Harris v Bellemore

[2010] NSWSC 176

CITATION:	Harris v Bellemore [2010] NSWSC 176
HEARING DATE(S):	23, 24, 25, 26, 27 February 2009; 2, 3, 4, 5, 6, 10, 11, 12, 13, 20 March 2009; 9,15,17, 27 April 2009; 1, 5, 6, 11, 22, 26, 27, 28, 29 May 2009; 1, 3 July 2009.
JUDGMENT DATE :	29 March 2010
JURISDICTION:	Common Law
JUDGMENT OF:	McCallum J
DECISION:	Verdict and judgment for the plaintiff in an amount to be assessed in accordance with paragraph 381 of this judgment.
CATCHWORDS:	MEDICAL NEGLIGENCE - duty of care - whether cosmetic surgery - primacy of patient autonomy in determining scope of duty - duty to warn - whether warnings given - whether plaintiff would have chosen to undergo surgery in any event - causation - limited physical disabilities - incapacitating psychiatric disability - assessment of damages
CATEGORY:	Principal judgment
CASES CITED:	Amaca Pty Ltd v Ellis [2010] HCA 5 Chappel v Hart [1998] HCA 55; 195 CLR 232 Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 2 NSWLR 389 Elbourne v Gibbs [2006] NSWCA 127 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Purkess v Crittenden (1965) 114 CLR 164 Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 Rosenberg v Percival [2001] HCA 18; 205 CLR 434 Shorey v PT Ltd [2003] HCA 27; 197 ALR 410 State of NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 Tan v Benkovic [2000] NSWCA 295 Watson v Foxman (1995) 49 NSWLR 315 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 Workers Compensation (Dust Diseases) Board of NSW v Smith [2010] NSWCA 19
TEXTS CITED:	Harold Luntz, Assessment of Damages for Personal Injury and Death, 4th ed (2002) Butterworths Ian Kennedy and Andrew Grubb, Principles of Medical Law, (1998) Oxford University Press
PARTIES:	Paul Harris (Plaintiff) Dr Michael Bellemore (Defendant)
FILE NUMBER(S):	SC 99/49908
COUNSEL:	Mr T D Kelly / Mr G Watson (Solicitors) (Plaintiff) Mr M Bozic SC / Mr E C Muston (Defendant)
SOLICITORS:	T D Kelly & Co (Plaintiff) Blake Dawson (Defendant)

- 107 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

29 MARCH 2010

99/49908 Paul HARRIS v Michael BELLEMORE

JUDGMENT

1 HER HONOUR: Paul Harris was involved in two separate motor vehicle accidents as a child. His injuries included fractures in the right leg, which disturbed the normal growth of the bone. By the time he was fifteen, his left leg had grown longer than his right by more than four centimetres. An orthopaedic surgeon attempted to correct the discrepancy by shortening the left leg surgically (twice), but after further growth there remained a difference of about three centimetres between the lengths of the two legs. Of at least equal significance to Mr Harris was the fact that the intervention of the orthopaedic surgeon left Mr Harris considerably shorter than his twin brother, who grew to be six feet tall.

2 At the age of thirty, Mr Harris consulted Dr Michael Bellemore with a view to having his legs lengthened by a procedure known as the Ilizarov technique (developed by a Russian doctor, Professor Ilizarov). Dr Bellemore is an orthopaedic surgeon who specialises in that technique, although his experience in the use of the technique at that time was predominantly with children. Mr Harris wanted not only to have his right femur lengthened, so as to eliminate the residual discrepancy of three centimetres, but then to proceed to have both limbs lengthened by a further eight centimetres so as to increase his height to equal that of his twin.

3 The Ilizarov technique of limb lengthening involves a surgical procedure during which a large steel frame is fitted externally around the limb. Internally, the frame is fixed to the bone with steel pins. The surgeon then performs an osteotomy (dissection of the bone). The frame is kept on the limb for a period of some months, during which the surgical fracture is gradually pulled apart by daily adjustments to the frame. The process of increasing the distance between the parts of the bone is called distraction. As the fracture is distracted, new bone forms to fill the gap, resulting in a lengthened limb.

4 The size of the Ilizarov frame is such that it would not be practicable to lengthen two lower limbs simultaneously. The treatment requested by Mr Harris would have required at least two separate surgical procedures and about twenty months of continuous treatment during most of which he would have had one or other leg in a frame.

5 Dr Bellemore was content to address the leg length discrepancy by the Ilizarov method, but initially did not recommend any additional lengthening for the purpose of increasing Mr Harris’ height. Mr Harris accepts that Dr Bellemore tried to discourage him from that course. After commencing the treatment, however, Dr Bellemore embarked on a course towards lengthening both legs by five additional centimetres (not eight, as sought by Mr Harris). The initial osteotomy of the right femur and fixation of the limb with an Ilizarov frame took place on 4 November 1996. By 10 December 1996, distraction of two and a half centimetres had been achieved. The decision was then taken by Mr Harris and Dr Bellemore to continue lengthening the right limb beyond the three centimetres required to achieve legs of even length. From that point Mr Harris was, for all practical purposes, committed to having the procedure repeated on the left limb.

6 At the time he first consulted Dr Bellemore, Mr Harris also suffered from a varus deformity of the right knee, also as a result of his childhood injuries. A varus deformity is a variation from the normal alignment of the limbs as viewed from front to back, such that the lower limb is at an angle (like a pendulum) instead of being straight. Dr Bellemore acknowledges that Mr Harris’ varus deformity may have been able to be corrected while the limb was being lengthened if he had used an Ilizarov frame fitted with hinges. An alternative to the use of hinges was to fit a particular kind of washer, known as a conical washer, to each rod on the frame, giving it greater flexibility. In his initial evidence in the proceedings, Dr Bellemore stated that he had used conical washers on Mr Harris’ frame. Ultimately, however, he acknowledged that he had not fitted either hinges or conical washers to the frame.

7 As a result of Dr Bellemore’s failure to use either hinges or conical washers on the Ilizarov frame, Mr Harris later required a surgical correction of the varus deformity. In May 1997, Dr Bellemore undertook a revision osteotomy of the right femur (the second osteotomy) for that purpose. That procedure resulted in at least two unintended complications. First, during the procedure, Mr Harris’ femoral artery was inadvertently severed. In addition, following the procedure, the femur did not rejoin in perfect alignment at the site of the osteotomy, with the result that there is now a “posterior displacement” or step in the bone at that point. Dr Bellemore admits that his failure to fit either hinges or conical washers to the Ilizarov frame constituted a breach of his duty of care to Mr Harris and that, as a result, he is liable to Mr Harris for the consequences of the second osteotomy.

8 That, however, is by no means the end of the present case. Mr Harris contends that Dr Bellemore was negligent in many other respects, including in undertaking the bilateral leg lengthening procedure at all. He claims that, as a result of the treatment provided to him by Dr Bellemore, he suffers from a number of physical disabilities as well as an incapacitating psychiatric disability which has rendered him totally unfit for work for the rest of his life. Dr Bellemore denies those further allegations.

ISSUES RAISED FOR THE COURT’S DETERMINATION

9 Before identifying the issues raised by the pleadings for the Court’s determination in respect of those contentions, it is appropriate to record some of the history of the litigation. The proceedings were commenced in the District Court on 3 November 1999. Over the following nine years, Mr Harris changed solicitors several times. His present solicitor, Mr Kelly, who appeared for Mr Harris at the hearing, is the fifth solicitor on the record. In addition to the many different lawyers who have advised Mr Harris, there have been many doctors treating him and many experts retained by each party.

10 The pleadings bear the scars of those events. The statement of claim was amended several times during the hearing of the proceedings, most recently to accommodate Dr Bellemore’s admission of breach of duty of care referred to above (made only after the hearing had commenced and been adjourned part heard). Notwithstanding a series of attempts on Mr Kelly’s part to refine the cumbersome and repetitious pleadings he inherited, so as to reflect the real issues remaining to be determined, the final version of the statement of claim (the second further amended statement of claim filed in Court on 6 May 2009) remains a difficult document, in parts obscuring rather than elucidating the real issues in dispute.

11 In that context, after each party had closed his case, I reluctantly acceded to an application by Mr Kelly for an adjournment to prepare written submissions, but requested the parties to direct their submissions to common headings based on agreed issues (T1244.5; see also T1027.9). Regrettably, that did not occur. Counsel for Dr Bellemore submitted a list of “proposed questions for the trial Judge” to Mr Kelly, and later supplemented it at his request, but that list was not then adopted in the written submissions prepared on behalf of Mr Harris. Mr Kelly provided the plaintiff’s proposed questions for the trial Judge on the last day of the hearing, after the parties’ written submissions had been distributed and after the completion of closing submissions on behalf of Dr Bellemore.

12 The questions proposed by Mr Kelly supplemented those addressed on behalf of Dr Bellemore but were not addressed in terms in the plaintiff’s submissions. The lack of clarity in the plaintiff’s pleadings and the failure within the plaintiff’s camp to co-operate in the process of addressing submissions to common, agreed questions (a process I had foreshadowed and attempted to advance in directions made before the commencement of the hearing) have unduly complicated the Court’s task.

13 Taking what I hope is the simplest approach, I have adopted the form of questions proposed on behalf of Dr Bellemore, identifying my consideration of any additional questions raised by Mr Kelly or on the pleadings where appropriate.

CREDIT ISSUES

14 Each of the parties mounted a substantial attack on the credit of the other. Submissions were also directed to the reliability of evidence given by a psychiatrist retained on behalf of Dr Bellemore, Dr Lisa Brown, and evidence given by the plaintiff’s mother, Mrs Doreen Harris. The submissions put in respect of Dr Brown and Mrs Harris are discussed in the context of specific issues considered later in this judgment.

Dr Bellemore

15 It was submitted on behalf of Mr Harris that Dr Bellemore’s evidence should not be accepted in relation to particular issues or generally where it is in conflict with the evidence of Mr Harris. The basis for the submission was Dr Bellemore’s steadfast assertion, from which he ultimately recanted, that he had fitted conical washers to the Ilizarov frame fixed to Mr Harris’ leg. Mr Kelly submitted (in effect, if not in terms) that Dr Bellemore’s initial evidence on that issue could not have been honest. In order to analyse that submission, it is necessary to understand the significance of the conical washers.

16 As already noted, when Mr Harris first consulted Dr Bellemore, he had a varus deformity in the right knee. An Ilizarov frame of straight design can nonetheless address such a deformity, while lengthening the limb, by the method of differential distraction, that is, by distracting one side of the frame at a greater rate than the other. That method, however, has the undesirable corollary of placing parts of the frame under greater strain. That can be avoided if the frame is constructed so as to have a form of pivot, using either hinges or conical washers.

17 In a statement served shortly before the commencement of the hearing, Dr Bellemore stated:

“… I had recognised the presence of a varus deformity pre-operatively and it was my intention to correct this by differential distraction, coupled conical washers were applied to the distal ring to facilitate the correction. The use of coupled conical washers allowed for angular correction of up to 15%. The use of hinges would have been an alternative means of correcting the varus deformity and I would have adopted this course had the varus deformity been more severe.”

