Kempster v Healthscope Operations Pty Ltd
[2019] ACTSC 248
•6 September 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Kempster v Healthscope Operations Pty Ltd |
Citation: | [2019] ACTSC 248 |
Hearing Date(s): | 29, 30, 31 July 2019 and 1, 2, 5, 15 August 2019 |
DecisionDate: | 6 September 2019 |
Before: | Crowe AJ |
Decision: | See [197] |
Catchwords: | NEGLIGENCE – Medical negligence claim – plaintiff alleges negligent administration of heparin injection caused nerve damage to left thigh post-surgery – whether injection administered in accordance with standard procedure – whether an alternative cause for the plaintiff’s nerve injury Damages – General damages – out of pocket expenses – loss of earning capacity – Griffiths v Kerkemeyer – loss of superannuation |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 45, 100 Court Procedures Rules 2006 (ACT) r 1619 Evidence Act 2011 (ACT) s 136 |
Cases Cited: | Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Coote v Kelly: Northam v Kelly [2016] NSWSC 1447 Watts v Rake (1960) 108 CLR 158 |
Parties: | Jillian Kempster (Plaintiff) Healthscope Operations Pty Ltd (Defendant) |
Representation: | Counsel R Mcllwaine SC & A Muller (Plaintiff) M J Walsh SC (Defendant) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) MinterEllison (Defendant) | |
File Number: | SC 277 of 2017 |
Crowe AJ
The plaintiff claims damages for injuries which she alleges she suffered as a result of a negligently administered heparin injection on 12 August 2014. The medication was injected into her left thigh by a nurse employed by the defendant at the National Capital Private Hospital at Garran in the ACT. The defendant operated the hospital at that time.
There is no issue that the defendant owed a duty of care to the plaintiff to ensure that the treatment which it provided was performed with reasonable care. It is also not in issue that the defendant was vicariously liable for the treatment given by its employee, Registered Nurse Nunes.
The particulars of negligence pleaded, as set out in the plaintiff’s Statement of Claim filed 31 July 2019, are as follows:
(1) Failing to pinch the skin up or to lift or pull the top layer of skin away from the muscle before administering the heparin injection so as to inject into the superficial subcutaneous fat and avoid injecting the needle into the deeper subcutaneous region of the lateral femoral cutaneous nerve and damaging the nerve.
(2) Injecting the needle of the heparin injection into the deeper subcutaneous region of the lateral femoral cutaneous nerve and damaging the nerve.
The defendant denies that its nurse was negligent in giving the injection to the plaintiff. It also says that the injury suffered by the plaintiff was not caused by the injection.
Factual Evidence
Relevant life events and employment history
The plaintiff was born in South Australia in December, 1961. She was thus 52 years of age at the time of the alleged negligence and is now 57. She completed Year 11 at Playford High School in 1978 and then worked in various jobs including as a checkout operator, grape picker and pruner, and seasonal onion sorter.
The plaintiff married her husband Geoffrey Kempster in April, 1983. They have two children: Dylan, born in November, 1984, and, Tegan, born in February, 1988. The plaintiff was a full-time mother between Dylan’s birth and 1992, apart from some occasional farm work and intermittent weekend work helping her parents-in-law with the running of their caravan park.
During the period 1992-4 the plaintiff did some telemarketing work for the RSPCA in Adelaide.
In 1994 the plaintiff engaged in employment as an aged care worker. She received training as a care attendant. Part of this training involved the administration of injections, including heparin injections.
Between 1995 and 1998 the plaintiff worked as a cook in a commercial cooking facility at Woomera in South Australia. During that time she completed a cooking course by correspondence. The plaintiff’s husband was a member of the Royal Australian Air Force. He had been posted to Woomera and the plaintiff and children accompanied him.
Between 1999 and 2006 the plaintiff worked as a call centre operator for the Community Link Epilepsy Centre. This was a full-time job. In early 2006 the plaintiff and her family moved to Canberra. Again, this followed Mr Kempster being posted with the RAAF.
In January 2006 the plaintiff obtained employment with the Royal Australian Mint. This was full-time employment in the area of telephone sales.
The plaintiff suffered from depression in the mid-1990s after the death of her mother. She remained prone to episodes of depression arising from life stressors and took medication for that condition. There have also been periods of marital strain which aggravated the plaintiff’s condition. In 2013 the plaintiff suffered another episode of poor mental health as the result of inter-personal difficulties at work. She sought medical assistance at that time.
The plaintiff has also suffered from Meniere’s disease, leading to the need for operative treatment in the early 1990s. She has not suffered any balance problems post this surgery. On other occasions she had sought medical treatment for left knee pain and also pain in her right shoulder. These appear to be isolated complaints.
Despite these health complaints the plaintiff was seemingly performing her work duties well-enough to receive a higher duties promotion to the position of manager of online sales at the Mint in 2013. She enjoyed this work and was evidently competent in performing the duties required of her in the position.
Events leading up to and including the surgery and the first injection of heparin
By 2013/14 the plaintiff had embarked on a program to improve her fitness and lose weight. She succeeded in losing approximately 35 kilograms. This resulted in excess skin, particularly in the abdominal area. In early 2014 she obtained referrals to plastic surgeons for treatment options. On 17 May 2014, she saw Dr V Milovic, who discussed with her the possibilities of treatment by abdominoplasty, and also treatment of the altered shape of her breasts by an augmentation procedure.
The plaintiff decided to proceed with the treatment proposed by Dr Milovic and she was eventually booked in for the surgery at the National Capital Private Hospital on
11 August 2014. When obtaining the plaintiff’s consent to the abdominoplasty procedure Dr Milovic provided the plaintiff with a brochure which explained what the operation entailed and the risks associated with it. The latter included the risk of numbness, even permanent numbness in the lower abdominal area and upper thighs (see Exhibit “D3”). The plaintiff was seemingly willing to undertake that risk and proceeded with the surgery.
Dr Milovic operated on the plaintiff between approximately 09:00 and 13:00 on
11 August 2014. The plaintiff returned to the ward at about 14:00. She was prescribed a special compressive bra and corset to wear for some weeks post-surgery. Dr Milovic also ordered the administration of heparin (5000 milligrams) to be given by way of subcutaneous injection twice daily.
The plaintiff was given strong painkillers including Targin twice daily and Endone as required.
She received the first injection of heparin at about 08:00 on Tuesday, 12 August 2014. That injection was given by a female nurse who “pinched” the plaintiff’s left thigh and administered the injection just beneath the skin. The plaintiff had no pain at the time of the injection and no complications after it. Indeed, the plaintiff said in her evidence that she noticed nothing wrong with her thigh until the time of the second heparin injection.
The second injection of heparin
The second injection was administered by a male nurse, Mr Nunes, at around 20:00 on 12 August 2014. In relation to that injection the plaintiff gave the following evidence at the hearing (at T 20 I20):
… He came into the room. He was holding a green tray. He came to the left-hand side of the bed, he removed the covers and also my nightgown to expose my left thigh. He prepared the injection and then put it straight into my thigh and he did not pinch my skin. I had instant pain, it was like a bee sting, and I said “Ouch”.
The plaintiff’s husband was sitting in a chair to the right hand side of the plaintiff’s bed when the injection was given. His account was as follows when questioned by counsel or the plaintiff, Mr Mcllwaine SC (T 128 I43 -129 I25):
Mr Kempster: … The male nurse entered the room holding a tray with a needle in it. He proceeded to go around to the left-hand side of the bed. He then pulled the covers back and exposed (the plaintiff’s) thigh.
Mr Mcllwaine SC: Which thigh?
Mr Kempster: Left thigh.
Mr Mcllwaine SC: Thank you?
Mr Kempster: And then he picked up the needle and he jabbed the needle into her leg.
Mr Mcllwaine SC: What part of her leg?
Mr Kempster: The upper thigh on the left-hand side.
Mr Mcllwaine SC: At any time did you see him pinch up the skin before injecting?
Mr Kempster: No, he did not.
…
Mr Mcllwaine SC: Could you explain to His Honour what you observed, please, and what you heard, if anything?
Mr Kempster: Yes, she yelled out “Ouch” or words to that effect.
…
Mr Mcllwaine SC: Did she say anything to you?
Mr Kempster: She said “That hurt”.
…
Mr Mcllwaine SC: What did you say?
Mr Kempster: I said to her “That was a bit vigorous. It was like putting a dart into a dartboard”.
The defendant, through its counsel Mr Walsh SC, strongly challenged the evidence of the plaintiff and her husband as to the way in which the injection was given. However, each of them maintained the accuracy of her/his description of the event.
The defendant called the nurse who gave the injection, Mr Nunes, to give evidence. He had been trained at the Philippines Women’s University between 2004 and 2007. He graduated with a Bachelor of Nursing. He worked in the Philippines as a registered nurse until coming to Australia in 2012. He qualified for registration as a nurse in Australia by October 2012 and commenced work with the National Capital Private Hospital as a registered nurse in 2013.
Mr Nunes gave evidence that he had significant experience giving various types of injections, including subcutaneous injections. He said that as a result of his training he adopted a “standard practice, an invariable practice”. Relevantly, that practice included:
(1) the preparation of the needle at the nursing station;
(2) “flushing” the needle to ensure there was no air in the medication;
(3) cross-checking the medication he was administering with a colleague before going to the patient’s room; and
(4) once in the room he would check the name, date of birth, allergies etc. of the patient and would then explain what medication he was about to administer and request the patient’s permission if he needed to move bedcovers and/or clothing.
He described his technique for giving a heparin injection in considerable detail. In summary, this involved him “gathering” as much subcutaneous tissue as he could and then inserting the needle (which would usually be about 1 cm long) at a
45 degree angle as gently as he could. He would then slowly inject the medication, taking about 30 seconds to empty the syringe.
Mr Nunes did not actually remember the injection procedure he performed on the plaintiff on the evening of 12 August 2014. He was taken to his clinical note of his attendance on the plaintiff at about 20:00 (the note was timed at 20:35, however he explained that he would usually make his notes towards the end of his shift so that they might not coincide with the time of the attendance). The note read:
Pt alert & orientated. 4 drains in situ. 1 IDC. IVC at L hand. SOOB for 2 hours. Mobilize around room x 1. Pt verbalise she’ll do more tomorrow; cause she still feels uncomfortable (with) moving too much. Tolerated diet, Nil issue ATOR
It is uncontroversial that “IDC” refers to in-dwelling catheter, “IVC” to intravenous cannula, “SOOB” to sitting out of bed and “ATOR” to at time of review.
The account of the plaintiff and her husband of his administration of the injection was put to Mr Nunes by Mr Walsh SC. Mr Nunes strongly disagreed with the proposition that he just stuck the needle into the plaintiff’s thigh without pinching the skin. He stated that such an approach would have been contrary to his invariable practice. He asserted similarly in relation to the lack of any conversation with the plaintiff, including seeking her permission to remove the covers and clothing to access her leg. He also denied that he could have carried out the procedure in only 30 seconds. Finally, he said that if the plaintiff had said “ouch” and “that hurts” he would have asked if she was ok and, depending on the response, he may have called in the Resident Medical Officer. Either way, he would have included some information about it in his clinical note.
