Hillier & Carney v Lucas

[2000] SASC 331

HILLIER & CARNEY V LUCAS

Full Court: Duggan, Lander and Bleby JJ

DUGGAN J. I agree that the appeal should be allowed for the reasons given by Lander J.
I also agree with the orders proposed by Lander J.

LANDER J.

The Parties

The appellants were the defendants in the court below. The respondent was the plaintiff. I shall refer to the parties as plaintiff and defendants.
The plaintiff brought proceedings in May 1994 against the defendants claiming damages for personal injuries said to have been occasioned to the plaintiff by reason of the professional negligence of the defendants. The first defendant is an orthopaedic surgeon and the second defendant is a neurosurgeon.
Whilst these proceedings have been brought in the name of the plaintiff they were brought at the instigation of Comcare Australia (“Comcare”), which is a statutory authority established pursuant to s 68 of the Safety, Rehabilitation and Compensation Act 1988 (Commonwealth) (“the Act”).
Paragraph 2 of the plaintiff’s Statement of Claim (which is not admitted in the defendants’ defence) asserts:
“2..... These proceedings are brought by the plaintiff in his own right and for his own benefit and in the name of the Plaintiff by Comcare Australia pursuant to Section 50 of the Safety Rehabilitation and Compensation Act 1988.”
Section 50 of the Safety, Rehabilitation and Compensation Act 1998 (Commonwealth) relevantly provides:
“(1) Where:
(a) an amount of compensation under this Act:
(i)is paid to an employee in respect of an injury to the employee or in respect of the loss of, or damage to, property used by the employee; or
(ii)is paid for the benefit of a dependant of a deceased employee in respect of an injury that resulted in the death of the employee;
(b)the injury, loss, damage or death occurred in circumstances that appear to create a legal liability in a person to pay damages in respect of the injury, loss, damage or death; and
(c)proceedings against that person for the purpose of recovering such damages have not been instituted by the employee or by or for the benefit of the dependant, or have been so instituted but have been discontinued or have not been properly prosecuted;

.................. Comcare may institute proceedings or fresh proceedings against the person in the name of the employee or dependant for the recovery of damages in respect of the injury, loss, damage or death or may take over the conduct of the proceedings, as the case requires.”

Initially the plaintiff was represented by the Australian Government’s solicitor and counsel, Mr R Cameron and Mr P Allen. During the trial the plaintiff admitted that he had told lies in his examination-in-chief about matters relating to his condition and capacity.
The learned Trial Judge warned him about matters of self incrimination and after that time he refused to answer some questions on the ground that the answers might tend to incriminate him. The Trial Judge then made an order that the plaintiff should be separately represented because his interests had diverged from that of Comcare. Thereafter he was represented by Mr M Frayne. Messrs Cameron and Allen continued to represent Comcare.

Introduction

On 6 May 1991 the defendants operated on the plaintiff at the Memorial Hospital. The plaintiff claimed that the defendants were negligent in certain pre-operative procedures, Mr Hillier in the carrying out of his operation and both defendants in the subsequent care of the plaintiff. The pleadings are unclear but I do not think there is any allegation that Mr Carney was in breach of duty in the manner in which he carried out his part of the operation.
The matter came on for trial before a Judge of this Court. The trial in this matter took more than four months, which seems an extraordinary length of time for what were quite simple issues, but a number of matters developed in the trial which apparently extended the hearing. The Trial Judge found that the defendants were negligent and he awarded the plaintiff damages. He assessed the plaintiff’s damages and the plaintiff’s interest entitlement as follows:
Past Non-Economic Loss  $40,000
         Future Non-Economic Loss  10,000
         Loss of Earning Capacity  2,000
         Loss of Domestic Capacity  2,000
         Future Medical Expenses  45,000
         Wilson v McLeay Damages  3,000
         Past Voluntary Services  5,000
         Special Damages  114,994
         Total Interest   92,000

TOTAL AWARD $313,994

He entered judgment for the plaintiff against both defendants for $313,994 together with costs to be taxed.

The Grounds Of Appeal

Both defendants appeal against the finding of negligence against each of them. Principally they complain that the finding of negligence “was against the evidence and the weight of the evidence.” They then complain of numerous findings made by the Trial Judge. They complain that the Trial Judge rejected the evidence of witnesses that should have been accepted. They also complain of the Trial Judge’s failure to allow the defendants to call the evidence of a neuroradiologist, Dr Perrett. The defendants, as part of their appeal, claim that the Trial Judge failed to address the onus and standard of proof. He also failed, it is claimed, to have regard to questions of causation. In that last respect I think, although the Notice of Appeal suggests that the complaint is wider, the defendants complain about a factual issue.
In the alternative they also complain about the assessment of damages. In that respect they complain that the assessment of damages for pain and suffering was manifestly excessive and in the alternative against the evidence and the weight of the evidence. They complain of the award of $2,000 for loss of earning capacity upon the ground that the plaintiff had no earning capacity at all prior to being referred to either of the defendants. The award of damages for the loss of domestic capacity is also complained of upon the basis that the plaintiff had no capacity of that kind prior to the operation. The defendants also complain about the sum of $45,000 allowed for future medical expenses. I think the gravamen of the complaint is that it is excessive. The sum of $3,000 for Wilson v McLeay damages is complained of upon the ground that it is manifestly excessive. The allowance for past voluntary services is criticised on the basis that before the plaintiff underwent the operation he was receiving voluntary services from his partner and her daughter and would have continued to receive those services in any event. The appellant also objects to the award for special damages mainly, but not only, because the special damages were not proved. Finally, there is a complaint about the allowance for interest.
The fact that Comcare claims to have instituted these proceedings may be important on the question of damages and interest. It is claimed on this appeal that special damages, admittedly paid by Comcare, were not established as having arisen by reason of the negligence of the defendants or either of them. It is also claimed that the Trial Judge over compensated the plaintiff in interest and that he should not have allowed the plaintiff interest on special damages where those special damages had been paid by the workmens compensation provider: Batchelor v Burke (1981) 148 CLR 448. Those matters will need to be addressed but in the context of ss50(7) of the Act. I will return to that in discussing the claim for interest.
The Notice of Appeal, it seems to me, puts all of the matters which were before the learned Trial Judge once more in issue.
On the hearing of this appeal the defendants have sought orders from this Court setting aside the plaintiff’s judgment. In the alternative the defendants seek “a new trial on each of the issues which are the subject of appeal”. That alternative relief was not sought in the Notice of Appeal and such a result after a four month trial should be avoided, if possible. However if this Court was of the opinion that none of the grounds of appeal were made out, except that ground which complained of the Trial Judge’s failure to allow the defendants to call Dr Perrett, that might have to be the result.
So as to understand the reasons that follow I shall briefly record the Trial Judge’s principal findings.
The Trial Judge said that the allegations against the defendants fall within three groups - pre-operation, operation and post-operation. He said:
“The plaintiff alleges negligence against both defendants for the way in which they prepared for the operation, for the way in which it was performed and for the way in which he was looked after subsequently.”
He found that neither defendants were negligent for the way in which they prepared for the operation. He also found that neither surgeon was in breach of their duty of disclosure because the plaintiff would have undergone the operative procedures in any event.
He found that Mr Carney was not negligent in the operative procedure which he carried out. He found that Mr Hillier was.
He found that both defendants were negligent in their post-operative treatment of the plaintiff.
Even though he discriminated between the defendants in their breaches of duty he entered judgment for the plaintiff against both defendants in the same sum.

The Plaintiff’s History

The plaintiff was born in England in April 1947. He emigrated to Australia in 1971. He had married at about the age of twenty and had two sons in that marriage.
He has suffered a number of injuries to his back. He was first injured whilst playing soccer in the early 1960s. In the mid 1970s he underwent a discectomy at the Queen Elizabeth Hospital. He was then working as a driller but was able to return to his work as a driller after that operation.
He joined the Australian National Railways in 1981. He suffered a back injury on 28 September 1982 whilst lifting an insulation joint, which weighed 94 pounds. He underwent a microdiscectomy at the L4/L5 level. That operation was carried out by Mr Brian North, neurosurgeon. After that operation the plaintiff was unfit to engage in heavy work.
On 4 January 1985 he retired from the Australian National Railways and since then has received weekly payments of compensation from Comcare.
He was still in receipt of workers compensation payments when he underwent the operation and received the treatment the subject of these proceedings. To that point of time Comcare had paid all his medical expenses. Indeed they have continued to pay all his medical and other expenses since that operation. It is because Comcare paid these expenses that it has brought this claim.
After the plaintiff retired from the Australian National Railways he took up residence in a caravan with Sandra Stevens. For a good part of the fifteen years in which he had lived in the caravan with Ms Stevens, her daughter Lee also lived with them. The Trial Judge described the plaintiff as “a professional invalid”. Since 1986 Dr Jana Kubichek at the Sturt Clinic has been his general practitioner.
Before these matters arose, the plaintiff was dependant upon workers compensation payments. Efforts had been made to return him to employment, even the most menial employment, but those efforts had not been successful.
The plaintiff’s invalidity had given rise to lifestyle and social changes. Because of, what he claimed, was continuing pain he had become dependant on narcotics. He was also addicted to nicotine. He was an alcoholic.
His general practitioner believed that either because of his addiction to nicotine or his alcoholism his life expectancy would be considerably shortened.
The learned Trial Judge found that his life expectancy after trial would be in the order of twelve years. Curiously enough the defendants complained about that finding which they said did not reflect any evidence given in the case, but was merely a guess arrived at by the Trial Judge. Even more curiously the plaintiff did not complain about that finding. It was in the plaintiff’s interests to have a finding that there was no reduced life expectancy and in the defendants’ interests, at least on the assessment of damages, to have a finding that there was a reduced life expectancy.
In any event the purpose of mentioning all of those matters at this stage is to indicate that before the plaintiff ever came into contact with either of the defendants it is clear enough that the plaintiff was a very sick man who needed continuing and ongoing medical treatment for his back, his narcotic addiction, his nicotine addiction and his alcoholism. He also had little or no earning capacity.
I think, although the Trial Judge did not expressly say so, that the Trial Judge concluded that the plaintiff had almost no earning capacity prior to 6 May 1991. That inference may be drawn from the damages awarded for loss of earning capacity.
If that was not the Trial Judge’s finding in my view it should have been. Clearly, on all of the evidence, the plaintiff had little or no earning capacity which he could or would have exercised in the event that these events had not occurred.
In the few years after his retirement he saw several surgeons including Mr Middleton and Mr Eriksen about pain that he was experiencing in his back. Mr Middleton treated him by epidural injection but that was ineffective. Mr Eriksen referred him to Mr Lipert an orthopaedic surgeon practising in Adelaide. Mr Lipert also gave him an epidural injection and arranged for him to undergo physiotherapy and hydrotherapy. None of the treatment offered to him was effective. The plaintiff thought it necessary that he undergo a further operation to relieve the pain. He approached Mr North on 26 July 1990 but Mr North advised him that he doubted whether he could improve his work capabilities by further surgery.
He returned to see Mr Eriksen who sent him to Mr Lipert. Mr Lipert gave him another epidural block and referred him to the second defendant, Mr Paul Carney, a neurosurgeon.

