appeared as if the records had been shuffled, and copied in a manner that made them difficult to read and follow, a fact acknowledged by Dr Scott, the operating hand surgeon, when he gave his oral evidence: T85.37 – T85.38. That view was also endorsed in the course of the expert evidence: T118.32; T118.37; T94.13. In that cited expert evidence, distinction was sought to be made in the case of electronic as opposed to hard copy medical records, which were said to have made the hard copies difficult to follow: T118.33 – T118.37. In my view, that cited distinction does not apply in this instance, as it was the hard copy handwritten notes that were in a state of relative disorder.

50. It would be unusual and surprising if the hospital medical records had been kept in such a state of filing disarray. It is unfortunate that they were tendered in such an unsatisfactory state as this made the required analysis needlessly more burdensome and time consuming.

51. The state of the tendered copies of the hospital medical records consequently required the construction of a series of detailed chronological outlines of the relevant events that respectively occurred at Campbelltown Hospital, Liverpool Hospital and at the Liverpool Hospital Hand Clinic. Where relevant, these chronological outlines have been incorporated into these reasons as a necessary aide to the required analysis. That too has contributed to the length of these reasons.

Anomalously dated Hand Clinic note – 30 September 2011

52. In the course of constructing the chronological outlines referred to in the preceding paragraph, an apparently anomalous handwritten entry in the Liverpool Hospital Hand or Plastics Clinic notes was identified, bearing the date 30 September 2011.

53. The context of considering that note to be an anomaly, was a series of recorded visits by the plaintiff to the Liverpool Hospital Hand Clinic, on 30 August 2011 (Exhibit “1”, Tab 1, p 32), 6 September 2011 (Exhibit “1”, Tab 1, p 36), 13 September 2011 (Exhibit “1”, Tab 1, p 34), and, purportedly, on 30 September 2011: Exhibit “1”, Tab 1, p 37.

54. The reason for identifying that matter at this early point in these reasons is that, on analysis, I reached the tentative conclusion that the entry in the nursing notes dated 30 September 2011 has been incorrectly dated. When this matter was raised with counsel in order to provide the parties with an opportunity to make submissions on that view, counsel did not initially agree with my interpretation of the incorrect nature of the date of that note. In that regard, they each made written submissions to the contrary. After due consideration, for the reasons that immediately follow, I remained unpersuaded by those submissions. When the issue was again ventilated to the parties, counsel for the plaintiff ultimately adopted the view that the note in question was probably erroneous as to its date.

55. In order to understand the basis for that conclusion, at this point, it is necessary to set out the matters that I consider serve to demonstrate the identified error so that an attempt can be made in due course to reconcile that error with other relevant notes.

56. On 30 August 2011, the plaintiff was seen by the plastics registrar at the Liverpool Hospital Hand Clinic one week post-operatively. At that time, the registrar noted “significant skin necrosis”. That registrar’s note identified the further management plan as being to wash and dress the plaintiff’s thumb, apply a splint, and to review for follow-up in a further week, which would have been either 7 or 8 September 2011: Exhibit “1”, Tab 1, p 32.

57. Some further notes dated 30 August 2011 also appear in the Hand Clinic records. These may be either medical notes, nursing notes, physiotherapy notes or occupational therapy notes. Whilst it is not entirely clear as to which of those possibilities applies, because the identifying label in the notes did not photocopy well, on balance, it appears the notes were made by a physiotherapist having regard to the notation “PT” appearing next to the signature. That note states:

“30/8/11

1640

DOI – 22/8/11 Slipped & fell

L) hand crushed by rock.

C/town (arrow) bandaged (arrow) LHS.

DOS – 23/8/11 exploration + W/O L) thumb

+ I/O k-wires DP/PP + nail bed +

Ext tendon repair & L) MF

NBR

Ptx : ° prev injury to L) hand

SHx : RHD, Yr 3 student.

plays AFL/rugby

MHx : °reported.

O : ° cast insitu L) UL

Thumb + mf dressed (symbol for with) cohesive.

Rx : Skin cleaned + aired.

f/o radial forearm based thumb

spica splint (symbol for with) IPJ included (W) [indecipherable symbol]

(C) [indecipherable symbol] all care taken.

to wear full time.

cont…

30/8/11

cont.