Mr Nunes also said that if he had heard Mr Kempster refer to the insertion of the needle as “vigorous” or “like a dart into a dart board” he would have checked with the patient and made a note of it.
Events after the second injection of heparin
The plaintiff said that after the injection she had pain in the left-hand side of her mid-thigh area of her left thigh. The next morning she noticed a lump on her left thigh in the area of the injection. She brought this to the attention of the duty nurse who called in a Resident Medical Officer, Dr Saw. By that time the plaintiff described the pain as extending across the middle of her thigh to the top of the knee and around to the back of her leg. The plaintiff also mentioned that the area described hurt when touched. Dr Milovic attended on the plaintiff later that day. He recalled that the plaintiff complained to him about how the injection had been given. During the rest of the day the lump remained and her thigh was numb around the outside and was very sensitive to touch. This remained the situation until the plaintiff was discharged on 15 August 2014.
According to the hospital progress notes, the plaintiff was seen by a nurse at 06:00 on 13 August 2014 who noted “Pt c/o small lump on L thigh - A/w RMOs”. Immediately following that note, also at 06:00, the following appears:
RMO(Saw)
D/L(?) post bilat(eral) breast augmentation lift & abdominoplasty
prophylactic heparin injected vs(?) pt's L thigh yest. Since then, pt has developed small lump to L mid thig. Assoc. (reduced) sensation to L thigh region (until L knee)
Denies pain / limb weakness
O/B T36, obs stable
GCS 15
L thigh
[diagram of L thigh showing a round area above the knee with the following description]
3 x 3 cm fluctuant haematoma to L mid-thigh assoc altered sensation to L thigh, CRT 1-2s
leg power 5/5 throughout
Imp. Haematoma L thigh (secondary) to prophylactic heparin injection
P. NV obs L leg
W/H am heparin
H/O to Mr Milovic in am
In this note it seems that the reference to "GCS" was to Glasgow Coma Scale, "CRT" to capillary return, "NV" to neurovascular, "W/H" to withhold and "H/O" to handover.
At 06:30 Dr Saw discussed the matter with Dr Milovic who suggested the application of ice and that no further heparin be administered.
Several days after she was discharged from the hospital, the plaintiff sought a consultation with a GP at the Jerrabomberra Medical Centre. She saw Dr Dierdre Clink. Her clinical note of that attendance is as follows:
History: had abdominoplasty 1 week ago. Sounds like on day 2 she had heparin injected IM into left leg rather than SC. Developed a large lump at site of injection. Since then has developed an numbness in anterior and lateral left thigh and severe pain in anteriosuperior left knee.
Examination: moving carefully. has compression garment on abd. Reduced sensation anteriolateral thigh from groin to knee. Small lump in muscle with overlying resolving bruising. Unable to straighten left knee bc of pain.
Diagnosis: altered sensation left thigh and pain in knee post op. ? from back.
Treatment/Plan: Panadeine Forte tablets 1 to 2 qid 4 to 6 hourly prn (20, RNil)...
Numbness extends superiorly from site of injection which makes me think it is prob not the cause of the altered sensation. Seeing (Dr Milovic) again in 2/7...
[Emphasis contained in original notes.]
In this note “IM” means intra-muscular, and “SC” subcutaneous.
The plaintiff attended Dr Milovic's rooms on 20 August 2014. She was accompanied by her husband. She first saw Dr Milovic's nurse for review of her dressings. The nurse relevantly noted, “Pt complains of numbness L lower thigh at site of heparin injection. Now reports hyperaesthesia”.
Dr Milovic reported back to the plaintiff's GP in respect of the consultation on
20 August 2014 in the following terms:
(the plaintiff) has had a haematoma upon a heparin injection given by a nurse at National Capital Private Hospital 24 hours after the surgery. Following the development of the haematoma and paraesthesia in the superficial cutaneous nerve of femoral cutaneous nerve occupying the suprapatellar and distal third of her lateral thigh. She started experiencing hyperaesthesia and pain, which is a sign of, most likely, recovery of the nerve upon the neurapraxia caused by compressive syndrome. There are still marks of the bruising. Photographs were taken of the distribution of the zone of the anaesthesia and paraesthesia. I encouraged (the plaintiff) to continue with the massaging with a moderate pressure and a hirudoid cream to accelerate the bruising to go away on her left eye (sic)...
In the course of the consultation on 20 August, Dr Milovic used pens to mark on the plaintiff’s left thigh the site of the injection and the areas of altered sensation. Photographs were taken of this which were admitted as Exhibit “P1”.
Dr Milovic's optimism about recovery was not borne out by subsequent events. The plaintiff returned to the Jerrabomberra Medical Centre on
1 September 2014 where she saw Dr L Streitberg, another GP in the practice. His clinical note included the following:
Main issue was injection into I/M of left thigh (accident) of clexane 2/7 post op - developed marked thigh swelling and paraesthesia in distribution suggestive of nerve compression injury - not suggestive of nerve root as in well demarcated area around injection site on left thigh - I feel this is neurapraxia and should slowly resolve - ptn happy with this. If no improvement over next 3/2, for U/S and r/v...
On 2 September 2014 the plaintiff wrote a letter of complaint to the defendant. That letter contained the following paragraphs:
When the second injection was given in my left thigh by a male nurse on the following Tuesday night, he failed to pinch the skin and placed the needle straight into my thigh on my left leg. My husband witness (sic) the injection and commented that the nurse was quite vigorous when inserting the needle. I notice (sic) after the injection was administered a sharp stinging burning sensation was present in the area of the injection. As I was under the influence of strong painkillers I didn't pay it much attention until the following morning.
The next morning (Wednesday) I felt a lump on my thigh and showed the nightshift nurse. The lump ground to be the size of a grapefruit. I also notice (sic) that the whole thigh felt numb from my groin in the left side to my knee. She said that she would let the ward doctor know. She then came back and said the doctor will be in to see me. He came and had a look and said he would let Dr Milovic know. When Dr Milovic came in he had a look and said to put ice on it and to stop any further heparin injections. The area was very sore to touch but I didn't have a lot of pain as I was on strong painkillers.
The plaintiff saw Dr Streitberg again a month later still complaining of symptoms pertaining to her left thigh. He referred her for an ultrasound. She returned to see the doctor with the ultrasound results on 7 October 2014. He noted as follows:
...Paraesthesia on left anterior thigh persisting - no worsening/no improvement. U/S shows no gross collection or masses which is good. Suggests direct nerve injury or persisting pressure issue from original swelling and haematoma present in hospital. Given these findings I feel things may improve over months (6/12 or so) and that there is not a great deal that can be done in meantime to treat things - ptn accepting of this and will return for r/v if things progress or escalate.
The plaintiff’s left thigh problems did seem to worsen and she returned to Dr Streitberg in December 2014. He then sent her for MRI and CT scanning of the area of complaint. He reviewed her with the results on 16 December 2014. His note reads:
No cause for neurapraxia found. Very likely direct nerve injury from injection. No real treatment appropriate at this stage - ptn will look into legal avenues to recoup costs of investigation then let me know what we need. Nerve conduction study may further confirm neurological issues but unlikely to alter management. Ptn happy with this plan and will be in contact.
In early 2015, the plaintiff tried physiotherapy and acupuncture. While she found some relief from this treatment the condition of her left thigh remained troublesome and on
4 April 2015 she saw another GP at the Jerrabomberra Medical Centre, Dr N Ahmed. He referred her to Dr R Malhotra, neurologist, for nerve conduction testing.
The plaintiff attended Dr Malhotra on 8 April 2015. He tested sensory and motor nerves in the plaintiff’s legs. He found no abnormality, except in relation to the left lateral femoral cutaneous nerve. He was unable to obtain a reading on the testing of that nerve. Dr Malhotra explained in his evidence that he tested the nerve in accordance with a protocol which required him to place the stimulating electrode at the anterior superior iliac spine and the recording electrode 20 cm down the leg along a line from that spine to the lateral border of the knee. In his report of the study, he wrote under the heading “Summary and Conclusion”:
There is neurophysiological evidence of left Meralgia Paresthetica. The rest of the lower limb conduction values were within normal limits.
On 9 April 2015, the plaintiff returned to see Dr Streitberg in relation to the nerve conduction results. There was discussion about trying Lyrica for her leg condition. It is apparent that the plaintiff was considering the possibility of seeking legal advice by this time.
The plaintiff returned to Dr Streitberg on 10 August 2015. Her leg was still problematic, with particular complaint made that the sensory loss/pain was interfering with her ability to exercise. She was also suffering from some mental health challenges relating to her work and also the prospect of moving house again, as her husband was notified that he would be posted to Amberley Air Force Base near Ipswich in Queensland. After some reflection, the plaintiff decided to accompany her husband and in January 2016 she moved to Queensland. She remained employed by the Mint until she resigned in April 2016, taking holidays and sick leave up to that time.
After moving to Queensland the plaintiff commenced looking for other work. She was looking for administrative work but found it difficult to find a full-time job. She said that there was plenty of work for carers in the Ipswich area but she felt she did not have the capacity for that work because of the condition of her left leg.
In July 2016 the plaintiff obtained casual work with the Queensland Department of Education as a booking officer. She continued to look for extra work and in April 2018 commenced casual work of an administrative nature for the Australian Tax Office (the ATO). This was in addition to her work with the Department of Education.
The plaintiff continued working in these two positions until February 2019 when the work with the Department of Education ended. At that point the plaintiff’s husband was about to retire and they planned to return to the home they had kept in Adelaide. They moved to Adelaide in March 2019. The plaintiff was able to transfer her employment with the ATO to the Adelaide office. The ATO offered her the position at 5 days per week for 5 hours per day, however, she chose to work 4 days per week. As at the date of the hearing, the plaintiff was still employed at the ATO at 4 days per week for 5 hours per day. She did indicate that if she was physically able she would have sought full time work as a carer.
The plaintiff says that she continues to suffer numbness and altered sensation (including hypersensitivity) in her left thigh. From time to time she suffers what she describes as a “pinging” sensation, akin to being struck by a stretched rubber band. She has episodes of swelling with increased sensitivity after long periods on her feet, or after walking for long distances. The condition of her leg can cause her to limp. She has a limited ability to squat and kneel, and has difficulty with stairs. She also has difficulty lifting from ground level. She is wary of nursing her grandchild because of the sensitivity of her left thigh. She finds that very upsetting. The condition of her left thigh also interferes with her sexual relationship with her husband. Finally, because she has not been able to exercise freely, she has put on much of the weight she had lost in the lead up to the surgery with Dr Milovic. She described being devastated by that outcome.
Medical Evidence
Medical experts – the plaintiff’s case
Dr Brooder
The plaintiff relied upon the evidence of Dr R Brooder, neurologist. He provided medico-legal reports dated 3 June 2017, 9 July 2018, 16 December 2018, 4 February 2019 and 21 July 2019 (these are contained in Exhibit “P4”).
