Mann v Flinders Medical Centre No. Scgrg-96-2351 Judgment No. S236

MANN & ORS v FLINDERS MEDICAL CENTRE

[1998] SASC 236

Civil

LANDER J The male plaintiff was born on 25 April 1956 and he married his wife, the female plaintiff, on 4 May 1974. The third plaintiff is a company incorporated in the State of South Australia of which the male and female plaintiffs are shareholders and directors.
The defendant is a body corporate and a government hospital within the meaning of the South Australian Health Commission Act 1976 and as such offered to provide and held itself out as offering and providing medical, surgical and other treatment for members of the public who might require the same.

The Claims

The plaintiffs bring this action for damages arising out of the admission of the first named plaintiff into the care of the defendant on either 3 or 4 January 1994. The plaintiffs claim that the defendant owed a duty of care to the first plaintiff and was in breach of that duty of care in that specifically it failed to notify the male plaintiff and or his general practitioner of a micro biology report which indicated that at the time that he was admitted into the care of the defendant a blood sample collected from him on 4 January 1994 had grown staphylococcus aureus.
It is claimed that because of the defendant’s failure to discharge its duty of care the male plaintiff suffered a life threatening injury as a result of which he has suffered considerable pain and suffering; a loss or diminution in his earning capacity, has developed a need for assistance and care; and has a reduced life expectancy.
The female plaintiff claims damages because of the injury and illness suffered by her husband, which has deprived and will continue to deprive her of his society and service with respect to social, domestic, sexual and economic duties. She also claims that she is entitled to damages by reason of her husband’s inability to participate in the conduct of a business “P J & P D Mann”.
The third plaintiff claims to be entitled to damages as a result of the loss of the services of the male plaintiff in his capacity as managing director/supervisor and fencing erector.
The defendant denies any breach of the duty of care but further denies that if there was any breach of a duty of care it did not cause the losses which the plaintiffs claim.
Put shortly the claim is about hospital negligence and whether that negligence was causative of the male plaintiff’s present condition and if so whether that entitles the female plaintiff and the third plaintiff to damages in addition to the damages to which the male plaintiff might be entitled.

The Male Plaintiff’s History

The male plaintiff left school when he was fifteen having achieved second year high school. He immediately commenced work with a fencing company and was taught how to erect brush fencing. He then obtained employment with another fencing contractor and was taught and learnt the art of building brick fences.
He married the female plaintiff in May 1974, and after their son was born in July 1975, he and the female plaintiff and their child travelled around Australia. On his return to Adelaide he commenced work for a third fencing company. He remained there for two years and then for the next nine years worked with a fencing company, C R Rowett, which during the time of his employment was taken over by another fencing company, ARC.
In July 1987 the male plaintiff commenced working for himself. At that time he and his wife entered into a partnership trading under the name of P J and P D Mann. The partnership carried on the fencing business until 1992, even though the third plaintiff, The Fence Specialist Pty Ltd, had been incorporated in 1987. In the financial year ended 1992 the third plaintiff bought the fencing business from the partnership. The partnership retained some assets, being cars and trucks, which it leased to the third plaintiff, The Fence Specialist Pty Ltd.
After that time, the male plaintiff acted as the managing director and supervisor of the third plaintiff. It was his energies and abilities which provided the third plaintiff with its source of income. The female plaintiff worked for the third plaintiff but to a significantly lesser extent.
In 1987 the third plaintiff tendered for and obtained the fencing contract with the Australian Grand Prix in Adelaide. Between 1987 and 1995, which was the last occasion on which the Grand Prix was staged in Adelaide, the third plaintiff acted as the fencing contractor for the Grand Prix.
The third plaintiff also carried on other business for other major events conducted in Adelaide and indeed out of the State. For three years in the late 1980’s the third plaintiff acted as the fencing contractor for the Motorcycle Grand Prix event at Eastern Creek in New South Wales. The male plaintiff lived for six months in Sydney and six months in Adelaide for those years. The third plaintiff acted as fencing contractors erecting temporary fences at major events up until 30 June 1996. The third plaintiff also acted as sub contractor for other larger fencing companies in erecting permanent fences.
I will return to the profitability of the business in due course.
In late 1993 it was announced that the Grand Prix event would not be staged in Adelaide beyond 1996 and probably not beyond 1995. It was the male plaintiff’s evidence that but for the events which occurred he would have tendered for the position of fencing contractor for the event in Melbourne. I will return to that.
In 1984 the male and female plaintiffs had purchased a vacant block of land of about five acres at Aldinga. They entered into a contract with a builder to build a house on the property. The male plaintiff assisted in the construction of the house. He did as much work as possible to keep the costs down.
After the completion of the house, which is a four bedroom house of about twenty-four and a half squares, the male and female plaintiffs set about improving the property. They fenced the whole of the property and internally fenced five acres to keep horses on the property. The female plaintiff has an interest in carriages and carriage horses. They planted 300 trees. They erected a tennis court, installed a pool, erected a number of sheds, yards, and stables.
They built a garden from nothing. The garden has won two awards. A number of photographs were tendered showing the amount of work that the male plaintiff and to a lesser extent the female plaintiff have done about the property. There is no doubt that the property is now most impressive and has been considerably improved by the efforts of the plaintiffs.
The male plaintiff’s evidence was that he would either work in his business or at home throughout the daylight hours. He worked, he said, seven days a week. I accept that he did a considerable amount of work on this property. The photographs bear that out.
The horses, I think, were mainly the interest of the female plaintiff but the male plaintiff assisted in their care. It was he who purchased, loaded and carried bales of hay to the property. It was he who transported the horses for the female plaintiff when she competed in carriage competitions.
I gather the impression from his evidence that the male plaintiff did as much work as possible to save himself the expense of employing labour unless he believed that he could make a better income out of his business. In those circumstances he would employ labour around the house. An incidence of that approach is in relation to lawn cutting. The lawns on the property were cut by a lawn mowing service and had been for ten years before this claim arose.
I find that the male plaintiff worked hard in his business and displayed considerable energy. I believe that he and the female plaintiff shared the paperwork, which was not great, but that otherwise he was the motivating force behind the business.
I accept his evidence that he did what he could to minimise the costs in the business. He attended to the maintenance of the vehicles to keep overheads down. I accept his evidence that in his business, like in his personal business, he would do anything that he was able to do for the purpose of minimising expense.
I find that as at December 1993 that the male plaintiff was a person in good health who was active and energetic in his business and had been successful. There was the very real prospect at that time, because of Adelaide’s loss of the Grand Prix event, that the plaintiffs’ business would suffer but as at December 1993 that was a long time away. The female plaintiff described her husband as being very fit and energetic. The description she gave of him was of a person who drove himself in his business. He was, in her words, very “robust, active and a healthy person”. He would not rest. I accept both the first and second plaintiff’s evidence in relation to the fitness and activities of the male plaintiff prior to his illness. I find, in particular, that he was robust, fit and healthy. I also find that he was very active in the business of the third plaintiff and it was his drive and determination which had led to the achievements that had been made by the third plaintiff.
I also accept that he had made a significant contribution to the improvement of the house and property on which the first and second plaintiffs live. I accept that his efforts saved some costs in the building of the house. His efforts played a significant part in the establishment and maintenance of the garden. I also accept that he had played a significant part in the establishment of the sheds and stables on the property. There is no doubt that his efforts had significantly improved the capital value of the property which had been purchased.

The Female Plaintiff’s History

The male plaintiff was 18 and the female plaintiff 20 when they married in 1974. They have had two children - a boy and a girl now both in their 20s. In 1979 the female plaintiff suffered her first attack of what has been subsequently diagnosed as agoraphobia, which is a psychological condition that can be debilitating. The female plaintiff described it as a condition which gave rise to feelings of intense fear and sheer panic. The condition can prevent a person having any active social life. Many people who suffer from agoraphobia have very great difficulty going outside the house.
The female plaintiff has either a lesser form of the condition or has by her own will been able to overcome it.
However, she does suffer fear and panic when she goes out of the house. She cannot go out of the house without being accompanied by another person. She is able to drive to her mother’s house, which is about one and a half kilometres away, but only if she knows that her mother will be home when she arrives.
There is no doubt that the condition has had a substantial effect on the female plaintiff’s life. It must also have had a substantial effect on the male plaintiff’s life.
The female plaintiff also suffered an episode of depression in 1993 not long before her husband’s illness. The symptoms included crying and a choking feeling. She could not eat and she kept waking being short of breath.
She told Professor Goldney that at that time there had been financial problems; her brother had been involved in a motor vehicle accident; some pets had died; a close friend had died; her parents had become bankrupt and had “turned on us”; and her husband had difficulty coping with her crying.
Her general practitioner, Dr Henning, prescribed prothiaden for her depression.
Despite what she told Professor Gouldney in relation to her husband having difficulty with her crying, the female plaintiff’s evidence was that her husband was supportive of her in relation to the psychological conditions from which she suffered over the last 20 years. She told me that her marriage was one where she and her husband were co-dependent on each other and needed no-one else. I accept that evidence and find accordingly.
I believe that it is probably appropriate, at this stage, to say something about the male and female plaintiff and the witnesses generally.