Mr Carney’s First Examination

Mr Carney first saw and examined the plaintiff on 17 January 1991.
The plaintiff gave a long history to Mr Carney including his present history. He complained of severe pain, radiating down the right lateral aspect of his leg. It was sometimes so bad he would be on his knees for three or four hours. The pain was best relieved by lying on his left side with his right leg off the bed and on the floor. The pain in his right leg had been particularly bad since 1985 or 1986.
Mr Carney carried out an examination and read some x-rays which the plaintiff had brought with him.
The x-rays showed quite marked damage to the lower two discs and evidence of disc protrusion on the right and at the L4/5 level.
In Mr Carney’s opinion it was likely that the plaintiff was experiencing pain in the L5 distribution and possibly also in the L4 distribution on the right side as a result of that disc material.
The x-rays together with his history almost certainly meant that there was a disc rupture on the right side where the plaintiff had his recurrent pain and the plaintiff had been left with a chronic ruptured disc.
Mr Carney said that he carried out a normal neurological examination.
The nature of the plaintiff’s condition required some relief of the nerve root compression which gave rise to the symptoms of pain that the plaintiff was experiencing. A wide clearance of the nerves was necessary so therefore, in Mr Carney’s opinion, a large portion of bone from the vertebrae would need to be removed. The removal of the bone would decompress the nerve root to relieve the pain. The removal of the bone, however, would give rise to the necessity for a fusion. That would have to be carried out by an orthopaedic surgeon.
Mr Carney advised the plaintiff that he should undergo surgery in the form of a Luque fusion. He told the plaintiff that the success ratio was in the order of about 80 per cent. He told the plaintiff that he would need to be examined by Mr Hillier.
Mr Carney’s examination caused pain and on 2 February 1991 the plaintiff was admitted to the Memorial Hospital under the care of Mr Hillier. Mr Hillier did not examine the plaintiff but treated him by putting him in traction which lasted for about two weeks. When he was released the plaintiff was feeling better than at the time of his admission and he was discharged to the care of Dr Kubicheck.
Whilst in hospital Mr Hillier provided the plaintiff with some written information relating to a Luque fusion. None of the written information canvassed the prospects of an adverse outcome.

The Operation

On 6 May 1991 the plaintiff was operated on at the Memorial Hospital by the two defendants. They performed a combined nerve clearance and Luque fusion. Mr Carney carried out that part of the operation which consisted of a right-sided procedure involving the L4/L5 and L5/S1 disc areas. Discectomy was carried out at both the L4 and L5 levels. The lamina at L5 was removed to alleviate referred pain to the right leg. It is common ground that Mr Carney’s procedure did not give rise to any of the pain and symptomatology of which the plaintiff later complained and which gave rise to this action.
Mr Hillier carried out the orthopaedic aspect of the operation. The neurological aspect of the operation carried out by Mr Carney necessarily weakened the plaintiff’s spine. It was therefore necessary to carry out an orthopaedic procedure to fuse the spine to obtain stability. Mr Hillier inserted into both sides of the spine two stainless steel plates and three screws through the pedicles of the spine.
The screws are fixed to the pedicles. It is important that the screws do not penetrate too far past the anterior cortex of the pedicles because of the risk of damage to the underlying structures. On the other hand it is also important that the screws penetrate far enough that the threads of the screw “anchor” into the cortical (outside) bone.
In this case it was alleged by the plaintiff that the lower screw at S1 level penetrated too far past the anterior cortex of the pedicle and caused damage to the L5 nerve root. The plaintiff claims that that result amounted to negligence on the part of Mr Hillier. He also complains that Mr Hillier and Mr Carney failed to rectify that error at the earliest opportunity. Those matters will have to be addressed. It is important to note that it is not claimed that Mr Carney was negligent in the carrying out of his part of the surgical procedure. Nor is it claimed that he was negligent at any time during the surgical procedure carried out by Mr Hillier. The claim against Mr Carney is in relation to his pre-operation diagnosis and in his post-operation care of the plaintiff. The claim against Mr Hillier is in respect of both those matters and further in the surgical procedure itself.
The operations carried out by the two surgeons were quite separate procedures although they had a common purpose. As the defendants put it in their argument the only common factors were the incision and the operating theatre.
The defendants accept that each procedure required separate and distinctive assessment as to its advisability because each carried separate risks which warranted separate advice from each operating surgeon.
The plaintiff claimed that when he came out of the anaesthetic after the operation he was suffering excruciating pain in the left leg “as if someone had poured boiling water down the inside of my leg”. He was told that he should not worry about the pain because it would settle down. He claimed that two days later on 8 May the left leg, which still felt as though it was on fire, began to discolour, turn purple and swell. He said he saw Mr Carney who told him that he was “not taking the blame for this stuff up”. He said that Mr Carney said “it was Hillier’s fault”. He said he saw Mr Hiller and repeated to Mr Hillier what Mr Carney had told him but Mr Hillier told him it was all in his head.

He could not walk properly. He could not control his left foot. He developed foot drop. He underwent physiotherapy for symptoms associated with foot drop. The physiotherapist was called.
He underwent two further operations. On 22 May 1991 Mr Hillier explored the operation site to identify any reasons why the plaintiff was in such pain. Mr Hillier said that the exploration did not offer any obvious explanation for the plaintiff’s complaints or indeed objective symptoms nor indeed did it relieve the plaintiff’s symptoms.
On 17 June 1991 he was readmitted to the Memorial Hospital once again and in a third operation the plate on the left side of the spine and the three screws holding it in place were removed. That procedure also did not relieve the plaintiff of pain.
The plaintiff claimed that he had a conversation with Mr Carney after the third operation. He said he asked Mr Carney; “What are we going to do about the pain? It’s driving me crazy. I just can’t handle it any more.” He said that Mr Carney said; “In my opinion the screw went through your nerve root, that’s what’s causing your chronic pain when operated on by Mr Hillier. That’s where your chronic pain is coming from.”
A Mr Clive Mount who was also a patient in the hospital, and a patient of Mr Carney, and who was sharing the hospital room with the plaintiff, claimed in his evidence that he heard that conversation. The Trial Judge accepted Mr Mount as a truthful and honest witness and as having given an accurate account of what he heard.
It was said that in that same conversation Mr Carney suggested that perhaps the plaintiff could be treated with a morphine pump.
Mr Carney was cross-examined about that conversation. He said he could not remember it happening. Later he rather suggested that perhaps the conversation did not occur at all. However on my reading of his evidence I do not think that he dismissed out of hand the possibility that he said something to that effect.
There is, in my opinion, a real possibility that he said something of that kind because I think at that time that was the view he had of the cause of the plaintiff’s symptoms.
The plaintiff spent some four and a half months in hospitals during which he claimed he was mainly totally incapacitated.
Eventually, on 10 November 1992 the morphine pump was fitted.
The learned Trial Judge was prepared to accept the plaintiff’s evidence to this point. He found that something did go wrong during the operation of 6 May 1991 and although the operation was successful in relieving the plaintiff of pain in his right leg the operation itself caused the development of more severe pain in the left leg. He accepted the plaintiff’s account of the conversation with Mr Carney.
The learned Trial Judge, however, specifically found that he could not accept the plaintiff as a witness of truth past this point in time. He found that the plaintiff had taken advantage of genuine pain and incapacity which he had suffered and exaggerated both in the hope of obtaining advantages. The two advantages which the learned Trial Judge identified were drug relief and financial compensation. The learned Trial Judge found that the plaintiff was addicted to pain killing drugs and magnified his pain and disabilities in order to obtain further drugs.
Later his Honour said that he had formed a poor opinion of the plaintiff. He described him as a man whose word is not to be trusted, a manipulator, a professional invalid who has lived on the taxpayer since 1983.
He said his evidence contained examples of exaggeration and deception. I have read the evidence and the cross-examination of the plaintiff. It is clear that the plaintiff has told a number of lies. He has, as his Honour has said, been guilty of deception and gross exaggeration.

The Plaintiff’s Claim

As I have already mentioned the plaintiff claimed that both defendants were guilty of negligence. In paragraph 8 in the Statement of Claim the plaintiff claimed that the operation was carried out in consequence of the negligence and breach of duty of the defendants or one of them.
It is alleged that Mr Carney failed to give any adequate information or advice to the plaintiff relating to the risks of the operation and the possibility of adverse consequences. Next it is alleged that he recommended an operation which was not warranted in the circumstances and participated in that operation. Next it is claimed that he failed to obtain an adequate medical history from the plaintiff. Lastly, I think, it is claimed that Mr Carney failed to advise the plaintiff that the success of any operation would be problematic.
Against Mr Hillier, it is claimed that he failed to examine the patient at all prior to undertaking the operation. It is further alleged against him that he failed to properly advise the plaintiff as to the risks of possible complications associated with the operation. It is also claimed against him that he failed to give proper information and to properly advise the plaintiff that the success of the operation was problematic.
In respect of this aspect of the plaintiff’s claim it might be said that the plaintiff claims that before the operation Mr Carney was negligent in his examination of the plaintiff, whilst Mr Hillier was negligent in failing to examine the plaintiff. Both were negligent in failing to provide the plaintiff with sufficient information for the plaintiff to evaluate the risks and prospects of success of the operation.
The plaintiff also complains that the operation and subsequent follow up was carried out negligently.
In respect of Mr Carney it is alleged that he failed to remain during the course of Mr Hillier’s spinal fusion aspect of the operation on 6 May 1991. It is not claimed that he was negligent in the carrying out of his operative procedure. It is further alleged against him that although he was aware of the problems being experienced by the plaintiff post-operatively he was dilatory in “having the left-sided screws and plate removed”.
With respect to Mr Hillier it is asserted that he was negligent in the carrying out of the operation in the following respects:
“(a).. Damaged the lower lumber nerve roots during the course of the operation.
(b)Operated in such a manner that the pedicle pin or screw was inserted into the Plaintiff’s left lower lumbar nerve roots during his part of the operative procedure.
(c).... Failed to check the integrity of the pedicle wall all around the pin or screw or, alternatively, if the integrity of the pedicle wall was checked, failed to check the integrity of the pedicle wall properly.
(e)Failed to ensure that the pedicle pin or screw did not damage the lower lumbar nerve roots.”
It is also alleged that Mr Hillier was negligent in failing to ensure that Mr Carney remained during the course of Mr Hillier’s operative procedure. It is further alleged against Mr Hillier that he was also dilatory in failing to remove or cause the removal of the left-sided screws and plates.
I think the plaintiff’s claims against the defendants can be further summarised.
Against Mr Carney it is alleged:
1. That he failed to carry out an appropriate pre-operation examination.

2.That he failed to advise the plaintiff’s of the risks and possible success of the operation.

3.That he did not remain during Mr Hillier’s part of the operative procedure.

4.That he was slow in responding in having the left-sided screws and plates removed.

Against Mr Hillier the plaintiff’s claim is:
1. That he failed to carry out any examination.

2.That he failed to give appropriate advice in relation to the risks and prospects of success of the operation.

3.That he carried out the operation negligently.

4.That he failed to ensure that Mr Carney remained during his part of the operative procedure.

5.That he was slow in responding to the plaintiff’s complaint and in removing the screws and plate.

The Judge’s Reasons

It can be seen from the matters which I have so far identified that a number of separate issues were raised in this case.
The Trial Judge needed to address separately, in my opinion, the various complaints against each defendant and make whatever findings were necessary to resolve those issues.
He had to determine whether, as a result of any breach of duty by either or both defendants, the plaintiff suffered injury.
In determining those issues he had to have regard to the plaintiff’s pre-accident health and the plaintiff’s condition as it developed after 6 May 1991 and to the trial.
In resolving a number of these matters the Trial Judge had to make an assessment of the reliability of the plaintiff’s evidence. As I have said the Trial Judge formed an unfavourable view of the plaintiff and he cannot be criticised in that respect.
However, as my reasons will show, the Trial Judge has failed to resolve a number of the matters by making the appropriate findings. It is not possible in some respects for this Court to make those findings.
Not only has the Trial Judge failed to make some appropriate findings of fact, in my opinion, he has failed to adequately explain why it was that he preferred one expert to another. Moreover he has omitted to make any mention of relevant evidence from experts.
He also wrongly, in my opinion, admitted documentary evidence tendered by the plaintiff in circumstances where it would have been appropriate to require the plaintiff to call the author of the document.
He also, in my opinion, erred in failing to allow the defendants to call the evidence of an expert in circumstances where the plaintiff could not have been prejudiced.
My reasons will indicate where I believe the Trial Judge has failed to adequately address the issues.
In the end result, because I think the plaintiff has failed to make out any case against both defendants, the Trial Judge’s failure to make findings with appropriate reasons does not require this matter to go back for re-trial.
If, however, the plaintiff had made out a case against the defendants, in my opinion, this matter would have had to have been remitted to another judge for a new trial.

