Leheste v The Minister for Health - [2012] WADC 92

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LEHESTE -v- THE MINISTER FOR HEALTH [2012] WADC 92

CORAM: COMMISSIONER GETHING

HEARD: 6-15 MARCH 2012

DELIVERED : 20 JUNE 2012

FILE NO/S: CIV 3179 of 2009

BETWEEN: COLLEEN PATRICIA LEHESTE
Plaintiff
AND
THE MINISTER FOR HEALTH
Defendant

Catchwords:

Negligence - Medical negligence - Causation - Assessment of damages

Legislation:

Civil Liability Act 2004 (WA) s 5C, s 5BP

Result:

Action dismissed

Representation:

Counsel:

Plaintiff: Ms C Holyoak-Roberts
Defendant: Mr P Quinlan SC

Solicitors:

Plaintiff: Shine Lawyers
Defendant: SRB Legal

Case(s) referred to in judgment(s):

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1
Amaca Pty Ltd (under NSW administered winding up) v Booth; Amaba Pty Ltd (under NSW administered winding up) v Booth [2011] HCA 53
Bennett v Minister of Community Welfare [1992] HCA 27;(1992) 176 CLR 408
Brocx v Mounsey [2010] WASCA 196
Browne v Dunn (1893) 6 R 67 (HL)
Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161
Hodges v Frost (1984) 53 ALR 373
Houlahan v Pitchen [2009] WASCA 104
Lawson v Flavel [2001] WASCA 272
Lyle v Soc [2009] WASCA 3
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
McGhee v National Coal Board [1973] 1 WLR 1
Newman v Nugent (1992) 12 WAR 119
Pollock v Wellington (1996) 15 WAR 1
Robinson v Riley [1971] 1 NSWLR 403
Strong v Woolworths Ltd t/as Big W [2012] HCA 5
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327
Western Australia v Watson [1990] WAR 248

COMMISSIONER GETHING:

Overview

In this action the plaintiff claims damages against the defendant for injuries she says were sustained as a result of the negligent manner in which an employee of the defendant at the Swan Health Service inserted a cannula into her inside right forearm slightly below the elbow crease. She says that as a result of the way in which the cannula was inserted she sustained damage to the median nerve of her right arm with consequent numbness, pain and loss of function. The plaintiff also alleges that the injury and its consequences have caused her psychological issues including an adjustment disorder.
The defendant is responsible for the management and day to day activities of the Swan Health Service. It accepts that it owed the plaintiff a duty to exercise reasonable care and skill in the provision of treatment at the Swan Health Service. The defendant also accepted that it was vicariously liable for the acts and omissions of its employees, servants and agents at the Swan Health Service.
It is common ground between the parties that on 28 November 2006 the plaintiff attended the emergency department at the Swan Hospital (SHED) and received treatment. As part of this treatment an employee of the defendant inserted a cannula into the plaintiff's arm. The cannula was removed by a nurse employed by the defendant shortly before the plaintiff was discharged from SHED later the same day.
It is convenient to commence the analysis with the evidence of the plaintiff so as to provide a context for the remainder of the evidence. The plaintiff called a series of lay witnesses who supported her evidence of the development of the relevant symptoms and who also provided assistance to her. Their evidence is considered next.
The case turns on the medical evidence in particular about the anatomy of the right arm and the tests used to assess nerve function. It is instructive to consider these issues before reviewing the detail of the historical medical evidence.
Having considered the lay evidence and historical medical evidence, I then make factual findings on the following key issues:
(a)the person who inserted the cannula;
(b)manner in which the cannula was inserted;
(c)the existence, size and location of any haematoma;
(d)site at which the cannula was inserted; and
(e)development of symptoms by the plaintiff after 28 November 2006.
In the present case, the issues of breach of duty and causation are linked. In simple terms, the plaintiff's case is that if the cannula was inserted in such a manner as to cause damage to the plaintiff's median nerve, it was inserted without the requisite standard of care. It is thus necessary to deal with factual causation before concluding the analysis on liability.
The defendant denies breaching its duty of care. It says further that any problems that the plaintiff has or may have had with her right median nerve:
(a)were not directly or indirectly caused by the insertion of the cannula; and
(b)were caused by an inflammatory mechanism, namely inflammatory brachial plexopathy.
On the issue of liability, I agree with the defendant and dismiss the plaintiff's claim.
As the case was fully argued, I have proceeded to provisionally assess damages. The plaintiff primarily claims general damages and damages relating to the provision of gratuitous services. The defendant submitted that the level of assistance claimed by the plaintiff was significantly overstated, both in terms of the evidence of assistance given and the need for assistance based on damage to the median nerve as opposed to the other medical conditions experienced by the plaintiff.

Witnesses

The plaintiff gave evidence. She also called three of her long time friends, Patricia Smith, Deborah Savilivich and Karen Robinson, along with Ms Robinson's daughter Tameeka Howarth. These witnesses gave evidence supporting the plaintiff's evidence as to the development of her symptoms, as well as about the assistance they have given her from time to time.
The plaintiff called Dr Rolf Schwenger who has been her general practitioner since March 2005. She also called five specialists: Dr Rick Stell (neurologist), Dr Ross Goodheart (neurologist), Dr John Raftos (emergency medicine), Dr Stephen Proud (psychiatrist) and Dr Michael Beinart (occupational health). She also called Ms Ann Lee and Ms Jan Bishop in relation to her current and future care needs.
The defendant called three staff members from SHED: Mr Kim Koi Choo (a triage nurse at SHED), Dr Lin Mei (then resident medical officer at SHED) and Dr Amanda Stafford (then a consultant at SHED). It also called Dr Peter Silbert, (a neurologist) to give expert evidence.

Plaintiff's evidence

Background

The plaintiff was born in 1949 and at the date of trial was 62 years old. She lives in a rental property in Middle Swan and at various times has had her grandsons and son live with her. She is right hand dominant.
The plaintiff said that in the mid 1980's she was diagnosed with brachial plexopathy. She said that she slipped down some steps and ruptured and prolapsed a disc in her back. This led to two lots of surgery. The first operation was in 1986. She thought the second operation was in 1988.
Following her second operation, the plaintiff could not move her arms. She had pain in her arms which was not alleviated by painkillers. She had no strength in her arms, and had trouble even holding a cigarette.
The plaintiff gave evidence that this pain came on after the operation, while she was still in hospital. She described it as being 'very, very painful', and as being a 'sharp' pain (ts 32 ‑ 33). The pain radiated from her shoulders, down both arms, into her hands and across all the fingers.
Because of this pain, the plaintiff was referred to a neurologist, Dr Wally Knezevic. Dr Knezevic carried out testing on her arm. She described the test she had which involved needles being placed in her arms, which were connected to a machine. Dr Knezevic diagnosed her as having brachial plexopathy in both arms (I discuss the nature of brachial plexopathy at [150] ‑ [151] below).
The plaintiff said that the pain continued for a couple of weeks after the operation and until she started taking medication once some tests had been run. The medication she took helped reduce the pain. The pain lasted four to six months, and then just started gradually getting better and better. She said it took between 18 months and two years before the pain settled down completely.
The plaintiff gave evidence that before having this weakness in her arms, she undertook normal home duties. As this passage assumed some importance in cross‑examination, it is useful to quote it (ts 34).
HOLYOAK-ROBERTS, MS: Yes. So before you - so before you noticed the pain and the weakness, what things were you doing during the day?‑‑‑You mean like housework and ‑ ‑ ‑
Yes?‑‑‑Yeah. Housework. Just normal home duties. Looking after Michael, changing nappies, changing clothes. Yeah.
How old was Michael then?‑‑‑I'm not quite sure. I'm not quite sure.
Okay?‑‑‑He was only little.
The reference to 'Michael' is to one of the plaintiff's grandsons whom she was looking after.
The plaintiff also said that prior to the issue with her arms, she had hobbies like glass painting, knitting and crocheting.
She described that as a result of the difficulties with her arms, she could not pick up a cup of coffee. She said that her then partner did a lot to help her by cooking, cleaning and other activities that she could not do. She said that as her arms got better, she was able to do more and more.
After 18 months to two years she was back doing everything she had done before including house work, washing, ironing, cleaning, shopping and looking after kids. She could move furniture around when she needed to. She said that she did jobs outside the house, such as gardening, trimming bushes, pruning roses and tending to her vegetable garden. After the symptoms subsided, she no longer needed help with these things.
The plaintiff was asked whether she had any recurrence of the symptoms after her problems in the 1980s. She said that she had just minor problems. She could not recall an occasion where she sought medical treatment for these issues.
After the difficulties with her arms subsided, she said that she did not have any problems maintaining her personal appearance, such as brushing her hair. She had no problems with buttons, zips or shoes. The plaintiff said that she would engage in her hobby of glass painting every night, as it was something that she really enjoyed. She said that she tended to knit and crochet in winter months.
The plaintiff said that by 2006, she had no residual problems with her brachial plexopathy. She had none of the weakness nor pain she earlier described. She said that she had been having a 'few problems' and did not know what they were at the time. She said that she later found out they were panic attacks. Her description was: 'But apart from the old wear and tear, pretty good' (ts 36).
The plaintiff gave evidence that towards the end of October or beginning of November 2006 she began to have panic attacks. They 'just came from out of the blue' (ts 37).
On 27 November 2006, the plaintiff was shopping at the Maddington Shopping Centre with a friend. She felt symptoms that she thought were of a heart attack. She felt dizzy. The shopping centre around her was spinning around. She had to sit down on a seat. The symptoms she described on that occasion were:
(a)heart palpitations;
(b)a really sharp pain in her chest;
(c)a sharp, stabbing, in her left arm; and
(d)a tingly numbness like pins and needles in her left arm.
She had no symptoms in her right arm.
The shopping centre manager called an ambulance which took the plaintiff to Royal Perth Hospital (RPH). When she arrived at RPH, she was experiencing the same symptoms as she had at the shopping centre. The plaintiff said that when she got to RPH, she was placed on a heart monitor. The staff at RPH inserted a cannula into her at the crease of her right elbow. She said she watched the female staff member insert the needle and push it into the vein, and then put a cannula in place. The plaintiff said that by the time she saw a doctor she was still experiencing the heart palpitations, but her pain had begun to subside.
The plaintiff was allowed to go home later that night once RPH staff had done all the tests and realised that she had not had a heart attack. The staff at RPH told her that if she had any more problems she should come back. She was taken home by a friend. When she went home she did not have any of the symptoms and was feeling fine.