The Witnesses

The male plaintiff was significantly less impressive as a witness than the female plaintiff. He tended to be smart and argumentative. He was not disposed to answer questions directly or succinctly. He refused to answer some questions because his answer would not tell the story. In some respects he was arrogant and in other respects bombastic. He gave the impression of being confident that he was always right.
I reminded him, on a number of occasions, that he would do his case a better service by answering questions directly. He would accept that rebuke and, for a short time, answer questions directly but after a little time he would revert to his former style.
I believe the male plaintiff exaggerated his disabilities. I believe he exaggerated his personality change and his claim that he was unable to deal satisfactorily with employees and clients. I believe he did so consciously in an endeavour to maximise his damages.
His behaviour may be caused by the psychological problems of which there is no doubt he suffers.
His wife indicated that he had suffered a significant change of personality after this operation. He has changed, she said, from a decent, pleasant person to a violent, aggressive and overbearing man. I have only seen him since his illness. Of course, he did not exhibit any signs of violence in the court although he certainly appeared to be aggressive and overbearing.
I have no doubt that the male plaintiff harbours deep resentment for the Flinders Medical Centre. For reasons which I will express shortly, I believe that is not an unreasonable reaction because I think he was dealt with badly by the defendant.
I believe that the male plaintiff is angry that his lifestyle has been so badly interfered with and that he is no longer fit to carry out the work of a fencing contractor or at least the physical work of that business. I believe that as a result of his illness, his change of lifestyle and his reduced life expectancy, the male plaintiff has become significantly frustrated and more difficult to deal with than he was prior to his illness.
All of those are matters which might affect the way in which the male plaintiff gave his evidence.
However that only explains why he gave his evidence in a particular way. It cannot make the evidence any better than it was. Unreliable evidence is always unreliable for whatever reason which may have caused the evidence to be unreliable. His evidence, in my opinion, is unreliable and must be discounted for exaggeration.
At first I was impressed with the evidence of the female plaintiff. I believed her evidence was much more reliable than that of her husband. I still believe that to be the case. However I do not believe her evidence can go without scrutiny. Having heard witnesses called on behalf of the defendant who gave evidence of the male plaintiff’s personality and behaviour subsequent to his illness, I think the female plaintiff’s evidence also contained within it a degree of exaggeration. It has nowhere near the degree of exaggeration that the male plaintiff’s evidence does but I think her evidence needs to be discounted to some extent for what might be an over embellishment of her husband’s symptomatology.
I have a good deal of sympathy for the female plaintiff. There is no doubt the illness of which she has suffered over the years has made her life difficult, particularly the social aspects of it. I think up until the time that her husband suffered his illness she was almost totally reliant upon him financially, emotionally and socially.
I think his illness must have had a serious effect on her own well being. His illness left him unable to provide the support that she had previously obtained from him and indeed required her to give him support. I think she has had to provide support in circumstances where she has a fragile personality herself.
I do not think she has had an easy time since her husband’s illness. I think he has been most demanding of her. She said in her evidence that he had been physically violent towards her. I accept that evidence.
Whilst, as I say, I am sympathetic towards the female plaintiff I cannot allow that sympathy to affect my judgment of the reliability of her evidence. Whilst, in general, I accept her evidence I discount her evidence for some degree of exaggeration.
The plaintiffs called other evidence from their family. Both the plaintiffs’ son and daughter gave evidence. They were as opposite as could be. In my opinion, the plaintiffs’ son, Shane Mann was a very good witness. I believe he gave his evidence in a straightforward manner without embellishment and therefore provided an accurate history relating to his father. I accept his evidence. The plaintiffs’ daughter, Kym Pagan, who subsequent to her father’s illness married Cameron Pagon and who was also called to give evidence, was a very poor witness. She has a number of the personality traits of her father. She was arrogant, smart and argumentative. She did not answer questions directly and she prevaricated. The only reason I can think as to why she might have given evidence in that way might be her immaturity.
However, it does not matter much why she gave her evidence in the way that she did. I do not accept her evidence unless it is corroborated in every detail by another witness who I am prepared to accept as reliable. In other words her evidence cannot be used to add any additional facts or material to that of any other witness.
Her husband was not a much better witness. I believe in a number of respects he misled me. He prevaricated on some aspects of his evidence. He showed himself to be entirely uncomfortable in relation to the topic of panels on which he was vigorously but fairly cross examined by Mr Anderson QC. He is another witness whom I am not prepared to accept unless his evidence is corroborated by some other witness.
The last witness called from the family was Ron Entwhistle. Mr Entwhistle is the husband of the male plaintiff’s mother and therefore the stepfather of the male plaintiff. The male plaintiff’s mother suffers from asthma. Mr Entwhistle previously was a fencing contractor, but his fencing business failed. He now receives a pension from the Commonwealth Government to act as his wife’s carer. It is assumed, I understand, that he will act in that capacity on a full time basis.
Except for Shane Mann, Mr Entwhistle was a more straightforward witness than any other member of the family. He did not exaggerate his stepson’s disabilities to the same extent as the plaintiffs and their daughter and son-in-law. Most of his evidence can be accepted. If there are any aspects of his evidence which I do not accept then I will address that matter separately.
The remaining evidence put before the Court by the plaintiff was medical and psychological evidence.
I must say I thought the medical evidence produced by both the plaintiff and the defendant was of a very high standard. I believe that the medical witnesses in this case did their very best to assist me in arriving at my determinations. I was particularly impressed by Dr Kneebone, a neurologist, Dr Smith, a microbiologist and Professor Goldney, a psychiatrist. I was also impressed by Dr Hii, who has been the cardiologist attending the plaintiff since about 22 January 1994, but because I was even more impressed by the cardiologist called by the defendant, Dr Mahar, I have not accepted his evidence in toto.
Mr Anderson, senior counsel for the defendant, asked me to find that the male plaintiff’s general practitioner Dr Henning was, to use his expression, “a barracker”. I think Dr Henning is most concerned for the welfare of the male plaintiff. There can be no doubt that he has a very close relationship with the male plaintiff and the female plaintiff. However, allowing for that matter, I thought Dr Henning did try to assist me in this matter and I do accept his evidence in the knowledge that the evidence was given in circumstances where Dr Henning has that close association with the male and female plaintiff. Mr Anderson also criticised Dr Henning for failing to refer the male plaintiff to the appropriate specialist for specialist care. Dr Henning has not referred the male plaintiff to either a neurologist or a psychiatrist. I must say, I was not convinced by Dr Henning’s explanation for his failure to refer the male plaintiff for specialist advice. I got the impression that Dr Henning thought he knew the answers without the need to obtain any assistance from anyone and, as a result, he had not referred the male plaintiff for specialist advice and treatment.

