Hollier v Sutcliffe
[2010] NSWSC 279
•23 April 2010
CITATION: Hollier v Sutcliffe [2010] NSWSC 279 HEARING DATE(S): 16 - 24 November 2009
JUDGMENT DATE :
23 April 2010JUDGMENT OF: R A Hulme J DECISION: Verdict for the defendant. Plaintiff to pay the defendant's costs. CATCHWORDS: TORTS - medical negligence - essentials of action for negligence - duty of care - special relationships and duties - professsional persons - standard of care expected of General Practitioner pursuant to Section 5O of Civil Liability Act - TORTS - proof of negligence - weight and credibility of evidence - TORTS - reasonable foreseeability of damage - particular cases - affecting particular professions or occupations - application of Section 32 of the Civil Liability Act - TORTS - damage - causation - generally - application of Section 5D of the Civil Liability Act - PROCEDURE - nature and extent of principles expounded in Jones v Dunkel LEGISLATION CITED: Civil Liability Act 2002 CATEGORY: Principal judgment CASES CITED: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420
Bourhill v Young [1943] AC 92
Crump v Equine Nutrition Systems Pty Ltd t/as Horsepower, [2006] NSWSC 512
Crystal Wall Pty Ltd v Pham [2005] NSWCA 449
CSR Limited and Another v Thompson [2003] NSWCA 329; 59 NSWLR 77
Fabre v Arenales (1992) 27 NSWLR 437
Graham v Baker (1961) 106 CLR 340
Jones v Dunkel [1959] HCA; (1959) 101 CLR 298
Manly Council v Byrne [2004] NSWCA 123
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Miller v Galderisi [2009] NSWCA 353
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
O'Donnell v Reichard [1975] VR 916
Payne v Parker [1976] 1 NSWLR 191
Penrith City Council v Parks [2004] NSWCA 201
Purkess v Crittenden (1965) 114 CLR 164
State of New South Wales v Moss [2000] NSWCA 133
Sretenovic v Reed [2009] NSWCA 280
Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; 211 CLR 317
Thatcher v Charles (1961) 104 CLR 57
Tomisevic v Menzies Wagga Southern Pty Ltd [2005] NSWCA 178
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Wollongong Fabrications Pty Ltd v Ramsbottom [2006] NSWCA 279; 68 NSWLR 387
Woolworths Ltd v Lawlor [2004] NSWCA 209PARTIES: Samantha Hollier (Plaintiff)
Dr Rachel Sutcliffe (Defendant)FILE NUMBER(S): SC 20002/08 COUNSEL: Mr C Barry QC with Mr P Beale (Plaintiff)
Mr G Gregg (Defendant)SOLICITORS: CMC Lawyers
Sparke Helmore
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONR A Hulme J
20002/08 Samantha HOLLIER v Dr Rachel SUTCLIFFE23 April 2010
JUDGMENT
1 HIS HONOUR: The plaintiff claims damages for negligence against a doctor who inserted an Implanon contraceptive implant into her left upper arm on 16 October 2006. Generally it is asserted that the doctor incorrectly inserted the implant and then failed to take appropriate action as a consequence of this error. In very broad terms it is claimed that as a consequence the plaintiff has suffered significant and on-going physical and mental trauma.
The issues
2 There are a number of issues that have been raised for determination and they may be distilled as follows:
Was the Implanon implant incorrectly inserted thereby breaching the defendant’s duty of care owed to the plaintiff?
If so, was the breach of duty the cause of the plaintiff’s physical and mental trauma?
What is the measure of damages?Was there a duty of care in relation to mental harm (s 32 Civil Liability Act 2002)?
The parties
3 The plaintiff, Ms Samantha Hollier, is 37 years old and the youngest of her parents’ 5 children. She had 2 children, Grace and Nathan, in the course of a relationship in her early to mid 20’s. She commenced a relationship with her current partner, Mr Corey Parker, in 2000 and had 2 further children, Hope and Zachary.
4 Ms Hollier fell pregnant easily and apart from her 4 children she has had a number of miscarriages and terminations.
5 The family lived in Darwin from 2003 to 2005. Mr Parker was employed by the army. The family set up home at Wattle Grove in the south western suburbs of Sydney when he was transferred to Holsworthy in 2005.
6 The defendant, Dr Rachel Sutcliffe, is a general practitioner who lives in Britain. She qualified in medicine at the University of Cambridge in 1992 and then achieved by examination membership of the Royal College of General Practitioners. She obtained a diploma from the Royal College of Obstetricians and Gynaecologist in 1995 and a diploma in family health care in 1997, being re-certified in 2002 and 2007. Apart from one year spent in Australia she has otherwise practised as a general practitioner in Britain.
7 Dr Sutcliffe was a member of the British army reserve for about 12 years. She was a full-time medical officer in the army from 1997 to 2000 and has otherwise served as a part-time medical officer.
8 Dr Sutcliffe’s husband is also a doctor. He received a 12 month appointment to work in Sydney and she accompanied him. She was granted fellowship of the Royal College of Australian General Practitioners in December 2005 and from January 2006 to January 2007 she worked as a salaried general practitioner at the All Care Medical Centre at Hammondville.
Implanon
9 Implanon is a device described as a long-acting reversible contraceptive. It is a flexible plastic rod, 40mm long and 2mm in diameter, designed to be inserted just under the skin of the inside of the upper arm in the groove between the bicep and tricep muscles. It contains the progestogen etonogestrel that is designed to be slowly released.
10 Consumer information literature describes Implanon as ideal for women looking for a reversible, long-term solution to birth control that requires no daily action. It is designed to be effective for three years after which it is removed.
11 The literature indicates that the insertion procedure takes on average about one minute and the removal procedure about three minutes. Both procedures involve the use of local anaesthetic. No surgical incision is necessary. The rod is within a cannula that is inserted under the skin surface and then retracted, leaving the rod behind. The correct technique does not involve any pushing on the rod itself. Rather, the cannula is supposed to be introduced through the surface of the skin and then slid horizontally underneath the surface. Upon withdrawal of the cannula the rod is supposed to be palpable directly beneath the skin surface.
12 The removal procedure involves the doctor making a 2mm incision and then grasping and removing the rod with forceps. The correct technique on removal involves injecting local anaesthetic immediately beneath the tip of the rod so that the consequent swelling tends to force the tip upwards, making it easier for the doctor to grasp and remove it.
Was the Implanon rod incorrectly inserted?
Plaintiff’s evidence
13 Ms Hollier first had an Implanon inserted by a Dr Brendan Steele in Darwin six weeks after her youngest child was born in 2002. She said that she watched as Dr Steele inserted the device and that immediately after the procedure she could clearly see and feel it along its entire length under the surface of the skin. She experienced no pain, swelling or bruising and could continue to feel it up until the day it was removed at the beginning of 2005. She described the removal procedure as uneventful, there was no pulling or pressure, and “it just came out like a splinter”.
14 This first experience of Implanon by the plaintiff is relevant because the fact that she regarded the insertion and removal procedures as entirely uneventful is of significance as will later become apparent. It is also relevant to an issue as to precisely where in Ms Hollier’s arm Dr Sutcliffe inserted the implant.
15 Ms Hollier said that she subsequently used condoms for contraception but twice had to have pregnancies terminated. She attended the All Care Medical Centre on 25 September 2006 where she was seen by Dr Sutcliffe. She said that she asked about having a tubal ligation procedure but the doctor told her the waiting list was too long. She told the doctor of her previous experience with Implanon and the doctor suggested that she have another one. She said that Dr Sutcliffe explained “some information” to her about the product and gave her a prescription. She could not recall if she was given any paperwork.
16 Ms Hollier went to a pharmacy on Monday 16 October 2006 and filled the prescription she had been given for Implanon. She then attended an appointment with Dr Sutcliffe. She said a girlfriend, Kristy, accompanied her. There was a discussion with the doctor in the “treatment room” and she was then directed to the “procedure room”. (Ms Hollier used these descriptions of the rooms interchangeably. For clarity I will use the descriptions “consulting room” and “treatment room” that were used by Dr Sutcliffe in her evidence where it is clear which of the rooms Ms Hollier was referring to).
17 When Ms Hollier was in the treatment room a nurse carried out a urine test to ensure that she was not pregnant. Dr Sutcliffe then administered a local anaesthetic. A short time later she opened the Implanon packaging and then told Ms Hollier that the device was faulty and would have to be replaced. Ms Hollier was given another prescription and left the surgery with Kristy.
18 Ms Hollier returned to the pharmacy to obtain a second Implanon. She and Kristy had lunch. Dr Sutcliffe telephoned to inquire whether she was going to return. She and Kristy then went back to the surgery. She was asked in cross-examination whether this was at about 1.30pm and she said that “sounded familiar” (T83). They went straight into the treatment room. A nurse asked Ms Hollier to sit on a bed. Dr Sutcliffe came in and opened the package to check that the device was not broken. A second local anaesthetic had to be administered. When the area of her inner upper left arm had become numb Ms Hollier was asked to lay on the bed with her left arm out. She said Kristy was standing near her feet and the nurse was standing with a trolley. The nurse handed to Dr Sutcliffe what Ms Hollier thought was a scalpel but the doctor told her it was not required because, “she would just put it through where I had the previous one” (T33).
19 Ms Hollier said that she did not want to watch the procedure so she put her other arm up over her head. She said she, “could feel a pushing on my arm and I went, ‘oh’, and I looked and then I looked back away because I didn’t want to watch it”. She said, “It just seemed to take a long time compared to the first procedure that I had” and that she felt a pushing and stinging type of feeling (T33). She said it felt like someone had been pushing into her skin, like it was being squashed and pushed against the bed. The next thing that she could remember was Dr Sutcliffe saying that it was done and the pushing stopped. She saw Dr Sutcliffe examining her arm. The doctor said “it has to be in there because it’s not in the implement anymore” (T35). After the nurse cleaned the area of the arm the doctor tried but again said that she could not feel the rod. She asked Ms Hollier to try and feel it herself but she could not either. In cross-examination she agreed that it was possible that she had said, “I think I can feel it but I’m not sure”. She disagreed that Dr Sutcliffe had said that she could feel it (T84).
