Kercher v Sizzler Australia Pty Ltd

[2000] QDC 21

IN THE DISTRICT COURT

HELD AT SOUTHPORT

QUEENSLAND	PLAINT NO. 185 of 1997
Before NEWTON D.C.J.

[RE: KERCHER -V- SIZZLER AUSTRALIA PTY LTD & ANOR] [2000] QDC 021

BETWEEN PAMELA JUNE KERCHER

Plaintiff

AND SIZZLER AUSTRALIA PTY LTD

Defendant

AND NORTHERN RIVERS AREA HEALTH SERVICE

Third Party

REASONS FOR JUDGMENT

Judgment Delivered: 28 March, 2000.

Catchwords:	Joint tortfeasors – claim for indemnity or contribution – s.6 (c) Law Reform Act 1995 – whether third party negligent in treatment of Colles’ fracture of plaintiff’s wrist – assessment of damages.
Counsel:	Mr R Lindsay Solicitor for the Plaintiff Mr P de Plater for the Defendant Mr K Howe for the Third Party
Solicitors:	Michael Sing & Associates for the Plaintiff Primrose Couper Cronin & Rudkin for the Defendant Okeefe Mahoney & Bennett for the Third Party
Hearing Dates:	28, 29 February and 1 March 2000

IN THE DISTRICT COURT

HELD AT SOUTHPORT

QUEENSLAND	PLAINT NO. 185 of 1997
BETWEEN	PAMELA JUNE KERCHER

Plaintiff

AND SIZZLER AUSTRALIA PTY LTD

Defendant

AND NORTHERN RIVERS AREA HEALTH SERVICE

Third Party

REASONS FOR JUDGMENT – J E NEWTON, D.C.J.

(Delivered the 28th day of March 2000)

The plaintiff, Pamela June Kercher, was injured on 19 November, 1995 when she slipped and

fell on a wet floor while working as a waitress at the defendant’s restaurant at Palm Beach.

As a result of her fall the plaintiff suffered a comminuted fracture of the distal radius with

dorsal displacement and “dinner fork” deformity of the left wrist. The plaintiff commenced

proceedings against the defendant in respect of her injury. That action settled with the defendant agreeing to pay the plaintiff damages of $120,000.00 clear of the refund due to

Work Cover, together with costs.

The defendant’s third party proceedings subsequently continued before me. The third party

is the Northern Rivers Area Health Service of New South Wales. It is common ground that

following her injury the plaintiff attended at the Tweed Heads Hospital Accident and

Emergency Department which was conducted by the third party. She was seen at

approximately 10.00 pm on 19 November, 1995 and because x-rays could not conveniently

be taken at that time, a support back slab was applied to her left arm and she was told to

return the next day for x-ray and treatment. She returned the next day, 20 November, 1995,

at which time her left arm was x-rayed and a fracture (known as a Colles’ fracture) was

diagnosed. The fracture was reduced and a plaster cast applied. The plaintiff was told to

return the next day for a plaster check and then in one week’s time for a further x-ray. She

did return the next day on 21 November, 1995, when hand function was checked. She

again returned on 28 November, 1995 when further x-rays were taken and she was further

requested to return in four week’s time, which she did on 27 December, 1995.

The defendant in its third party notice alleges that while the plaintiff was under the

management of the Tweed Heads Hospital as an outpatient, and through the third party’s

negligence, a malunion of the wrist fracture was permitted to occur. Particulars of the third

party’s alleged negligence were as follows:-

(a) Failing to observe on review on the 28th November 1995, that dorsal

displacement and dorsal tilting of the distal radial articular margin persisted,

and to take any steps to correct the same;

(b) Failing to review the plaintiff’s fracture with sufficient frequency and, in

particular, failing to undertake an x-ray or other radiological assessment two

weeks post-injury;

(c)	Failing to apply a properly fitting plaster cast so as to immobilise the fracture;
(d)	Failing to recognise that the fracture had moved from a satisfactory position;
(e)	Failing, upon it becoming apparent on re-x-ray of the fracture on 27 December

1995 that it was in an unsatisfactory position, to take any corrective steps;

(f) Failing to ensure that the plaintiff was examined on the malunion becoming

apparent by an orthopaedic specialist;

(g) Failing to ensure that the plaintiff received the care of an orthopaedic specialist

to correct the malunion of the fracture.

The defendant claims that by reason of the negligence of the third party, the plaintiff has been

left with a permanent disability of the left arm which she would not otherwise have sustained

or which would, alternatively, have been very much less.

At the date of trial the plaintiff was almost 51 years of age, having been born on 9 March,

1949. She is a right hand dominant person.
The doctor who treated the plaintiff at the Tweed Heads Hospital was Dr Street. He described

his occupation as a career medical officer with the Northern Rivers Health Service. He holds

degrees of Bachelor of Medicine and Bachelor of Surgery from Flinders University, and

graduated in 1986. He is currently in his fifteenth year of medical practice. Dr Street is not

studying for a speciality. He commenced employment with the third party at the Tweed

Heads Hospital in January, 1990. Prior to that he had completed his internship at the Royal

Adelaide Hospital in 1987. He then worked as a registered medical officer at the Repatriation

Hospital, Daw Park in South Australia during 1988. In 1989 and 1990 he was a senior house

officer at the Mackay Base Hospital, Queensland. Thus, at the time he treated the plaintiff, Dr

Street had some nine years of hospital experience, and was treating patients with a Colles’

fracture, on average, about once each week.