Physio cont…

P “ N/V in clinic 1/52

(Signature) (Pauley) PT”

[Exhibit “1”, Tab 1, pp 32 – 31]

58. It is plain from the level of detail set out in the notes cited immediately above, that these notes were made at the plaintiff’s first post-operative visit to the Hand Clinic, and that afterwards, the plaintiff was also due to revisit that Clinic for review in a further week.

59. The plaintiff’s second recorded visit to the Liverpool Hospital Hand Clinic took place earlier than had been planned, namely on 6 September 2011. This was because the plaintiff had fallen from a swing on 28 August 2011. His visit to Campbelltown Hospital on that same day has already been described at paragraphs [10] to [15] above. The nursing notes made on the occasion of the plaintiff’s visit to the Liverpool Hospital Hand Clinic on 6 September 2011 state:

“6/9/11

NURSING . 1550hrs. patient attend plastic Clinic

with grandmother. patient S/B plastic Reg

asked to re-dress patient (L) thumb

and (L) middle finger. Patient wound (L) thumb

smelly + sloughly, wound clean with N/saline

and re-dress with mepitel + guaze (sic) + co-hesive.

patient state very painful to touch and patient

crying then laughing. Patient (L) middle finger

clean with N/saline and re-dress with jelosed (sic)

and guaze (sic) and co-hesive wound clean + dry

patient state is not painful on this finger.

Noted when patient arrive to clinic. Pt

did not wear splint spiltn patient grand mother

state, patient had dressing change at

Campbelltown hospital, and patient did not

want to wear the spiltn splint and it

at home. Inform physio about patient

did not have a splint spiltn on. (Signature)(R)”

[Exhibit “1”, Tab 1, p 36]

60. It was plain from the content of the above note, that on 6 September 2011, which was two weeks post-operatively, the Hand Clinic staff at Liverpool Hospital were aware the condition of the plaintiff’s left thumb included observations that it was smelly and “sloughly”. At that time, other than contused skin, the tissues of the plaintiff’s left thumb were not further described in terms of whether or not they were thought to be infected or ischaemic.

61. The plaintiff’s third recorded visit to the Liverpool Hospital Hand Clinic was on 13 September 2011. This took place three weeks post-operatively. The nursing notes made on that occasion state:

“13/9/11

NURSING . 1430hrs. patient attend plastic Clinic

with father. patient S/B plastic Doctor, Plastic

doctor asked to re-dress patient post surgery

wound on (L) thumb and (L) middle finger.

Wound on (L) middle fngr clean + dry. Re-dress with

guaze (sic) + co-hesive. Patient state finger very

painful + smelly. Once the dressing come

of (sic) (L) thumb, patient state wound look

bad and smelly”. Patient (L) thumb wound

smelly ++, noted. heavy exudate, + reo a

black area increased + cavity noted,

on (L) thumb. It was not there about 3 week

again (sic for ago). Inform Plastic Reg. Plastic Reg

stated noticed as well. Informed patient

going for surgery on Thursday, The other

nurse also call per-op and admissions

to find out the time when patient surgery

was on. But we could not contact either

wards. Inform patient father to contact the

ward himself. Number given to patient to

call. Patient (L) thumb clean with N/saline

re-dress with jelosed (sic) and guaze (sic) and

co-hesive and splint back on. Patient

left the Clinic. (Signature)(RM)”

[Exhibit “1”, Tab 1, p 36]

62. It is plain from the notes of the 13 September 2011 visit to the Hand Clinic that the plaintiff’s left thumb was well recognised as being affected by gangrene, and that surgery was being planned for the following Tuesday, which was 15 September 2011. The nature of that gangrene, namely whether it was wet gangrene or dry gangrene, requires analysis later in these reasons.

63. It is against the background of that series of notes relating to the plaintiff’s post-operative Hand Clinic visits that the contentious entry in the nursing notes, purportedly made on 30 September 2011, arises for consideration as to the accuracy of the date which that note bears.