20 Ms Hollier said that she and Dr Sutcliffe then went to the (consulting room). The doctor proceeded to fill out the paperwork. She said that when the doctor got up to the part about whether the rod was palpable she tried once again to locate it and so too did Ms Hollier but they were both again unsuccessful (T35). Ms Hollier claimed that Dr Sutcliffe said that she would put a note on the paperwork to the effect that the rod was not palpable and they would check again the following day because it may have been due to swelling caused by the local anaesthetic. Dr Sutcliffe said, “I can’t find it but it has to be in there because it’s not in the Implanon product (sic, the cannula)” (T36).
21 The “paperwork” referred to was a Royal Australian College of General Practitioners “Patient Consent Form for the Insertion of Implanon” (“the RACGP form” - Exhibit 1). Part of it (the “Pre Insertion Section”) had been completed at the initial consultation on 25 September 2006. In the “Insertion Section” there is provision for the doctor to tick boxes beside a number of items that include, relevantly:
Implant present in cannula pre-insertion
I have followed the Manufacturer’s instructions on the correct method of insertion
Implant is palpable after insertion, orImplant no longer in cannula post-insertion
The implant is not palpable (management plan discussed with patient)
22 Dr Sutcliffe ticked all of the boxes except for the last item I have mentioned. In that area of the form she wrote, “not easily palpable review tomorrow”.
23 When asked about this in cross-examination, Ms Hollier said that she recalled Dr Sutcliffe saying that it was not easily palpable and that she would need to be reviewed the next day (T86). She maintained, however, that the doctor had spoken of coming back tomorrow and “we will see if we can locate the Implanon again” and that she had not said, “Come back tomorrow, we will see if you are more comfortable with identifying the rod” (T87). A little later, however, she agreed that Dr Sutcliffe said, “You will probably be able to feel it more easily when the swelling’s gone down a bit” (T90).
24 In cross-examination Ms Hollier agreed that a bandage was applied to the area of her arm where the Implanon had been inserted. It was suggested to her that this was a “pressure bandage”. She did not know if it was, but claimed that it was “one of the large Band-Aids” and indicated that it was bigger than a credit card in size. She agreed that it covered the area where the Implanon had been inserted (T112). She claimed that it was “not very thick” and that she could still feel underneath it (T113). She denied a proposition that the bandage was a gauze dressing over the insertion site with a 10 to 15 cm wide crepe bandage wrapped around her arm (T114).
25 Ms Hollier said that she then went home. Around dinner time she began to feel pain, at first a burning sensation with tightness and discomfort in her left arm, in the armpit region. She said the tightness was “all in that area and in the under arm”, “like it was getting squished, a tight type feeling” (T37). By the time she went to bed the area was “really tender and very blotchy and red”. She did not sleep well as the burning sensation in her left upper arm was getting worse. She said in cross-examination that the discomfort level out of 10 was “an 8 to a 10 initially”, that it persisted all night, and that it stressed her (T91). The swelling was in the left arm bicep and armpit region and she agreed with the suggestion that it was “grossly swollen or distorted” (T92).
26 The next morning she had swelling, bruising and lumps in her left armpit and bicep. She also had a “spasm type feeling” in her left leg (T38). The lumps were in the bicep, around the insertion area (T92). The spasms in her leg were like an electric shock accompanied by a burning sensation and they started behind the knee and progressed to the calf muscle and the back of the thigh (T93).
27 Ms Hollier said in cross-examination that in the morning she felt exhausted and in pain but did not want to believe that anything that she was experiencing was to do with the Implanon. This was because she did not want to be not covered by contraception (T93). She thought that perhaps she had strained herself or something and that it would just go away. She said, “I didn’t believe that any of the pain that I was feeling was related to the Implanon” and:
Q. Therefore in your mind you must have been concerned that there was some other cause of the pain and inconvenience that you were suffering then?Q. Are you telling his Honour that in your mind you believed it was nothing to do with the Implanon?
A. Yes, I thought that, yes
A. I didn’t know what it was (T94).
28 However, when she was confronted with what was obvious from the medical records, that is that she had not made any complaint of any of these symptoms when she returned to see Dr Sutcliffe – “No, I didn’t” – she gave this as the explanation:
Because I didn’t want her to say, “Okay, well, we have to remove the Implanon” (T95).
29 Asked about her earlier answer set out above, she said:
I knew within myself that there wasn’t anything else, but I didn’t want to believe that (T95).
30 She then ventured that she did say to Dr Sutcliffe that her leg was sore and she rubbed it but that was all she said about her leg. Dr Sutcliffe did not examine it. She added, “I may have mentioned my arm, I can’t recall if I did” (T96). Later she said that she did not say anything about pain or burning sensations in her left arm although she did tell the doctor about her arm being “lumpy” (T115).
31 In written submissions it was put that the plaintiff was desperate not to have the device removed and prepared to put up with the pain in the expectation that it would settle down and presumably this is why the symptoms, or full extent of them, were not reported to Dr Sutcliffe on the next day. However, this varies with the history provided by the plaintiff to Dr Phillips, psychiatrist, that on the next day she had “reported her various symptoms” to Dr Sutcliffe (Dr Phillips’ report of 1 July 2008 at page 2 (emphasis added)). The plaintiff provided a history to Dr Champion, rheumatologist, that she experienced and reported pain of moderate intensity during the insertion process and on the following day (Dr Champion’s report of 6 February 2008 at page 9).
32 Ms Hollier’s evidence was that during the consultation on Tuesday 17 October Dr Sutcliffe felt the area of the implant but said that she could still not locate the Implanon rod fully and explained that it was probably due to swelling from the procedure. Ms Hollier said that she could feel the tip of the rod. Ms Hollier claimed that Dr Sutcliffe said she should come back if she had any complications but also said that she was travelling to England that afternoon for two weeks to see her family. The consultation lasted five to ten minutes.
33 Ms Hollier was cross-examined about the portions of the RACGP form that was completed on 17 October. She agreed that she had signed the “Post Insertion Section” on that day. It contained four acknowledgements, one being, “I can feel the inserted implant”. She explained that she signed this because, “I didn’t want the Implanon removed” (T119). She agreed that either Dr Sutcliffe had read out the acknowledgements to her or that she had read them herself (T120).
34 Later that day the spasms in the left leg seemed to be getting worse. Ms Hollier said that there was swelling in both her arm and her leg and they felt heavy like they were being pulled down by a weight (T39). She said that she had felt a disturbed sensation in her left arm before seeing Dr Sutcliffe that day but thought that this was because of the local anaesthetic and that everything would be fine (T40).
35 Ms Hollier’s evidence was that these types of symptoms continued and worsened in the ensuing days. She said family members were telling her to go back to the doctor but she remained confident that everything would be alright. She did not want to believe that there was anything wrong with the Implanon because she did not want it removed (T41). In cross-examination she said that the area around the insertion site was red and yellow on 17 October and by 18 October it had started to blacken and the lumps were getting bigger (T117). She also said that her groin was swollen with pain that was “excruciating” (T121).
36 By Saturday 21 October 2006 the situation was considerably worse. She could hardly walk. At the insistence of her husband and mother-in-law she agreed to seek treatment. Her husband took her to the casualty ward at Liverpool hospital. She said that a nurse told her that there was a possibility of nerve damage and that the implant would have to be removed by a microsurgeon or else there could be paralysis. It was a nurse she had spoken with on the phone who had told her this (T124). In cross-examination she agreed that she had subsequently told a psychologist that a nurse had told her that she was perhaps having an allergic reaction (T122). After waiting at the hospital for about six hours without receiving attention she was exhausted and left some time after midnight (T42-43).
37 Within the medical records is a short report by Dr Robert Yap of the Liverpool GP After Hours Clinic to the effect that he saw Ms Hollier on 21 February 2006 and that she was complaining of pain in her left arm where the Implanon was inserted by her general practitioner six days before. It includes, “Sam has not felt the same in fact all left side is sore”. Dr Yap recorded that he told her to go to the Emergency Department for removal of the implant.
38 The next morning, Sunday 22 October 2006, Ms Hollier rang the All Care Medical Centre and made an appointment. Her husband took her. She saw a Dr Bui. She explained to him what had happened the previous night at the hospital and that she needed to have the Implanon removed. They went to the treatment room where she was given a local anaesthetic. She lay on the bed and was crying because she was in so much pain. She said the procedure took 10 to 15 minutes and involved a lot of pushing. She thought that Dr Bui was having difficulty locating the rod and it was hurting her. She said he had cut the skin with a scalpel and was “pushing around for the rod to come through on the surface of the skin”. She said, “I could see him pushing around and then he got the scalpel again and did another cut in the opposite direction and I just couldn’t watch from there” (T45).
39 Ms Hollier said that Dr Bui picked up some “tweezer type scissor things”. She did not watch but felt a scraping feeling. She said “I felt pushing again, but as soon as I was laying there and I was in pain, and then instantly it was like, oh, a relief. All the squeezing had been released and it was astounding how it just instantly was gone”. Dr Bui asked her how she felt and she replied that she felt much better. He told her that he had removed the rod. She looked at the rod in a kidney tray and saw that it was “bent in the shape of an L” (T45).
40 Dr Bui did not say much. He put some stitches in and told her to return the next day to have the dressing changed. Ms Hollier said that she still had a niggle of the burning feeling and the lumps were still present but the intensity of the pain had been relieved “drastically”. That night she was able to get some sleep although she still could not lay on her left side (T46).
41 Ms Hollier was asked in cross-examination about whether she told Dr Bui about the pain in her arm, shoulder and leg and said that she did (T130-131). She did not recall Dr Bui physically examining her and finding no symptoms (T131-132). I set out below the notes made by Dr Bui. Generally speaking they support Ms Hollier’s evidence in these respects.
42 Ms Hollier returned to the surgery to see Dr Bui but could not recall whether it was the following or a subsequent day (T46). She said she still had a burning sensation, tightness and lumps and that she told Dr Bui about them. The doctor’s notes make no mention of this. She returned on another day for a blood test and for a dressing change but she said that he was very rude and so she never went back to that surgery (T47).
43 Ms Hollier denied in cross-examination that she returned to see Dr Bui on Monday 23 October and told him that the pain was much improved (cf Dr Bui’s notes). She claimed that she had asked him at some stage for pain relief (T134-135). She recalled seeing him on the Wednesday and telling him that the pain was four out of ten, persistent and constant (T135). She denied that on the subsequent occasion when she saw Dr Bui in relation to a blood test that she had told him that the pain was resolving, that it had improved since the Wednesday (the notes indicate otherwise) and that Dr Bui had told her that there was nothing wrong with her (T136).
