Hope v Hunter and New England Area Health Service

[2009] NSWDC 307

Reported Decision: 10 DCLR (NSW) 63

District Court

CITATION:	Hope v Hunter and New England Area Health Service [2009] NSWDC 307 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	31 August and 3 September 2009
JUDGMENT DATE:	27 November 2009
JURISDICTION:	Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Verdict and judgment in the sum of $525,511; 2. The defendant to pay the plaintiff’s costs.
CATCHWORDS:	TORTS – negligence – surgical removal of retinacular ganglion on volar aspect of middle finger of non-dominant hand – resultant neurovascular injury – whether avoidable – whether breach of duty of care established – whether defence under s 5O Civil Liability Act 2002 established – rationality of suggested opinion concerning widely accepted peer professional practice in Australia - DAMAGES – assessment of multiple heads of damage under Civil Liability Act 2002 - EVIDENCE – manner of proof of peer practice – circumstances in which hearsay permitted – notice required – credit issues – whether obligation to observe rule in Browne v Dunn required - PRACTICE AND PROCEDURE – obligation of experts to provide reasons for opinions – Sch 7 cl 5(c) Uniform Civil Procedure Rules 2005
LEGISLATION CITED:	Civil Liability Act 2002 Civil Procedure Act 2005 Evidence Act 1995 Uniform Civil Procedure Rules 2005
CASES CITED:	Adelaide Stevedoring Co. Ltd v Forst [1940] HCA 45;(1940) 64 CLR 538 Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 Browne v Dunn (1893) 6 R 67 C. Czarnikov v Koufos [1967] UKHL 4; (1969) 1 AC 350 Capital Brake Service Pty Ltd v Meagher & Ors [2003] NSWCA 225 Caterson v Commissioner for Railways [1973] HCA 12; (1973) 128 CLR 99 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Dobler v Halvorsen [2007] NSWCA 335 Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 Halverson v Dobler [2006] NSWSC 1307 Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 Mason v Demasi [2009] NSWCA 227 Melchior v Sydney Adventist Hospital [2008] NSWSC 1282 Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 Penrith City Council v Parks [2004] NSWCA 201 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Rogers v Whittaker [1992] HCA 58; (1992) 175 CLR 499 State of NSW v Moss [2000] NSWCA 13 Vairy v Wyong Shire Council [HCA] 62; (2005) 223 CLR 442Vines v ASIC [2007] NSWCA 75 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 Wynn v NSW Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
TEXTS CITED:	Furzer Crestani Assessment Handbook, 2009 FH Netter, Atlas of Human Anatomy, Second Edition (1997)
PARTIES:	Gary Andrew Hope (Plaintiff) Hunter and New England Area Health Service (Defendant)
FILE NUMBER(S):	154 of 2008 (Newcastle District Court)
COUNSEL:	Mr J Anderson (Plaintiff) Mr R Sergi (Defendant)
SOLICITORS:	Catherine Henry Partners (Plaintiff) Francesca Menniti (Defendant)

JUDGMENT

Table of Contents

A.	INTRODUCTION
Nature of the case	[1]
Liability issues for determination	[2]
Assessed heads of damage	[3]
Summary of findings	[4]
B.	LIABILITY
Facts	[5]
Plaintiff’s personal history	[6]
Plaintiff’s health history	[7] – [10]
Plaintiff’s educational history	[11] – [13]
Plaintiff’s pre-operative certificates for work qualifications	[14]
Plaintiff’s special areas of interest	[15]
Plaintiff’s pre-operative employment history	[16]
Plaintiff’s reason for seeking the surgery	[17]
Referral, assessment and recommendation for operation	[18] – [21]
Operation for removal of ganglion	[22] – [27]
Post-operative follow-up	[28] – [33]
Further referral to Dr Mitchell	[34] – [37]
Referral to specialist hand surgeon	[38] – [41]
Subsequent attempt at nerve repair by Dr Meads	[42] – [43]
Follow-up consultations with Dr Meads	[44]
Subsequent unrelated injury	[45]
Post-operative work history	[46] – [53]
Plaintiff’s most likely pre-injury employment prospects	[54] – [59]
Medico-legal assessments	[60] – [77]
Assessments arranged at request of plaintiff’s solicitor	[61] – [63]
Associate Professor Bruce Connolly	[61]
Dr Patricia Jungfer	[62] – [63]
Assessments arranged at request of defendant’s solicitor	[64] – [77]
Associate Professor Peter Haertsch	[64]
Dr Hunter Fry	[65]
Dr Leonard Lee	[66] – [77]
Determination of liability and causation issues	[78] – [179]
Issue 1 – Nature of injury	[79] – [87]
Issue 2 – Probable mechanism of injury	[88] – [128]
Issue 3 – Breach of duty of care and causation	[129] – [162]
Issue 4 – Defence under s 5O of Civil Liability Act 2002	[163] – [179]
C.	DAMAGES ISSUES
Credit of the plaintiff	[181] – [187]
Resolution of conflicting psychiatric opinions	[188] – [195]
Injuries resulting from operation	[196]
Residual disabilities	[197]
Physical problems	[198] – [202]
Emotional problems	[203]
Psychological problems	[204] – [205]
Overview of disabilities	[206]
Probable life span of the plaintiff	[207]
D.	DAMAGES ASSESSMENT
Non-economic loss	[209] – [216]
Past loss of earnings	[217] – [221]
Future loss of earning capacity	[222] – [238]
Past loss of superannuation	[239]
Future loss of superannuation	[240]
Future treatment	[241] – [247]
Past out-of-pocket expenses	[248]
Summary of damages assessments	[249]
E.	DISPOSITION & ORDERS
Disposition	[250]
Orders	[251]

A. INTRODUCTION

Nature of case

1. On 21 July 2005 the plaintiff, Gary Andrew Hope, underwent surgical removal of a retinacular ganglion on the volar aspect of the flexor tendon on his left middle finger at Royal Newcastle Hospital. He claims that during the operation he suffered an unexpected division of the digital nerve and artery of his left middle finger which has resulted in lasting disability. The procedure was performed by an orthopaedic registrar employed by the hospital. It was unclear as to whether the procedure was carried out in the supervisory presence of the hospital’s orthopaedic consultant. The plaintiff claims the procedure was carried out in a manner that involved a breach of the required standard of care expected in the circumstances. The plaintiff claimed that an incorrect surgical technique had been employed by the registrar. The defendant denied there was a breach of duty and relied upon a defence grounded upon s 5O Civil Liability Act 2002. The defendant argued that the surgical technique employed for the operation was widely accepted in Australia by peer opinion as competent professional practice. This was disputed by the plaintiff.

Liability issues for determination

2. The liability issues calling for decision have been distilled as follows:

Issue 1 : The nature of the surgical injury to the plaintiff’s left middle finger;

Issue 2 : The probable mechanism by which the plaintiff acquired the injury;

Issue 3 : Whether the plaintiff’s injury was an acceptable result of surgical removal of a retinacular ganglion on the flexor tendon of the left middle finger or whether the injury was due to a breach of the duty of care owed;

Issue 4 : Whether the defendant has established its defence pursuant to s 5O of the Civil Liability Act 2002;

Assessed heads of damage

3. A total of seven claimed heads of damage arise for assessment. These are listed below together with references to the paragraph locations in these reasons where the assessments are dealt with:

Head of Damage	Paragraphs
(a) Non economic loss	[209] - [216]
(b) Past loss of earnings	[217] - [221]
(c) Future loss of earning capacity	[222] - [238]
(d) Past loss of superannuation	[239]
(e) Future loss of superannuation	[240]
(f) Future treatment	[241] - [247]
(g) Past out-of-pocket expenses	[248]

Summary of findings

4. I set out a summary of my findings. I find that the plaintiff suffered a surgical division of the digital nerve and artery of the middle finger of his left hand. I find that this injury occurred due to intra-operative sharp dissection of the soft tissues of the left middle finger. I find that this injury was caused by breach of duty of care on the part of the defendant. I find that the defendant has failed to make good its defence based on s 5O of the Civil Liability Act 2002. The defendant made an attack on the credit of the plaintiff. The liability and causation issues were not dependant upon findings concerning the credibility of the testimony of the plaintiff. In my reasons for judgment I have set out why I rejected the attack made upon the credibility of the plaintiff’s testimony. I have assessed the plaintiff’s entitlement to damages according to the assessment framework of the Civil Lability Act 2002 in the sum of $525,511.

B. LIABILITY AND DAMAGES ISSUES

Facts

5. There was no dispute over factual matters concerning the plaintiff’s background and the circumstances that surrounded the treatment in question. Before dealing with the issues to be determined, I set out a narrative of the facts which incorporates matters of fact that I have accepted. In the case of any disputed facts I have included a juxtaposed summary of a contrary contention.

Plaintiff’s personal history

6. The plaintiff was born in 1984. He was aged almost 21 when the surgery in question took place. He was aged 25 at the time of the trial. Until about 2 months before the trial he lived with his parents. He has recently formed a relationship and lives with his fiancée who has her own health issues. At the time of the trial the plaintiff was not in employment.

Plaintiff’s health history

7. The plaintiff has a history of past emotional problems and related psychological illness that had affected him at times in his past. Whilst the plaintiff does not accept the diagnosis, he has a developmental condition that is variously described as Asperger’s Syndrome (high functioning autism) or Attention Deficit Hyperactivity Disorder (ADHD). This condition caused him to encounter some emotional difficulties as an adolescent.

8. An aspect or feature of the plaintiff’s condition is that he has a tendency to be obsessional. Once that condition had been detected in his adolescence the plaintiff was supported and treated by a community adolescent mental health team and adolescent psychiatrists. That treatment included counselling and the prescription of anti-depressant medication which he took between the years 1998 and 2001, between the ages of 14 and 16 years. The medication initially helped the plaintiff with his depression but he then ceased taking it because he felt it made his depression worse.

9. Sometime before the surgery in question the plaintiff had sustained a back injury whilst undergoing training in Jujitsu. He had also sustained a knee injury that occurred as part of a pattern of bullying to which he had been subjected whilst he was at school. There was no evidence that at the time of the surgery in question these past physical injuries had caused the plaintiff to suffer any lasting impairments.

10. Before the plaintiff encountered the deleterious effects of the surgery in question, in his emotional and functional development he had moved on and beyond the effects of bullying that had occurred during his school years. He was in the process of establishing an independent identity for himself as was evidenced by his pursuit of work, obtaining qualifications for work and his other interests. He felt good about himself and was making plans for his future. However, because of his underlying Asperger’s condition, he remained vulnerable to depression in reaction to circumstances that might create adversity for him.

Plaintiff’s educational history

11. During his adolescent school years the plaintiff was subjected to serious and significant bullying which traumatised him, made him feel depressed and of low mood. The bullying was sufficiently serious in its effect on the plaintiff to cause him to change schools.

12. He did not sit for his School Certificate examinations but in December 2000 the plaintiff was awarded a School Certificate which stated he had reached satisfactory Life Skills standard in the subjects of English, Mathematics, Science, Human Society and Environment, Technology/Applied Studies, Creative Arts and Personal Development/ Health /Physical Education.

13. It took the plaintiff a number of years to work through and overcome the negative effects that the bullying had on him and he eventually entered the workforce and pursued a number of occupations before he encountered the difficulties that have resulted from the surgery in question.

Plaintiff’s pre-operative certificates for work qualifications

14. Before his operation the plaintiff had pursued private courses of study and had obtained certificates for OHS General Induction for Construction Work in NSW (17 January 2005) an OHS Work Activity Training Certificate in Traffic Control Using Stop Slow Bat (4 February 2005) a Statement of Attainment for Certificate III in Engineering – Mechanical Trade concerning mechanical drawing, the use of hand tools and mechanical cutting (8 June 2005).