18 Mr Harris said in his evidence-in-chief that conical washers were not used on the frame as contended by Dr Bellemore (T65.26-T66.26). That issue had not been specifically addressed in Mr Harris’ written statement served before the hearing, presumably because the only relevant negligence alleged at that stage was the failure to use hinges. The alternative method of using conical washers had not been raised as an issue in the proceedings at that point.

19 When Dr Bellemore gave his evidence-in-chief, he went so far as to identify what he said were images of conical washers on an x-ray of Mr Harris taken while he wore the Ilizarov frame. By reference to an x-ray taken on 11 February 1997, Dr Bellemore expressed the opinion that a conical washer could be seen on each of the four rods of the frame (Exhibit 10; T302.46).

20 A substantial amount of time over the first fourteen days of the hearing was occupied with that issue. After Dr Bellemore volunteered the opinion that conical washers could be seen on the x-ray, he was cross-examined up hill and down dale (as it is sometimes put colloquially) by Mr Kelly in relation to that aspect of his evidence. In saying so, I mean no criticism of Mr Kelly, whose tenacity on this issue ultimately produced an admission of liability. Mr Kelly took Dr Bellemore, in turn, to each in a series of x-rays showing the Ilizarov frame. Dr Bellemore consistently maintained that, in his opinion, each x-ray included images of conical washers fitted to the frame (see, for example, T308-310; T320.50; T554.28 and T558-562), albeit with a repeated qualification as to his lack of expertise as a radiologist or radiographer (T314.34; T318.43).

21 Mr Harris subsequently gave further evidence in which he said that the images in the x-rays identified by Dr Bellemore as conical washers were in fact square nuts affixed to the frame. He later obtained a report from an expert radiologist, Dr Kitchener, the broad effect of which was that Dr Bellemore’s evidence on that issue should be rejected. An outline of evidence was also obtained from Mr Sean Hogan, the designer of a component of the frame (known as a Hogan clicker) stating that there was indeed a version of the clicker in use in 1996 that included a square nut, as described by Mr Harris.

22 It was after that additional material was served that Dr Bellemore recanted his evidence that he had used conical washers. He explained how he came to his original belief, and his reasons for ultimately accepting that he was wrong, in a further witness statement dated 1 April 2009. In particular, he stated that, until reading the outline of evidence of Mr Hogan, he had had no recollection of the version of the clicker described. He further stated that he would defer to the expertise of Dr Kitchener as to the radiological issue. It was shortly after the service of that statement that Dr Bellemore made his admission of liability in the proceedings.

23 Mr Kelly placed considerable reliance on the fact that Dr Bellemore’s assertion as to the use of conical washers was made for the first time in his witness statement dated 12 February 2009. The force of that submission lies not in the timing of the provision of the statement itself, which was in accordance with directions of the Court. The service of witness statements so long after the commencement of the proceedings was due in large measure to the many years of delay within the plaintiff’s camp in bringing the matter to a state of readiness for hearing.

24 As noted by Mr Kelly, however, there are indications that until at least the middle of 2003, Dr Bellemore’s legal team was ignorant of any assertion by him that he had used conical washers on Mr Harris’ Ilizarov frame. A statement of assumptions prepared by the solicitors in about 2002 made no mention of conical washers. Further, an expert report dated 23 June 2003 by Dr Tetsworth (retained on behalf of Dr Bellemore) was critical of the use of differential distraction to address the varus deformity and stated “either conical washers or formal hinges would have been a more effective method”.

25 It seems unlikely that, if Dr Bellemore had a clear recollection in 2003 of using conical washers, Dr Tetsworth’s assumption to the contrary would have been permitted to stand uncorrected. In that context, Dr Bellemore’s confidence at the hearing that he used conical washers, and his manifest irritation at Mr Kelly’s tenacious pursuit of the contrary proposition, are surprising.

26 Separately, Mr Kelly submitted that the Court would reject the suggestion that Dr Bellemore’s original evidence (that he had used conical washers) was a matter of “honest confusion”. Mr Kelly noted that Dr Bellemore had gone beyond merely purporting to identify objects on the x-ray images as conical washers and had gone so far as to give an account of how the processes of radiology could produce the result that part of the component in question (a metal nut that holds the washer in place) was not visible on the x-rays (T308.14-T309.3). Mr Kelly submitted the evidence given by Dr Bellemore on that issue was nonsense and that I should infer that the view first expressed by the doctor was not a view he genuinely held.

27 I have given careful consideration to the reasons explained by Dr Bellemore in his statement of 1 April 2009 for forming the erroneous belief that conical washers were used, and I have measured that explanation against my own assessment of Dr Bellemore as a witness. On balance, I accept that Dr Bellemore genuinely believed that the evidence he gave was true. Further, I accept, as submitted by Mr Bozic, who appeared with Mr Muston for Dr Bellemore, that Dr Bellemore’s correction of the error, once accepted by him, reflects well upon his credit.

28 I do think, however, that the confidence with which Dr Bellemore adhered to his initial belief is a matter that invites careful scrutiny to other aspects of his evidence. Further, whilst I do not accept that Dr Bellemore’s evidence was dishonest, it does appear (from the evidence subsequently given by Dr Kitchener) that Dr Bellemore took it upon himself to speak well outside his expertise when explaining the visual absence of the metal nuts.

29 In fairness to Dr Bellemore, it must be observed that, through no fault of his own, he has been called upon to defend the present allegations against him thirteen years after the events in question. The plaintiff’s delay in the prosecution of his claim has deprived all of the witnesses of the benefit of recent recollection. I have approached Dr Bellemore’s evidence with all of those considerations in mind. I accept without reservation that he is honest, but perhaps unduly reluctant to analyse or accept the potential frailty of his recollection of such old events.

Mr Harris

30 It was submitted on behalf of Dr Bellemore that the Court would not accept Mr Harris’ evidence on significant factual issues unless it is corroborated by other acceptable evidence, is consistent with what might be regarded as the objective probabilities, or is against his interest.

31 Some of the reasons offered in support of that submission amounted to little more than the accepted wisdom that human perception is often coloured by self-interest and a reluctance to admit fault. Those observations apply with equal force to Dr Bellemore.

32 I accept, however, that there are features of the present case that invite a careful approach. It is difficult to explain why that is so without descending to the detail of the factual issues I have to determine. Accordingly, I have addressed some of the so-called “credit issues” that are of significance to me in the context of the specific factual questions to which they appear to relate. Nonetheless, some general observations may be made.

33 First, as submitted on behalf of Dr Bellemore, I accept that Mr Harris has been obsessively fixated with these proceedings for many years and has “entered the fray” in relation to technical and legal aspects of the case. He has evidently come to understand the medical issues in the case very well and, in my view, accommodated that understanding in his evidence. Mr Kelly’s submissions questioned whether, even if that is so, there is any indication that Mr Harris’ memory has become “tainted by the case”. For my part, I have no doubt that memory (or the description of it) is profoundly influenced by perspective and it is very clear, in my view, that Mr Harris perceives his present circumstances with telescopic focus on the conduct of Dr Bellemore.

34 Secondly, I accept that Mr Harris’ written statement must be read as a collaborative work that has evolved over time, perhaps with input from Mr Harris’ solicitors (T126-127; T189.34). It draws on reconstruction based not only on the x-rays available to Mr Harris while he was in Russia but on the medical knowledge he has acquired since being treated by Dr Bellemore.

35 Finally, I accept that Mr Harris gave evidence on certain issues that was inherently improbable or appeared to be contrived to avoid any concession against interest (for example, that at the age of 30, he did not know what a nerve was or what “vascular” meant: T105.5; T105.26; T 124-126). In light of Mr Harris’ education and evident intelligence, some of his answers were very strange.

36 More importantly, for reasons addressed in detail below, I have no doubt that Mr Harris has exaggerated aspects of his claim, whether consciously or subconsciously. In particular, as explained later in this judgment, I am satisfied that he has overstated the extent of his disabilities and that a great deal of his present inactivity is self-imposed. Whether that is due to depression or to “malingering” (or some other dysfunctional personality trait) may not matter, for reasons explained below.

37 Conversely, however, I formed the impression that when it came to the detail of his treatment, Mr Harris was at pains to give an accurate account of events. As to the use of conical washers, he was right and Dr Bellemore’s recollection was wrong. Accordingly, I do not think it is possible, or sensible, to attempt to reduce the many complexities of Mr Harris’ experience of life to a blanket “credit finding”. The approach I have taken is to assess each issue on the evidence with care, but with no preconception one way or the other as to Mr Harris’ credibility.

THE PLAINTIFF’S SUITABILITY FOR THE SURGERY

Question 1: “Was the plaintiff a suitable candidate for the proposed procedure (ie: should the plaintiff have ever been offered the surgery?)”

38 The negligence alleged by Mr Harris against Dr Bellemore is particularised in paragraph 32 of the second further amended statement of claim. By particulars 1(a), 2(a) and 3(a), Mr Harris alleges that it was negligent of Dr Bellemore to carry out bilateral leg lengthening surgery at all; that it was negligent to carry out such surgery when the plaintiff in his pre-operative condition was an “unsuitable candidate” for such surgery and that it was negligent to fail to decline to carry out such surgery.

39 It should be noted at the outset that there is a legal assumption embedded in those contentions, namely, that the issue whether particular treatment should be offered to a particular patient is a question properly governed by the law of negligence. In my view, for reasons explained below, the correctness of that assumption as an unqualified proposition may be doubted.

40 In any event, question 1 is directed to those issues. The “plaintiff’s proposed questions for the trial Judge” posed the additional question whether Mr Harris should ever have been offered the surgery in respect of a three centimetre lengthening of the right femur. However, there was little, if any, evidence to support a contention that Dr Bellemore should not have offered to perform the Ilizarov procedure on the right leg so as to correct the leg length discrepancy. The principal contest at the hearing was whether, once that had been achieved, the lengthening should have been continued for purposes characterised by some as “only cosmetic”.

41 The plaintiff’s proposed questions for the trial Judge posed the further additional question, “what tests or investigations should have been undertaken by the defendant to assess this?” For the reasons explained below, I think that is a false issue.

Factual context: some aspects of Mr Harris’ medical history

42 It was submitted on behalf of Mr Harris that the surgery should not have been offered to him and should not have been undertaken by Dr Bellemore “on any reasonable evaluation of the potential risks and the likely benefits”.

43 In order to assess those contentions from a factual perspective, it is necessary to consider the initial consultations between Mr Harris and Dr Bellemore in greater detail. It is also relevant to consider some of Mr Harris’ earlier medical history.

44 There was a considerable area of common ground between the parties as to the medical history, which is well documented. As already noted, by the time he was fifteen (in 1981), as a result of the injuries suffered in his childhood accidents, Mr Harris had a leg length discrepancy of over four centimetres (the left leg being longer than the right). On 15 December 1981, his orthopaedic surgeon, Dr Harbison, attempted to address the discrepancy by surgically shortening the left leg, but the differential growth continued.