Events of 28 November 2006

The plaintiff gave evidence that when she got up on the morning of 28 November 2006 she started feeling dizzy, lightheaded and nauseated. She had heart palpitations and quickness of breath. Her head was spinning and she had pains in her chest. She said that the pain started as soon as she got up.
A friend of hers, Patricia Smith, took her to SHED. She could not recall the time when she went to the hospital.
At SHED, the plaintiff said she was seen by a triage nurse. She described the nurse has being tiny, quite pretty with long black hair tied in a bun. She was in a white uniform.
When asked about symptoms, the plaintiff told the triage nurse that she was feeling dizzy and had heart palpitations. She told the nurse that she had been to RPH the night before. The nurse said she would get someone to attend to her.
After that she was escorted into the emergency room to one of the treatment beds. She said that the same nurse, the triage nurse, took her through. She thought that her name might have been Robyn. The plaintiff said she talked to the nurse about being frightened, that she was going to die, and that she had a grandson to look after.
The plaintiff said that at this time she still had the pain in her chest, nausea and dizziness. The symptoms had started to ease up a little, in particular the pain in her chest.
Sometime later a male person came up to her and said that he was going to put a cannula in her arm. She described this person as an Asian male, with jet black hair, who was wearing a blue jumpsuit type of outfit. She said that the jumpsuit could have been one piece. It was pale blue all over and short sleeved. She said that it was hard to tell the age of the Asian man, though he looked quite young. She said that she did not speak with this person.
She said at this time it was going through her mind that if she died who would look after her grandson. She said she was scared.
At the time the cannula was put in, the plaintiff said that she was still experiencing nausea. She understood that the purpose of putting in a cannula was so that she could be given Maxolon to deal with the nausea. She recalled experiencing chest pains at that stage and having difficulty breathing. She watched the hospital staff member insert the cannula.
The plaintiff's evidence as to the insertion of the cannula was that:
(a)it was inserted in her right arm at a point four centimetres down from the crease in her elbow, on the left‑hand side;
(b)the person who inserted the cannula looked apprehensive and not sure of what he was doing;
(c)it was inserted on an angle towards her wrist;
(d)it was inserted at an angle of about 45°;
(e)when it was inserted, she experienced pain, 'just a sharp - a sharper pain than you normally feel' (ts 50); and
(f)the pain lasted a couple of seconds.
The plaintiff gave evidence that she did not pay much attention to the cannula going in because of the stuff that was going through her head.
The plaintiff then said that the person who inserted the cannula taped it. The tape was placed at the top of the cannula, towards the elbow from the point of insertion. She said that she saw some blood come out of the needle site, but could not recall any blood coming out of the cannula.
The plaintiff gave evidence that within a couple of minutes of the cannula being inserted (ts 52, 53):
(a)she felt a tingling in her arm, beginning where the cannula was inserted, coming down her arm, diagonally across the inside of her arm to her wrist, and then to her thumb and index finger;
(b)the tingling was a 'stinging tingling', like 'prickles'; and
(c)she felt a constant burning pain across the back of her fingers, in particular her index finger and thumb.
She said that this pain had continued to the present day, although it had got more intense since the insertion of the cannula.
The plaintiff was asked whether she mentioned this to anyone, to which she replied that she had not. When asked why not, she said that she thought it would just settle down and that she had more pressing things on her mind.
The plaintiff said that about half an hour later someone put some Maxolon in the cannula. When the Maxolon was put in, she was still feeling nauseated, but the other symptoms were starting to calm down. She said that the tingling in her arm was still there.
The plaintiff then recalled talking to a female doctor. She described this doctor as being thin with gingery‑coloured hair. The doctor had a white jacket on. She said that the doctor introduced herself by name, though the plaintiff could not remember her name. She thought she was a registrar. The doctor told her that she was not having a heart attack, rather a panic attack. The doctor told her that the cannula could come out and she could go home.
The plaintiff then gave evidence that the same nurse, Robyn, took out the cannula. She said that the nurse pulled out the cannula very gently and quite slowly. She said that she bled a lot and the nurse placed a little circle bandage on the exit wound. After the cannula was taken out, she was allowed to go home.
She said that she thought she spent about five hours at the hospital. Her friend took home.
The plaintiff said that when she went home she was feeling a bit silly, as she thought she had had a heart attack, when it was really a panic attack. She said that she felt stupid wasting the time of the hospital staff.
The plaintiff said that when she arrived home, she still had the pins and needles, and tingling feeling in her arm, but she still felt it would settle down. She described the tingling as being in her palms under her fingers. It was also on her index finger and thumb across the thumb to the inside of the wrist radiating up the arm the forearm to stop at the cannula site.

Events immediately after 28 November 2006

The day after she came out of hospital the plaintiff noticed a haematoma on her inner right forearm. When asked what a haematoma was, she said that it was blood underneath the surface of her skin. She said that it caught her attention because it looked like a bruise.
The plaintiff said that the haematoma was some 5 cm long and 5 cm wide and was at the crease of the elbow around the site in which the cannula was inserted. She said that the haematoma area was as 'hard as a rock' (ts 60). It was 'lovely shades of blue and black and purple' (ts 61). She described it as a 'hard bruise' (ts 61). She said it was as if there was a lump inside her skin. She said she could feel the lump more than see it.
The plaintiff gave evidence that the tingling gradually got worse. She said that she had thought it would settle down but it 'just got worse' (ts 61). When asked to describe how it got worse, she said that the burning was more obvious, as was the stinging. She said that when she rubbed her thumb and index together she felt 'prickles' (ts 62). She said that she had not felt that way when the cannula was first inserted.
The plaintiff said that the symptoms she felt were 'similar but totally different' to the symptoms she had felt previously. She said that the tingling was similar. However before, the tingling felt more like 'little insects or ants' on her arms (ts 62). She said that the tingling she felt then was in her little finger and the one next to it, on both hands, going up the back of both arms to her shoulders. It was on the opposite side of the tingling she was now feeling.

The plaintiff said that now the tingling is only in her right arm and stops at the elbow. The tingling is in different places.
She said that about a month later she spoke to her general practitioner Dr Schwenger, about her arm. She wanted some medication for her panic attacks, so she got him to have a look at her arm as well. She thought that the tingling would settle down, but by that time realised it had not.
The plaintiff said that by the time she went to see Dr Schwenger, the pain was becoming more intense, in particular the prickles. When asked to describe how the pain was becoming more intense, the plaintiff said that it hurt more than it did before. The pain was sharper. The prickles were more intense. She said the pain continued to be from her index finger from the tip to the bottom, from the tip to the base of the thumb and across the inside of her wrist radiating up her arm to her elbow.
The plaintiff said that she told Dr Schwenger that her hand was tingling, and that she had no strength in it. She said that she first noticed her right hand was getting weaker about a week or so after the cannula was inserted. It then continued to get weaker between then and when she saw Dr Schwenger. She said that she had trouble picking up pens and coffee mugs, and with buttons and zippers. She said that her fingers would not move properly. The plaintiff told Dr Schwenger about the cannula being inserted. She also showed Dr Schwenger her bruise. It was about the same size as it had been since she first observed it. There had been no change in its colour. She described it as black and sore to a touch and being 'rock hard' (ts 66). She said that it was sore, and throbbed like a toothache.
Dr Schwenger referred her to a physiotherapist and a neurologist.
The plaintiff said that she saw a neurologist. She thought this might have been Dr Stell. She said she thought that the appointment with the neurologist was some time after her appointment with Dr Schwenger.
The plaintiff said that the neurologist did the same test as Dr Knezevic had done some years previously. He placed needles in her right index finger and thumb, and on both sides of arm up to her neck. The plaintiff told the neurologist that she had had brachial plexopathy before.
At the time she saw the neurologist she had the same symptoms, the same numbness with the burning, the stinging and the prickles. She said that she spent about an hour with the neurologist and then went home.
She said that she next saw Dr Schwenger about a week after the appointment with the neurologist. Dr Schwenger gave her some medication, Tegretol. This was given to help take away some of the symptoms. She said that it did not really help though she was still taking it.
The plaintiff gave evidence that it took some time for her to get an appointment with the physiotherapist. The physiotherapist she was referred to was at the Swan Health Service. She said that she saw the physiotherapist for three to four weeks, one visit per week. She told the physiotherapist about the tingling and burning. She said the physiotherapist saw the haematoma as well.
The plaintiff said that all her treatment has been with Dr Schwenger. On the odd occasions she had seen another general practitioner at the same practice. She was not referred to any other doctors for treatment. She said that the last time she saw Dr Schwenger was a few days prior to the commencement of the trial.

Long term impacts of the events of 28 November 2006

The plaintiff was asked to describe her symptoms after her visit to the neurologist through to her visit to Dr Schwenger on Thursday preceding the trial. She said that:
(a)the burning, tingling and prickles continue, but are now worse;
(b)if she runs her left hand inside the palm of her right hand immediately below the fingers, this causes a sensation which she described as being 'like someone scratching a chalkboard' (ts 79);
(c)she feels stinging, burning and cramps on the on the back of her hand, in particular on the index finger and in the thumb;
(d)her thumb and right index finger are weak such that she cannot pick up a coffee cup nor write;
(e)she is constantly rubbing her fingers, trying to rub away the prickly feeling, which has caused her fingers to split;
(f)her right index finger gets very cold;
(g)the veins were more pronounced on the index finger and thumb of her right hand than her left hand;
(h)her right thumb was shrivelled compared to her left thumb; and
(i)her wrist now shakes, a symptom which came on a couple of months prior to her last visit to Dr Schwenger (say in mid 2011).
The plaintiff gave evidence that when she had her brachial plexopathy in the 1980's, she had a 'minor tremor' (ts 76). She described this as 'just a shake every now and again … probably once, twice a day' (ts 77). This was shaking in both her arms and would last a couple of seconds.
She said that the tremor she felt now was different. It is now debilitating. It is a constant, involuntary shaking. It gets worse when she tries to read a paper or a book. She said that she usually sits with her left hand on top of her right hand so that no one sees the tremor.
The plaintiff also said that on one or two occasions she had to have the finger nail of her right index finger removed. It would gradually turn blue and black and lift away from the skin. She said that she did not get this when she had brachial plexopathy.
The plaintiff gave evidence that she did not think that there was any treatment she would need in the future. She just had to stay on Tegretol. She said that she had had a little bit of 'physio', 'because there's nothing they can actually do' (ts 83). She said that she also took codeine and paracetamol for her arm, including Panadeine Forte. She also took this for her back as well. Before the incident with the cannula, she would take one codeine table every couple of months. Afterwards, she said that she would take about two every day.
The plaintiff said that with her pension card, the Tegretol and the Panadeine Forte cost her $5.80 each per packet. The Tegretol would last about three months. She would purchase Panadeine Forte every month or so.
The plaintiff gave evidence that the injury to her arm had impacted her in the following ways. She finds it difficult to:
·Do up buttons, zips, press studs, hooks and eyes, anything like that
·Hold a pen properly
·Pick up little things like buttons
·Peel potatoes or vegetables
·Cook, in particular anything that requires constant stirring or lifting items such as pots
·Squeeze a peg
·Shop
·Hold anything that requires two hands
·Turn on a tap
·Open a ring pull can
·Hold a knife and cut food
She can no longer:
·Hold a needle, do her knitting or crocheting
·Sweep, dust or mop
·Work in the garden
·Brush her hair
·Do her arts and crafts
·Lift anything 'that's a bit heavy' as it tends to tip (ts 90)
·Do her hobby of glass painting
·Change a nappy
·Wear shoes with buckles or clips
·Use a can opener
·Do her nails
·Serve food, in particular given the tremor
The plaintiff gave evidence that the issues with her arm impact her when she goes out for a meal, in particular with people who do not know her. This is because she cannot hold a knife like a normal person. She said that it makes her 'feel like a bit of an animal because of the way you have to hold your knife, and that's quite embarrassing if you go out' (ts 90).
The plaintiff said that because she can no longer brush her hair or put it up, she had to get her hair cut.
Her evidence was that she has had to change her wardrobe because she cannot do buttons, zips and hooks and eyes. She now usually wears dresses and tops now that she can just pull on or jeans that just pull up. She said that in the past she had to ask her grandson, who was 16 at the time, to do up buttons on her jeans and found that very embarrassing for not just herself, but for him. She wears clothes without zips, buttons, hooks and eyes, or press studs. The plaintiff said that she had particular difficulty putting on a bra, and now wears one as little as possible. She mainly wears thongs even in winter, as she cannot put on shoes with clips or buckles.
In relation to housework, the plaintiff said that she is unable to close her hand properly around a mop or broom handle. She tries to use them but it takes a long time with much difficulty and a lot of pain to the extent that her hand becomes swollen across the palm. This pain causes her to stop frequently and a task that would normally take about an hour before the issues with her hand started, now takes all day to complete. The plaintiff said that the impact of this is that her floors are a 'disgrace' (ts 92). She described herself as being a very, very meticulous person who always had a clean home and was proud of it. Now she cannot have a clean home because she just cannot do it. Her evidence was that although she tried to do her housework herself, she could not manage it and a lot of tasks she would have done previously were not getting done.
In re‑examination, the plaintiff said that as a result of the issues with her right arm, she eats more takeaway than she did before the issues arose. If she cooks, she will cook two minute noodles or the like. Before the issue arose, she would cook for herself and her family every night.
The plaintiff said that various friends and family would come and do things for her.
One of her friends, Ms Smith, lived at her house for about two years after she hurt her hand. She did the cooking and cleaning until she had to move back to her own house. This included hanging out the washing, vacuuming, dusting and sweeping floors. The plaintiff estimated that Ms Smith did 15 or 16 hours a week of assistance while she lived in the house. Once she moved out, Ms Smith would come over about three to four hours a week to help do things like gardening, cleaning up, making a bed or washing the floors. This is still occurring, though more like three hours a week.
The plaintiff said that her grandson Michael helped until about two years ago until he was 'about 16 and got a life' (ts 95). He would sweep the floor on occasion, do the dishes and cook. He would do any heavy lifting that needed to be done, and mow the lawn. He would help with the shopping and to put it away. The plaintiff estimated that when he was helping, Michael would give about four or five hours a week assistance, of which about three would be helping her as opposed to cleaning up after himself. Her other grandson, Jacob, would also help, though for more like two hours. Jacob does not provide any help now.
Another friend who helped was Deborah Savilivich. The plaintiff said that Ms Savilivich helped her quite a bit until about two years ago. Ms Savilivich would 'pop in' every second weekend or so. When she was there, Ms Savilivich would assist her for a couple of hours. She would do tasks like sweep the floors or make a bed.