Plaintiff’s areas of special interest

15. Whilst the plaintiff was still at school he was primarily interested in mechanical endeavours. Those interests continued after he left school. The plaintiff owned, serviced and maintained a pocket bike which was a rideable miniature 50cc GP racing bike and he gained enjoyment from that activity. Before the surgery in question he had also built, owned, serviced and maintained petrol driven radio controlled model motorcars.

Plaintiff’s pre-operative employment history

16. After leaving school and between June 2004 and September 2005 the plaintiff maintained 15 months of casual employment as a customer service officer with K-Mart at Maitland. In that time, in early 2005, he also had a trial of work with a boat builder in which he carried out hands-on building and repair work on Golden Era Classic boats which were 1950s Riviera style timber construction speedboats. After a progressive decrease in the hours that were available for him to work at K-Mart, the plaintiff left that job to seek out alternative employment. Whilst he was still employed by K-Mart he also worked for Boral as a traffic controller at its Black Hill asphalt plant. That job involved him in attending at various work sites in the Hunter Valley where his employer was carrying out works. His function was to set up a safe workplace and attend to the safety of the public by controlling traffic in the vicinity of his employer’s job sites. To do this work he used a two-way radio device. That work was casual and his allocated work hours varied from between 4 hours per week to upwards of 40 or 50 hours per week. His earnings in that employment were commensurate with the hours worked and varied from between $200 and $700 per week gross. The plaintiff was still in that employment at the time of the operation which is the subject of these proceedings.

Plaintiff’s reasons for seeking removal of the ganglion on his left middle finger

17. In June 2005 and for some months beforehand, whilst the plaintiff was working for Boral, he was experiencing minor discomfort and some pain around the base of his left middle finger on its volar or palm side. This first appeared to him as a lump on his left hand. The lump was painful when pressure was applied to it. He wanted to discover what the lump was and whether anything could be done about its presence. The plaintiff described the lump as being about one third of the size of a pea and larger than a grain of rice. It was painful when pressure was applied to the area where it was located. This lump was later identified to be a retinacular ganglion or cyst on the volar aspect of the tendon sheath of his left middle finger. In this context a ganglion is a raised defect in the tendon sheath that appears like a herniation in the tendon sheath.

Referral, assessment and recommendation for operation

18. After discussing the ganglion with his general practitioner the plaintiff was referred to Dr Peter Mitchell, a specialist orthopaedic surgeon, for specialist advice and surgical management.

19. On 14 June 2005 the plaintiff was assessed at the Royal Newcastle Hospital by an orthopaedic registrar who noted a history of the ganglion being present for about 6 months with associated swelling and tenderness in the left hand over the volar aspect of the third metacarpo-phalangeal or MCP joint. It was noted that the size had not changed. The provisional diagnosis that was noted was that it was consistent with the presence of a ganglion or a cyst. The registrar arranged for the plaintiff to have a surgical consultation with Dr Mitchell.

20. The plaintiff was seen on the same day and no gross abnormality was noted. A half centimetre lump was noted over the flexor crease of the finger in question. There was no triggering, there was full flexion and extension, the lump was noted to be mobile and, significantly, sensation in the region was noted to be normal.

21. Dr Mitchell arranged for an operation to be booked for the planned removal of the ganglion on the plaintiff’s left hand. The booking form for the surgery noted that the planned procedure was for excision of the ganglion on the volar aspect of the left middle finger at the MCP joint. The plaintiff signed a consent form in which he acknowledged that a Dr Hunt had explained to the plaintiff the nature, likely results and material risks of the recommended procedure which was described as “excision ganglion on left middle finger at MCP joint.”

Operation for removal of ganglion

22. On 21 July 2005 the plaintiff underwent a day surgery admission to the Royal Newcastle Hospital for the surgical removal of the ganglion on his left middle finger under a general anaesthetic. The medical records show that the operation was to be performed under the care of Dr Mitchell.

23. The peri-operative report form and the clinical notes recorded that the anaesthetic commenced at 13:50, the operation commenced at 14:05 and was completed at 14:20, having taken a total of 15 minutes of operating time. The procedure was stated to have been performed by Dr Pankaj Rao who at the time was an orthopaedic registrar at the hospital. The surgical assistant was stated to have been Dr J Kumer. The surgical consultant was noted to be Dr Mitchell. The notes did not indicate whether or not Dr Mitchell was actually present during the time when the surgery was performed. The operation report was signed by Dr Rao.

24. The post-operative observations that were noted on the observation sheet recorded that the plaintiff’s left-hand was examined at 15:00 at which time it was noted that sensation was present but slightly reduced. The question as to the degree of the plaintiff’s recovery from the general anaesthetic at that time was not explored in the evidence. As I interpret the symbols and notations on the observations record, at 15:30 it was recorded that sensation was slightly affected along the finger width and at 15:45 it was noted that there was partial sensation on the middle finger.

25. The plaintiff was taken out of the post-operative recovery room at 15:50. Following his recovery from the anaesthetic the plaintiff experienced numbness in the left hand and this gradually recovered except for the area in which the operation had been performed. He was discharged from hospital at 16:50 on 21 July 2005.

26. On the same day of the operation, namely 21 July 2005, Dr Mitchell wrote to the plaintiff’s general practitioner, Dr Lightbody as follows:

“Gary was admitted to the Royal on my routine list today via the clinic.

He had a volar ganglion over the MCP joint of his left long finger which had been present for a number of months and was quite irritable and causing concern.

This was removed under a general anaesthetic through a small transverse incision. The digital nerves were protected through blunt dissection and the ganglion was excised in total without difficulty .

Gary has gone home today and he will see you for sutures to be removed in about a week. This should sort things out for him.”

[Emphasis added]

27. The parties differed in their interpretation of the meaning and significance of the emphasised portion of this letter, particularly as to whether the reference to there having been a blunt dissection was a matter which was a direct observation made by Dr Mitchell or, whether this statement was repetition of hearsay. On behalf of the plaintiff it was contended that the emphasis and portion of this letter was written in the passive voice which is significant for the evidentiary interpretation of the letter and its contents. The defendant submits the letter simply reports the facts of what occurred during the procedure. Significantly, there was no mention in this letter of any division of the digital nerve or artery of the plaintiff’s left middle finger.

Post-operative follow-up

28. Following his discharge from hospital on 25 July 2005, the plaintiff was contacted by a nurse from the hospital for follow-up of his post-operative progress. He later returned to the hospital for a follow-up examination at which time he indicated that his finger was still numb in the region of the operation and he expressed his concern about this.

29. On 31 July 2005, at the 10-day post-operative visit, the plaintiff was reviewed by Dr Rao, who removed the sutures. Dr Rao noted the presence of digital nerve damage in the left-hand. At that time the plan was for the plaintiff to be reviewed by Dr Mitchell.

30. On 9 August 2005 Dr Rao saw the plaintiff again for a follow-up review. On that occasion Dr Rao annotated the clinical records to indicate that the plaintiff had been seen by Dr Mitchell and he still had numbness in the region of the digital nerve. The record was also annotated to state that the nerve “may be regenerating.” The notes do not appear to contain any notes from Dr Mitchell in relation to that review.

31. On 29 August 2005 the plaintiff was again seen by Dr Rao who annotated the clinical records with the words “improved symptom.” Dr Rao’s plan for the plaintiff was to continue with the current treatment and to review him in six weeks time.

32. On 10 October 2005 the plaintiff was seen again by Dr Rao who noted that there had been no improvement and that the plaintiff complained of numbness in the left middle finger in the region of the radial digital nerve distribution, which was then noted to be very numb. Dr Rao’s plan was for the plaintiff to be seen by Dr Mitchell.

33. On 20 November 2005 clinical notes were annotated by Dr Kemp. On examination of the plaintiff’s left middle finger. He noted that it was found to be numb in the distribution of the digital nerve following surgery. The plaintiff’s hospital records concerning his primary hand surgery end at this point.

Further referral to Dr Mitchell

34. On 11 December 2006 the plaintiff’s general practitioner Dr Graeme Choat referred the plaintiff to Dr Mitchell for review. The referral letter stated:

“… He is experiencing ongoing paraesthesia down the finger distal to the ganglion excision site and gripping objects causes pain to shoot down the finger.”

35. At the time of the above referral the plaintiff was noted to be taking the medication Effexor XR capsules 150 mg at night, indicating that he was being treated with psychotropic medication.

36. On 29 January 2007 the plaintiff was reviewed by Dr Mitchell as arranged. Dr Mitchell noted that the neuroma was a problem for the plaintiff and he had come to have it sorted out. He noted the plaintiff’s complaint of altered sensation and he also noted that it inconvenienced him. Dr Mitchell referred the plaintiff to Dr Bryce Meads, a specialist hand surgeon. Dr Mitchell’s referral letter was in the following terms:

“Would you mind seeing Gary?

He is a young guy who had a volar ganglion removed from his flexor tendon of his left long finger at the Royal Newcastle Hospital just on eighteen months ago. He sustained some damage to the radial digital nerve of this finger and which for reasons that are unclear to me, was treated conservatively.

Gary has sensory changes in keeping with damage to this nerve, but his main concern is a palpable neuroma which actually gets in the road with regular activity.

I would certainly appreciate your opinion as to whether this should be explored or not and would be more happy for you to take over his care.”

37. Dr Mitchell’s referral letter to Dr Meads made no mention of any history of damage to the plaintiff’s digital artery of the middle finger of his left hand. Dr Mitchell’s care of the plaintiff ceased at this point.

Referral of plaintiff to specialist hand surgeon

38. On 6 March 2007 the plaintiff was clinically examined by Dr Meads who noted that the digital nerve of the middle finger of the plaintiff’s left hand appeared to have been injured at the time of the surgery.

39. At this consultation the plaintiff complained of absence of sensation on the radial border of his left middle finger since the time of the operation. Dr Meads also noted the absence of sweating and the presence of smoothness down the extent of that border of the finger. He also noted the presence of a neuromatous lump in the distal aspect of the left middle finger at the level of the proximal finger crease which the plaintiff found painful and quite troubling every time it was knocked.

40. On his examination of the plaintiff Dr Meads noted the absence of sensation on the radial border of the index finger in question but he noted that some dorsal branches of the digital nerve enabled the plaintiff to feel the dorsal aspect of the affected proximal phalanx. He noted that the neuroma that was present at the proximal end of the left middle finger crease was markedly tender.

41. Dr Meads discussed some surgical options with the plaintiff and suggested a nerve graft, including a nerve resection and nerve graft at the proposed re-section site using either a nerve harvested from the back of the wrist or with the aid of neurotube grafting to stimulate nerve growth. The plaintiff agreed to undertake remedial surgery as recommended by Dr Meads in the hope of improving the problematic condition of his left hand.

Subsequent attempt at nerve repair by Dr Meads

42. On 23 March 2007 the plaintiff was admitted to Newcastle Private Hospital where Dr Meads carried out a re-section of the neuroma to the digital nerve of the left middle finger. At that time a neurotube graft was applied to that nerve.

43. At the time of this surgery, Dr Meads explored the nerve and noted his finding that there had been a complete division of the radial digital nerve. Significantly, at the same time he also noted a division of the radial digital artery which was nearby.