Pre-Operation Matters

There was a dispute between the plaintiff on the one hand and Mr Hillier and Mr Carney on the other hand as to what the plaintiff had been told prior to the first operation. The plaintiff claimed that he was never advised of the risks of surgery.
The Trial Judge’s treatment of this matter is not entirely clear. First he found that it was not negligent to carry out the operation. The operation involved high risk but to carry it out was not negligent. Next he found that the plaintiff was owed a full and detailed explanation of the risks and the chances of success or failure and he found that he did not get it.
Next he found that the plaintiff went into the theatre much more optimistic than he should have been.
He found that the plaintiff, after speaking to Mr Carney, came away with the idea firmly in his mind that there was an 80 per cent chance of success.
The Trial Judge rejected Mr Carney’s evidence when Mr Carney denied that he had ever said anything of that kind.
The Trial Judge found that the plaintiff would have undertaken the operation even if he had known that there were substantially greater risks than those of which he said he was aware.
The Trial Judge addressed the plaintiff’s contention that, “fully informed consent was not obtained.”
He said:
“While the plaintiff came away rightly or wrongly with the impression of an 80% of complete success, I do not believe that this was a determining factor for the plaintiff as to whether he would undergo the operation or not. Mr Hillier’s account of his conversation with the plaintiff is that he took a model of a spine to the plaintiff’s hospital bed and explained the operation to him. There is uncertainty surrounding what risks and percentages were mentioned by the defendants. However, it does not matter. I find that the plaintiff would have undertaken the operation even if he had known the risks were much greater.”
I take his Honour there to be rejecting the plaintiff’s case against both Mr Carney and Mr Hillier in so far as the plaintiff’s case depended upon either or both of those gentlemen failing to advise the plaintiff of the risks inherent in the operation, and either misadvising the plaintiff in relation to the prospects of success of the operation or failing to advise the plaintiff’s of the prospects of success. In my opinion his Honour has found that the plaintiff would have had the operation if he had known of the risks inherent in the operation and if he had known of the real prospects of success of the operation.
Those findings include, in my opinion, a finding that he would have had this operation if he had known of the matters which eventuated.
Having made those findings, the plaintiff’s claim against both defendants for failing to give the plaintiff sufficient information to evaluate the risks and prospects of success had to fail.
Mr Carney carried out a clinical examination of the plaintiff over a period of about half an hour on 17 January 1991. He also took a history from the plaintiff. The Judge was critical of Mr Carney for failing to obtain from the plaintiff a history of the plaintiff’s drinking and smoking. The Trial Judge said that he found Mr Carney’s explanation that the plaintiff did not volunteer that information and it did not occur to Mr Carney to ask him as curious “to the point of seriousness carelessness: particularly whether the man smoked or not was a most relevant consideration”.
His Honour does not say why the plaintiff’s smoking habit was a most relevant consideration for the purpose of assessing whether or not the plaintiff should undergo a Luque fusion. He does not say how it was that he was able to make such a finding. He does not point to any evidence to support such a finding.
I suppose it is a matter of general knowledge that a person’s smoking habit is relevant in determining whether an anaesthetic should be administered and if so the type of anaesthetic. It is however not a matter of general knowledge, at least as far as I know, that a person’s smoking habit may be a most relevant consideration in determining whether or not a person should undergo a Luque fusion.
His Honour said that whilst his strong impression was that Mr Carney (and indeed Mr Hillier) were quite cavalier in their attitude to the plaintiff, he could not find that the failure to take a full medical history amounted to negligence. He did not think the failure to take a full medical history was causative of the plaintiff’s later condition.
The plaintiff said that Mr Hillier did not ever examine him prior to the operation. Mr Hillier admitted that he never gave the plaintiff a physical examination. The Trial Judge found that the failure by Mr Hillier to undertake a thorough physical examination of the plaintiff was “very bad medical practice indeed”. He found that there should have been an examination and that no satisfactory explanation had been put forward for that failure. However, he found that whilst the failure to carry out the medical examination was bad medical practice that failure was not negligent in that it did not cause the plaintiff’s condition after the operation.
The effect of his Honour’s findings was to absolve both Mr Hillier and Mr Carney of any claim for negligence in relation to any aspect of diagnosis or treatment of the plaintiff prior to the operation. That finding narrows the issues for this Court. The plaintiff has not disputed those findings. Nor has the plaintiff filed any Notice of Alternative Contention.
This appeal therefore can proceed on the basis that the issues to be determined are whether Mr Hillier was negligent in the surgical procedure and whether either or both Mr Hillier and Mr Carney were negligent in their post-operative care of the plaintiff.
The Trial Judge was very critical of the defendants in respect of the discharge of their professional responsibilities pre-operation. I have identified some of those criticisms.
Whilst the plaintiff’s claim required an examination by the Trial Judge of the defendants’ discharge of their professional responsibilities, it seems to me, with respect, that the Trial Judge sometimes strayed outside the relevant matters to address the defendants’ conduct in relation to quite irrelevant matters. The matter of the plaintiff’s smoking habit is the first of those matters.

The Findings on the Operation

The Trial Judge found that the reason for the pain in the plaintiff’s left leg was that the lowest screw which Mr Hillier had inserted through the steel plate on the left-hand side of the plaintiff’s body into the sacrum protruded too far through the anterior aertex of the pedicle so that it impinged on the L5 nerve root.
The learned Trial Judge accepted the evidence of Mr Timothy Morley, a consultant orthopaedic and spinal surgeon at the Royal National Orthopaedic Hospital, Stanmore, Middlesex. His Honour found that Mr Morley’s opinion was supported by Mr Brian North, neurosurgeon, and Mr Swaram Singh Khera, an orthopaedic surgeon, both of whom practise in Adelaide.
It was Mr Morley’s opinion that the probabilities were that the left sacral screw protruded too far and impinged on the nerve root.
The Trial Judge described Mr Morley as a most impressive witness who explained his opinions with clarity and precision.
Mr Morley had examined the plaintiff on two occasions, the first in 1996. Mr Morley had offered a medical report in March 1996. The Judge quoted at length from the report which he said was Mr Morley’s first opinion and which Mr Morley maintained even under intense detailed and lengthy cross-examination.
I have read Mr Morley’s evidence and, in my opinion, the Judge was right to say that Mr Morley maintained his opinion which was encapsulated in his report of March 1996, except as to the severity of the injury caused to the L5 nerve root.
The essential elements of the opinion, which I will analyse later, were that:
“The post-operative plain x-rays do not comment on any abnormality of placement, with the exception that the right sacral screw is placed directly anterior/posterior and is proud by 7 mm. The left pedicle screw is similarly placed, but unfortunately there is no way of telling whether this has penetrated the anterior cortex, although it does not look obviously too long on the plain films taken in the lateral projection”.
He then noticed that subsequent scans did not go down to the level of the tips of the pedicle screws and that, therefore, there was no evidence anywhere of the exact placement of the screws and inferentially no evidence of the distance by which the screws had penetrated the anterior cortex.
Mr Morley commented:
“There are inherent dangers, both neural and vascular in placing sacral screws through the front of the sacrum, this is particularly true in males where it is difficult to direct the screws toward the sacral promontory and they tend to come out further lateral where both neural and vascular injury can occur.”
Mr Morley then identified the plaintiff’s complaints of pain and he concluded:
“In summary, I think that this was a particularly difficult case to manage and unfortunately, I think that on the balance of probability the cause of Mr Lucas’ pain was mechanical injury to nerve root/roots caused at the time of the operation by the use of pedicle screws and plates used for mechanical fixation of the spine.”
Shortly put, Mr Morley’s opinion was that Mr Hillier had allowed both the right and the left pedicle screws at the S1 level to protrude too far past the anterior cortex of the ala of the sacrum, which allowed the left pedicle screw to come into contact with the L5 nerve root causing damage to that nerve root and the symptomatology of which the plaintiff complained.
It was his opinion that if the operation had been carried out in accordance with accepted medical practice the screws would not have protruded to such an extent and the damage would not have been caused.

Mr Morley’s opinion, if accepted, provided proof of the plaintiff’s claim.
The Trial Judge identified the first assumption upon which Mr Morley’s evidence was predicated. The Trial Judge said:
“Admittedly Mr Morley accepted Dr Parker’s opinion in the report of 10 May that the right-sided screw had penetrated the anterior cortex of the sacrum for a distance of approximately 7 mm but that does not disturb my views.”
There are in fact three assumptions inherent in Mr Morley’s opinion. The first is that Dr Parker’s opinion, expressed in the report of 10 May 1991, that the right side screw had penetrated the anterior cortex of the sacrum for a distance of approximately 7 mm, is correct. The second is that the left pedicle screw is similarly placed and has penetrated the anterior cortex by a similar distance.
There is a further and more basic assumption and that is, that the plaintiff’s complaints were truthful and reliable.
The Trial Judge accepted Mr Morley’s opinion. He found that the left sacral screw protruded too far and impinged on the nerve root. The fact that the screw impinged on the nerve root, he said, meant that the sacral screw had protruded too far. He said it did not matter whether it was 7 mm or less.
His Honour then determined that to cause the screw to impinge on the nerve root was negligent. In doing so he relied upon Mr Hillier’s own evidence. The Trial Judge asked Mr Hillier:
“Q.... There is one other matter which I will raise now rather than later. I know that you absolutely deny that this happened and I ask the questions against the background of your denial, but if you had pushed in the screws too far and had interfered in some way with the nerve root, that would have been a very careless thing.
AIt would have been incorrect to have left that operation without ascertaining the correct situation and then correcting it at that time. That would be careless to ignore that, or more particularly, if I found that there was indication that that screw was causing a particular nerve root problem, to not correct it.”
In my opinion the answer given by Mr Hillier does not address the question asked by the Trial Judge.
Mr Hillier was prepared to admit that he had an obligation to ascertain the correct situation and correct it if there was an impingement at the time. That is not directly responsive to his Honour’s question and therefore, in my opinion, the response cannot be used for the purpose used by the Trial Judge.
His Honour then discussed Sidaway v Board of Governors of Bethlem Royal Hospital [1985] AC 871 and Rogers v Whitaker (1992) 175 CLR 479. He then said:
“The operation occurred in 1991 and at this time the Bolam principle was accepted law in Australia. It is worth noting that while the Bolam test was the law at the time, it was not always followed: See A1 Brighton v Royal Prince Alfred Hospital (1980) 2 NSWLR 542, F v R (1983) 33 SASR 189, Battersby v Tottman (1985) 37 SASR 524 and E v Australian Red Cross (1991) 27 FCR 310. This may not have much relevance, as, in my view under either test, Mr Hillier’s conduct does not attain the standard of a responsible body of medical opinion. I did not hear from any expert witness, that it was appropriate to place the screws through the anterior cortex of the sacrum so far as to injure nerve structures.
For the above reasons I conclude that Mr Hillier was negligent in the performance of the operation by putting the left sacrum screw in so far as to impinge on the nerve root.”
I am not sure why his Honour has referred to the Bolam principle but in doing so he has erred. The Bolam principle, as explained in Sidaway v Board of Governors of Bethlem Royal Hospital (supra) was not the accepted law in this State in 1991.
In F v R (supra) the Full Court of this Court refused to apply the Bolam principle. King CJ said at 194:
“The ultimate question, however, is not whether the defendant’s conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any professional group in the community.”
There can be no doubt that that statement of the law is in direct conflict with the Bolam principle which was that a doctor was not negligent if he acts in accordance with the practice accepted at the time as proper by a responsible body of medical opinion. In any event there can be no doubt that after the decision in Rogers v Whitaker (supra) the Bolam principle was not good law in Australia.
Mason CJ, Brennan, Dawson, Toohey and McHugh JJ said at 487:
“In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade...while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts 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.”
It was for his Honour, therefore, to determine the standard of care which had to be observed by these surgeons and, in arriving at his judgment of the appropriate standard of care, it was not appropriate for him to delegate that judgment to any of the experts which were called by either side.
In determining the appropriate standard of care for himself he was entitled to have reference to the evidence of a medical expert who gave evidence of the practice within the profession.
In the end, however, it was a matter for the Trial Judge.
Of course, no expert would have said that the screw ought to be inserted so as to impinge on the nerve root. Because it did, however, did not mean that the surgeon was necessarily negligent.
He would only be negligent if the plaintiff has established that such a result could not have happened without negligence. That required his Honour to identify the standard of care appropriate to surgeons practising in this type of procedure.
Dr Hillier said that he carried out the operation in accordance with ordinary medical practice. He said that he was satisfied from his own observations at the time of the surgery that neither the plates nor the screws were impinging on any nerve root. He said moreover that the post-operative examination, signs, symptoms, x-rays and test results were not consistent with sacral screw injury.
He said that no damage was caused by the screws nor was any damage caused in the operation itself. He said:
“In my part of the surgery I wasn’t working directly around the exposed nerve roots that Mr Carney had done. I came back at the end and looked at them, and that allowed me to ensure that they were as in tact as he had demonstrated to me when he retired from the operative field, and further, seeing I had introduced pedical screws, that these also hadn’t interfered.”
As I have already mentioned Dr Hillier performed two further operative procedures. On both occasions he said that he was able to observe that none of the screws were impinging upon the nerve root.