Cross‑examination

There were nine main themes to the cross‑examination of the plaintiff by counsel for the defendant.
The first theme was that the plaintiff's memory as to how long her symptoms of brachial plexopathy lasted was quite vague and that, in fact, the symptoms lasted a lot longer than she indicated. In cross‑examination it became apparent that the difficulties that the plaintiff was having changing nappies because of the issues with her arms did not occur in 1986. Rather, they occurred in the mid 1990s when her grandson (whom she was looking after) was a baby. It also became apparent in cross‑examination that the plaintiff could not recall complaining to her then general practitioner in 1996 of increased weakness over the right index finger, sensory disturbance over the top of her right hand, a tremor of the right hand and difficulties with fine motor skills. Neither could she recall going to Sir Charles Gardiner Hospital (SCGH) in 1996 in relation to these issues with her right arm and hand. Nor could she recall having an EMG test in 1996 with Dr Stell.
The second theme was that the plaintiff had experienced nerve like symptoms in her left arm in the month or so before she attended SHED. She accepted that she had numbness and altered sensations on the left side of her body earlier than the beginning of November 2006. She recalled going to SHED who referred her to RPH in the beginning of November 2006. She also accepted that a few days later she reported symptoms of numbness in her left hand to Dr Schwenger.
The third theme was that her reporting of the manner in which the cannula was inserted on 28 November 2006 was unreliable. She was asked in cross‑examination whether she told any of the doctors that the cannula had been inserted pointing down towards her hand. She said that she would have told Dr Schwenger and could not remember if she told Dr Goodhart.
The fourth theme was that the plaintiff's memory of the events of 28 November 2006 generally is unreliable. Counsel put the evidence of SHED staff to the plaintiff in general terms. It was apparent from cross‑examination, that the plaintiff's recollection of the events of 28 November 2006 was generally vague. The plaintiff accepted that she told the triage nurse that she woke feeling numbness in her hands, a mild right chest pain and slight shortness of breath. She did not accept that she told the triage nurse that she had tingling in her hands. She could not remember what she told the nurse once she went through to the treatment area. She accepted that the description of the symptoms she gave the 'Asian gentleman' sounded accurate. (Subsequent evidence identified the Asian gentleman as Dr Mei, whose evidence is summarised at a later point in these reasons). She also accepted that she was taking aspirin at that time. She did not recall the Asian gentleman examining her, including a neurological examination of her arms and legs. It was ultimately put to the plaintiff that she did not in fact have a clear recollection of the insertion of the cannula at all, which she denied.
The plaintiff accepted that when the cannula was put in she did not feel 'a jump or a spark or a jolt or anything like that' in her right arm (ts 121). She also accepted that she did not tell anyone at the hospital that she was feeling anything unusual from the insertion of the cannula. This included the 'lady doctor' who she had a conversation with before being discharged and who told her that she was having panic attacks.
Counsel for the defendant put to the plaintiff what she had told Dr Goodheart and Dr Beinhart, namely that the tingling in her index finger and thumb did not start until the end of the day. The plaintiff conceded that she had forgotten what she told Dr Goodheart and Dr Beinhart.
The fifth theme was that the fact that the plaintiff did not tell Dr Schwenger about the issues with her arm at the appointments on 29 November 2006, 8 December 2006 and 18 December 2006 meant that the issues with her arm were not serious enough to warrant drawing them to the attention of Dr Schwenger on those occasions. This included the haematoma on her arm. The plaintiff said that at this time she was more interested in the fact that she might be having heart attacks.
In cross‑examination, the plaintiff confirmed that:
(a)the first symptom the plaintiff felt was a tingling sensation in her hands;
(b)the tingling sensation gradually got worse and worse over the 5 week period after her visit to SHED;
(c)the greatest severity between her visit to SHED and the visit to Dr Schwenger on 2 January 2007, was at the end when she saw Dr Schwenger;
(d)she first noticed weakness and a loss of strength in the right hand about a week after her visit to SHED;
(e)the loss of strength gradually got worse until she saw Dr Schwenger;
(f)the pain in her hand came on later like the weakness; and
(g)the pain in her hand got more intense over the five week period from her visit to SHED and her 2 January 2007 appointment with Dr Schwenger.
The plaintiff recalled that when she first reported her arm symptoms to Dr Schwenger, he discussed with her the possibility that it might be carpel tunnel syndrome or tendon problems. She recalled that Dr Schwenger had sent her off to see a neurologist and for an ultrasound.
This formed the basis for the sixth theme, which was that the idea of the cannula being the cause of the problem was something that arose later, and was not in her mind at the time of her appointment with Dr Schwenger.
The seventh theme in cross‑examination was that the plaintiff did not seek any medical attention about her hand in the years subsequent to 2007. Counsel put the records of Dr Schwenger to the plaintiff which demonstrated minimal reporting about right arm symptoms. The plaintiff said that there was no point in her complaining about her arm as there was nothing that anyone could do about it. She accepted that aside from the initial referrals in January 2007, she had not had a referral to a physiotherapist or specialist regarding her hand. It was also put to her that one of the few occasions on which Dr Schwenger did discuss her right arm was at an appointment on 22 July 2011 which immediately preceded a report which he was to prepare for the plaintiff's lawyers. She also confirmed she was taking Panadeine Forte for other issues, including abdominal and hip pain. She further confirmed that she was taking Tegretol for her arm pain, but that it does not really help.
The eighth theme which counsel developed was the foundation of a submission that the plaintiff's current symptoms are not consistent with an injury to the median nerve. In particular, the plaintiff confirmed that her current symptoms included:
(a)a tremor in her right hand, that is most pronounced in her little finger;
(b)burning across the back of her right hand, which she marked on a diagram as being below in the index and middle finger running to the bottom of her thumb (Exhibit D1); and
(c)difficultly extending her right index finger.
She confirmed that these symptoms had commenced after her attendance at SHED.
The final theme was that the level of assistance which the plaintiff described as requiring was exaggerated. The issues raised included that:
(a)some of the assistance required was very quick, for example, doing up a button;
(b)the plaintiff had adjusted her wardrobe to avoid clothes which had button and zips;
(c)she had not being doing any heavy cleaning because of issues with her back; and
(d)the time estimates of assistance were exaggerated.

Other lay witnesses called by the plaintiff

Patricia Smith

Ms Smith has been a friend of the plaintiff for close to 20 years. Her daughter had a child with the plaintiff's son, making them both grandmothers of the same child.
Ms Smith described the plaintiff's house prior to the issues arising in 2006 as being immaculately clean. The plaintiff's house was always kept up to date, clean, vacuumed, mopped and polished. The washing was always done. She gave evidence that this changed in late 2006.
Ms Smith gave evidence that prior to the issues in 2006, the plaintiff did not complain of any particular pain, just the usual aches and pains of getting older. She was not aware of any problems with the plaintiff's arms.
Ms Smith was the person who took the plaintiff to SHED on 28 November 2006. At that time, Ms Smith had been living at the plaintiff's house for about a year. She recalled that the day she took the plaintiff to SHED as being the day after the plaintiff was taken by ambulance to RPH. She took the plaintiff to SHED because she thought that she was having a heart attack. She did not want to wait for an ambulance. She could not recall what time in the morning she took the plaintiff to the hospital.

Ms Smith was with the plaintiff when she told the triage nurse about how she was feeling, but did not remember what was said.
She came back later to take the plaintiff home. When she picked up the plaintiff, the plaintiff complained to her that her right arm was sore. She also recalled the plaintiff telling her that she had a panic or anxiety attack. Her evidence was that the plaintiff was rubbing her right arm. When giving this evidence, Ms Smith mimicked the hand movements which she saw the plaintiff do at this time. She was stroking the inner part of her right arm from the elbow to the wrist.
Ms Smith also saw a bruise on the plaintiff's right arm. She described this as starting at the elbow crease and extending about 6 cm towards her wrist. The bruising was 'darkish, reddish' (ts 158).
Not long after that, Ms Smith noticed a raised lump in same place as the bruise on the plaintiff's right arm. She described the lump as 'about 3 inches down and 2 inches across' (ts 158). It started at the crease of the plaintiff's right elbow. The lump she observed stayed there for months.
Later on that day, when the plaintiff and Ms Smith were at the plaintiff's house, the plaintiff complained to Ms Smith that her arm felt both sore and tingly. She described to the court the motion that the plaintiff was making with the fingers of her right hand: 'You know, like, if something feels a bit numbish or funny, you go like that' (ts 160). The plaintiff told her that the tingling was coming down from the elbow into her fingers.
Ms Smith also observed that from that time, the plaintiff was not able to do anything in the house. She could not pick up things. Ms Smith started to do the cooking, cleaning, washing and other things around the house as the plaintiff could not do them. Ms Smith said that she had to help the plaintiff cut up meat and spread butter on bread. Ms Smith said that she did 'pretty much everything' for the plaintiff in the following two or so years (ts 162). This included washing, drying, folding clothes, hanging clothes out, cooking, lifting shopping bags, taking the plaintiff to doctor's appointments. Ms Smith said that she saw the plaintiff try to pick up cups, and then drop them. She also saw the plaintiff having trouble putting petrol in her car, because she could not grip the bowser nozzle handle.
Ms Smith also gave evidence that the plaintiff's personal grooming had gone downhill after the visit to the SHED. She would shampoo the plaintiff's hair and help her brush it. She also had to help the plaintiff get dressed, in particular with buttons and clips.
Ms Smith estimated that in the two years following the visit to SHED, she probably did between three and five hours a day of housework for the plaintiff. Ms Smith also said other friends and family would help the plaintiff.
She said that from about the beginning of 2009, because of her own family circumstances, she was not able to assist the plaintiff as much she had done previously. She now mainly sees the plaintiff socially.
Ms Smith gave evidence that the plaintiff's house is now messy. She said that the table is always a mess and that the floor is usually messy. She gave evidence that the plaintiff had gone downhill personally, both in terms of her disposition and her appearance.
The defendant challenged Ms Smith's evidence of the plaintiff's complaint to her about her arm in the car on the way home from hospital on 28 November 2006. The challenge was on the basis that the first time Ms Smith was asked to recall what occurred on 28 November 2006 was in an interview with the plaintiff's solicitors some years later. She then reconstructed her memory in order to assist the plaintiff, who is a close friend. Ms Smith denied this occurred.
The defendant also cross‑examined Ms Smith seeking to establish the there was an element of exaggeration in the time she says she spent helping the plaintiff in the two or so years following her November 2006 visit to SHED.