Dr Brooder saw the plaintiff for a consultation on 31 May 2017. He had available the clinical records from the plaintiff’s GPs (including the report of Dr Malhotra’s study), the National Capital Private Hospital and Dr Milovic. The plaintiff presented with complaints consistent with her description to the Court summarised above. These had persisted essentially unchanged for about two years by the time of the consultation. Dr Brooder did not observe any apparent disability and her gait and general mobility were normal at that time. On examination he found:
...Sensation was impaired and associated with a slightly painful tingling dysaesthesia on light touch stimulation over the anterior and lateral aspect of her left mid-thigh extending distally to her knee in the distribution of the lateral cutaneous nerve of the thigh.
In answering questions from the plaintiff’s solicitor, Dr Brooder offered the opinion that the plaintiff had suffered a traumatic injury to her left lateral femoral cutaneous nerve related to the heparin injection administered on the evening of 12 August 2014. On the information provided to him, he concluded that the injection had not been administered into the more superficial subcutaneous fat, rather, it had gone into the deeper subcutaneous fat in the region of the nerve where a haematoma had formed.
Dr Brooder considered that the manner in which the injection had been performed (as described by the plaintiff) had caused the residual neuropathy and neuralgia which he saw as continuing indefinitely. Her prognosis was guarded in that respect.
The plaintiff was sent for review by Dr Brooder approximately 12 months later. She attended on 8 May 2018. Dr Brooder was provided with reports from Dr N Saines, neurologist, dated 14 January 2018 and 26 April 2018 (Dr Saines had been qualified by the defendant). He was also provided with copies of the photographs taken of the plaintiff’s thigh on 20 August 2014.
On this occasion the plaintiff reported that her condition remained essentially unchanged since the previous consultation in May 2017.
Dr Brooder recorded the plaintiff’s history and that the sensory disturbance of the thigh was aggravated by increased physical activity. Such activity or prolonged standing would cause intermittent swelling. However, at that time she said she was independent in her activities of daily living and her own personal care.
On examination, Dr Brooder again found the plaintiff to be without apparent disability, and her gait and mobility were normal. The neurological examination was as before, although on this occasion, Dr Brooder found that there was a slight alteration to the sensation felt by the plaintiff, with the coldness and numbness extending more proximally over the lateral aspect of the thigh.
Upon reviewing the photographs, Dr Brooder noted that the injection site was approximately 27 cm distal (i.e. down the leg) from the anterior superior iliac spine.
In relation to the first report of Dr Saines, he commented as follows:
I would agree with the comment of Dr N Saines (page 5, response d) that "… The injection in the left lower, lateral thigh may have impinged the lateral cutaneous nerve of the thigh. On balance, this is likely to be the initiating cause of her symptoms."
I would also agree with the further comment of Dr N Saines (page 5, response e) that "The plaintiff describes symptoms consistent with a left Meralgia Paraesthetica. On balance it seems more likely that this was a result of the thigh injection."
Dr N Saines (page 5, response f) had also commented that "There is a more extensive area of sensory alteration and hyperaesthesia, which is outside the anatomical distribution of this specific nerve. This extends above the injection site as well. The reason for this extensive alteration is not readily explained on an anatomical basis."
I would suggest that the distribution of (the plaintiff's) sensory disturbance as defined in the photograph B, dated 20 August 2014 does conform to the distribution of the lateral cutaneous nerve of the thigh. The distribution of any cutaneous sensory nerve can be quite variable. The alteration to sensation that extends more proximal to the injection site can be explained by the occurrence of referred nerve symptoms.
It is apparent that Dr Saines was provided with information which caused him to alter his opinion somewhat by the time of his second report. This is reflected by Dr Brooder’s response to the new conclusion expressed by Dr Saines:
I would disagree with the further comment of Dr N Saines (page 1, paragraph 5) that "In essence, the likely cause of the plaintiff's left meralgia paraesthetica is a compression of the lateral cutaneous nerve of the thigh, at the common compression site at the inguinal region. This site of nerve involvement is close to the surgical approach to the abdominoplasty and also within the cover of the compression garment worn post-operatively." The occurrence of a meralgia paraesthetica induced by a compression garment would be consistent with a pressure neurapraxia that is a potentially reversible nerve entrapment syndrome and would be expected to improve spontaneously upon removal of the compression garment.
I would consider that it would be unlikely that the compression bandage illustrated in photograph A could be responsible for the nerve damage is proposed by Dr Noel Saines in his report dated 26 April 2018.
Dr Brooder remained of the opinion that the nerve damage suffered by the plaintiff was more consistent with a traumatic injury related either directly to the heparin injection, or to the associated haematoma.
For the purposes of his third report, dated 16 December 2018, Dr Brooder was provided with a report from Dr R Lindeman (a haematologist qualified by the defendant) and emails between the defendant’s solicitor and Dr Malhotra asking him to answer some questions about his nerve conduction study. He was also asked to comment further as to the contents of Dr Saines’ reports.
In relation to Dr Malhotra, Dr Brooder noted that the recording electrode had been placed at 20 cm below the anterior superior iliac spine, while the injection had been administered about 27 cm below that point. However, he then commented:
The nerve conduction study had been undertaken by Di R Malhotra on 8 April 2015, almost eight months following the injury to (the plaintiff’s) left lateral cutaneous nerve of the thigh. From the results of the nerve conduction study it cannot be concluded that if the recording electrode had been placed above the site of the subcutaneous heparin injection then the abnormal nerve conduction did not result from the injection. It is well documented that following a nerve injury the associated axonal degeneration occurs both in a retrograde (proximal) direction as well as an orthograde direction (Wallerian degeneration). As a period of almost eight months had elapsed following the injury to her left lateral cutaneous nerve of the thigh, then the retrograde axon.al degeneration of the nerve would have extended proximally to include the recording electrode. I would consider that the abnormalities defined on the nerve conduction study were only consistent with an injury to her left lateral cutaneous nerve of the thigh and that the nerve conduction study findings were certainly consistent with an injury occurring at the time of the subcutaneous heparin injection.
Dr R Malhotra had concluded from the results of the nerve conduction study undertaken on 8 April 2015 that there was "neurophysiological evidence of left Meralgia Paraesthetica. ". Meralgia paraesthetica (Bernhardt-Roth syndrome) is a clinical syndrome that describes a nerve entrapment syndrome involving the lateral cutaneous nerve of the thigh in the inguinal region as the nerve emerges below the inguinal ligament. Dr R Malhotra had only performed a nerve conduction study and he had not undertaken any history or examination of (the plaintiff) to be able to conclude that the abnormality involving her left lateral cutaneous nerve of the thigh was consistent with the clinical syndrome of left meralgia paraesthetica. It can only be concluded from the results of the nerve conduction study that there was abnormal nerve conduction involving her left lateral cutaneous nerve of the thigh and no definitive clinical aetiology can be ascribed to the abnormal nerve conduction study findings.
[Emphasis contained in original report.]
As to the reports of Dr Saines, Dr Brooder repeated the comments which he had made in his previous report, with the addition of an alternative explanation for the proximal loss of nerve function in the last sentence of the extract at [59] above. That sentence read:
The alteration to sensation that extends more proximal to the injection site can be readily explained by the occurrence of referred nerve symptoms or the subsequent development of more proximal degeneration of the injured nerve.
Dr Brooder went on to say:
It is apparent that the additional comments by Dr N Saines (page 1, paragraph 4) are based upon the erroneous and unsupportable clinical conclusion of Dr R Malhotra that, based solely upon the location of the recording electrode and in the absence of obtaining any clinical history or examination, then the nerve conduction study results were reported to be consistent with the clinical syndrome of meralgia paraesthetica. Dr N Saines has failed to consider the possibility of retrograde axonal degeneration occurring over the period of almost eight months following the nerve injury as an explanation for the abnormal nerve conduction study findings and also for the more extensive and proximal distribution of (the plaintiff’s) sensory deficit that had been documented on her clinical examination.
It would appear that Dr N Saines’ subsequent change of opinion concerning the persistent painful sensory disturbance involving (the plaintiff’s) left thigh has now been based upon the erroneous and unsupportable “clinical” conclusion of Dr R Malhotra that the nerve conduction study changes were consistent with the clinical syndrome of meralgia paraesthetica.
I
Apparently, the Defence had asserted that a common cause of meralgia paraesthetica included scar tissue near the inguinal ligament due to surgery. I would disagree that scar tissue near the inguinal ligament is a common cause of meralgia paraesthetica and post-surgical meralgia paraesthetica would be somewhat uncommon. The commonest cause of meralgia paraesthetica is an entrapment syndrome of the lateral cutaneous nerve of the thigh in the region of the inguinal ligament and most commonly occurs in overweight men with compression of the nerve by abdominal obesity and the use of firm clothing or a particularly constrictive belt.
[Emphasis contained in original report.]
Dr Brooder did not take issue with the views expressed by Dr Lindeman in his report. He concluded:
I would further comment in general that of particular relevance is (the plaintiff’s) clinical history. It should be noted that following the evening subcutaneous injection of heparin into the anterior and lateral aspect of her left thigh there had been increased local pain related to the injection site and that during the night she had become aware of an increasing soft tissue swelling over the anterior and lateral aspect of her left thigh associated with altered sensation over the lateral aspect of her left thigh. Further, when assessed by a hospital resident medical officer the following morning it was noted that she had developed a 3 x 3 cm fluctuant lump over her left mid-thigh consistent with a haematoma that was associated with altered sensation over her left thigh. Once again, I would consider that the nerve damage sustained by (the plaintiff) is consistent with a traumatic injury involving her left lateral cutaneous nerve of the thigh (lateral femoral cutaneous nerve) in the mid-thigh region related either directly to the subcutaneous heparin injection or to the associated subcutaneous haematoma induced by the heparin injection.
[Emphasis contained in original report.]
The plaintiff’s solicitors then asked Dr Brooder to clarify some issues arising from his 16 December 2018 report. The first of these related to what he meant by the reference to axonal degeneration. Dr Brooder explained that this is a process which follows injury to a peripheral nerve of sufficient severity. The axons within that nerve will degenerate or die. Importantly, he saw that as a process which could occur in both directions from the site of the injury (that is, both above and below that site).
He was also asked to explain why he thought it was not open to Dr Malhotra to ascribe a definitive clinical aetiology to the abnormal nerve conduction result. He provided the following explanation:
On 8 April 2015 Dr R Malhotra had only undertaken a nerve conduction study on (the plaintiff's) left lateral (femoral) cutaneous nerve of her thigh. Undertaking a nerve conduction study does not necessarily also involve obtaining a clinical history or undertaking a clinical examination of the person. When undertaking the nerve conduction study Dr R Malhotra had not obtained a clinical history or undertaken a clinical examination.
The nerve conduction study undertaken by Dr R Malhotra on 8 April 2015 had demonstrated an absence of the sensory action potential for (the plaintiff's) left lateral femoral cutaneous nerve of the thigh that is consistent with an absence of function of her left lateral femoral cutaneous nerve of the thigh.
Based solely on the result of the nerve conduction study undertaken by Dr R Malhotra on 8 April 2015 it can only be concluded that (the plaintiff's) left lateral femoral cutaneous nerve of the thigh was non-functional.