When he saw the plaintiff shortly after 10.00 pm on 19 November, 1995, Dr Street formed a

very high suspicion that she had a fracture of the wrist. He noted swelling and pain but

observed no signs that the blood vessels to the hand or the nerves in the hand were

compromised. The arm was placed in a half plaster by Dr Street and the plaintiff was advised

that she did not require admission. She was instructed to present the next morning or in the

meantime if symptoms were “out of hand” overnight. No x-rays were taken on the night of

presentation to avoid calling in the radiographer on call. Dr Street was satisfied that it would

be appropriate to carry out x-rays on the following day. Medication was provided to the

plaintiff in the form of a pain-killing injection of narcotic and analgesic tablets.
The plaintiff, as instructed, returned the following day, 20 November. Dr Street saw her at

about 9.30 in the morning, after her arm had been x-rayed. The x-ray revealed that the

plaintiff did indeed have a fracture of her left wrist and that fracture was of the form commonly

known as a Colles’ fracture. After viewing the x-ray Dr Street concluded that the fracture

could not be satisfactorily treated simply with a plaster. He noted significant deformity

which, in his opinion, required a reduction or repositioning of the fracture to a more

appropriate position. Dr Street described the procedure in these terms:-

“This is a very common emergency department procedure which involves providing the patient with analgesia and basically giving the wrist a pull to reduce the fracture back to a more appropriate position. It is a common procedure which we use, which is very effective for the pain which a reduction causes to the patient, is what is called a Bier’s block, where it’s a technique of regional anaesthesia where we put the arm to sleep basically with a local anaesthetic which provides pain cover for the patient. I’ve also noted that she did – I haven’t got it written down here, but I believe that we also gave her a short-acting narcotic and a sedative agent intravenously, as it’s stated on the nursing notes there, so she received on the 20th some pethidene and a short-acting sedative agent commonly used called Midazolam, and so a combination of pain control, of regional pain control as well as a general sedative and a general pain killer was used. Then I manipulated her wrist and because a particular device called an image intensifier is not available in our emergency at the time or subsequent, I then sent her to x-ray before applying a plaster of Paris cast, took an x-ray, reviewed the x-ray. I thought the reduction was satisfactory in terms of its suitability for long-term outcome. I then applied a full plaster of Paris cast, after which I re-x-rayed it to make sure that while the plaster was being put on that the fracture hadn’t moved from my original reduction.

Did you get any x-ray reports before you did any of these steps? ------ That’s the notes show that there were reports which were done subsequently, so I can’t say when I actually first saw the reports; probably a day or two or three later.

Right, okay. And did you give any advice to the plaintiff after you’d performed this procedure and applied the plaster? ---- Well, the standard advice to all patients who have got a plaster, the very short term, normally within the first 24 hours, the problem is swelling around the fracture site. Firstly, I split the plaster which involves cutting a groove along the plaster which does reduce the chance of swelling actually compromising either the nerves or the circulation to the hand in this case or the fingers, so the patient was advised about getting pins and needles or pain in the fingers there and that unless her symptoms – unless she was completely asymptomatic, that she would need to come back the next day to have the plaster reviewed and her condition reviewed. She was also, from my notes, given what we call a plaster sheet, which is given to all patients who have a plaster of Paris cast, whether it be on the arm or the leg, outlining your potential short and long-term complications of a plaster as a reinforcement of particularly trouble with sensation, trouble with blood supply or pain, indicators which would suggest perhaps all isn’t going according to plan and to re- present if they had any problems as is stated on our plaster sheet.”

The plaintiff was requested to present the following day, 21 November. She was not referred

to an orthopaedic surgeon or to the Fracture Clinic because Dr Street regarded the fracture as

of a type that was commonly managed by the emergency staff without orthopaedic opinion.

The radiologist’s report with respect to the x-rays of 20 November did not indicate to Dr Street

that his treatment had been inadequate or that the position of the fracture, post reduction, was

unsatisfactory.

On 21 November, 1995 the plaintiff returned to the Tweed Heads Hospital as requested. She

was again seen by Dr Street in the Accident and Emergency Department. At this time a

plaster check was conducted to review circulation and sensation of the tissues distal to the

fracture. Dr Street considered the plaster to be satisfactory. The plaintiff had no significant

discomfort, nor were any signs observed of reduced blood supply or compression of nerves.

The plaintiff next presented, again as requested, on 28 November, 1995. A further x-ray of

her wrist in plaster was taken and on review of the film, Dr Street considered that the position

of the fracture had not changed and that it was still in a satisfactory position. Nothing in the

radiologist’s report of 29 November caused Dr Street to alter his opinion in this regard. The

plaintiff was advised to re-present in a further four weeks. When she did so on 27 December, 1995 she was seen by Dr Tree who noted that an x-ray taken on that date showed that the

fracture had not been reduced. The cast was removed on this occasion. Dr Tree contacted Dr

Freeman, an orthopaedic surgeon, by telephone and was advised that it was now too late to re-

manipulate the fracture. Dr Freeman further advised Dr Tree that the plaintiff’s wrist may,

after six months, function satisfactorily despite the malunion. Physiotherapy was

recommended.

The plaintiff, whose evidence largely confirms the matters referred to above, experienced a

significant increase in pain of her wrist some two weeks prior to seeing Dr Tree on 27

December. She did not return to the Tweed Heads Hospital before that time because she

thought that as she had an appointment for the 27th she would tell the doctor at that time of the

increase in pain. The plaintiff was unable to recall whether she had been given a plaster sheet

when her wrist was placed in a cast. I accept that, in fact, she had been given such a sheet on

that occasion.

In a report dated 22 January, 1996 Dr Freeman stated that on examination (carried out on the

same day) the plaintiff had an obvious dorso-radial deformity of her distal left forearm. There

was only approximately 30 degrees of flexion/extension movement at the wrist joint. She had

supination to approximately 60 degrees and promation of only 15 degrees. Commenting on

the x-rays, Dr Freeman stated:

“Her x-rays show a Colles fracture with the typical deformity. This was not well reduced initially and appears to have been accepted in a less than ideal position on the 28th of November, 1995. The final x-ray (of 27 December, 1995) clearly demonstrates a mal-union of the distal left radius, with shortening and dorso-radial angulation.”