Deborah Savilivich

Like Ms Smith, Ms Savilivich is a long time friend of the plaintiff.
Ms Savilivich recalled seeing the plaintiff a few days after she had visited hospital for a panic attack, which she placed in 2006. The plaintiff showed her a bruise about 4 cm below the crease of her elbow. She described the bruise as being 'quite raised and quite bruised', and that there was a lump there. She described the bruise as being 'blackey‑blue'. She felt the lump and it was hard (ts 307 ‑ 308).
Ms Savilivich saw the plaintiff about a fortnight later, and again observed the bruise. She recalled that the bruise was still raised on that occasion.
Ms Savilivich continued seeing the plaintiff from time to time over the following months. She observed that the plaintiff's hand seemed to her to have no strength, and was continually shaking. She saw that the plaintiff was having trouble lifting things, and dropped a plate on one occasion. Ms Savilivich saw the plaintiff try unsuccessfully to make her bed and wash her hair.
Ms Savilivich gave evidence that, from her observations, the plaintiff's right hand is worse now that is was earlier on. Her evidence was that the plaintiff's house is no longer as clean as it used to be prior to the issues with the hand arising. She described it now as being 'disgusting' (ts 311). Previously, the plaintiff's house was 'spotless' and Ms Savilivich had seen the plaintiff do things like make the beds and clean the floors. Now, the plaintiff cannot mop the floors, vacuum, make beds, do dishes or clean the bathrooms. The plaintiff could no longer do the glass painting she used to do. Previously, the gardens at the plaintiff's house were always done; now they are dead. The plaintiff no longer cooks like she used to, instead eating takeaways, toast or noodles.
Ms Savilivich also confirmed the plaintiff's evidence that she now has difficulty brushing her hair and doing her nails, activities which she did in the past.
Ms Savilivich has observed a continuous shaking in the plaintiff's right hand. She cannot lift a cup of tea in her right hand. She also observed the plaintiff continually running her thumb across her index and middle fingers.
Ms Savilivich said that from when the plaintiff hurt her arm until about two years ago, she would see the plaintiff every fortnight or so. When she saw the plaintiff she would help her with any jobs that needed to be done. This included shopping, sweeping the floor or doing her hair. She estimated that she spent an hour or so each visit helping the plaintiff.
Since then Ms Savilivich has started seeing the plaintiff more regularly, but because of issues of her own, has not been able to help as much. She now tends to do personal things like the plaintiff's nails or hair, or cooks for her.
In cross‑examination, counsel for the defendant tested the extent to which Ms Savilivich observed the matters she gave evidence about, and the extent to which she became aware of them through her conversations with the plaintiff. Ms Savilivich was adamant that she observed what she gave evidence about.
In response to questioning from the counsel for the defendant, Ms Savilivich stated that the plaintiff had complained to her about 'pain going down to her hand' when she first saw the plaintiff after she had been to hospital (ts 322). The plaintiff complained of the same pain when Ms Savilivich next saw her a fortnight or so later.

Karen Robinson

Ms Robinson has been a friend of the plaintiff's for about 14 years.
For a time, Ms Robinson's daughter Tameeka Howarth was at the same primary school as the plaintiff's grandson Michael. When she would visit, the two children would play together. Tameeka would also visit the plaintiff without her mother.
Ms Robinson gave evidence that going back four or five years, she used to visit the plaintiff a lot, perhaps twice a week. She recalled visiting the plaintiff one day and noticing that her arm was 'really black, bruised' (ts 460). There was a 'pretty big bruise' just below the crease of the plaintiff's elbow (ts 461). The plaintiff told her that the hospital had put a needle into her arm and that is how the bruise came up. The plaintiff also complained to Ms Robinson that her fingers were going numb, and she observed that the plaintiff started to rub her thumb across her index and middle fingers. She observed the plaintiff doing things that she used to do with her right hand with her left hand. She observed the plaintiff having trouble using a knife in her right hand.
Ms Robinson reiterated the evidence of Ms Savilivich and Ms Smith that prior to hurting her right hand, the plaintiff's personal appearance was always 'immaculate' and her house was always clean. After hurting her hand, Ms Robinson's observation was that the plaintiff's house looked 'quite gross' and that her personal appearance went down (ts 465).
Ms Robinson said that up to about a year ago she used to help the plaintiff when she visited. She recalled that she had seen the plaintiff trying to mop the floor, and had taken over. She would do things like the dishes, wiping down benches, sweeping or vacuuming floors. She estimated she would assist for a half an hour to an hour once a week.
In cross‑examination, counsel for the defendant tested the detail of Ms Robinson's recollection of events. Ms Robinson seemed to accept the proposition put to her that she just had a memory of helping out from time to time when she went to see the plaintiff.

Tameeka Howarth

Tameeka Howarth is Ms Robinson's daughter. She gave evidence that she has known the plaintiff all of her life as a friend of the family.
Ms Howarth recalled visiting the plaintiff with her mother two days after the plainitff 'hurt her arm'. She saw a big bruise on the plaintiff's right arm, just below the elbow. She described it as being 'purpley coloured'. The plaintiff told her that her arm was really sore and that she could not move it (ts 451).
Ms Howarth said that she and her mother would visit pretty much every day for the reminder of 2006 while she and Michael (the plaintiff's grandson) were at the same primary school. After that, they visited every couple of days.
Ms Howarth gave evidence that she would help the plaintiff with her housework. She did things like dishes, hanging washing up, making beds, vacuuming, mopping and assisting the plaintiff to put her clothes on. She estimated that she would spend three to four hours there every few days. This lasted for a few months.
Ms Howarth said that she would now visit the plaintiff every fortnight or so, and would help with things like the dishes and mopping.
Like the other lay witnesses, Ms Howarth described the change in the way in which the plaintiff cared for her house and herself before and after the issues with her right arm. She gave evidence that prior to the issuing arising, the plaintiff's house was 'amazing..there was not, like, a crumb on the floor'. Now it is 'messy, the floors are dirty, the walls, dishes always in the sink, and washing everywhere' (ts 454 ‑ 455).
The theme to the cross‑examination was again to test the detail of Ms Howarth's recollection, in particular of the time she actually spent doing jobs as opposed to playing with Michael.

General medical issues

Anatomy of the right arm

There was a considerable amount of anatomical evidence led by the parties in the form of reports, oral evidence and diagrams. It is instructive for me to summarise this evidence before looking at the detail of the plaintiff's treatment history and the expert opinion evidence on causation. Where I have augmented the evidence with material from other sources, I have noted this.
There are three main nerves in the arm, the median nerve, the radial nerve and the ulnar nerve. Each nerve is surrounded by a protective sheath known as the epineurium. The nerve consists of a perineurium which is a sheath of connective tissue which encloses, or bundles together, fascicles. Fascicles are in turn bundles of individual nerve fibres surrounded by a sheath of connective tissue known as the endoneurium. Within each fascicle there are thousands of nerve fibres. In cross section, a nerve looks like a fibre optic cable. (Exhibit D11, ts 576, Harris, Nagy and Vardaxis (eds) Mosby's Dictionary of Medicine, Nursing and Health Professions: 2^nd Australian & New Zealand Edition (Mosby Elsevier, 2008) 1173).
The individual nerve fibres ultimately connect back to the spinal nerve roots, specifically from the fifth cervical nerve root (C5) to the first thoracic nerve root (T1), that is, including the sixth (C6), seventh (C7) and eighth (C8) cervical nerve roots.
The three main nerves do not connect directly back to the spinal nerve roots. Rather, through a matrix structure, described as being like train lines or a freeway system, the nerves converge into trunks, which then branch out into multiple spinal nerve roots. Thus, the individual nerve fibres in the median nerve may ultimately join the spinal nerve roots at any one of C5, C6, C7, C8 or T1. This matrix structure is the brachial plexus. The three main nerves emerge from the brachial plexus just below the shoulder joint.
The nerves have two functions. The first is the motor function, which is to carry impulses from the brain to the muscles to trigger the muscle to contract and relax. The second is the sensory function, which is to carry sensory impulses from the muscles, skin and other tissues back to the brain.
The median nerve runs deep in the muscles of the upper arm. As it travels down the upper arm, the median nerve does not supply any sensory or motor functions.
The first branch off the median nerve is to the pronator terres muscle. This muscle is about two finger breadths below the elbow crease. The branch from the median nerve to the pronator terres muscle occurs around the level of the elbow crease. Specific expert evidence was led on this issue, to which I will return later.
Forward of the branch to the pronator terres muscle, and below the crease of the elbow, the median nerve branches into the anterior interosseous nerve and the terminal branch of the median nerve.
The anterior interosseus nerve supplies motor functions to the muscles which flex the thumb index finger, middle finger and a little bit of the ring finger.
The terminal branch of the median nerve goes across the wrist through the carpel tunnel to supply sensations to hand. At this point, the median nerve is purely sensory. The area of sensation it supplies is on the outside of the palm of the hand (when the palm is facing upwards), including the thumb, index finger, middle finger and outside part of the ring finger. With the palm facing downwards, it supplies sensation to the tips of the thumb, index finger, middle finger and inside part of the ring finger.
When the palm is facing upwards, the inside part of the ring finger and the little finger, as well as the inside part of the palm, are supplied with sensation from the ulnar nerve. When the palm is facing downwards, the ulnar nerve also supplies sensation to the little finger and outside part of the ring finger. With the palm facing downwards, sensation in the inside part of the ring finger, the middle finger, the index finger, and the thumb (aside from the tips) is supplied by the radial nerve.
As I mentioned, the plaintiff gave evidence that she had brachial plexopathy in 1986. Plexopathy means a malfunction or disturbance. Brachial plexopathy thus refers to a malfunction or disturbance of the brachial plexus. There can be a number of causes of brachial plexopathy. One is trauma. Another is the result of inflammation of the nerves. This is referred to as 'inflammatory brachial plexopathy' which simply denotes a more specific form of malfunction or disturbance to the brachial plexus in which the cause is identified as being inflammation. The inflammation may have many causes, including a viral illness, or may arise spontaneously by reason of a person's immune system. Inflammatory brachial plexopathy is also referred to in the evidence before me as brachial plexitis, Parsonage‑Turner syndrome, idiopathic brachial neuritis and neuralgic amyotophy. For ease of analysis between the various witnesses, I will refer to it as 'inflammatory brachial plexopathy'.
Brachial plexopathy will cause nerve symptoms further down the arm. Depending on which nerves are affected, different symptoms will be experienced in different areas of the arm. Working backwards, if there is a symptom in a nerve or in a number of nerves in the arm, one of the potential causes of the symptom may be a malfunction or disturbance in the brachial plexus, that is, brachial plexopathy. The neurologist will use the pattern of symptoms to assist in locating the location of the plexopathy, which in turn provides clues as to the cause of the plexopathy.
The plaintiff also gave evidence that the site of the cannulation was 4 cms below the elbow crease. Among the diagrams provided was a cross section of the arm at the elbow crease or cubital fossa. The cubital fossa is more precisely defined as 'a depression in front of the elbow, immediately lateral to the tendon of the biceps brachii muscle': Mosby's Medical Dictionary, 462. It extends a couple of centimetres below the elbow crease. In the evidence, it appeared to be used interchangeably with the term 'antecubital fossa', which is technically defined as the 'depression at the bend of the elbow': Mosby's Medical Dictionary, 101.
There are three superficial veins at the cubital fossa: the cephalic vein on the outside, the basilica vein on the inside (with the forearm facing upwards) and an oblique communicating vein between the cephalic and basilica veins. These superficial veins sit right under the skin, and are usually visible through the skin. The veins carry the blood from the extremities of the body back to the heart, whereas the arteries carry blood from the heart to the extremities of the body.
The three veins lie in the subcutaneous or superficial tissue between the skin and the deep fascia. The subcutaneous tissue is a couple of millimetres thick. Immediately below the subcutaneous tissue is the deep fascia. This is a tough fibrous layer of tissue about as thick as a piece of paper. The deep fascia surrounds the deep tissues, muscles, bones, arteries, veins and nerves. Immediately below the deep fascia are the muscles. The major arteries, veins and nerves lie between the muscles. At the cubital fossa, the median nerve is in the deep tissues at least a centimetre from the level of the skin. The brachial artery and brachial vein are adjacent to it.