I think perhaps that Dr Henning should have referred the male plaintiff to both a neurologist and a psychiatrist. The male plaintiff was referred to Professor Goldney but those referrals were at the instigation of the plaintiff’s legal advisers. Professor Goldney wrote to Dr Henning advising of what he believed was an appropriate treatment regime for the plaintiff but Dr Henning did not take that advice and I think in that respect he may have been a little unwise. The male plaintiff was also later referred by his legal advisers to a neurologist Dr Kneebone. In any event none of that affects the quality of his evidence and I am prepared to accept him as a witness upon whom I can rely.
The other general practitioners called by the plaintiffs gave straightforward evidence which I accept.
Mr Anderson also criticised the evidence of two psychologists. He submitted that Ms Donaldson, who has been a psychologist treating both plaintiffs has done little to assist either of the plaintiffs over the period of time they were under her care.
I am not sure that that is right. I think Ms Donaldson has been used by Dr Henning to provide the plaintiffs with an emotional outlet. I think in that respect she has been useful. I think it is probable that but for her support and assistance both plaintiffs, for different reasons, would be less able and less functional than they presently are.
Mr Anderson was particularly critical of Mr Mark Reid, a neuro-psychologist, who also saw the male plaintiff at the instigation of the plaintiffs’ legal advisers. Mr Anderson submitted that Mr Reid had failed to adequately assess the male plaintiff’s mental condition, had assumed facts which ought not to have been assumed and had misdiagnosed the male plaintiff’s condition. Moreover, Mr Anderson was critical of Mr Reid in offering opinions for which he was not qualified to give. Those opinions related to Mr Reid’s belief that the male plaintiff suffers from organic brain damage as well as having a psychiatric overlay. Mr Anderson said that Mr Reid was not in a position to offer opinions relating to organic brain injury or psychiatric illness.
In those respects I disagree with Mr Anderson. I believe a neuro-psychologist is in a position to offer an opinion on whether a person suffers from organic brain damage. I think that is within the specialty of a neuro-psychologist, indeed it is a function of the specialty. A neuro-psychologist carries out psychological testing to determine whether or not a person suffers from psychological or psychiatric illness and in order to determine the root cause of that illness. It is part of a neuro-psychologist’s specialty, in my opinion, to determine the cause of the behaviour of the person undergoing testing. It is also in my opinion within a neuro-psychologist’s specialty to offer an opinion as to the cause of mental disorder. For example I think it is within the specialty of a neuro-psychologist to offer an opinion whether a person is suffering from depression and anxiety and whether or not that depression and anxiety is due to organic or inorganic causes.
In those circumstances I believe Mr Reid was qualified to offer the opinions which he did. However, in some respects, I was not impressed by Mr Reid’s evidence and in those respects I do not accept his opinion. Whilst I think he was qualified to offer his opinion I believe that his opinion was not supported by the assumptions upon which the opinion was based. I will specifically refer to Mr Reid’s opinion.
The defendant called four witnesses; one medical witness and three former employees of the plaintiffs.
Dr Mahar is a cardiologist who is head of the cardiology unit at the Royal Adelaide Hospital. Dr Mahar was an exceptionally good witness who gave his evidence in a straightforward and clear manner. There was not the slightest hint that he felt obliged to give evidence to support the side who had retained and called him. His evidence struck me as entirely reliable and I accept it in its entirety.
In some respects his evidence differed from that of Dr Hii. Where it does I prefer the evidence of Dr Mahar who, I believe, is better qualified, by way of both learning and experience, than Dr Hii. He was also more objective in the assessment of this plaintiff. The differences, however, between the two cardiologists were not great.
Three former employees of the plaintiffs, who were subpoenaed, gave evidence. Whilst I do not think all of their evidence was accurate and some of the evidence of each of them contained some factual inaccuracies I believe that all three of them attempted to assist me in this matter.
Miss Nelson QC cross examined each of the witnesses rather suggesting that they had a reason to give evidence unfavourable to the plaintiffs. However, I am not persuaded that any of them, had any such reason or that they did anything else other than try to assist me.
I shall refer to the factual inaccuracies in due course but in general I accept each of those witnesses as being witnesses of truth and therefore reliable.
The Injury And His Admission To Flinders Medical Centre
On 28 December 1993, the male plaintiff suffered a minor injury to his finger. The skin was broken but it did not bleed. He paid no attention to the injury. On 1 January 1994 he became quite unwell. He began to suffer a very bad headache and dizziness. He became nauseous. His general practitioner, Dr Rhys Henning attended him. On the next day he saw Dr Graham Lovell, a partner of Dr Henning and on the day following that day he saw Dr Aird, another partner of Dr Henning. In those three days he was quite unwell. He was perspiring so much that he soaked the bed. He mainly slept but woke when a doctor saw him. Eventually at the instigation of Dr Aird he was taken from his home by ambulance to the Flinders Medical Centre. When Dr Aird saw the male plaintiff he formed the opinion that his illness was possibly due to bacterial endocarditis.
Dr Aird wrote a letter for the hospital in which he described the male plaintiff as having presented with headache and vomiting and suffering a pyrexial illness for a period of three days.
In that letter he said:
“Again seen on Sunday given Pethidine, maxalon and Cilicaine for Heart Valve problem cover.
Today still with headache, and arthralgia, Vomiting.
O/E Temp 39oPR80 BP 130/80 dehydrated 5-7%.
No neck stiffness, pupils reactive but pinpoint in dark room
? codeine overdose.
Dual H.S chest clear abd. soft.
ENT -
A. PVO
Rx ? viral meningitis.
Could you assess thanks”
The heart valve problem is not insignificant. The male plaintiff suffered from a congenital malformation of a heart valve. His evidence was that he had seen Dr Sangster, a cardiologist in relation to that matter when he was about twenty years of age. He saw him again when he was twenty-one. The malformation had been asymptomatic until 1993.
It is not entirely clear on how many occasions and over what period the male plaintiff saw Dr Sangster.
The Flinders Medical Centre notes show “heart valve problem - followed by Dr Sangster for last 9 years”.
It is likely that that information was given to the hospital staff by the female plaintiff. The male plaintiff was not in a position to offer any history at the time of his admission to that hospital.
The Queen Elizabeth Hospital case notes record:
“Known ‘leaky heart valve’
since 28 y o (9 yrs) Dr Sangster.”
There was a further reference to a leaky heart valve since the age of 28 with the further endorsement “Watched only - No symptoms, very fit”.
It is not clear, of course, who gave the history to the doctor who admitted the plaintiff to the Queen Elizabeth Hospital. It may have been either the male plaintiff or the female plaintiff.
The case notes rather suggest that the male plaintiff had a greater involvement with Dr Sangster and over more recent times than his evidence discloses.
The plaintiffs tendered the male plaintiff’s general practitioner’s notes which showed that Dr Henning and his partners had cared for the male plaintiff since August 1986.
There is a reference in those notes to heart problems in September 1987 but otherwise the male plaintiff does not seem to have complained about any heart condition or been referred by that practice to Dr Sangster. The male plaintiff’s general practitioner’s case notes rather confirm his evidence that he had not in the recent past been subject to any recent investigation of heart problems. I would have expected that if the male plaintiff had had more recent involvement with Dr Sangster that Dr Henning’s case notes would show that involvement.
More particularly, if the male plaintiff had had ongoing difficulties with the leaky heart valve I would have expected to see some reference in Dr Henning’s notes.
Dr Sangster was not called, although he was presumably available to be called, by the plaintiffs. His absence means that I have an incomplete account of the plaintiff’s state of health prior to 28 December 1993. I must rely on the male plaintiff and the female plaintiff.
I do not think it would be appropriate to conclude that the male plaintiff had a more significant and more recent involvement with Dr Sangster than that deposed to by the male plaintiff and the female plaintiff, even though Dr Sangster was not called. The evidence contrary to the evidence of the male plaintiff and the female plaintiff is not strong enough to require the rejection of their evidence.
I therefore conclude that the male plaintiff had not been treated for heart problems since he was about twenty or twenty-one years of age.
The male plaintiff, however, did suffer from a leaky heart valve. The mitral valve leaked. That had been the case since he was twenty-one years of age and probably earlier. The leaking heart valve, however, was asymptomatic and was not a matter of concern to the male plaintiff to the point of time immediately before he became ill on 28 December 1993.
However, the fact that he suffered from a leaky heart valve made him susceptible to endocarditis and the events which followed.
Either before or at his admission to the Flinders Medical Centre on 3 January 1994 blood was taken by a doctor at Flinders Medical Centre from the male plaintiff for analysis but in particular for determining blood culture. That blood was delivered to the laboratory at the Flinders Medical Centre.
He was examined and admitted in the very early hours of 4 January 1994. At the time of admission the hospital was told that he had a heart valve problem and a mitral valve prolapse. That was noted.
The synopsis of his admission states:
“This thirty-seven year old man presented with fever, vomiting and flu like symptoms. He was febrile with a systolic murmur and some (L) basal crackles. CXR showed left basal atelectasis. He was started on ceftriaxone and erythromycin. He became a afebrile.”
The admission notes show that his wife told the admitting doctor that he had previously been seen by Dr Sangster and that he had been prescribed Cilicaine for the leaky heart valve. He was admitted, so the hospital case notes show, to await the blood cultures.
There can be no doubt, and I so find, that at the time of the male plaintiff’s admission, the defendant was aware that the male plaintiff suffered from a leaky heart valve. Moreover, the defendant took a sample of the male plaintiff’s blood to test for inter alia bacterial infection.

Jane Waye Lesions

Miss Nelson QC, senior counsel for the plaintiff, in opening the plaintiff’s case, said that when the male plaintiff was admitted to the Flinders Medical Centre, the female plaintiff noticed he had dark spots on his toes. She said that there was no note of that symptom in the Flinders Medical Centre case notes. However, it was her intention to lead evidence from medical experts that the condition which the female plaintiff observed is known as Jane Waye Lesions and the presence of those lesions indicates golden staph (staphylococcus) and ensuing complications.
It was not suggested that the female plaintiff had informed the hospital of the presence of those lesions but, in opening, it was put that the presence of those lesions were available to be seen by the hospital staff.
In due course, the female plaintiff gave that evidence, not in evidence in chief, but in cross examination.
She did say that when her husband was undressed and placed on a barouche that she saw he had dark spots on his toes. However, she also said that she mentioned the presence of those blotches to the registrar or the doctor who was in casualty.
She later said that her husband said at that time:
“Look at my toes. I’m going mouldy.”
In cross examination, Mr Anderson suggested to the female plaintiff that she did not see any lesions of the kind when her husband was admitted to Flinders Medical Centre. He suggested to her that she had invented the observation of this symptom to improve her husband’s case against the defendant.
The parties’ position then was that the plaintiffs opened on the basis that the female plaintiff had made such an observation and the defendant’s case was that it was an invention.
In due course, the parties reversed their positions. Miss Nelson addressed me in due course that the Jane Waye Lesions were “a red herring”. It was put by the plaintiffs that it was unlikely that the female plaintiff had observed Jane Waye Lesions at all.
On the other hand the defendant argued, notwithstanding the cross examination of the female plaintiff, that her evidence on this topic should be accepted and that she was truthful when she said she had seen Jane Waye Lesions at the time the male plaintiff was admitted to the Flinders Medical Centre.
I shall return to that topic after a discussion of the male plaintiff’s admission to the Queen Elizabeth Hospital.

Discharge from The Flinders Medical Centre

The male plaintiff was discharged at 12:35pm on 5 January 1994. The case notes show that he was well, afebrile, his chest clear and his pulse rate was 80. The notes disclose that “patient really wants to go”. He was discharged on a course of erythromycin, a penicillin based antibiotic. No discharge summary was sent to his general practitioner at discharge. Dr Hemming received a copy on 10 March 1994, more than two months later.
When he was discharged, the Flinders Medical Centre was still considering the blood culture. The notes show that on 4 January 1994 there was a suspicion that he was suffering from staphylococcus and that on 5 January 1994 a provisional diagnosis of staphylococcus was made and on 6 January 1994 the diagnosis was confirmed. On that date the blood culture show growth of staphylococcus aureus from both bottles after twelve hours incubation. [P5]

The Defendant’s Breach Of Duty Of Care

It is admitted by the defendant that the blood cultures did show staphylococcus aureus.
On the first day of trial it was further admitted that the defendant failed to notify the first plaintiff and/or the first plaintiff’s general practitioner of the micro biology report which indicated that the blood sample collected from the male plaintiff on the fourth day of January 1994 had grown staphylococcus aureus.
That admission, which the evidence supported, and which was rightly made, is enough to establish a breach of duty of care on the part of the defendant.
It could not be sensibly argued that the defendant did not have a duty of care to the male plaintiff. The duty of care not only included a duty to advise him of the results of the micro biology report but moreover, the defendant had a duty of care to the male plaintiff to advise the male plaintiff’s medical practitioners of that report.
It was a matter of considerable importance that the male plaintiff and his medical practitioners be aware of the results of that micro biology report. It was even more important in this case because the male plaintiff suffered from a leaky heart valve.
It is well known that persons who suffer from such a congenital abnormality are at a greater risk of serious medical harm in the event that they contract staphylococcus aureus.
Not only did the defendant fail to advise the male plaintiff and his medical advisers of the matters to which I have referred the defendant should not have allowed the male plaintiff to be discharged. The defendant should have kept him in hospital and put in place the appropriate treatment regime.
For a person who is suffering from a staphylococcus aureus, which the male plaintiff was, and who had a history of a heart valve problem he should have been treated from 4 January as though he was suffering from bacterial endocarditis. A treatment regime should therefore have been put in place by aggressive treatment with intravenous antibiotics. An appropriate antibiotic therapy would have been flucloxacillin and gentamycin.
Both of those antibiotics would have attacked the bacteria in the male plaintiff’s blood and lessened the chance of vegetations forming. A person who has a heart valve problem and who contracts staphylococcus is at serious risk of contracting bacterial endocarditis. Bacterial endocarditis leads to the growth of vegetations which can attach to the leaky valve. Those vegetations then may dislodge and travel through the blood stream causing an interruption or blockage of blood (infarct) to the vital organs of the body. Bacterial endocarditis is an aggressive and life threatening condition which must be treated quickly and energetically. The risk of a person with a heart valve problem who has contracted staphylococcus of suffering bacterial endocarditis is so great that the patient should be treated as if the condition has been contracted before any diagnosis has been made. In other words, preventative treatment should be put in place immediately.
The defendant, in fact, offered no treatment except to discharge the male plaintiff on a five day course of ethromycin. Whilst ethromycin would have had some effect on the bacteria circulating in the male plaintiff’s blood it was not sufficient, by itself, when taken orally, to amount to an appropriate treatment.
The defendant was aware at the time of the male plaintiff’s admission that the male plaintiff had a leaky heart valve. It took a sample of his blood which showed that he had contracted staphylococcus. The defendant should have diagnosed that the male plaintiff was either then suffering bacterial endocarditis or was at serious risk of suffering bacterial endocarditis. Whether he was at the time suffering from bacterial endocarditis or not, he should have been treated as if he was.
In my opinion, the defendant was guilty of a breach of the duty of care it owed to the plaintiff and was guilty of negligence. Its failure was to properly diagnose the condition from which the male plaintiff suffered and to put in place an appropriate regime of treatment.
Because of those failures the male plaintiff was inappropriately discharged from hospital with inadequate treatment as a result of which his health deteriorated.
In those circumstances the defendant’s negligence has been established.