64. That Hand Clinic nursing note purportedly dated 30 September 2011, states:

“30/9/11

NURSING . 1430hrs. patient attend plastic Clinic

S/B plastic Doctor. Post surgery on (L) thumb

and (L) middle finger. Wound on (L) thumb

black, and very painful to touch. Patient

screaming and crying while nursing staff trying

to wash and change dressing. Father with

patient while dressing being change. Patient

biting on father hard while we changing dressing

Patient (L) thumb wound sloughly ++, smelly,

minimum exduate (sic), being (sic), discharge. Patient (L)

thumb clean + soaked with N/saline, re-dress

with Mepitel, guaze (sic) and co-hesive bangages. (Signature) (R) OPD”

[Emphasis added]

[Exhibit “1”, Tab 1, p 37]

65. Significantly, the note cited in the immediately preceding paragraph refers to the plaintiff’s wound, and it does not refer to an amputation stump. It refers to the plaintiff’s thumb being black, smelly and sloughy despite the indisputable fact that the necrotic tissue comprising the tip of the plaintiff’s left thumb had been amputated 15 days earlier than the date on which this note was purportedly made, as is plain from the Liverpool Hospital discharge summary: Exhibit “1”, Tab 1, p 22.

66. By reason of those facts, and the fact the plaintiff had no further operation after 15 September 2011 to debride necrotic tissue, I consider the 30 September 2011 entry to be an erroneous entry, which should be read as being referrable to another date which cannot be readily identified. That note clearly relates to a time during which the plaintiff still had the top of his left thumb in situ, most probably being a date some time between 6 September 2011 and 13 September 2011, according to the other contemporaneously documented visits to the Hand Clinic, and the historical details and recorded findings set out in the respective notes.

Credibility and reliability of testimony

67. Before proceeding to identify the issues calling for decision, in the paragraphs that follow, I set out my impressions and conclusions concerning the credibility and the reliability of the evidence of the respective witnesses.

Mrs Gould

68. I consider that the factual evidence given by Mrs Gould, a retired juvenile justice worker, was credible and reliable. An aspect of her evidence included the detail of an implied criticism of Liverpool Hospital, in respect of remarks she delivered during a challenging confrontation with Dr Geraghty at that hospital on the evening of 22 August 2011.

69. The effect of that challenge raised the question as to why the plaintiff’s need for surgery on the night of his admission had not been prioritised because of its urgent nature at the time. Given that Mrs Gould was in a position of loco parentis at the time, I do not regard that emotionally charged and pointed aspect of her evidence as being adverse to her credit as a witness, or to be otherwise adverse to the reliability of her evidence: T16.24 – T16.27. She was entitled to stridently hold the opinion she had expressed.

70. The only matter of significant challenge made to the evidence of Mrs Gould was as to the timing of a post-operative telephone call she had made to Liverpool Hospital to inform a hospital staff member of some further and more accurate historical details of the circumstances of the plaintiff’s injury.

71. In that regard, the defendant’s challenge to Mrs Gould’s evidence was to the effect that she could possibly have confused the date of that telephone call. The substance of the challenge to her evidence was that, whereas she claimed to have made the call on 24 August 2011, the defendant suggested the call was made “a few days later”, on 30 August 2011, an assertion, which she denied: T31.29 – T31.49. The hospital notes contain an after-the-event account of the call being made on 30 August 2011, whereas in contrast Mrs Gould stated she had rung the hospital on the same date as the plaintiff’s discharge from hospital, on 24 August 2011: T31.19 – T31.25.

72. In considering that evidence, it is pertinent to note that the hospital notes which relate to this topic were not made contemporaneously to the telephone call in question. The note in question was made two weeks after the event, at 16:45 hours on 15 September 2011. It was made by a social worker who had earlier received Mrs Gould’s call on this subject. That note refers to the conversation in question as actually having occurred several weeks earlier at approximately 17:00 hours on Monday 30 August 2011: Exhibit “1”, Tab 1, pp 117 and 167.