Follow-up consultations with Dr Meads

44. The plaintiff was subsequently reviewed by Dr Meads on five occasions post-operatively, namely on 13 April 2007, 11 May 2007, 11 July 2007, 24 October 2007 and 20 March 2009. At these successive reviews it became apparent that the remedial surgery did not produce any further recovery in sensation for the plaintiff. At the last such consultation on 20 March 2009, Dr Meads noted that the plaintiff was quite upset about the absence of sensation in the ulnar border of his right middle finger. The presence of hypersensitivity in the area just distal to the palmar crease of the finger was also noted. Dr Meads discussed some further surgical options with the plaintiff, such as cutting the neuroma short and attempting to bury it deeper into the soft tissues. He noted that the plaintiff became quite distressed by discussing these options. There were no further consultations with Dr Meads. The defendant has not suggested that the plaintiff has not taken reasonable steps to mitigate his loss by undertaking further treatment.

Subsequent unrelated injury

45. On 1 November 2007 the plaintiff sustained injury to his left shoulder, left knee and left wrist following a fall from his motorcycle whilst undertaking recreational activities on a go-kart track. He did not injure his left middle finger in that accident and he fully recovered from those injuries shortly afterwards.

Post-operative work history

46. At the time of the surgery the plaintiff was working as an on-site traffic controller for Boral. There was an element of confusion in the evidence as to when he left this employment to take up full-time employment as a courier with Belmont Deliveries. The transcript of evidence identifies this changeover of employment as having occurred after the operation in question. In June 2006 the plaintiff obtained permanent employment with Belmont Deliveries as a full-time courier driver. This employment required him to drive a Toyota HiLux utility. In this job he earned $700 per week gross.

47. The plaintiff’s duties in that employment required that he drive the vehicle, carry, stack and deliver parcels that were predominantly car parts. He said he enjoyed the work but found it increasingly difficult and frustrating to cope with. This was because he had to use the gear stick which would result in him experiencing feedback stimulation of the injured nerve to cause a burning sensation. He tried to find ways of handling parcels to avoid that sensation. He found the work difficult. He also had difficulty with the effect on his left hand of the mechanical vibration of the gear lever on the vehicle he had to drive. He also felt insecure in the work as the company was due to be sold. He ceased work for the courier company in August of 2006 because he experienced an emotional breakdown. He has been receiving social security benefits ever since. He has informed the department of his earnings with the courier company so that his benefits were appropriately adjusted.

48. Whilst on benefits the plaintiff attended the Hunter Valley Technical College and obtained a Class 3 Certificate in Engineering, Mechanical Trade. That certificate was dated 8 June 2006. He obtained this qualification in order to assist him with the practical aspects of his desire to work with metals and associated drilling and material removal in such work.

49. In December 2007 the plaintiff was offered a one-day work trial with Hank’s Auto Electrics. After the trial he was offered a position which he accepted although he had experienced pain when handling the parts and tools associated with the work. When it came time to start the job the plaintiff said he could not face it and he was distressed. He explained that at the time he was depressed and had thoughts of self-harm. He also felt he did not want to start with an apprenticeship if there was a chance he might not be able to continue because of the pain he was enduring.

50. The plaintiff said that although he enjoyed his previous stint of employment with the boat builder he felt that such work was now beyond him because he would find it too painful handling tools such as sanders, planning machines, grinders and the like.

51. The plaintiff undertook an out-of-season work trial stint as a photographer on Daydream Island which was not successful nor was it productive of much in the way of earnings. He thought, somewhat optimistically, that here was every prospect of him working as a freelance photographer many years down the track after he had learnt more about photography and had gained more experience. In the meantime he continues to study photography, including on the internet.

52. At present he is undertaking a TAFE course in computer studies and will probably re-enrol in that course in the new year. His goal in this regard is to try and obtain qualifications to position himself for possible entry level in the IT industry to enhance his employment options.

53. The defendant did not suggest that the plaintiff has failed to mitigate his loss. In my view it is clearly apparent from the evidence that the plaintiff has taken reasonable steps to attempt to mitigate his loss of earnings.

Plaintiff’s most likely pre-injury circumstances and prospects for employment

54. Since the plaintiff makes a claim for future loss of earning capacity it is necessary to review the plaintiff’s most likely circumstances but for the advent of the deleterious effects of the surgery in question: s 13(1) of the Civil Liability Act 2002.

55. I find that before the surgery in question the plaintiff had largely overcome the negative emotional and psychological effects that he endured as a result of the bullying he experienced whilst at school and which had caused him to suffer low mood and depression, conditions for which he was vulnerable due to underlying Asperger’s syndrome, as was variously described by the medical experts who examined him.

56. I also find that before the surgery in question the plaintiff was highly motivated to obtaining employment. This is clearly evident from the courses the plaintiff had pursued privately in order to obtain industrial qualification certificates in a number of classifications.

57. It has to be acknowledged that although the plaintiff had largely overcome the negative effects of bullying in his earlier life at school, he nevertheless remained vulnerable to the possibility of developing low mood or depression if he were to encounter adverse events that would challenge his ability to cope with them. Examples of circumstances which could possibly cause such problems include the possibility of bullying in the work place even though such behaviour is unlawful, and any persisting challenges to his self-esteem including disability from injury however caused.

58. Notwithstanding the foregoing factors, on the positive side, the plaintiff has demonstrated that he is a conscientious young man who has in the past impressed prospective employers who had offered him employment. Since such offers were made following work trials I infer that the plaintiff was able to successfully apply himself to the work tasks required of him. He also had in the past obtained assistance and guidance when he had required help due to adversity.

59. I consider that these matters would have augured well for the prospect of the plaintiff obtaining, and maintaining regular paid employment in areas in which he had skill and interest, particularly in areas of work that involved mechanical understanding and application.

Medico-legal assessments of the plaintiff

60. In addition to the reports from his treating doctors, the plaintiff has been examined and assessed by a number of medico-legal examiners at the request of the solicitors for the respective parties.

Assessments arranged at the request of the plaintiff’s solicitor

Associate Professor Bruce Connolly – consultant hand surgeon

61. On 9 April 2008 the plaintiff was examined at the request of his solicitors by Associate Professor Bruce Connolly, a consultant hand surgeon. The plaintiff gave Associate Professor Connolly the history that his left middle finger was still numb on the radial side and that he had no appreciation of hot or cold in that area. Associate Professor Connolly recorded the history that if the plaintiff’s finger was bumped at the scarred area this caused pain. The plaintiff complained that he experienced a persistent unpleasant sensation in his finger. He reported that there was no progress concerning sensation in the finger since the plaintiff last saw Dr Meads on 24 October 2007. Associate Professor Connolly observed normal function of the left hand and arm apart from in the left middle finger. He noted subjective and objective numbness along the radial border of the finger on the volar and dorsal aspects and he noted that the radial pulp of the distal aspect of that finger was dry. He observed the presence of a mild neuroma sign at the site of the injured nerve at the proximal part of the neurotube and he noted that the plaintiff’s digital circulation was diminished on the radial side of the affected finger.

Dr Patricia Jungfer – consultant psychiatrist

62. On 7 October 2008, at the request of his solicitor, the plaintiff was examined by Dr Patricia Jungfer, a consultant psychiatrist. Her report was dated 14 October 2008. Dr Jungfer took a history from the plaintiff of his past depressive and anxiety condition that had occurred in response to the severe bullying that he had experienced whilst at school. She noted that the plaintiff’s condition improved in that regard and she noted that he had shown he was capable of recovering from his mood disorder and that he had gone on to establish a good employment history and to form a positive personal relationship. She also noted the onset of neuropathic pain after the ganglion surgery and the subsequent development of the neuroma which led to a recurrence of the plaintiff’s mood disorder and the onset of a severe depressive disorder. She found the plaintiff to be disengaged at interview, being stilted and cut off in his manner of relating to the examiner. On testing using the Beck Inventory for Depression she ascertained that the plaintiff was severely depressed and her diagnosis was one of major depression.

63. Dr Jungfer noted the suggestion that the plaintiff may have an underlying Asberger’s syndrome or ADHD but she stated that these diagnoses were difficult to clarify in the presence of the plaintiff’s significant mood disorder. Dr Jungfer was of the view that the plaintiff’s current depression was precipitated by the development of neuropathic pain and the related limitations this pain caused for the plaintiff. From a prognostic point of view she felt that the neuropathic pain was a factor that maintained the plaintiff’s depression. Other identified maintaining factors were the inability to form a therapeutic relationship with a psychiatrist, and, as I read Dr Jungfer’s report, an inability to achieve a recovery from his hand symptoms. She thought the plaintiff needed the assistance of a chronic pain management service. She also thought that the plaintiff’s mood disorder would be an impediment with respect to employment but would not be a total prohibiter regarding employment. She thought that although the plaintiff had in the past demonstrated a capacity to recover from his mood disorder she believed it would be difficult for him to achieve this whilst he continued to suffer from neuropathic pain.

Assessments of the plaintiff arranged at the request of the defendant’s solicitor

Associate Professor Peter Haertsch – consultant plastic surgeon

64. On 23 April 2009 Associate Professor Peter Haertsch, a consultant plastic surgeon, provided an expert report to the solicitor for the defendant on the liability issues. Associate Professor Haertsch did not meet or examine the plaintiff for the purpose of forming his opinion on the liability issues upon which he was asked to comment. He prepared his report on the basis of assumed facts.

Dr Hunter Fry – consultant hand surgeon

65. On 17 September 2008, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Hunter Fry, a consultant hand surgeon. Dr Fry’s report of that examination was not served by the defendant and therefore, apart from it being mentioned as being absent, it did not feature in the evidence.

Dr Leonard Lee – consultant psychiatrist

66. On 17 February 2009, at the request of the solicitor for the defendant, the plaintiff was assessed by Dr Leonard Lee, a consultant psychiatrist. Dr Lee provided an extensive report on the same date. Dr Lee noted the plaintiff’s ongoing disabilities to include pain, numbness and diminished function of the left hand, unpleasant sensations in the left middle finger and emotional distress. After reviewing the plaintiff’s history he assessed him and found no evidence of “a clinically-significant depressed mood nor anxiety.” He noted an obsessional manner in the plaintiff. He was unable to personally feel the lump in the plaintiff’s left hand. I draw no adverse conclusion from Dr Lee’s inability to palpate the lump because he is not a specialist hand surgeon and it was not suggested, based on Dr Lee’s examination, that the plaintiff did not have the neuromatous lump both he and Associate Professor Connolly had described.

67. Dr Lee proceeded to identify, review and summarise a large number of medical reports and records that were provided to him for the purpose of preparing his report. It is evident from his report that a good number of these items were not tendered in evidence in the proceedings.

68. Dr Lee’s opinion as set out in his report was that the records he had reviewed only supported some mild degree of emotional distress resulting from the surgery in question. This raises the question of the extent to which he relied upon the documents provided to him for the formation of his conclusions.

69. Dr Lee appears to have accepted that the plaintiff suffered from pre-existing psychological problems variously diagnosed as Asperger’s syndrome, rampant ADHD and depression. He felt that as persons with Asperger’s syndrome tended to be obsessional, he thought it was possible that the plaintiff was more concerned about his hand sensations than the average person might be in similar circumstances. Dr Lee thought the plaintiff as not unfit for employment and noted the plaintiff’s optimism in this regard. He also expressed the view that there was no current indication for psychiatric treatment although he qualified this view on account of the fluctuating history and he allowed for the possibility that treatment might become a relevant issue for the plaintiff in the future.

70. The opinions expressed by Dr Lee in his report were significantly qualified by his oral evidence.

71. In the cross-examination of Dr Lee it emerged that he had based his opinion as to the absence of any psychiatric diagnosis due to the finger disorder and his opinion that the plaintiff only had some mild degree of emotional distress on a review of the reports that he had been given, some of which did not feature in the evidence.