Post Discharge From Flinders Medical Centre

The male plaintiff’s evidence was that he did not feel well when he left Flinders and remained unwell until he was admitted to Ashford Hospital.
The male plaintiff was discharged from the Flinders Medical Centre on 6 January 1994. He has little or no memory of his admission to the hospital and his time in hospital. He does not remember the circumstances of his discharge except that he had a conversation with a person in a white coat.
He believes the only change in his condition between his admission and his discharge was that the vomiting and diarrhoea had ceased at the time of his discharge.
After his discharge he still felt unwell even though he took the tablets which had been prescribed for him by the hospital. At no time did he feel any better.
He continued to see Dr Henning about his condition. He had pain in his chest and his ribs and he felt as though he could not breathe. He underwent x-rays. On one day he tried to work but he could not.

Eventually Dr Henning referred him to a general surgeon, Mr Karatassas, who arranged for him to have a CAT Scan. He had the CAT scan the next day and immediately afterwards he was taken to the Queen Elizabeth Hospital. The female plaintiff did not want him to be admitted to the Flinders Medical Centre.

Admission To The Queen Elizabeth Hospital And Jane Waye Lesions

The male plaintiff remembers his admission to the Queen Elizabeth Hospital where he underwent further tests. I have already referred to some of the history taken from the male plaintiff and the female plaintiff at the time of admission into Queen Elizabeth Hospital. At the time of admission to that hospital one or both of them advised the admitting doctor that he had small black spots on his toes.
The Queen Elizabeth Hospital case notes show an entry at the time of admission:
“At FMC had small black spots at toes came on (?) (splinter haemorrhages)”
There is a further note in the Queen Elizabeth Hospital notes in the following form:
“Presented to FMC with febrile illness 3/52 ago.
(L) UQ pain, pleuritic pain, malaise and rigors, black spots on toes. + ve blood cultures for staph aureus also complaining of headache and photophobia, some neck stiffness.”
The hospital case notes, in my opinion, are unambiguous. Either the male plaintiff or the female plaintiff reported to the Queen Elizabeth Hospital that the male plaintiff had had black spots on his toes at the time of admission to the Flinders Medical Centre.
When the male plaintiff was admitted to the Queen Elizabeth Hospital neither the male plaintiff nor the female plaintiff could possibly have known that the male plaintiff was suffering from bacterial endocarditis. No medical practitioner had made that diagnosis at that time. Neither could have known that a rare symptom of such a condition is Jane Waye Lesions.
In my opinion, the Queen Elizabeth Hospital case notes confirm the evidence given by the female plaintiff that she did observe, at the time of the male plaintiff’s admission to the Flinders Medical Centre, that he was suffering from black spots on his toes which may be described as Jane Waye Lesions or, if not Jane Waye Lesions, splinter haemorrhages.
I am therefore prepared to accept, as Miss Nelson opened, that the female plaintiff made the observation referred to in that opening, ie that she observed dark spots on the male plaintiff’s toes.
However, the Queen Elizabeth Hospital case notes also show that at the time that he was admitted to that hospital there was no sign then of Jane Waye Lesions on the toes. At the time of admission it is reported that there were no obvious splinter haemorrhages although later that day the hospital case notes disclose “small splinters L fingers”.
In conclusion, therefore, in my opinion, when the male plaintiff was admitted to the Flinders Medical Centre he did have black spots on his toes and the probabilities are that those black spots were caused by bacterial endocarditis. In other words, the male plaintiff was at the time of his admission to Flinders Medical Centre already suffering from bacterial endocarditis.
At the time of admission to the Queen Elizabeth Hospital, a preliminary diagnosis was made that he had a bacterial endocarditis probably associated with staphylococcus.
He remained in the Queen Elizabeth Hospital for about two days and was then transferred to Ashford Hospital for a transoesophageal echocardiogram and for management of the bacterial endocarditis. Whilst he was in the Ashford Hospital he was generally under the care of Dr Hii, a cardiologist, who has continued to care for him since that time.
Both at the Queen Elizabeth Hospital and the Ashford Community Centre cannulas were put into his veins and he was given intravenous antibiotics. He said that he noticed an immediate improvement in his health.

Admission To Ashford Hospital

The staphylococcus infection is a cause of endocarditis. Endocarditis is a bacterial disease which produces vegetations which gravitate to any weak spot in the body. A person who has a leaking heart valve and who contracts endocarditis is at risk of vegetations attaching to that leaking heart valve. Once vegetations grow on the heart valve there is a real risk that an embolus will be caused by a piece of the vegetation breaking away and travelling in the bloodstream and blocking an artery or a vein which will deprive the structure of the body, subsequent to the embolism, of blood. There is no doubt that in due course that in fact occurred with the male plaintiff and he suffered a number of embolisms.
The male plaintiff underwent a number of examinations in the Ashford Hospital some of which, he said, were particularly painful. I accept his evidence in relation to that.

Cardiac Surgery

In due course the male plaintiff was spoken to by Mr John Knight, who is a cardiac surgeon.
The male plaintiff said that he was in bed, having just finished lunch, when Mr Knight came in and told him that he would have to undergo surgery immediately. Mr Knight told the male plaintiff that he would give him a course of injections to ensure that his lunch had passed so that the surgery could take place immediately. The male plaintiff then said that he was prepared for surgery by the hospital staff.
The urgency was occasioned by the vegetations breaking away. The male plaintiff had suffered splenic and renal infarcts secondary to the emboli.
The infarcts and the prospect of further infarcts caused by further vegetation dislodgments were a real threat to the male plaintiff’s life.
The male plaintiff did undergo urgent valve replacement surgery for infective endocarditis on 28 January 1994. At the time that the surgery was carried out he had a large vegetation on the atrial leaflet of his mitral valve. At the same time he had a positive blood culture for staphylococcus aureus.
The effect of all that was that as at 28 January 1994 the male plaintiff had a growth on his mitral valve which, as I have already found, was before this illness a leaky valve. That growth was caused by the staphylococcus aureus which had not been treated by the Flinders Medical Centre. The growth was producing emboli which were travelling to different parts of his body including his spleen and his kidney. The emboli were causing infarcts, that is blockages of blood vessels supplying those organs.
The size of the vegetation and the emboli detaching from that vegetation made heart surgery extremely urgent.
The surgery consisted of the replacement of the mitral valve with a 33mm St Jude mechanical prosthesis. Mr Knight removed the vegetation which proved to be sterile indicating that the antibiotics had successfully attacked the bacterial infection. Blood cultures were also sterile. The male plaintiff was continued on a course of intravenous flucloxacillin and gentamycin therapy and with oral flucloxacillin for a further three weeks after that time.
About two weeks after surgery, Mr Knight reported that the surgery had been straightforward and that the male plaintiff had made a good post operative recovery. He was discharged from the Queen Elizabeth Hospital on 11 February 1994 and returned home with the female plaintiff.
Whilst Mr Knight believed, shortly after the surgery had taken place, that the male plaintiff had made a good post operative recovery, unfortunately that was not the case.

The Male Plaintiff’s Heart Attack

The male plaintiff did not make a good recovery from the cardiac surgery and continued to suffer from persistent shortness of breath. Dr Hii performed a further echorcardiogram which showed that the main pumping chamber of the heart was significantly enlarged. It was Dr Hii’s opinion, having regard to the extent of the cardiac dilatation, that the male plaintiff had suffered a heart attack of some significance.
The probabilities are, in my opinion, that the male plaintiff did suffer a heart attack at or about the same time as the surgery was carried out. Dr Hii’s opinion was that the heart attack was caused by an embolism detaching from the vegetation on the mitral valve. Dr Mahar, in his report, said:
“Because of continuing chest pains he had an angiogram late last year which showed one artery was completely blocked (this probably happened peri-operatively presumably due to embolisation from his vegetation on the mitral valve) and one other blockage of 80-85%.”
In my opinion the male plaintiff did suffer an infarct at or about the time of the operation which was due to the detachment of an embolus from the vegetation. That heart attack has left the male plaintiff with a significantly enlarged heart and congestive heart failure.
I accept the evidence of Mr Knight that the surgical replacement of the mitral valve with the prosthesis did not carry with it any medical complications. The plaintiff’s debility and disabilities are now caused, not by the surgical replacement of the mitral valve but rather by an infarct which he suffered due to an embolus detaching at or about the time of the cardiac surgery. He now suffers from congestive heart disease which has been caused by that infarct.
I will return to the plaintiff’s progress after discharge from the Ashford Hospital but it would be as well to determine the issue of liability at this point.