73. A cross-reference to the Liverpool Hospital notes concerning the plaintiff’s attendance there on 30 August 2011, reveals that at 16:40 hours on that day the plaintiff was having an extensive physiotherapy attendance at that hospital, at which time his wound was dressed and a spica splint was applied: Exhibit “1”, Tab 1, pp 32 – 31, pp 69 – 70. It is improbable that at the age of 8 years, the plaintiff had attended at the hospital as an out-patient without an accompanying adult, but reference to the notes of that date throws no light on this question: Exhibit “1”, Tab 1, pp 69 – 70. The evidence does not establish whether or not an adult was present, or whether that adult was Mrs Gould. If she was in attendance, it seems odd that, whilst at the hospital, she would telephone the hospital.

74. The tender bundles did not contain any contemporaneously recorded note of a 17:00 hours conversation with a Liverpool Hospital Social Worker on 30 August 2011. This may be because the 30 August 2011 notation may be incorrect. Support for such a conclusion comes from another confounding part of the records, in which a social worker is identified as having made a note on 5 September 2011, to the effect that Mrs Gould had rung the hospital on 29 August 2011, to advise that at the time of his injury, the plaintiff had been playing in a storm water drain: Exhibit “1”, Tab 1, p 75. The defendant did not put to Mrs Gould any suggestion that she might have made that telephone call on 29 August 2011, as suggested in a note made by another social worker in an apparently separate note: Exhibit “1”, Tab 1, p 75.

75. There could be a number of possible explanations for such date variations, including that the notes in question were made retrospectively, and were made from recollection, whether accurate or not. Furthermore, there may have been more than one call made to the hospital. It is unnecessary to further review and consider the various possibilities. In my view, as nothing of significance turns on that matter, it is not necessary to resolve the question, and the subject matter of those discrepancies in the notes should not be seen to adversely reflect upon Mrs Gould’s credit or her reliability as a witness. I considered Mrs Gould to be a credible witness whose evidence could be relied upon in determining factual matters in dispute.

Mr Gould

76. I found that the factual evidence given by the plaintiff’s father, Mr Gould, a forklift driver, was also credible and reliable, albeit that his evidence was of limited ambit.

Plaintiff

77. I consider that the plaintiff’s factual account of events was also credible. His evidence was not materially challenged during cross-examination. He was not cross-examined on the versions of the events appearing in the summaries of history within the various medical reports. He described his various problems without embellishment, and with obvious understated stoicism. I accept his evidence in its entirety.

78. Although, at the age of 8 years, the plaintiff had given differing accounts of the actual mechanism of his injury, initially at hospital on 22 August 2011, and then subsequently, for reasons that will be shortly outlined in my findings of fact, I do not consider that the differences in those accounts should be seen to adversely reflect on his credit.

Dr Geraghty

79. There was no challenge to the credibility or the reliability of the evidence contained in the statement of Dr Geraghty, which served to not only describe the events, but to also transcribe his handwritten notes, which in parts, were otherwise difficult to decipher.

80. Dr Geraghty’s statement, at paragraph 18, described the plaintiff’s hand as having been washed and dressed three times before the initial surgery was carried out: Exhibit “1”, Tab 9, p 505. This evidence was relevant to the question of whether or not the plaintiff’s wound should have been considered as being either clean or contaminated, and that question was in turn relevant to whether the delay in performing a surgical irrigation washout under general anaesthetic, was justified in the circumstances, according to the expected standard of care.

81. For reasons that will be set out in the appropriate context, I do not fully accept Dr Geraghty’s historical reconstruction of the events that culminated in his conclusion that the plaintiff’s hand had been washed and dressed three times before the initial surgery was performed. This is so, notwithstanding that by paragraphs 12 – 16 of the defendant’s supplementary submissions forwarded on 21 October 2016, it was suggested that Dr Geraghty’s evidence on that point should be accepted as it was admitted without objection, and because it was not challenged. That submitted conclusion does not necessarily apply as that evidence must also be assessed in light of other relevant evidence on the point at issue, and which must be reconciled.

82. The question of whether the cited aspect of Dr Geraghty’s statement was reliable became evident upon analysis. This resulted in the proceedings being relisted on 19 October 2016, 7 and 16 November 2016, to enable submissions to be directed at that and other questions that had arisen on analysis. On those occasions, there was no application by the defendant to re-open its case to seek to clarify the identified factual question so raised. That question therefore remains to be analysed in the appropriate chronological context in these reasons.