45 It appears that Mr Harris had leg-lengthening surgery in contemplation as early as 1983. He was then aged seventeen and the discrepancy between the lengths of his legs had reached seven centimetres. He had already had his left leg shortened once. On 21 December 1983, Dr Harbison reported to Mr Harris’ general practitioner, Dr Tinning, that he had booked Mr Harris in for a second operation to shorten his left femur the following January. The letter stated: “He asked me about leg lengthening but I told him that it was too hazardous and would not be possible to get his legs equal by that means” (Exhibit 17, page 313). It was as a result of the two leg-shortening operations carried out by Dr Harbison that Mr Harris was left some eleven centimetres shorter than his twin.

46 In 1988, Mr Harris consulted Dr Haertsch, a plastic surgeon, seeking surgical revision to improve the appearance of some scars (Dr Tinning’s notes, Exhibit 17, page 316).

47 In 1989, Mr Harris returned to discuss the issue of leg lengthening with Dr Harbison after learning about the Ilizarov procedure through the media. On 1 December 1989, Dr Harbison wrote to Dr Tinning reporting that Mr Harris:

“came back to see me for a discussion regarding the possibility of lengthening both his lower limbs. He is functioning perfectly normally but is self conscious thinking that he limps and being particularly aware that he is much shorter than his twin brother. I discussed with him at some length the pros and cons of lengthening and I hope talked him out of his idea of having both legs lengthened. This is far too risky a procedure to be justified for nothing more than a cosmetic self-image problem.” (Exhibit 17, page 315).

48 Mr Harris remembered Dr Harbison saying the procedure was risky, but did not remember the particulars of the risks referred to. However there was one aspect of the consultation he says he will never forget (T742.19). He had explained to Dr Harbison his aspiration of having both legs lengthened and the reasons why. According to Mr Harris, Dr Harbison replied “I am going to throw a bucket of water on your fire of expectations”. Mr Harris gave evidence at the hearing that this was “very disappointing” but that he took Dr Harbison’s advice and got on with his life.

49 In 1991, Mr Harris (then aged 25) consulted a general practitioner, Dr Yuen, complaining of hair loss and referring to his twin brother (Dr Yuen’s notes, Exhibit 17, page 2). Two years later, he consulted a cosmetic surgeon seeking treatment for “stucco keratoses”, which are skin lesions that are benign but apparently unsightly (Dr Tinning’s notes, Exhibit 17, page 317).

50 By the time he turned thirty in April 1996, Mr Harris stated that he had become “very disheartened with the outcomes of Dr Harbison’s treatment”. It was then that Mr Harris decided to contact a surgeon who practiced the Ilizarov procedure “to see what could be done to improve the situation”. In due course, Dr Bellemore was recommended to Mr Harris when he called the Australian Orthopaedic Association.

51 Mr Harris described himself as being physically active during that year. He was doing intensive exercise in the gym in sessions of one hour, which included weights, running, skipping and “cardio-boxing”. He stated that those activities were achievable without any physical problems. At one session, however, he “overdid things”, lifting a whole stack of weights with a resistance of approximately two hundred pounds on a leg press machine, which resulted in some discomfort to the right knee. He consulted his general practitioner, Dr Tinning, who referred him to an orthopaedic surgeon, Dr Pinczewski.

52 Dr Pinczewski examined Mr Harris in March 1996. He reported that Mr Harris had a ‘varus alignment’; was short legged on the right side and had a decreased range of movement and ligamentous deficiency in the right knee (Exhibit A, page 3).

53 Mr Harris stated that Dr Pinczewski had concluded that “the outlook for [his] right knee was not good taking into account the ligamentous laxity, the leg length discrepancy and varus deformity” (Exhibit O, statement dated 5 February 2009, paragraph 40). Mr Harris stated that he had not, until that point, been aware that there was a residual varus, as he thought that Dr Harbison had corrected it.

54 If Dr Pinczewski thought that the outlook for Mr Harris’ right knee was “not good”, he did not say so in his report to the general practitioner, and he certainly did not recommend a surgical solution:

“Weighing up all considerations, Paul is coping quite well with his ligamentous deficient knee and in view of the complexities of any reconstructive surgery, I have advised him that I do not think there is a surgical option at this time. Both ligamentous reconstruction and any form of osteotomy would be fraught with uncertainty. I hope that this has been of some help to Paul; I am happy to send a copy of this correspondence to other orthopaedic surgeons who may wish to give a second opinion.”

55 The leg length discrepancy at that stage was about three centimetres (Dr Pinczewski measured it as two centimetres). A lengthening of the right femur of approximately that amount was accordingly all that was required to correct that condition and the varus. The only reason Mr Harris wanted to have both legs lengthened was to increase his height.

Mr Harris’ first consultation with Dr Bellemore

56 Mr Harris first consulted Dr Bellemore on 9 August 1996. As to their initial conversation, he stated: “I said I was hoping to have treatment to eliminate the leg length discrepancy and also the varus deformity. I also stated that I wanted both legs lengthened to increase my height - because the height difference between myself and my brother bothered me.” (Exhibit O, statement dated 5 February 2009 at page 7.)

57 There is no dispute that the consultation was a lengthy one, during which Dr Bellemore took a medical history and conducted a physical examination. There is a factual issue between the parties as to whether Dr Bellemore warned Mr Harris as to any of the risks of the procedure during that consultation. That issue is considered below.

58 Dr Bellemore reported to the referring general practitioner, Dr Yuen, in the following terms:

“I have recommended that he have a surgical leg lengthening procedure on the right side, to lengthen the right femur three centimetres thus equalising his leg lengths.
It would be feasible to undertake the lengthening of both the right and left femurs to increase his overall height, but this would involve prolonged treatment and I would not favour this option.”

59 Dr Bellemore recommended during the consultation that Mr Harris discuss his proposed treatment with one of Dr Bellemore’s other patients, who had an Ilizarov frame fixed to his leg at that time. Mr Harris contacted that patient. Their conversation included a discussion of the need to keep the pin sites clean so as to avoid infection.

60 During the initial consultation, Dr Bellemore also asked Mr Harris to watch some videos explaining the procedure, which he did during his second consultation.

The second consultation with Dr Bellemore

61 On 19 August 1996 Mr Harris returned to see Dr Bellemore and “reaffirmed” that he wished to proceed with the leg lengthening procedure on both legs. Mr Harris was at that time employed by BHP as an engineer. He had arranged to have time off work to have the procedure and had been granted extended sick leave for at least six months, apparently being a valued employee. He does not appear to have told his employer that he may require a longer period off work so as to have bilateral limb lengthening surgery for the sole purpose of becoming taller (see T796.30).

62 Following the second consultation, Dr Bellemore called Dr Harbison to discuss Mr Harris’ medical history. Dr Harbison recommended to Dr Bellemore that he require Mr Harris to undergo a psychiatric assessment. Dr Bellemore made that request of Mr Harris, stating that he “always” obtained a psychiatric assessment of a patient before proceeding with limb lengthening for cosmetic purposes. It is not clear to me whether Dr Bellemore had in fact conducted many limb lengthening procedures for cosmetic purposes at that time, if any (see T606.35). In any event, an arrangement was made for Mr Harris to see Dr David Dossetor, a psychiatrist at the New Children’s Hospital.

Consultations with Dr Dossetor

63 Mr Harris saw Dr Dossetor on 1 October 1996 and again on 8 October 1996. Mrs Harris (the plaintiff’s mother) attended the second consultation.

64 It was Dr Dossetor’s understanding that the purpose of the evaluation was to assess whether Mr Harris was able to evaluate the risks involved and whether there was any psychiatric co-morbidity that would influence the outcome (T822.27). He gave evidence that he discussed with Mr Harris not only how he would cope with an imperfect result but also the possibility of things going wrong.

65 That was consistent with the evidence of Mr Harris, who stated:

“When I saw Dr Dossetor he asked if I had considered the possibility of things going wrong. I replied no I had not because Dr Bellemore had not raised the issue, however I had learned from [Dr Bellemore’s other Ilizarov patient] of the possibility of a pin site infection. I told him that was a risk I was prepared to take because I would personally be responsible for pin site care at home, and I would enact the infection control procedures to the letter. I was told by Dr Dossetor that in his opinion it was in order to proceed.”

66 Dr Dossetor also gave evidence that he raised with Mr Harris “other psychological ways of coping with and treating social anxiety which [Mr Harris] should seek and explore rather than pursue a major operation to resolve his social anxiety”. Dr Dossetor could not recall exactly what he had said on that issue. During cross-examination, he said (at T823.19):

“I know in some cases I have talked about losing a leg. Whether I did that in this case or not, I can’t tell you. But I think that that line suggests I was talking about adverse outcomes, not just - well, it wasn’t for me actually to evaluate the risk of an adverse outcome either, it was for me to say that ‘things can go wrong, have you taken that on board?’ And actually to make sure they address that with the responsible surgeon.”

67 Dr Dossetor wrote a lengthy report to Dr Bellemore which concluded with his opinion that, despite a degree of social anxiety, Mr Harris was “of sufficiently good character, intellect and adjustment to appraise the risks versus benefits of the ‘cosmetic’ 5cm of the proposed operation under consideration to be able to make a responsible and informed judgment over whether to consent to the operation.” On that basis, he wrote to Dr Bellemore stating that he felt Mr Harris was a “reasonably good operative risk”.

68 It was Dr Dossetor’s recollection at the hearing that, during the discussion about “things going wrong”, Mr Harris indicated that at that stage no orthopaedic surgeon had talked to him about things going seriously wrong (T830.11). It appeared from Dr Dossetor’s evidence that he expected that the process of obtaining Mr Harris’ consent to the procedure was to occur after his evaluation (see T822.27 and T830.19), but whether that was due to anything said to him or only an assumption he made is not established. Mr Kelly relied on that evidence to support Mr Harris’ claim that he had received no warnings from Dr Bellemore at that point. In my view, that overstates its effect. I accept that what Mr Harris said to Dr Dossetor suggests that Mr Harris did not then perceive it to be a risk of the procedure that things might go “seriously wrong”, but it is impossible to know now whether that is due to an absence of explanation or to the way in which Mr Harris perceived whatever he had been told.

The third consultation with Dr Bellemore

69 Mr Harris returned to see Dr Bellemore on 9 October 1996, the day after his second consultation with Dr Dossetor. According to Dr Bellemore, Mr Harris stated that he was adamant that he wanted to have his right femur lengthened by eight centimetres and his left femur lengthened by five centimetres (statement dated 12 February 2009, Exhibit 5, paragraph 53). Mr Harris signed a consent form on that day for the procedure described as “right femoral lengthening and deformity correction with Ilizarov fixation”. The consent form does not list the specific risks which Dr Bellemore alleges he described to Mr Harris during their first consultation on 9 August 1996.