Diagnostic tests to assess nerve function

Because the area to which each nerve supplies sensation and motor function are known, neurologists can gain diagnostic information from the location of symptoms about the location of the cause of the symptoms within the nervous system. There are two main tests by which this is done.
The first is a nerve conduction study. This involves placing electrodes on the part of the body to be examined (in this case, the right arm). Electric shocks are then given to a defined area adjacent to the area covered by the electrodes. Using a computer, the speed of the electrical impulse between the site of stimulation and the site of the recording electrodes is ascertained, as well as the size of the response. From this information the neurologist can discern information about the condition of the nerves in between the site of stimulation and the site of recording.
The second is an electromyographic study or EMG. This test involves placing a recording electrode connected to the EMG machine into various muscles. If a muscle has lost its nerve supply or has damage to its nerve supply, it becomes electrically irritable. The electrode records a signature discharge pattern that occurs in the muscle that the neurologist can then analyse. The neurologist is aware of how a normal muscle responds to the electric stimulation. Depending on the nature of the aberration from the normal range of responses, the neurologist can discern diagnostic information as to what might be going on with the combination of the muscles and the nerves.

Plaintiff's medical history to 27 November 2006

Sources of medical evidence

The plaintiff tendered records from the following sources pursuant to Evidence Act 1903 (WA) (EA) s 79C:
(a)RPH;
(b)Dr Schwenger;
(c)SHED;
(d)Princess Medical Centre; and
(e)Dr Wally Knezevic (relating to the issues in 1986).
The defendant tendered records from the following sources pursuant to EA s 79C:
(a)SHED;
(b)RPH; and
(c)SCGH, covering the period from July 1987 to September 1996.
Leaving Dr Schwenger's records to one side, there was no objection taken to the remaining records being treated as evidence of the facts and opinions contained in the statements recorded in the records pursuant to EA s 79C(2a). Dr Schwenger gave detailed oral evidence about his consultations with the plaintiff, and two reports of his were tendered. I make specific findings as to Dr Schwenger's evidence and records as the need arises.

1980s right arm issues

The medical records establish that in May 1986 the plaintiff fell down a set of stairs and suffered a low back injury with pain in the low back and right leg. In the same month, the plaintiff was involved in a car accident in which her car was rear-ended, giving her persistent neck pain. The plaintiff underwent surgery for her lower back problems in November 1986. Immediately following surgery she had severe neck, shoulder and arm pain. She subsequently developed weakness in her hands and altered sensations in her hands and forearms. There was persisting pain, dysaestheisia and weakness. 'Dysaetheisia' refers to 'sensations of numbness, tingling, burning or pain': Mosby's Medical Dictionary, 564.
The plaintiff's treating orthopaedic surgeon was Mr Phillip Hardcastle. In January 1987, Mr Hardcastle referred the plaintiff to Dr Wally Knezevic for an EMG and nerve conduction study. In a report dated 23 January 1987 to Mr Hardcastle, Dr Knezevic reported on the results of these studies. He concluded that the plaintiff had a 'bilateral brachial plexopathy' in the middle and lower trunks of her brachial plexus. He posited two causes of the plexopathy. The first possibility was as a result of brachial plexus traction injury during the surgery. The second possibility was inflammatory brachial plexopathy. At that time, he thought that the second possibility was less likely 'because of the timing after surgery and the strictly asymmetrical involvement'. Dr Knezevcic repeated the tests in May 1987 and reported to the plaintiff's then lawyers by letter dated 14 July 1987 in similar terms to the letter of 23 January 1987.
In a report dated 25 November 1987 to a firm of lawyers who appeared to be acting for the plaintiff, Dr Knezevic documented his findings from an examination of the plaintiff on 6 November 1987. The plaintiff reported complaints of numbness and paraesthesia of the right forearm and right hand, along with weakness of the right hand, with moderate paraesthesia of the left thumb and index finger. 'Paraesthesia' (sometimes spelt paresthesia) is a reference to 'any subjective sensation, experienced as numbness, tingling, or a pins and needles feeling': Mosby's Medical Dictionary, 1285. Dr Knezevic concluded that the plaintiff would have permanent weakness and sensory disturbance in her right hand and probably sensory disturbance in the left hand.
Dr Knezevic reviewed the plaintiff in April 1988, and reported to her lawyers by letter dated 10 May 1988. Among other things, the plaintiff complained of 'moderate paraesthesia of the left thumb and index finger'. On examination, left hand strength was normal, but she had altered sensation to her left thumb and left index finger.
On 21 December 1988 the plaintiff was admitted to SCGH, and was discharged on 24 December 1988. Her presenting symptoms included 'left‑sided tingling sensation, light headedness, nausea and a host of other abnormal bodily sensations' (to quote from the inpatient summary). On examination, left arm weakness was observed. The hospital had arranged for a psychiatric assessment, but the plaintiff left the ward 'against medical advice' before this could be undertaken.
In a letter to Dr Hardcastle dated 9 October 1989, Dr Knezevic clarified his earlier comments about the cause of the plaintiff's brachial plexopathy, and stated that 'I think there is no doubt that she did have an inflammatory brachial plexopathy'. He noted that he had arranged to perform another EMG on the plaintiff. By letter dated 13 October 1989, Dr Knezevic reported on the results of the EMG and nerve conduction studies carried out on the plaintiff.
The evidence set out above in relation to the plaintiff's right arm issues in the 1980s is broadly consistent with the plaintiff's evidence though in much more detail. I find that the plaintiff complained of, and had, the symptoms, and had the treatment and investigations, as set out in [161] ‑ [166]. I also find that Dr Knezevic had the opinions set out above.

1996 right arm issues

In March 1996, the plaintiff's then general practitioner at the Balga Medical Centre referred the plaintiff to the plastic surgery outpatient clinic at SCGH for investigation of her right arm, in particular her index finger. Once the plaintiff had her initial review at SCGH she was referred to neurological review.
An EMG and nerve conduction study was carried out in May 1996.
In a report to the Balga Medical Clinic dated 9 September 1996, the neurology registrar reported that the plaintiff gave a history of gradual improvement 'in her bilateral arm dysaesthesia and hand weakness' in the years following her issues in 1988. Over the preceding year, she had noted increased weakness in her right hand, coupled with a resting tremor of her right thumb and forefinger. The EMG and nerve conduction study showed 'a widespread chronic motor axonopathy without any evidence of ongoing axonal injury'. Axons are parts of the nerve fibre: Mosby's Medical Dictionary, 168. There was considerable improvement in her condition since 1988. On examination, relevantly, there was a patch of hyperaesthesia on the palmar aspect of both the plaintiff's right and left thumb and index fingers.
The plaintiff had no recollection of any issues with her right arm in the 1990s. From the cross‑examination which I have set out above, it is clear that some of what the plaintiff recalled from the 1980s actually referred to the 1990s, referenced by when she was caring for her grandson. Counsel for the defendant put the salient parts of the records to the plaintiff in cross‑examination. Counsel for the plaintiff did not make any submission to the effect that I should not make findings in terms of the documentary record. I find that the plaintiff complained of, and had, the symptoms, and had the treatment and investigations, as set out in [168] ‑ [170].
Dr Silbert identified from the SCGH records that, in his view, at some stage between 1986 and 1996 she sustained a further neurological lesion in the her brachial plexus, this time in the upper trunk. However, in cross‑examination he accepted that the best he could say from this material is that it may or may not have been recurrent brachial plexopathy. Given that a neurological lesion in the brachial plexus may also be described as brachial plexopathy, I take Dr Silbert's answer to mean that he was not able to identify the cause of the neurological lesion or brachial plexopathy as being inflammatory brachial plexopathy. The observation of Dr Silbert is based on proven facts, namely the SCGH records. These reports were dealt with in cross‑examination of Dr Goodheart, whose view was not inconsistent with that of Dr Silbert. I accept Dr Silbert's evidence that at some stage between 1986 and 1996 she sustained a further neurological lesion in her brachial plexus (that is, brachial plexopathy), this time in the upper trunk, and find accordingly.

General medical history 1996 to November 2006

There is a gap in the documentary record of the plaintiff's medical treatment and history until March 2005. In that month, the plaintiff first saw her current general practitioner, Dr Schwenger. Dr Schwenger gave evidence and his records were tendered. He has been a medical practitioner since 1965 and currently practices as a general practitioner at the Swan Medical Group in Midland.
In the period to March 2010, the practice of Dr Schwenger and his colleagues at the Swan Medical Group was to record patient details on a series of index cards with pre printed lines, arranged chronologically. Consultation notes were handwritten onto the index cards. Dr Schwenger said that he did not necessarily record every complaint on every appointment. He said it depended on how many complaints there were and the prioritisation of the complaints. After March 2010, consultation notes were recorded on a computer system.
The plaintiff saw Dr Schwenger twice in 2005, in March and November. In taking a general history, the plaintiff told Dr Schwenger that she had a lumbar fusion and brachial plexopathy in the past.
In 2006, the plaintiff saw Dr Schwenger (or another doctor at the same practice) some 29 times prior to 28 November 2006. Her presenting symptoms included:
·Persistent coughs and bronchitis (the plaintiff is a smoker)
·Chest infections
·General aches and pains
·Poor sleep
·Sore throat
·Lack of energy and chronic tiredness
·Headaches and nausea
·Left shoulder pain (following a fall)
·Cervical spine pain
·Lower back pain
·Diverticulitis (inflammation of the bowel)
·Urinary tract infection
·Abdominal pain
At an attendance on 8 November 2006, Dr Schwenger recorded the plaintiff as complaining of paraesthesia in her left hand. His notes contain a reference to the history of brachial plexopathy, which he explained was because there was a possibility of relationship between that and the paraesthesia of the left hand.
On 10 November 2006, the plaintiff saw Dr Schwenger complaining of a migraine. On 17 November 2006, the plaintiff saw Dr Schwenger complaining of a headache, with vomiting. On 20 November 2006, the plaintiff saw Dr Schwenger with similar complaints.
The plaintiff's evidence was that prior to the onset of panic attacks at the end of October 2006, she was generally well. This is not entirely consistent with the summary of the presenting symptoms recorded by Dr Schwenger throughout 2006. Counsel for the plaintiff did not make any submission to the effect that I should not make findings in terms of the documentary record. I prefer the detailed evidence of Dr Schwenger, taken from his notes, to the general and vague evidence of the plaintiff. Specifically, I find that the plaintiff attended on Dr Schwenger and complained of, and had, the symptoms as set out in [175] ‑ [178] above.

Attendances at hospitals in October and November 2006

The plaintiff attended SHED on 30 October 2006. She presented with a sudden onset, right sided severe headache, with associated nausea, vomiting and weakness. Investigations were carried out to determine whether she had a brain aneurysm or cerebral tumour.
The plaintiff attended RPH emergency department on 5 November 2006, having been transferred from SHED. She had a MRI scan of her head at SHED which did not reveal anything of note. The symptoms recorded in the SHED triage assessment prior her transfer to RPH relevantly include that she was experiencing altered sensation and weakness in her left side.
The plaintiff attended RPH emergency department on 27 November 2006 following the onset of symptoms at a shopping centre. The initial symptoms recorded were sudden onset of shortness of breath, light headedness and heart palpitations. The notes include a reference to long standing paraesthesia due to brachial plexus problems, but there was no increase in paraesthesia, and no new weakness in the arms or legs. The discharge letter to Dr Schwenger stated a principal diagnosis of 'palpitations'.
The evidence set out above is generally consistent with the plaintiff's evidence, including what she accepted in cross‑examination. Counsel for the plaintiff did not make any submission to the effect that I should not make findings in terms of the documentary record. Specifically, I find that the plaintiff attended SHED and RPH and complained of, and had, the symptoms, and had the treatment and investigations, as set out in [180] ‑ [182] above.