Dr Scott

83. The evidence of Dr Scott was called to clarify factual matters concerning the management of the plaintiff’s injuries, and concerning the interpretation of some relevant events and matters recorded in the hospital notes. The detail of Dr Scott’s evidence will be considered in due course. No credit issues arose from his factual evidence. Although Dr Scott was called to give evidence only on factual matters, there were some areas where his evidence ventured opinions that were not the subject of an expert report compliant with the rules for adducing opinion evidence: UCPR r 31.27(1)(c). Where this occurred, this raised questions as to the weight to be attached to such opinions. No credit issues were involved.

84. At the time of the events, Dr Scott was the supervisor of a number of more junior doctors at Liverpool Hospital, including Dr Geraghty: T84.2. He had no recollection of any specific contemporaneous conversation he may have had with Dr Geraghty concerning the plaintiff’s admission to Liverpool Hospital and his related care at that hospital: T85.9; T89.27.

Dr Sathasivam

85. The evidence of Dr Sathasivam related to the sequence of events from when the plaintiff was seen for the purpose of several post-operative reviews at the Liverpool Hospital Hand Clinic, and including the period up until the 15 September 2011 amputation procedure. Dr Sathasivam had no recollection of the plaintiff. His evidence was directed at interpreting his medical observations as recorded by him in the out-patient notes of the Hand Clinic that related to the plaintiff. Although no credit issues arose from his evidence, as already identified, a question arose as to the reliability of his recorded observation of the condition of the plaintiff’s left thumb at a Hand Clinic review on 6 September 2011, when he noted the clinical records to state the plaintiff had dry gangrene of his left thumb.

Expert witnesses

86. There were no credit issues concerning the evidence of the respective expert witnesses. The reliability of the evidence of those expert witnesses stands to be evaluated according to its content and its terms, and according to the assumptions upon which that evidence was based, the questions the experts were asked to address, and according to the degrees to which such evidence is compliant with the Rules requiring expert opinion evidence to be supported by cogent reasons: UCPR r 31.27(1)(c); UCPR Sch 7, cl 5(1)(c); Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [59], [87]; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, at [91]. In the application of that process, following a lengthy analysis, and for reasons that will be identified in the course of that analysis, I have found aspects of the expert evidence to be unreliable. My reasons for such views will be set out in the appropriate context.

Relevant legislation

87. The question of whether the defendant was negligent as alleged, and whether such negligence caused the harm suffered by the plaintiff, stands to be determined according to the requirements of Pt 1A, s 5B, s 5C and s 5D of the CL Act.

88. Section 5B of that Act provides as follows:

“5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.”

89. Section 5C of that Act provides as follows:

“5C Other principles

In proceedings relating to liability for negligence:

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

90. The issue of causation must be considered according to the requirements of s 5D of the CL Act, which provides as follows:

“5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation" ), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused ("scope of liability" ).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”

91. The defendant seeks to rely on a defence to the plaintiff’s claim based on s 5O of the CL Act, which provides as follows:

“5O Standard of care for professionals

(1) A person practising a profession ("a professional") does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.

(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.

(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.

(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.”

698. I consider that the foregoing matters provide the proper basis for a rejection of the defendant’s submission that no damages should be awarded for non-economic loss. In my view, the matters to which I have referred require an assessment of non-economic loss at 28 per cent of a most extreme case, which monetarily equates to $83,000. I therefore assess the plaintiff’s damages for non-economic loss in the amount of $83,000.

Future loss of earning capacity

703. On behalf of the plaintiff, it was submitted that damages for future loss of earning capacity should be assessed in the buffer amount of $250,000. In final submissions on behalf of the plaintiff, that submission was reduced to an amount of $150,000. Given the obvious imponderables in assessing this component of the claim in the case of a person so young, I consider that reduced amount as ultimately submitted on behalf of the plaintiff, to be a reasonable approach.

704. In contrast, the defendant submitted that any damages for future economic loss should be limited to only a “small buffer”. The defendant’s submission was founded upon the proposition that there was no evidence that the plaintiff would be incapable of pursuing a career in his stated area of interest of sound engineering as a consequence of the injury to his non-dominant left hand.