However, following the nerve conduction study undertaken on 8 April 2015and despite not obtaining a clinical history or undertaking a clinical examination Dt R Malhotra had concluded that there was "neurophysiological evidence of left Meralgia Paraesthetica. ". Meralgia paraesthetica (Bernhardt-Roth syndrome) is a clinical syndrome that describes a nerve entrapment syndrome involving the lateral cutaneous nerve of the thigh in the inguinal region as the nerve emerges below the inguinal ligament. To be able to conclude from a nerve conduction study that there was a clinical syndrome consistent with "Meralgia Paraesthetica" then it would have been necessary to obtain a clinical history and undertake a clinical examination of (the plaintiff).
In the absence of obtaining a clinical history and undertaking a clinical examination and based solely upon the results of a nerve conduction study, then it is not possible to conclude that there is a specific clinical syndrome present (Meralgia Paraesthetica) and that " ... no definitive clinical aetiology can be ascribed to the abnormal nerve conduction findings ."
[Emphasis contained in original report.]
Dr Brooder was asked to identify the literature which supported his hypothesis about the axonal degeneration. He identified three papers. These were subsequently admitted into evidence as Exhibit “D13”. After referring to these papers, Dr Brooder concluded:
Considering the nature of axonal degeneration, then following the injury to (the plaintiff's) left lateral cutaneous nerve of the thigh, the injury could certainly extend proximately over a distance of 7 cm in eight months.
In relation to the two possible explanations for the symptoms suffered by the plaintiff in the time since the second heparin injection, Dr Brooder commented as follows:
At the time of the injection of heparin into the anterior and lateral aspect of her left thigh (the plaintiff) had developed increased local pain related to the injection site. The increased local pain following the injection is consistent with the possibility that the traumatic injury to her left lateral cutaneous nerve of the thigh was directly related to the subcutaneous heparin injection. However, during the night she had become aware of an increasing soft tissue swelling over the anterior and lateral aspect of her left thigh associated with altered sensation over the lateral aspect of her left thigh that was consistent with a local haematoma associated with altered sensation over her left thigh and the potential for the injury to her left lateral cutaneous nerve of the thigh to alternatively having been caused by the increasing haematoma.
It was agreed (with the opinion of Dr R Lindeman in the report, dated 19 June 2018) that local soft tissue bruising is a very common sequelae of subcutaneous heparin injections and that haematoma formation is a recognised side-effect of the injection. An increasing haematoma could potentially result in injury to an adjacent peripheral nerve.
However, considering the nature of the injury to (the plaintiff's) left lateral cutaneous nerve of the thigh I would tend to favour the proposition that the injury was directly related to the subcutaneous heparin injection rather than the alternative proposition that the injury was related to the haematoma formation. An injury inflicted directly to the nerve by the heparin injection is more likely to result in permanent nerve damage associated with a permanent neuropathy and neuralgia, where as an injury related to a haematoma formation is more likely to result in a potentially reversible neurapraxia.
Dr Brooder’s final report, dated 21 July 2019, responded to two further reports from
Dr Saines, dated 16 January 2019 and 3 April 2019, and a report from Dr Milovic dated 5 July 2019. In his reports Dr Saines had taken issue with the hypothesis that the symptoms above the injection site, and the result of the nerve conduction study, could be explained by the process of axonal degeneration affecting the nerve proximal (i.e. above) the injection site. In relation to the symptoms, Dr Brooder said:
Retrograde degeneration is a documented neuropathological process and when combined with the neuropathic changes in a peripheral nerve, then more proximal sensory disturbance may occur.
I understand “retrograde” degeneration to refer to the process occurring above the site of the nerve injury.
In relation to the nerve conduction results, Dr Brooder disagreed with Dr Saines and elaborated in the following manner:
Undertaking a neurophysiological study of the lateral femoral cutaneous nerve is a technically difficult procedure and the sensory action potential obtained is of a low amplitude. The presence of retrograde degeneration of the nerve would result in dispersion of the sensory action potential with a further reduction in the amplitude of the sensory action potential rendering the sensory action potential unobtainable.
In relation to Dr Saines’ report of 3 April 2019, Dr Brooder agreed with some comments, but not others. He went on to say:
I would disagree with the comment of Dr Saines (page 2, paragraph 1) that "... Dr Malhotra has commented on the results of his nerve conduction studies which are consistent with these clinical findings." Dr Malhotra had not undertaken any clinical assessment of (the plaintiff) and only a limited nerve conduction study had been undertaken. It can only be concluded by Dr Malhotra that the nerve conduction study revealed an abnormality of peripheral nerve conduction involving her lateral femoral cutaneous nerve and no clinical aetiology can be applied to the abnormal finding.
I would consider that the conclusion by Dr Saines (page 2, paragraph 1) that "on balance of probabilities it is likely that the disruption of the nerve complicated the abdominoplasty and/or post operative phase of management." Dr Saines is a consultant neurologist and in the absence of further clarification of his experience in the surgical aspects of an abdominoplasty and post operative management, then it would appear that this comment is beyond his area of expertise.
I would disagree with the further comment of Dr Saines (page 2, paragraph 2) that "... the value of the study is in the localisation of the lesion to a more proximal site above the location of the thigh injection." For the reasons expressed above concerning the occurrence of retrograde degeneration, then I would consider that the study is unable to definitively localise the lesion involving (the plaintiff's) lateral femoral cutaneous nerve of the thigh.
[Emphasis contained in original report.]
Dr Brooder was asked to specifically comment on the significance of the timing of the plaintiff’s left thigh symptoms as it relates to the issue of causation. After noting that the plaintiff had suffered no pain or altered sensation before the second injection, he recounted the history of her symptoms and the development of the haematoma after the injection. He concluded:
I would consider that the timing of the onset of (the plaintiff’s) left leg symptoms is paramount to the assessment of the likely cause of her condition. Her condition is consistent with a traumatic injury to her left lateral cutaneous nerve of the thigh (lateral femoral cutaneous nerve) that has resulted in permanent nerve damage and an associated neuralgic pain syndrome. Prior to the subcutaneous heparin injection she had not been subject to sensory disturbance or pain involving the anterior and lateral aspect of her left thigh. At the time of the injection there had been increased pain related to the injection that would be consistent with an injection directly into the nerve. Alternatively, following the heparin injection she had developed a local haematoma that could have a/so resulted in the nerve injury.
In relation to the report of Dr Milovic, I had initially indicated that Dr Brooder’s comments would not be admitted into evidence. This was because at that stage there was an outstanding objection to the tender of Dr Milovic’s report. Subsequently that report was admitted, subject to a direction under s 136 of the Evidence Act 2011 (ACT), in relation to part of the history recorded in the report. Having regard to the direction I gave I have not admitted the second sentence of the first paragraph of the comments on
Dr Milovic’s report. I have, however, admitted the rest of the comments. Essentially,
Dr Brooder saw the contents of Dr Milovic’s report as supporting his conclusion that the plaintiff’s nerve injury was more probably caused by the heparin injection than the abdominoplasty procedure.
Dr Brooder was subjected to a searching cross-examination by Mr Walsh SC.
Dr Brooder confirmed that at the time of his second consultation he had formed the impression that the plaintiff was independent in her personal care and activities of daily living, although he did not enquire as to the detail of the latter. He also marked a diagram of the areas of altered sensation and impairment of the plaintiff’s left thigh as at 8 May 2018 which became Exhibit “D9”. Dr Brooder was asked by counsel to mark on another diagram the areas innervated by the lateral femoral cutaneous nerve, the femoral nerve and the intermediate cutaneous nerve. Dr Brooder pointed out that there is considerable overlap and variability. He then marked the diagram which became Exhibit "D10".
In relation to the proposition that the injection might have been given into the thigh muscle tissue, Dr Brooder expressed the view that it was unlikely. He thought that it was probably given into the deeper layer of subcutaneous fat in the region of the lateral cutaneous femoral nerve.
It is clear that Dr Brooder found the diagram contained in Dr Malhotra’s notes (at p 14 of Exhibit “D8”) hard to reconcile with the tabulated results of the nerve conduction study. He maintained his position that Dr Malhotra was not in a position to make a conclusion as to the probable cause of the plaintiff’s nerve injury based on the results of the nerve conduction study alone.
Mr Walsh SC put to Dr Brooder a number of documents which analysed published data concerning the risks of nerve damage complications associated with abdominoplasty (Exhibits “D11” and “D12”). These studies indicated that just over 1% of cases lead to some level of permanent damage to the lateral femoral cutaneous nerve after that procedure. Dr Brooder accepted that proposition as accurate. The record made by
Dr Clink on 18 August 2014 of numbness up to the groin was put to
Dr Brooder as was the absence of recording found by Dr Malhotra in his nerve conduction study report. Mr Walsh SC then asked whether either of those findings were consistent with meralgia paraesthetica. Dr Brooder agreed that Dr Clink’s finding was consistent. He did not think that it was reasonable to draw that conclusion from the nerve conduction study on its own.
Dr Brooder was questioned as to his expertise in nerve conduction studies. He answered that in fact he spent about 20% of his time performing these studies. He was also questioned as to the area of the thigh innervated by the lateral femoral cutaneous nerve. He agreed that the nerve did not innervate any part of the posterior thigh. He also agreed with the proposition that if a needle used to administer the heparin had struck a nerve the patient would be expected to feel a sensation akin to an electric shock even if he/she was taking strong pain killers. The doctor replied that he would usually expect the patient to experience pain.
Mr Walsh SC then took Dr Brooder through the hospital clinical records in detail and highlighted the absence of any record of a complaint of pain. Dr Brooder conceded that on that basis (that is, that the only information available was the content of the notes) it would be reasonable to conclude that the nerve injury was more probably caused by the haematoma than by penetration of the nerve by the needle.
Dr Brooder was then questioned as to the contents of the three articles which formed part of Exhibit “D13”. In particular, he was tested as to the conclusions expressed in the paper with the citation, B.G. Cragg, P.K. Thomas, ‘Changes in conduction velocity and fibre size proximal to peripheral nerve lesions’ (1961) 157(2) The Journal of Psychology. It was put to the doctor that after insult to the nerves on testing, most people showed a full recovery in conduction velocity after 200 days. Dr Brooder pointed out that this was true of three of the four categories tested. The categories were crushing, constricting, cutting and suturing, and, cutting and avulsing. In the latter case nerve conduction velocity partly recovered to 60/70% of normal after 200 to 400 days, but thereafter showed no sign of full recovery. Dr Brooder was firmly of the view that that result was consistent with his hypothesis of retrograde axonal degeneration, which explained why Dr Malhotra obtained no reading in his nerve conduction study performed on 8 April 2015.
In that context he said that he did not consider the plaintiff to have suffered an avulsion of the nerve. Rather, he contended that it was likely there had been significant interference with the continuity of the nerve.