44 Ms Hollier’s evidence was that her condition deteriorated. She gave lengthy evidence in chief describing the symptoms and the variety of doctors she consulted and tests that were carried out. It is unnecessary to explore this evidence further at this point.
Evidence of Mr Corey Parker
45 Mr Parker is the plaintiff’s partner. He recalled her coming home after having had the Implanon insertion and that she was complaining of pain in her left arm. He observed redness and swelling on the arm. He said she became progressively worse until he went with her to the hospital on the Saturday. He said that she could not lift her arm or walk properly. There were lumps in the bicep area of her left arm (T168-169). He recalled that a Dr Yap at the hospital had said that the Implanon needed to be removed straightaway (T169).
46 Mr Parker accompanied Ms Hollier when she saw Dr Bui on the Sunday. He observed the removal procedure. He said that Dr Bui made an incision and then used forceps but could not locate the rod. He then made a second and larger incision. He said, “the entire head of the scalpel was inside her arm”. He then inserted “a good inch, inch and a half of the head of the forceps” and it took “probably 3, maybe 4 minutes” before the doctor located the rod. He described the doctor having to use some force to remove it (T170). It was like it was caught on something, it did not come out easily (T176). The doctor was using a pulling or tugging motion. It did not come out the first time but came out the second time (T178). The doctor was holding the rod by the tip with forceps (T175). Ms Hollier immediately said that she felt relief. (T170).
47 Mr Parker noticed that the rod was bent at a 90 degree angle after it was removed. Dr Bui put it into a tray and left the room. Mr Parker picked the tray up and showed Ms Hollier (T170).
Evidence of Ms Patricia Parker
48 Ms Parker is Corey Parker’s mother. She lived in Victoria but arrived for a visit on the Friday after Ms Hollier had the Implanon inserted. Ms Hollier said that there was nothing wrong but Ms Parker suspected otherwise and pressed her. Ms Hollier then told her about the implant and of being in pain. Ms Parker observed that the area of the insertion site was “hot, red and there was a bit of swelling”. It was worse the following day and she insisted that her son take Ms Hollier to the hospital. They agreed. They did not return until after midnight and were distressed (T181).
49 When Ms Hollier returned from the medical centre the next day she said “it was better but not good”. For the balance of the two weeks of Ms Parker’s visit she said that Ms Hollier’s pain gradually improved but was not gone. She said that Ms Hollier was not using the arm as freely as she should have and that she was very tired (T182). She also recalled her complaining that her left leg was numb (T183). In cross-examination she said that Ms Hollier was complaining of pain down the entire length of her left side (T185) although she could not recall a complaint of pain in the left leg (T186).
Medical records in relation to Dr Bui’s treatment
50 Dr Bui was not called to give evidence. The following emerges from his records.
Sunday 22 October 2006:
Presentation: complaining of pain affecting left arm, shoulder and left leg – constant – worse when press on implant.
Management: removal under local anaesthesia – patient reported pain resolves completely and instantly – no residual neurological signs or symptoms.On examination: tender, increase on pressing – palpable implant.
Monday 23 October 2006:
Presentation: pain is much improved (2/10 instead 9/10).
Actions: prescription for Tramadol hydrochloride.Reason for visit: analgesic prescription.
Wednesday 25 October 2006:
Presentation: pain, dull, aching in left arm, left leg, left body (4/10) persist and constant.
Examination: a neurological examination was carried out.
Reason for visit: analgesic prescription.
Review: review in 2 days and refer neurologist.Actions: pathology requested – prescription for Celebrex.
Friday 27 October 2006:
Management: pathology result discussed.Presentation: pain is resolving
Defendant’s evidence
51 I have already referred to the evidence of Dr Sutcliffe’s training and experience as a general practitioner.
52 Dr Sutcliffe underwent a training course in May 2006 concerning the use of Implanon, its insertion and removal. Prior to the insertion of the Implanon rod in the plaintiff on 16 October 2006 she had the experience of inserting two Implanon rods into dummy arms during training and seven in real patients.
53 She recalled her first consultation with Ms Hollier on 25 September 2006. There was discussion, inter alia, about Ms Hollier wanting reliable contraception and about the use of an Implanon device. Dr Sutcliffe completed the doctor’s checklist and the patient consent portions of the “Pre Insertion Section” of the RACGP form and gave it to Ms Hollier together with a document with consumer medical information and a booklet, “Implanon and You”.
54 Dr Sutcliffe said she recalled that Ms Hollier returned on 16 October 2006. They spoke first in her consulting room. They then proceeded to the treatment room. A urine pregnancy test was carried out with a negative result. An injection of 2ml of local anaesthetic was given. Dr Sutcliffe commenced the insertion procedure but quickly realised that the Implanon obturator mechanism was broken. She instructed Ms Hollier to return to the pharmacy to obtain a replacement. This all occurred between 10.30am and 11.00am.
55 Ms Hollier left and had not returned by the time Dr Sutcliffe finished her morning surgery at 1.00pm. Dr Sutcliffe was due to commence afternoon surgery at 2.00pm. She rang Ms Hollier who said she was on her way back. She arrived at about 1.30pm and they went straight back to the treatment room.
56 Dr Sutcliffe found it necessary to administer a further 2ml of local anaesthetic. She then proceeded to carry out the insertion procedure. What she described accorded with the manufacturer’s approved method. In describing the procedure in detail in her evidence in chief Dr Sutcliffe sometimes spoke in terms of what she did on this occasion – for example, “Using my left hand I stretched the skin” (T260.27) - and sometimes in terms of what is done generally – for example, “You insert the tip of the device just under the skin” (T261.32). This gave rise to a contention that she was not giving evidence of an actual recollection but merely stating what the correct procedure was. She did, however, say that the procedure she described was the procedure she carried out with Ms Hollier (T263.25).
57 Dr Sutcliffe had confirmed immediately before the procedure that there was a rod in the cannula. Immediately upon completion of the procedure she stepped away from Ms Hollier and looked at the cannula to visually verify that the rod was no longer present. She announced aloud something to this effect. She said that this was part of her training.
58 Dr Sutcliffe then put the insertion apparatus on the trolley and returned to Ms Hollier. She placed a gauze on the insertion site which was bleeding slightly. She then felt the Implanon. She said she had to apply more pressure with her fingertips than is usual to feel it. She asked Ms Hollier to feel it but said to her, “I suspect that this is more difficult to feel than is usually the case because I’ve had to use two volumes of local anaesthetic”. She claimed that Ms Hollier said, “I think I can feel it, but not easily” (T267).
59 A sterostrip bandage was placed over the insertion site, an adhesive dressing about 6cm x 7cm was applied over that, and then a 12cm wide crepe pressure bandage was wrapped around the arm about five or six times. The latter was applied with a view to minimising bruising. The nurse applied this. Dr Sutcliffe could not recall seeing her do so, but she knew it was done because she could recall removing it the next day. Dr Sutcliffe said that it is impossible to feel an Implanon underneath such bandaging.
60 Dr Sutcliffe said that the RACGP form was completed in the treatment room. I have earlier referred to the doctor writing “not easily palpable review tomorrow” in lieu of ticking a box to indicate whether the Implanon was palpable or not palpable. She said that she and Ms Hollier agreed that the implant could be felt, but not easily. Ms Hollier had said, “I think I can feel it” but Dr Sutcliffe could tell that she was not sure. It was for this reason that she asked Ms Hollier to make an appointment for the following day.
61 Dr Sutcliffe made an entry in the Ms Hollier’s computerised file which included:
2ml lidocaine 2% with adrenaline. Uncomplicated procedure, implanon inserted subdermally but not easily palpable post insertion. Implant no longer in canula post insertion. See again mane (sic) for review, although both patient and myself think we can feel it, it is no (sic) easily palpable (likely related to local anaesthetic and subcutaneous swelling associated with use.First implanon brought by patient – fault obturator so patient returned to pharmacy and brought a second implanon.
62 Ms Hollier returned on 17 October. Dr Sutcliffe asked her how she was and the reply was, “fine”. The pressure and other bandages, but not the sterostrip, were removed. Dr Sutcliffe said that she could now feel the Implanon easily. “It felt entirely as it should have felt. And I felt it along its entire length” (T274.27). She noted some residual swelling and bruising, being what would be expected after a normal insertion procedure.
63 Dr Sutcliffe said that she asked Ms Hollier to feel the device and that when Ms Hollier felt her arm she said, “I can feel it”. It was a “fairly short” consultation. Dr Sutcliffe recalled there was some conversation about England where she was from. She denied that she told Ms Hollier that she was travelling to England that evening. She had the impression that Ms Hollier was very happy. The post insertion section of the RACGP form was completed. This included Ms Hollier signing an acknowledgment of a number of matters including, “I can feel the inserted implant”. It also included Dr Sutcliffe writing “easily palpable 17.10.06”.
64 Dr Sutcliffe’s notes of the consultation of 17 October 2006 were:
Planned review
Reinforced advice CMI – review in 3/12 then annually. RACGP form completed.Implanon easily palapble (sic) by patient and myself today. In place and felt along entire length. She has some residual bruising and swelling post insertion – advised should settle over next 7/7.
65 Dr Sutcliffe’s recollection was that Ms Hollier made no complaint of pain or of any other side effect. She did not see or feel any lumps when she felt around the site. If any such complaint had been made she would have carried out a physical examination and made a note in the records.
66 Dr Sutcliffe was at work on Wednesday 18 and Thursday 19 October but did not hear anything from Ms Hollier. She was on leave (for an unspecified period) from Friday 20 October. The next the doctor heard about Ms Hollier was when she received a letter from CMC Lawyers in December 2006. It was a pro forma letter referring to an “accident” on 16 October 2006 and sought a report from the doctor and a copy of the records. Dr Sutcliffe accessed Ms Hollier’s file and saw that Dr Bui had removed the Implanon on 22 October 2006. That was the first she had known of this.
67 Dr Sutcliffe telephoned the plaintiff for the purpose of confirming that the “accident” related to the Implanon insertion and that she consented to the release of the records. Dr Sutcliffe and Ms Hollier each gave evidence about the content of the conversation that was had but in my view nothing of significance turns on it.
68 Dr Sutcliffe denied in cross-examination that she had no recollection of the insertion procedure with Ms Hollier because she had no reason to think about it between 16 October 2006 and when she received the solicitors’ letter in December 2006 (T340).