72. Under cross-examination Dr Lee resiled from the opinion in his tendered report in the sense that whereas he reported on the presence of some mild degree of emotional distress, when he reviewed the report at court and after he had undertaken a review of the documents he had been given, he changed his opinion to state that in his view, there was nothing in the material he had reviewed to support a contention that the plaintiff had any emotional distress following surgery. This was surprising because he did not raise this in his evidence-in-chief and he had not reported that change of view to the solicitor for the defendant before he gave evidence, as might have been expected of an expert in such circumstances. The question of which particular aspects of his review of the documents had caused him to change his opinion was not explored or explained.

73. Dr Lee agreed that it was not uncommon for a psychologically vulnerable person who has been subjected to the stressor of an adverse outcome from an operation to experience a greater effect from the stressor than would be the case with someone who is not psychologically vulnerable.

74. Dr Lee acknowledged that it appeared from the material he had read that the conditions that affected the plaintiff as a school student were largely under control and that the plaintiff was getting on with his life and coping pretty well until the events of the surgery in question.

75. Dr Lee was challenged on his statement that following the operation performed by Dr Meads, the plaintiff stated that he suffered no significant pain. The plaintiff denied that he had told Dr lee that he had no significant pain. Dr Lee stated that his comment was based on his record of what was said in his consultation with the plaintiff. Dr Lee acknowledged that, subject to variables, an individual’s perception of pain was a significant phenomenon.

76. I do not consider that anything of substance turns upon the evidence of whether or not the plaintiff told Dr Lee that he had no significant pain because the expression “no significant pain” is not a term of precise meaning, being inherently subjective and capable of being seen as a vague expression. Since the plaintiff was not cross-examined on the detail of his interchanges with Dr Lee on the question of his perception of his pain as he had described to Dr Lee which led to this summary description by Dr Lee, fairness dictates that I draw no adverse inferences against the plaintiff arising from Dr Lee’s record of the history in that regard : Mason v Demasi [2009] NSWCA 227; Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320.

77. Dr Lee fairly conceded that if, contrary to his opinion, the plaintiff did in fact suffer from significant ongoing pain and/or severe depression, he would have to review his opinion.

Determination of liability and causation issues

78. The case was heard in a running list on circuit in Newcastle. As important issues of liability required resolution, the parties and the experts co-operated with short notice directions made pursuant to r 31.35 of the Uniform Civil Procedure Rules 2005. Those directions facilitated an expert evidence session at which Associate Professor Connolly, who had been retained on behalf of the plaintiff, and Associate Professor Haertsch, who had been retained by the defendant, gave this oral evidence concurrently. This process assisted with clarifying the real issues to be determined. The determination of the liability issues was not dependent upon the credibility of the plaintiff’s testimony.

Issue 1 – The nature of the surgical injury to the plaintiff’s left middle finger

79. On behalf of the plaintiff it was submitted that the injury to his left middle finger involved a surgical division by cutting of the digital nerve and digital artery of that finger.

80. The defendant’s arguments against making such a finding were, first, that there is no mention of any such division of these structures in Dr Rao’s operation note, secondly, there is mention in the post-operative recovery notes of the plaintiff’s finger sensation having returned and thirdly, there is mention in the post-operative follow-up notes of sensation having improved some 5 weeks post-operatively. The defendant submitted this evidence suggested some kind of intra-operative bruising, neuropraxia or pressure type injury had occurred to the nerve rather than a division by cutting or, by inference, due to tearing during a blunt dissection following what has been identified in an assumption as a “nick and spread” procedure.

81. In my view, the absence of any mention of a nerve injury in the operation note is not definitive of the absence of such an injury, particularly since the author of the note in question was not called to give evidence of the level of detail which the notes were intended to contain. The terms of the note do not exclude the possibility that the person making the note may not have thought it relevant to make a note of such an injury, or alternatively, may not have detected or observed the fact of such an injury. Without such explanatory oral evidence of the circumstances, I am not prepared to draw the submitted inference from the operation note because to do so would involve unwarranted speculation.

82. It is true that the hospital notes contain two relevant entries that may suggest there was a degree of post-operative return of sensation in the plaintiff’s middle finger, the first being the 15:00 observation made in the post-operative recovery phase and the second being on 29 August 2005 when Dr Rao recorded the note “improved symptom.” However, I do not consider those entries to be probative of nerve recovery or probative of non-division of the affected neurovascular structures during the operation. This is so because the authors of the notes were not called to explain the circumstances in which the notes were compiled nor was there an explanation of the parameters of relevance for making such notes. Without such explanations, I consider that reliance on the notes as proof that there was no nerve and artery division is problematic and inappropriate in this case : Mason v Demasi [2009] NSWCA 227; Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320.

83. The defendant’s argument that there was no surgical division of the nerve was based on the post-operative “symptom improved” follow-up notation that was made by Dr Rao, this being a reference to the plaintiff’s complaint of numbness in the affected finger. In my view, without explanatory evidence of the circumstances and manner of the examination and the terms of the testing, the note cited was of only limited probative value as potential proof that there had been no nerve division : Mason, Container Terminals Australia Ltd.

84. A further reason for rejecting the argument that the nerve and related structures were not divided as a result of the surgery is on the basis of Associate Professor Connolly’s unchallenged analysis, which I accept, that the nerve had been cut. In his oral evidence Professor Haertsch also accepted that it had been proven that the nerve had been cut. I consider that the same process of reasoning applies to the damage to the associated digital artery as well.

85. In this regard I accept Associate Professor Connolly’s explanation that the assumed reported improvement in the plaintiff’s neurological symptoms, that was noted by Dr Rao some 5 weeks following the surgery, was not consistent with a neuropraxic injury because there could have been an overlap of the relevant nerves giving rise to sensation in the area of the middle of the three palmar creases of the middle finger of the plaintiff’s left hand. It is noteworthy that the possibility of neuropraxia having occurred was only a working assumption adopted by Associate Professor Haertsch when he prepared his report but that assumption was overtaken by the concession he made in his oral evidence in which he accepted the nerve had been cut.

86. In his oral evidence Associate Professor Connolly stated, and I accept, that as the numbness had persisted for a month post-operatively, this was more likely to be due to a cut nerve than due to a neuropraxic nerve. In his oral evidence in the concurrent evidence session, Associate Professor Haertsch expressed no disagreement with that view which adds weight to the view that I should accept Associate Professor Connolly’s view on this point. Although in his report Associate Professor Haertsch had earlier stated that in the post-operative period it was not unreasonable to work on the basis that the plaintiff’s injury may have been a neuropraxia, I prefer Associate Professor Connolly’s opinion that there had been a division of the nerve as this was consistent with the unchallenged operative finding by Dr Meads, in his description of the injury to that nerve and the adjacent artery, when he undertook a surgical exploration of the nerve and its surrounding structures at the operation he carried out on the plaintiff on 23 March 2007.

87. Having found that the plaintiff suffered a surgical division of the digital nerve and digital artery as a result of the operation in question, it becomes necessary to consider the mechanism by which this injury could have occurred.

Issue 2 – The probable mechanism by which the plaintiff acquired the injury

88. The defendant submitted that Dr Rao had conducted a blunt dissection of the tissues around the ganglion and therefore could not have cut the structures that were later found by Dr Meads to have been divided. The basis for that submission requires close examination, particularly since both experts have accepted that these structures had been cut.

89. In the process of commissioning the report of Associate Professor Haertsch, the defendant had asked him to assume, amongst other things, that the operation had been performed as follows:

“5. The surgical approach was via a transverse incision (along the width of the finger) and a ‘nick and spread’ technique. Retractors were used to protect the digital nerves and vessels.”

90. Significantly, the defendant called no evidence from any person who had been present at the operation to prove the factual validity of that assumption. Instead, the defendant relied upon the content of Dr Mitchell’s letter dated 21 July 2005 in which Dr Mitchell said of the process of ganglion removal:

“This was removed under a general anaesthetic through a small transverse incision. The digital nerves were protected through blunt dissection and the ganglion excised in total without difficulty.”

91. This letter from Dr Mitchell leaves open the question of whether, through a blunt dissection, the digital nerves were exposed, visualised and by those means, protected. A possible alternative interpretation of the passage cited is that Dr Mitchell was seeking to convey that the digital nerves were protected because they were not exposed in the process of dissection. A further possibility was that which was raised by Associate Professor Haertsch, namely that the nerves would have been protected because a blunt instrument dissection would not have cut the nerves.

92. When consideration is given to the diagrammatic representation of the digital nerves and vessels portrayed in the anatomical drawing comprising Plate 429, from FH Netter, Atlas of Human Anatomy, Second Edition (1997), which comprises Exhibit “C”, the importance of the location, length and width of the incision becomes apparent. This is so because the diagram shows that the middle finger has two such nerves and arteries on the palmar or volar aspect, each being lateral to the tendon sheath and on either side of the palmar aspect of the finger.

93. With regard to the incision there is an apparent mismatch between what the defendant asked Associate Professor Haertsch to assume, namely, that a transverse incision was carried out along the width of the finger, an assumption for which there is no supporting evidence other than the assumption itself, compared to the description given by Dr Mitchell, namely, that the transverse incision was small. In noting that apparent mismatch I have to allow for the fact that these descriptions are relatively imprecise and the latter was probably not intended to be empirical.

94. It therefore becomes necessary to clarify the evidentiary status of the assumptions put to Associate Professor Haertsch. The statement of assumptions is a document that forms part of Exhibit “1” and in that sense it is in evidence in the proceedings. The document was not the subject of objection, presumably because as an assumption used to base the opinion set out in the report that followed, it still required proof.

95. Section 60 of the Evidence Act 1995 reverses the hearsay rule and provides a basis for admissibility of previous representations of historical fact in medical reports : Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 per Heydon JA at [70].

96. In this case the representation that was made on behalf of the defendant hospital in the form of an assumption purporting to assert what in fact occurred at the operation is in my view very far removed from the s 60 considerations that were explained in Daw. The statement of assumptions in Exhibit “1” was not a medical report that followed an examination, which distinguishes the case from the position in Daw. Accordingly, in my view, the status of the evidentiary assumption numbered 5 is that it does not constitute proof of the asserted facts therein contained.

97. Further, if I am wrong in this analysis, in the context of this case, I consider that to place evidentiary reliance on such an assumption in the absence of oral testimony of the surrounding events that occurred whilst the plaintiff remained anaesthetised, would create a danger of unfair prejudice to the plaintiff. This analysis also leads me to the view that without such evidence, no reliance should be placed on the assumption in question : s 136(a) of the Evidence Act 1995.

98. The plaintiff challenges the submission that a blunt dissection occurred at operation as was stated in the 21 July 2005 letter from Dr Mitchell, at least at that part of the operation where the digital nerve and the digital artery were cut and divided.

99. A preliminary issue has been raised as to whether Dr Mitchell was present during the operation in question or whether the content of his letter as cited above was based on a hearsay account provided to him by Dr Rao, or alternatively, whether it was a matter assumed by Dr Mitchell from his reading of the operation note, taken together with his expectation of what steps were required for the procedure to be performed on a patient admitted to the hospital under his care.

100. Other than the operation note, there was no direct evidence that Dr Mitchell was present during the operation and in a position to observe the surgical technique employed by Dr Rao when the procedure was carried out. The plaintiff has submitted that although the operation note named the surgeons as “Mitchell : Rao : Kumer” this did not necessarily mean that Dr Mitchell was present.