On 16 April, 1996 Dr Freeman reported that she still had an obvious deformity of the wrist.

At that date she had 80 degrees of promation and supination but developed marked pain if the

wrist was forced past the comfortable end of promation. There was only 10 degrees of volar

flexion and 30 degrees of dorsiflexion in the wrist joint. The plaintiff was advised to see Dr

Freeman again in one month with progress x-rays and a CT scan. Dr Freeman believed that

her best option would be a simple excision of the ulnar head and neck, as the radial deformity

would make reconstruction of her distal radio-ulnar joint almost technically impossible.

On 6 May, 1996 Dr Freeman again noted a persistent obvious deformity of the plaintiff’s left

wrist. On 14 May, 1996 after reviewing a CT scan of the wrist he confirmed his opinion of

ulnar head impingement of the lunate requiring excision of the ulnar head.

In his oral testimony Dr Freeman stated that the x-rays of 20 and 28 November, 1995 showed

the position of the fracture to be essentially very similar. He agreed that the position shown

on the x-rays of those dates could be regarded by many orthopaedic surgeons as acceptable

even though not perfect. Dr Freeman accepted that some loss of position is common in cases

of comminuted fractures and that this will not necessarily severely compromise the final result.

Dr Freeman stated that loss of position can probably occur up to four weeks after the date of

injury and possibly later under more extreme circumstances.

Dr Freeman agreed that even in the hands of a skilful orthopaedic surgeon experienced in the

treatment of such fractures, there can be no guarantee that this fracture could have been made

to unite in perfect position regardless of the method of treatment instituted initially.
In cross examination, a view of another orthopaedic surgeon (Dr Stabler) was put to Dr
Freeman in relation to the timing of x-rays:

“Dr Stabler says this – just listen: ‘Most orthopaedic surgeons would only x-ray the fracture at the time of reduction, one week after the fracture and then at six weeks after the fracture. In this instance, therefore, I cannot accept that the treatment of the fracture was inappropriate’.

- Yes.

Do you agree with that?

- Well, yes, the optimal time is usually around 10 days, but I think that’s probably
being a little bit too picky.

Right?

- So if I was treating a fracture which I thought was a little bit unstable I would possibly perform extra x-rays in addition to the usual process, but that depends on my assessment of the fracture when I started treatment.

Well, I suppose getting down to tin tacks, doctor, Dr Stabler suggests that the treatment
of the fracture was not inappropriate?

- No.

Do you agree with that?
- Yes.

You’re familiar with what happened here; the plaintiff turns up on the 19th late at night in the emergency ward, comes back the next day on the 20th, x-rays are taken, the general practitioner, Dr Street, performs a reduction, then x-rays are taken, then on 28 November she returns, further x-rays are taken, and then it’s not until 27 December she sees a Dr Tree at the hospital?

- Yes.

Being perfectly blunt, what I suggest, doctor, is, in effect, there was no inappropriate
treatment?

-----.

- I do not believe there has been any inappropriate treatment.

Dr Freeman stated that frequently less than ideal reductions had to be accepted and that the

degree of skill in applying and moulding plaster can vary between practitioners.
In re-examination Dr Freeman repeated his view that the position of the plaintiff’s fracture was

less than ideal, but that it was probably reasonable to accept that position.

A more critical view of the treatment of the plaintiff by Dr Street was adopted by Dr White, an

orthopaedic surgeon who examined and operated upon the plaintiff. It was apparent to Dr

White that as at 20 November, 1995 there was marked dorsal displacement indicating that the

fracture had not been dealt with according to standard orthopaedic practice. However, when

asked whether that would be obvious to a doctor without orthopaedic qualifications, Dr White

stated that that could not be answered unequivocally. It would depend very much on the

seniority of the doctor, his training and his interest. Dr White thought that it was reasonable to

state that the appearance of the fracture as revealed by the x-rays of 20 November was

sufficiently abnormal for even a relatively junior doctor to seek higher advice.

The radiologist’s report in relation to the x-rays of 28 November did not indicate to Dr White

that the displacement had been remedied. Again, however, he was not prepared to say that that

would have been obvious to a medical practitioner without orthopaedic qualifications. His

evidence was:

“Well, it’s a very difficult question to answer. I mean, I’ve been interested in orthopaedics since perhaps 1964 and so to me it would have been obvious since 1964. Other people with different bents, different training and different interests may not have the same benefit”.

Dr White was of the opinion that had the plaintiff’s fracture been remanipulated as a

consequence of the x-ray taken on 28 November, it is much more probable that she would not

have required the surgery that was ultimately performed. Dr White was prepared, however, to concede that even with extremely skilful treatment it was possible that a poor result would

have been achieved.

Dr White prepared seven reports addressed to the Workers’ Compensation Board, Dr Coates

(the plaintiff’s general practitioner) or to the plaintiff’s solicitors. None of these reports were

prepared for the purpose of giving a critical analysis of the appropriateness of the treatment by

the third party. All were prepared as reports on the plaintiff’s condition. Indeed, the first

time that Dr White had been asked to turn his mind to the adequacy of the treatment of the

plaintiff by the third party was when he gave oral testimony before me on 28 February, 2000.

I note that in his report of 11 March, 1997 Dr white assesses the degree of permanent disability

of the plaintiff’s left arm as lying within the range of fifteen to twenty per cent of whole left

upper limb function.

The defendant relies to a significant degree upon the evidence of Dr Pincus, a general

practitioner now in semi-retirement. In a report dated 10 December, 1999 Dr Pincus states

that in his opinion –

(a)	the third party should have mandated review of patients with Colles fractures, who required manipulation by an orthopaedic surgeon;
(b)	Dr Street’s management did not demonstrate the expertise necessary to manage the Colles fracture, and he failed to procure the opinion of an orthopaedic surgeon; and
(c)	Dr Freeman’s reply to Dr Tree was inappropriate in that he suggested waiting six months to see whether the function of the wrist was adequate despite the mal-union rather than seeing the x-ray films and assessing the patient himself to make a sensible judgment about immediate and future management.”