69 At the time of giving her evidence last November she had inserted a total of 23 Implanon rods. She agreed that there were a number of matters relating to Ms Hollier that were unique. It was the only occasion when the device was found to be faulty and the patient had to obtain a replacement; when it had been necessary to administer two doses of local anaesthetic; and when she had recorded that she had regarded the implant as “not easily palpable”. There were two other occasions when she had recorded that the implant was not easily palpable by the patient and that the patient was to return for review the following day (T341).
70 Ms Hollier was also the first patient in which she inserted an Implanon with that patient having previously had an implant. There were two subsequent patients for which she had removed an implant and inserted a new one (T344).
71 Dr Sutcliffe said that her usual procedure was to use a ruler to identify the correct insertion point and to mark that point by a small dot made with a marker pen. She was shown a photograph of Ms Hollier’s left upper arm and it was suggested to her that there was no sign of a marker pen having been used. It was suggested that this was because she had inserted the implant through the scar from the previous insertion/removal, a procedure that would involve the exertion of a greater degree of force. She denied these suggestions. Indeed, the first suggestion was invalid. The photograph (Exhibit F) was taken 4 to 5 days after Dr Bui had removed the Implanon, thus 10 to 11 days after the insertion procedure (T345 – 347). Moreover, in re-examination Dr Sutcliffe explained that after the insertion procedure the plaintiff’s arm was cleaned with an alcohol based specialised skin cleanser and a sterostrip applied. The sterostrip would fall off in three to four days when normal bathing of the arm would resume (T420). Further, she expected that Dr Bui would have cleansed the site before and after the removal procedure (T421). In these circumstances the absence of any sign of the marker pen in the photograph is hardly surprising.
72 Dr Sutcliffe was taken to the evidence of Ms Hollier about her having felt her arm being squashed against the bed during the insertion procedure and she agreed that this could not possibly be true if she had conducted the procedure as she had described (T350; T353). She did not recall Ms Hollier uttering anything during the course of the procedure that indicated that she was experiencing pain (T351).
73 Dr Sutcliffe said in her evidence in chief that she was by nature “a quite didactic, methodical person”. She agreed that by this she meant that she was “someone who is very pedantic and very careful about everything” (T356). She believed that she kept adequate and comprehensive clinical records (T357). However, she conceded that her notes of the procedure with Ms Hollier on 16 October 2006 were deficient. She said that she must have completed the entire record of what occurred on 16 October after the second visit by Ms Hollier. It was getting close to her afternoon surgery commencing at 2.00pm. She conceded that there were spelling errors and she omitted mention of the first dose of local anaesthetic (T369-370). She was then asked this triple-component question:
Q. And the reason why you were in a hurry is because you had a clinic all afternoon and you were fitting this patient in at short notice, correct?
A. That’s correct (T370).
74 She then agreed that the procedure had been carried out in her lunch hour and denied that she was in a hurry or was flustered. She agreed that the deficiency in her records could have been because she was pressed for time (T372).
75 She was taken back to the above question in re-examination and asked about each of the three components. She said that (a) she was not in a hurry; (b) she had afternoon surgery all afternoon; and (c) she had fitted Ms Hollier in during the lunch hour when she wasn’t doing anything else. Ms Hollier had returned at about 1.30pm. (T424-425). She had also said in cross-examination that rather than being pressed for time, arguably, she had more time than usual given that she saw Ms Hollier during the lunch hour (T378).
76 Dr Sutcliffe denied that she had used the scar from the previous insertion through which to insert the implant (T377). If she was satisfied that the scar was in the correct location, she would make the insertion just to the edge of the scar (T379). Inserting it through an existing scar would be more difficult because the scar tissue has a harder physical structure – “Which is why we tend never to do it”. She imagined that if the implant was inserted through a scar the doctor would have to push a lot harder and it would be more difficult perhaps to get the needle in the right position immediately after insertion (T381).
77 She agreed that over time the Implanon becomes encapsulated in fibrous tissue but disagreed that this was a reason to avoid a previous insertion site. She said that she was trained to use the same insertion site if removing an implant and replacing it with another (T382).
78 Dr Sutcliffe denied that if she experienced some difficulty during an insertion that she would try and get around it somehow. She said that she would find that very concerning and would stop rather than “to simply try and push” (T383).
79 She denied that when she received the solicitors’ letter in December it crossed her mind that it was possible that she had inserted the implant too deeply (T386). She did, however, think after seeing in the records that it had been removed six days later that something must have gone wrong (T387).
80 Senior counsel for the plaintiff took the doctor to her notes of 16 October 2006 in which she had typed, “although both patient and myself think we can feel it, it is no easily palpable”. She agreed that “no” should be “not”. She agreed that in ordinary usage, “think” conveys a notion of uncertainty. She denied, however, that she was conveying by her note that she was unsure whether she could feel the implant in place (T387-388).
81 Dr Sutcliffe was cross-examined about her method of expressing herself when describing in her evidence in chief the insertion procedure. She claimed that she was probably speaking in general terms because she adopted the same practice with Ms Hollier as she did with all other patients. She claimed to have a very good recollection of the procedure with Ms Hollier, “primarily because of the unusual facts of her case”, they being the first device being faulty, the time it took for Ms Hollier to return to the surgery and that the implant was not easily palpable after insertion” (T391).
82 She denied that when the implant could not be felt in the treatment room she asked Ms Hollier to come to the consulting room both to do the paperwork and to try again to locate it. Her reason for denying this was that it was important to dress the wound by putting the pressure bandage on it straightaway, and that this was something that was done by the nurse who was assisting with the procedure (T398). If she had tried to palpate the implant in the consulting room, as Ms Hollier had said, it would have been impossible because of the bandage having been applied (T400).
83 Dr Sutcliffe insisted that she could easily feel the implant when Ms Hollier returned on 17 October. She did not have to use any more pressure than usual - “I was very happy that it was normally and easily palpable. I’ve gone to the length of writing that it was easily palpable” (T401 - 402).
84 Dr Sutcliffe agreed that a patient should not get burning pain in the arm from a properly inserted Implanon rod and that burning pain and feelings of an electric shock are possible indications of nerve involvement (T408, 410). She was taken to the notes made by Dr Bui to the effect that the pain was worse when the implant was pressed. She agreed that this would indicate an association between the implant and the pain (T413), although she would not draw an inference that the implant was resting or sitting on anything in particular (T414).
85 She agreed that the observation by Ms Parker of heat, redness and swelling some days after the insertion was not consistent with a properly inserted implant, unless perhaps there was some infection (T417).
86 It was suggested to Dr Sutcliffe that the notes made by Dr Bui, the observations made by Ms Parker, and the plaintiff’s complaint about pain and burning were all inconsistent with the correct insertion of an Implanon implant. She replied, “Yes. It doesn’t sound like the normal sequelae in the week after the insertion of a non-complicated insertion of a Implanon device” (T418).
87 Dr Sutcliffe was asked questions in re-examination about the prospect of Ms Hollier feeling her arm being pushed or squashed against the bed. She explained that the procedure involved the plaintiff lying on a bed with her back elevated at about 45 degrees and with her left arm out to her side with a pillow under the upper arm. She said that no part of the procedure involved her applying force to the arm so as to force it into the pillow or the bed (T426-427).
Plaintiff’s evidence in reply
88 Ms Hollier was called to give evidence in a case in reply. She said that she had three scars in her left upper arm from the insertion by Dr Steele, the insertion by Dr Sutcliffe and the surgery performed by Dr Bui (T433). Two were visible, they being from the latter two procedures. She was provided with a ruler and gave evidence that the scar made by Dr Sutcliffe’s insertion was three centimetres from the elbow crease (T434-435). This is in contrast to Dr Sutcliffe’s evidence that the insertion was seven centimetres, the midpoint of the required six to eight centimetres, from the elbow crease.
89 Ms Hollier was asked to take another measurement, this time from the midpoint of the elbow crease, and she said that it was five centimetres (T436).
90 I do not think there is anything meaningful in this evidence. Ms Hollier said she weighed 73 kg in October 2006 and at the time of giving evidence was about 100 kg. I am unable to confidently draw any conclusions about changes that would result from such weight gain. It seems well possible that they would include changes to skin elasticity and she agreed with the proposition that her body shape had changed and the shape of her arm had changed (T439).
91 Ms Hollier disagreed with Dr Sutcliffe’s evidence about how she was positioned on the bed during the insertion procedure. She claimed that she was lying flat on the bed and that she did not believe there was a pillow under her arm (T441).
Liability experts
92 Doctors Linda Mann, Robert Morton and Martine Walker gave concurrent evidence. Their evidence was, generally, to the effect that if the insertion procedure was carried out as Dr Sutcliffe described then it was entirely in accordance with competent professional practice (see s 5O of the Civil Liability Act 2002).
93 If the procedure occurred as Ms Hollier claimed, the doctors were unanimous that Dr Sutcliffe had used an incorrect technique of pushing the obturator so as to push the implant out of the cannula, rather than withdrawing the obturator that would act to withdraw the cannula and leave the implant behind. They were also unanimously of the view that thereafter the doctor had failed to image the site with ultrasound in order to locate and remove the implant and had failed to put in place an appropriate management plan. Drs Mann and Morton were also of the opinion that Dr Sutcliffe had used excessive force when inserting the Implanon. Dr Morton alone was of the opinion that Dr Sutcliffe had failed to undertake further investigation following the procedure.
94 It is clear then that determination of whether the defendant was in breach of her duty of care turns upon whose version as between Ms Hollier and Dr Sutcliffe is accepted.
95 The doctors agreed that there may be pain in the nature of discomfort associated with the procedure but if the correct procedure is used there should not be significant pain (T289-290).
96 Pain should not be experienced during the procedure because of the application of local anaesthetic but the patient may well experience sensations of pushing and pulling (T291).
97 There was some discussion about the possible reasons for the implant not being easily palpable immediately following insertion. It was considered that the use of two doses of local anaesthetic was a possible explanation. Indeed, that is the effect of the contemporaneous note made by Dr Sutcliffe immediately after the insertion procedure. The evidence of the liability experts gives plausibility to the “likely” explanation the doctor recorded.