Dr Parker’s Report

The hypothesis for the proposition that the lower screw was impinging upon the nerve root was first raised in a radiological report of Dr Parker. It was Dr Parker’s opinion which was relied upon by Mr Morley for the expression of his opinion. In his report of 10 May 1991 he wrote:
“LUMBAR - SACRAL SPINE”
The appearances following luque spine fusion between the L4 and S1 levels noted. The vertebral alignment is satisfactory. The position of the fusion device is satisfactory. The right side of sacral screw has penetrated the anterior cortex of the sacrum for a distance of approximately 7mm.”
This report was given four days after surgery.
Dr Parker’s report was critical for the plaintiff’s case and indeed critical in the case.

The Competing Hypotheses

The plaintiff’s case against Mr Hillier depended upon establishing that the lowest screw on the left hand side of the plaintiff’s spine had been inserted through the sacrum and through the anterior aspect of the cortex of the sacrum to such an extent that it impinged upon the L5 nerve. It was necessary for the plaintiff to establish therefore the extent of the protrusion and that the protrusion was unacceptable. It was also necessary for the plaintiff to prove that the protrusion was sufficient for the screw to impinge upon the L5 nerve. That meant that the plaintiff had to establish that the anatomy of the L5 nerve was such that a screw could impinge upon it.
Mr Hillier defended the claim against him by first asserting that the protrusion of the screw through the anterior aspect of the sacrum was no more than was necessary to anchor the metal to the spine so as to allow for a proper fusion. Secondly he said that the anatomy of the L5 nerve was such that it passed above and lateral to the sacrum so that even if there was a protrusion the screw could not impinge upon that nerve. Thirdly there was no impingement of the nerve.

The Plaintiff’s Case on the Attitude of the Surgeons

The plaintiff sought to prove his case in a number of ways. First by reference to Mr Carney’s comments to show that the surgeons believed that there had been an impingement.
I have referred to the two conversations in which Mr Carney was involved in which it is asserted that the only inference that could arise out of those conversations was that Mr Carney believed that there had been an impingement of the L5 nerve.
Those conversations would be relevant for the purpose of the assessment of Mr Carney’s credit in so far as he asserted during the trial that there could not have been any impingement upon the L5 nerve. The evidence would also be admissible to establish Mr Carney’s state of mind after the operation. His state of mind at that time is relevant to determine whether his post-operation conduct was appropriate. The evidence, however, could not be admissible against Mr Hillier because he was not present during either of those conversations. This is not a case where it is claimed that both surgeons were negligent in the carrying out of the operation. The claim is against Mr Hillier only. Mr Carney’s observations, in my opinion, cannot be used for the purpose of determining whether Mr Hillier was negligent, except in the limited way I have mentioned in relation to Mr Carney’s credit.
The plaintiff also referred to a letter written by Mr Carney to the plaintiff’s general practitioner Dr Kubicek on 12 July 1991. I set that letter out in full:
“Dear Dr Kubicek
re: Anthony LUCAS
To cut what is a saga into a reasonable shape, I think the salient features are that Mr Lucas, at the combined operation, was well relieved of his left-sided [sic] nerve root problems but almost certainly suffered some injury to the right [sic] L5 root from a pedicle screw during Terry Hillier’s part of the operative procedure.
As you know, Terry has had several attempts at relieving this and eventually has (removed) right-sided [sic] fixation altogether.
I am not surprised that the pain continues and, indeed, it is likely that he will have severe pain problems for the next twelve months.
On top of all this he has, I think, profound psychological overlay which I suspect has been there from the beginning and is very much exacerbated by his chronic pain. I think he is habituated to narcotics as a consequence of the pain/personality combination and recent evaluation has indicated that the psychological factors certainly are of major importance.
At the moment I have arranged for the Pain Unit at the Memorial Hospital to carry out a full assessment. After that he will have intrathecal morphine test dose and consideration of a Medtronic morphine pump for chronic intrathecal morphine administration.
Unfortunately the psychological factors seem to be so important and his habituation to narcotics so important that even very large epidural dosages of Pethidine have been failing to relieve his pain more than 50%. I think we are thus in for a very long and difficult time.”
The Trial Judge was most critical of Mr Carney in relation to that letter. He was critical about the circumstances in which the letter came to be sent but more importantly he believed that letter indicated Mr Carney’s state of mind at the time it was written. The letter was admissible for that purpose.
That letter is also relevant for the purpose of assessing the reliability of Mr Carney’s evidence.
The plaintiff also relied upon contemporaneous notes of Mr Hillier which the plaintiff said indicated Mr Hillier’s opinion at that time was that there had been L5 root irritation. He referred to a note to Mr Mackenzie, who was engaged to determine whether or not the plaintiff had a deep vein thrombosis. The plaintiff also referred to other notes made by Mr Hillier including Mr Hillier’s operation notes of 17 June 1991.
I think all of those documents do indicate that Mr Hillier thought that there was some prospect that the plaintiff had suffered L5 root irritation at the time of the operation of 6 May 1991.
I think also for what it is worth Mr Carney believed that there was some prospect that the plaintiff had suffered L5 root irritation at that time.
That does not, however, surprise me nor does it indicate to me that if they were later to say that it was their opinion that there was no impingement of a screw upon the L5 nerve root that they thereby must have changed their mind.
Mr Hillier had the responsibility of treating this plaintiff in relation to the effects of 6 May 1991 operation. Mr Carney was also concerned about the plaintiff’s post-operative complaints. Mr Hillier had an obligation, as treating surgeon, to make every inquiry to determine why it was that he was suffering the symptoms of which he complained. Both men, at that time, had an obligation, it seems to me, to accept at face value the very severe symptoms of which the plaintiff complained. Because those symptoms involved the left leg clearly enough they both suspected that it was some part of the procedure performed by Mr Hillier that was giving rise to the severe symptoms in the left leg. Both knew that nothing Mr Carney had done could have caused the symptoms complained of. Because of the distribution of the symptoms in the left leg they suspected that there must have been some interference to the L4 or L5 nerve root.
Indeed interference to those nerve roots is not an uncommon result of this surgical procedure. Those nerve roots can be bruised by the procedure itself and that bruising can give rise to quite severe symptoms. In fact the plaintiff had been warned of that likely result.
In those circumstances it seems to me not inappropriate that both surgeons would suspect that there had been some damage to the nerve roots, whether by bruising or otherwise, which was causing the symptoms of which the plaintiff complained. The very timing of the onset of the symptoms and the fact that they were in the left leg suggests that they must have been caused in the operation and, as I have said, by reason of the procedure carried out by Mr Hillier. Because of the particular symptoms it was appropriate to suspect that perhaps there was some possibility that there had been some injury caused to the L4, L5 nerve roots.
In those circumstances the evidence of the contemporaneous notes of Mr Hillier and Mr Carney do not impact upon their credit nor do they indicate, in my opinion, any want of care on their part. On the other hand those contemporaneous notes and perhaps the comments made by Mr Carney indicate that they were prepared to keep an open mind in the treatment of the plaintiff for his symptoms.
The plaintiff’s case could not be made out by proof of this kind. Indeed the Trial Judge did not find for the plaintiff on this evidence.

The Plaintiff’s Case Relying Upon Mr Morley

As well as the contemporaneous notes the plaintiff relied upon Mr Morley’s evidence. Mr Morley first gave a report in 1996. In that first report he said, having read the x-ray report of a radiologist Dr Parker of 10 May 1991, that the right sacral screw was “7mm proud”. By that he meant the sacral screw protruded by 7mm.
Mr Morley is not a radiologist. In offering his opinion he was assuming the correctness of the radiological report of 10 May 1991. That radiological report, of course, only referred to the right hand sacral screw. It must have been the left hand sacral screw which was causing the plaintiff the symptoms of which he complained. Mr Morley deduced, because of the way in which the metal was fixed on the spine, that if there had been a protrusion of 7mm on the right hand side then there must also have been a protrusion of 7mm on the left hand side. He made that deduction from the length of the screws used and the manner in which the screws had been inserted.
It was his concluded opinion that such a protrusion meant that the surgery had been carried out inappropriately and that the screw had come into contact with the L5 nerve root and was the cause of the plaintiff’s ongoing symptomatology.
It was necessary for the plaintiff, of course, to prove the assumptions upon which Mr Morley’s opinion rested: Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844.
The factual basis upon which Mr Morley’s opinion rested, namely, that the left-sided pedicle screw protruded by 7 mm, or at least far enough so as to cause damage to the nerve, had to be established: Paric v John Holland (Constructions) Pty Ltd (supra), and by admissible evidence. Expert evidence based entirely on inadmissible evidence is inadmissible itself: Ramsay v Watson (1961) 108 CLR 642 at 649.
The plaintiff, however, did not call Dr Parker. The plaintiff in fact called no radiological evidence to establish the correctness or otherwise of Dr Parker’s report of 10 May 1991.
As can be imagined a number of x-rays were taken after 10 May 1991. The next x-ray was taken on 16 May 1991. A myelogram was taken. Dr Parker reported on that x-ray. Both Dr Parker and his employer at the time, Dr Perrett, had some part to play in the further x-rays that were taken.
In any event the plaintiff relied upon Mr Morley’s opinion without first establishing the factual basis upon which that opinion was based, except by Mr Morley’s own evidence, which was outside his specialty, and the further evidence which I shall now mention.

The Radiological Evidence

At the close of the plaintiff’s case the plaintiff sought to tender the Memorial Hospital’s case notes pursuant to s45A of the Evidence Act 1929. The defendants objected.
Those hospital case notes included the observations of a number of nurses, paramedical persons and, other medical practitioners apart from the defendants. They also included some documents created by the defendants.
Most importantly, however, they included a number of x-ray reports one of which was Dr Parker’s report of 10 May 1991 and two of which were prepared by Dr Perrett.
The plaintiff sought to tender the Memorial Hospital’s case notes to establish the facts stated in the notes. In other words the plaintiff sought to tender those notes to establish inter alia the truth of the facts asserted in Dr Parker’s report of 10 May1991.
Section 45A of the Evidence Act provides:
“(1) An apparently genuine document purporting to be a business
record -
(a) shall be admissible in evidence without further proof; and
(b)shall be evidence of any fact stated in the record, or any fact that may be inferred from the record (whether the inference arises wholly from the matter contained from the matter contained in the record, or from that matter in conjunction with other evidence).
(2)... A document shall not be admitted in evidence under this section if the court is of the opinion -
(a)that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document; or
(b)that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or
(c)that it would be otherwise contrary to the interests of justice to admit the document in evidence.
(3)... For the purpose of determining the evidentiary weight, if any, of a document admitted in evidence under this section, consideration shall be given to the source from which the document is produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters.
(4)In this section -
......... “business” means business, occupation, trade or calling and includes the business of any governmental or local governmental body or instrumentality;
“business record” means -
(a)any book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business; or
(b)any reproduction of any such record by photographic, photostatic, lithographic or other like process.”