Liability

As I have already found the defendant was in breach of its duty of care to the male plaintiff in failing to diagnose the male plaintiff’s medical condition and in failing to properly treat him in relation to that condition.
The defendant, however, has put forward two arguments in relation to the question of liability, both of which are causation arguments.
First, it argued that the male plaintiff had a predisposition to heart problems. Not only did the male plaintiff, it was submitted, suffer from a leaky heart valve, he also suffered from obesity, possibly a pre-existing atheroma and had a predisposition to coronary artery disease.
There is no doubt that the plaintiff did have a leaky heart valve but that of itself did not predispose the plaintiff to anything except perhaps some risk of endocarditis. Dr Hii’s evidence was that there are a lot of people who suffer from leaky heart valves which, in the main, are benign. A leaky heart valve might cause some shortness of breath on exertion or if the leakiness is quite mild it may not give rise to any symptoms whatsoever. A leaky heart valve does not give rise to any loss of expectation of life or any shortened life span.
Obesity, so Dr Mahar said, does not of itself predispose people to coronary artery disease. It predisposes people to high blood pressure and diabetes, both of which can lead to coronary heart disease. The male plaintiff, however, does not suffer from hypertension or diabetes. In those circumstances any excess of weight has not predisposed him so far to heart problems.
It was also put that the male plaintiff was at risk in regard to coronary artery disease. It was put that the male plaintiff’s father had died of myocardial infarction at the age of sixty that his uncle, that is his father’s brother, died of myocardial infarction at the age of fifty-seven, that his grandfather died of abdominal aortic aneurism, that his mother suffered from arrhythmia and that that familial history predisposed the plaintiff to coronary artery disease.
Dr Hii acknowledged that the history to which I have just referred was significant and suggested that the male plaintiff’s family had a history of coronary artery disease which might suggest a genetic make up which might predispose the male plaintiff to coronary artery disease.
The difficulty with the submission is that, in my opinion, the assumptions upon which the submission is made were not proved.
Apparently the male plaintiff’s father was a heavy smoker which may have predisposed him to coronary artery disease. He was also a heavy drinker. The male plaintiff has never smoked or drank. It was suggested in evidence that the male plaintiff’s uncle not only did not die of myocardial infarction but was not dead at all. Nothing was proved in relation to the male plaintiff’s grandfather’s condition of abdominal aortic aneurism.
Apart from the genetic factors which the defendant pointed to in cross examination which, as I say, were not established, there were no other factors in the opinion of Dr Mahar pointing to a predisposition to coronary artery disease.
I am not prepared to find that the plaintiff had a predisposition to coronary artery disease.
A predisposition to coronary artery disease, which if made out, would be relevant to damages, but would only be relevant on liability if I concluded that in fact the infarct which Dr Hii and Dr Mahar have diagnosed happened independently of the endocarditis and the infarcts caused by the endocarditis.
In other words, it would have to be established that the male plaintiff suffered the heart attack quite independently of the endocarditis. The argument fails because I do not believe that the male plaintiff had such a predisposition. In any event, I am of the opinion that the male plaintiff’s heart attack, namely the infarct, was directly caused by part of the vegetation detaching from the leaking valve.
It follows, therefore, that I find that the plaintiff, prior to the illness which he contracted on 28 December 1993, was a fit man with a leaky heart valve which of itself was asymptomatic and which did not predispose him to coronary artery disease but did mean that he was at a greater risk to suffer endocarditis and the complications from that disease than someone without a leaky heart valve.
The second matter advanced by the defendant also related to the question of causation.
The defendant argued that, even if it is accepted that the defendant was in breach of its duty to the plaintiff, the male plaintiff has suffered no loss and therefore, of course, derivatively the other plaintiffs have suffered no loss, because the male plaintiff would have suffered the same symptomatology and required the same treatment which he ultimately obtained at the Ashford Hospital and would have been left with the same sequelae.
In support of that submission the defendant argued that it was likely that the male plaintiff was already suffering from endocarditis at the time of his admission to the Flinders Medical Centre. That, the defendant submitted, was demonstrated by the fact that when he was admitted the female plaintiff observed Jane Waye Lesions on his toes. Jane Waye Lesions are caused by emboli detaching from vegetation and travelling to the feet and hands. The presence of those lesions established, so it was submitted, that the plaintiff was already suffering from endocarditis. Therefore, it was put, the plaintiff was already at risk at the time of admission. Thirty per cent of people who suffer from endocarditis, even if properly treated, die. Fifty per cent of those who do not die, even if also properly treated, are at risk of requiring surgery of the kind which the male plaintiff underwent. Therefore, it was submitted, the probabilities are that the male plaintiff would have had to have undergone the surgical treatment which he underwent at the Ashford Hospital at the hands of Mr Knight, in any event, and would have required a mitral valve replacement and would be left with the same disabilities as he presently suffers.

Jane Waye Lesions?

I am satisfied that the female plaintiff did observe black spots on the male plaintiff’s toes at the time that he was admitted to the Flinders Medical Centre. As I have already said, I think her evidence in that respect is corroborated by the entry in the Queen Elizabeth Hospital case notes. However, the question is whether the spots were Jane Waye Lesions caused by emboli which had detached from vegetation on the mitral valve.
The female plaintiff’s evidence in relation to her observation was:
“XXN
Q...... Dr Aird was the one, I think, who admitted him to hospital. They were present when Dr Aird came, were they.
AI didn’t dwell on them.
Q...... Did you observe them at the time that Dr Aird examined your husband.
ANo.
Q...... Did you see them on your husband at or about that time, that is either before, sometime before Dr Aird came.
AYes.
Q...... How noticeable were they. How many were they.
AI didn’t count them. They were just like little bruising patches.
Q...... How many, was it 10, 20.
AI didn’t count them.
Q...... Can you give us an idea.
AI’m sorry I can’t.
Q...... How big were they.
AThey sort of came out from the nail; I suppose like a little mole that - with a broken edge like a melanoma type mole.
Q...... How big.
AI didn’t measure them.
HIS HONOUR
QThe size of your little fingernail.
A...... No, I think they were smaller than that.
XXN
Q...... What colour were they.
AA bluish colour.
Q...... And over what part of the foot; what was the area they covered on the foot.
AAround the toe nails.
Q...... On how many toes.
AI didn’t count them.
Q...... On more than one toe.
AYes, on more than one.
HIS HONOUR
QYou first noticed them when your husband said what he said to you ‘Look at my toes, I’m going mouldy’ or something like that.
A...... Yes.”
Dr Mahar, who has practised as a cardiologist for twenty years said that in his time he has only seen Jane Waye Lesions on one or two occasions. They are extremely rare. The description given by the female plaintiff was put to him and he was asked whether that description was consistent with Jane Waye Lesions. He thought not. He said that Jane Waye Lesions were usually associated with the palm of the hand, the fingers or the soles of the feet. He would not have expected to find Jane Waye Lesions on the toes.
He also doubted that the female plaintiff had seen Jane Waye Lesions because Jane Waye Lesions are usually associated with endocarditis of fairly long standing that is of some weeks. He also believed that the Jane Waye Lesions were usually not associated with an acute aggressive organism such as staphylococcus aureus. He believed that Jane Waye Lesions would usually be associated with an organism such as streptococcus viridans which is less aggressive and gives rise to longstanding endocarditis.
He believed that staphylococcus aureus is such an aggressive and virile organism that it does not produce endocarditis of longstanding. Therefore, ordinarily, it would not give rise to Jane Waye Lesions because the death of the patient would take place in the meantime.
If I was to accept Dr Mahar’s evidence then it is likely that if the female plaintiff did observe spots on the toes she did not observe Jane Waye Lesions.
Dr Hii also said that Jane Waye Lesions were very rare and were usually associated with a long standing untreated case. He also said that Jane Waye Lesions were usually not associated with staphylococcus endocarditis. He said:
“Staph endocarditis is an acute infection - is an acute life threatening infection. Jane Way Lesions (sic) is effected with less virulent organisms where you get chronic endocarditis, what we call sub-acute chronic endocarditis. So when you are trying to put Jane Way lesions (sic) into someone with staph endocarditis, I find it first of all it does not fit in, because one appears in a chronic stage the other one is an acute illness. It makes you ill, very ill, it is not a chronic illness. Staph endocarditis is not a chronic illness.”
I put to him the following question and the answer, I think, demonstrates the difficulty facing both him and Dr Mahar:
“HIS HONOUR
Q...... I think Mr Anderson is asking you to assume he was suffering from the disease that was ultimately diagnosed, which was staph endocarditis. Also assume if you wouldn’t mind, that he suffered a cut to his finger on 28 December 1983, also assume that he was admitted, which you know him to the (sic) admitted to the Flinders Medical Centre on 3 January, and assume if you wouldn’t mind that Jane Way (sic) lesions were observed on his feet at the time of his admission. In those circumstances Mr Anderson is saying is it not the case that surgery was inevitable.
AI have never faced a situation like this where I have to assume all these sorts of things. If I assume that he did have Jane Way (sic) lesions, in other words, he had the infection that had gone on for a very long period of time, and he had the sort of vegetations that we saw I think the chance of him having surgery would obviously be higher.”