98 The doctors were asked about the apparent difficulty Dr Bui experienced in locating the implant and removing it. There is no evidence as to whether Dr Bui had received any training in this procedure and Dr Bui was not called to give evidence himself. It was possible that the difficulty emanated from the fact that the implant had been inserted too deeply but it is also possible that it was because he used an inappropriate technique. Junior counsel for the plaintiff put it that “a trained ape can pull a little rod out” but the doctors unanimously and emphatically disagreed. Indeed, Dr Walker ventured that most doctors would be of the view that removal is probably more difficult than insertion (T317-318).
99 Dr Bui’s note – “palpable implant” – was interpreted as meaning either that he could feel the entire length of the implant or that he felt some part of it, the doctors could not say which (T318).
100 None of the doctors could understand why Dr Bui made two incisions with a scalpel at right angles to each other, either in the context of minor surgery in general practice or in the context of correct Implanon removal procedure (T319). This tends to suggest a lack of familiarity with the correct procedure.
101 As to the implant being seen to be bent into an L shape after removal, none of the doctors could give an unequivocal opinion as to whether this was a result of the manner of insertion or the manner of removal (T320 – 324). As a result of this, senior counsel for the plaintiff acknowledged in closing submissions that I would be unable to come to a conclusion as to whether, if the implant was bent, it was a result of the insertion technique as opposed to the removal technique (T479-480). The issue can be put aside.
102 The doctors generally agreed that if the plaintiff felt immediate relief upon removal of the implant (as she had said) the most likely explanation was that it had been abutting some structure that it was hurting (T324 – 325). If, however, the implant had been making contact with a structure which caused pain, none of the doctors would expect that to be the cause of irritation such as redness or swelling or lumps (T331).
103 At the conclusion of their concurrent evidence, the doctors each agreed that they had given evidence only from a biomedical perspective and had not given consideration to psychological or psychosocial components of the plaintiff’s history (T334).
Consideration
104 On the face of it this might be seen as a simple case. The defendant performed a procedure which was almost immediately followed by the plaintiff experiencing pain and other symptoms. The procedure must have been faulty and obviously the cause of those symptoms. I gained the distinct impression from submissions made on behalf of the plaintiff that it was contended that I should find it easy to reach this conclusion for that simple reason. However, upon my analysis of the evidence, particularly having regard to expert evidence which I will mention at the conclusion of this section, the conclusion for which the plaintiff contends is not so self evident.
105 The plaintiff’s case is to the following effect. It was accepted that Dr Sutcliffe had undergone the training in the insertion and removal of Implanon implants as she claimed and that she had the experience about which she gave evidence.
106 Despite that training and experience Dr Sutcliffe made a number of significant mistakes in the procedure carried out upon Ms Hollier on 16 October 2006. She did not take a measurement from the elbow crease to determine the correct point at which to make the insertion. Instead, she simply decided to make the insertion through the scar where the previous Implanon had been inserted. She did this with the knowledge that inserting the device through scar tissue would be more difficult and require more force.
107 Despite her training and experience Dr Sutcliffe may have used a technique that placed the implant in position with a pushing or injecting motion rather than by insertion and withdrawal of the cannula which would simply leave the rod behind. Reliance was placed upon evidence such as Ms Hollier claiming that she felt pain and a pushing sensation with her upper arm being pressed against the bed.
108 Dr Sutcliffe was aware of the importance of ensuring that the implant was palpable along its entire length to confirm correct placement. When she tried to palpate the device she could not feel it at all but assumed it had been implanted because it was no longer in the cannula. She attributed the inability to feel the implant to swelling caused by the local anaesthetic and asked Ms Hollier to return the following day. Dr Sutcliffe made notes both on the computer and on the RACGP form which were either ambiguous or misleading or both. A bandage that was a credit card size Band-aid style, thin enough for Ms Hollier to be able to feel the skin beneath, was applied, in lieu of the correct procedure of applying a pressure bandage to minimise swelling and bruising.
109 When Ms Hollier returned to the surgery on 17 October 2006 her left upper arm and armpit were swollen and had bruises and lumps. The area was “really tender and very blotchy and red”. It was “grossly swollen and distorted”. Dr Sutcliffe failed to notice any of these symptoms, even when palpating the insertion site. Ms Hollier told Dr Sutcliffe that her leg was sore but the doctor did not examine it. Ms Hollier also told the doctor that her arm was “lumpy” but the doctor apparently did nothing in response.
110 Dr Sutcliffe could not locate the implant fully but did nothing other than to tell Ms Hollier to return if there were any complications. Ms Hollier then signed an acknowledgment on the RACGP form that she could feel the inserted implant, notwithstanding she could only feel the tip of it and from past experience she knew that she should be able to feel the entirety of it. Dr Sutcliffe wrote on the form that it was “easily palpable” notwithstanding she knew that this was not the truth.
111 The foregoing is the tenor and effect of the plaintiff’s case. It is one that is difficult to accept.
112 Dr Sutcliffe presented as a most careful witness. She was impressive in her recollection of detail. I am not persuaded that she gave evidence of what she usually did as opposed to what she in fact did. Senior counsel for the plaintiff took pains to establish a number of reasons why the procedure involving Ms Hollier was unique in the doctor’s experience. Rather than those matters being indicative of something having gone wrong, I regard them as providing a greater reason for Dr Sutcliffe to remember the particular procedure. She might not have remembered the patient’s name when she received the solicitor’s letter in December 2006 but that does not mean, as was contended on behalf of the plaintiff, that she could not remember the procedure.
113 Dr Sutcliffe’s evidence was supported by contemporaneous notes. Those notes support her version of events and do not support the plaintiff’s version. Submissions made about the precise meaning of “not easily palpable” and “although both patient and myself think we can feel it, it is no (sic) easily palpable” do not advance the plaintiff’s case. They are entirely consistent with the defendant’s version and they are entirely inconsistent with the plaintiff’s version. If the implant was not palpable at all, as Ms Hollier claimed, then the notes are inexplicable. I am not persuaded that the doctor deliberately wrote notes that were false.
114 Dr Sutcliffe was prepared to make concessions during the course of cross-examination. For example, as I have noted, she conceded that there were deficiencies in her notes. She conceded that this might have been because she was pressed for time. There was also the concession in her evidence extracted above (T418). Further, Dr Sutcliffe did not give the impression in the manner and content of her evidence that she was going out of her way to defend a position or to defend her reputation.
115 On matters of material significance the evidence of the defendant was consistent within itself and consistent with objective independent evidence. On the other hand, the evidence of the plaintiff was both internally and externally inconsistent in a number of respects.
116 Ms Hollier claimed that the doctor said that she could not feel the implant on 16 October but in cross-examination she said that the doctor said that it was “not easily palpable”.
117 She claimed that she could not feel the implant herself on 16 October but in cross-examination she agreed that the doctor had said to her, “You will probably be able to feel it more easily when the swelling’s gone down a bit”. That is consistent with Dr Sutcliffe’s evidence that Ms Hollier had said, “I think I can feel it, but not easily”.
118 There is further similar inconsistency in the history that Ms Hollier provided to authors of reports that are in evidence. Dr A.P. McClure, psychiatrist, reported that on 28 November 2007 Ms Hollier provided a history that included, “After the procedure, neither Ms Hollier, Dr Sutcliffe, nor the nurse was able to palpate more than ‘just the tip’ of the ‘Implanon’” (Exhibit J, tab 3, page 3). She is reported to have told Dr Champion three weeks later, on 19 December 2007, that, “she could not feel it and neither could Dr Sutcliffe” (Dr Champion’s report of 6 February 2008 at page 2).
119 Ms Hollier at first said that she did not tell Dr Sutcliffe about any of her symptoms on 17 October. She said that her reason for not telling the doctor anything about the symptoms was because she did not want the doctor to remove the Implanon. When pressed in relation to this she claimed that she had in fact said that her leg was sore and that she rubbed it but that the doctor did nothing. She then added that she may have mentioned her arm but she was not sure. When the cross-examination resumed on the next day of the hearing she added a claim that she told the doctor that her arm was lumpy. There is also the contrast between the evidence given by Ms Hollier and the history that she gave to Drs Phillips and Champion that I referred to earlier.
120 I accept that Ms Hollier perceived that she was experiencing pain from a variety of symptoms but there is a question as to whether they arose as quickly as she claimed. I am satisfied that she made no complaint to Dr Sutcliffe on the day after the insertion procedure and this tends to indicate that the perceived pain from these symptoms had not arisen to any significant extent in that period. The progression of the plaintiff’s evidence from no complaint, to a complaint about her leg, then a possible complaint about her arm, and then a complaint about her arm being lumpy raises a question about her credibility. Dr Sutcliffe’s evidence, which was that Ms Hollier made no complaint and gave the impression that she was happy, is more acceptable.
121 There is also a contrast between the plaintiff’s evidence and what is included in the statement of claim. There it is asserted that on 17 October 2006 “the plaintiff advised the defendant that she was experiencing significant pain in her left arm and had a burning sensation in her left arm where the Implanon implant was supposed to be situated”. It continues, “the defendant advised the plaintiff that the pain and burning sensation was due to swelling and the anaesthetic and that if it worsened she should return to the surgery”. This is clearly in conflict with the plaintiff’s evidence which included no assertion that she complained of “significant pain in her left arm and had a burning sensation” in that arm.
122 There are further inconsistencies.
123 Ms Hollier said that a nurse told her on 21 October that there was a possibility of nerve damage but in cross-examination she agreed that she had told a psychologist that a nurse had told her that she was possibly experiencing an allergic reaction.
124 Ms Hollier denied that she returned to see Dr Bui on Monday 23 October and told him that the pain was much improved. However, Dr Bui’s notes record, “pain is much improved”. She denied that on the last occasion she saw Dr Bui that she had told him that the pain was resolving. Dr Bui’s notes record, “pain is resolving”.
125 There were some other aspects of Ms Hollier’s version which I found difficult to accept. Her evidence about the nature of the bandage that was applied on 16 October is one example. Another is her claim that she exhibited a variety of symptoms on 17 October which would have been readily apparent to anyone, medically trained or not. However, Dr Sutcliffe, apparently, completely failed to detect any of them after both looking at and palpating her arm.
126 The symptoms Ms Hollier claimed to have experienced included swelling to her arm and her groin and lumps in her left arm and armpit. She also said the area around the insertion site was red and yellow on 17 October but by 18 October it had started to blacken. There is a note by a triage nurse in the Liverpool Hospital Emergency Department Clinical Record that there were subcutaneous nodules. There is no other notes of swelling or lumps or discolouration in that record, or the record of the after hours GP, or the notes of Dr Bui.