Medical evidence - events of 28 November 2006

Triage and secondary assessment

The records of SHED indicate that the plaintiff attended just after 7:30 am on 28 November 2006. She was first seen by the triage nurse, Mr Kim Koi Choo, at 7.35 am. Mr Choo gave evidence and was cross‑examined. He is of Asian ethnicity.
The triage booth at SHED is at the front desk of the SHED. It is behind Perspex glass, the other side of which is the waiting room. The patient sits on the other side of the Perspex glass. The triage assessment is a preliminary assessment. The information gathered is entered into a computer system. A form is printed out which contains the information entered into the computer system. Additional information is then added to the form. The patient is given a priority number from one to five known as the Australian triage code. The code depends on the severity of the presenting symptoms and is used to prioritise the treatment of patients.
Mr Choo confirmed the information in the SHED records that he was the triage nurse who saw the plaintiff on 28 November 2006. The triage assessment recorded that the plaintiff had numbness and tingling sensations in her hands, along with mild right sided chest pains with shortness of breath.
Mr Choo said that the triage nurse does not go into the emergency department area. He gave evidence that the triage nurse would never insert a cannula into a patient as they did not have the facilities or time to do it in the triage area. Mr Choo's evidence was that nurses can insert cannulas, but they had to do a course first which he had not done.
The theme to the cross‑examination of Mr Choo was that from time to time as part of a busy emergency department, the triage nurse would need to go into the main area of the emergency department to look after patients. Mr Choo conceded that this was possible, but unlikely given the need to cover the triage function. It was put to Mr Choo that sometimes he might have to insert a cannula. His reply was a firm: 'Not sometimes, never' (ts 726). It was squarely put to him that he inserted the cannula into the plaintiff's arm. His reply was that he did not remember the incident with the plaintiff, but that 'nurses do not put cannula[s] in unless they've done the course' and that he had not done the course and had never put a cannula in (ts 726 ‑ 727). Mr Choo confirmed that when he was the triage nurse he would wear a blue uniform with a white stripe.
At around 8.00 am, the plaintiff had a secondary assessment by a nurse, which appears to have been one Robyn Moors. Ms Moors did not give evidence. The SHED records include a diagram of the body, on which it is recorded from the secondary assessment that the plaintiff had right sided chest pain and tingling in both hands. The history recorded was that the plaintiff felt awful when she woke, along with symptoms of nausea and light headedness. She then developed right sided chest pain and the tingling in her hands worsened, and she also had tingling in her left leg. By the time of this assessment, the right sided chest pain was still present, as was the dizziness and nausea, but the tingling was much improved.
At 8.40 am, the plaintiff called Ms Moors over. She was very anxious and needed reassurance. The notes record that the plaintiff's body was twitching, but this stopped with reassurance.

Examination by Dr Mei

The SHED notes record that the plaintiff was reviewed by Dr Lin Mei, commencing at 8.40 am. Dr Mei gave evidence and was cross‑examined. He is of Chinese ethnicity, having been born in Beijing. He gave evidence about his studies and training in China. He came to Australia in 1992, initially working outside medicine. He became registered as a medical practitioner in Australia in July 2005. He started work as a resident medical officer at RPH. Resident medical officers at RPH at that time were sent to SHED on rotation. Dr Mei commenced full time at SHED in 2008.
Dr Mei gave evidence that it was part of the duties of the resident medical officer to insert cannulas. He said that he would insert five cannualas per shift on a ward, 10 on a day shift in the emergency department and up to 50 on the night shift in the emergency department.
Dr Mei said that his practice when inserting a cannula was to:
(a)confirm the patient's identity;
(b)tell the patient that he was about to insert a cannula and obtain their permission to do so;
(c)ask the patient their preference as to the arm in which they would like the cannula inserted;
(d)place a tourniquet on the bicep area;
(e)identify a vein in which to place the cannula, which is usually on the top of the hand, but could be in the cubital fossa;
(f)clean the area and swab it with alcohol;
(g)insert the cannula at an angle of 10 to 15 degrees in the direction of the vein towards the shoulder;
(h)push the cannula in 'a little bit' until blood comes back, indicating that it is in the vein;
(i)insert the plastic tube inside the cannula;
(j)secure the cannula and tube;
(k)take any blood required; and
(l)flush out the cannula.
Dr Mei gave evidence that if the cannula is inserted at a 45 degree angle it will go through the vein, not into the vein. He said that he would always insert the cannula (in the arm) towards the shoulder as this is the direction in which the blood is flowing. He said that no doctor would insert a cannula in the other direction.
Dr Mei gave evidence that if the cannula does not go into the vein there can be bleeding or bruising. He said that if there is bruising, he would remove the cannula straight away as it is not in the vein and it cannot be used to take blood. He said that there can sometimes be blood at the cannulation site once it is removed.
Counsel for the defendant asked Dr Mei if he had ever done a lumbar puncture, to which he said he had last done two days prior to giving evidence. In response to questions from counsel, Dr Mei said that when doing a lumbar puncture he would sometimes come into contact with a nerve. He said that when he did, the patient would feel sudden sharp pain and tingling in their leg. He said that he had never had this reaction when inserting a cannula.
Dr Mei said that the practice at SHED was for the doctor doing the initial assessment to see the patient, take a history, do a physical examination, insert a cannula, take blood, give any initial symptomatic treatment and then send the blood off for analysis. In Dr Mei's case, he would then write up his notes.
Dr Mei was not able to recall the plaintiff specifically, but confirmed that the notes in the SHED record were prepared by him in the course of a detailed examination of the plaintiff. In summary terms, his evidence was as follows:
(a)the plaintiff gave symptoms of sudden onset right chest pain, with tightness, but no radiation of the pain or shortness of breath;
(b)she also complained of dizziness, muscle weakness and unsteady balance;
(c)there was a reference to the attendance at RPH the preceding day;
(d)the plaintiff said that she was living with her grandson and her girlfriend, and that this was causing a little bit of stress;
(e)he recorded the medication then being taken by the plaintiff;
(f)he tested the plaintiff's orientation, which was clear;
(g)he took the plaintiff's blood pressure, heart rate, temperature and oxygen saturation;
(h)he used a stethoscope to listen the plaintiff's heart;
(g)he did a physical examination, recording muscle tone and sensation; and
(i)he tested the plaintiff's coordination and balance.

Whist Dr Raftos' evidence was to the effect that there could have been a deep tissue haematoma in the present case, in the totality of the evidence as considered by Dr Silbert and based on my other factual findings, the plaintiff has failed to establish on the balance of probabilities that there was in fact a compression injury to the median nerve or its surrounding blood vessels caused by a deep tissue haematoma.
The fifth factual issue is that it is not open to me to infer that because there was some damage to the median nerve that the damage must have been caused by a direct needle stick injury or indirectly through a haematoma in any of the ways identified. This is because it is at least equally likely that the plaintiff's symptoms were caused by an inflammatory mechanism. As Dr Goodheart conceded, the Stell Report is consistent with both a trauma to the median nerve at the cubital fossa and an inflammation of the median nerve. It is clear to me from the evidence I have summarised that whilst this disorder exists, the medical profession is still in the process of understanding its causes and symptoms.
In closing submissions, counsel for the plaintiff placed some weight on the fact that the plaintiff did not experience the usual profile of symptoms of inflammatory brachial plexopathy of:
(a)an acute onset of severe shoulder pain lasting days to weeks which eventually subsides (which did not occur);
(b)as the pain subsists, the subsequent development of weakness and sensory loss (the plaintiff says it was immediate); and
(c)recovery within 18 months (the plaintiff still experiences symptoms).
In relation to point (b), I have found that, aside from the tingling which was non‑specific and predated the insertion of the cannula, the plaintiff's weakness and sensory loss did arise gradually. Further, the research provided to me and Dr Silbert's clinical experience is that inflammatory brachial plexopathy may arise without initial significant shoulder pain, it may arise in relation to one nerve only and something like 5% of patients experience recurrent attacks [368]. Dr Silbert gave evidence that he sees 'a very large number of patients' with inflammatory brachial plexopathy (ts 572). The fact that Dr Goodheart is yet to see someone clinically with the plaintiff's symptom profile, or regards it as unlikely, does not undermine the clinical experiences of his peers.
As I have set out above, from the Stell Report, the highest point up the arm at which the median neuropathy could have occurred was the point at which the median nerve emerges out of the mass which is the brachial plexus and becomes a distinct nerve. Dr Silbert's evidence, supported by the research he annexed to his reports, was that inflammatory brachial plexopathy could occur in a single nerve. Dr Goodheart accepted this point in cross-examination.
On the symptom profile of inflammatory brachial plexopathy I prefer the evidence of Dr Silbert as it is more consistent with the research provided. Dr Goodheart's analysis of the symptoms is based on what might be termed the usual profile of symptoms. However, the plaintiff's symptoms fit within recognised exceptions to the usual profile of symptoms, which appear to arise in 5% or so of cases.
Further, the evidence before me is that the plaintiff previously had two episodes of brachial plexopathy (neurological issues in her brachial plexus), albeit that the second episode cannot be described as inflammatory brachial plexopathy (see [162], [167], [172] and [241]). Dr Silbert's evidence, which I accept, and the research provided, was that 5% or so of patients experience recurrent attacks. I also accept Dr Silbert's clinical experience that a patient who has had two episodes of brachial plexopathy is much more likely to have a third episode.
The sixth factual issue is that the plaintiff's evidence of her symptoms is not consistent with injury to the median nerve alone. The plaintiff's symptoms included a 'stinging tingling' extending from the elbow (site of the cannulation) coming down her forearm, diagonally across the inside of her arm to her wrist, and then to her thumb and index finger. She also experienced a burning pain across the back of her fingers. This pain, she said, commenced within a few minutes of the cannulation and has continued to the present day. The physiotherapists notes in mid 2007 record weakness of both index and middle finger extension. Dr Schwenger's evidence of her ongoing symptoms since the beginning of 2007 is to the same effect.
The plaintiff described to Dr Goodheart in 2008 difficulty in extending her index finger, which is innervated by the radial nerve, as is the middle finger.
Dr Silbert and Dr Stell said that the burning sensation experienced by the plaintiff across the back of her hand does not involve the median nerve, but the radial nerve. Dr Goodheart said that this is not necessarily the case.
In his report of 4 March 2011, Dr Goodheart states that he did not find 'clinical evidence to suggest that the neurological symptoms in November 2006 extended outside the territory of the median nerve' (page 2). However, he does not appear to been told about the burning pain across the back of the fingers, and the forearm issue was described as 'tingling' not a 'stinging tingling'. His opinion thus does not appear to me to have been based on the facts which I have found. Accordingly, I prefer the opinions of Dr Silbert and Dr Stell on this issue.
Dr Silbert's evidence was that the stinging tingling in the plaintiff's forearm, up to the cannulation site, would involve the medial antebrachial nerve, which comes off the ulnar nerve. Dr Goodheart accepted in cross‑examination that the burning sensations on the back of the hand continuing up into the forearm itself 'makes it less likely that one is dealing with an isolated median nerve problem' (ts 526).
For these reasons, I prefer Dr Silbert's opinion that the existence of symptoms in different nerve systems is strongly suggestive of an inflammatory process. Dr Stell's evidence was in similar terms.
As I have noted above [331], the relevant harm was the symptoms experienced by the plaintiff following the insertion of the cannula and the median neuropathy identified in the Stell Report. On the factual findings which I have identified, and for the reasons I have set out above, I prefer the opinions of Dr Goodheart and Dr Raftos that this harm was not caused by a direct needle stick injury.
This leaves two conflicting inferences as to the cause of the relevant harm:
(a)the needle causing a haematoma which either compressed the median nerve or compressed the blood vessels supplying the median nerve; or
(b) inflammatory brachial plexopathy.
On the factual findings which I have identified, and for the reasons I have set out above, I prefer the opinion of Dr Silbert over those of Dr Goodheart and Dr Raftos, that it is more likely that the harm was caused by inflammatory brachial plexopathy. I observe that even if I was satisfied that the two conflicting inferences were of equally probability, that would not have been sufficient for me to make a finding on the balance of probabilities, as the choice between them would have been a matter of conjecture: Luxton v Vines[1952] HCA 19; (1952) 85 CLR 352, 360; Nominal Defendant v Owens (1979) 22 ALR 128, 132; Executive Director of Health v Lily Creek International Pty Ltd (2000) 22 WAR 510 [62]-[66], [76], [77]; Fazio v Fazio [2012] WASCA 72 [13], [14], [48]. In that scenario, the following observation of Dixon, Fullagar and Kitto JJ in Luxton in the context of a motor vehicle accident would be apposite (360):
Any answer that you give to such questions is a guess. All lies in conjecture. The fact is that whatever reasons you can find for one explanation of the accident, reasons of equal sufficiency or insufficiency exist for other explanations.
The circumstances give rise to nothing but conflicting conjectures of equal degrees of probability and no affirmative inference of fault on the part of a driver of a motor car can reasonably be made.
For these reasons, the plaintiff has failed to establish that the manner in which the cannula was inserted was a 'necessary condition of the occurrence of the harm' which I have identified. The inflammatory mechanism identified by Dr Silbert did occur notwithstanding that the cannula was inserted in accordance with competent professional practice.
Even if I had disregarded the first factual finding (as to the manner of insertion of the cannula), the remaining five factual issues would still lead to the conclusion that the plaintiff has failed to prove that the manner in which the cannula was inserted was a necessary condition of the occurrence of the harm.
The remaining issue is whether, as a matter of common sense, the defendant's fault materially contributed to the plaintiff's harm. Again, the six factual issues I have identified above mean that the plaintiff has not established, as a matter of common sense, that the manner in which the cannula was inserted caused the plaintiff's harm. The same conclusion would follow even disregarding the first factual issue (as to the manner of insertion of the cannula).
The plaintiff did not direct me to any other 'established principle' for the purposes of CLA s 5C(2) against which I should assess causation.
I therefore also find that the plaintiff has failed to prove a breach of duty of care on the secondary argument identified in the report of Dr Raftos (see [323] above).