As to the proposition that there was an equal likelihood that the cause of the nerve injury was the abdominoplasty itself, Dr Brooder responded (at T 230 I1-24):
Well, not on the time course of what happened, no. As I obtained the history that following the heparin injection, there was pain in the mid-thigh. Following that a haematoma developed, and following that she had sensory impairment over the nerve. Now, if we look at the time course of the whole problem, and you know day zero is the operation, and at day zero she had an operation which involved a lower abdominal incision and then a binder placed around the abdomen. Now, at time zero we know the nerve wasn't injured at the time of the surgery because if the surgeon had have cut the nerve or had have been an immediate problem from the nerve, Mrs Kempster would have woken up with numbness in that distribution. So, that didn't occur. So, we can discount a direct surgical assault on the injury. Now, the application of the binder would be a compression effect and it would start at the time of the operation and that would have a delayed effect. You can discount scarring because scarring takes months to develop. So, we can assume that, yes, perhaps the binder would cause some nerve compression and result in compression on the lateral cutaneous nerve of the thigh, however Mrs Kempster remained initially asymptomatic for 36 hours until the heparin injection or after the heparin injection was given, at which point she experienced pain, a haematoma and sensory disturbance. And to my mind, the time course of the injury follow more in line with an acute insult having occurred at the time of the heparin injection and related either directly or indirectly to the heparin injection.
Mr Walsh SC then asked Dr Brooder as to the contents of the hospital notes in the following exchange (T 230 I25-34):
Mr Walsh SC: Of course, you would have to revisit your theory if you accepted the contemporaneous records made by medical staff on 12 and 13 August 2014, including by Dr Saw of no complaint of pain?
Dr Brooder: Well, the pain may have been quite transient at the time of the injection. Now, the injection was given, there was a transient pain. Sharp, shooting pain, like you described as having - had nerve involvement, and that pain could settle quite rapidly. Plus, she was also receiving, as you told me, Tramadol and Endone, both of which could have dulled the pain. So, I don't think the lack of pain necessarily mitigates against the time course of events as I described.
In re-examination, counsel for the plaintiff put the evidence of the plaintiff as to what she felt when the injection was given to Dr Brooder (T 232 l37-44):
Mr Mcllwaine SC: And she said, ‘I had instant pain. It was like a bee sting and I said ouch.’ Now, Doctor, would that be consistent with what you would expect a person to experience if there was an injury to the nerve?
Dr Brooder: Well, it - as I understand - I don't think I've been stung by a bee, but the understanding that a bee sting is a sudden onset of a sharp, severe, brief pain, and that sort of a sharp, severe, brief pain would be consistent with an injury to a nerve, yes.
Dr Milovic
The plaintiff also relied on the evidence of Dr Milovic as given in his report dated
5 July 2019. In that report he expressed the opinion that the abdominal compression garment which he had prescribed for the plaintiff was unlikely to have caused the injury to the plaintiff’s nerve. This opinion was based on having never come across such a complication in his 25 years of experience. As to whether the injury was caused by the surgery or the second heparin injection, he favoured the latter due to the absence of symptoms in the 31.5 hours between the surgery and the injection. He thought that the pain at the time of the injection and the subsequent development of the haematoma and sensory changes were consistent with the injury having been caused by the injection.
Dr Milovic was cross-examined. He was taken to the clinical notes in his file. In particular he was taken to the note made by Ms Matthews, his practice nurse, and his own note of the plaintiff’s attendance at his rooms for dressing review on
20 August 2014. He confirmed that he had marked the areas of concern to the plaintiff on her left thigh and taken photographs of that. He was also taken to the hospital clinical notes. Apart from orders on the doctor’s rounds record for 13 August 2019, which he signed, there is no written record by Dr Milovic in the clinical notes that go to his interaction with the plaintiff on the morning of 13 August 2014. In response to the proposition that the first he knew of the allegation of an incorrectly given heparin injection was when he received the letter from the plaintiff’s solicitor dated 5 July 2019, Dr Milovic maintained that he knew at the time of the 13 August 2014 attendance on the plaintiff at the hospital, and also when he saw her on 20 August 2014 (see: T 363 l10-40). Mr Walsh SC pointed out to the doctor that there was no reference to the injection in his clinical notes. The following exchange then occurred (T 366 l6-10):
Mr Walsh SC: The absence of any record in both Ms Matthews' and your notes for the patient would be more reliable as to whether or not the plaintiff made a complaint to you on 20 August 2014. Do you agree?
Dr Milovic: I do.
Ms K Sharp
The plaintiff tendered a report dated 13 April 2017 from Ms K Sharp, a very experienced registered nurse. Objection was taken to some paragraphs of the report which were either not pressed or ruled inadmissible. The remainder of the report was admitted as part of Exhibit “P4”. On the assumption that Mr Nunes administered the heparin injection on the evening of 12 August 2014 in the manner described by the plaintiff, Ms Sharp expressed the opinion that the manner in which the injection was given fell “…well below the acceptable standard for a reasonably competent nurse administering a subcutaneous injection.”
Medical experts – the defendant’s case
Dr Saines
The defendant relied upon the evidence of Dr N Saines. This consisted of five reports dated 14 January 2018, 26 April 2018, 16 January 2019, 3 March 2019 and
23 July 2019. These reports, together with Dr Saines' curriculum vitae were admitted into evidence as part of Exhibit "D5".
Dr Saines saw the plaintiff for a consultation on 10 January 2018 for the purposes of his first report. He was provided with copies of the plaintiff’s Statement of Claim, excerpts of the clinical records of the hospital and the Jerrabomberra Medical Centre, the clinical notes of Dr Milovic and Dr Brooder’s report of 3 June 2017. He was also provided with the photographs taken of the plaintiff on 20 August 2014 and photographs of syringes. He also had available Dr Malhotra’s nerve conduction study report and the diagram provided by Dr Malhotra.
Dr Saines took a history from the plaintiff, which was essentially consistent with her evidence. On examination he found an area of altered sensation with hyperaesthesia extending beyond the anatomical distribution of the lateral femoral cutaneous nerve.
Based on the material available to him, Dr Saines concluded that the injection may have impinged the lateral cutaneous nerve, which was likely to be the initiating cause of her symptoms.
The defendant’s solicitor then provided Dr Saines with copies of emails from
Dr Malhotra dated 29 January 2018 and 21 February 2018, the 20 August 2014 photograph previously provided, a photograph of the compression garment worn by the plaintiff and the patient’s guide issued by the Australian Society of Plastic Surgeons for Abdominoplasty Surgery (the latter was admitted to evidence as Exhibit “D3”).
Dr Saines responded to that further material in his report of 26 April 2018. He concluded from the information that as Dr Malhotra had placed the recording electrode above the injection site, that the lesion to the nerve must have occurred above the injection site. He saw that conclusion as providing an explanation for the extent of the plaintiff’s sensory deficit. On that basis he concluded that the probable cause of the plaintiff’s condition was compression of the lateral femoral cutaneous nerve at the inguinal region.
In December 2018 the defendant’s solicitors sent to Dr Saines a copy of
Dr Brooder’s reports dated 4 July 2018 and 16 December 2018. Dr Saines responded by his third report, dated 16 January 2019. In that report he expressed the opinion that retrograde axonal degeneration was not a significant process. That was supported by his clinical experience that a progressive, ascending and spreading sensory loss does not occur after distal injury to a sensory nerve. He maintained his view that damage to the lateral cutaneous nerve was unlikely to involve sensory loss in the medial aspect of the thigh. He considered that the proximal extent of the sensory deficit was more than simply referred symptomatology. In his view, it provided evidence of a more proximal lesion of the nerve consistent with compression at the inguinal ligament. He noted that compression neuropathies at that level do not always recover, and that the lack of recovery did not designate the nature or site of the nerve lesion.
On 22 March 2019 the defendant’s solicitors again wrote to Dr Saines enclosing a further copy of the patient guide (Exhibit “D3”), and copies of two articles relating to complications arising from abdominoplasty. The latter articles were admitted into evidence as Exhibits “D11” and “D12”. The letter sought the doctor’s response to a series of further questions as to the probable cause of the plaintiff’s nerve injury.
In relation to the question of the relationship between abdominoplasty and damage to the lateral femoral cutaneous nerve, Dr Saines concluded:
… The nerve is also close to the surgical approach to the abdominoplasty performed in August 2014 and within the cover of the compression garment worn post operatively. In considering the contribution of surgery, the nerve may be directly damaged at the time by local bruising, swelling or later scarring.
With regard to the nerve conduction study result, Dr Saines maintained his view that the lack of response to the testing of the nerve indicated damage within the segment between the testing electrodes.
He concluded that the combination of the extent of the sensory deficit he found on examination, that found by Dr Clink on 18 August 2018 and the results of the nerve conduction study supported the hypothesis that the probable cause of the nerve damage was the abdominoplasty and/or the wearing of the compression garment post the operation. Dr Saines noted that the literature review articles which had been provided to him indicated the rate of injury to the lateral femoral cutaneous nerve associated with abdominoplasty surgery to be approximately 1.4%.
Finally, on 22 July 2019 the defendant solicitors wrote again to Dr Saines enclosing copies of Dr Milovic’s report of 5 July 2019 and the supplementary report of Dr Brooder dated 4 February 2019, together with the articles referred to by
Dr Brooder (Exhibit “D13”). Reference to this material did not cause Dr Saines to alter the opinion he expressed in his previous report as to the probable cause of the nerve lesion suffered by the plaintiff. He disagreed with Dr Brooder’s hypothesis that the sensory deficit above the injection site and the result of the nerve conduction study could be explained by axonal degeneration proximal to the injection site. It should be noted, however, that he did express agreement with the proposition that permanent nerve damage was more consistent with injury inflicted directly to the nerve by injection than by compressive injury caused by a haematoma. He saw the latter as more likely to cause reversible neuropraxis.
Dr Saines gave evidence at the hearing on 1 August 2019. In chief he was taken to the evidence of Dr Brooder as to the contents of the Cragg and Thomas paper forming part of Exhibit “D13”. He expressed the view, contrary to that of Dr Brooder, that whatever damage was done to the plaintiff’s nerve it was unlikely to have been comparable to the severing and avulsion which occurred in the fourth category described in the paper. He also disagreed with the analogy given by Dr Brooder of a reduction in nerve conduction velocity over time in the case of carpal tunnel syndrome. While he conceded that there may be changes in nerve conduction studies, these were very sensitive and did not necessarily correlate with clinical observations. In his practice he had not seen a case where sensory loss had increased over time proximal to an injured sensory nerve where there was such a loss of sensation distal to the lesion.
Dr Saines agreed that the articles referred to by Dr Brooder supported the hypothesis of retrograde axonal change. However, this was in the context of studying animal nerves and was not supported by his clinical experience.
At the hearing Mr Walsh SC asked Dr Saines for his opinion as to the description given by the plaintiff of the needle causing a pain like a bee sting. Dr Saines said (at T 291 I 10-17):
Well, it’s always difficult to interpret human beings and their description of a discomfort. My bee sting, when I was younger, if the court has any interest in hearing about that, was that it was extremely painful, and it persisted for a long time. But people do speak about a bee sting if they have an injection by itself, if one has a flu shot. I mean, you would say “Oooh, that was a sting and it lasted for a period of time”. I’m not sure that I necessarily correlate that with a specific nerve quality.
Under cross examination by Mr McIlwaine SC, the following exchange occurred
(at T 294 I20-33 – 295 I28):
Mr Mcllwaine SC: Well, your clinical opinion expressed in your report of the 14 January 2018?
Dr Saines: M'mm.
Mr Mcllwaine SC: Was that that you have set out on page five of your report of that date in paragraph (d) - named - numbered paragraph (d), 'Namely, that in my opinion the injection in the left lower lateral thigh may have impinged the lateral cutaneous nerve of the thigh. On balance this is likely to be the initiating cause of her symptoms.'?