Dr Pincus expressed the view that 25-30% of the plaintiff’s disability could reasonably be

attributed to deficiencies in management during treatment she received at Tweed heads

Hospital.

The criticism in (c) above of Dr Freeman finds no support in the evidence of Dr White who

agreed that it was entirely appropriate to let the situation continue for another six months with

physiotherapy. Dr White’s evidence was that –

“The die at that stage has been cast and it remains to be seen just how well she performs thereafter. There is absolutely no argument between Dr Freeman’s management at that point and that which would be offered by any other orthopaedic surgeon who knows a thing about arms”.

I should point out that Dr Freeman is not a party to this litigation, nor was he employed by the

third party at any time relevant to this action. The appropriateness of his treatment of the

plaintiff is therefore not an issue with which I am presently concerned. Nevertheless, I

indicate that I do not accept the criticism of Dr Pincus that Dr Freeman’s treatment did not

meet the standards expected of an orthopaedic surgeon who was supposed to be a backup to an

Accident and Emergency department. There is very little support for the views of Dr Pincus

in this regard.

In relation to the criticisms made by Dr Pincus in (a) and (b) above, the thrust of the evidence

given by Dr Pincus was that Dr Street should have obtained an orthopaedic surgeon’s opinion

once he had viewed the post-reduction x-rays. Dr Pincus stated in his cross examination that

he was not criticising Dr Street for lack of skill in manipulating the fracture.
Dr Pincus was prepared to concede during cross examination that there was no absolute rule as

to when an orthopaedic surgeon should be called in and he accepted that other general

practitioners could hold genuine, honest and reasonable beliefs contrary to those held by

himself. It is of some importance, therefore, to examine the evidence of the orthopaedic

surgeons in order to ascertain whether there is a consensus of opinion as to when and in what

circumstances a doctor in Dr Street’s position should involve an orthopaedic specialist.

Dr Millroy, a specialist orthopaedic surgeon practicing in the sub specialty of surgery to the

hand, upper limb and micro surgery, prepared two reports in relation to this matter. In his first

report dated 26 July 1999, Dr Millroy stated that in general he agreed with the comments of Dr

Stabler in the latter’s report of 26 February 1999 on page 3 and the first two paragraphs of

page 4. It is, therefore, necessary to set out what Dr Stabler said at those parts of his report:-

“(a) “The correct treatment of Colles’ fracture”.

A Colles’ fracture is defined and generally accepted as a fracture of the distal radius with dorsal angulation and displacement, and usually with impaction of the radius and involvement of the distal radial ulnar joint. The ulnar styloid process typically is fractured, but it may be intact. Common usage has extended the term “Colles’ fracture” to involve any fracture of the distal radius with dorsal angulation or displacement.

The Colles’ fracture was first described without the aid of x-rays in 1814 by Abraham Colles, and it is important to note that at the time of the description of the injury Colles stated “that the limb will at some remote period again enjoy perfect freedom in all its motions, and be completely exempt from pain; the deformity, however, will remain undiminished through life”. This comment by Abraham Colles is not totally accepted in moderate orthopaedic surgery as being accurate, but an important point is made by this statement.

A Colles’ fracture always takes an extremely long time to reach its full potential and a period of up to two years may pass before a stable and stationary state is reached. Function of a wrist after a poorly united Colles’ fracture is usually reasonable even if marked deformity of the wrist remains.

The accepted treatment of Colles’ fractures is extremely wide, with a variety of accepted methods of treatment.

The treatment ranges from “supervised neglect” to aggressive surgical treatment with open reduction, immediate bone grafting, and rigid internal fixation at the other end of the spectrum.

The most common form of treatment of Colles’ fractures involves reduction of the fracture under regional or general anaesthesia, application of a plaster slab or encircling plaster, preferably with moulding and then subsequently adequate supervision and assessment of the fracture at appropriate intervals.”

Dr Millroy also stated in his report of 26 July 1999 that in principle he agreed with the

comments of Dr Bendeich in the latter’s report of 6 February 1998 on page 1, including

paragraphs 1, 2 and 3. Again, it is necessary to set out the content of Dr Bendeich’s report in

these respects:-

“1. Comminuted Colles fractures are notoriously prone to recurrence of deformity during the healing phase particularly with regard to dorsal tilting of the lower end of the radius. Usually satisfactory position can be obtained by manipulation but this can be difficult to maintain. Effective cast immobilisation of the fracture can only be achieved with a well moulded snug fitting plaster cast which is kept that way. The X-Ray position should be checked one week after injury and again a week after that. At these visits the cast is checked and also the mobility of the hand. If at two weeks the position is no longer satisfactory with dorsal tilting of the distal radius occurring something should be done about it – usually re-manipulation and added fixation with percutaneous pins if need be. While it is difficult to correct dorsal tilting deformity at four weeks after injury in my experience manipulation under anaesthesia is always worth trying. Sometimes the position can be improved to an acceptable one. Slight dorsal tilting and collapse of the radius is usually acceptable but if the deformity is marked radio-ulnar joint function is affected. If the fracture unites with considerable dorsal tilting of the lower end of the radius the carpal lunate bone tilts dorsally and the capitate with which it articulates distally flexes leading to a fixed zig-zag deformity and eventually secondary arthritic change in the mid carpal joint.

2. The usual reason for the fracture to shift position during the healing process is an ineffective plaster cast and failure on the part of the treating doctor to appreciate that the position is likely to slip and anticipate this. The critical time for review is two weeks after injury because at that stage something can usually be done about it.

3. As the above outline suggests management of these fractures is more effective

always. Such fractures can be difficult to manage even in experienced hands.

in experienced hands and comminuted fractures can usually be controlled – though not and I show the patient’s relatives how to keep their cast snug using strapping during that period. After two weeks the plaster can be changed if necessary to keep the fracture effectively immobilised for a further 3 – 4 weeks.”