705. In my view, the defendant’s submission is overly simplistic and fails to adequately reflect the fact that during his working life, the plaintiff will be at an obvious disadvantage in competing for a full range of unrestricted employment on the open labour market and this will more probably than not remain a problem for him over the entire period of his ordinary working life: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, at [7].

706. At the age of 13 years, it will be at least 5 years before the plaintiff is exposed to that disadvantage, assuming he enters the workforce at the age of 18 years. In the context where few people remain in the same employment throughout their working life, it is quite likely that this practical disadvantage will arise periodically to adversely affect him when seeking work or seeking to change his employment.

707. Those matters do not presently lead to a calculable loss of earning capacity, and it is difficult to predict the frequency or practical monetary extent the plaintiff’s left hand impairment will have on his earnings.

708. Nevertheless, the fact that such a loss is difficult to quantify does not mean that the loss should not be assessed monetarily, including by taking a broad approach that incorporates a discount for deferral of loss, in the form of an assessed buffer amount: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27].

709. I consider that an appropriate buffer amount, taking into account potential adverse vicissitudes, and taking into account the need to defer any such amount for at least 5 years, is the sum of $150,000. I therefore assess the plaintiff’s damages for future loss of earning capacity in the amount of $150,000.

Future treatment

710. On behalf of the plaintiff, it was submitted that damages for future treatment should be assessed in the buffer amount of $59,280.

711. In contrast, the defendant submitted that there should be no allowance for future treatment expenses because there is no evidence to indicate the plaintiff is likely to pursue the postulated treatment, either in the short or in the long term, and the plaintiff’s left hand grip is unlikely to be improved by such surgery.

712. The plaintiff’s claim for future treatment expenses is based upon Dr Scott’s estimated costings for a toe to thumb stump transposition procedure, namely $45,000, but deferred for 5 years on the 5 per cent tables (x 0.784) to yield $35,280, and the cost of future anti-inflammatory medication, psychologists’ fees and other occupational therapy treatment and some appliances, assumed to cost $24,000, thus making the total claim for future treatment to be $59,280.

713. I consider those claims to be excessive. I consider that they have not been made out on the evidence in the formulation that has been claimed. Instead, I consider that a modest and discounted buffer amount should be allowed in respect of possible future treatment. That buffer should include an allowance for what I consider to be the feint possibility that the plaintiff may ultimately agree to have the postulated surgery one day. This is even though Dr Scott is discouraging of it, but accepting, that the plaintiff may find someone who would be prepared to carry out such surgery: T101.19; T101.35; T102.50; Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, at [7].

714. If the plaintiff were to have that surgery, and if it were to fail, this would leave him with greater functional disabilities and greater cosmetic deficits, as well as an even greater reduction in his earning capacity.

715. I assess the plaintiff’s damages for future treatment in the buffer amount of $7500.

Out-of-pocket expenses

716. On 4 March 2016, by correspondence, the plaintiff identified a claim for the total amount of Medicare payments in the sum of $430.10. That correspondence is now marked Exhibit “H”. On the basis of that document, I assess the plaintiff’s damages for past out-of-pocket expenses in the amount of $430.10.

Summary of damages assessment

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

(a) Non economic loss	$83,000
(b) Future loss of earning capacity	$150,000
(c) Future treatment	$7,500
(d) Out-of-pocket expenses	$430.10
Total	$240,930.10

Disposition

718. The plaintiff has secured a finding that the defendant was causally negligent as claimed. The defendant has failed to establish its claimed defences to the plaintiff’s claim. As a result, the plaintiff is entitled to damages which are assessed at $240,930.10.

Costs

719. As the plaintiff has succeeded in the proceedings, he is entitled to have his costs of the proceedings paid by the defendant on the ordinary basis unless a party is able to show a basis for some other order.

Orders

720. I make the following orders:

1. Verdict and judgment for the plaintiff in the sum of $240,930.10;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis until 18 December 2015, and on the indemnity basis thereafter;

3. The exhibits may be returned;

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

**********

Amendments

30 March 2017 - Order 2 variation of cost order to indemnity basis.

19 March 2018 - At paragraph [554] correction of typographical error "erroneous" to "onerous"

Decision last updated: 19 March 2018