101. Dr Rao’s name appears as the author of the operation note which relevantly states:

“FINDINGS AND TECHNIQUE

Patient was given general anaesthetic, tourniquet applied, routine prep and drape of left arm. Transverse incision at the base of the proximal phalanx. Dissection down to ganglion excised. Wash. Closure with 4/0 Prolene. Local anaesthetic Marcain 0.5%. dressing and bandage. Patient sent to recovery in a good condition.

POST-OPERATIVE ORDERS;

neurovascular obs, analgesia, elevation, discharge when comfortable. Follow-up in Dr Mitchell’s clinic at Royal Newcastle Hospital.

RAO (nr)”

102. Significantly, the described dissection referred to in the operation note did not state that the dissection was blunt, as was stated in the 21 July 2005 letter from Dr Mitchell to the general practitioner. The plaintiff submitted that Dr Mitchell’s letter was of limited probative value as to the veracity of its contents because it was written in the passive rather than the active voice.

103. The two experts called were asked to consider the operation note.

104. Associate Professor Connolly was not prepared to assume from the notes that Dr Mitchell had instructed the orthopaedic registrar Dr Rao to carry out the surgery in a particular way and that the registrar in fact carried out the procedure in that way. Associate Professor Connolly questioned whether Dr Mitchell was present during the procedure. Although the basis for that query was not fully explored, I have assumed it was as a result of his understanding of what occurs in operating theatres and on operating lists in public hospitals.

105. The question raised by Associate Professor Connolly as to whether Dr Mitchell was present was not based on idle speculation. Associate Professor Connolly explained that whilst it was the hope that the consultant would be present to direct the process of surgery, he did not know whether in fact that occurred in this case. He explained that there are different systems that prevail in different hospitals. He said that in his hospital, Sydney Hospital, which is a centre for hand surgery, every case is supervised by the consultant in attendance. He also said that this didn’t happen at every hospital and he had no knowledge of what happened at Royal Newcastle Hospital in this regard in 2005.

106. Significantly, neither Dr Mitchell, Dr Rao, Dr Kumer nor anyone else from Royal Newcastle Hospital with knowledge of such matters was called to clear-up this uncertainty.

107. In the end analysis, for practical purposes, it does not matter which of the three legally qualified medical practitioners who, the operation note identifies as being at the operation, actually carried out the procedure or parts of the procedure in question. It has to be assumed that whoever performed the operation, or any part of it, when doing so, assumed the skill and competence of an orthopaedic surgeon professing ordinary skill and competence concerning the removal of a volar retinacular ganglion of the left middle finger. That is the relevant standard by which the operation and its result has to be evaluated.

108. Returning to the operation note, Associate Professor Haertsch agreed that the operation note gave no clue as to whether there had been a blunt dissection during the operation on the plaintiff’s ganglion. Associate Professor Connolly saw the operation note as permitting the possible interpretation that the dissection could well have been by means of blunt instruments but the excision of the ganglion itself must have been done with a sharp instrument to cut the ganglion at its base. That explanation strikes me as reasonable.

109. Associate Professor Connolly described his view of the essential steps for the standard manner of carrying out the procedure. He described the need to make an incision at the base of the finger long enough to expose the entire ganglion and the nerves on either side. The focus of his approach concerned the safety of the nerves. He said that it was accepted practice to “identify the nerves, stay out of trouble” as it was safer to identify them before using a sharp instrument to remove the ganglion. He argued it was safer to see them than not to see them. He went on to elaborate on the surgical steps required:

“WITNESS CONNOLLY : Cut the skin, lift up flaps of tissue, expose the ganglion, and because you have to use sharp instruments to excise the ganglion and its base and because the nerves like in a trigger thumb are so close to it, it is safer to either by using blunt dissection or sharp dissection, to actually identify the nerves to avoid damaging them.”

110. Associate Professor Haertsch stated his differing view of the standard procedure for removal of this type of ganglion in the following terms:

“WITNESS HAERTSCH: I was taught to expose the ganglion through a horizontal, as opposed to a longitudinal incision, and that of course used sharp, you used the knife to make that incision, but as soon as you got into the, beneath the dermis, we then used retractors, usually cats’ paws or maybe, usually cats’ paws, sometimes some, what’s the word I’m looking for, hooks, but then to expose the ganglion by opening and closing artery forceps, so blunt dissection.”

111. In this way the rationale for the differing approaches described by the respective experts became plain. Associate Professor Connolly’s method was to undertake a dissection that exposed the nerves on either side of the ganglion before removing the ganglion. His rationale for such an exposure was to identify and protect these structures for safety reasons. In contrast, Associate Professor Haertsch’s method for removing a volar ganglion did not involve exposing the nerves. He said of the digital radial nerve and artery:

“WITNESS HAERTSCH: Well I never see it when I’m doing a volar ganglion. The only time I ever see any, the only time I will see digital nerves is when I’m doing a trigger thumb. That’s when I will see them, because they are very close to where I am working.”

112. Associate Professor Connolly distinguished Associate Professor Haertsch’s analogous reference to trigger thumb surgery by stating:

“WITNESS CONNOLLY : Yes, a trigger thumb is the same approach, exposure, as a ganglion incision. The difference with a trigger thumb is you’re just cutting the middle of a tendon sheath, whereas to remove a ganglion, you have to excise a section of the base of the ganglion and that area is just adjacent to the two nerves and that’s why I think it’s accepted practice and my view is to see the nerves, then you can’t injure them.”

113. Associate Professor Haertsch explained his differing surgical experience to that of Associate Professor Connolly in the context of needing to identify the nerves to avoid damaging them:

“WITNESS HAERTSCH: Well it hasn’t been my experience. The ganglia that I’ve dealt with are very like little grains of rice, very easy to find and I don’t excise a cuff of tendon sheath.”

114. Associate Professor Haertsch did not elaborate on whether the sizing of the little rice grains he had in mind was a reference to desiccated rice grains or rice grains that had expanded in volume after cooking.

115. Through the foregoing process of analysis it became apparent that Associate Professor Connolly and Associate Professor Haertsch were each considering and describing a different surgical technique that was directed at the removal of ganglia of differing sizes.

116. In the case of Associate Professor Haertsch, he had directed his attention to a ganglion which was the size of a little grain of rice and which did not involve excision of a cuff of tendon sheath whereas in the case of Associate Professor Connolly, he had directed his attention to a ganglion that was about half a centimetre in diameter which was the description in the hospital clinical notes and which required excision of a section of the base of the ganglion at its roots on the underlying tendon sheath in an area adjacent to the nerves. I infer from this description that the base of the typical ganglion of the size under consideration by Associate Professor Connolly is not just an isolated spot of contact with the tendon sheath but existed at its base over a wider area of the surface of the tendon sheath including near the nerve and artery in question.

117. Clearly, having regard to Associate Professor Connolly’s description, logic dictates that there must be differing levels of risk of injury to the digital nerves and adjacent vessels associated with the steps required to remove the differing sized ganglia that were contemplated by the respective experts.

118. The assumptions provided to Associate Professor Haertsch by the solicitor for the defendant were silent on the pre-operative assessment of the size of the plaintiff’s ganglion.

119. It appears from a review of the evidence that Associate Professor Haertsch had derived his own assumption concerning the size of the plaintiff’s ganglion from his experience in dealing with little rice grain sized ganglia. The origin of that assumption by Associate Professor Haertsch first appears in the conclusion to his report where he stated:

“In essence this has been an unfortunate event and normally these ganglia are small, perhaps being in the vicinity of the size of a grain of rice, and they are centrally located and are not in any immediate relationship with the digital nerves which would not normally be identified.”

120. It is also apparent from his conclusion that Associate Professor Haertsch has assumed that the removed ganglion was not only of little rice grain proportions but that it was centrally located on the tendon sheath. This assumption by Associate Professor Haertsch, which does not appear anywhere within the clinical evidence, provides some indication as to why Associate Professor Haertsch considered the digital nerve and related structures were not at risk in a procedure for ganglion removal where the digital nerves were not exposed for direct visual recognition and direct protection as opposed to indirect protection. In this analysis, the size of the ganglion and the position of its location on the tendon sheath takes on some significant importance to the resolution of the liability issues in this case.

121. Even if the ganglion was in the midline, and there is no evidence that it was, a ganglion larger than a little grain of rice would necessarily occupy an area on the tendon sheath lateral to or away from the midline. Based on the description by Associate Professor Connolly and on viewing the diagrammatic representation of the surrounding structures in Exhibit “C”, I consider it is a reasonable presumptive inference that at the lateral edge of a ganglion larger than a little grain of rice would necessarily have been away from the midline and closer to the adjacent digital nerve and artery : Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538.

122. The hospital records do not contain any form of post-operative pathology report to provide a description of the actual dimensions of the excised ganglion. Neither do the hospital notes contain any intra-operative diagram providing an indication of the relative position of the ganglion on the tendon sheath. The only available objective guide to an understanding of the size of the removed ganglion was the 14 June 2005 note prepared by the orthopaedic registrar following his pre-operative examination of the plaintiff. Relevantly, the note states:

“… ½ cm lump MCP joint ex flex crease R (sic for L) MF Nil triggering …”

123. That description broadly coincides with the plaintiff’s own description of the lump being about a third of the size of a pea; indicating a relatively larger structure than the one assumed by Associate Professor Haertsch when preparing his report. I do not require evidence to conclude that there is a significant relative size difference between a little grain of rice of whatever variety and a half centimetre lump.

124. On the evidence, the only objective description of the ganglion was the pre-operative estimate of half a centimetre as I have cited.

125. Accordingly, it is clear that Associate Professor Haertsch and Associate Professor Connolly had in mind two entirely different factual indications for operative removal of the ganglion, each requiring differing degrees of surgical dissection and exposure of the relevant tissues due to the differing assumed sizes of the ganglion. This undoubtedly influenced the degree of risk of injury to nearby structures, being the nearby digital nerve and the digital artery.

126. Having had the benefit of the respective descriptions of what surgical steps and considerations were involved in the exposure and removal of a ganglion, it is clear from the description in the notes of the size of the ganglion that it required excision by the method described by Associate Professor Connolly, namely, excision of the ganglion at its base, including part of the tendon sheath to which it was attached, this being in an area that was adjacent to 2 digital nerves that required protection.

127. This leads me to the view, on the balance of probabilities, that the cutting of the tendon sheath for the ganglion excision took place near the adjacent nerve and artery and, in such close proximity that these structures were cut in the course of the procedure. In my view that mechanism was a far more likely occurrence than a process of nerve injury by blunt dissection because the latter explanation is inconsistent with the operative findings of Dr Meads which identified that there had been a division of the adjacent nerve and artery.

128. I therefore find that the plaintiff suffered a surgical division of the digital nerve and digital artery in his left middle finger due to sharp instrumental surgical dissection in the course of the operation for ganglion removal. I reject the argument that the injuries in question were due to trauma occasioned during a blunt dissection, as was contended by the defendant.

Issue 3 – Breach of duty of care or an acceptable result of ganglion removal?

129. Subject to any defence based on s 5O of the Civil Liability Act 2002, the essential question in this case is whether the plaintiff’s injury was an acceptable result of surgical removal of a retinacular ganglion on the flexor tendon of the left middle finger or whether such injury was due to a breach of the duty of care owed

Eminent expert opinions

130. In this case two eminent and well qualified experts addressed the question of the acceptability of the plaintiff’s injury as a result of the surgery in terms of whether or not there has been a breach of duty of care. It is well settled that such expert opinions of this kind are a useful guide and are informative of the duty of care but such opinions are not necessarily determinative in a legal analysis : Rogers v Whittaker [1992] HCA 58; (1992) 175 CLR 499. That position is also reflected in s 80 of the Evidence Act 1995 which makes such opinions on the ultimate issue admissible.