Dr Saines: And I don't think it's anything wrong with that.
Mr Mcllwaine SC: Well is that?
Dr Saines: In the sense of initiating but not the picture that I subsequently came to find on examination. So I think it's just a matter of nuance.
Mr Mcllwaine SC: Well, let's just think about that for a moment. Is it your opinion that the injection into the left lower lateral thigh may have impinged the lateral cutaneous nerve of that thigh?
Dr Saines: May have. I accept that.
Mr Mcllwaine SC: And it's likely as you have gone on to say that if the needle impinges or enters into the nerve?
Dr Saines: M'mm.
Mr Mcllwaine SC: It's likely to damage the nerve?
Dr Saines: Correct.
Mr Mcllwaine SC: And you concluded that on balance it seems more likely that this was a result of the thigh injection, that is to say the symptoms that the plaintiff, Mrs Kempster, experienced then and continues to experience. That's correct, isn't it?
Dr Saines: Well, I think the report needs to be read completely. And I think I go on to explain that this does not explain the clinical presentation.
Mr Mcllwaine SC: Well, what you say is that on balance it seems more likely that this was a result of?
Dr Saines: The initiating cause of the symptoms. So let me just explain. I'm sorry if it's been a little confusing. I've said that this was likely to be the initiating cause of the symptoms. Number, (e) - I've said, 'Yes, that could have initiated things.' Number, (f) - I've said - I'm sorry - I've said that it doesn't really explain the clinical presentation.
Mr Mcllwaine SC: All right. But let's be clear that it is your opinion when you wrote this report?
Dr Saines: M'mm.
Mr Mcllwaine SC: And it continues to be your opinion today?
Dr Saines: M'mm.
Mr Mcllwaine SC: That it was the needle impinging or entering?
Dr Saines: M'mm.
Mr Mcllwaine SC: The nerve that was the initiating cause?
Dr Saines: Yes.
Mr Mcllwaine SC: Of her symptoms?
Dr Saines: I said it may have impinged the lateral cutaneous nerve and may have been the initiating cause of the symptoms.
Mr Mcllwaine SC: In other words it caused the symptoms?
Dr Saines: It may have caused some transient symptoms. I didn't say anything there about recovery. I did qualify the clinical syndrome presented to me at the time of the examination being inconsistent with that particular injury.
Mr Mcllwaine SC: Well, in (f) you refer to her complaint that she presented them to you at that examination. And you explained or you say that that explains in part the complaints can be explained in part to a lesion to the lateral cutaneous nerve of the thigh?
Dr Saines: M'mrri.
Mr Mcllwaine SC: That's what you say?
Dr Saines: M'mm.
Mr Mcllwaine SC: And that continues to be your opinion?
Dr Saines: Along with the rest of that part (f).
Dr Saines was then asked questions about the studies described in the Exhibit “D13” papers. He did not challenge the validity of the papers. He did however emphasise the need to be careful in applying them to the clinical setting.
Dr Malhotra
Dr Malhotra was called by the defendant. He had not provided a medico-legal report and objection was taken by the plaintiff to Dr Malhotra giving evidence beyond the steps he took to perform the nerve conduction study on 8 April 2015. After hearing submissions from the parties I ruled that the defendant should be permitted to ask the doctor about the testing he carried out, to explain his study report and the diagram which he provided showing how the study was carried out. I ruled against the doctor being asked for his opinion as to issues that went beyond those that were necessary for him to deal with the above matters.
In examination-in-chief the doctor was taken to the notice to admit facts which had been admitted into evidence as Exhibit “D7”. He confirmed the accuracy of the
15 numbered paragraphs forming part of that notice.
The doctor was also taken to the bundle of documents consisting of his clinical file and copies of communications between him and the defendant’s solicitor (Exhibit “D8”). He then explained in some detail the procedure which he adopted in performing the nerve study. He confirmed that to test the left lateral femoral cutaneous nerve he placed the stimulating electrode above the inguinal ligament at about the point of the anterior superior iliac spine, and the recording electrode in a line from that point to the lateral part of the knee and 20 cm down the leg. He said that the diagram at p 14 of Exhibit “D8” was taken from the internet and was only to demonstrate the general principle of the process. The actual measurement points he used were more accurately described in some photographs which he had taken. These photographs became Exhibit “D18”.
He was asked whether he examined the plaintiff. He said he took a brief history from her and looked at the 20 August 2014 photographs, but did not carry out a neurological examination of her thigh because he was not asked to.
Dr Malhotra explained the tables in his report (p 5 of Exhibit “D8”). In particular he said that his practice was to take about 20 readings for each measurement of a sensory nerve. The figures which appear in the tables represent the average of those readings.
The doctor was asked about the extent to which he relied on the referral letter from
Dr Ahmed in expressing his view that the testing results provided evidence of meralgia paraesthetica. He responded as follows (T 420 I32-45 – 421 I8):
Mr Walsh SC: If I could take you to Dr Ahmed's letter and just deal with it sentence by sentence. What was the relevance of the first sentence, 'Jill had IM injection in August 12'?
Dr Malhotra: IM injection.
Mr Walsh SC: IM?
Dr Malhotra: Yes. So the loss of sensation with an intramuscular injection, the nerve which we are testing is not in the muscle, with the cutaneous nerve. So that intramuscular injection I don't think will - if it's piercing through the nerve, that's a different thing, but muscle has no relevance as far as this.
Mr Walsh SC: And then what, if any, relevance was the statement, 'She got intense pain at that time.'?
Dr Malhotra: Injection in the muscle will not cause pain. If the nerve is - injection is piercing through the nerve, it will cause pain. Muscle is not - muscle is not a sensitive tissue.
Mr Walsh SC: All right. Now, what about, 'We were treating her conservatively but it's not improving. She had physio session for back also but no result.' How, if at all, was that relevant to your conclusion that Mrs Kempster suffered from meralgia paresthetica?
Dr Malhotra: I think the injection - I took that was not a related finding in this case, frankly speaking. I think patient has the injection done, but the area of involvement and the nerve conduction study was not consistent with those findings. So I made my finding depending upon my findings and my result of the nerve conduction study.
Upon being asked for the reasons why he did not consider that the abnormal nerve conduction result was caused by the injection he said (T 423 I20):
Dr Malhotra: Because the response, the injection, it was given much lower and if anything would have happen, would happen beyond that not proximal to it. All I have written out
Dr Brooder opinion but I don’t agree, that’s a different thing. Anything which will happen from the injection should happen beyond that not proximal to it that’s why in my opinion it was not heparin injection which caused the problem.
Dr Lindeman
The defendant also relied upon the report of Dr Lindeman dated 19 June 2018 (Exhibit “D5” pp 17-21). Dr Lindeman, who is a haematologist, expressed the opinion that a haematoma can be the result of a subcutaneous heparin injection administered in accordance with accepted practice. This is due to the anticoagulant nature of the medication, and the inevitable minor trauma to soft tissues and small blood vessels in the subcutaneous tissues.
Other Expert Evidence
In relation to the issue of quantum the plaintiff relied on the report of an occupational therapist, Ms N Stephenson dated 25 June 2018 and a forensic accountant,
Mr S Martiniello dated 4 July 2018. I will deal with this evidence in discussing quantum below.
Submissions of the Parties
Submissions of the plaintiff
The plaintiff argued that the Court should prefer the evidence of the plaintiff and her husband as to the manner in which the injection was given over the evidence of
Mr Nunes as to his “invariable practice”. It was submitted that there was no challenge to the truthfulness of the plaintiff and her husband, rather the accuracy of their recollection was questioned having regard to the passage of time, the regular discussion between them of the event and the fact that at the time the plaintiff was under strong pain medication. As to that, the plaintiff maintained that she had a clear recollection.
It was further put that there was important corroboration of the plaintiff’s version of events arising from the evidence of Dr Milovic of the complaint made to him on the morning of 13 August 2014, with some elaboration at the consultation on
20 August 2014 (see T 372 l20-45).
In relation to the proposition that Dr Milovic’s evidence should be discounted on account of the lack of reference to these matters in his clinical notes, the plaintiff pointed to the evidence he gave that he recalled the events because those events were so stressful (T 366 l5). The plaintiff contends that that evidence was not diminished by Dr Milovic’s concession that his notes would be a more reliable record.
The plaintiff also contended that corroboration is to be found in the following contemporaneous records:
(1) The plaintiff’s letter of complaint to the defendant dated 2 September 2014 (Exhibit “D4”); and,
(2) The GP clinical notes of the plaintiff’s attendance in the weeks and months after 12 August 2014 referring to an “IM” injection (i.e. intra-muscular) from which it can be inferred that the plaintiff was complaining that the injection had not been given correctly (see Exhibit “P4”, p 199 and Dr Clink at
T 381 I1-3)
Finally, the plaintiff submitted that added weight should be given to her evidence as to the way in which the injection was given because she had some training and experience in giving injections (see T 12-13).
On the basis that the evidence of the plaintiff and her husband is accepted, it should be concluded that Mr Nunes did administer the injection such that the needle entered the deeper subcutaneous tissue of the left thigh resulting in injury to the lateral femoral cutaneous nerve caused by either a direct insult to the nerve, or as the result of haematoma formation in the vicinity of the nerve. The plaintiff submitted that that conclusion was supported by the written opinions of both Dr Brooder and Dr Saines (see Exhibit “P4” pp 60 and 68, and Exhibit “D5” p 5). It was further submitted that both doctors saw the direct insult as being the more likely cause of the initial injury (Dr Saines at T 294-5, Dr Brooder at T 192 l20-25).
The basis for that conclusion is said to reside in the fact that the plaintiff felt sharp pain, akin to a “bee sting” at the time of, or immediately after, the injection.
Dr Brooder saw that description as consistent with immediate damage to the nerve
(T 232 l40). Dr Saines did not see it as necessarily consistent (T 291 l15).
Relying upon Strong v Woolworths [2012] HCA 5; 246 CLR 182 at [20], the plaintiff asserts that it is sufficient for her to establish that the negligence of the defendant was a necessary condition of the occurrence of the harm. It is not necessary for her to establish that it was the sole cause.
It is said that factual causation is established here on the basis of the evidence of
Drs Brooder (T 230) and Milovic (T 361).
Insofar as there were any inconsistencies in the area of sensory loss described, having regard to the region of innervation of the lateral femoral cutaneous nerve, it is suggested that caution must be exercised in relying upon the medical treatment records in circumstances where those inconsistencies have been put to the plaintiff in cross-examination without obtaining any significant concession. The plaintiff refers to Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] (Container Terminals), Mason v Demasi [2009] NSWCA 227 at [2] and Trewin v Pickwick Group Pty Ltd [2017] ACTSC 93 at [26].
The plaintiff, in their submissions, accepts that the lateral femoral cutaneous nerve does not innervate any of the back part of the thigh. It should be noted that her evidence in relation to symptoms in that area was somewhat unclear (T 111 l40 – 112 l5). In any event, the plaintiff submits, to the extent that the symptoms complained of extend beyond the relevant neuro-anatomical region, it is for the defendant to disentangle that which is within and outside the causal effect of the subject injury, as they bear the onus on this point (see Watts v Rake (1960) 108 CLR 158). The defendant has failed to discharge that onus.