70 Dr Bellemore stated that, at that point, his plan of management was to lengthen the right femur by three centimetres and then to reassess the situation. He stated “if the right femoral lengthening was proceeding without difficulty or complications and if it was still his desire, then I would continue to lengthen the right femur until any difficulties prevented further safe lengthening or eight centimetres was reached, whichever arose first” (Exhibit 5, paragraph 57).

71 It was Dr Bellemore’s evidence that he had a conversation broadly in those terms with Mr Harris. He stated that he told Mr Harris that the lengthening achieved would depend on his clinical course and that the lengthening process would cease if any complications arose that prevented further safe lengthening. According to Dr Bellemore, Mr Harris agreed to proceed on that basis.

72 Mr Harris did not accept that a discussion in those terms took place before the initial surgery. He did, however, remember a conversation at some point in which Dr Bellemore said that he was going to “reach” three centimetres in five days time and that a decision had to be made as to whether to stop at three centimetres or to keep going (T187.45). On the strength of that evidence I accept, as submitted by Mr Bozic, that it is not strictly accurate to say of Dr Bellemore that he offered, from the outset, an eight centimetre lengthening of the right leg to be followed by a five centimetre lengthening of the left leg.

Was there a duty to decline to treat Mr Harris?

73 It was common ground that, beyond three centimetres in the right leg, the only purpose of the leg lengthening was to increase Mr Harris’ height. The case put against Dr Bellemore was that it was negligent to offer such surgery because its likely benefits were not warranted by the potential risks “on any reasonable evaluation”.

74 The submissions put on behalf of Mr Harris on that issue made at least two implicit assumptions. First, they assumed the existence of an empirical measure of the likely benefits of the treatment, implicitly attributing a low value to procedures that are “merely cosmetic”.

75 Secondly, they assumed the existence of a legal duty on a surgeon to determine, by that measure, what services should be provided in response to a patient’s request for treatment. The additional question posed on behalf of the plaintiff (as to what tests or investigations should have been undertaken by Dr Bellemore to assess Mr Harris’ suitability for the procedure) is directed to that issue.

76 It is important to note that it was no part of Mr Harris’ case that he was unsuitable for the surgery by reason of any special psychiatric vulnerability. Mr Kelly expressly disavowed reliance on such a claim (see my judgment given 5 March 2009 and T512).

Patient autonomy in the context of cosmetic surgery

77 It was submitted on behalf of Dr Bellemore that to analyse the issue whether the surgery should have been offered by reference to a comparison of the risks and notional objective benefits of purely cosmetic surgery flies in the face of the High Court’s acceptance of patient autonomy as the paramount consideration in determining what is the appropriate standard of care.

78 Mr Bozic characterised the issue (whether the surgery should have been offered) as essentially one of consent, which is relevant to an action framed in trespass or battery, not in negligence: Rogers v Whitaker [2002] HCA 58; 175 CLR 497 at 490.5. On that analysis, it may be contended that there is a limit to the kinds of procedure in respect of which a patient can provide consent, even after being warned of the material risks: see generally the discussion in Ian Kennedy and Andrew Grubb, Principles of Medical Law, (1998) Oxford University Press at [3.28]-[3.33]. However, assuming that is the legal position, I do not think this case falls within the class of procedure to which consent may not be given. So much was effectively acknowledged in the plaintiff’s written submissions where Mr Harris’ decision was described as “perhaps not a mainstream decision” but one which was “not undertaken irresponsibly”. In any event, Mr Harris’ claim was not put as a claim in trespass or battery.

79 In the absence of any complaint by Mr Harris that he was an unsuitable candidate for the surgery by reason of any special psychiatric vulnerability, the question whether Dr Bellemore should have offered the surgery, in my view, is outside the realm of the tort of negligence. As submitted by Mr Bozic, a premise of this field of jurisprudence is patient autonomy, which the High Court has accepted as a critical consideration in determining what is the appropriate standard of care.

80 Thus, the High Court in Rogers v Whitaker (at 487) approved the principle adopted by King CJ in F v R (1983) 33 SASR 189 (at 192 to 193) that it is for the courts (and not the medical profession) “to adjudicate on what is the appropriate standard of care after giving weight to ‘the paramount consideration that a person is entitled to make his own decisions about his life’”.

81 It must be acknowledged that those principles received approval in Rogers v Whitaker in the specific context of determining the extent of a doctor’s duty to provide information and advice, which is fundamentally different from the field of diagnosis and treatment (see generally the discussion in Rogers v Whitaker at 489). However, the primacy of patient autonomy among the matters that determine the scope of a doctor’s duty of care is not confined to that field, and has explicitly been acknowledged in the field of cosmetic surgery.

82 In Tan v Benkovic [2000] NSWCA 295, the Court of Appeal allowed an appeal by a cosmetic surgeon. One of the findings of the trial Judge was that the surgeon had paid “inadequate attention … to the threshold matter of whether [the patient] was a psychologically appropriate candidate for a cosmetic plastic surgery procedure”. In respect of that finding, Mason P stated at [29] (Stein and Heydon JJA agreeing at [51] and [52]):

“Nevertheless, I feel bound to record a sense of unease with these aspects of the background findings. After all, the duty of care in Rogers is premised on the notion of the patient’s autonomy, albeit that there are patients and patients and that different proposed medical procedures call forth different matters that ought to be disclosed by the competent medical practitioner”.

83 His Honour went on to express the view that the medical profession is best placed to set its own standards as to appropriate professional practice in respect of so-called “elective” procedures and that courts should not rush into areas in which subjective professional judgments predominate. His Honour concluded, at [32], “whether surgery is ‘necessary’ or ‘unnecessary’ has no direct bearing upon whether it is performed competently or whether pre-surgical warnings satisfied the Rogers v Whitaker duty.”

84 On the basis of that analysis, it may be accepted that the question of Mr Harris’ suitability for the surgery informs the content of Dr Bellemore’s duty to provide information, but it does not, in my view, sound in any duty to decline the treatment sought. The present case must be approached on the basis that Mr Harris was entitled, and indeed required, to make his own decision as to whether to proceed with the surgery, the critical issue in respect of that decision being the alleged failure to warn: cf Tan v Benkovic at [27]. Mr Kelly submitted that Tan v Benkovic was a very different case, since Ms Benkovic in effect sought damages for an outcome that would have arrived in due course with the ravages of time, but the principles stated by Mason P are nonetheless sound.

85 Against that discussion, in my view, the additional question posed by Mr Kelly (as to what “tests or investigations” should have been undertaken to assess Mr Harris’ suitability for the treatment) does not arise.

Was the proposed surgery “only cosmetic”?

86 In case the foregoing analysis is wrong, it is appropriate to consider the matters relied upon by Mr Harris as to whether he was a “suitable candidate” for the surgery. As already noted, it was a premise of Mr Harris’ claim on this issue that the surgery was only for cosmetic purposes.

87 Mr Kelly noted that Dr Bellemore purported, in his evidence in the proceedings, to have made a pre-operative assessment of Mr Harris as a man suffering from “severe psychosocial disability”, speaking of him as a person “whose life was intolerable” (T587.50). Mr Kelly submitted that I should find that that was not Dr Bellemore’s view as at 1996.

88 Whilst there is certainly a deal of objective evidence that Mr Harris was very unhappy about his height, I accept that Dr Bellemore’s evidence as to the extent to which he perceived or diagnosed that to be a psychological disability before he embarked upon the surgery may well have been strengthened by hindsight analysis. As noted by Mr Kelly (at T1326), Dr Bellemore appeared to adopt the word “intolerable” to describe Mr Harris’ life before the surgery after he heard it used during the proceedings rather than in any pre-surgical assessment (T507.11). That said, it is clear that Dr Bellemore rightly assessed the issue as one of significant concern to Mr Harris.

89 Ultimately this is an evaluative judgment, but clearly Mr Harris was quite fixated on the notion that his life would improve if only he could be made as tall as his brother. He conveyed that message to Dr Bellemore in the clearest terms. It is doubtful whether it is accurate, in those circumstances, to characterise the benefits each perceived as “only cosmetic”, whatever that means.

Expert evidence as to whether the surgery should have been offered

90 Other factors identified in the pleadings in support of the contention that the surgery should not have been offered were the state of Mr Harris’ legs due to his prior surgery and ongoing disabilities; his “age and station in life” and his minimum functional impairment; the contention that the surgery was risky and “on the outer frontiers of Ilizarov surgery” and the prospect of not achieving a symmetrical outcome.

91 Those issues were addressed by a group of orthopaedic experts referred to in the proceedings as the liability experts. For a variety of reasons that no longer matter, the liability experts did not confer before giving evidence in the proceedings (as contemplated in Practice Note SC CL 7), but their oral evidence was taken concurrently.

92 The plaintiff’s principal liability expert was an English orthopaedic surgeon, Professor Saleh. It was Professor Saleh’s opinion that an Ilizarov surgeon of ordinary skill and competence as at 1996 would not have attempted the additional lengthening (beyond three centimetres in the right leg) in 1996 (T1042.47-T1043.14).

93 However, leaving aside different views as to the appropriateness of offering the Ilizarov procedure as so-called cosmetic surgery, the clinical approach adopted by Dr Bellemore was accepted by the other four experts as one which was available to an Ilizarov surgeon practicing in 1996: see evidence of Dr Tetsworth (T1039.40); Mr Simonis (T1040.18); Associate Professor Donnan (T1038.36 and T1044.1) and Mr Torode (T1045.30).

94 Mr Simonis (retained on behalf of the plaintiff) conceded that although he personally would not have taken the risk (and did not know anyone on the reconstruction side in the United Kingdom who would), there were surgeons in other countries who would have offered the surgery.

95 Associate Professor Donnan, called on behalf of Dr Bellemore, described himself as “sitting on the fence” on the issue whether he would have undertaken the surgery, having regard to the existing length discrepancy and the “other issues” that the patient may be presenting with. However, he did not condemn it as surgery that would not have been undertaken by a prudent and reasonable surgeon.

Conclusion

96 As already noted, there is little issue as to the decision to lengthen the right femur by three centimetres. I am satisfied that it was not negligent of Dr Bellemore to offer that procedure to Mr Harris. As submitted on behalf of Dr Bellemore, all of the experts on liability accepted that proposition (T1034.1-T1036.12; see also T1248-T1252 as to Mr Kelly’s application to have part of that transcript corrected).

97 As to the additional lengthening, acknowledging the force of Professor Saleh’s view and his evident eminence and expertise, the weight of opinion to emerge from the concurrent evidence does not satisfy me that a prudent and reasonable orthopaedic surgeon would have declined to offer the surgery in 1996. Accordingly, assuming (contrary to my view) that Dr Bellemore was under a legal duty to determine whether to decline to offer the surgery according to an objective evaluation of its potential risks and likely benefits, I am not satisfied that it was negligent of him to offer bilateral surgery for the purpose of increasing Mr Harris’ height.

WARNINGS

98 Questions 2, 3 and 4 are directed to an alleged breach of the duty to warn. Before considering those questions, it is necessary to define the proper scope of the issues raised.