The question that I posed illustrates the difficulty that both of the medical practitioners had. Whilst they accepted that the Jane Waye Lesions were a product of some form of endocarditis they could not accept that the Jane Waye Lesions were a product of an endocarditis caused by staphylococcus aureus. That is because staphylococcus aureus is so virulent that it is likely to kill the patient before it causes Jane Waye Lesions. Indeed Dr Hii made the point of distinction in answer to a question from Mr Anderson:
“Q.... I understand that. That’s ultimately what the considerations were which led to the surgery. But I am saying that if on 3 January there were Jane Way (sic) lesions and as a result of the endocarditis being present for some time, then at that stage even though you had to make your assessment later to do the surgery, it was inevitable from then on that there would be surgery. You said something before about a high chance, I am just putting to you that it was inevitable.
AIf you are talking about staph endocarditis, I just find it very hard to marry the two together.”
On the evidence of Doctors Mahar and Hii the probabilities are that whatever the female plaintiff observed they were not Jane Waye Lesions.
The plaintiff called Dr Smith, who is a pathologist and a microbiologist, but who practices mainly as a microbiologist. His evidence was that black spots on the toes were indicative of Jane Waye Lesions which are caused by vegetations coming off the heart valve and lodging in smallish blood vessels in the small arteries immediately under the skin.
Neither counsel suggested to Dr Smith that the condition was somewhat rare and usually unassociated with staphylococcus aureus and more likely to be associated with streptococcus viridans. Dr Smith’s evidence, therefore, was not examined in any detail.
On this aspect I prefer the evidence of Dr Mahar and Dr Hii who, within their practice, have the responsibility of making clinical observations of persons suffering endocarditis. Dr Smith is a microbiologist although as I have said qualified as a pathologist. He does not have the clinical experience which Dr Mahar and Dr Hii have.
I am not prepared therefore to find on the balance of probabilities that the spots that the female plaintiff observed on the male plaintiff’s toes were Jane Waye Lesions.
I am not prepared to find that at the time that he was admitted to the Flinders Medical Centre that the staphylococcus aureus had developed to the extent that a vegetation had grown on the mitral valve and was already causing the discharge of emboli to the smaller arteries in the feet.
I am not able to say whether, at the time of admission to the Flinders Medical Centre, the male plaintiff’s condition had progressed to that extent.
I do, however, have no difficulty in finding that at the time of admission to the Flinders Medical Centre, the male plaintiff’s condition had not progressed to the extent that it had at the time of admission to the Queen Elizabeth Hospital and the Ashford Hospital when cardiac surgery was carried out.
There is no suggestion that at the time of admission to the Flinders Medical Centre that, if the male plaintiff was then suffering from endocarditis which had given rise to an accumulation of vegetation on the mitral valve, any of the emboli had detached and caused embolisms in the spleen and the kidney as was unquestionably the case at the time of admission to the Ashford Hospital and probably the Queen Elizabeth Hospital. If the spots which were viewed by the female plaintiff were the product of emboli then the emboli which was then detaching was significantly less in size and in quantity than was detaching at the time he was admitted to the Queen Elizabeth Hospital and the Ashford Hospital.
The male plaintiff was untreated except for the oral course of erythromycin which had been prescribed by the Flinders Medical Centre.
It is probably the case that most people untreated, as the plaintiff largely was, would have died by the time that this plaintiff was admitted to the Queen Elizabeth Hospital. Notwithstanding the lack of appropriate and adequate treatment, he did not die.
When the plaintiff was admitted to the Queen Elizabeth Hospital and later the Ashford Hospital he made a significant recovery from the staphylococcus aureus. He responded almost immediately to the intravenous antibiotics which were administered at those two hospitals such that at the time the cardiac surgery was carried out by Mr Knight the vegetation and the blood cultures were both sterile.
Dr Mahar said, in a report of 29 April 1997 (D106):
“If Mr Mann had been retained in the Flinders Medical Centre in January 1994 and given intravenous antibiotics this may have foreshortened his illness and perhaps prevented urgent valve replacement but it is by no means certain. Staphylococcus aureus endocarditis is a very serious illness with 30 percent mortality even in the best hands. Early aggressive antibiotic therapy and perhaps surgery is important in its treatment but does not necessarily guarantee a perfect outcome. Because the organism is so destructive the majority of these cases end up having valve surgery.”
Dr Mahar qualified that opinion in a second report of 20 November 1997. He said:
“Even if appropriate treatment had been administered as soon as the blood cultures became positive, there was always a chance of valvular damage ultimately requiring valve replacement or systemic embolisation from vegetations. In this case his symptoms were probably lessened by the antibiotics that he was given about that time, but recurred, of course, because the antibiotic treatment was not appropriate or prolonged enough for staph aureaus endocarditis.
To answer your second question, there is no doubt that the longer the delay in diagnosis and the institution of appropriate therapy, the more damage is likely to occur because staphylococcus aueraeus is a very destructive organism. Also the longer the delay in appropriate treatment the larger the vegetations on the valve are likely to become and increase the risk of subsequent emobilisation (in this case probably causing is peri-operative myocardial infarction).”
I accept the opinion of Dr Mahar. There was always a possibility that, even if appropriately treated, the male plaintiff might have suffered valvular damage which may have required heart surgery. If appropriately treated, of course, that heart surgery would have occurred significantly earlier than it did. It would have taken place in circumstances where the male plaintiff would have undergone an appropriate regime of intravenous antibiotics and the vegetations which accumulated on the valve were likely to be less and therefore the risk of subsequent emobilisation and therefore the risk of peri-operative myocardial infarction significantly less.
That all seems to me, with respect, to be sound. One cannot discount the possibility that he may have had to have undergone open heart surgery to replace the mitral valve. That was a possibility.
There was the further possibility, however, although the possibility was extremely remote, in my opinion, that if he had undergone that surgery within a short time after his admission to Flinders Medical Centre that he would also have suffered a myocardial infarction. However, if he had had the surgery shortly after his admission to Flinders Medical Centre the vegetations attaching to the mitral valve would then have been smaller and less likely to give rise to emboli as a result of which the prospects of a myocardial infarction would have been significantly less.
There is no doubt that by the time the male plaintiff underwent surgery at the hand of Mr Knight he was suffering significant emobilisation. The emboli had attacked the spleen and the kidney and in fact had attacked the heart itself. If he had been appropriately treated at Flinders Medical Centre and undergone surgery at that hospital it would have been at a time when the emboli had not attacked the spleen or the kidney and therefore the prospects of a myocardial infarction would have been significantly less.
I cannot rule out the possibility that he may have had to have undergone open heart surgery to replace the mitral valve with a prosthesis and the remote possibility that he might have suffered a myocardial infarction peri-operatively but I find that on the probabilities that if he had been appropriately treated at the appropriate time he would have recovered from the staphylococcus aureus endocarditis without the need for operative procedure and without suffering a myocardial infarction.
It is probably enough, from the plaintiff’s point of view, that I simply find that he would not have suffered a myocardial infarction. It is the myocardial infarction which is the cause of his present disabilities. It is the infarction which has given rise to the congestive heart failure. It was not the operation to replace the mitral valve which had caused his present disabilities.
Dr Mahar’s oral evidence at TX 1670 - 1672 was consistent with the qualification contained in his second report:
“Q.... Mr Mann, on the other hand, cut his finger on 28 December, was admitted to hospital on 1 January, had some oral Erythromycin for no more than a week, and was admitted to the Queen Elizabeth Hospital on 22 January having had no other treatment and operated on, I think, on 28 January. (NOT ANSWERED)
HIS HONOUR:
......... He had a course of antibiotics, didn’t he, from the Flinders Medical Centre?
MR NELSON:
......... I said that; oral Erythromycin for no more than a week.
XXN
Q...... That history would indicate that he was certainly capable of fighting this disease, because he survived such a long time without appropriate treatment.
AYes.
Q...... Doesn’t that tell you that his chances of a successful cure without surgery were higher.
AI can’t say that. I think what it tells me is that he is very lucky.
HIS HONOUR:
QThe fact, though, that he went without treatment for such a long period of time -
A...... Yes.
QWhen he was suffering from what must be a debilitating illness might suggest, might it not, that he would have been able to make a recovery from endocarditis if he had been properly treated on 3 January without the inception of surgery.
A...... Yes, it is certainly a very reasonable proposition.
QThe very length of time he went untreated, perhaps, suggests he had a capacity, as Ms Nelson puts it to you -
A...... To fight infection.
QTo fight it spontaneously.
A...... Yes.
XXN
Q...... I suggest to you that proposition is reinforced if you accept that when he was admitted to Queen Elizabeth Hospital on 22 January, he was commenced on intravenous Flucloxacillin and Gentamicin, and by 26 January his blood was sterile.
AYes.
Q...... Does that indicate that he responded very quickly to intravenous antibiotics.
ANo, I don’t think that the blood being sterile - the blood probably would have been sterile - the blood cultures would be sterile very quickly after any form of antibiotics and this is why, if I can refer back to an earlier question that one of you asked “Do you start antibiotics immediately when someone comes in?’ and I think it’s very important - I think you, Ms Nelson, asked me - it’s very important to try and establish a diagnosis and if someone comes in with a febrile illness, that could be due to anything. It’s very important to get positive blood clots before treatment. Once treatment is initiated, it is sometimes very difficult to grow things from the blood cultures.
Q...... Be that as it may, the antibiotics had the effect of killing off the organism.
ANo, I beg to differ. The (sic) kill off of the organisms circulating in the blood, but they don’t necessarily kill off the organisms that settle on the heart valve.
Q...... No, I accept that, but the progress of the disease is such that the organism starts by circulating in the blood, and then it starts to lodge in parts of the body.
AYes.
Q...... So the quicker you treat it and remove it from the blood, the less likely you are to have vegetation lodging in parts of the body.
AI accept that, but it doesn’t mean to say that that disease is cured because suddenly you can’t grow anything from the blood cultures.
Q...... No, I accept that, and I wasn’t really putting that. What I was really suggesting was that this man did respond very quickly to intravenous antibiotic treatment. The chances are if he had had that on 3 January, he had a good chance of being cured without surgery, wouldn’t he.
AHe may have had a good chance but it is still a very aggressive illness.
HIS HONOUR
QThe probabilities are.
A...... The probabilities are, the earlier he had the treatment the better.
QYou say that in the second report, don’t you.
A...... Yes.
QWould it also follow that if he had been properly treated on 3 January, that the probabilities are that he would not have suffered the infarct.
A...... The probability, yes. I suppose the sooner the treatment was instituted the better.
QThe probabilities are that he would not have congestive heart failure.
A...... Yes.”
Dr Smith’s evidence was to the same effect. He said it was undoubtedly the case that the plaintiff would have had a better prospect of recovery if he had been appropriately treated on the 4 or 5 January. He believed that his prospects of returning to his pre-illness health were good but that every day the treatment was delayed lessened his chances of returning to his pre-illness condition.
In the male plaintiff’s case his pre-illness health had been good and in those circumstances his prospect of making a complete recovery were greater than someone who had suffered chronic ill health or something of that kind.
Dr Smith was asked this:
“Q..... I accept this is always a difficult question for a medical witness or any other expert witness. If this man had been treated on the 4th, as you’ve suggested, with intravenous Flucloxacillin and ongoing treatment; and accepting that he was thirty-seven, fit, strong, healthy chap but he had a leaky heart valve, are you able to put a likely percentage on his chances to returning to a normal life with or without surgery.
A I would have expected, at least, an 80 per cent chance.”
He was later asked:
“Q.... It’s probably my fault and it’s a bad question. Assume that from 1 January until 22 January he has no appropriate treatment, and, nevertheless, he’s at home, he goes to work for one day, and he survives that period of time. Is that in itself any indicator to you of the likely success of early medical treatment returning him to where he was before.
AI think that, without trying to upset the client here, I think he was very lucky to have got that far in three weeks with this sort of infection. I would have thought such an invasive severe infection that he has to count his - that he was a very lucky man to get three weeks down the track without treatment.
HIS HONOUR
QDoes that indicate that perhaps his previous condition was such, if he had been treated appropriately, he would have been more likely to have made a complete recovery.
A...... That’s my feeling about it.
XXN
Q...... And without surgery.
AYes. Surgery is always a possibility, and also helps a few patients as well, but that also we prefer not to do that. I’m sure even cardiac surgeons would prefer not to have to operate on these sort of cases.
Q...... Just let me put this to you for your comment. If he did survive three weeks without treatment, does that mean the chances are that he would have responded sufficiently well to medical treatment, that he wouldn’t have needed the heart valve replacement.
AThat’s always hard to say, but in general terms one would have to think that that was the likely scenario.
Q...... Without some myocardial infarct as well.
AYes, if the embolisation - once treatment has started embolisation, the incident of embolisation starts to diminish because the organisms are slowly being contracted in that vegetation. The treatment doesn’t stop embolisation, but it starts to inhibit at this time.”
At cross examination he was asked by Mr Anderson;
“Q.... Given all that, can I put this to you; even if the plaintiff, Mr Mann, had received the best possible treatment on 4 January 1994, you cannot tell His Honour that he would be in the same position as he is in now can you.
ANo, I can’t.
Q...... That is because of the very nature of this disease.
AYes.
Q...... You can’t tell His Honour that even if that treatment, optimal treatment I will call it, as you would have done yourself on 4 January, had been implemented, that he wouldn’t have had to have a valve replacement, can you.
ANo.
Q...... Of course, in relation to embolic reactions in hospital subsequently, you can’t tell His Honour that they either weren’t already occurring or would not have continued to occur even if he was given optimal treatment on 4 January, can you.
ANo, I can’t, but I can say that once treatment was started, the incident of the embolisation would start to decrease until all the vegetation was healed.”
Dr Hii’s evidence was also to the same effect that is that if appropriately treated from 4 or 5 January 1994 the probabilities are that the male plaintiff would not have had to have undergone surgery to replace the mitral valve.
I find that there was a possibility that even if the Flinders Medical Centre had carried out the appropriate treatment that the male plaintiff would have still had to have undergone surgery to replace the mitral valve. I further find that there was a possibility although it was remote that if he had been appropriately treated that he still might have suffered a myocardial infarction peri-operatively.
I find, however, on the balance of probabilities that the failure to treat the male plaintiff on 4 and 5 January 1994 and thereafter has given rise to the condition from which the male plaintiff now suffers and in particular the probabilities are that the failure to treat the male plaintiff appropriately on 4 or 5 January 1994 gave rise to the need for surgery to replace the mitral valve and even more certainly the myocardial infarction which occurred peri-operatively.
The male plaintiff, in my opinion, has made out his claim against the defendant. He has established that a duty of care was owed by the defendant and the defendant was in breach of that duty. The breach of that duty caused damage, being the pain and suffering after his release from the defendant’s establishment, and the need for the male plaintiff to certainly undergo open heart surgery which, but for the breach of duty, was only a possibility. More importantly, the breach of the duty caused the bacterial endocarditis to develop and allowed emboli to break off which caused a coronary infarct which has left the male plaintiff with congestive heart disease. Whilst there was some chance that the male plaintiff might have suffered a coronary infarct in any event, the possibility is almost so remote as to be negligible. I say that because the male plaintiff did not suffer an infarct for more than three weeks after he was not treated. If he had been properly treated there was a possibility that he would have had to have undergone surgery but very little possibility, in my opinion, that he would have suffered a coronary infarct. As I have said, it was not the endocarditis or the valve replacement surgery that has led to most of the damage suffered by the male plaintiff, but the coronary infarct which was suffered peri-operatively.
The defendant further argued that if I was to find that there was a possibility the male plaintiff would had to have undergone surgery, in any event, and any possibility that he may have suffered the myocardial infarction then I ought to take that possibility into account in the assessment of his damages by reducing his damages to reflect the extent of that possibility.