In relation to the conflict of evidence over the nerve conduction study, the plaintiff argues that the evidence of Dr Brooder should be preferred. This is because Dr Brooder conducted neurological examinations of the plaintiff and Dr Malhotra did not (see T 409 l15-23, T 411 l10-17). This is of importance as it was necessary for such an examination to be carried out to make a clinical diagnosis. Dr Brooder’s hypothesis of retrograde axonal degeneration to explain the nerve conduction finding at a point 7 cm above the injection site should therefore be accepted as it is said to have been consistent with his clinical observations (T 227 l30-36, T 229 l12-25) and those of Dr Milovic (T 350).
The more significant issue arises with respect to the plaintiff’s symptoms extending above the site of the injection. It certainly appears that, initially at least, the plaintiff suffered from numbness in her upper thigh up to near her groin. That was recorded in the GP clinical notes, the photographs taken at Dr Milovic’s consultation on
20 August 2014 and in the 2 September 2014 complaint letter. According to the plaintiff’s evidence, the area of abnormal sensation had decreased over time (see
T 111 l33). Certainly when she was examined by Dr Brooder for the first time on
31 May 2017 the area of abnormal sensation was described as being confined to the anterior and lateral mid-thigh extending down to the area just above her knee.
Dr Brooder saw this as being within the distribution of the lateral femoral cutaneous nerve. He described the same region of symptoms when he examined the plaintiff again on 8 May 2018, although on this occasion he also noted a cold sensation and slight numbness extending proximally over the lateral aspect of the thigh.
Dr Saines had expressed the view, in relation to his findings on examination on
10 January 2018 that the extent of the abnormal sensation was greater than he would expect from damage done to the lateral femoral cutaneous nerve at the injection site. In particular, he noted an area of altered sensation above that site.
Dr Brooder commented on that finding in his report of 9 July 2018. He noted that there was a high degree of individual variability in cutaneous sensory nerves. He thought that the symptoms above the injection site could be explained by referred nerve symptoms. Subsequently, in dealing with the contention that the nerve conduction study indicated a lesion above the injection site, Dr Brooder proffered the opinion that the more likely explanation was that the process of axonal degeneration above the injury was caused by the injection.
Dr Milovic supported Dr Brooder’s analysis and conclusion. I have treated
Dr Milovic’s opinion with an appropriate level of caution, given that the alternative view as to causation would result in a finding that potentially reflected on his treatment of the plaintiff. Dr Milovic acknowledged that he was proud of his history of performing abdominoplasty operations for many years with no complications involving damage to a lateral femoral cutaneous nerve.
While Drs Saines and Malhotra took issue with Dr Brooder’s opinion, I consider it to be the more logical explanation for the sequence of events which befell the plaintiff after the second heparin injection. The evidence of Dr Saines in his first report and then under cross-examination supports the proposition that the plaintiff’s nerve injury was, at the least, initiated by the injection. While he maintained the view that the extent of the symptoms and the result of the nerve conduction study supported the hypothesis that either damage done at the time of surgery or some consequence of that surgery (such as scarring or swelling, or perhaps the wearing of the compression garment) must have contributed to the injury, I see difficulties in accepting that explanation for the plaintiff’s symptoms. Firstly, it would be expected that if the nerve was damaged during the surgery the plaintiff would have suffered from symptoms immediately after she recovered from the effects of the anaesthetic. She did not. Secondly, if the nerve was compressed by scarring it would be expected that that process would take some months after the operation (see Dr Brooder at T 193 l1-5, T 230 l15). Thirdly, if the nerve was compressed by swelling or the elastic garment that explanation would involve the remarkable coincidence that the symptoms commenced during the immediate aftermath of the incorrectly given injection. While that is possible, I find that the probable cause of the more extensive symptoms suffered by the plaintiff, particularly during the post-operative period start from the nerve injury suffered at the time of the injection, in accordance with the opinion of Dr Brooder.
It follows from that conclusion that I reject the hypothesis advanced by Drs Saines and Malhotra that the nerve conduction study establishes that the plaintiff must have suffered a nerve lesion between the stimulation and recording points of the tests carried out by Dr Malhotra on 8 April 2015. I have referred above to the difficulties I have in accepting Dr Saines’ view as to the cause of the plaintiff’s nerve injury. As to
Dr Malhotra’s view, it must be acknowledged that he only performed a single diagnostic test on the plaintiff. At no time did he carry out a full neurological examination or assessment of her condition based upon a full history taken from the plaintiff. In that context I prefer the explanation given by Dr Brooder. I find that the abnormal nerve conduction study result was caused by the process described by
Dr Brooder which itself was secondary to the injury done to the nerve at the time of the second heparin injection.
It follows from the above analysis that I am satisfied that the symptoms suffered by the plaintiff in her left thigh have been at all material times caused by the negligence for which the defendant is responsible.
Damages
General damages (damages for non-economic loss)
Having accepted the plaintiff as an honest and essentially reliable witness I also accept the consequences of the nerve injury as she described them and summarised in paragraph [50] above. I propose to award general damages on that basis. There appears to be no real issue on the neurological evidence that the plaintiff’s symptoms and related impairments are likely to be permanent, given the period for which she has suffered them up to the present. It was submitted on behalf of the plaintiff that the appropriate award of general damages was $110,000. For the defendant it was submitted that the second scenario (which accords with my findings) award should be $85,000.
Having regard to the nature of the injury suffered by the plaintiff and the effects of that injury on her I assess general damages at $95,000. The plaintiff has a life expectancy of about 29 years. I see no reason to depart from the usual approach of awarding interest on one half of general damages as being referable to the past. On that basis I award interest at 2% for 5 years on $47,500. This results in an interest award of $4,750.
Out of pocket expenses – past and future
The parties agreed that if I found in favour of the plaintiff on the issue of liability and causation the amount incurred by the plaintiff for past treatment is $3,477.10. I award that amount. The plaintiff claims interest at the rate of 3% over 5 years. That figure approximates one half of the rate adopted under r 1619 of the Court Procedures Rules 2006 (ACT) on the basis that the expenses were paid on a consistent basis over the past 5 years. That seems to me to be a reasonable basis on which to award interest here. I award the interest sum claimed of $521.56.
The plaintiff claimed the sum of $5,000 for future treatment needs as a “notional buffer noting modest continuing medication usage and treatment needs”. The defendant submitted no award should be made under this head. The plaintiff’s evidence in relation to her current treatment indicated that it was fairly minimal. She said that she was taking about one packet of Nurofen a month at a cost of $6-$8. Although
Dr Brooder had referred to the possibility of pain management treatment, it seems as though the plaintiff is yet to discuss that as a possible treatment option with any of her doctors. She had started seeing a GP in Adelaide, however no evidence was provided as to the frequency or the cost of such consultations in relation to her thigh.
It seems to me that there is a possibility that the plaintiff might seek further pain management treatment which, on the basis of Dr Brooder’s estimation in his first report would cost $500. I very much doubt that the plaintiff will undergo the surgical treatment of her nerve, which was another possibility referred to by Dr Brooder. Doing the best I can with the scant evidence I award the plaintiff $2,000 in respect of future treatment expenses.
Loss of earning capacity – past and future
The plaintiff submitted that a total of $66,614 should be awarded for damages for past loss of earning capacity. Of this, $1,900 is said to have been incurred as a consequence of the plaintiff having to take an extra two week off work due to the nerve injury on
12 August 2014. $56,914 is said to represent the difference between her average net weekly salary at the Mint in 2014/5 of $967 compared with her actual earnings on that basis of $569 between May 2016 (when she resigned from the Mint) and February 2019 (when she moved from Queensland back to Adelaide). From February 2019 the plaintiff claimed $7,800 representing an assumed loss of $300 per week (net) for
26 weeks.
The defendant on the other hand argued that nothing beyond the $1,900 should be awarded either for the past or the future. This was put on the basis that the plaintiff’s loss of her job at the Mint was caused by her decision to move to Queensland, and not her injury. It was also argued that her various other medical conditions mitigated against her working as a carer or cook. I should say that I do not accept the argument in relation to the Queensland move. It was entirely reasonable for the plaintiff to follow her husband to Queensland after he was posted there with the RAAF. The defendant also submitted that the plaintiff would have been unlikely to take on heavier physical work due to her non-injury related pre-existing medical conditions. I also do not accept that the plaintiff suffered any relevant disability from her other medical conditions that would have been sufficient to prevent her from working as a carer or cook in Queensland. Finally the defendant argued that the only reason the plaintiff is suffering a reduction in earnings at present is because of her choice to work less than full hours.
There are a number of difficulties with the damages claimed by the plaintiff under this head. Firstly, I note from the report of the forensic accountant that no amount was included for any loss prior to July 2016. He refers at paragraph 6.2 of the report
(Exhibit “P5”, p 105) to the plaintiff having used accrued leave to cover her time off after the operation. I infer that this was sick leave. Having regard to her resignation, it does not seem to me that any extra time off required as a consequence of the nerve injury resulted in actual financial loss.
Secondly, the claim as advanced by the plaintiff assumes that the plaintiff would have been able to continue working in Queensland earning at the same level as she was at the Mint. The plaintiff conceded under cross-examination that the Mint position was very much “one of a kind”. The plaintiff’s prospects of obtaining a position in or around Ipswich providing an income equivalent to that which she was receiving at the Mint in 2014/15 and 2015/16 seems rather remote. Thirdly, I am not persuaded by the argument that, but for her injury, the plaintiff would have made up her earnings to an equivalent to what she would have been earning at the Mint by working as a carer or commercial cook. In relation to the former, I note that the plaintiff had only worked in that position during the period between 1994 and 1995. Thereafter, although she remained in continuous employment, apart from a few years in catering at Woomera, she worked exclusively in office/administrative positions. Moreover, unlike the position put by the plaintiff with respect to the carer employment opportunities (see T 33 l30-33) there was no evidence as to the availability of commercial cooking positions around Ipswich.
As a consequence of the above I do not accept that it is possible to assess the damages for past loss of earning capacity on the basis initially pressed by the plaintiff. In oral submissions Mr McIlwaine SC for the plaintiff argued that in all of the circumstances an award in the nature of a buffer was appropriate. I agree with that submission.
I accept that the plaintiff had a good work history, and that she would probably have obtained full-time work in or around Ipswich had she not been injured. Given the difficulties in finding full-time office work I find that, but for her injury, the plaintiff would, in addition to her work for the Department of Education (Queensland), have worked
15-20 hours per week as a carer, up until the time the job with the ATO became available, in April 2018. Once that job became available it is likely, in my view, that the plaintiff would have undertaken that as a second casual job rather than the physically arduous duties associated with being a carer.
The plaintiff has, since Mr Kempster’s retirement and their return to Adelaide, continued to work 20 hours per week with the ATO. She could, if she wanted, be working 25 hours per week. However she has chosen not to work the extra day. I am not persuaded that she would have been looking for extra work as a carer, or a cook, since February 2019 had she not suffered the nerve injury. Thus, while I accept that she has suffered a reduction in her earning capacity, I am not persuaded that during that period it has resulted in any financial loss to the plaintiff.