I have no doubt that these documents were business records and capable of being tendered under s45A; Bates v Nelson (1973) 6 SASR 149; R v Perry (No. 3) (1981) 28 SASR 112.
However the test of admissibility is not only whether the documents are business records; it is also necessary to determine whether the document should not be admitted for any of the reasons in s45A (2).
Section 45A is remedial in character. The section, like s 45B, has been enacted to simplify the tender of documents and to allow the tender of documents in circumstances where the author of the documents is not called. The section should not be given a technical construction, but should be allowed a broad construction so as to allow the section to do its work: The Queen v Calabria (1982) 31 SASR 423 at 430.
The section gives the widest discretion to the courts to admit documents of the kind mentioned in the section but, at the same time, provides safeguards to protect parties against injustice.
In respect of s 45A, a party against whom a business record is sought to be tendered is entitled to object to the tender if the person by whom or at whose direction a document was prepared could and should be called by the party seeking to tender the document to give evidence of the matters contained in the document, or that it would be otherwise contrary to the interests of justice to admit the document in evidence.
The circumstances where a court might refuse to admit a business record because the author of the document should be called, or because it would be otherwise contrary to the interests of justice, will be many and varied.
If the fact which is sought to be proved by the tender of the document is critical to one or other of the parties’ case, and there is a dispute about that fact, and the author is available to be called, then it would occasion no hardship to the party seeking to tender the document to be required to call the author.
At the same time, it would not negate the remedial effect of s 45A.
In this case the defendants argued that the Memorial Hospital case notes should not be allowed to be tendered because the authors of the various notes could and should be called. I think it is fair to say that the defendants’ counsel did not explicitly state that Dr Parker should be called but nevertheless that general objection was made to the tender of the documents.
However the Trial Judge admitted the hospital case notes thereby admitting them for all purposes in s45A (1)(b).
In that way the plaintiff was able to establish one of the facts upon which Mr Morley had relied for the purpose of expressing his opinion. The other matter, that is the deduction, was a matter upon which Mr Morley needed to be accepted, if his opinion was to be relied on. However in that respect the Trial Judge had the evidence of Mr Hillier that if the right-sided screw penetrated the anterior cortex of the sacrum the left-sided screw would have penetrated “for close to a similar distance, less than most likely”.
In my opinion the Memorial Hospital case notes should not have been admitted for the purpose of allowing the plaintiff to rely upon Dr Parker’s opinion to prove the first assumption upon which Mr Morley relied.
In my opinion this was a case where the person by whom the document was prepared could and should have been called by the party seeking to tender the document to give evidence of the matter contained in the document.
If the plaintiff wished to conduct his case upon the basis that he would adduce no radiological evidence apart from Dr Parker’s evidence then, in my opinion, it was incumbent upon the plaintiff to call Dr Parker to allow Dr Parker to say whether he was still of that opinion.
For that reason alone I believe the document should not have been admitted. In any event, in my opinion, in the context of this case it was contrary to the interests of justice to admit the document in evidence.
The plaintiff then closed his case without calling any radiological evidence. During the defendants’ opening, on 27 March 1998, the defendants’ counsel told the Court that he would be calling Dr Perrett. He said that he would be calling Dr Perrett to give evidence of the anatomy of the male body and in relation to some x-ray reports. Dr Perrett had given radiological reports on 12 June 1991 and 20 August 1991. The defendants’ counsel also said that Dr Perrett would be called to answer some of the matters raised by Mr Morley. At that stage the defendants’ counsel did not open upon Dr Parker.
The defendants had not supplied any expert reports from Dr Parker or Dr Perrett pursuant to r38 of the Supreme Court Rules.
In the absence of any expert reports the defendants may not have been entitled to call those experts unless they obtained the leave of the Court: r 38.02.
No objection was taken during the defendants’ opening to the suggestion that the defendants would be calling Dr Perrett. No objection was then taken by the plaintiff on the ground that an expert’s report had not been provided pursuant to r 38.
On 15 May 1998 the plaintiff’s solicitors wrote to the defendants’ solicitors stating that they reserved their position in relation to Dr Perrett’s evidence and requested a copy of a report. On 21 May 1998 the defendants’ solicitors responded and provided the plaintiff’s solicitors with a copy of briefing notes taken from Dr Perrett on 19 February 1998 and 21 May 1998.
On 25 May 1998 defendants’ counsel advised the Court that he would call Dr Perrett the next day. Plaintiff’s counsel objected to Dr Perrett being called because no report had been provided pursuant to r 38. Nearly two months had passed without plaintiff’s counsel objecting. The delay in objecting was not explained on this appeal although an opportunity was provided to counsel.
During argument, which lasted over some days, the Trial Judge requested that Dr Perrett provide a report which he did at short notice. The report, however, was abridged, because by that stage the Trial Judge had advised defendants’ counsel that he would not allow Dr Perrett to give evidence on any new matters. At best he would confine Dr Perrett to evidence in “rebuttal”.
I set out Dr Perrett’s report which was included in the defendants’ submissions to this Court:
“I have been asked by Wallmans to examine various x-rays and provide a report regarding my opinion.
1...... Evidence of Mr Morley, insofar as it relates to the x-rays and anatomy; and
2      Radiological films of 5.6.90, 10.5.91, 16.5.91, 4.6.91, 12.6.91, 1.7.91, 20.8.91, 20.12.91. and 20.5.95.
All but the films of 25.6.90 and 20.5.95 were prepared by and reported upon by the radiological practice of Perrett, Harrison and Partners of which I was the senior partner until my retirement in late 1993.
I have assumed that the sacral screws used by Dr Hillier in his surgery upon Mr Lucas were both 45 millimetres long and inserted to approximately the same depth.
Mr Morley’s evidence constantly maintained that the right sacral screw protruded 7 millimetres beyond the cortical margin of the sacrum as shown on the film of 10.5.91.
He ignores:
1...... Magnification of the screws. The true length of a 45 millimetre screw is 5.2 centimetres. The magnified length of the right screw on the lateral film of 10.5.91 is 7.1 centimetres, that is a magnification factor of 37%. Therefore, the apparent protrusion of the right screw reduced to approximately 5 millimetres and not 7 millimetres as reported. (The magnified length of the left screw is 6.4 centimetres).
2      Rotation of the pelvis. As projected the tip of the left screw is 9 millimetres behind the anterior cortex of the sacrum, whereas the tip of the right screw is projected in front of the anterior cortical margin.
3...... That the subsequent x-rays of 16.5.91, 4.6.91 and 12.6.91 are truer laterals and do not support the contention of 7 millimetres projection of the right sacral screw.
In summary, despite Mr Morley’s statement that x-rays do not lie, rotation of the patient, magnification and divergence of the x-ray beam can lead to mistaken assumptions.
Anatomy
1      Ala of the Sacrum
........ Mr Morley maintains that the ala of the sacrum are always behind the body of the sacrum. In fact, the sacrum becomes fairly flat below the promontory at the approximate level of the screw tips above the level of the first sacral foramina at the junction of the body and ala of the sacrum. Confirmatory evidence is shown on slice 28 of the CT performed on 20.8.91.
2      Path of the L5 Nerve Root
........ Mr Morley maintains that this nerve passes vertically over the region of the screw tip, ignoring the fact that magnetic resonance scans and anatomy school specimens show the nerve passing laterally as well as inferiorly towards the sciatic notch. I would agree with professor Henneberg that the screw tip would be in a relatively bare area as demonstrated by him to the Court.
Looking at the films shown to me, I make the following comments:
10.5.91 - AP and Left Lateral Films
......... The right side of the pelvis is rotated anteriorly so that the right screw tip is projected in front of the anterior cortical margin of the sacrum. The tip of the left screw is projected behind the cortical margin of the sacrum. The degree of rotation in conjunction with the optical distortion makes assessment of the true position of the sacral screws very difficult on this film.
16.5.91 - Myelogram and CT
......... The left lateral spot film and cross table left lateral film (taken with the patient lying prone) are both truer lateral films than the film of 10.5.91 and the apparent protrusion of the right screw is no longer 7 millimetres.
The CT did not depict the tips of the sacral screws.
......... 4.6.91 - AP and Right Lateral Films
This is an almost true lateral film with the tips of screws superimposed and minimal protrusion beyond the cortical margin of the sacrum. The AP film suggested there has been no significant change in the position of the screws since the examination of 10.5.91.
......... 12.6.91 - AP and Right Lateral Films
I prepared the report on these films. Again there is no evidence of apparent 7 millimetre protrusion of either screw.
......... 20.8.91 - CT
I also prepared the report on these films. The cuts have been taken vertically to the table top with the patient lying supine at approximately 45o to the long axes of the sacral screws.
......... Slice 28 shows the tip of right screw and associated artefact. At this level, the ala of the sacrum lies in front of the midline of the anterior surface of the body of the sacrum, whereas in cut 27 taken 10 millimetres cranially (towards the head) shows the composite shadow of the L5-S1 disc and the promontory projecting in front of the ala. The right screw tip protrudes through the cortex, but the tip itself is obscured by associated metal artefacts.
Conclusion
......... After taking into account the variables of magnification and rotation of the patient, it is my opinion that the protrusion of the right sacral screw was approximately 3 millimetres and not the 7 millimetres suggested by Mr Morley. It is not certain from the x-ray examinations that the left screw protruded exactly the same amount.
My opinion is confirmed by experiments I have performed.
......... The normal anatomy of the L5 nerves would be lateral to the tips of the sacral screws as they coursed laterally and inferiorly towards the sciatic notches.
Mr Morley contends that the protrusion of a sacral screw through the anterior cortex of the sacrum may involve the fifth lumbar nerve. However review of the orthopaedic literature on the complications of pedical fixation does not report that this actually happens. (ref: ‘Complications Associated with the Technique of Pedicle Screw Fixation’ S.1. Esses et al, Spine, 1993 Volume 18 pp.231-239).”
The Trial Judge read the report and formed the opinion that the report could have been written at any time after 1991. He was not satisfied with the explanation for the delay in the provision of the expert’s report. In those circumstances he refused the defendants’ application to call Dr Perrett.
Rule 38 requires the parties to litigation to exchange experts’ reports within 28 days after the time limited by the Rules for making discovery. An expert report means a written report which contains or includes the opinion of any expert on any matter in issue in the action, and includes a report in which the expert comments upon the report or reports of any other expert; r 38.01(6)(a).
Rule 38.01(7) provides that a party cannot adduce expert evidence at a trial other than with leave of the court unless that sub-rule is complied with. Relevantly the sub-rule requires the report to contain the substance of the expert’s evidence; the qualifications of the expert; and particulars identifying the material upon which the expert has based his or her expert opinion.
Rule 38.02 provides a sanction for failure to observe any of the requirements of r 38.01. If there has been a failure the court may adjourn the trial at the cost of the party in default, it may direct that evidence from that expert not be adduced at the trial; and it may award costs to the other parties or reduce costs otherwise to be awarded to the party in default. Where the fault is that of the plaintiff the court may take that failure into account in assessing the award of damages.
The Rule further provides that the court at any time may dispense with compliance with r 38.01 in whole or in part and upon such terms as it sees fit; r 38.02(3).
Where there is default by a party in the observance of r 38 the court must choose the appropriate course of action under r 38.02 or r 38.03. That requires the court to exercise a discretion.
In this case Dr Perrett had provided two reports. He was the author of the radiological reports of 12 June 1991 and 20 August 1991.
I think the Trial Judge had a discretion to refuse the defendants leave to adduce expert evidence from Dr Perrett pursuant to r 38. Whilst he could not have prevented defendants’ counsel from calling Dr Perrett, and proving Dr Perrett’s radiological reports prepared in June and August 1991 and the facts surrounding the preparation of those reports, he had a discretion to refuse the defendants’ counsel leave to adduce expert evidence from Dr Perrett outside that contained in those reports: r 38.
In any event the parties treated the order made by the Trial Judge as meaning that Dr Perrett could not give any evidence. He was not called.
The application to call Dr Perrett was made after one other circumstance had intervened. Dr Parker was called by the defendants. He was not opened on but sometime between the opening and 25 May 1998 Dr Parker was located and was called.
I will go into his evidence in more detail in due course but the effect of his evidence was that his report of 10 May 1991 was not accurate and should not be relied upon. He said that it was no longer his opinion that the right sacral screw protruded by 7mm. He gave a detailed explanation for why he was not of that view. That, of course, was also the opinion of Dr Perrett.
It was critical for the plaintiff’s case to prove that the assumptions underlying Mr Morley’s opinion, that the right sacral screw protruded by 7mm and the deduction that the left sacral screw protruded by the same distance, was established. As I have already said the plaintiff had sought to establish the first assumption by simply tendering Dr Parker’s contemporaneous opinion of 10 May 1991.
It was surprising that the plaintiff attempted to prove his case without any radiological expert evidence. The defendants objected at trial and continue to complain on appeal of the Trial Judge’s decision to allow the tender of Dr Parker’s report through the Memorial Hospital case notes, without Dr Parker being called by the plaintiff. That forensic advantage allowed the plaintiff to prove the most critical fact in the case without providing the defendants with an expert’s report and without exposing the witness to cross-examination.
It is equally surprising that the defendants did not have their own radiological expert evidence. I can think of no reason why Dr Parker could not have been found earlier and a report obtained from him. Dr Perrett was always available to provide a report. Both parties should have observed their obligations under r38. Both parties should have exchanged their experts’ reports at the appropriate time so as to allow each other to be aware of the expert evidence which had to be met.
It might be thought that both parties were attempting to obtain tactical advantages.
As it transpired the plaintiff obtained an expert’s radiological report during the argument. Dr Saifuddin provided the plaintiff with a report on 28 May 1998. The plaintiff could not have been embarrassed by Dr Perrett giving evidence.
In the end result the question for the Trial Judge, in my opinion, was whether the defendants should be disadvantaged in the presentation of their case because of their failure to comply with Rules.
The Rules of Court should always be observed: Ratnam v Cumarasamy [1964] 3 All ER 933. Sometimes, however, there will be a failure to comply with the Rules. When they are not observed and a party seeks a dispensation from that party’s failure to observe obligations under the Rules then the question of whether a dispensation should be given depends upon whether the justice of the case necessitates that the default should be forgiven: Morres v Papuan Rubber and Trading Co Ltd (1914) 14 SR (NSW) 141 per Cullen CJ at 144.
Rule 38 confers an unfettered discretion, except that the discretion must be exercised judicially, upon a Trial Judge to allow a party leave to adduce expert evidence when there has not been compliance with r 38: r 38.03. The court is otherwise given power to dispense with compliance with the Rules: r 3.04(a) The purpose of allowing parties to proceed notwithstanding non compliance with the Rules is to allow justice to be done. Rules of this kind are to aid in the attainment of justice: Gallo v Dawson (1990) 93 ALR 479; Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1978] VR 257 at 262. It is, of course, for those seeking a dispensation or an indulgence to convince the Court that such an order is necessary to do justice in the matter: Pond v WorkCover [1999] SASC 362.
The question therefore, in this case, was whether it was just to allow Dr Perrett to be called in the circumstances to which I have referred.
I do not have any doubt that Dr Perrett should have been allowed to have been called to give expert evidence. It may have been that terms needed to be imposed so as not to cause any injustice to the plaintiff, although I cannot think of any injustice which would have been caused to the plaintiff by Dr Perrett being called. Mr Morley, who was the only relevant witness, had been cross-examined on all of the matters upon which Dr Perrett was to give evidence. He had commented upon those matters and had disagreed with the propositions put by the cross-examiner in cross-examination. Indeed Mr Morley and Dr Perrett gave opinions in relation to two different specialties.
Mr Morley, therefore, did not need to be recalled. If, however, the calling of Dr Perrett, without warning prior to the defendants’ opening, was an embarrassment to the plaintiff in that the plaintiff would have otherwise have obtained an expert radiological report then that could have been a term of Dr Perrett giving evidence. Indeed, in due course, the plaintiff did call a radiologist to rebut Dr Parker’s evidence.
Dr Perrett’s evidence went to the heart of this matter. It contradicted the radiological report of Dr Parker of 10 May 1991, which had been admitted without Dr Parker being called to that point of time. Dr Perrett’s evidence supported Dr Parker’s evidence and contradicted Dr Saifuddin’s evidence, a radiologist the Trial Judge later allowed the plaintiff to call in rebuttal.