99 The duty owed by Dr Bellemore was to warn Mr Harris of a material risk inherent in the proposed treatment. As noted by Gummow J in Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at [61], the first task is to identify the risk in question. His Honour stated that, in the context of a claim in medical negligence, the relevant risk is the possibility that the proposed treatment will result in the injury that in fact occurred. That is the risk in reference to which the next question (whether the risk was material) is to be determined.

100 Gummow J explained the importance of identifying the content of the risk, including “the circumstances in which the injury can occur, the likelihood of the injury occurring, and the extent or severity of the potential injury if it does occur” (at [69]). If the nature and severity of the complications that should have been foreseen by the surgeon are not identified with precision in the evidence, it is difficult for the Court to determine whether the risk was “material” in the sense discussed in Rogers v Whitaker. It is also difficult to determine the question of factual causation in the absence of such information.

101 The relevant risks were not identified with that measure of specificity in the present case, either in the pleadings or in the evidence. The breaches of the duty to warn particularised in paragraph 32 of the second further amended statement of claim are:

(a) failing to give the plaintiff full and complete warning of the dangers and risks involved in such surgery, including a resulting above knee amputation in the event of complications (paragraph 4(a));

(b) failing to advise the plaintiff that he was an unsuitable candidate for the surgery (paragraph 5(a));

(c) failing to warn the plaintiff that the Ilizarov treatment was high-risk surgery (paragraph 16(a)c);

(d) failing to warn the plaintiff of any serious complications including complications of the bone, such as the bone not forming or premature consolidation (paragraph 16(a)d);

(e) failing to warn the plaintiff of complications with anatomical structures such as arteries, veins, nerves, hamstrings, muscles etc which could be stretched during the distraction procedure causing pain and restriction of movement in the leg and knee joint (paragraph 16(a)e).

102 The parties accepted that it is no longer necessary to consider an additional allegation of failure to warn in respect of the second osteotomy, in light of Dr Bellemore’s admission of liability for the consequences of that procedure (T1271.38).

103 As to some of the risks referred to in the particulars, there is no suggestion that the risk in fact materialised (such as the risk of “above knee amputation in the event of complications” and the risk of “bone not forming”). Presumably the basis for those contentions is that, if such additional information had been given, a different choice would have been made (and the injuries thereby avoided). That is inconsistent with the approach to identifying the relevant risk identified by Gummow J in Rosenberg v Percival at [61] (set out above); see also Chappel v Hart [1998] HCA 55; 195 CLR 232 at [66]-[67] (also per Gummow J). A patient is entitled to make the choice whether to undergo particular treatment on the basis of relevant information and advice. However, the notion that the risk against which a doctor has a duty to warn is the risk of a wrong choice was explicitly rejected by Gummow J, as was the proposition that causation of the injury that did occur is established where the patient would have been deterred by a warning as to the possibility of an injury that did not: Rosenberg v Percival at [83].

104 In any event, although those allegations were left to stand on the pleadings, and maintained by Mr Kelly in his closing address (T1330), the case was not conducted on that basis. In particular, no evidence was adduced from Mr Harris as to what he would have done had he been warned of particular possibilities that did not eventuate. Those allegations can therefore safely be put to one side.

105 A separate complexity is that, as to some of the complications that in fact occurred (such as pin breakages) there was no expert evidence as to the nature of the risk or whether it ought to have been known (and therefore considered for inclusion in a warning) by an Ilizarov surgeon in 1996. The allegation was effectively put at the broad level of failure to give a “full and complete warning” of all risks.

106 The evidence reflected that approach. The evidence given by Mr Harris was (Exhibit O, statement dated 9 February 2009 at paragraph 26):

“If I had known that there was a significant risk of the complications that have in fact occurred, it is my belief that I would not have gone ahead with surgery.”

107 Similar evidence was given in cross-examination by reference to “the problems that I have got now” (at T121.7). Mr Harris expanded further upon the reasons for that, referring to two operations he had as a child (unrelated to the two motor vehicle accidents) from which he still has problems (T124.12).

108 It is difficult to give any content to that evidence, since there is a substantial factual dispute between the parties as to what complications or problems “have in fact occurred” as a result of Dr Bellemore’s treatment of Mr Harris.

109 The experts were asked to list all of the risks of the procedure, but there was no attempt made on behalf of the plaintiff to analyse that evidence by reference to the complications he alleges have in fact occurred. The proper approach was for the plaintiff to identify the relevant risks clearly in the pleadings and in the evidence, in accordance with the principles stated by Gummow J in Rosenberg v Percival. Regrettably, however, I do not think the failure to do so relieves me of that task.

110 The critical issue is whether the evidence identifies any risk inherent in the procedure (that should have been foreseen by Dr Bellemore: Rosenberg v Percival at [63] page 455) that did in fact materialise and as to which there was no warning. If so, it is necessary to consider whether that risk was material. It is against that analysis that questions 2 to 4 must be considered.

Question 2: “Was the plaintiff given any warnings about the risk of leg lengthening procedure prior to undergoing the surgery on 4 November 1996?”

111 Mr Harris stated that Dr Bellemore did not at any stage inform him of any risks or complications that may arise during the leg lengthening procedure. During cross-examination, he gave the following evidence:

“Q. Your evidence, I take it, is that at this consultation and indeed all the consultations prior to that first operation, there was not one single word said about any risk associated with the procedure; is that right?

A. There was a discussion with regard to the consent form and the risk during the third consultation. That's all.

Q. In terms of Dr Bellemore identifying for you specific risks of the procedure, you say, do you, that there was absolutely not one word said?

A. That's right.”

112 Notwithstanding those answers, Mr Harris appeared to concede that there was some discussion with Dr Bellemore of the risk of pin site infection (T98.13), although he later asserted that he learned of that risk only from his discussions with the other Ilizarov patient to whom Dr Bellemore referred him (T711.20). He appeared to remember some discussion about soft tissue and the fact that “the rest of the leg grows” (T99.19) and some discussion of the need for physiotherapy. He also accepted that there was discussion regarding the possibility of a blood transfusion (T182.40).

113 Dr Bellemore gave evidence of a detailed conversation during the first consultation in which he says he informed Mr Harris of five categories of risk associated with the procedure.

114 In broad summary, the matters as to which Dr Bellemore said he provided information to Mr Harris were, first, the risk of infection occurring at some of the pin sites, which he described as a hundred percent chance. Secondly, he referred to a risk relating to muscles, described as the risk that the growth of the muscle may not be as rapid as the growth of the bone, which could result in contractures of the involved muscles and associated stiffness requiring physiotherapy. Thirdly, he described risks associated with nerve damage, where nerves may be injured during the surgery or during the distraction phase of the bone lengthening resulting in weakness or numbness of a transient or permanent nature. Fourthly, he described a risk of suffering a vascular injury, either due to direct trauma during surgery or during the distraction phase, resulting in impaired circulation. Finally, he referred to a risk of bone fracture if the Ilizarov frame is taken off too early, which he said had occurred in some patients of his in the past.

115 There is no contemporaneous record to corroborate Dr Bellemore’s evidence on that issue. Dr Bellemore stated that it was not his invariable practice at that time to record details of discussions with patients or advice provided during consultations. He stated, however, that at that time he felt that leg lengthening procedures (including the Ilizarov technique) were amongst the most risky surgical procedures he undertook, having a high complication rate. For that reason, he said, it was his practice to take great care in setting out for a patient the various risks and complications which might be encountered.

116 Dr Bellemore also had a specific recollection of attempting to dissuade Mr Harris from proceeding with the bilateral lengthening and of advising him, in that context, that if he were to have both legs lengthened, he would need more than one year off work due to the physical nature of his employment as an engineer with BHP working on the factory floor. That aspect of the conversation is corroborated to some extent by a note in Dr Bellemore’s handwriting, which in fact records an estimate of a total of twenty months to lengthen the right femur by eight centimetres and then the left femur by five centimetres. Dr Bellemore provided that note to Mr Harris during the course of their first consultation (statement of Mr Harris dated 5 February 2009, Exhibit O, paragraph 51).

117 Dr Bellemore stated further that he had “an explicit recollection” of specifically warning Mr Harris of the need to discuss the length of treatment with his employer to determine whether they would be prepared to give him the required amount of time off work. Dr Bellemore’s recollection as to that aspect of the conversation is corroborated by a letter he wrote to BHP on Mr Harris’ behalf outlining the proposed surgery. The letter stated Dr Bellemore’s view that Mr Harris would be unfit for his normal duties for a minimum period of six months and possibly significantly longer if he had surgery to both limbs.

118 It was submitted on behalf of Mr Harris that Dr Bellemore’s evidence as to the extensive warnings he said he gave should be rejected. Mr Kelly relied in that context on the submissions as to credit discussed above. He also noted the absence of any note or other contemporaneous record to corroborate Dr Bellemore’s evidence on that issue, the fact that the evidence was denied by Mr Harris and the contention that the evidence was inherently improbable.

119 For the reasons already stated, I accept that it is appropriate to approach Dr Bellemore’s evidence on this issue paying due heed to the demonstrated unreliability of the evidence he originally gave (with some confidence) in relation to the issue of conical washers. An additional consideration not specifically relied upon by Mr Kelly is the fact that, having regard to the passage of time between the events in question and the time when Dr Bellemore was called upon to provide a statement in the proceedings, it seems likely that his evidence on this issue is, to some extent, a reconstruction as to what he later believed or hoped he would have said, albeit based on his practice and experience.

120 Mr Kelly observed that there was a measure of coincidence between the matters as to which Dr Bellemore said he warned and the bad outcomes complained of by Mr Harris. No doubt, Dr Bellemore had those complaints in mind when he prepared his first statement, and I accept that is likely to have influenced his recollection in some way, especially since he was unaided by any contemporaneous note. It should be noted, however, that Dr Bellemore’s first statement setting out the warnings he claims he gave was prepared before Mr Harris had made any allegation against him of failure to warn.

121 To a lawyer’s way of thinking, it is extraordinary that Dr Bellemore did not have a practice in 1996 of recording or noting such discussions or a template consent form setting out the risks in writing. I do not, however, accept that the evidence that Dr Bellemore gave on that issue is to be disbelieved on that account, or that it was otherwise inherently improbable, as submitted by Mr Kelly. Mr Kelly relied in particular on the fact that two videos shown to Mr Harris describing the Ilizarov procedure gave “no hint” of any such dangers or risks as Dr Bellemore claims to have warned of. In my view, however, the content of any warnings Dr Bellemore was accustomed to giving is more likely to have been informed by his own education and surgical experience rather than by the content of the promotional videos produced by the marketers of Ilizarov frames. I do not accept that Dr Bellemore’s evidence on that issue is inherently improbable on account of its content.

122 Further, it is of doubtful assistance to observe that Dr Bellemore’s claim to have given a detailed warning is denied by Mr Harris. In my view, it is almost certain that Mr Harris’ recollection as to what transpired during his early consultations with Dr Bellemore has been irretrievably tainted by his experiences during the conduct of the present claim and its tortured path to a hearing. Mr Bozic relied in that context on the observations made by McLelland CJ in Equity in Watson v Foxman (1995) 49 NSWLR 315 at 319.1 (which I note are equally applicable to an assessment of the evidence of Dr Bellemore on this issue):

“Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.”