Dr Millroy in his report of 26 July 1999 indicated that had he been the treating specialist in the

plaintiff’s case he would have attempted manipulation of the fracture with x-ray control under

a general anesthetic or a local anesthetic block, and then applied a well moulded long arm

plaster cast with the wrist immobilised in moderate flexion ulnar deviation and promation.

This procedure would have been performed by Dr Millroy because the x-rays of 20 November

1995 showed that the fracture of the lower end of the radius was severely comminuted and

dorsally displaced. Dr Millroy stated that if the final x-ray showed satisfactory reduction the

patient would be told to keep the hand well elevated and exercise the fingers immediately and

return the next day for review. This would usually be a clinical review without an x-ray. The

patient would be given an appointment for another week. The clinical state would be checked

again and also the state of the plaster to see if it was still firm enough and if so, a further check

x-ray in the plaster would be taken. If the position was still maintained, then the patient would

be given an appointment for another week and the same routine followed. Dr Millroy would

also see the patient at the three week mark for the same assessment. However, if the plaster

was loose or the reduction was inadequate at any of these visits, the plaster would be changed

and moulded with or without an anesthetic as required, or an alternative method of treatment instituted such as re-manipulation and close pinning or in severe cases open reduction and

internal fixation with or without a bone graft.

As to the appropriateness of the treatment received by the plaintiff at the Tweed Heads

Hospital, Dr Millroy expressed his view that the treatment was not appropriate. He stated in

his report of 26 July, 1999 that it was reasonable to attempt manipulation of the fracture under

proper anesthetic, which was done. However, check x-rays taken on 20 November, 1995

show that the reduction of the fracture was never adequate and the plaster cast moulding also

does not seem to be accurate. In Dr Millroy’s opinion, at that time it would have been

reasonable to seek the opinion of an orthopaedic surgeon. Dr Millroy further states that the

check x-ray taken on 28 November, 1995 shows dorsal shift and dorsal tilt of the lower end of

the radius in the lateral film and some shortening of the radius. He also reported that the

position of the wrist in plaster is straight rather than moderately flexed and that the plaster

moulding does not seem satisfactory. In Dr Millroy’s opinion, it would have been appropriate

to obtain an orthopaedic opinion at this time.

Although Dr Millroy has not seen the plaintiff as a patient he has read the reports of Dr White

and Dr Bendeich and is prepared to accept that there is likely to be a final permanent

impairment of the order of 35-40% of the plaintiff’s left upper limb. In Dr Millroy’s opinion,

there probably would have been a permanent impairment of at least 10% with ideal treatment

of the injury.
There is clearly a difference of professional opinion between Dr Millroy and Dr Bendeich on

the one hand and Dr Stabler on the other with respect to the timing of the reviews of the

plaintiff’s fracture. Dr Millroy and Dr Bendeich consider it appropriate to check the fracture

at one week and also at two weeks after the injury. Dr Stabler advocates that the fracture be

checked at one week post injury and that it is not necessary in most cases to conduct another

check at two weeks after the fracture. Dr Stabler suggests that a further review would

normally be appropriate at six weeks after the fracture.

Dr Millroy was, in cross examination, quite prepared to concede that there is no universal

practice in this regard and that minds may differ about the timing. Dr Millroy accepted that it

is not uncommon for fractures of this type to be treated by general practitioners in public

hospitals. However, he observed that the general practitioner is always able to refer to a

specialist if necessary.

Dr Day, an orthopaedic specialist, prepared a report dated 19 October 1999. In this report Dr

Day expressed the view that the application of the plaster was not satisfactory if judged against

a skilled orthopaedic surgeon’s protocol. Dr Day is also critical as to the timing of the review

and in his opinion the delay in review after one week has been critical in determining the final

outcome of the plaintiff’s wrist impairment. Dr Day made the following comments in his

report:-

“The only criticism that I can make of the treatment is that review should have normally occurred within one week from the fracture, 2 –3 weeks from the fracture and then 5 –6 weeks from the fracture. I believe this would be normal acceptable fracture clinic practice amongst general practice or specialist practice throughout Australia. In Mrs Kercher’s case, the review 2 –3 weeks from injury did not occur and it was not advised to Mrs Kercher that she should return for review at this time. Mrs Kercher returned for review 5 –6 weeks following fracture and by this time, specialist opinion was obtained. It is my view that the timing of that specialist opinion was too late to alter the natural history of her condition.”

Dr Day in his report stated that the plaintiff has a permanent impairment equaling 20% of the

left upper limb. He agrees with Dr Millroy that she would have an impairment of 10% of the

upper limb as a result of the fracture, even with ideal treatment. Therefore, Dr Day believes

that the delay in treatment has caused an impairment equaling 10% of the upper limb at present

and may lead to an increase in impairment equaling 20% of the upper limb, over and above the

impairment suffered from the fracture itself.

In his oral testimony, during cross examination, Dr Day confirmed that the closed reduction of

the fracture by Dr Street and the plaster that Dr Street applied was adequate and that his

complaint relates to the timing of the review.

Dr Bendeich, an orthopaedic surgeon specialising in matters pertaining to the hand, prepared

three reports in relation to this matter. In his report of 15 October, 1997 Dr Bendeich stated

that –

“It seems that the fracture was initially reduced into satisfactory position but this was

not maintained and the fracture was allowed to unite in bad position."

In the same report Dr Bendeich assessed the plaintiff’s current disability resulting from the

injury to her wrist as 15% loss of efficient use of the upper limb. He stated that the plaintiff’s

disability could increase to more than double this in time and that permanent disability following successful wrist fusion would be in the vicinity of 25% loss of efficient use of the

arm.