127 I am not of the view that the evidence of Ms Hollier which had the effect of suggesting that the insertion technique used by Dr Sutcliffe was incorrect resulting in the implant being placed too deeply receives support from the observations made by her partner, Mr Parker, of the manner in which Dr Bui removed the implant.
128 Mr Parker’s evidence included the claim that he observed, “the entire head of the scalpel was inside her arm” and that Dr Bui inserted “a good inch, inch and a half of the head of the forceps” into the arm. These were obvious exaggerations.
129 Mr Parker sought to draw conclusions about the force that the doctor was using and it was his view that the doctor was experiencing some difficulty in first locating the implant and then in removing it. It was not suggested that Mr Parker had any medical training. Dr Bui’s notes include “palpable implant” and so it is difficult to understand why he would have any difficulty in locating it. Doubts were expressed during the course of the concurrent evidence of the liability experts about the skill, training and experience that Dr Bui may have had in the removal of Implanon implants but the evidence of the technique he used was largely restricted to the description given by Mr Parker. The only other matter shedding light upon his skill was the use of two right-angled incisions, a technique the liability experts found somewhat baffling. If Dr Bui did experience difficulty in removing the implant I am not prepared to conclude for this reason that the insertion was faulty.
130 Mr Parker’s evidence about what Dr Bui did to remove the implant was not supported by Ms Hollier because she said that she did not look at what Dr Bui was doing. It was also not supported by any evidence by Dr Bui, a topic to which I shall return shortly.
131 Ms Hollier’s evidence about experiencing the various painful symptoms in the days following the implantation was supported by Mr Parker and his mother. I accept that Ms Hollier did perceive that she was experiencing at least some of those symptoms, although I am doubtful that they arose as soon after the procedure as she claimed. The lack of complaint to Dr Sutcliffe on 17 October is not credibly explained, as I have mentioned. Mr Parker’s evidence was not precise as to what he perceived in the 24 hours or so after the procedure had been performed. His evidence was more in the nature of a rolled up general description of what he perceived between 16 October and the attendance at Liverpool hospital on 21 October. Ms Parker did not arrive in Sydney until 20 October.
132 An attempt was made to characterise as “false” the assertion in Dr Sutcliffe’s report to the solicitors in December 2006 that the procedure was “uncomplicated”. It was contended that the doctor’s own account of the procedure did not justify that description. There is nothing in this. Dr Sutcliffe described the implant as being not easily palpable on the day of insertion but easily palpable the day after. I do not see any significance in her describing the procedure as “uncomplicated” for that reason.
133 Another matter that tends to undermine the force of the plaintiff’s case is that her evidence, theoretically at least, was capable of confirmation by testimony of others who were not called as witnesses. In this regard I am referring to Ms Hollier’s girlfriend, Kristy, the medical centre nurse and Dr Bui. There was no attempt to explain the absence of evidence from any of these three potential witnesses.
134 On Ms Hollier’s account, Kristy and the nurse would likely have been in a position to confirm her evidence about the insertion procedure and the bandage applied afterwards. They may have confirmed her account of crying out in pain during the procedure. Kristy might also have been in a position to confirm Ms Hollier’s evidence about what occurred in the consulting room afterwards. More significant, however, is the absence of evidence from Dr Bui. He was a medically trained person who could have given authoritative evidence on the central question in the case as to whether the implant was correctly situated subdermally or otherwise.
135 Glass JA set out principles in relation to the operation of the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 in Payne v Parker [1976] 1 NSWLR 191 at 200-202. Although his judgment was a dissenting one, his discussion of the principles has been described as providing an authoritative summary: Wollongong Fabrications Pty Ltd v Ramsbottom [2006] NSWCA 279; 68 NSWLR 387 per Tobias JA at [69]. His Honour stated in part (at 201):
Whether the principle can or should be applied depends upon whether the conditions for its operation exist. These conditions are three in number: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained.
136 In submissions on behalf of the plaintiff it was asserted that the party who should have called Dr Bui was the defendant. I do not accept that for a number of reasons. Dr Bui was the plaintiff’s doctor. The defendant’s solicitors sought to obtain from the plaintiff’s solicitors the plaintiff’s consent to enable them to speak with Dr Bui (Exhibit 5). Such consent was not forthcoming and there was no acceptable explanation why that was so. Thus, information from Dr Bui was available to the plaintiff but not to the defendant.
137 To say that Dr Bui was amenable to subpoena as Mr Barry QC asserted in closing submissions is not to the point. Mahoney JA observed in Fabre v Arenales (1992) 27 NSWLR 437 at 450 that, “A party is not, under pain of a detrimental inference, required to call a witness ‘blind’.” I am not of the view that counsel for the defendant could be expected to call Dr Bui not knowing what he would say and not knowing whether any privilege would be claimed.
[1975] VR 916 provides an example of the rule in Jones v Dunkel being applied against a plaintiff who without explanation failed to call three doctors who had treated her in hospital following an accident. It was held that the trial judge had misdirected the jury to ignore the failure of the plaintiff to call the doctors and that it was equally open to the defendant to call them, subject only to the plaintiff consenting to them giving evidence. Newton and Norris JJ stated (at 937):
We also consider that his Honour was in error in suggesting to the jury that the defendant could have called the three doctors as witnesses, subject only to the plaintiff consenting to their giving evidence after they had been sworn. In our opinion it would have been most unreasonable to expect the defendant to call any of the three doctors as witnesses. The defendant could almost certainly have acquired no advance knowledge of what any of the three doctors might say, for having regard to the requirements of professional confidence it is most improbable that any of the three doctors would have told the defendant's legal advisers what was the evidence which they could give. Furthermore, as indeed the learned judge pointed out, unless the plaintiff had waived the privilege given to her by s28(2) of the Evidence Act 1958, the doctors could not have given evidence at all.
139 There was no attempt made to explain by way of evidence why Dr Bui was not called. In submissions on behalf of the plaintiff there was reference to the plaintiff having said in cross-examination, “Unless Dr Bui is refusing to speak to anyone”. I do not know why that was referred to. It is not evidence that the doctor was not speaking to anyone. Mr Barry continued by submitting:
And of course your Honour might think that in the case of a witness who could potentially be a wild card for either party forensic decisions are made as to whether or not that witness, anyone is prepared to chance their arm, for want of a better word in this case. (T478.18).
140 No explanation was given as to why Dr Bui should be considered a “wild card”. The only forensic decision I can envisage needed to be made is whether evidence of Dr Bui would assist.
141 Dr Bui could have elucidated a number of matters – whether or not the implant was correctly placed subdermally; where it had been inserted in relation to the scar from the earlier implant; what was required to be done to remove the implant; and whether the implant was bent before or during removal. I have earlier indicated that the latter may be put to one side but the other matters are of significance. I conclude that the unexplained failure of the plaintiff to call Dr Bui is because his evidence would not have assisted her case on these issues.
142 Although the Jones v Dunkel principle is often spoken of in the context of whether an inference about a particular topic should be drawn, it is also, in certain circumstances a matter that may be applied in consideration of whether direct evidence given by a witness or witnesses should be accepted: see Manly Council v Byrne [2004] NSWCA 123 per Campbell J (as he then was) at [59]. In the present case there is the direct evidence of Mr Parker of his observations of Dr Bui removing the implant. However, there are reasons to doubt Mr Parker’s evidence, as I have indicated, and there is also the fact that Dr Bui is medically qualified and Mr Parker is not. In these circumstances I am satisfied that a Jones v Dunkel inference is available and so the unexplained absence of testimony from Dr Bui provides a further reason not to accept the evidence of Mr Parker about the removal procedure.
143 I do not believe that the failure to call the girlfriend Kristy or the nurse is a matter of significance. There was already evidence from the plaintiff on the subject matter of any prospective evidence they might have given. A party is not required to call a witness to give cumulative evidence to avoid a Jones v Dunkel inference being drawn: Manly Council v Byrne, supra, at [60] – [66]. The difficulties I have indicated that I have in accepting the plaintiff’s evidence may have been resolved if there had been evidence from Kristy and/or the nurse. That, however, is said by way of observation only.
144 Thus far I have indicated a preference for the evidence of Dr Sutcliffe over that of Ms Hollier. But the fact remains that there is no doubt that Ms Hollier experienced a variety of painful sensations following the implantation that she had not experienced before. The question is whether this of itself supports the contention that Dr Sutcliffe’s insertion technique was somehow at fault.
145 Four experts gave concurrent evidence on the causation issue – Dr Jonathan Phillips, psychiatrist, and Dr David Champion, rheumatologist, were called by the plaintiff and Dr Robert Lewin, psychiatrist, and Dr Paul Spira, neurologist, were called by the defendant. A number of reports by these eminent doctors were in evidence but more practical assistance was provided by them having conferred prior to the trial and by them giving concurrent evidence during the trial.
146 It is unnecessary, at this point, to refer to the individual opinions held by each of these experts. There was general agreement that this was a case of complexity with no-one suggesting there were clear and definitive answers as to the nature of Ms Hollier’s condition or its cause. Important for present purposes are two matters.
147 First, in all of the reports and investigations that the experts had examined there was no clear evidence of any physical damage having been occasioned to Ms Hollier by Dr Sutcliffe’s insertion of the Implanon implant. The evidence of this is conveniently listed and summarised in the written outline submissions on behalf of the defendant at [11] to [25].
148 Secondly, whilst the causation experts differed somewhat in their views as to whether there was a direct connection between the insertion procedure and the adverse consequences Ms Hollier claims to have experienced, and I should hasten to add that malingering is not considered a significant possibility, they were unanimous that their views would apply irrespective of whether the scenario described by the plaintiff or the defendant occurred: see Summary of Joint Conference report at page 4 (Exhibit D) and concurrent evidence at T236.10 – 236.16.
149 Although I will deal with the issue of causation in greater detail in the following section of this judgment, it cannot be concluded from the fact that the plaintiff complained post-insertion of painful symptoms that she did not have pre-insertion that these symptoms were a result of conduct of Dr Sutcliffe that fell short of competent professional practice.
Summary of conclusions on breach
150 I am unable to accept those parts of the evidence of the plaintiff, her partner and her mother-in-law which are said to provide a basis to infer that the defendant incorrectly inserted the Implanon implant.