123 An additional consideration, having regard to Mr Harris’ claim that he was given no warning whatsoever, was noted by one of the experts called on his behalf. Mr Simonis stated:

“10.7 The patient probably had unrealistic expectations of what surgery could achieve. When he found a surgeon who was prepared to lengthen both legs, he agreed to surgery in spite of whatever risks that had been mentioned to him.
10.8 I have had several such patients who once they find a surgeon who is willing to achieve their objective, tend not to listen to the surgeon’s warnings about potential risks. The patient often does not hear, nor remember, everything that the surgeon tells him, after they have agreed to the patient’s wishes.”

124 It must be observed that Dr Bellemore gave a detailed, verbatim account of a conversation alleged to have occurred many years ago. I think it would be impossible for any person to recall such detail reliably. However, it seems highly unlikely, and I do not accept, that there was no discussion of risks whatsoever. As submitted on behalf of Dr Bellemore, although Mr Harris initially claimed that not a single word was said on the topic of risks and potential complications of the procedure, he did ultimately accept that Dr Bellemore may have referred to some of the matters that Dr Bellemore claims he warned of, including the reference to soft tissue in the context of leg growth (T99.19); the likely need for physiotherapy (T99.42) and the need to keep the pin sites clean to prevent infection (T98.13).

125 Mr Harris also accepted that there was some discussion (during the third consultation) of the possibility of needing a blood transfusion. He said that he had seen a reference to blood transfusion on the consent form and was aware on that account of the possibility of something going wrong during the procedure that would require a blood transfusion (T182-183).

126 Further, I accept that it is inherently unlikely that, in 1996 (four years after the High Court gave its decision in Rogers v Whitaker), an experienced orthopaedic surgeon would give no warning at all in relation to what he regarded to be a highly risky surgical procedure (see T96.20). Mr Harris did not deny that Dr Bellemore tried to discourage him from having the full bilateral leg lengthening. As submitted by Mr Bozic, an identification of the risks of the procedure was an obvious tool to that end.

127 I think that Mr Harris probably now has no recollection of any discussion of risks, and believes there was none, but in my view his evidence on that issue is implausible. It is significant, in my view, that the original statement of claim filed in the District Court in these proceedings made no allegation of a failure to warn. That allegation was made for the first time in the amended statement of claim filed 13 May 2002, over five and a half years after the consultations in question.

128 I am not satisfied that Dr Bellemore failed to give Mr Harris any warning of any of the risks or potential complications of the procedure. Although I do not accept that a warning was given in the exact terms set out in his evidence, I am satisfied that Dr Bellemore’s discussions with Mr Harris probably included discussion of the risks identified in Dr Bellemore’s evidence, broadly in the terms described by him.

Question 3: “Was the warning given to the plaintiff adequate?”

129 For the reasons explained above, the task is to identify whether Dr Bellemore omitted to provide information to Mr Harris in respect of any risk that was in fact a known or reasonably foreseeable risk of the treatment (as at 1996) and that did in fact eventuate.

130 The issue of the known risks of the procedure as at 1996 was addressed by the liability experts in their concurrent evidence. The experts were asked first to identify all of the potential dangers and risks of the treatment proposed. There was broad agreement on that issue. Professor Saleh said that the risks range from minor contraction and pin site infection to severe damage such as arterial damage and nerve injury, the sequelae of which could go as far as chronic pain or amputation (T1049.38).

131 Mr Simonis stated that there are twenty or thirty major complications of the procedure, most of which are recorded on a personal consent form which he uses in his practice (at pages 28 and 29 of his report, Exhibit AY). In addition to those expressly mentioned by Professor Saleh, Mr Simonis referred to the fact that pin and wire infections can lead to serious infection in the bone and the risk of malalignment of the lengthening. He also referred to the risk of joint stiffness. His written consent form states, on that issue, “joints often become very stiff. Regular physiotherapy improves joint stiffness but despite physiotherapy, deformity and sometimes even permanent dislocation of joints can occur. This may require surgical correction”.

132 Mr Simonis added that he has a practice of repeating the warnings over three consultations so that the patient can be absolutely certain they are prepared to go through with the procedure (T1049.39).

133 Separately, the experts were asked:

“If the option of lengthening his right leg by eight centimetres and the left leg by five centimetres were offered to the plaintiff in 1996, in your view:
(a) what warnings should have been given to the plaintiff?
(b) what consents should have been obtained by the plaintiff to fully inform him of the potential dangers and risks of such surgery?”

134 Professor Saleh’s response to that question was in the following terms:

“The risk of knee stiffness, the loss of knee joint range, which is already a problem for him, considerable stress on an already damaged right knee, the risk of deformity, the risk of delayed and non-union. Very important in an adult, prolonged treatment times and the circumstance of semetry [sic: symmetry]. I was not really thinking about matching the two leg lengths to within millimetres, but achieving what is a good physiological result in each leg and I still see that today as a difficult thing to achieve.”

135 In response to a specific question as to the risk of vascular injury, Professor Saleh said that such injuries are rare but can be a devastating complication. He stated “it is so rare that I question the appropriateness of exposing every patient to the full discussion of that potential risk … my own view would be not to express a risk of arterial, or indeed nerve, injury to patients on a routine basis. I think it just frightens someone, inappropriately, when they are trying to put their confidence in a surgeon who is about to manage their case” (T1051).

136 Mr Bozic submitted that the warnings given by Dr Bellemore cover “much the same ground” as Mr Simonis’ consent form. He noted that the plaintiff’s experts were not asked to comment as to the adequacy of the warning Dr Bellemore said he gave. For my part, I doubt that was due to a forensic decision by Mr Kelly and I am not inclined to draw the inference, as Mr Bozic submitted I could, that their answer would not have assisted the plaintiff’s case: cf Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 2 NSWLR 389 at 418-9 per Handley JA.

137 As to whether Dr Bellemore’s warning covered the territory outlined by Mr Simonis, a comparison of the two discloses that there are, relevantly, two areas of risk identified by Mr Simonis as to which Dr Bellemore does not claim he provided any information to Mr Harris. One is the risk of joint stiffness and loss of knee joint range referred to by both Professor Saleh and Mr Simonis. The second is the area of risks relating to bone formation. It is necessary to consider each of those matters in turn. There are other differences between Dr Bellemore’s warnings and those recommended by the liability experts but, as already explained, it is appropriate to confine my consideration of this issue to the complications that in fact occurred or are alleged to have occurred in the present case.

138 As to the risk of joint stiffness and loss of flexibility in the knee, there is an issue of fact (addressed below) as to the extent to which Mr Harris’ loss of range of movement in the knee is the result of Dr Bellemore’s breach of duty. For present purposes, however, the issue is not what loss of range is due to the negligence but what loss of range is due to the treatment as a whole. On that issue, the expert evidence (considered in detail below) was to the effect that the stiffness and reduced range of movement suffered by Mr Harris was largely due to the leg-lengthening treatment and that only 15% of that condition was pre-existing.

139 I am satisfied that the possibility of having the condition of the knee worsened to that extent is a risk to which, in broad terms, it may be said that a reasonable person in the position of Mr Harris would be likely to attach some significance. As noted by Gummow J in Rosenberg v Percival at [77], the extent or severity of the potential injury and the likelihood of its actually occurring are important considerations in the application of that test. The evidence in the present case lacked that detail. Nonetheless, I am comfortably satisfied that a reasonable person in Mr Harris’ position would be likely to attach some significance to the possibility, as it was expressed by Mr Simonis, that he “might get a stiff knee that won’t bend”.

140 Dr Bellemore said that his warning referred to contractures of the muscles and associated stiffness requiring physiotherapy. However, he did not suggest that he provided any information to Mr Harris as to the risk of loss of flexibility in the knee. I am satisfied, on that basis, that there was a failure to warn of that particular risk.

141 As to risks relating to bone formation, it is common ground that premature consolidation of the bone was an injury or complication that in fact occurred in the case of Mr Harris. However, none of the experts identified that as a specific risk that ought to have been foreseen by a reasonable orthopaedic surgeon in 1996. The consent form used by Mr Simonis states: “Formation of new bone is unpredictable and cannot be guaranteed” and goes on to address the possibility of no bone formation. It does not address the risk of premature consolidation of the new bone. This is an issue in respect of which the onus of proof lies on the plaintiff. In the absence of any evidence as to the nature of that risk, its likely extent or severity or the likelihood of its occurring, I cannot be satisfied that it was a risk as to which Dr Bellemore was under a duty to warn.

Question 4: “If no warning was given, or an inadequate warning was given, would the plaintiff have had the operation in any event?”

142 In case my finding that Dr Bellemore provided information to Mr Harris on the five topics identified in his evidence is wrong, it is prudent to determine this question on the assumption that no information was provided on those subjects (except as to the need for pin site care against the risk of infection, which Mr Harris acknowledges was discussed). The test is subjective. The question is what Mr Harris would have done if appropriately warned: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 559F, 581D; Chappel v Hart at [32]. It is convenient to consider that issue by reference to a warning in the terms outlined by Mr Simonis as the appropriate warning.

143 Mr Harris’ evidence on that issue was not strong. As already noted, the evidence was given by reference to the indeterminate phrase “the complications that have in fact occurred”. On the strength of that fluid allegation, it is difficult to assess the significance to him of any particular risk.

144 Further, the belief he expressed was that if he had known there was a “significant risk” of the complications that have in fact occurred, he would not have gone ahead with the surgery. He acknowledged, however, that his belief was affected by hindsight (T120.40). He did not explain what he meant by the phrase “significant risk”. In addition, the indeterminate reference to “the complications that have in fact occurred” makes the evidence almost meaningless. Mr Harris may have had total psychiatric collapse in mind as one of the complications a warning against which would have deterred him from surgery, but that is not one of the “relevant risks” identified by the experts (Mr Simonis’ consent form refers to depression but not in terms comparable to the psychiatric disability from which Mr Harris claims to suffer).

145 Mr Kelly lead further evidence from Mr Harris on the twelfth day of the hearing as to what he would have done if given a specific warning of the risk that the femoral artery would be severed and that he would be left with claudication symptoms. Mr Harris responded that he would have asked more questions as to why that was so, but that if given only that information, he would not have agreed to the operation (T712).

146 As submitted by Mr Bozic, it is widely recognised that such evidence from a plaintiff, although probably sincere, must be analysed objectively, particularly by reference to the person’s attitude and conduct before making the decision to undergo the surgery: Chappel v Hart at [32] and footnote (64) per McHugh J; Rosenberg v Percival at [87]-[90] per Gummow J. All of the objective indications in the present case are that Mr Harris would have paid little heed to the most detailed and robust warning, and would have chosen to proceed with the surgery in any event.

147 A list of factors relevant to the determination of that issue was referred to by Basten JA in Elbourne v Gibbs [2006] NSWCA 127 at [81]. They include remoteness of the risk, the patient’s desire for treatment, previous and later procedures undertaken, the degree of faith placed in the medical practitioner by the patient, the knowledge of the patient, the need for treatment and the availability of any alternative treatment.