131. Associate Professor Connolly stated, from the surgical perspective, that the plaintiff’s injury was an unacceptable result of surgical removal of a retinacular ganglion on the flexor tendon. As such, he stated that this injury represented a departure from an accepted standard of practice. From a legal perspective that opinion, if accepted, is capable of sustaining a finding that there was a breach of duty of care in this case. In his report Associate Professor Connolly stated:

“For the surgical procedure of removal of a volar retinacular ganglion to be complicated by division of an adjacent digital nerve or artery represents departure from an accepted standard of practice. Accepted practice is for the digital nerves and blood vessels to be identified and protected during the excision of such a ganglion.”

132. In contrast to the opinion of Associate Professor Connolly, Associate Professor Haertsch stated that the plaintiff’s injury, whilst unfortunate, was not occasioned as a result of breach of duty or due to the use of an incorrect surgical technique. In his report he stated:

“I do not believe that identification of the digital nerves and blood vessels for the removal of a volar ganglion within a finger is routine, and may well cause more harm than good.
…

It is not generally routine procedure in the removal of a volar ganglion to identify and subsequently protect the digital blood nerves and vessels.”

133. Implicit in these comments, Associate Professor Haertsch raised the often made criticism of legal analysis, namely that it is based on after the event knowledge of an adverse result and is therefore based on hindsight considerations and it is not a prospective analysis. In his oral evidence he put it as follows:

“Well a rectospectoscope has 20/20 vision, but I don’t identify (the nerve) so I wouldn’t have expected it to be cut.”

134. It is apparent that the analysis within the report of Associate Professor Haertsch proceeded upon the basis that he was assuming the operation on the plaintiff was a “routine procedure”. I infer from his oral evidence that a “routine procedure” was one involving a ganglion that was the size of a little grain of rice which he described as the ganglia he saw. In this sense, given that the objective evidence of the size of the plaintiff’s ganglion, it is apparent that the procedure for excision of the plaintiff’s ganglion was not “routine” according to the criteria of Associate Professor Haertsch.

Analysis and findings concerning the opinion of Associate Professor Haertsch

135. In my view the basis for Associate Professor Haertsch’s opinion stating that steps taken to achieve the intra-operative identification for protection of the digital nerves and blood vessels may do more harm than good was not adequately explained. In that sense I consider that his opinion in this regard does not comply with the requirements of Sch 7 cl 5(c) of the Uniform Civil Procedure Rules 2005 which requires an expert to state the reason for each expressed opinion.

136. For that reason I consider Associate Professor Haertsch’s view as cited above to have very little probative value. Instead, I prefer the carefully reasoned view of Associate Professor Connolly, especially since his perspective involved considerations of safety to avoid injury to the nerve in question. I prefer and accept that view to Associate Professor Haertsch’s view that what happened to the plaintiff was an unintended consequence from a straightforward surgical procedure.

137. Whether or not an injury was an acceptable result of the surgery must involve considerations of safety and injury to the patient. I consider this to be so having regard to what is well known to be the first consideration of elective surgical treatment namely, doing no harm. That precept is so widely understood as a social value that a court does not need evidence for such a proposition.

138. I consider that a re-sectional surgical procedure that involves dissecting and cutting tissues in close proximity to nerves and vessels which, if damaged, can lead to lasting disability, requires particular consideration to be given to safety and precautions against nerve damage where this can be conveniently implemented, as was explained by Associate Professor Connolly, whose views I accept in this regard. In this case, from a lay perspective, the additional protective measures as described by Associate Professor Connolly make perfect sense and do not seem to be overly complex or inconvenient for a surgeon to achieve, especially where one of the concurrent aims of the procedure was to protect (if not identify) known and locatable delicate adjacent structures from sustaining avoidable damage.

139. I am satisfied that from the viewpoint of prospective risk analysis, the operative course described by Associate Professor Haertsch, when applied to a half centimetre sized ganglion rather than a ganglion that was like a little grain of rice as he had contemplated, was laden with unnecessary and avoidable risk if intra-operative steps were not taken to identify and protect the digital nerves and arteries during that phase of the procedure that involved cutting the base of the ganglion from the attached tendon sheath.

140. In my view, the planning and execution of a surgical procedure involving cutting off the base of the ganglion where it was rooted in the tendon sheath and in the vicinity of nerves and an adjacent artery without first visualising and protecting these structures to avoid damaging them must be seen to be inherently unsafe and unacceptable as being outwith accepted practice.

141. For the reasons I have outlined above, I prefer the opinion of Associate Professor Connolly to the opinion of Associate Professor Haertsch on the issue of whether or not the intra-operative nerve and artery injury suffered by the plaintiff was an unacceptable result of the surgery for ganglion removal. I accept Associate Professor Connolly’s conclusion that the result obtained by the plaintiff was unacceptable in that these structures were cut because the digital nerve and the digital artery were cut when these structures were not identified and protected before the removal of the ganglion as no surgeon of ordinary skill and competence would set out to cut these structures in the course of such an operation. I consider that result could have been conveniently and reasonably avoided if due care had been taken during the operation to identify and protect these structures.

142. This conclusion is not the end of the analysis because the requirements of the Civil Liability Act 2002 have to be considered and met before a finally concluded view can be reached on the issue of liability.

Liability considerations required by the Civil Liability Act 2002

143. The applicable statutory provisions are in Pt 1A Divs 1, 2 and 3 of the Civil Liability Act 2002 ss 5B, 5C and 5D as the plaintiff’s claim is governed by that Act : ss 5 and 5A of the Act.

144. Subject to any defence available to the defendant under s 5O of the Act, which I will deal with when analysing the final liability issue, it is necessary to consider whether the statutory requirements for proof of negligence and causation have been satisfied. The plaintiff bears the onus of proving these matters : s 5D of the Act.

145. I will address these considerations in the paragraphs that follow.

Prospective approach to analysis of the problem

146. As has been observed by McClellan CJ at CL in Halverson v Dobler [2006] NSWSC 1307 at [162], it is at times difficult in professional negligence cases for a court to resolve differences of opinion between highly qualified and experienced medical specialists. In such cases, when judging whether there has been a departure from the required standard of care, a legal analysis must proceed cautiously to avoid the danger of contaminating the analysis of relevant events by hindsight knowledge : Halverson per McClellan CJ at CL at [16], following Ipp JA in Capital Brake Service Pty Ltd v Meagher & Ors [2003] NSWCA 225 at [30].

C. DAMAGES ISSUES

180. It is necessary to resolve the issue of the credit of the plaintiff and the conflict within the psychiatric opinions.

Credit of the plaintiff

181. By leave, at the conclusion of the plaintiff’s evidence, the defendant was permitted to further cross-examine the plaintiff. In doing so the defendant put to the plaintiff an amorphous and non-particular allegation that he had exaggerated his symptoms and, by implication, his evidence as to his disabilities. The plaintiff denied the allegations so made. This attack upon the plaintiff’s credit appeared to be based on some oral evidence given by Dr Lee to the effect that it was possible to subjectively and dishonestly manipulate the answers to the Beck Depression Inventory which was administered to the plaintiff by Dr Jungfer. The apparent purpose of these questions was to seek to undermine the basis for the acceptance of the opinions set out in the report of Dr Jungfer.

182. A difficulty with the attack the defendant sought to make on the credit of the plaintiff was that it was not suggested to the plaintiff that he had exaggerated in his answers to the Beck inventory, dishonestly or otherwise, when this inventory was administered to him by Dr Jungfer.

183. I have concluded that the attack on the plaintiff’s credibility should be rejected. I have come to this view for the reasons that follow.

184. First, there is the difficulty that the attack the defendant sought to make was made in circumstances where it was not suggested to the plaintiff that he had exaggerated in his answers to the Beck inventory, dishonestly or otherwise, when this inventory was administered to him by Dr Jungfer : Browne v Dunn (1893) 6 R 67. Whilst it is sometimes impractical or oppressive to fully observe the rule in Browne v Dunn in complex cases so that degrees of observance are at times permissible – Vines v ASIC [2007] NSWCA 75 per Spigelman CJ at [62] and [409] – this was not such a case. Where exaggeration is being alleged in a case such as this, procedural fairness requires some elementary particularity in putting the opposing case to the witness and not just by way of a perfunctory observance of the rule.

185. Secondly, I was impressed with the plaintiff’s direct and forthright answers to questions, there being no difference in the way he dealt with examination-in-chief and cross-examination. If anything, I thought that when he gave his evidence he tended to understate the nature and effect of his disabilities rather than to overstate or elaborate upon them.

186. Thirdly, in view of the defendant’s non-particular form of the allegation of exaggeration, I gave careful consideration to all aspects of the plaintiff’s evidence and to his claim generally. In the course of such consideration it struck me that the plaintiff’s claim was understated rather than being exaggerated. For example, unlike many claims for personal injury of this kind, where there is claimed impairment of the use of a hand, there was no particularised claim for the commercial value of future domestic assistance, a claim that was not capped by statutory thresholds and one that I considered would have been open for the plaintiff to claim on the evidence.

187. Accordingly I find that the plaintiff was a credible witness who gave his evidence without embellishment in a careful and honest manner. I felt compelled to the view that his evidence was entirely truthful. I consider he took particular care to be accurate when answering questions. In view of my assessment of the plaintiff’s credit I felt that I could confidently rely upon the summarised histories of his complaints as was prepared by the assessing doctors when surveying the range and detail of his disabilities : Daw v Toyworld (NSW) Pty Ltd [2007] NSWCA 25 per Heydon JA at [70].

Resolution of conflicting psychiatric opinions

188. The essential difference between the opinions of Dr Lee and Dr Jungfer is that Dr Jungfer found the plaintiff was suffering from a major depression whereas Dr Lee’s initially reported opinion was that there was only a mild degree of emotional distress present. In his oral evidence Dr Lee then changed that view to state the plaintiff was not emotionally distressed. This disparity of opinions requires an evaluation of the basis for these respective opinions.

189. In that evaluation I have to consider the possibility that such differences in diagnostic impressions arose because the respective assessments of Dr Jungfer and Dr Lee were carried out some 4 months apart in the context that there is some evidence that the plaintiff’s problems with mood disorder tended to fluctuate. I do not consider these factors to be relevant because, as Dr Jungfer has noted, and Dr Lee has not, the plaintiff’s problems with his mood are based on his experience of neuropathic pain which has been a continuing issue for him because it is related to his nerve defect and neuroma.

190. In seeking to reconcile the differing views of Dr Lee and Dr Jungfer it seems to me that Dr Lee has focussed his assessment on historical accounts of the plaintiff’s psychological problems based on his review and summary of records that were largely not introduced into evidence. The consequence of this omission from the evidence is that the accuracy, relevance and probative value of some of the matters he has summarised could not be evaluated or tested and there is a risk that unexposed and irrelevant matters may have infected the opinions of Dr Lee.

191. In contrast, Dr Jungfer has transparently based her assessment of the plaintiff not only upon her analysis of the history of the described events that have affected the plaintiff, but she has also based her opinions on her interpretation of a test instrument she administered to the plaintiff, namely the Beck Depression Inventory whereas Dr Lee did not use that approach in assessing the plaintiff, preferring instead to rely upon his own questioning of the plaintiff. Dr Lee acknowledged that both such approaches were valid.