Provisional assessment - impact of the median nerve injuries

Lifestyle impacts

I have summarised the restrictions which the plaintiff has in her lifestyle as a result of her medical issues [74] and [75]. Before proceeding to provisionally assess damages, it is necessary to ascertain which of these restrictions are due to median nerve injuries and which are due to other non‑compensable causes.
The balance of neurological evidence before me was that (see [417] – [421]):
(a)the burning sensation across the back of the plaintiff's right hand does not involve the median nerve, rather the radial nerve;
(b)the stinging tingling in the plaintiff's right forearm is not related to a median nerve injury, as it involves the medial antebrachial nerve, which comes off the ulnar nerve; and
(c)the hand tremor was not caused by any injury to the median nerve and is more likely to reflect psychological factors (ts 560, 613).
I accept this evidence and find that none of these symptoms is causally related to a median nerve injury.
The symptoms which can be tied back to median nerve damage are primarily weakness of grip in the thumb and index finger and pain and altered sensation in the thumb and index finger.
It is also apparent from the plaintiff's evidence and that of Dr Schwenger that she has a number of other ongoing medical issues, which I have summarised at [176] and [266] above.

Pyschiatric issues

The plaintiff pleaded that she has, and continues to suffer from, an adjustment disorder with depressed moods, as well as a panic disorder. She called Dr Stephen Proud, a psychiatrist, to give evidence in support of her claim. Dr Proud saw the plaintiff on 31 March 2010 and provided her lawyers with a report of the same date. The report was tendered in evidence, and Dr Proud gave oral evidence.
Dr Proud reported the symptoms described by the plaintiff as follows:
(a)constant burning paraesthesias in the median distribution of her right arm and forearm;
(b)she cannot oppose the right thumb and index finger;
(c)the index finger is resting in a straightened position;
(d)the grip strength in the right hand is reduced;
(e)she was very embarrassed about the reduced functioning in her right hand, particularly the 'shakes' she gets in that hand when it is outstretched.
The plaintiff also told Dr Proud that she:
(a)has withdrawn socially because of the embarrassment about the tremor in her right hand;
(b)is quite irritable with people;
(c)cannot read for long as she used to because of the tremor, the pain of her glaucoma and her reduced concentration; and
(d)cannot walk much because of her back pain.
Dr Proud diagnosed the plaintiff as having an adjustment disorder with depressed mood. He also diagnosed the plaintiff with a panic disorder in remission. Dr Proud was of the opinion that the adjustment disorder is a result of the damage from the procedure on 28 November 2006, though he stated that he assumed that the cannulation is the cause of the median nerve damage. He said that the panic disorder and panic attacks first antedated this procedure and therefore have no relationship to it, but that the embarrassment about her right hand could aggravated her panic.
In oral evidence, Dr Proud said that an adjustment disorder with depressed mood is halfway between a severe depression and what people would not call a psychiatric illness. The patient has some stress, gets sad from it and the sadness interferes with her functioning, but it is not at the level where the patient might want to commit suicide or cannot get out of bed. The depressed mood component means there is an element of sadness in the patient's response to the situation.
In cross‑examination, Dr Proud accepted that:
(a)an adjustment disorder is a slightly abnormal reaction to some life stressor;
(b)the plaintiff has had a significant number of stressors in the past;
(c)there are limitations in coming to a diagnosis based on a one‑off review; and
(d)the plaintiff's symptoms were not sufficient to take her to the level of having a major depression.
In relation to the plaintiff's psychiatric condition, I find that the plaintiff has panic disorder, but this is not causally linked to any median nerve damage. I find that the plaintiff suffers from an adjustment disorder, with depressed moods. The issue is whether this is causally linked to the median nerve damage. Dr Proud seems to assume that all of the burning paraesthesias experienced by the plaintiff is related to the median nerve. However, I have found that the burning pain in her forearm and across the back of her fingers is not related to median nerve damage, nor is the tremor, glaucoma and back pain. Further, the plaintiff has had a significant number of other stressors in her life.
The totality of the evidence does not support the factual foundation on which Dr Proud bases his report. A significant cause of the adjustment disorder appears to be the hand tremor and the consequent public embarrassment, which is not causally related to median nerve damage. Given the extent of the plaintiff's other medical issues, including the non‑compensable nerve related pain in her hand and forearm, I find that it is likely she would have suffered the adjustment disorder even had she not injured her median nerve.
The net result is that I am to provisionally assess damages on the basis that, had the fault not occurred, the plaintiff would still have suffered an adjustment disorder and a panic disorder.

Provisional assessment – general damages

The assessment of general damages for non-pecuniary loss in this case is governed by the CLA Pt II, Div 2. Non pecuniary loss is defined in CLA s 9(4) to mean pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. By CLA s 9, the amount of general damages is subject to limits. The limits apply if the amount of non-pecuniary loss is assessed to be less than $70,500 (being the sum of the current amount A and amount C).
In Houlahan v Pitchen [2009] WASCA 104, Newnes JA (with whom Pullin and Miller JJA agreed) stated [107] in the context of the assessing general damages under the CLA:
The principle to be followed in assessing damages is that the amount of damages must be fair and reasonable compensation for the injuries received by the plaintiff and the disabilities caused, having regard to current general ideas of fairness and moderation: Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, 125. The amount must be proportionate to the situation of the particular plaintiff. While the court is entitled to refer to earlier cases for the purpose of establishing the appropriate award in the proceedings (s 10A, Civil Liability Act), it is not a proper approach to endeavour to extract from the amounts awarded in earlier cases some norm or standard and to determine the award by reference to that: Planet Fisheries (125).
There are three factors which tend to suggest that a modest award of general damages is appropriate.
The first is that the plaintiff suffers from a myriad of other medical issues. These issues are such, and have been such that since 1988 the plaintiff has been on a disability pension. From the records of Dr Schwenger, it is apparent that the plaintiff has complained of, and sought treatment for, a wide range of medical issues, which I have summarised at [176] and [266] above.
The second is that not all the symptoms in the plaintiff's right arm and hand are able to be causally connected to damage to the median nerve (see [431] above).
The third is that, compared to her many other health issues, the plaintiff has made minimal complaint to Dr Schwenger about her right arm and hand issues and had sought minimal treatment for them.
There are three factors tending to suggest that something more than a modest award is appropriate.
The first is that the plaintiff has experienced pain, altered sensations and weakness in her arm since November 2006. The prognosis is that these symptoms having continued to date, will continue indefinitely. The medical evidence was that the plaintiff's condition will not improve for the foreseeable future. No treatment will assist in improving the plaintiff's right arm symptoms. The focus of management by Dr Schwenger is now on symptom control.
The second is that the plaintiff is now unable to undertake many simple activities of daily life. This includes a doing up a button or clip, using a knife, holding a cup of coffee, serving food and holding a book. These are caused by the median nerve issues as they depend on her being able to grip with her thumb and index finger. I have set out at [74] and [75] above the activities which she is unable to do.
The third is that since around the beginning of 2009, the plaintiff's friends and family have not been able to give her the assistance that they were able to do in the past. This has meant that some of her needs for assistance have gone unmet. This includes assistance with cleaning and cooking. All of this has had a consequent negative impact on her amenity and enjoyment of life.
Having regard to current general ideas of fairness and moderation, I consider that a fair and reasonable compensation for the injuries received by the plaintiff and the disabilities caused is an award of $40,000 by way of general damages.
By CLA s 9, the amount of general damages is subject to limits. Inserting the current figures for 'Amount A' and 'Amount C', it relevantly provides that if the amount of non‑pecuniary loss is assessed to be more than $17,500 but not more than $53,000 for the year in which the amount is assessed, damages for non‑pecuniary loss are not to be awarded in an amount that is more than the excess of the amount assessed over $17,500. The award of general damages is thus reduced to $22,500.

Provisional assessment – gratuitous services

General principles

A plaintiff who, as a result of negligently caused injuries, becomes in need of services may recover damages for the value of the services rendered to her gratuitously by friends and family members: Griffiths v Kerkemeyer[1977] HCA 45; (1977) 139 CLR 161, 168, 173, 192. The compensation is for the plaintiff's incapacity to look after herself as demonstrated by the need for the services provided to her: Griffiths 192; Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, 333; Newman v Nugent (1992) 12 WAR 119, 120, 122, 126. The award of damages under this head is subject to the over-riding requirement that the component attributable to this head 'will be scrutinised against the test that the total verdict must be reasonably proportionate to the magnitude of the loss suffered by the plaintiff': Hodges v Frost (1984) 53 ALR 373, 381; Newman, 129.

In determining the compensation payable, the court first determines what services are required to satisfy the plaintiff's need resulting from the defendant's wrong and then determines the value of those services: Van Gervan, 338.
In relation to the first question, 'the services must have been reasonably required by the plaintiff because of [her] physical condition attributable to the accident': Griffiths, 164. In particular in relation to future services, it is necessary for the plaintiff to establish that as a result of her median nerve symptoms, it has become necessary for her to receive paid assistance directly referable to her personal needs: Robinson v Riley [1971] 1 NSWLR 403, 408; Brocx v Mounsey [2010] WASCA 196 [1], [98], [112].
As it is only the plaintiff's needs that may be the subject of compensation, it follows that the plaintiff is not entitled to damages under this head for her inability to provide domestic and household services for benefit of her household communally or for other specific family members: Lawson v Flavel [2001] WASCA 272 [1], [39], [47]; Newman 123, 129. A plaintiff may, however, be compensated for loss of enjoyment that he or she may suffer from being unable to provide household services to his or her family. This is allowed for in the award of general damages: Newman, 129.
Both at common law and under the CLA, no damages are to be awarded for the services, if the services would have been, or would be, provided to the person even if the person has not been injured: CLA s 12(2); Newman, 129.
In determining needs of the plaintiff, the relationship between the plaintiff and the person providing the service needs to be considered. In the words of Brennan J in Van Gervan, 340 ‑ 341:
The assessment of damages, though governed by principles which are calculated to provide the plaintiff with full and fair compensation in respect of the needs created by the tortious infliction of injury, is necessarily imprecise. It is impossible to quantify with any pretence at precision the net benefit to an injured plaintiff of the company and minor services that he or she would have enjoyed by reason of the personal relationship between the plaintiff and the care provider or to put a value on the company and services which the plaintiff would have provided to the care provider by reason of their personal relationship if the plaintiff had not suffered the injury. In my view, the only way to take this factor into account is this: it is appropriate to omit from the list of services to be paid for by the defendant some of the time spent or some of the minor services rendered by the care provider to the plaintiff where those services would have been provided in any event as an incident of an antecedent personal relationship between them, provided the plaintiff is able to offer services to the care provider in return. If the plaintiff is unable to offer services to the care provider in return, but some pecuniary allowance would be fair compensation to the care provider for the plaintiff's failure to do so, the plaintiff should recover as damages a capital sum representing that allowance — assuming that sum does not exceed the market value of those services provided to the plaintiff by the care provider. The allowance, if any, to be made in respect of this factor may not admit of precise calculation.
(This passage was adopted by Ipp J in Newman, 129).
In relation to the second question, as a general rule, the reasonable and objective value of the services needed is ordinarily the market value of the services: Van Gervan, 333. Where the services are provided by 'a member of the same household or family' as the plaintiff, CLA s 12 sets limits on the rate at which gratuitous services may be claimed. For present purposes, that rate was agreed at an average rate of $22.50. The application of CLA s 12 can prove problematic in a case like the present one in which the services are provided by both household and family members, and other friends. However, the parties did not suggest a different rate for services provided by friends, so I am content to use the same rate for both.
The CLA also provides that if the amount awarded for gratuitous services by family or household members does not exceed $6,000, then no damages are to be awarded for the services: CLA s 12(3).