“acceptance NOT change

- no more operations

- get back to work”

336 In his first reporting letter to the general practitioner dated 22 May 2003 (Exhibit 17, page 143), Dr Williams stated:

“The essence of the matter is that since the first surgical procedure, which led to many complications and an unsatisfactory result, he has become progressively depressed. He has lost his job, and is currently unemployable and in a major financial crisis, as he is not entitled to a disability support pension because of his assets.
He is embroiled in litigation with an uncertain outcome, and the possibility of massive personal legal expenses.
Just where in the overall scheme of things he became depressed is not clear, but he has certainly been depressed for a number of years, and in general things are getting worse.”

337 The opinion expressed by Dr Williams in the psychiatric experts’ joint report (that Mr Harris would probably have undergone a full remission of his mild depressive symptoms following the first surgery had the second osteotomy not been performed) was based on the “last straw phenomenon”. Dr Williams explained that phenomenon by reference to the example of “very, very courageous and well-endowed people” such as police officers who “cope with murder, mayhem and mangled corpses for decades, and one last thing happens and they never recover” (T1127.27).

338 I doubt whether Mr Harris could ever have been characterised as being so robust (psychologically) as the kind of police officer referred to in Dr Williams’ analogy. More importantly, I do not think there is anything in Mr Harris’ history, as recorded in the many medical records before me (including Dr Williams’ own notes) to support Dr Williams’ “last straw” theory in the present case. Mr Harris was not coping with life before the surgery and he did not completely stop coping after the surgery. His medical history discloses a nagging dissatisfaction with himself from an early age due to the treatment he received after his childhood accidents. The pervading theme of Dr Williams’ notes is identification of the need for Mr Harris to stop seeking medical solutions, to accept his imperfection (including the imperfect outcome of the Ilizarov surgery) and to go back to work. The process seems to me to have been one of inexorable decline rather than of damage caused by a “last straw”.

339 Mr Kelly placed reliance upon the report of Dr O’Neill, a consultant neurologist who saw Mr Harris in April 2003. The history recorded by Dr O’Neill included the following (Exhibit 17, page 310):

“Mr Harris’ main concern is impaired concentration since the operation of 5/5/97. He said trial of two different anti-depressants has made no difference.”

340 The history taken by Dr O’Neill confirms that Mr Harris was complaining of cognitive deficits which he (Mr Harris) apparently attributed to the vascular injury and consequent blood loss that occurred during the second osteotomy. However, that history does not demonstrate that Mr Harris attributed his depression to his psychological reaction to that surgery, to the exclusion of other events. In any event, the investigations of both Dr O’Neill and the psychologist, Ms Campbell failed to provide any objective support for Mr Harris’ cognitive complaints.

341 Dr O’Neill told Mr Harris that “it was highly unlikely the complicated operation resulted in any organic brain damage” and that “his impaired concentration might simply be a consequence of depression or even an angry fixation over the event”. After performing an MRI scan and electroencephalogram several weeks later, Dr O’Neil concluded that Mr Harris’ complaints of memory impairment and personality change “must have a psychosomatic basis” (Exhibit 17, page 312). As already noted, Ms Campbell identified the possibility of “factitious” response.

342 As submitted on behalf of Dr Bellemore, Dr Williams’ “last straw” theory is further contradicted by events after the second osteotomy, including Mr Harris’ trip to Europe to visit relatives in 1998, his subsequent treatment in Western Siberia to lengthen the left leg (Exhibit O, paragraphs 162 and 163) and his return to work at BHP for two years.

343 Dr Gertler considered that, had Mr Harris not experienced the second osteotomy and the severing of the femoral artery, his psychiatric condition would not have been as severe in intensity and would not have caused him to have a continuing disability (joint report, page 5.3; T1123.4). His opinion was based, however, on an acceptance of the history provided to him by Mr Harris. A review of Dr Gertler’s reports discloses that he has been told by Mr Harris that the surgery was the cause of his depression and that Dr Gertler has accepted that proposition. In effect, as submitted by Mr Bozic, the history has become the diagnosis. By way of illustration, in his report dated 28 May 2001, Dr Gertler recorded (at page 6):

“Mr Harris in my opinion is currently suffering from an adjustment disorder with depressed mood. This has developed on the basis of the surgical procedures which he underwent in 1996-97 and which proved unsatisfactory to him in overcoming, not only physical problems related to earlier procedures, but also mild feelings of inadequacy and low self-esteem associated with being shorter than his twin brother. Mr Harris had however largely come to terms with those feelings prior to 1996.”

344 I am not satisfied that Dr Gertler’s opinion was based on a complete and accurate history of events relevant to Mr Harris’ present psychiatric condition.

345 For those reasons, I have come to the conclusion that I should accept the evidence of Dr Brown. Based on her opinion and my own analysis of the evidence, I am not satisfied that Dr Bellemore’s negligence caused or materially contributed to Mr Harris’ psychiatric disability. In my view, Mr Harris would more probably than not have reached his present psychiatric state regardless of the negligence of Dr Bellemore.

Question 19: “Have these legal proceedings caused or contributed to the plaintiff’s psychiatric disability?”

346 It is not entirely clear to me why a question in these terms has been posed for my determination, since neither party contends for a finding that these proceedings have caused or contributed to Mr Harris’ depression. Mr Harris contends that the cause of his psychiatric state is Dr Bellemore’s negligence. Dr Bellemore does not contend that the proceedings have become an intervening cause or contributing factor in that condition. Rather, he contends that the impact of the litigation on Mr Harris’ mental state has been to escalate his abnormal illness behaviour or “malingering”.

347 It may be accepted, as noted by Mr Bozic, that Dr Williams’ view as to the severity of Mr Harris’ psychiatric impairment changed markedly on 16 June 2008 when he saw Mr Harris in the presence of Mr Harris’ mother. Dr Williams’ notes of that consultation include a record of his having been told that Mr Harris’ new solicitor had said that the main part of Mr Harris’ claim would be for psychiatric disability (as, indeed, it is) (Exhibit 17, page 48).

348 In his report of that consultation, Dr Williams stated:

“[Mr Harris’ mother] said that he cannot stand, long enough to cook, wash up, and so forth, and has trouble bending over. Her major concern is, who will look after him when she is gone”.

349 Mrs Harris gave evidence to similar effect in the proceedings, asserting that she has to do everything for Mr Harris, and I accept that is her perception. In my view, however, Mr Harris’ actual need for assistance is nowhere near as great as the level of assistance she provides (and he accepts). On that basis, I think it is likely that Mrs Harris’ presence at the consultation with Dr Williams created an exaggerated picture of the true extent of Mr Harris’ disabilities. A number of expert witnesses in the proceedings did not accept that Mr Harris’ physical disabilities are as great as he claims (see report of Mr Simonis dated 29 December 2008, Exhibit AY at pages 24 to 25; report of orthopaedic experts on current condition, Exhibit 40 at pages 3 to 4; report of Heather Tchan, Exhibit AB at page 48).

350 Further, as submitted on behalf of Dr Bellemore, there is overwhelming evidence in the contemporaneous medical records that from at least as early as 2003, Mr Harris was becoming fixated with the legal proceedings. In addition to the notes of Mr Harvey, there are several references in Dr Williams’ records to the litigation being an impediment to Mr Harris’ return to work (for example Exhibit 17, pages 108 and 77; see also Dr Williams’ report dated 19 February 2007, Exhibit AAC).

351 I think it is very likely that Mr Harris’ fixation with the litigation has been the principal cause of his failure to seek employment since being dismissed by BHP. That must inevitably have coloured his perception of his current condition and given rise to a strong temptation to present a picture of himself that vindicates his choice to become a full-time plaintiff over the past eight years rather than a full-time engineer.

352 As noted at the outset of this discussion, however, I do not understand question 19 to be a factual issue in the proceedings except so far as it assists in an assessment of the true extent of Mr Harris’ disabilities.

Question 20: “What is the plaintiff’s prognosis from a psychiatric perspective and, in particular, will the plaintiff’s psychiatric condition improve or resolve following the conclusion of these legal proceedings?”

Question 21: “What would the plaintiff’s prognosis have been (from a psychiatric perspective) but for any breach of duty by the defendant?”

353 For the reasons stated above in respect of my conclusion that Dr Bellemore’s negligence was not a cause of Mr Harris’ psychiatric condition in the relevant sense, I am satisfied that Mr Harris’ prognosis from a psychiatric perspective would have been the same or substantially the same even if Dr Bellemore had not breached his duty of care. Accordingly, no further issue is required to be determined relating to questions 20 and 21.

PAST ECONOMIC LOSS

4 November 1996 to 6 December 1999

354 The first issue to consider is whether Dr Bellemore’s negligence caused Mr Harris any financial loss during the period of treatment and recovery leading up to Mr Harris’ return to work in December 1999.

355 On the assumption, as I have found, that Mr Harris would have had the surgery in any event (but not the second osteotomy) it was submitted on behalf of Dr Bellemore that Mr Harris has not suffered any recoverable economic loss relating to that period, because he would have taken extended leave in any event, regardless of Dr Bellemore’s negligence. I do not think that is entirely correct.

356 Dr Bellemore had originally estimated that the bilateral lengthening would require Mr Harris to be off work for a period of about 20 months. On that basis, but for the complications of the second osteotomy, the treatment would probably have been completed so as to enable Mr Harris to return to work by about mid 1998. However, Mr Harris gave evidence, and it was not disputed, that after the second osteotomy he lost confidence in Dr Bellemore. In the circumstances in which he found himself, I am satisfied that it was reasonable for Mr Harris to decide not to proceed to have the left leg lengthened by Dr Bellemore. However, his right leg was then longer than the left by about five centimetres. I am satisfied that it was reasonable in those circumstances for Mr Harris to travel to the specialised centre in Western Siberia in order to have the bilateral leg lengthening completed.

357 Mr Harris returned from Europe in November 1998. On that basis, I am satisfied that the period of his absence from work attributable to the treatment was prolonged by about 6 months due to Dr Bellemore’s negligence. Mr Harris is entitled to his lost earnings based on his actual salary as at 4 November 1996 for that period. Mr Kelly’s submissions assumed that any past economic loss should be calculated at the rate of wages earned by employees said to be comparable to Mr Harris. For the period before Mr Harris returned to work in December 1999, I do not think that is a fair assessment of the loss.

358 Mr Harris did not in fact return to work when he returned from Russia but, for the reasons stated above, I am not satisfied that his failure to do so is due to any negligence on the part of Dr Bellemore.

Question 22: “Was the plaintiff’s dismissal from BHP in April 2002 caused by any breach of duty by the defendant?”

Question 23: “Did the plaintiff have the capacity to re-enter the workforce at any time between April 2002 and the present?”