For all of those reasons I intend to discount item 2 of the claim for voluntary services by one quarter to represent my estimate and judgment of the likelihood of the events occurring in any event.
The voluntary services must be assessed both pre judgment and post judgment.
For the reasons which I have already given there should be a distinction between the voluntary services which have been rendered and will be rendered.
I am sure that from time to time the male plaintiff has carried out some of these duties in his garden during the last few years. I am also sure that in the future he will do the same but I am equally as confident that the male plaintiff has not been able to do work of this kind on a regular basis or on any basis of significance so as to make the assessment of the need any less than that which I have arrived.
In relation to the claim for damages for past voluntary services.
1. Domestic - nil.

2.House and property maintenance
- 15 hours per week at $15.00 per hour = $225.

3.Passive care - 25 hours per week at $5.00 per hour = $125

The needs can be met at a notional cost of $350. Over the period of five and a half years since his illness that would give rise to a gross cost of $100,100. From that I would deduct in the order of one quarter from item 2 only for the possibility that the illness contracted in 1993 would have disqualified the male plaintiff, in any event, from carrying out the duties which now give rise to the need.
I would assess the claim for voluntary services to date at $84,000.
The same needs are necessary into the future but to a greater extent. The period over which the needs are required is between five and ten years. I have been provided with an actuarial certificate giving the lump sum equivalent of an annuity of $1.00 per week at a discount rate of 3 per cent over ten years. That figure is $452. Ten years is the outside of the range over which these damages should be calculated. The appendices to Luntz Assessment of Damages 3rd Edition confirm that figure for that period. The lump sum for an annuity of $1.00 per week over five years at the same discount rate is $243.
I shall work on the midpoint of those two figures.
Assuming the same notional cost but allowing into the future 20 hours instead of 15 hours for house and property maintenance and, after deducting one quarter for the possibilities to which I have referred attaching to item 2, I assess the damages for future voluntary services at $120,000.

Future Medical Expenses

The male plaintiff’s future medical and hospital expenses will be met by WorkCover Corporation. However, WorkCover is entitled to recover the amount payable, in the first instance, from the defendant and thereafter from the male plaintiff [s54(7)]. In those circumstances the amount of future medical and hospital expenses should be included as a lump sum in the male plaintiff’s award.
The male plaintiff will require constant medical care in the future. That will not only give rise to consultation fees for his general practitioners but also for investigative procedures including pathological services including blood scans and the like. He will need to see Dr Hii. He will also need psychological assistance of the kind that he has had to date. I do not believe that the male plaintiff’s psychological condition will improve after the completion of this matter.
He will also have to see his dentist but I am not satisfied that any future dental care is attributable to the defendant’s negligence. I believe that the plaintiff would have had to have undergone frequent dental check ups in any event. It has to be remembered, as I have previously said, that the plaintiff did have a leaky heart vale and he did contract staphylococcus aureus prior to the defendant’s negligence. That, in itself, would have necessitated frequent dental visits.
The plaintiffs handed to me a list of medical expenses which had been paid by WorkCover over the period 1 January 1997 to 30 June 1998.
In 1997 a sum of $5,985.50 was paid in medical and hospital expenses. Between 1 July 1997 and 30 June 1998, again a year, the sum of $6,531.69 was paid by WorkCover.
In both periods WorkCover paid a sum to the Ashford Hospital for periods during which the male plaintiff was admitted in connection with these illnesses.
I think there will be a need for ongoing medical and hospital expenses of the order of the sum disclosed in the schedule handed to me.
As I have said, I think, it would be appropriate to take out of account the dental expenses but otherwise, I think, the schedule of expenses represent some assessment of the likely future medical care of this plaintiff.
I am prepared to act upon the basis that there is an ongoing need in the order of $120 per week or about $6,500 per year for future medical and hospital expenses.
That will continue over the next five to ten years.
It would be appropriate again to use an actuarial calculation based upon the midpoint of that range.
I would allow $42,000 for those aspects of future medical expenses.
There is one further medical expense which cannot be overlooked and that would arise in the event that the male plaintiff underwent an operation for a heart transplant. The determining factors for such an operation, assuming a donor’s heart is available, are the age, weight and the medical condition of the candidate.
The male plaintiff is presently overweight, at least for the purpose of an assessment of a heart transplant, but it could be envisaged that provided that the circumstances were right he would put himself in a position where he would undergo such an operation rather than succumb to his disease.
There is some prospect that the male plaintiff could undergo a heart transplant in the future. A report was tendered from a cardiologist, Dr Keogh, in respect of that matter.
In respect of candidates who qualify for a heart transplant she said:
“The waiting time for an Australian cardiac donor is determined by blood group, weight and pulmonary resistance (the height of the blood pressure in the lungs - currently unknown) in the recipient, and whether nor (sic) not there are antibodies in the blood of the potential recipient due to blood transfusions which in all likelihood were given during the mitral valve replacement.”
A candidate must then undergo a waiting period whilst a donor is found. The cost of care during that period varies depending upon the health of the donor.
The best case is, of course, care at home. The worst case involves maintenance to the time of transplant on an intraaortic balloon pump for up to thirty days which can cost up to $30,000 to $40,000. Only 5 per cent of candidates end up in that state. In this waiting period drugs can cost up to $100 per day for up to six months; i.e. $18,000.
Assessment procedures for suitability amounts to about $5,000.
The cost of the donor procurement and the heart transplant and the first fourteen days after operation care amounts to $28,000.
The first twelve months after care varies between $22,000 and $52,000 depending upon the case complexity. These costs include all outpatient visits, any readmissions, testing, cardiac biopsies and any other treatment.
The cost of a heart transplant is very high.
I was provided with an extract from a report of Dr Anne Keogh in which she estimated the costs of the operation, the hospital expenses and the post operative care.
The cost to the male plaintiff, if he was to undergo such surgery, would be somewhere between $90,000 and $120,000.
It can only be said in relation to this item that there is a possibility that the plaintiff would undergo surgery of that kind. It is, however, a possibility which must be allowed for in the assessment of his damages. It is only a remote possibility if he underwent surgery that the costs would be at the upper end of that range.
Of course, the possibility will not arise for some years so, in any event, the figure of $90,000 to $120,000 has to be discounted to its net present value.
After consideration of the actuarial effect of a discount factor of 3 per cent and, allowing only for the possibility rather than the probability of the event occurring, in my opinion, it would be appropriate to allow $30,000 under this head.
I therefore allow $72,000 for future medical expenses.