192. Dr Lee explained that the Beck inventory is a self-report questionnaire so that its reliability was dependent upon the honesty of the approach of the individual to the task of answering the questions in the inventory. Dr Lee agreed that a score of 31 on the Beck inventory, as was obtained by Dr Jungfer, was indicative of a major depression. Dr Lee confirmed that persons with Asperger’s syndrome tended to be obsessional and had an obsessional commitment to describing detail with accuracy and truthfulness as they saw the issue. He also added that when he interviewed the plaintiff he did not get the impression that the plaintiff was exaggerating the effects of his disabilities upon his day-to-day life and existence.

193. It is plain from Dr Lee’s evidence that he has based his stated views upon his review of material that was not introduced into evidence. Confirmation of that fact is that he has used that material to make an unexplained value judgment on the significance of the plaintiff’s report of pain in order to reach his conclusion of the absence of emotional distress in the plaintiff. As the material he reviewed and relied upon for this opinion cannot be evaluated, due to the fact that it does not form part of the evidence in the proceedings, in my view this undermines the probative value of Dr Lee’s stated opinions. This should not be taken to represent a criticism of Dr Lee, rather, it simply identifies the methodology by which his evidence has been procured in this case.

194. Having identified that methodology, and having identified the disparity between the documentary basis of Dr Lee’s views with the more limited extent of the supporting documents to his report as tendered in evidence, I consider that to the extent Dr Lee has expressed views different to the opinions of Dr Jungfer, he has arrived at those views in a way where his reasons for those views cannot be analysed for their validity in the usual forensic manner.

195. In these circumstances, and where I otherwise consider Dr Jungfer’s opinions to have been fully and adequately explained on the face of her report, and where her stated views seem on their face to be inherently reasoned and reasonable and are not otherwise glaringly improbable, I find that I prefer the opinions of Dr Jungfer to those of Dr Lee in this case. After dealing with the issue of the plaintiff’s credit, this resolution of the psychiatric opinions will be reflected in my findings concerning the plaintiff’s ongoing disabilities.

Injuries suffered by plaintiff resulting from the operation

196. I have found that during the operation the plaintiff suffered a surgical division of the digital nerve and digital artery of his left middle finger. I base these findings on the observations made by Dr Meads during his remedial surgery. These findings are also supported by the evidence of Associate Professor Connolly and they are not contradicted by Associate Professor Haertsch.

Residual Disabilities

197. I find that the defendant’s breach of duty arising in the surgery in question has left the plaintiff with permanent residual disabilities that continue to adversely affect him in a physical, emotional and psychological sense.

Physical problems

198. The lasting physical problems for the plaintiff include the experience of ongoing numbness to the radial side of the middle finger of his left hand extending from the tip of the finger down to the proximal metacarpo-phalangeal joint or the first knuckle on that finger, near the palm of his hand. His circulation in the injured area is also affected as has been documented by Associate Professor Connolly.

199. The plaintiff has developed a lump around the area of the operation site which has been identified to be a neuroma or abnormal aggregation of nerve tissue in the form of a scar. The plaintiff has noticed that the lump gradually continued to grow and has become increasingly more painful to touch and vibration when the hand is touched, used or bumped in the course of ordinary everyday activities. The pain he describes has been identified as neuropathic pain.

200. The plaintiff described the pain as becoming worse whenever he flexed his hand back, and stated this would produce a straining sensation around the nerve and up his arm. The plaintiff described there being times when he feels that there is a burning sensation in the limb and finger which he likens to a phantom sensation and which feels like someone holding a cigarette lighter and running it up and down his affected finger.

201. In addition to the scar from the initial surgery he also carries a scar from the unsuccessful attempt at restorative surgery. He has a surgical deficit and interruption to the digital nerve of the left middle finger.

202. The surgery in question has left the plaintiff with an uncomfortable feeling in his hand when he grips things. He feels an electric shock-like sensation when this occurs, including when he hangs his hand down by his side or places his hand in certain positions. He feels unable to hold his girlfriend’s hand. This does not make him feel good. He thinks the physical problems are getting worse. He described a circumstance in which he was showering when he tried to turn the shower taps off by gripping the tap handle and in doing so he placed pressure on the neuroma and then dropped to the ground in tears, crying in pain.

Emotional problems

203. The plaintiff described his observation that over time his continuing physical problems have led him to suffer a number of emotional difficulties. He described the pain as constant. He felt unable to cope, he felt very low, his self-confidence and self-esteem had become reduced and he felt he had little to live for and at times has suicidal thoughts. He feels less competent. He found himself becoming frustrated when performing physical tasks because of increased levels of pain and burning sensation whenever he attempted to do things with his injured hand. His sleep has become disturbed, he feels irritable and short-tempered at times, as well as feeling restless and has impaired concentration.

Psychological problems

204. These matters have caused the plaintiff to suffer psychological problems. He was referred to Dr Street for what he understood to be treatment for depression and post-traumatic stress disorder. He was experiencing what he described as flashbacks when under stress. He eventually had what he described a breakdown in August 2006. He also described a situation in December 2007 where he had accepted a job with an auto-electrician but found that he became distressed when it came time for him to start the job and he felt depressed and felt that he could not start the job. The plaintiff described ongoing problems with his self-confidence and unstable mood variations. This is a particular problem for the plaintiff because he has high expectations of himself and his impaired self-confidence makes it difficult for him to talk to people. In cross-examination it emerged that the plaintiff’s low mood and low satisfaction had led him to experience fleeting thoughts of suicide, negative thoughts and low energy.

205. The plaintiff also described some conflict problems he had with his father whilst he was living at home. His father had expressed his concern over the amount of time the plaintiff was spending on the computer and with his pocket bike whilst not working. The impression I gained from this evidence was that there was a degree of natural expression of parental concern because the plaintiff was not working and was spending time on the computer. Some of the plaintiff’s computer activity was related to seeking to upgrade his knowledge and skills in photography. Whatever the conflict was, the plaintiff no longer lives with his parents and such conflict no longer seems to be a relevant stressor for the plaintiff.

Overview of disabilities

206. I find in varying degrees, all of these matters that affect the plaintiff, as reviewed above, continue to have a significant and adverse effect on his ability to lead a normal life.

Plaintiff’s probable life span

207. An assessment of the plaintiff’s entitlement to damages for future expenses and domestic assistance first requires an assessment of the years that probably remain for the plaintiff. Having regard to the current prospective life tables, at age 25 this being the plaintiff’s age at trial, in the absence of any medical or other evidence suggesting a decreased life span, I assess the plaintiff’s life expectancy, which is by definition a statistical estimate or average, to be in a rounded down estimate of a remaining 60 years.

D. DAMAGES ASSESSMENT

208. I now turn to my assessment of the individual heads of damage claimed by the plaintiff.

Non-economic loss

209. I had already outlined the nature and extent of the plaintiff’s ongoing physical, emotional and psychological difficulties that have been caused by the operation in question.

210. At the age of 25 years, the plaintiff faces a future of ongoing neuropathic pain in the region of the neuroma at the base of his left middle finger. Although his left hand is his non-dominant hand, common human experience suggests it is nevertheless used frequently in many forms of day-to-day activities involving work, domestic and recreational activities. The plaintiff’s experience of pain is exacerbated by contact with the affected area.

211. In addition, the plaintiff’s underlying vulnerability to triggering episodes of low mood and depression has been exacerbated by his ongoing exposure to neuropathic pain which in turn causes him to suffer what has been identified by Dr Jungfer as a major depression.

212. There is no evidence that the plaintiff’s neuropathic pain and its psychological sequelae will abate in the foreseeable future. Accordingly, the plaintiff faces a long future life span in which he will be beset with the adverse, painful and distressing aftermath of the surgery in question. In addition, any leisure activities requiring the use of the left hand will be less enjoyable for the plaintiff to the extent that such activities are dependent upon grip and physical dexterity of his left hand.

213. Although I consider that the plaintiff’s employment prospects have been substantially diminished due to the effects of the surgery, I have not included any economic considerations in my assessment of the plaintiff’s entitlement to damages for non-economic loss.

214. All of these matters have been superimposed upon the plaintiff as a vulnerable individual who has had underlying problems due to the effects of Asperger’s syndrome, which, to his credit, he had largely accommodated or overcome before the surgery in order to make plans for an independent future. It is relevant to note, by reason of that underlying condition, that he was less well equipped than some others to handle the additional stress of the loss of his full and unrestricted manual dexterity, and the loss of the expectation of what might otherwise have been a pain-free existence.

215. The defendant has submitted that an appropriate award for non-economic loss would be about 23 per cent of a most extreme case pursuant to s 16 of the Civil Liability Act 2002. I consider that percentage to be manifestly inadequate compensation for the plaintiff’s post-injury problems.

216. In my view the matters I have outlined, which encompass physical, emotional and psychological factors, should sound in a significant assessment of the percentage extent of his entitlement to non-economic damages. I consider that an appropriate assessment to reflect the plaintiff’s past and future pain, suffering and loss of amenity of life would be in the amount equivalent to 32 per cent of a most extreme case within the assessment table referred to in s 16 of the Act, which is the amount of $142,000. I therefore I assess the plaintiff’s damages for non-economic loss at 32 per cent of a most extreme case, namely, in the amount of $142,000.

Past loss of earnings

217. The plaintiff makes a claim for past loss of earnings at the rate of $500 per week net over 4 years, namely, $104,000.

218. The evidence discloses that the plaintiff had an established earning capacity of up to $700 per week gross at the time he had surgery in question. According to the Furzer Crestani Assessment Handbook, which includes a net economic loss ready reckoner, in the 2009/2010 financial year the amount of $700 per week gross is the equivalent of $618.23 per week net.

219. To allow for the fact that the plaintiff did not have a continuous history of such earnings before the surgery in question, I propose to adjust this figure to a lesser amount. However, in doing so I have had regard to the fact that the plaintiff was well motivated to work and was conscientious in his endeavours to pursue work, as is evident from the range of certificated qualifications and skills he had acquired privately and of his own volition before he had the surgery in question.

220. The adjusted figure I have settled upon is $500 per week net. I consider that this sum represents a fair estimate of the plaintiff’s pre-injury earning capacity as an appropriate average over the past 4 years and I consider that this sum should form the basis for the assessment of the plaintiff’s claim for past loss of earnings.

221. After allowing a perhaps arbitrary period of about five weeks absence from work in order to recuperate from the effects of what ought to have been successful surgery, but was not, I consider that the plaintiff should be compensated for past loss of earning capacity at the rate of $500 per week net over the period between 29 August 2005 to 31 August 2009, a period of approximately 4 years or 208 weeks. This is the equivalent of $104,000. I consider that there should be some adjustment to this sum on account of the plaintiff’s earnings as a courier with Belmont Couriers. The defendant has submitted that there should be an offset for about 12 weeks. The evidence as to the length of that employment was not precise but I will make an offset of $6000 on account of that employment. I therefore assess the plaintiff’s damages for past loss of earnings in the sum of $98,000.

Future loss of earning capacity

222. The plaintiff makes a claim for future loss of earning capacity. Before making an award for such damages for future loss of earning capacity I must be satisfied concerning the assumptions that underpin the award, including the need to be satisfied that any award made should accord with the plaintiff’s most likely circumstances, but for the events that gave rise to the claim : s 13(1) of the Act.

223. At the plaintiff’s age of 25 years, I see no reason, on the evidence, to indicate that the plaintiff would not have sought to exercise his earning capacity and work until the current expectation of retirement at age 67 years.

224. The evidence of Dr Jungfer is that the plaintiff’s mood disorder would be an impediment to employment but would not be an absolute prohibiter regarding employment. Dr Lee has stated that the plaintiff is not unfit for employment. The defendant points to this evidence to support its submission that the plaintiff should be awarded a buffer of about $25,000 less 15 per cent for vicissitudes or $21,259 to take into account the fact that from time to time the plaintiff may need to take time away from his employment as a consequence of his injuries and disabilities.