Past gratuitous services

The plaintiff summarised the level of assistance provided by the various people who provide assistance as follows:

Person

Level of assistance

Transcript

Patricia Smith

15 to 16 hours per week from Nov 2006 to Jan 2009

94

3-4 hours per week from Jan 2009 to Mar 2012

94

Michael Smith

3 hours per week for 4 years

96

Jacob Bailey

2 hours per week for 4 years

97

Debra Svilicich

4 years at 1 per week or per fortnight

98, 317

2 years at 2 to 3 hours per month

98, 318

Tameeka Howarth

4 hours per week for 3 months

454

6 hours per months for 2 months

454

Karen Robinson

30 mins per week for 4 years, 2 months

467

1 hour per week for 4 years, 2 months

467

The plaintiff submitted that averaging out the differences in evidence between the plaintiff and the witnesses, the total average of all providers was $87,580 at the agreed rate of $22.50.
The defendant challenged the lay evidence of the assistance given to the plaintiff on the basis that it was exaggerated. The submission was that if the accounts of each witness who had provided assistance to the plaintiff in the first two years were combined, they would give rise to an inherently implausible level of assistance.
The evidence of the plaintiff as to what she cannot do and what she has difficulty doing was not in my view undermined by cross‑examination. I accept the plaintiff's evidence on this point, as set out in [74] and [75]. However, it is apparent from the evidence that the current limitations being experienced by the plaintiff are due to a combination of the plaintiff's median nerve symptoms, non‑compensable right arm and hand issues [431], pre‑existing injuries (in particular her back) and her other medical conditions [266], [441] – [442].
My sense of the evidence of both the plaintiff and the lay witnesses she called was that there was an element of exaggeration, reconstruction and inherent unreliability of evidence regarding the extent of the assistance provided to the plaintiff. In particular, I treat the estimates of the time they spent assisting the plaintiff with caution. I am also conscious of the fact the lay witnesses are friends of the plaintiff, with a natural and understandable desire to assist her cause in the litigation. That being so, I am nonetheless satisfied that Ms Smith, Ms Svilicich, Ms Horwath and Ms Robinson each genuinely did their best to recall the events in issue and to make considered estimates of the not inconsiderable assistance they provided to the plaintiff.
Taking all this into account, the weight of evidence nonetheless supports a conclusion that following the issues with her right arm and hand arising in late November 2006, the plaintiff received considerable assistance from her friends and family. This included tasks such as:
·Brushing her hair
·Getting dressed, in particular with buttons, clips and zips
·Sweeping
·Vacuum cleaning
·Washing and wiping dishes
·Cooking
·Making cups of tea or coffee
·Driving
·Shopping
Other tasks did not get done, in particular gardening and, in more recent times, cleaning.
This evidence is consistent with the evidence of Dr Beinhart as to the kinds of tasks he would have expected the plaintiff to have required assistance with.
The second conclusion that emerges from the weight of the lay evidence is that the help the plaintiff has been provided with seems to have reduced after the beginning of 2009. Each of the lay witnesses called seemed have had to devote time to issues in their own lives. The plaintiff has also made adjustments to her life to reduce the need for assistance, for example, by not wearing clothing with buttons, clips or zips.
The third conclusion that emerges is that the standard of cleanliness of the plaintiff's house and her personal appearance has declined after the beginning of 2009. The plaintiff does not appear to have been able to make up for the reduction in the assistance provided to her by her friends and family. The different lay witnesses who commented on the cleanliness of the plaintiff's house, both before November 2006, and in more recent times, all did so in highly descriptive language. To my mind, this added a ring of authenticity and reliability to their descriptions which is not suggestive of collusion.
In looking at the level of services reasonably required by the plaintiff as a result of her median nerve symptoms, I am also conscious of the need to distinguish between services provided to meet the plaintiff's needs and services provided to meet the needs of the household communally or other members of the household (in particular the plaintiff's son and grandson). This is difficult to apply in practice as tasks like preparing a family meal or cleaning the living room floor are done equally for the benefit of the plaintiff and other members of the household at the relevant time. I have also taken into account the extent to which the plaintiff and her friends may have mutually assisted each other regardless of the plaintiff's median nerve symptoms.
Doing the best that I can, an allowance of an average of one hour per day for the services provided by friends and family since 28 November 2006 seems to be an appropriate allowance. This averages out the fact that more assistance seems to have been provided earlier on, and less later. This leads to an assessment of $45,517.50:
1 hour per day for 7 days at $22.5 per hour is $157.50 per week
289 weeks between 28 November 2006 and 20 June 2012
$157.50 x 289 = $45,517.50
I allow interest on past gratuitous services at the average rate of 3%, as follows:
5.56 years x $45,517.50 x 3% = $7,578.66
I therefore allow past gratuitous services at $7,601.
This gives a total award for past gratuitous services of $53,118.
This is above the threshold of $6,000, so may be awarded as damages.

Future services

The issue of the plaintiff's future care needs was considered by Dr Beinart in his report dated 17 February 2009. The plaintiff's then current symptoms as recorded by Dr Beinart were consistent with her evidence at trial. Dr Beinart estimated that the plaintiff would require two hours of assistance per day. He did not consider that the plaintiff's needs will change for the foreseeable future.
The issue of the plaintiff's future care needs was also considered in the report of Bennu International Consultancy dated 25 September 2010 ('Bennu Report'). This was prepared by Ann Lee and Jan Bishop, both of whom gave evidence, and both of whom are nurses specialising in the provision of care and rehabilitation services. The Bennu Report included a list of aid and appliances which are said to benefit the plaintiff. This head of damages was ultimately the subject of agreement, which I note below.
The limitations recorded in the Bennu Report are again consistent with the evidence given by the plaintiff at trial. The Bennu Report elaborates that, in relation to cooking, the plaintiff cannot cut up vegetables or lift pots off the stove or out of the oven or open cans, and that the plaintiff cannot lift shopping bags, so requires assistance with shopping.
Ms Lee and Ms Bishop concluded that the plaintiff required 14 hours per week from a 'multi-skilled carer'. Ms Lee confirmed that the 14 hours a week was purely due to problems the plaintiff had with her right arm. Ms Lee described a multi-skilled carer as a 'carer that can help her with her personal hygiene, help clean the house, do the washing, help her prepare meals, take her shopping, things like that' (ts 255). Ms Bishop described a multi‑skilled carer as 'a person who can clean, who can do personal care, who can do shopping, who can do banking, rather than just doing caring or domestic work' (ts 333).
Ms Bishop gave evidence that a multi‑skilled carer from an agency might provide services to a round of clients, for example, an hour in the morning, and then an hour in the afternoon, to three clients. The ability to do this was one reason why Ms Bishop recommended that the plaintiff be provided with assistance though an agency. She gave four other reasons why she has a clear preference for engaging carers through an agency:
(a)reliability, in particular as another person can be sent if the primary carer is unavailable;
(b)agency staff will be appropriately trained, including in their own occupational health and safety;
(c)agency staff will have police clearances; and
(d)agency staff will be insured.
As to the future, on the evidence before me, I find that for the foreseeable future, the plaintiff will require assistance with tasks she cannot do ([74] above) or has difficulty with [75].
To my mind, these tasks go beyond what one could expect family members to do spontaneously from time to time. This is evidenced by the fact that since around the beginning of 2009, these tasks have not been done with the consequence that the cleanliness of the plaintiff's house has deteriorated as has her personal appearance.
The plaintiff is entitled to be put in the position (as far as money can do it) as if she had not had sustained an injury to her median nerve. With full use of her right hand and arm, she would have been able to:
(a)look after all her personal hygiene and appearance needs;
(b)dress herself in the clothes of her choice, not limited to clothes she is able to easily put on;
(c)wash, dry and iron her clothes;
(d)clean her house;
(e)look after her garden;
(f)cook herself meals; and
(g)go shopping.
Counsel for the defendant pointed out that these tasks were not really suited to assistance in a two hour or so block in a day. I agree. However, Ms Bishop gave evidence that this is not an uncommon situation for a person requiring assistance. As I have set out above, it is quite possible for an agency assistant to have a 'round' in which he or she does two one hour sessions a day.
The defendant submitted that, to the extent that the plaintiff requires assistance in the future, it will be for heavy house work, which does not require the services of a professional agency. I do not agree. The assistance required includes personal tasks such as assistance with fingernails and brushing hair. It also includes assistance with cooking. It requires the services of the type of 'multi‑skilled carer' described by Ms Lee and Ms Bishop.
Both Dr Beinhart and the Bennu Report estimate the plaintiff will require two hours a day assistance. This appears to be based on the premise that all the plaintiff's right arm symptoms are attributable to the injury to the median nerve.
The difficulty arises in trying to attribute the plaintiff's incapacities between compensable and non‑compensable right arm symptoms, in the context of her other medical conditions. In my view, this difficulty precludes any analysis based on a set number of hours per week. Taking into account the factors I have set out above, a global award of $50,000 is appropriate for the provision of future services for the plaintiff as a result of her median nerve injuries.

Provisional assessment – other heads

Aids and appliances

The parties agreed that, if the plaintiff's claim on liability and causation was successful, the value of aids and appliances that would benefit her symptoms amounts to $17,500. I provisionally assess damages for aids and appliances in this amount.

Past and future medical expenses

The parties agreed that, if the plaintiff's claim on liability and causation was successful, the appropriate award for past and future medical expenses, inclusive of interest, is $1,000. I provisionally assess damages in terms of this agreement.

Loss of earning capacity

In the particulars of damages, the plaintiff made a global claim for damages for loss of earning capacity. Her counsel did not press this claim at trial. This concession is understandable given that the plaintiff has been on a disability pension for since 1988 and remains so. I make no allowance for loss of earning capacity.

Summary of findings

The plaintiff has failed to establish on the balance of probabilities that any employee of the defendant breached their duty of care to her in the manner in which the cannula was inserted into her right arm at SHED on 28 November 2006. I therefore dismiss her action and give judgment to the defendant.
In the event that I am wrong in this finding, I provisionally assess damages as follows:

General damages

$ 22,500

Past gratuitous services

$ 53,118

Future gratuitous services

$ 50,000

Aids and appliances

$ 17,500

Past and future medical expenses

$ 1,000

Total

$144,118

I will hear from counsel as to costs.

Person	Level of assistance	Transcript
Patricia Smith	15 to 16 hours per week from Nov 2006 to Jan 2009	94
Patricia Smith	3-4 hours per week from Jan 2009 to Mar 2012	94
Michael Smith	3 hours per week for 4 years	96
Jacob Bailey	2 hours per week for 4 years	97
Debra Svilicich	4 years at 1 per week or per fortnight	98, 317
Debra Svilicich	2 years at 2 to 3 hours per month	98, 318
Tameeka Howarth	4 hours per week for 3 months	454
Tameeka Howarth	6 hours per months for 2 months	454
Karen Robinson	30 mins per week for 4 years, 2 months	467
Karen Robinson	1 hour per week for 4 years, 2 months	467

General damages	$ 22,500
Past gratuitous services	$ 53,118
Future gratuitous services	$ 50,000
Aids and appliances	$ 17,500
Past and future medical expenses	$ 1,000
Total	$144,118