In his report of 6 February, 1998 Dr Bendeich stated that the x-ray position should be checked

one week after injury and again a week after that. If at two weeks the position is no longer

satisfactory with dorsal tilting of the distal radius occurring, something should be done about it

– usually re-manipulation and added fixation with percutaneous pins if need be. Dr Bendeich

emphasised that the critical time for review is two weeks after injury because at that stage

something can usually be done about a shift in the fracture position. However, Dr Bendeich

acknowledges in his report that management of these fractures is more effective in experienced

hands and that such fractures can be difficult to manage even in experienced hands.

Dr Stabler in his report of 26 February, 1999 noted that Dr Bendeich was of the opinion that

the plaintiff should have been reviewed at one week after the fracture and again one week later

at two weeks post injury. Dr Stabler agreed that with the benefit of hindsight in this instance

such review may well have been appropriate. However, Dr Stabler states that it is important

to note that the treatment which Dr Bendeich has advocated is not universally adopted. In Dr

Stabler’s view it is extremely common for orthopaedic surgeons and for fracture clinics to

review patients on the day of injury, for reduction of the fracture, on the first post operative

day for a plaster check, and then at about 7 – 10 days after the fracture with a further x-ray, and

then not again until six weeks after reduction of the fracture. Dr Stabler notes that in this

instance that was approximately the treatment instituted.
In his report Dr Stabler states that although the loss of position may have been noted if a

further x-ray had been taken one week after 28 November, 1995 it is not possible even with the

benefit of hindsight to be certain that such loss of position would have been identified, as the

loss of position could well have occurred later than one week after 28 November, 1995.

Dr Stabler stated in his report that a case could be made for more successful moulding of the

cast, but he pointed out that skill levels in technical aspects of surgery vary widely. In his

opinion, the reduction of the fracture and application of the plaster were appropriately carried

out, even if the final result was not optimal.

Dr Stabler stated that in his opinion the treatment that the plaintiff received at the Tweed

Heads Hospital falls within the category which can be regarded as appropriate treatment for

this fracture. He acknowledges that the final result was unequivocally poor, with union of the

fracture in a markedly impaired position, with disruption of the distal radius ulnar joint,

relative ulnar lengthening ulno-carpol abuttment and poor length of movement. In Dr

Stabler’s opinion the poor final result does not alter the fact that the patient was appropriately

treated, however unsuccessful the outcome may have been. Dr Stabler points out that

although a wide variety of treatments is possible for Colles’ fractures and in particular for this

type of fracture, there is no guarantee of success of any of the procedures. Despite appropriate

and indeed skilful treatment, a poor result may still be obtained with a Colles’ fracture.

Dr Stabler in his report considered the views of Dr Bendeich and stated as follows:-

“It would seem that the most contentious area in relation to this matter is the statement of this case, I wish to further stress this point.

by Dr Bendeich that ‘the fracture was allowed to unite in bad position’.

The crux of the matter is whether or not the fracture united in a poor position because of any inadequate (or negligent) treatment on the part of the Tweed Heads District Hospital.

It can be argued that the Colles’ fracture was not perfectly reduced initially. Because of the comminuted nature of the fracture this may not have been possible.

Despite the best efforts of the treatment practitioner, and even in the hands of a skillful Orthopaedic Surgeon experienced in the treatment of such fractures, there can be no guarantee that this fracture could have been made to unite in perfect position regardless of the method of treatment instituted initially. Despite internal fixation and bone graft such comminuted fractures may still unite in poor position despite the best efforts of the surgeon.

In this instance I believe that the hospital took appropriate action in identification of the fracture, in the initial first-aid treatment of the patient, in performance of initial x-rays, reduction of the fracture, plaster check on the following day, position check of the fracture on nine days after the fracture (28/11/95) and then x-ray of the wrist out of plaster on 27/12/95 at six weeks post injury.

All of this treatment was appropriate, and the only genuine criticisms which could be made of the treatment were the skill level in obtaining reduction of the fracture and application of plaster and perhaps in not x-raying the wrist (as Dr Bendeich has advocated) at one week after 28/11/95.

As I have detailed above I believe that the majority of Orthopaedic Surgeons would only x-ray such a fracture at about one week after the fracture and not perform a second x-ray at two weeks after the fracture. Most Orthopaedic surgeons would only x-ray the fracture at the time of reduction, one week after the fracture and then at six weeks after the fracture. In this instance therefore I cannot accept that the treatment of the fracture was inappropriate.

I also cannot agree that the fracture was ‘allowed to unite in bad position’. It would appear to me that all efforts were made by the Hospital, given the busy nature of the Casualty Department, to render the best possible treatment to the patient.

Although in hindsight it can be seen that the fracture has united in extremely poor position, and although the likely sequency of events may have been identified by a Specialist Orthopaedic Surgeon, I cannot believe that prediction of such a poor result could have been made given the x-ray films of 28/11/95. I can accept that prediction of such a result would be possible, but not inevitable.”

In his oral evidence Dr Stabler was asked to explain the basis for his belief that the conduct by

Dr Street was appropriate in the plaintiffs case. Dr Stabler stated as follows:-

“In simple terms could you just explain to the court why you say – I know you deal
with it in your report – the conduct was appropriate by the general practitioner here?