At p 119 of Exhibit “P5” the forensic accountant sets out a calculation of the difference in net income during 2016/17 between the plaintiff’s actual earnings and that which she would have earned assuming a gross income of $55,000 for that year. The figure of $55,000 represents, as I understand it, the estimated full-time earnings of a carer based on the figures extracted at p 111 of the exhibit. Allowing for tax, the accountant arrives at a loss figure for the financial year of $13,699. That figure provides reasonable guidance in my view for the actual financial loss suffered by the plaintiff for that year. For 2017/18 the equivalent calculation results in a loss figure of $19,706. The total loss thus calculated is $33,405. Having regard to my findings in paragraph [173], and doing the best I can with the variables necessarily arising from the accountant’s assumptions and calculations, I assess the plaintiff’s damages for past loss of earning capacity at $30,000. The plaintiff in her written submissions claims interest at the rate of 3% for 3.25 years. That seems to me to be a reasonable basis for the calculation. I award interest of $2,925.
The plaintiff claims a buffer of $100,000 for future loss of earning capacity damages. This is based upon a notional loss of $300 per week for 7 years discounted at 3%. The evidence does not disclose in clear terms what the plaintiff is currently earning in her job with the ATO. Her payslip in June 2018 (see Exhibit “P5”, p 156) discloses that she was earning $33 per hour at that time. Assuming that rate is still applicable the plaintiff would be earning $660 gross per week for 20 hours work, or $825 if she chose to work 25 hours per week. At current tax rates that equates to $601 and $719 net per week respectively.
My assessment of the plaintiff is that she is enjoying the engagement she now has with her young grandchild. There is also the prospect that she and
Mr Kempster will be able to spend more time with their family and/or travel given his retirement from the workforce. I accept that the plaintiff intends to keep working until at least the age of 65. However, I am not persuaded that she would, if not injured, have returned to carer or cooking-type employment in the mechanical way assumed in the $300 per week loss as claimed.
It is certainly possible that the plaintiff would have exercised her lost earning capacity if not injured at some time in the next 6-7 years. However, I see that as a possibility rather than a probability. It is not reasonable given the uncertainties to attempt a mathematical calculation of damages under this head. Having regard to the imponderables I assess the amount of $25,000 by way of a buffer as being the appropriate compensation for the plaintiff’s future loss of earning capacity.
Griffiths v Kerkemeyer – s 100 damages (past and future)
The plaintiff claimed damages pursuant to the principles in Griffiths v Kerkemeyer (1977) 139 CLR 161 (Griffiths v Kerkemeyer which were given statutory force by
s 100 of the Civil Law (Wrongs) Act 2002 (ACT). That section relevantly provides:
100Damages for loss of capacity to perform domestic services
(1)A person’s liability for an injury suffered by someone else because of a wrong includes liability for damages for any resulting impairment or loss of the injured person’s capacity to perform domestic services that the injured person might reasonably have been expected to perform for his or her household if the injured person had not been injured.
(2)In an action for the recovery of damages mentioned in subsection (1), it does not matter—
(a)whether the injured person performed the domestic services for the benefit of other members of the household or solely for his or her own benefit; or
(b)that the injured person was not paid to perform the services; or
(c)that the injured person has not been, and will not be, obliged to pay someone else to perform the services; or
(d)that the services have been, or are likely to be, performed (gratuitously or otherwise) by other people (whether members of the household or not).
For the plaintiff, it was submitted that $14,400 should be awarded in respect of the period from August to December 2014. This reflected an allowance for 15 hours per week for 20 weeks at $48 per hour. The parties agreed that $48 per hour was the appropriate current rate for any award under this head. It was further submitted that
5 hours per week should then be awarded for the period since December 2014.
The defendant submitted that the evidence of the plaintiff and her husband was unreliable. Consequently, in relation to scenario 2, the award for past assistance should be limited to 7 hours per week for 6 weeks from the time the plaintiff first resumed work after the operation. Thereafter, no more than 2 hours per week should be awarded for the balance of the past. This results in a total past award of $25,728. For the future, the defendant contends that an award based on
2 hours per week for 5 years is appropriate. That equates to a figure of $23,289.60.
The plaintiff’s evidence-in-chief was to the effect that she was unable to attend to the heavier domestic cleaning tasks, particularly those which required her to squat or kneel, and that Mr Kempster had taken on doing that work since August 2014. She estimated that he had spent an average of 5 hours per week since then performing those tasks. In relation to the tasks performed outside the house, prior to the injury the plaintiff used to mow the lawn and perform trimming of shrubs and other pruning tasks. This tended to aggravate her thigh, so her husband has taken over these duties. He spent about 2.5 hours per month doing this while they were in Canberra, although this would usually only be over the growing season. She estimated 4 months per year for this. In Queensland this same time was required, however that was for 12 months of each year. She said that in their present home in Adelaide, if funds were available, she and her husband would pay for assistance for 4 hours per week to relieve her husband of the burden of this assistance. As I understand the evidence, Mr Kempster has had multiple back operations and so performing the extra work currently required tends to aggravate his back.
Under cross-examination Mrs Kempster seemed to become a little confused about this issue. She certainly had second thoughts about the period immediately after the operation in 2014. At T 121 l15-40 she said that she was wrong in her previous estimate of 5 hours per week and that it was more like 15-20 hours per week from August 2014 through to the end of December 2014. She then conceded that her estimate of 5 hours per week after that might have been a little high and that it was more likely to have been 4-5 hours per week.
Mr Kempster estimated that he spent about 10 hours per week performing domestic tasks at their home during the 3 months after the operation in August 2014. In addition, he was spending an hour a day helping the plaintiff with her personal care. After 2014 he estimated that he was spending about 7 hours per week in performing domestic tasks which the plaintiff was not able to do because of her thigh condition. That figure was constant up to the date of the hearing.
In relation to the outside work, Mr Kempster estimated 12 hours per month during the warmer months while they lived in Canberra, and then 8 hours per month in Queensland.
The plaintiff also relied upon the report from Ms N. Stephenson, Occupational Therapist, dated 25 June 2018. She assessed the plaintiff over three hours at her professional rooms at Spring Hill in Brisbane on 20 June 2018. She concluded that the plaintiff needed 4 hours assistance with domestic tasks inside the house as a consequence of the injury to her nerve and that this need was ongoing. In relation to the outside tasks, she was of the view that the plaintiff needed one hour per fortnight until January 2018 and half an hour thereafter. This need is also ongoing.
It was put to Ms Stephenson under cross-examination that her opinion was at odds with that expressed by Dr Brooder (and endorsed by Dr Saines) that the plaintiff was “independent in her activities of daily living”. Ms Stephenson properly conceded that she would defer to the neurologists in relation to the diagnosis and treatment of a neurological condition. However, in relation to the assessment of functional impairment, she was prepared to stand by her own opinion. The following exchange is recorded
(T 255 l45 - 256 l14):
Mr Walsh SC: Certainly, but if I could put it this way, in terms of the cause and effect of a neurological injury, you would defer to Dr Brooder, wouldn't you?
Ms Stephenson: In terms of the cause of it. In terms of the effect of it in my little area of expertise, I believe that I have better skills and expertise to determine someone's care needs because I do spend a considerable amount of time going over those things; whereas a doctor will just - their focus is on, as you say, diagnosing and, you know, working out the causation of the types of conditions; and mine is to look at the whole basis of occupational therapy - is to look at the effect that it has on people's lives, injury, disability and how they function. And it is - you know, you have to go into a fair bit of detail with people - you know, 'Can you bend and squat to get into the oven? Can you push a shopping trolley?' It's very, very detailed, and doctors honestly do not have the time or perhaps even the interest to do it, so the fact is she would have had trouble with the heavier tasks, with the tasks that require a lot of standing; things that require squatting and cleaning and low levels and that sort of thing so that's what the basis of my assessment is.
It seemed to me that there was much force in Ms Stephenson’s comments. With no disrespect to Dr Brooder (or Dr Saines) I do not consider that they focused in any detailed way on the extent of any domestic impairment suffered by the plaintiff. I prefer the opinion of Ms Stephenson on this issue. Moreover, it seems to me that her opinion provides a more reliable basis for assessing the level of the plaintiff’s need than her own rather vague estimations, and those of Mr Kempster.
In relation to the period of three months or so after the plaintiff was discharged from hospital on 15 August 2014, I find that she required a high level of domestic and personal care. However, that need was primarily related to her post-operative condition. She had undergone significant surgery and in my view she was going to require that level of assistance in any event. I do not award any damages for the period from August to the end of December 2014.
From January 2015 onwards, up to the present time, I find that the plaintiff required assistance for 4 hours per week for inside tasks. In relation to the outside tasks, I accept Ms Stephenson’s opinion that the plaintiff required 1 hour per fortnight until January 2018 and half of that thereafter. In relation to the future there must be some uncertainty as to how long the plaintiff and her husband will remain in their 4 bedroom house in Adelaide, and as to how long they will need to attend to a lawn and gardens as they do at present. At some point the plaintiff may need assistance not so much because of her thigh condition, but because of the inevitable effect of aging.
Having regard to those findings I award past Griffiths v Kerkemeyer/s 100 damages as follows:
Jan 2015-Jan 2018: 156 weeks x 4.5 hrs/wk x $48 = $33,696
Jan 2018-Aug 2019 87 weeks x 4.25 hrs/wk x $48 = $17,748
Total for past: $51,444
Interest should be awarded in accordance with Grincelis v House [2000] HCA 42; 201 CLR 321. I therefore award interest at the rate of 2% for a period of 243 weeks. That results in an award of $4,808.
In relation to the future, having regard to the uncertainties referred to in paragraph [190] it seems to me that the claim as made on behalf of the plaintiff of 4 hours assistance to age 75 is appropriate. I award the plaintiff $33,456 on that basis.
Loss of superannuation
The plaintiff claims under this head on the basis of 11.5% of the total sum awarded for loss of earning capacity. That rate is agreed by the defendant. I award $6,325.
Summary of Damages Awarded
The damages recoverable by the plaintiff are summarised in the following table:
Head of Damage
Amount
General Damages
$95,000.00
Interest
$4,750.00
Out of Pocket Expenses
$3,477.10
Past
$521.56
Future
$2,000.00
Loss of Earning Capacity Past
$30,000.00
Interest
$2,925.00
Future
$25,000.00
Griffiths v Kerkemeyer Past
$51,444.00
Interest
$4,808.00
Future
$33,456.00
Loss of Superannuation
$6,325.00
Total
$259,706.66
There will be judgment for the plaintiff in the sum of $259,706.66.
Orders of the Court
The Orders of the Court are as follows:
(1) Judgment is entered for the plaintiff against the defendant in the sum of $259,706.66.
(2) The defendant is to pay the plaintiff’s costs.
(3) Order 2 will not be entered for 14 days and if, within that period, any party notifies my associate by email (copying in the other party) that it wishes to be further heard in relation to costs, then Order 2 will not be entered until further order of the Court.
| I certify that the preceding one-hundred-and-ninety-seven [197] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe. Associate: Date: 6 September 2019 |
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