151 The evidence of the defendant that correct techniques were employed is credible and is supported by contemporaneous records.
152 There is no evidence of physical damage caused by an incorrect insertion technique.
153 The fact that the plaintiff perceived pain after the procedure that she had not experienced before does not establish that an incorrect insertion technique was used.
154 I am not satisfied that there was a breach of the defendant’s duty of care towards the plaintiff. The defendant’s actions in inserting the Implanon implant into the plaintiff on 16 October 2006 were consistent with competent professional practice.
Causation
155 In the event I am held to be in error in making the above findings I will deal with the issue of causation.
156 First, it is necessary to refer to the evidence as to the physical and psychological impact it is asserted that the implant procedure had upon Ms Hollier.
Plaintiff’s physical and psychological injuries
157 Subsequent to the treatment received from Dr Bui the plaintiff consulted Dr Stanford who arranged for a number of tests and provided a referral for specialist treatment. The physical sequelae led to the development of psychological problems with the plaintiff describing herself as, “angry, frustrated, and fed up with not being able to do my – walk normal and I just wanted the pain to go away. I didn’t want it” (T48.15). She described suffering panic attacks as well as an inability to get appropriate medical treatment (T56 - 57), which has exacerbated her mental condition (T51-52). The plaintiff was unable to cope with both her symptoms and the raising of her family and for this reason she moved to Victoria in August/September 2007 to be closer to her and her partner’s immediate family (T53).
158 The plaintiff described the foregoing symptoms as having a restrictive affect on her ability to lead a normal life. Specifically, she started having difficulty with hanging the washing, driving a manual vehicle, mowing the lawns, gardening and generally those household chores requiring lifting of some sort (T51.2). As the plaintiff’s husband was also suffering from medical ailments, she initially relied on her two eldest children to provide assistance with the domestic tasks (T52.45), although her daughter is now estranged and the plaintiff attributes this to her over reliance (T53.40). The plaintiff now relies on assistance rendered by her eldest son (T56.11). She described her present symptoms as consisting of a burning sensation, tingling and pins and needles across her left arm and extending to her shoulder and the back of her neck. The pain is constant. She also experiences pain and lumps around her left leg. The pain causes disabilities in the form of restricted bending, walking, riding a bicycle, exercising, personal care such as grooming and dressing, shopping and performing general domestic duties around the home (T55 –56). The plaintiff also described the impairment to her earning capacity and inability to return to work as a chef or commercial cleaner (T57 –58).
159 In cross-examination, the plaintiff described performing various domestic chores with the assistance of her son and husband. She is able to load the washing machine with her son hanging the heavier washing. She cooks with her son lifting the heavy pots. She vacuums with the assistance of her husband. She is able to make her bed, wipe down the kitchen bench and light dusting. The children clean their own rooms, assist with the dishwashing and kitchen cleaning. She receives some assistance with personal care such as shaving of legs. The plaintiff’s husband mows the lawn (with assistance from the elder son), irons, maintains the cars and assists with the shopping (T159 – 166).
160 The plaintiff’s husband gave evidence that the plaintiff enjoyed substantial relief a day or so after the implant was removed and then the pain in her left arm returned and gradually deteriorated. He also described a change in the plaintiff’s mental state, saying “she is not the happy person she used to be” (T171). Mr. Parker also gave evidence about the plaintiff’s restricted capacity around the home and he said, “Sam can basically really only do very, very minimal things before she’s completely exhausted. And the rest of us pick up the slack in the house” (T172.10).
161 I have earlier referred to the evidence of the plaintiff’s mother in law as to what she observed about the plaintiff in the two week period in which she was visiting from Victoria commencing four days after the implant procedure. She said she saw Ms Hollier next in the period leading up to Christmas 2006. She said she was not her usual “bubbly, energetic self”, was slower and not as alert (T183.30). She had trouble getting in and out of the car and moved with a decided limp (T183.45). She saw Ms Hollier “reasonably” frequently after she moved to Victoria in August 2007. She described the plaintiff as being “unable to do what she used to do”, she had “vague periods where she struggles” and became tired and she was unable to cope with housework the way she used to (T184).
162 The plaintiff’s half sister, Ms. Gwendolyn Morgan, also gave evidence to the affect of noticing a substantial change in her sister’s physical and psychological presentation after having the implant. She described the plaintiff before the incident as having “no issues physically” (T189.45) and being “very strong minded…She just showed great strength of character” (T190). Subsequent to the incident, she described her sister as being “withdrawn” (T194.6). She confirmed the plaintiff’s evidence in respect of her daughter, Grace, leaving home because there was “too much to cope with” (T198.39). She also described various restrictions in the plaintiff’s mobility. Ms Morgan said that she observed the plaintiff requiring assistance with the shopping (T195), cooking, washing, vacuuming and making beds (T199-200).
251 It is not entirely clear whether the plaintiff makes the claim on the basis that future care will be provided on a gratuitous basis or commercially. Notwithstanding the importance of this distinction, it does not affect the following determination.
252 A claim for care to be provided by a commercial cleaning company would be against the evidence of both parties. As described above, Dr Lewin was against the provision of domestic assistance. Dr Phillips dismissed the idea of the plaintiff suddenly moving from gratuitous care provided by family members to care provided commercially (report of 16 September 2009 at page 5)..
253 I am not satisfied that the plaintiff has provided sufficient evidence that the gratuitous domestic assistance she has been receiving will cease thereby giving rise to a need for assistance to be provided on a commercial basis: see discussion in Miller v Galderisi [2009] NSWCA 353 at [14] to [24]. It was clear from the plaintiff’s evidence that she intends to continue to rely on the assistance of her children in the short to medium term (T60.5). Her claim for future gratuitous care is for four hours per week which does not satisfy the threshold imposed by s15 (3).
254 Beyond the short to medium term I am not satisfied that the need for the provision of care has been established. There are various recommendations in the reports as to treatments that the plaintiff should avail herself of which should obviate the need for care in the longer term. Moreover, and of particular significance in this respect is the opinion of Dr Lewin who stated in his report of 30 April 2009, that, “the provision of domestic assistance is contra-indicated. The reason for this is that any move towards recovery would be obstructed by the provision of services of this nature.”
Past economic loss
255 The plaintiff makes a claim for past economic loss.
256 The plaintiff attended primary school at Morwell Park. She then attended High School until grade 11 when she left school as she “had a boyfriend and just wasn’t focused at the time”.
257 Upon leaving school, she performed a number of semi-skilled labour intensive roles. She described working in a fruit shop, manufacturing plant, flower farm and at a supermarket.
258 She subsequently undertook a hospitality course for the purpose of becoming a qualified chef. After meeting her present partner the family moved to live in Darwin in 2003. In 2005 when Mr. Parker was transferred to Holsworthy the family took up residence at Wattle Grove. During this period the plaintiff worked as a cook and thereafter as a commercial cleaner. Whilst in Sydney she continued working as a cleaner and thereafter as a chef. She holds a certificate in commercial cookery.
259 The plaintiff continued working as a chef until her mother suffered an injury in March 2006. At around that time she ceased work in order to take full time care of her mother. Her mother lived in Victoria but Ms Hollier moved her to Sydney so that she could live with the family at Wattle Grove.
260 The care that the plaintiff intended to provide to her mother requires some further consideration as it directly impacts upon the claim for economic loss. In her evidence in chief, the following exchange took place (at T57):
Q. If the Implanon insertion had gone satisfactorily, when was it that you intended to go back to work?
A. I would probably still be caring for mum . [Emphasis added]Q. Why would you still be caring for her now?
A. Because she has diabetes, she has leukaemia, she has several medical conditions that she requires care for.Q. If you hadn’t had the episode with the insertion of the Implanon device, would it have been your present intention to ever return back to work if your mother had not required your assistance?
A. Oh, definitely.Q. Are you able to indicate when that might otherwise have been?Q. When?
A. Oh, immediately I would have,
A. Possibly, I don’t know, twelve months I would have been sharing the care with my elder sister.
261 In any claim for economic loss, the plaintiff must establish two distinct but related requirements - first, the plaintiff’s earning capacity has diminished by reason of the negligence-caused injury and secondly, the diminution of earning capacity is or may be productive of financial loss: Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 3; Graham v Baker (1961) 106 CLR 340 at 347.
262 In written submissions, the plaintiff has claimed economic loss from twelve months after the incident to the date of trial. The submissions are based on the plaintiff’s response to the question that included the assumptions as to her not having suffered the injury and her mother not requiring her assistance. But the reality is that her mother was sick and it is this fact that the plaintiff described as preventing her from returning to work.
263 A reference to the plaintiff sharing the care of her mother with her sister is not only inconsistent with the evidence provided in the above passage but also with other aspects of her evidence. The plaintiff said she moved her mother up from Victoria to Sydney to care for her (T29.5). The plaintiff’s sister resides in Victoria. It is difficult to imagine, given the distance, how the plaintiff and her sister would have both cared for their mother such that the plaintiff could have returned to work. The plaintiff would have had to return to Victoria or her sister move to Sydney such that they could share the care of their mother. The reason the plaintiff gave for moving to Victoria was “I could have some support from my family so I didn’t rely on my children as much” (T53.20). Had the incident involving Dr Sutcliff not incurred, it is reasonable to infer from the plaintiff’s evidence that she would not have moved to Victoria but would have remained in Sydney where she would have continued to care for her mother without any substantial assistance from her sister.
264 The plaintiff’s claim for past economic loss must fail on account of the fact that the impairment to, or deprivation of, her earning capacity in the past has not been productive of a financial loss. The evidence I have referred to makes abundantly clear that any past impairment to the plaintiff’s earning capacity caused by the incident has not resulted in a financial loss. Any negligence by the defendant has prevented Ms Hollier from caring for her mother rather than from working.
Future economic loss
265 The plaintiff’s claim for future economic loss is governed by s13 of the Civil Liability Act.
266 There is a body of expert evidence relevant to the determination of the nature and extent of the impact the plaintiff’s condition has had on her earning capacity.
267 Dr McClure in his report of 28 November 2007 opined:
In terms of fitness for work, this is, and will be determined by Ms. Hollier’s physical symptoms and as indicated above, I do not feel qualified to offer a comment upon these. Similarly, Ms. Hollier’s future earnings and any impairment of earning capacity has been, and will be, determined in the main by her physical injuries. (Emphasis in original).