--- Well, he made the diagnosis, he manipulated the fracture and applied a plaster. I don’t think there will be any question that that management was appropriate. The question with regard to internal fixation or otherwise of the fracture can be raised, but I think that the vast majority of orthopaedic surgeons, even specialist upper limb orthopaedic surgeons, as I am, would still attempt to treat the fracture by a closed means so that certainly was appropriate action. I see in some of the reports, including Dr Pincus’s report, that there is criticism about the application of the plaster with regard to position of the wrist. I disagree with his opinion in that regard. Classically, the position of the wrist is said to be best in flexion, ulnar deviation and pronation. Certainly that is used to excess in most cases and mostly the wrist is actually better almost in the neutral position so I disagree with Dr Pincus in that regard. I think that you can put the wrist in that position and that’s quite reasonable, but it’s certainly not negligent or wrong not to do it. I agree with Dr Pincus in that the moulding of the cast perhaps is not as I would have done it, but still the application of the plaster with padding was appropriate and in many, many cases the fracture would have stayed in its position. It did not and when the next X-ray was taken a week later the position was lost to some extent. Now, again, in many, many cases – and let’s not look at it retrospectively, let’s look at it as the doctor saw it at the time – the position was acceptable. It wasn’t perfect, but if it had not been lost further almost a normal wrist would have resulted, quite good movement and function would have resulted. So still on 28 November I think it’s reasonable for him to believe that he was still more or less in control of the situation in that if things don’t get any worse the lady will have a good result and I think his actions in that way were entirely appropriate. I believe from what I’ve seen in the reports that he did appropriately advise her about elevation and finger movement and about any adverse events which may occur and so that was also appropriate. His action, further, in late December when an X-ray showed loss of position was appropriate in that he then referred her to an orthopaedic surgeon.”

Dr Stabler was then asked to comment on the timing of the review of the plaintiff:-

“Another issue that’s developed and you’ve answered this already, but is the timing of
the review. Have you seen the reports where there’s been --- ?

--- Yes, thank you. I see criticism from Dr Millroy and I think Dr Bendeich and I think also Dr Pincus in relation to the fact that – and I think Dr Greg Day has also referred to the fact that review was not carried out at two to three weeks after injury. Well, I can tell you in my own practice I don’t do that. I see the patient at a week to 10 days and then again at six weeks, depending on the fracture, depending on the patient, depending on many factors, but I also issue the patient with advice to return at any time should problems arise and, as far as I can understand, that advice was given so I therefore think that the timing, in fact, was appropriate. The fact that these other surgeons manage their patients differently does not alter the fact that routine management of these fractures is review at seven to 10 days and review again at six weeks. Certainly in the major fracture centres where I’ve worked that is the common practice.”

Dr Stabler concluded his report by stating that he believes that the treatment of all those

involved in the management of the plaintiff has been appropriate, and that the treatment by

those involved has been appropriate in particular given the education, training and clinical

responsibilities of all of those involved. Dr Stabler is unable to identify any significant

clinical omission or commission which may lead to a finding of negligence.

The proceedings by the defendant against the third party are brought pursuant to the provisions

of section 6 (c) of the Law Reform Act 1995 :

“any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if such have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by the person in respect of the liability in respect of which the contribution is sought.”

It falls to the defendant to establish on the balance of probabilities that the third party failed to

exercise the standard of reasonable care and skill required of the ordinary skilled person

exercising and professing to have the relevant special skill of carrying out treatment of a

Colles’ fracture (ROGERS v WHITAKER, (1992) 175 CLR 479, 483).
While the views of doctors are not necessarily definitive of the requisite standard of care, they

will often be influential (Rogers v Whitaker, 489). This, I consider to be such a case.

It is clear that the opinions of the orthopaedic specialists and of the general practitioners differ

in relation to the timing of the reviews in the plaintiff’s case. There is no disagreement as to

what the treatment was nor is there any consistent criticism of any aspect of the treatment other

than the timing of the reviews. I am satisfied that the evidence before me establishes that the

reduction of the fracture and the application of the plaster carried out by Dr Street was

appropriate and performed with a level of skill commensurate with Dr Street’s training and

experience. I find further that the opinions of orthopaedic specialists with regard to the timing

of reviews following a fracture of this type are not uniformly consistent. Opinions in this

regard may quite legitimately vary. There is a danger in a case such as this of judging the

treatment under consideration with the benefit of hindsight. I accept the views of Dr Stabler

that to do so is inappropriate and that the treatment of the plaintiff by Dr Street should be

assessed by factors extant at the time of such treatment. I further accept that even in the hands

of a highly skilled orthopaedic surgeon there could have been no guarantee that the fracture

would have united in a significantly improved position than was the case. However, I do

accept that this was more likely to have resulted had the plaintiff been under the care of an

orthopaedic specialist as from 20 November, 1995. To find, as the defendant urges, that Dr

Street was negligent in failing either to obtain specialist advice from 20 November 1995 or to

conduct a further review two weeks after the fracture, would require a rejection of the detailed

and persuasive evidence of Dr Stabler. I cannot reject or discount Dr Stabler’s evidence as to

the appropriateness of the treatment of the plaintiff by Dr Street. I accept that other doctors hold contrary views and that their views are both honestly held and reasonable. The evidence

in this case simply points to the conclusion that the practice of specialist orthopaedic surgeons

as to the best way of managing a Colles’ fracture vary. It is obviously regrettable that the

plaintiff has been left with a permanent disability of the left arm which may not have resulted

had she been treated by an orthopaedic specialist much earlier than in fact happened.

However, I accept that there could have been no guarantee that the result would have been

significantly improved in such circumstances, although the probability occurring would have

been enhanced by such specialist care. In the circumstances the claim by the defendant to be

indemnified by the third party is dismissed as I am not persuaded that the plaintiff’s damages

and injury were contributed to by the negligence of the third party.

I turn to consider the question of quantum of damages. This case is not one in which the

second or subsequent incident has obliterated the injury sustained in the first incident. In my

view, the later injury has simply added by a measurable degree to the plaintiff’s existing

disability resulting from the first accident.

The degree of precision with which damages are to be proved is proportionate to the proof

reasonably available. It is sufficient for the defendant to show on the balance of probabilities

that the breach of duty by the third party materially contributed to the plaintiff's impairment.

Once the defendant has discharged that onus it is not obliged to go further and attempt to

disentangle and identify with complete precision the relative contributions of the defendant and

the third party to the plaintiff’s accumulated injury and loss : Nilon v Bezzina 1988 [2 Qd.