359 I have considered the issue of Mr Harris’ dismissal from BHP in the context of my consideration of the psychiatric issues above. For the reasons there stated, I am not satisfied that Mr Harris’ dismissal from BHP was due to any breach of duty by Dr Bellemore. Further, I am satisfied that Mr Harris had the capacity to re-enter the workforce after that time, but for his dysfunctional personality traits (obsessiveness and avoidant behaviour) which drove him to become fixated on the litigation to the exclusion of other pursuits. His depression, which was then of milder severity, should not have precluded him from obtaining employment. On that issue, I accept the evidence of Dr Brown that people suffering from mild to moderate depression “can, and do, work” (T1126.11).

360 The proceedings were initially listed for hearing in the District Court on 16 July 2001 (when Mr Harris was still employed). Their tortured path after that date is recorded in my earlier judgment given on 9 December 2008 refusing to vacate the hearing date. I am satisfied that, in the intervening time, it was due to his being obsessively absorbed with the litigation, and not due to any other disability, that Mr Harris was not seeking work. That in turn has probably contributed to the worsening of his symptoms. For reasons that are not entirely clear, Mr Harris was unwilling or unable to move the proceedings forward for many years. In any event, I am satisfied that his failure to seek work during that period was a choice. I am not satisfied that there was any incapacity to re-enter the workforce during that period due to Dr Bellemore’s negligence.

FUTURE ECONOMIC LOSS

Question 24: “Is the plaintiff permanently unemployable or does he have a residual earning capacity?”

Question 25: “If the plaintiff will be able to return to work in the future, when and in what capacity?”

Question 26: “What would the plaintiff’s career progress have been if: (a) he had not had the leg lengthening procedure?; or (b) he had the leg lengthening procedure but not suffered the vascular injury [or the posterior displacement]?”

361 The evidence of Mr Harris’ psychiatric witnesses was that the prospects of his ever obtaining employment in the future are negligible, due to his psychiatric condition. Since I am not satisfied that Dr Bellemore’s negligence is a cause of that condition, it is neither necessary nor constructive for me to address that contention. In the context of the findings I have made, the only question to be determined is the impact of the results of Dr Bellemore’s negligence on Mr Harris’ capacity to earn an income in the future.

362 I have already referred to the evidence of the orthopaedic and vascular experts to the effect that Mr Harris’ physical disabilities are not such as to preclude him from undertaking a sedentary occupation of the kind to which he returned at BHP after the Ilizarov treatment. It does not follow, however, that there has been no loss of earning capacity. The task is to estimate as best as possible the future effect of the injuries from which Mr Harris suffers as a result of Dr Bellemore’s negligence: State of NSW v Moss [2002] NSWCA 133; 54 NSWLR 536 at [71].

363 The injuries established on the evidence are scarring, pain, some loss of range of motion in the knee, very slight exacerbation of progressive degenerative change in the knee, some exacerbation of tightness of the soft tissues in the knee and the claudication symptoms. In my view, although employment of a sedentary nature is available to engineers, it is likely that the combination of those physical injuries has impaired Mr Harris’ earning capacity, albeit to a limited extent.

364 The fact that it is difficult to assess the impairment does not mean that Mr Harris is entitled only to a nominal sum: Moss at [72]. The Court is obliged to do the best it can to estimate the extent of the impairment. It is impossible to know precisely what impact Mr Harris’ physical condition would have on his earning capacity in the future. However, it seems to me that it is likely to impair his capacity to operate at such a degree of efficiency and enthusiasm as to mark himself out for pay increases at the higher end of the range and for promotion to leadership or management positions. These were prospects that appeared open to him before he stopped working to have the Ilizarov treatment.

365 A substantial amount of hearing time was devoted to analysing the extent to which it was appropriate to consider the wages of four other BHP employees as being comparable to Mr Harris’ capacity to earn, but for his disabilities. In my view, however, it is not possible to make an arithmetic calculation by reference to that evidence of the impairment of earning capacity due to Dr Bellemore’s negligence alone. It must be borne in mind that some of the physical disabilities, including some of the pain and sone of the loss of flexion in the knee, are not due to Dr Bellemore’s negligence. Estimating the future loss is accordingly an inexact process.

366 For that reason, I do not think it is necessary to answer question 27 (whether the “comparable” wages are truly comparable). In the circumstances, the appropriate course is to award a lump sum to reflect an overall diminution in Mr Harris’ capacity to advance and prosper as a senior engineer due to the daily impairment, in particular, of poor flexion in the knee and pain upon exertion. In my view, an appropriate sum to compensate Mr Harris for that lost capacity is $150,000. I do not think it is appropriate to discount that sum to reflect the vicissitudes of life.

PAST AND FUTURE DOMESTIC ASSISTANCE

(Questions 28 to 31)

367 It remains to consider Mr Harris’ need for domestic assistance. The evidence of both Mr Harris and his mother, Mrs Doreen Harris, as to that issue was to the effect that Mrs Harris effectively does everything for him. She described herself as “like the little donkey” (T279.5).

368 It was submitted on behalf of Dr Bellemore that the Court would be slow to accept the evidence of Mrs Harris where that evidence is not corroborated by independent evidence or consistent with what might be regarded as the probabilities objectively ascertained.

369 As already noted, the expert evidence in the proceedings was to the effect that Mr Harris is not as disabled as his mother has apparently come to believe. She appears to have convinced herself that, as a result of the surgery, her son is almost totally incapacitated. I do not think her evidence on that issue was dishonest in any respect. In my view, however, her perception as to her son’s needs is plainly skewed by her instinct as a mother to nurture and protect. I also think the extent of assistance she provides is affected by the fact that she is possesive of her own domestic space (see T279.46-T280.25). Accordingly, I do not think Mrs Harris’ evidence provides a reliable indication of the level of care required by her son.

370 As to past attendant care, it was submitted on behalf of Dr Bellemore that no allowance should be made for the period 13 May 1997 to 6 December 1999, since care during that period would have been required in any event. In my view, however, the need for care was plainly increased by the complications that occurred during the second osteotomy, albeit for a limited period. Based on the analysis of Mr Harris’ needs carried out by Ms Heather Tchan (the occupational therapist retained on behalf of Mr Harris), I am satisfied that Mr Harris required additional care at the maximum level (51 hours per week) for 2 weeks after the second osteotomy and at a high level (33 hours per week) for an additional 3 weeks after that: see report dated 29 January 2009 at pages 11 to 14 (Exhibit AB, pages 35 to 38).

371 It was Ms Tchan’s assessment that, apart from that period of 5 weeks, Mr Harris required 20 hours assistance per week for a considerable period. However, there is confusion in her report as to the dates during which that care was required, as she appears to have assumed that Mr Harris travelled to Russia between August 1997 and March 1998, whereas the evidence in the proceedings was that he did not leave Australia until April 1998. Ms Tchan assessed him as needing about 12 hours assistance per week from May 1998 until about June 2004. She assesses that he has required 8 hours assistance per week since that time.

372 The critical task, however, is to identify what assistance Mr Harris reasonably requires on the basis of the physical injuries that are due to Dr Bellemore’s negligence. That issue was addressed in concurrent evidence given by Ms Tchan and two other experts, Dr Barold (an occupational medicine specialist retained on behalf of Mr Harris) and Dr Bowers (a rehabilitation physician retained on behalf of Dr Bellemore). Dr Bowers adhered to the view expressed in his written report that the surgery of May 1997 has led to the requirement for 3 hours per week domestic assistance (T684.40). Dr Barold assessed the need at 10 hours per week, but was including both physical and psychiatric disabilities as the premise of that assessment (T686.3). It is clear from Ms Tchan’s report at page 14 (Exhibit AB, page 38) that she also made allowance for the impact of depression on Mr Harris’ need for care.

373 Having regard to all of that evidence, and doing the best I can, I am satisfied that, in addition to the period of increased need for 5 weeks immediately following the second osteotomy (identified above), Mr Harris probably required 20 hours domestic assistance per week due to the second osteotomy for a further 5 weeks. That conclusion is based on the evidence of Ms Tchan as to a graduated recovery, making allowance for my findings as to the limited disabilities that are exclusively due to Dr Bellemore’s negligence. I am further satisfied that Mr Harris has required 3 hours domestic assistance per week due to the second osteotomy since that time and that he is likely to continue to require that level of assistance.

374 Further, having regard to my determination that Mr Harris is unlikely to be able to undergo further surgery in the future due to his vascular condition, I am satisfied that he is entitled to recover from Dr Bellemore the cost of assistance at a higher level, which he is likely to need in about 20 years time when he would otherwise probably have required a total knee replacement. The parties did not direct any submissions to that particular need and should be given an opportunity to do so.

GENERAL DAMAGES

375 The physical injuries resulting from Dr Bellemore’s failure to use hinges on the Ilizarov frame are discussed in detail below. Mr Bozic submitted that, on the assumption (as I have found) that Dr Bellemore is liable only for the consequences of that conduct, Mr Harris is entitled to up to $100,000 for general damages. However, having regard to submissions made on behalf of Dr Bellemore as to Mr Harris’ physical injuries, that submission must be taken to assume that Mr Harris’ claudication symptoms are not disabling in any respect. The submission probably also ignores the prospect of Mr Harris’ having to endure being unable to have a total knee replacement (if he requires it) due to his vascular condition (since that prospect was denied by Dr Bellemore).

376 Mr Kelly submitted that, if the plaintiff’s case were accepted, the upper range of $150,000 identified by Mr Bozic on that premise was unrealistically light. However, I have not accepted the plaintiff’s case. In particular, I do not accept that Mr Harris’ physical injuries are as disabling as he contends and I do not attribute his psychiatric condition to Dr Bellemore’s negligence.

377 In my view, the appropriate award of general damages is $125,000.

CONCLUSION AS TO DAMAGES

378 As to the plaintiff’s economic loss, the parties invited me to direct them to undertake the necessary calculations following publication of my findings. It will, however, be necessary to give further consideration to the question of superannuation. The parties addressed that issue on the assumption that economic loss may be calculated arithmetically by reference to comparable earnings. They should have an opportunity to address me further as to that issue in light of the different approach I have taken.

379 As to out of pocket expenses, the written submissions of the parties disclose that there is substantial agreement as to the amounts in question, subject only to knowing the findings of the Court. I will ask the parties to identify those amounts by reference to the findings in this judgment.

380 I will hear the parties as to costs.

381 I will also ask the parties to endeavour to reach agreement as to the final calculation of damages including the following components:

(a) Past economic loss (to be calculated in accordance with paragraph 357 above);
(b) Interest on past economic loss;

(c) Future economic loss of $150,000 in accordance with paragraph 366 above;

(d) Past out of pocket expenses;

(e) Future out of pocket expenses;

(f) Past attendant care calculated in accordance with paragraphs 370 and 373 above;

(g) Future attendant care as referred to in paragraph 374 above;

(h) General damages of $125,000;

(i) Interest on general damages calculated in accordance with clause 13 of the defendant’s written submissions.

382 I direct the parties to bring in a calculation of damages in accordance with paragraph 381 of this judgment.

383 I order that there be a verdict and judgment for the plaintiff in an amount to be assessed in accordance with that direction.

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