The learned Trial Judge allowed $30,000 for pain and suffering for the period between 6 May 1991 and November 1982. That is an award of about $20,000 per year. He also allowed a further $10,000 for pain and suffering from November 1992 until judgment. He allowed yet another $10,000 for future pain and suffering.
I am prepared to assume that the learned Trial Judge found, without expressly saying so, that the plaintiff was in pain for the whole of the period between May 1991 and November 1992. Thereafter, the pain was alleviated by the morphine pump. I must assume, although in my opinion the finding was not open, that the insertion of the morphine pump was due to the negligence of one or both of the defendants. In considering damages I must assume that the verdict on liability will stand as his Honour has determined.
As I have pointed out judgment was entered against both defendants for their several acts of negligence.
Because Mr Carney was not found negligent in relation to the operation it was necessary for the Trial Judge to determine whether the plaintiff’s incapacity until November 1992 arose out of the operative procedure or the operative procedure and the post-operative care. He also had to determine the extent of the damage which could be attributed to the operative procedure and the post-operative care.
Because inferentially he found that the insertion of the morphine pump was a consequence of the negligence of the defendants he had to find whether that arose by reason of the negligence of Mr Hillier in the conduct of the operation or by reason of the failure of both of the defendants in relation to the post-operative care.
Mr Carney can quite simply say that whatever else about this decision he could not be responsible for the same damages for which Mr Hillier was responsible, unless Mr Hillier’s operation did not cause any of the damage which flowed. If that was so, of course, the learned Trial Judge had to dismiss the claim against Mr Hillier in relation to the operation.
I merely point out these things to show how difficult it is for this Court to deal with a decision which is so lacking in findings.
Putting all those matters aside and assuming that the plaintiff was in almost constant pain between May 1991 and November 1992 a figure of $30,000 for pain and suffering, whilst it might be high, cannot be said, in my opinion, to be manifestly excessive.
A further sum of $10,000 for pain and suffering between November 1992 and judgment requires further findings. The plaintiff could not have been entitled to any further sum for pain and suffering unless he was suffering pain after November 1992 due to the negligence of the defendants in May and June of 1991. In respect of the claim brought against Mr Carney, he could not have been liable for any damages after November 1992 unless the plaintiff’s condition after that time was partly due to his negligence in the post-operative stage. No finding was made to that effect.
The learned Trial Judge’s reasons rather suggest that after the insertion of the morphine he was not satisfied that the plaintiff would suffer pain. Of course he would have the inconvenience of priming the morphine pump but no allowance could be made for that unless the morphine pump was directly attributable to the defendants’ negligence. If he was satisfied that the plaintiff suffered pain after that time, that would be contrary to his finding in accepting the evidence of Mr Morley that the plaintiff was better off after insertion of the morphine pump than he had been before the operation of 6 May 1991 and the further evidence that the plaintiff would have recovered within 18 months.
It might also be contrary to a finding which he made in relation to the claim for special damages. In awarding special damages his Honour allowed nothing after November 1992 except for the cost of the morphine pump between that date and judgment. He allowed nothing for any of the other treatment for pain and suffering.
I cannot understand how the Trial Judge can reconcile an award of damages for pain and suffering after November 1992 and before judgment, and further award of damages for the period after judgment with the findings which he has made.
The difficulty with the two figures of $10,000 for pain and suffering from November 1992 to judgment and after judgment is that his Honour found that after the insertion of the morphine pump the plaintiff was probably better off than he was before the operation. If he was better off it is difficult to see how any sum at all could be justified for pain and suffering and loss of amenities, except I suppose a sum to represent the inconvenience of having the morphine pump primed and, assuming the life expectancy found by the Trial Judge, for the two or perhaps three operations that will need to be undergone for the purpose of replacing the morphine pump.
If that is the basis of the award for damages for pain and suffering after November 1992 I think I would have allowed less than $10,000 for each of those two periods but I am not prepared to say that the sum of $10,000 for each of those periods is excessive.

Loss of Earning Capacity

The Trial Judge only allowed $2,000 for loss of earning capacity. Having regard to a life expectancy of twelve years from trial and the fact that nearly eight years had passed since the operation had taken place that is a sum of about $100 per year without any discount for acceleration in benefit.
The defendants assert that the Trial Judge was wrong to award any sum for loss of earning capacity. It is asserted that the plaintiff’s pre-operation history shows that he had, as at 6 May 1991, no earning capacity which was capable of exploitation. There was nothing that was capable of being lost.
It is true that the plaintiff had not worked for many years and every indication was that he would never work again. As the Trial Judge found he had become a professional invalid.
However in assessing the loss of earning capacity the Trial Judge took into account all of those matters. He found there was a low probability that even with a successful operation that the plaintiff would have exercised his earning capacity. It was for that reason he awarded such a low figure.
Because the plaintiff’s life expectancy has been reduced by factors which were not the responsibility of the defendants it would not be appropriate to have regard to the lost years.
The figure allowed, in my opinion, is so low that it cannot be said that it is wrong.
I am not prepared to say that so modest an award could not have been made on the evidence before the Trial Judge.

Loss of Domestic Capacity

Next, the Trial Judge made an allowance of $2,000 for loss of domestic capacity. It was claimed that the plaintiff was severely restricted in his “yabbying abilities, not able to use a ladder or to carry out handyman duties around the home”.
The Trial Judge found that a film taken in 1998 showed that he was able to do all of those activities and he found that he would have been able to do all of those activities for some years before that.
He further found that even if the operation had been a success he would have suffered some restriction in mobility.
It is not clear why the Trial Judge awarded any sum for “loss of domestic capacity”. The plaintiff lived in a caravan with his partner and her daughter. He did not have any house to maintain. He did not have any garden to tend. In my opinion it is not apparent to me why he would have been allowed anything for domestic activities.
In my opinion, a claim that he was unable to carry out his yabbying activities to the same extent as he previously had would have been covered by the award for loss of amenities.
On any understanding of the plaintiff’s position, in my opinion, he was not entitled to an award of $2,000 under this head.