R. 420 at 424 per McPherson J]. and defendant:-

Head of Damage

General damages for pain, suffering and loss of amenities of life	$ 32,500.00
Interest on one-half of general damages at 2% per annum for 4.3 years	$ 1,397.50
Past economic loss (say $335.00 net per week, and discounted by
25% for vicissitudes to $251.25 for 223 weeks)	$ 56,028.75
Interest on past economic loss (less WC net weekly benefits of
$11,145.20) at 5% per annum for 4.3 years	$ 9,649.95
Future economic loss (global, but say $335.00 per week discounted
by 50% for vicissitudes and allowed for 3 years based on the 5%
discount tables = $24,388.00)	$ 24,400.00
Past Griffiths v Kerkemeyer (say an average of 2 hours per week
since accident, 446 hours, at $10.00 per hour)	$ 4,460.00
Interest thereon at 2% per annum for 4.3 years	$ 383.55
Future care, treatment & medications, say	$ 2,000.00
Special damages paid by Work Cover	$ 4,436.72
Fox v Wood	$ 4,570.85
Other special damages (say one-half of that claimed in SLD)	$ 395.00
Interest thereon at 5% per annum for 4.3 years	$ 84.90

Sub-Total $140,307.22

Less refund due to Work Cover $ 20,152.77

NET TOTAL $120,154.45

When one has regard to the evidence of the doctors in relation to the increased degree of

impairment brought about by the unsuccessful medical treatment received by the plaintiff it is

again apparent that the views of the medical practitioners vary considerably. I have

previously set out the opinions of the various medical witnesses in this regard. In my view, it

would be appropriate in this case to accept the evidence of Dr Day who has assessed the degree

of impairment of the plaintiff’s left upper limb at 20% and expressed an opinion that had ideal

treatment been provided the impairment would have been 10%. If one adopts the middle

ground of the views expressed by the remaining medical practitioners one would come to the

same result, that is that the plaintiff’s disability has been doubled by the effects of having had

surgery. In these circumstances, then, I apportion general damages equally between the

defendant and the third party. A similar apportionment is appropriate in respect of interest

payable on general damages.

With respect to past economic loss I accept that it is reasonable to assume that as a result of the

fall in the restaurant the plaintiff could be expected to be off work for six months even had she

received treatment which was effective and successful. In these circumstances I therefore

apportion 26 weeks of past economic loss as attributable to the defendant and then after that

time it is reasonable to apportion a quarter of the remaining total for past economic loss to the

defendant and three quarters to the third party. Although this in some respects is a rather

imprecise assessment, in my view it is reasonable to assume that a person with a 10%

disability has a far better expectation to being able to return to work than a person with a 20%

disability. Furthermore, the Schedule of Damages shows that past economic loss has been

discounted by 25% for 223 weeks.
With respect to interest payable on past economic loss it is appropriate to require the defendant

to assume liability to pay interest to its share of past economic loss less the net weekly benefits

paid by Work Cover which totaled $11,145.20. The rate should be at 5% per annum for 4.3

years and the third party should be required to assume liability to pay the balance of the

interest on past economic loss.

With respect to future economic loss, the defendant should assume responsibility for one

quarter and the third party should be required to assume responsibility for the balance.

In relation to Griffiths & Kerkemeyer damages the defendant again should assume

responsibility for meeting the costs for the first 26 weeks and then one quarter of the balance of

gratuitous domestic care costs consistent with the assessment of damages in relation to past

economic loss. Interest on damages under the Griffiths & Kerkemeyer principle should be

assessed at 2% per annum for 4.3 years.

In relation to future expected costs relating to gratuitous domestic assistance the defendant

should be required to assume responsibility for meeting the costs of one quarter of such

expected expenses.

The special damages have been paid by Work Cover. It is appropriate to require the third

party to assume responsibility for some of these special damages as the cost of surgery and x-

rays have been occasioned by the need for surgery on the plaintiff’s wrist. However, the defendant should assume responsibility for the payment of $383.09 to the Tweed Heads

Hospital as well as half the costs of physiotherapy and rehabilitation which would amount to

$275.00.

The Fox x Wood component appropriately falls to the defendant.

Each of the defendant and the third party should equally share the costs relating to other

special damages and the interest payable on those damages which is to be assessed at 5% per

annum for 4.3 years.

In summary form the apportionment of the plaintiff’s damages is as follows:-

Head of Damage	Defendant	Third Party
General damages (say one-half each)	$ 16,250.00	$ 16,250.00
Interest thereon (say one-half each)	$ 698.75	$ 698.75
Past economic loss (defendant to assume
first 26 weeks then one-quarter of the
balance	$ 18,906.56	$ 37,122.19
Interest thereon (defendant to assume
interest on its share of PEL less WC net
weekly benefits of $11,145.20 at 5%
per annum for 4.3 years and third party
to assume the balance	$ 1,668.69	$ 7,981.26
Future economic loss (defendant to
assume one-quarter)	$ 6,100.00	$ 18,300.00
Past G v K (defendant to assume first 26
weeks then one-quarter of the balance	$ 1,505.00	$ 2,955.00
Interest thereon at 2% per annum for
4.3 years	$ 129.43	$ 254.12
Future needs (defendant to assume one-quarter)	$ 500.00	$ 1,500.00
Special damages paid by Work Cover	$ 658.09	$ 3,778.63
Fox v Wood	$ 4,570.85	nil
Other special damages (say one-half each)	$ 197.50	$ 197.50
Interest thereon at 5% per annum for 4.3 years	$ 42.45	$ 42.45

Sub Total $ 51,227.32 $ 89,079.90

Less amount already paid $ 20,152.77 $ nil

NET TOTAL $ 31,074.55 $ 89,079.90

I assess damages, therefore, in the sum of $89,079.90 as against the third party and in the sum

of $31,074.55 as against the defendant.

However, as previously indicated, the defendant’s claim for contribution against the third party

is dismissed.

The defendant is to pay the costs of the third party of the action to be taxed.