225. In my view the defendant’s submission is overly simplistic and represents inadequate compensation for the plaintiff’s future impairment of his earning capacity. I have come to this view for the reasons which follow.

226. First, as would be expected, both Dr Jungfer and Dr Lee expressed their opinions on the basis of the psychological aspects of the plaintiff’s condition. The assessment of damages for future impairment of earning capacity requires a much wider consideration and should include the physical ramifications of the remaining disabilities and the relationship between those problems and the mood disorder in the plaintiff in this case.

227. Secondly, the defendant argues, incorrectly in my view, that there is a co-incidence of views of Dr Jungfer and Dr Lee on the issue of the plaintiff’s future earning capacity. In fact, properly understood, Dr Jungfer’s views are far more pessimistic than those of Dr Lee because her views on this issue are founded upon her diagnosis of a major depression or severe depressive disorder in the plaintiff whereas Dr Lee was of the opinion that the plaintiff had no emotional distress from the effects of the surgery. The foundation for their respective views was far from equivalent and on my reading of their reports, their views do not coincide at all on this issue.

228. Thirdly, the defendant’s submission proceeds upon the basis that the plaintiff will obtain and sustain employment but will require time off work from time to time. I consider this to be an unrealistic view of the evidence. Contrary to that assumption, I consider that the disabilities I have summarised are likely to pose a significant impediment to the plaintiff securing employment because of the inter-relationship between his neuropathic pain and the effect this has on him psychologically, resulting in low mood, significant depression and an undermining of his self confidence. In my view the defendant’s submission fails to pay due regard to the assessment of Dr Jungfer, which I accept, namely that the plaintiff’s neuropathic pain has led to an inability to successfully maintain employment due to the impact of the neuroma and the associated difficulties with regard to depression.

229. Fourthly, the defendant’s submission pays no regard to the effect of Dr Jungfer’s view, which I accept, that the plaintiff will have difficulties in forming a therapeutic relationship with a psychiatrist. This is a factor that will probably make it very difficult to effectively treat the plaintiff’s depression. This difficulty is obviously a matter that is related to the plaintiff’s underlying vulnerability, the significance of which is a matter the defendant cannot avoid : Watts v Rake [1960] HCA 58; (1960) 108 CLR 158.

230. In addition to the foregoing factors the obvious conclusion I draw from the evidence in this case is that the plaintiff will be disadvantaged in competing for employment due to physical restrictions with the grip, dexterity and full use of his left hand. This, together with his underlying vulnerability to developing depression that is triggered by pain represent considerable hurdles to the plaintiff securing and maintaining future employment. This underlying vulnerability is not a disentitling factor for the plaintiff as the defendant must take the plaintiff as it finds him : Watts. For the defendant to assert that the superimposed triggering event had no effect on that underlying vulnerability and should therefore not sound in significant economic damages because of the nature of the presence of a pre-existing vulnerability requires cogent evidence to support such a view by disentangling the respective contributing factors. There is no such evidence in this case : Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.

231. The essential issue here is that whereas prior to the surgery in question the plaintiff was able to maintain employment despite an underlying attention deficit disorder, the effects of the injury have tipped the plaintiff into depression and an inability to return to his pre-injury level of functioning.

232. The foregoing analysis encompasses the assumptions I am required to make for the purposes of s 13(3) of the Act as a pre-cursor to assessing damages for loss of future earning capacity.

233. Although the plaintiff has been tipped from the category of being able to work to being unable to work as a result of the deleterious effects of the surgery in question, I do not consider this to be a case that requires the direct projection of a particular amount of assessed weekly loss to arrive at an appropriate assessment after conventional discounting. I take this view because it is unrealistic to assume that the plaintiff will always be severely depressed and will therefore be unable to work from a psychological point of view. I have to allow for the fact that there will undoubtedly be some jobs that will emerge from time to time which may be within the plaintiff’s physical capacity and skills set and which will not cause him the severe problems with his neuroma so as to trigger further episodes of severe depression and low self-esteem so as to contra-indicate employment, as is the case at present.

234. This situation makes an assessment difficult but such difficulty does not preclude an assessment : State of NSW v Moss [2000] NSWCA 13.

235. I am satisfied that the matters I have outlined will have a significant adverse impact on the plaintiff’s future capacity to earn an income. I am also satisfied that this will be productive of financial loss : Graham v Baker [1961] HCA 48; (1961) 106 CLR 340. In view of my findings on the manner in which that loss is likely to arise, I consider that the appropriate approach to assessment is by way of a lump sum to provide the plaintiff with an economic buffer against the future impact of the adverse factors I have identified, because the standard method of calculation or projection of future losses is problematical in this case: Penrith City Council v Parks [2004] NSWCA 201 per Giles JA at [5] and Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 per Mason P at [2].

236. In my view an appropriate buffer in this case is an amount of $250,000. In testing the reasonableness of this amount I note that it is the equivalent of $295 per week projected at 5 percent over 67 years (x 845). I consider this amount is justified in the circumstances having regard to the nature and extent of the plaintiff’s physical and non-physical disabilities.

237. Conceptually, in the ordinary case where a buffer is assessed, there is no need to make an adjustment as required by s 13(2) of the Act : Parks, Montgomery. This is because the buffer has within it a discount to reflect vicissitudes. However, in this case I consider that in fairness to the defendant, the buffer I have assessed should be discounted to a degree to reflect the fact that due to his underlying issues the plaintiff was vulnerable to having an adverse reaction to unfavourable events occurring in his life to a greater degree than might have been the case with the average person. I consider that one of the factors that led to the zero adjustment position adopted in the cases of Parks and Montgomery was that the buffer had encompassed within it what has been referred to as the conventional allowance for adverse vicissitudes of 15 per cent whereas in this case I consider that the plaintiff’s underlying vulnerability to react adversely to other future adverse events in his life should also be taken into account as an adjustment factor. I consider that adjustment should be in the amount of 10 per cent in addition to the conventional amount already incorporated : Wynn v NSW Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485.

238. On this approach the buffer I have assessed should be adjusted to the amount of $225,000. I therefore assess the plaintiff’s damages for future loss of earning capacity in the sum of $225,000.

Past loss of superannuation

239. The plaintiff is entitled to damages for the value of past loss of employer funded superannuation contributions commensurate with the assessment of his past loss of earning capacity. This may be identified by employing a rule of thumb calculation by applying a factor of 11 per cent on past loss of earnings to reflect the value of past superannuation losses. Accordingly, having the assessed value of the plaintiff’s claim for past net loss of earnings in the amount of $98,000, and applying a factor of 11 per cent to represent the value of superannuation contributions, I assess the value of the plaintiff’s past employer funded superannuation losses to be in the sum of $10,780.

Future loss of superannuation

240. Consistent with my assessment of the value of lost past employer funded superannuation benefits, I find the plaintiff is entitled to damages for the lost value of future employer funded superannuation benefits. A monetary assessment of that loss is therefore required. Given that I have assessed the plaintiff’s future loss of earning capacity in the sum of $225,000, applying the same method of calculation employed to assess the loss of past superannuation, namely a factor of 11 per cent, I assess the value of the plaintiff’s future employer funded superannuation losses to be in the sum of $24,750.

Future treatment

241. The plaintiff makes a claim for future treatment expenses. The defendant has submitted that there should be no award of any damages in this regard, or alternatively, any such damages should be limited to an amount of the order of $5,000 which equates to about $25 per week which, it was submitted, ought to be a sufficient sum for a reasonable period of rehabilitative treatment for the plaintiff.

242. The defendant’s primary submission on future treatment is based on the opinion of Dr Lee who has suggested that there is no current need for the plaintiff to have psychiatric treatment although there may be some future need in view of the history of the plaintiff’s fluctuating mood.

243. In my view there are flaws in the defendant’s submission concerning future treatment. First, there is no evidence that the plaintiff’s pain from his neuroma will subside and there is no evidence that normal sensation will return to his left middle finger. This must mean that it is highly likely that the plaintiff will continue to experience the problems of neuropathic pain he has described and which I have accepted. Secondly, given that there is a relationship between the plaintiff’s experience of neuropathic pain and his low mood and depression, as I have found to be the case, it is neither fair nor appropriate that the plaintiff be denied access to funds to pay for medical support and treatment for these problems.

244. Accordingly, I accept that the plaintiff will require treatment along the lines suggested by Dr Jungfer in her report dated 14 October 2008. I prefer Dr Jungfer’s analysis to that of Dr Lee for the above reasons and for the reasons I stated to be the basis for my general preference for the opinions of Dr Jungfer compared to those of Dr Lee.

245. Dr Jungfer has suggested further trials of anti-depressant medications and referral to a chronic pain management service to see whether this diminishes the extent of the neuropathic pain and in order to see whether this in turn increases the plaintiff’s work options. It is significant that Dr Jungfer does not suggest that such a referral is likely to abolish the plaintiff’s pain. In addition she has recommended that the plaintiff be seen monthly by a psychiatrist over a period of three years in conjunction with pharmacotherapy, the combined cost being of the order of $305 per month. In making that suggestion she noted that the plaintiff had a high risk of relapse which suggested the likelihood of a much longer period of treatment. Dr Jungfer has also suggested that the pain management service treatment would be up to approximately $3900 for about a year. The combined effect of Dr Jungfer’s recommendations suggests significant expense as well as the prospect of further ongoing expense for treatment for relapses in the plaintiff’s condition.

246. I accept Dr Jungfer’s assessment as reasonable and appropriate. The undiscounted costing of her recommendations for the first three years is of the order of $15,000. Although there is the prospect that such treatment might improve the plaintiff’s position, there is a high risk of relapse. It is that risk of relapse which is difficult to quantify on the evidence adduced. Nevertheless, some attempt must be made to arrive at a reasonable estimate to cover these prospects : State of NSW v Moss [2000] NSWCA 13. I propose to make an allowance by way of a buffer.

247. In my view a buffer of the order of $20,000 should be allowed for future treatment. Accordingly, I assess the plaintiff’s damages for future treatment needs in the sum of $20,000.

Past out-of-pocket expenses

248. The parties have reached a mathematical agreement that the plaintiff has incurred out-of-pocket expenses amounting to $4981.58. This amount comprises various monies paid by Medicare, the NIB Health fund, the gap in Medicare payment and certain travel expenses. I consider the claimed expenses to be reasonably claimed. I therefore assess the plaintiff’s damages for past out-of-pocket expenses in the sum of $4981.

Summary of damages assessments

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

Head of damage	Assessment
(a) Non-economic loss	$142,000
(b) Past loss of earnings	$98,000
(c) Future loss of earning capacity	$225,000
(d) Past loss of superannuation	$10,780
(e) Future loss of superannuation	$24,750
(f) Future treatment	$20,000
(g) Past out-of-pocket expenses	$4,981
Total	$525,511

E. DISPOSITION AND ORDERS

Disposition

250. I have found in favour of the plaintiff on the liability and causation issues. I have assessed the plaintiff’s damages in the sum of $525,511 which entitles the plaintiff to a verdict and judgment in his favour in that amount, with costs to follow the event.

Orders

251. Accordingly, I make the following orders:

(a) Verdict and judgment for the plaintiff against the defendant in the sum of $525,511;

(b) The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

(c) The exhibits may be returned;

(d) Liberty to apply on 7 days notice if further orders are required.

11/12/2009 - Slip Rule correction - Paragraph(s) Para 216: percentage figure of 36 is replaced with "32"