Future Medical Expenses

The Trial Judge allowed $45,000 for future medical expenses.
In doing so he said this:
“In assessing future medical expenses I make allowance for visits to the plaintiff’s general practitioner, supervision by pain clinic, one morphine injection per month to refill the morphine pump, the replacement of the morphine pump every three to five years and the operations and hospitalisation associated with the replacement of the morphine pump. I shall use as a rough guide the unproven claims admitted as special damages. I take into account that the plaintiff has a reduced life expectancy not of the consequence of the operation. I shall use the life expectancy of twelve years, in the absence of any precise expert opinion. I allow $45,000 for future medical expenses.”
This head of damages raises the same difficulties to which I adverted in consideration of the award for pain and suffering.
It is not clear on the Judge’s findings that the plaintiff is entitled to damages for the likely cost which his Honour has referred.
The plaintiff is only entitled to those damages if the morphine pump has been made necessary by the negligence of the defendants or one of them in May/June 1991. It is unsatisfactory that this Court should be called upon to infer that such a finding has been made.
If it was the Trial Judge’s opinion that the morphine pump had been made necessary by the defendants’ negligence, it is not possible from his reasons to understand how his Honour has calculated the sum of $45,000. The assessment is based on undisclosed costs. It has been taken over a period of 12 years but upon the basis of a replacement pump every three to five years. On that shortened life expectancy it would be expected that the Trial Judge could have determined exactly how many replacements would be necessary.
It is not clear whether the Judge calculated the sum of $45,000 having regard to present day costs and whether he took into account the plaintiff’s ability to use the money before the occasion for the costs arose. In other words it is not clear whether he took into account the acceleration in benefit that the plaintiff will receive by the receipt of the moneys at judgment.
If the Trial Judge found that Mr Morley was correct that the plaintiff was better off after the insertion of the morphine pump than he had been before the operation, one would have thought that some regard would be had to the reduced cost of medical treatment as a result of the insertion of the morphine pump.
The cost of replacement of the morphine pump is $9,700. Assuming the reduced life expectancy which has been found by the Trial Judge that pump will have to be changed two or three times after trial.
The plaintiff maintained that the cost of priming the pump was $155 per month say $2,000 per year. Assuming no acceleration in benefit the cost for future priming of the pump is in the order of $24,000.
The award of $45,000 would not be erroneous if the pump has to be replaced on three occasions but maybe a little high if the pump has to be replaced on only two occasions.
I have not overlooked the acceleration in benefit which will accrue to the plaintiff by receiving the award immediately but that acceleration over a period of 12 years, assuming a discount rate of 3 per cent, would not be so great as to make an assessment of $45,000 erroneous if the pump needed to be replaced on three occasions.
In the end result and assuming the findings to which I have referred, but the Trial Judge did not make, I am not satisfied that a sum of $45,000 for future medical expenses is excessive.

Wilson v McLeay Damages

The next head of damage attacked by the plaintiff was the award of $3,000 for Wilson v McLeay (1961) 106 CLR 523 damages.
In Wilson v McLeay the plaintiff was very seriously injured whilst travelling interstate. She was admitted to hospital in the State in which she was injured. Her mother visited her on three occasions and her father once. The damages claimed were for the interstate travelling expenses of the parents.
In the special circumstances of the case Taylor J sitting as a single Justice of the High Court said that her serious injuries were:
“Such as to call for such comfort and consolation as her parents’ reasonable attention could provide.”

He therefore made an allowance for the cost of attendance of the parents.

Taylor J seemed to suggest that the damages were not recoverable unless there had been an actual expenditure on the part of the visitor. It is probably right that such a limitation is, as explained by Stephen J, in Griffiths v Kerkemeyer (1977) 139 CLR 161 at 178, contrary to principle. It is probably not necessary that any actual expenditure be proved. Like damages for gratuitous surveys it would be enough for the plaintiff to establish the need to which Taylor J referred.
Unless the visits help in the alleviation of symptoms and relieve pain or assist in the rehabilitation of the plaintiff a claim for damages of that kind is simply too remote: Bresatz v Przibilla (1962) 108 CLR 541 per Windeyer J at 547. It would therefore be necessary that the plaintiff make out that the attendance of the visitors was necessary for either the alleviation of some symptoms or to assist in the rehabilitation of the plaintiff.
The plaintiff’s partner and her daughter visited the plaintiff frequently. The plaintiff’s partner said that she attended hospital every day to visit the plaintiff. She travelled by public transport and remained in the hospital for some hours each day. Her daughter also attended on most days.
The Trial Judge found:
“Despite Sandra Stevens admitting that at times the plaintiff was unaware of their presence and that at times when he was really depressed ‘he did not want any visitors at all’, the plaintiff, I accept, would have derived benefit from Sandra Stephens’ and Lee Stephens’ visits. He said he hated hospitals: his time in hospital would have been less pleasant but for their visits. I award $3,000 under this head of damages.”
I am not sure that the evidence goes far enough to justify an award of damages under this head. I am sure that anyone who undergoes surgery, whether as the result of a trauma or for any other reason, benefits by regular visits from their close relatives whilst they are in hospital.
However, I am not convinced that where a plaintiff has been hospitalised as a result of the negligence of another person that the courts have gone so far as to allow damages for the visits of anyone, whether a close relative or otherwise, who visits that plaintiff. I think there must be more before the plaintiff becomes entitled to damages. I think there must be a real need in the sense in which I have described it and that is a need for the visit by the close relative or perhaps even a friend, which arises out of the seriousness of the injuries themselves, for comfort, care and support which assists the plaintiff in recovering from their personal injuries.
In my opinion such a need was not made out on the evidence in this case and the Trial Judge was wrong to allow any damages under this head.

Voluntary Services

The Trial Judge allowed $5,000 for voluntary services rendered by the plaintiff’s partner and her daughter to the plaintiff after he left hospital. I think the period over which the Trial Judge allowed a claim for voluntary services was that same period as he considered relevant for the claim for substantial aspects of pain and suffering and loss of amenities, that is from May 1991 until November 1992.
In that period he said that the plaintiff required and received a good deal of assistance from both his partner and her daughter. The plaintiff’s partner’s daughter was of a nursing background and tended to the plaintiff’s ulcers, bathing and changing the dressings as required. His partner looked after his other needs at a time when he was mostly bedridden. During that time she cooked, cleaned, washed him and his clothes, dressed him and helped him to use the lavatory.
The defendants submit on appeal that no allowance should have been made for any voluntary services rendered to the plaintiff over this period of time. I cannot agree with that submission. I think on the evidence accepted by the Trial Judge, which must be mainly that of the plaintiff himself, discloses that the plaintiff demonstrated a need for voluntary services over the period to November 1992. Those voluntary services were met by his partner and his daughter and in those circumstances the plaintiff was entitled to damages for those voluntary services.
The figure allowed by the Trial Judge does not seem to me to be so high as to be capable of being categorised as erroneous. In those circumstances I would not interfere with that aspect of the award.

Special Damages

The head of damage which gave rise to the most substantial award was special damages.
The plaintiff claimed $215,115.46 by way of special damages.
The Trial Judge said:
“Finally I come to special damages. The total eventually claimed, made up of hundreds and hundreds of separate items, is $215,115.46. From time to time during the hearing, counsel told me they were ‘working on’ agreement and they were ‘confident’ the damages would be agreed before the hearing finished. They never were. Special damages were agreed as to quantum but not as to liability. Not one item was ever proved: no attempt was made to prove even one item of special damage.”
His Honour went on to say:
“I do not remember being in such a situation before. I have always understood that special damages either must be strictly proved or agreed. Thankfully, nowadays they are nearly always agreed - but not so here.
I have already mentioned that there are hundreds and hundreds of items. For the plaintiff to have to prove each would be absurdly tedious, a great waste of time. Yet, technically, as I understand the law, that is what should happen. The job is usually avoided by the parties being reasonable, coming to agreement on quantum and liability.”
His Honour then discussed the system within Comcare for the payment of special damages and said:
“I am not prepared to allow the special damages as claimed. I shall certainly not follow Comcare and allow everything just because it is claimed. Mr Cameron relied on a reference in Luntz ‘Assessment of Damages’ (3rd edition, @ paragraph 1.6.12, pp 59-60), setting out dicta of Dixon CJ and McTeirnan J in Russell v Hargreaves & Sons Pty Ltd (1957) 30 ALJ 533 @ 534 (the appellant was a taxi driver injured in a motor vehicle accident): -
‘His efficiency as a driver and his capacity to drive for any lengthy period have obviously been greatly impaired and even if an exact sum of special damages has not been proved the existence of this head of damage has been shown as an substantial element and ought to have been taken into account in assessing general damages.’
I suppose that is sufficient authority for me to ‘wield the broad axe’. Anyway that is all I can do. The plaintiff must be entitled to something for out-of-pocket expenses but I do not accept his claim and that of Comcare as to what they are.
I shall allow eighty per cent of the total claimed until the end of November 1992 (looking at the list of items claimed up to then, about 80% look arguably justifiable) and make an allowance to cover the costs of the morphine pump between December 1992 and judgment. Eighty per cent of specials claimed to November 1992 is $90,421. In addition I allow $24,573 from December 1992 to the end of the hearing in December 1998, being the costs in that time relating to the morphine pump. That makes a total of $114,994.
I shall not allow anything for other specials claimed after the cut off, November 1992, believing they are either unjustified or not referrable to the after effects of the operation.”
His Honour’s decision not to allow special damages after November 1992 is inconsistent with him allowing general damages for pain and suffering after that date, unless those general damages for pain and suffering were awarded only to compensate the plaintiff for the morphine pump and other procedures necessary to prime and replace it. I will assume that to be the case. That must be if the award of special damages is consistent with the awards for both damages for pain and suffering and for future medical expenses.