268 In a report of 4 December 2007, Mr. Raymond Field, psychologist, described the plaintiff’s prognosis for a return to productive employment as very guarded. His opinion was expressed with regard to identified barriers to employment including, chronic pain and depression, uncertainty of medical condition, weight issues and lack of skills obtained from previous vocations. Recommendations were made regarding vocational assistance and referral to a pain management program.
269 Dr Champion stated in his report of 6 February 2008:
Ms Hollier has not been fit to work since the time of the implantation and will remain unfit for work in the near future. It remains to be seen whether specialist management can improve her to the extent that she could enter the workforce. It would not be easy and she could not be assured that this will occur, although there are advantages in her striving to do so, at least part time.
270 Although Dr Champion provided a number of supplementary reports, his opinion in regards to employment capacity did not change.
271 Associate Professor Mathew Kiernan in his report of 22 December 2008 stated:
From a neological perspective, there would be no contraindication for her to return to full-time employment.As stated in the body of my report, Ms Hollier was not working at the time of the Implanon insertion. Given her general symptoms of debility, it could be reasonably expected that she would not have attended work from the period of the onset of her symptoms through to the removal of the Implanon device.
272 The evidence of Dr Sedal, neurologist, may be disregarded in this context as it is based upon a diagnosis of complex regional pain syndrome which was specifically rejected by all of the experts on causation.
273 Dr Crozie, vascular and endovascular surgeon, saw the plaintiff on one occasion and produced a report to Dr Stanford on 5 April 2007. In a subsequent report of 11 February 2009 no clear opinion is expressed regarding the plaintiff’s work capacity, which was expected given that Dr Crozie had only seen the plaintiff on one occasion for treatment purposes. The report produced in February 2009 is based largely on the symptoms reported by the plaintiff and not verified by examination.
274 Dr Phillips opined in his report of 1 July 2008 that:
Ms Hollier lost her earning capacity in the months which followed the incident, with this continuing at the present time. The success or otherwise of treatment will determine whether the plaintiff can return to the workforce either on a part-time or full-time basis.
275 Of the plaintiff’s evidence therefore, Dr Champion and Dr Phillips are reluctant to express a definitive view as to the plaintiff’s future employment prospects and much depends on the success of treatment. The opinions of Dr McClure and Mr Field were similarly guarded. Associate Professor Kiernan’s opinion would support the view that the plaintiff has not suffered an impairment to her earning capacity.
276 As to the Defendant’s evidence, Dr Spira opined in his report of 30 October 2008 that the plaintiff has “normally developed four limbs and the apparent weakness she demonstrates is in fact psychogenic rather than a true disability”. Dr Akkerman, psychiatrist, raised the issue of exaggeration of symptoms and malingering although this was dismissed by the causation experts. Dr Wendy Roberts, clinical psychologist, opined that the plaintiff would be better working and she had the capacity to do so. Dr Roberts, however, included in her assessment of the plaintiff that there was a measure of exaggeration which, again, is contrary to the assessment of the causation experts in dismissing malingering. Dr Lewin expressed the view that the plaintiff’s perception of her suffering from a serious physical injury is acting as a barrier to returning to work and recommends treatment for this with progress likely to occur if she accepts treatment. However, I am mindful that for the purposes of assessing damages, I will need to give more weight to the opinions of Dr Phillips and Dr Champion.
277 Against the opinions expressed in the individual reports, the experts did agree that the plaintiff displays an ongoing pattern of disability against a background of a depressive reaction for which treatment is required. It is reasonable to infer from the joint report of the causation experts, irrespective of the issue of causation, that the plaintiff does suffer from impairment to her earning capacity, which will continue whilst she remains without intensive treatment.
278 I accept that the plaintiff has an impairment to her earning capacity. It is necessary to quantify that impairment in monetary terms.
279 I am not assisted by the plaintiff’s written submissions on economic loss. An analysis of the Plaintiff’s taxation returns reveals that in the five years leading up to the subject incident, she had demonstrated earnings as follows: -
Financial years Gross Salary or Wages 2001/2002 $0.00 2002/2003 $3,268.00 2003/2004 $30,235.00 2004/2005 $0.00 2005/2006 $7,724.00
280 It would seem that the plaintiff completed one full year of employment in the five years leading up to the subject incident. I am mindful that evidence of past earnings are in no way completely determinative of the impairment to the plaintiff’s future earning capacity but they do provide evidence of the plaintiff’s willingness to exploit her capacity to earn. From the evidence, the plaintiff has not readily exercised her earning capacity in the five years leading up to the incident, which makes it difficult, although not impossible, to assess her future earning capacity. The mere fact that the quantum of damages is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum: State of New South Wales v Moss [2000] NSWCA 133 per Heydon JA at [72]; (2000) 54 NSWLR 536 at 554.
281 The plaintiff’s claim for economic loss is based on the assumption that she would have returned to full time work approximately twelve months after the incident and would have continued in full time employment. For the reasons provided under the heading past economic loss and the foregoing paragraphs, I am not satisfied that such a scenario represents her most likely future circumstances but for the injury: s 13(1) Civil Liability Act 2002.
282 The plaintiff has also claimed a total impairment to her earning capacity. This is made on the basis that the plaintiff will not return to the workforce. I do not accept this contention. The plaintiff’s evidence, even on its most generous interpretation, allows for the prospects of rehabilitation. The current claim places the plaintiff’s injuries at a level of total and permanent incapacity which is not substantiated by the medical evidence.
283 Had the incident not occurred, the plaintiff most likely would have continued to care for her mother up until a point in time when that care was no longer required. I infer that thereafter the plaintiff would have attempted to obtain employment as a commercial cleaner or chef consistent with her past history of employment and evidence given at trial. The question is: what, if any, impact has the subject incident had upon the plaintiff’s ability to enliven those circumstances?
284 It is difficult to determine the extent to which the plaintiff’s injuries will have on her earning capacity. The difficulty arises for a few reasons. First, the plaintiff’s history of employment in the period leading up to the incident is not one which gives me great confidence in making the assumption that she would have maintained consistent employment in the future. With this checked history of employment, I am troubled in determining when, and the extent to which, the plaintiff would have returned to work. Secondly, the plaintiff gave evidence that it was her intention to continue to care for her mother. No evidence was tendered as to her mother’s condition or as to the ongoing need for assistance or life expectancy, all of which would have borne upon the plaintiff’s desire to return to work. Thirdly, determination of the extent of the plaintiff’s future earning capacity is not clear on the evidence, especially considering the opinions expressed by Drs Phillips and Dr Champion. The plaintiff did express a desire to continue with treatment and I infer that she would have obtained that treatment had her financial circumstances permitted. The report of the joint conference of causation experts includes recommendations as to treatment. I therefore infer that the recommendations were made on the basis that it is probable the treatment will have an overall beneficial effect on the plaintiff’s health, including her ability to re-enter the work force.
285 Having regard to the difficulties in adopting an arithmetic approach in determining economic loss I accept the submission on behalf of the defendant that an award should be made in the form of a buffer, consistent with the principles expounded by Giles JA in Penrith City Council v Parks [2004] NSWCA 201, subsequently referred to with approval, most recently in Sretenovic v Reed [2009] NSWCA 280.
286 For these reasons, I determine an award of $100,000.00 would be appropriate as a buffer for future economic loss. In awarding this amount, I have accepted that subsequent to obtaining the appropriate treatment, the plaintiff will be able to resume employment in a full time capacity without suffering an ongoing economic loss: s 13(3) of the Act.
Past Out of Pocket Expenses
287 The parties have agreed on the figure for past out of pocket expenses (T473.14).
Future Out of Pocket Expenses
288 The plaintiff makes a claim for a myriad of treatment expenses outlined in the various medico-legal reports. Alternatively, the defendant has submitted that the plaintiff should only be compensated for that treatment recommended in the report of Dr Lewin of 30 April 2009.
289 After having regard to the medical evidence relied upon by both parties in this claim, I accept the recommendations made by the causation experts in the joint conference report to be the most compelling.
290 I summarise their recommendations as follows: -
A Multidisciplinary approach to treatment conducted within a specialised pain management program.
B A programme of family therapy (12 sessions).
C Following group therapy, individual psychological or psychiatric therapy would be required on an outpatient basis and it was recommended that the plaintiff obtain between twelve (12) and twenty (20) sessions.
E Physical fitness (perhaps through a graduated exercise programme).D Pharmacotherapy (pregabalin or gabentin, and antidepressant medication).
291 As to the costing of such treatment, I have relied on the figures contained within the various medico-legal reports and estimate the following: -
1 For items A, C and D I have taken Dr Champion’s estimates to be reasonable and fairly consistent with the recommendations. Accordingly, I would allow for a treatment regime of four years consisting of a multidisciplinary approach with associated medications and totalling $10,998.93. In this calculation, I have allowed for $7,000 of treatment in the first year followed by a $1,500 a year for three years thereafter (calculated in usual manner).
3 For item E, no figures have been provided as to the cost of a graduated exercise programme, however I infer that the program would be required over the life of the pain management program. There was no evidence on the point but I infer that the annual cost of a gym membership would be in the order of $1000.00. For a period of four years, the appropriate allowance is $3,646.15 and I will make an allowance of a further $1000 for a personal trainer to demonstrate the relevant exercises and provide initial supervision, yielding a total of $4,646.152 For item B, I determine that $200 per session over 16 sessions to be reasonable. That is, $3,200.00
292 The plaintiff has also made a reasonable claim for the cost of general practitioner consultations and travel expenses. I will allow for monthly visits at $50.00 and an associated travel fee of $5.00. However I determine that such treatment will only be required over the next four years, thus amounting to $2,406.46.
293 The balance of the claim for treatment expenses made by the plaintiff is either repetitive or unreasonable. As to the claim made for equipment to assist with domestic duties around the home, the opinion of Ms Hammond, who I reiterate made a more recent assessment that Ms Warner and, importantly, in the plaintiff’s home, was that such items that were recommended by Mr Warner were unnecessary. I accept that assessment.
Summary of conclusions as to damages
294
Non-Economic Loss $109,000.00 Past Economic Loss Nil Future Economic Loss $100,000.00 Past Care Nil Future Care Nil Past Out of Pocket Expenses As agreed Future Out of Pocket Expenses $21,251.54
Conclusion
295 I make the following orders:
2 Plaintiff to pay the defendant’s costs.1 Verdict for the defendant.
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