I think it can be assumed again, although his Honour has not said, that after November 1992 the only pain and suffering that the plaintiff will suffer is that associated with the morphine pump itself.
The defendants’ claim on this appeal that no amount should have been allowed for special damages. They said they indicated throughout the trial that, whilst they did not dispute that the various accounts which formed the subject matter of special damages had been paid, they did dispute that the various services described in the special damages had been made necessary by the operation or the treatment after the operation or that if the various services had been made necessary by any act of negligence on the part of the defendants, that the services were reasonable.
In support of the claim for special damages the plaintiff tendered six volumes of documents evidencing payments by Comcare of the various amounts claimed for special damages.
Rule 46.15 requires in any action in which the plaintiff claims damages for or in respect of personal injury that the plaintiff provide:
(a).... Full details of all damages in the nature of a special damage, including an itemised list of all expenses and outgoings associated with any treatment administered with respect of (sic) such personal injury, and including as to each item the name of the person or institution to whom the expense or outgoing was paid or payable.”
The words “in the nature of a special damage” have been used advisedly in r 46.15.
The special damages claimed included hospital accounts, medical accounts, accounts from the defendants, specialist medical accounts, specialist medical services, paramedical services, pharmacy accounts and taxi fares.
Apart from the obligations imposed by r 46.15(a) the law requires that all items of the kind referred to and claimed as special damages are of a kind that fairness dictates requires the plaintiff to give the defendant notice, because the damages claimed are quantifiable and have been met. As such they need to be pleaded; Pelestrello E Companhia Ltd v United Paint Co Ltd (1969) 3 All ER 479. In that case Lord Donovan said at 486:
“The same principle gives rise to a plaintiff’s undoubted obligation to plead and particularise any item of damage which represents out-of-pocket expenses, or loss of earnings, incurred prior to the trial, and which is capable of substantially exact calculation. Such damage is commonly referred to as special damage or special damages but is no more than an example of damage which is “special” in the sense that fairness to the defendant requires that it be pleaded.
The obligation to particularise in this latter case arises not because the nature of the loss is necessarily unusual, but because a plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible.
The matter is clearly stated in Mayne and MacGregor On Damages (12th Edn, 1961) in para 970, where the learned editors write:
......... ‘Special damage consists in all items of loss which must be specified by [the plaintiff] before they may be proved and recovery granted. The basic test of whether damage is general or special is whether particularity is necessary or useful to warn the defendant of the type of claim and evidence, or of the specific amount of claim, which he will be confronted with at the trial.’ ”
Because of those obligations the practice has developed that parties identify medical expenses and out-of-pocket expenses which have been incurred by a plaintiff as a result of suffering personal injury.
Whilst it is convenient for the plaintiff to identify each item of expenditure so as to fully inform the defendants of the case which the defendants have to meet, in my opinion, that does not make the damages for medical treatment, to the date of judgment, a special damage in the sense the expression ‘special damages’ is technically understood.
Some years ago, in this State, it was common for a plaintiff to plead as a special damage the plaintiff’s ‘loss of wages’ up to the issue of proceeding and at trial prove loss of wages in the same way as other ‘special damages’.
Conceptually, of course, loss of wages do not form a head of damage at all. The plaintiff, in a claim for personal injuries, is entitled to damages for any loss or diminution of the plaintiff’s earning capacity rather than the repayment or the payment for loss of wages.
In a sense the same is true in relation to medical and like expenses usually described as special damages. The plaintiff, in a claim for damages for personal injuries, is entitled to be compensated for any need which has arisen by reason of the injuries caused by a defendant including for example any voluntary services rendered to satisfy that need: Griffiths v Kerkemeyer (supra).
Another need which will usually arise is the need for medical services. That need will usually arise immediately after the tort. The cost of satisfaction of that need pre-trial can easily be ascertained by reference to the charges of medical persons and paramedical persons. Other needs will arise such as the need for transport and those needs will be satisfied by taxis.
Usually the cost of satisfaction of the various needs can be identified pre-trial. The plaintiff must particularise those costs because the defendants are entitled to have fair notice of the plaintiff’s case against them. But that is a pleading obligation. It does not change the character of the damage. The damages which are to be awarded to satisfy the needs which arise are general damages and not special damages as that term is understood: McGregor On Damages 16th Edition 1997, p. 16.
In Griffiths v Kerkemeyer (supra) at 180 Stephen J said:
“In Teubner v Humble Windeyer J, spoke of the creation of needs that would not otherwise exist as one way in which a personal injury can give rise to damage. His Honour adverted to the impossibility of surely predicting the future but otherwise drew no distinction of kind between past and future damage of this character; nor does any true distinction, I think, exist, other than the degree of certainty with which each may be quantified. The damages to be awarded for each can in these circumstances scarcely be different in kind; being more precisely known, past expense or loss incurred must, for the reasons already stated, be particularized, but that is all.
It follows that there must be logical difficulty in now applying, in the light of recent decisions, the special rules applicable to special damages which were enunciated by Dixon CJ and by Fullagar J in Blundell v Musgrave. There (sic) application may, of course, be avoided, as they were in Wilson v McLeay and have been in some subsequent cases, by treating the damages awarded as general damages but to do so would then appear to leave no class of damages to which can be given the name “special”. In Donnelly v Joyce Megaw LJ, while apparently attaching no significance to the nomenclature, did describe the damages in question as special damages; in that case what was in fact claimed and actually awarded was an amount equal to the mother’s actual loss of earnings and this for reasons to which I refer below. In later cases little significance appears to have been thought to attach to the particular name given to describe the damages awarded. All this is, I think, the result of an approach which looks not to expenses incurred or earnings lost but, rather, to needs created or capacity lost.”
Usually the need for medical services and the like which has been satisfied pre-trial will be assessed by reference to actual costs incurred.
There will be occasions, and this was one of them, where it will not be appropriate to assess damages in that way.
Where it is more appropriate to assess damages by reference to the need for medical services and the like pre-trial generally the plaintiff will have to lead evidence to establish the need. That will be done through the plaintiff and the plaintiff’s medical experts.
Once the need is established the court will need some evidence to show how the need has been satisfied and the cost of that satisfaction. The court can then assess the damages for that need.
The plaintiff can, but is not required to prove every charge which has been raised.
In this case the Judge found that the plaintiff had a need for medical services up to November 1992. He was aware of the cost of all medical services which had been provided to the plaintiff up to and after November 1992.
He was entitled to take a broad axe, as he put it, to assess damages for satisfaction of the need before and after November 1992. He was not required to consider every separate account put before him to determine whether that account was raised in satisfaction of the plaintiff’s needs arising out of the defendants’ negligence.
He was obliged to satisfy himself that the figure at which he arrived fairly compensated the plaintiff for the need generated by the defendants’ negligence.
In my opinion, the assessment of damages, for what otherwise would be called special damages, but which are in truth damages for the need for medical services pre-trial, was not unreasonable.

Interest

The defendants also complained about the award of interest made by the Trial Judge.
After assessing damages His Honour said:
“Interest is awarded on past non economic loss, past voluntary services, past loss of domestic capacity and special damages. I should not allow interest on future non-economic loss, future loss of any capacity or future medical expenses. I allow 4% interest over the entire period for both the past non economic loss, past voluntary services, and past loss of domestic capacity and then divide this by half, see Gogic v MBP (SA) Pty Ltd (1991) 171 CLR 657, Wheeler v Page & Harris (1982) 31 SASR 1 and Calvaresi v Lawson (1995) 184 LSJS 147. I allow $7,000.
With regard to special damages I accept the plaintiff’s submission that a commercial rate of 10% be used. Given that I have effectively set a cut-off date of November 1992 for the special damages, and consequently removed almost all special damages between 1993 and 1998, I shall allow interest at 10% on the whole amount for the entire time. I allow $85,000.”
The appellant’s complaint is that the Trial Judge should not have awarded interest or special damages.
The Notice of Appeal raised the following matters:
“30... The Learned Trial Judge erred in ordering interest on special damages at all in that:
30.1. The plaintiff had already had the whole of his ‘special damages’ paid by way of payments from Comcare and therefore no entitlement to interest thereon arises.
30.2 Alternatively, if some interest is properly allowance on special damages then:
2.1............. The rate of 10% is out of step with current commercial interest rates which are substantially lower;
2.2The Learned Trial Judge appears to have applied 10% to the ‘capital’ sum of $114,000 said to represent special damages assessed from the date of surgery until the ‘cut-off date’ of 10.11.92. This calculation appears to impermissibly postulate that all of the special damages were incurred on the date of the surgery rather than gradually over the period of time when medical and other services were provided to the plaintiff.”
The defendants argued that the plaintiff had all of his ‘special damages’ paid by Comcare from time to time as they were incurred. They argued that because he had had his special damages paid he was not entitled to interest: Batchelor v Burke (supra).
I do not think that Batchelor v Burke (supra) has any application in this case. These proceedings were brought by Comcare itself. The statement of claim clearly identified Comcare as interested in the proceedings.
In my opinion, Comcare was entitled to be treated as if it was the plaintiff and was entitled to claim that as it had paid the special damages it was entitled to interest on the sum expended.
It was submitted by the defendants that, even if Comcare was the party who had initiated the proceedings, s 50 and s 51 of the Act do not authorise Comcare to recover interest against a defendant.
I agree that s 50 and s 51 of the Act do not provide that interest is recoverable by Comcare. However, in my opinion, that is not to the point. The plaintiff’s entitlement to interest did not arise under the Act, but under the procedural legislation governing proceedings in this Court, namely, the Supreme Court Act. Section 30C of that Act provides that unless good cause is shown to the contrary, the court shall, upon the application of a party in favour of whom a judgment for the payment of damages is to be pronounced, include in the judgment an award of interest in favour of the judgment creditor.
The defendants not only argued that s 50 and s 51 did not authorise payment of interest to Comcare they argued that s 50(7) and s 50(8) of the Act precluded such an award being made.
Those subsections provide:
“(7).. Any damages awarded under a judgment obtained in proceedings referred to in this section, or payable as a result of the settlement of such proceedings, shall be paid to Comcare and Comcare shall deduct from the amount of those damages:
(a)an amount equal to the total of all amounts of compensation paid to the employee or dependant under this Act in respect of the injury, loss, damage or death to which the proceedings relate; and
(b)the amount of any costs of or incidental to those proceedings paid by Comcare;
and shall pay the balance (if any) to the employee or dependant.
(8)... Where Comcare pays an amount to an employee or dependant under subsection (7), the employee or dependant is not entitled to receive any further amounts of compensation under this Act in respect of the injury, loss, damage or death to which the proceedings related until the amount of compensation that would, but for this subsection, have been payable to the employee or dependant in respect of that injury, loss, damage or death equals the amount paid by Comcare to the employee or dependant under subsection (7).”
It was argued that because Comcare is entitled only to deduct from the amount of damages the amounts referred to in s 50(7)(a) and (b) that the interest which might be awarded to indemnify Comcare will have to be paid to Mr Lucas.
I think that is probably so but that is a matter between Comcare and Mr Lucas.
Even if it was so I see no injustice to the defendants in that because of the provisions of s 50(8).
If Comcare is obliged to pay to Mr Lucas the amount of the interest which it has recovered it will be entitled in due course to offset that amount against further amounts of compensation payable under the Act.
In that way it will recoup the amount of interest which it has recovered from the defendants by avoiding payment of compensation of the same amount.
In those circumstances it does not seem to me that s 50(7) and (8) are any bar to the plaintiff recovering interest.
In my opinion, Comcare should be treated as if it was the judgment creditor and, in those circumstances, it was appropriate to award interest on the amount of special damages already paid.
I would not be prepared to interfere with the rate of interest applied by the Trial Judge. Section 30C provides that the rate of interest is to be calculated at a rate fixed by the court. The learned Trial Judge discriminated between those heads of damage which attract commercial interest rates and those heads of damage which do not include an interest rate for the fear and expectation of inflation.
I am not prepared to say that the application of a rate of 10 percent is outside the proper exercise of the Trial Judge’s discretion.
Lastly, it is complained that the Trial Judge applied interest over too long a period. As I have pointed out, he said that he allowed interest at 10 percent on the whole of the amount for the entire time. It is not clear to me what his Honour meant by the entire time but, as his judgment was 12 February 1999 and the special damages began to be incurred on 6 May 1991, it is likely that he has allowed interest on the whole of the amount since 6 May 1991.
If his Honour did allow interest on the whole amount for the period between 6 May 1991 and 10 November 1992 he would have over-compensated the plaintiff by about half of the amount of interest allowed during that period.
It is true as the defendants have pointed out, that the special damages would have accrued from time to time. In those circumstances, it would have been appropriate to allow interest on the special damages for half the period between 6 May 1991 and November 1992 and, thereafter, on the whole of the amount for the period between November 1992 and the date of judgment: Wheeler v Page & Harris (supra).
Having regard to the amount awarded for interest, it is likely that the Trial Judge has over-compensated the plaintiff by about $5,000.

Conclusion on Damages

In my opinion the defendants have demonstrated that the plaintiff was clearly overcompensated in respect of two heads of damages; viz loss of domestic services and Wilson v McLeay damages. The defendants have also established, in my opinion, that the other heads of damages are not underpinned by appropriate findings. Lastly, the defendants have established that the Judge erred in the award of interest.
If it was otherwise thought that the plaintiff had established negligence against both defendants, or either of them, and it was otherwise thought if both were negligent that it was appropriate not to discriminate between the defendants as to the damages for which they were liable, and the Trial Judge had not erred in refusing to allow Dr Perrett to be called and that therefore the verdict against both defendants could stand, in my opinion, this matter would have to go back for a re-trial on the question of damages.
As I have indicated the Trial Judge has made insufficient findings to allow this Court to be sure that the damages which have been assessed are appropriate.
However for the reasons I have already given, in my opinion, the appeal should be allowed because the plaintiff has failed to establish negligence against the defendants.

Overall Conclusions

I would make the following orders:
1. Appeal allowed.

2.The judgment entered for the plaintiff against the defendants on 12 February 1999 in the sum of $313,994 and the order for costs be set aside.

3.That the plaintiff’s claim against the defendants be dismissed.

4.That there be judgment for the defendants against the plaintiff.

The parties ought to be heard on the question of the costs of the trial and appeal. In this case there may be some argument as to who might be responsible for the costs: Vestris v Cashman (1998) 72 SASR 449; s 50(2) of the Safety, Rehabilitation and Compensation Act.
BLEBY J. I am indebted to Lander J for his exhaustive and thorough analysis of the evidence and of the trial Judge’s reasoning in relation to it. Naturally, one hesitates long before overturning a trial Judge’s findings based on the credibility of witnesses. However, in this case I believe, with great respect, that Lander J’s careful analysis of the trial Judge’s approach and of the trial Judge’s refusal to allow some critical evidence to be led, the analysis by Lander J of the radiological evidence that was led and how it relates to the critical opinion of Mr Morley cannot be faulted. I respectfully agree with it.
I also agree with his Honour’s observations on damages.
I agree with the orders proposed by Lander J.

[2000] SASC 331

24 October 2000