Special Damages

WorkCover Corporation advised the defendant that it had paid a total of $90,928.83 in hospital and medical expenses on behalf of the male plaintiff made up of $33,412.15 for hospital expenses and $57,516.68 for medical expenses.
The plaintiffs later submitted to the Court a list of special damages itemising hospital and medical expenses of $91,635.28 being said to be a schedule of special damages paid and claimed by WorkCover Corporation. The difference in the two figures is not large enough to worry about but may be explained by a claim for travelling expenses of $750 in the itemised list. The plaintiffs did not seek to tender that list.
Later again the plaintiffs tendered two schedules relating to special damages.
Schedule 1 comprised a list of special damages agreed as to quantum paid and claimed by WorkCover Corporation. That list totalled $77,561.98. Schedule 2 comprised four items paid and claimed by WorkCover Corporation but not agreed. These items which I set out totalled $13,969.70:
Dr Simmons (Dermatologist) $105.00

Dr van der Pennen (Dental Surgeon) $2,038.00

Rhylyn Pty Ltd $8,035.45

Chemist  $3,791.25
  ========
  $13,969.70

The total of the two schedules is $91,531.68. The defendant disputed its liability to pay any of the special damages in Schedule 2 even if it was found to be liable in damages. In respect of Dr Simmons the only evidence was that the male plaintiff had red blotches on his skin; there was no evidence that the consultation arose out of his illness and the amount claimed cannot be allowed.
A deduction should be made for the claim for Dr van der Pennen. It would have been necessary in any event for the male plaintiff to have dental treatment, because of his leaky heart valve. After he became ill he would have needed more frequent dental treatment. I am not satisfied that the defendant’s negligence increased the required frequency over and above the dental treatment that would have been required in any event. Nothing should be allowed for that item.
Rhylyn Pty Ltd is the corporate vehicle within which the plaintiff’s general practitioners practised. It was argued that a number of consultations with these practitioners were for the purpose of obtaining antibiotic cover. That would have been necessary, so it was argued, in any event. I agree that some part of the claim for the general practitioner’s consultations would have been incurred in any event. I cannot precisely identify the extra cost occasioned by the defendant’s negligence. I will as a matter of judgment allow $5,000 for the consultations with Rhylyn Pty Ltd.
So also a deduction should be made for chemist expenses. I propose to allow $2,500 under that head. I will therefore allow $7,500 in Schedule 2 of the special damages claimed by WorkCover Corporation.
The total of the special damages paid and claimed by WorkCover Corporation is allowed at say $85,000.

Summary Of The Male Plaintiff’s Claim

The male plaintiff’s damages are assessed as follows.
Past Future
Pain and Suffering $40,000.00 $80,000.00

Loss of Expectation of Life 10,000.00

Loss of Earning Capacity 160,000.00 460,000.00

Voluntary Services 84,000.00 120,00.00

Future Medical & Hospital Expenses 72,000.00

Special Damages 85,000.00

Total 379,000.00 732,000.00

The total of his award is $1,111,000.00

Female Plaintiff’s Claim

As I have already observed the female plaintiff has advanced two claims.
For the reasons I have already given she is not entitled, in my opinion, to any damages in respect of the second aspect of her claim i.e. for any economic loss consequent upon her husband’s illness.
He has been compensated for his loss of earning capacity. She is not entitled to any damages for the loss of his earning capacity. She is not entitled to any damages for losses to the partnership because the partnership was, at the time that her husband became ill, only an investor in the sense that it hired plant to the third plaintiff. The impairment of the male plaintiff’s earning capacity and the subsequent destruction of it did not, in my opinion, affect the profitability of the partnership.
In any event, I have assessed in the male plaintiff’s claim, his earning capacity in its entirety subject to the contingencies and exigencies that I have mentioned. It would be to duplicate damages to allow the final plaintiff anything in respect of any economic loss consequent upon the loss of her earning capacity.
That leaves the claim for loss of consortium. There has not in fact been a complete loss of consortium but there has been an impairment. That will sound in damages; Toohey v Hollier (supra). A claim for a loss of consortium by a wife has to be assessed in the same manner as a claim for loss of consortium at common law; s33(2) Wrongs Act. A claim for loss of consortium gives rise to a claim for “the material consequences of the loss or impairment of his wife’s society, companionship and service in the home and the expense of her care and treatment incurred as a result of the injury form proper subjects of compensation to the husband”; Toohey v Hollier at 627.
As I have said earlier I must be careful in assessing the female plaintiff’s claim for loss of consortium not to duplicate the damages allowed to the male plaintiff in his claim for voluntary services.
What the female plaintiff is entitled to under this head is for the loss of the services that her husband previously rendered her and are not now rendered. Those services must be of the kind whereby she has suffered some temporal loss capable of estimation in money.
In this case the most significant part of the impairment of consortium must be the loss of companionship which the female plaintiff has suffered by reason of the male plaintiff’s injuries. It is clear enough that in a number of respects the male plaintiff’s attitude towards the female plaintiff has changed and that gives rise to a loss of companionship. In her case the loss of companionship is probably a little more marked because of her agoraphobia and the loss of that companionship in society is more significant to her than it might be to someone else. It seems to be now settled on the authorities that the loss of sexual intercourse is part of the temporal loss which may be included in consortium and should be allowed for in the overall award. In this case there has been an interference in the sexual relationship of the parties.
The services for which damages are awarded also include any domestic services that the male plaintiff previously rendered the female plaintiff. In this case the male plaintiff rendered little or no domestic services before his illness. The male plaintiff’s more significant contribution to the household was in the maintenance of the house and property and in respect of assistance with the horses. Those matters have been compensated for in the male plaintiff’s claim.
One question that needs to be determined is the period over which the impairment of consortium will run. Section 33 of the Wrongs Act talks about a claim “whether or not the injury results in death”. However at common law a claim for loss or impairment of consortium could only be compensated over the joint existence of the husband and the wife. On the death of the wife the claim for loss of consortium ended; Baker v Bolton (1808) 1 Camp 493; 170 ER 1033.
I do not think having regard to s33(2) that Parliament intended that a wife would have any greater claim for loss of consortium than a husband enjoys at common law.
In my opinion, therefore, the loss of consortium can only include loss of services and loss of comfort in society over the period during which the male plaintiff is expected to survive. In this case the loss of consortium is between 1994 and a date five to ten years hence.
In Andrewartha v Andrewartha (1987) 44 SASR 1 the Full Court considered the proper approach in the assessment of damages for loss of consortium. That decision emphasised that the plaintiff claiming the impairment or loss of consortium cannot claim for any loss that does not give rise to material consequences. Whatever mental distress has been caused to a party by the impairment or loss of the consortium of the spouse is not compensable.
In a case where the injured party has been compensated for services rendered to that party arising out of needs generated by the injury or disability, and the injured party’s medical and hospital expenses into the future have been met any award for the loss of the domestic society and comfort must be relatively modest. In this case the award must be modest because the male plaintiff did not, apart from the emotional support he gave to the female plaintiff, provide any domestic services apart from those for which he has been compensated in his own claim. That is evident by the large award to him for the replacement of those services. Moreover this head of damages must be assessed over the limited period to which I have referred. I would award the female plaintiff $15,000 for the impairment or loss of consortium.

Third Plaintiff’s Claim

On the approach I have adopted to award the third plaintiff damages for loss of servitium would be to duplicate damages. The third plaintiff’s claim should be dismissed.

Interest

The plaintiffs are entitled to interest on that part of the award on which interest accrues.
No interest is to be awarded for damages which represent future losses: Thompson v Faraonio (1979) 24 ALR 1. In particular no interest should be awarded on future non-economic loss: Rendell v Paul & Earle (1979) 22 SASR 459 or on future economic loss: Thompson v Faraoino (supra); McGuire v SGIC (1979) 21 SASR 493; Fire and All Risks Insurance Co Ltd v Callinan (1978) 140 CLR 427.
In so far as the award includes past losses if that award has been assessed in the dollar value at the time of trial or judgment interest should be awarded at the rate of 4 per cent: Wheeler v Page and Harris (1982) 31 SASR 1.
Pre trial economic loss stands on a different footing. Because these losses are usually awarded in the dollar value at the date of the loss the plaintiff has been kept out of these moneys and should have interest not only to reflect the loss of use of the money (4 per cent) but also reflect the inflationary effect on the award over the period the loss was suffered: Wheeler v Page & Harris (supra).
No interest, however, will be payable on any of the losses to the date of trial or judgment if those losses have been replaced by compensation which serves the same purpose as an award of common law damages: Haines v Bednall (1991) 172 CLR 60. In assessing the sum on which the interest is payable I should have regard to the workers compensation paid.
Interest should be awarded over the whole of the period between tort and judgment. However to reflect the fact that not all of the losses accrued at the date of the tort it would be appropriate to allow interest for half that period; in this case two years and nine months.
In the male plaintiff’s claim interest in this case could only be awarded on the following items.
Past Pain and Suffering $40,000.00

Loss of Expectation of Life $10,000.00

Loss of Past Earning Capacity $160,000.00

Past Voluntary Services $84,000.00

Special Damages $85,000.00

In the female plaintiff’’s claim interest can only be awarded on:

Loss of Consortium $15,000.00

In assessing the sums in the male plaintiff’s claim on which interest will be awarded. I should take into account the following payments by WorkCover Corporation which are payments which have served the same purpose as the damages awarded: Haines v Bendall (supra).
Hospital $33,412.15

Medical $57,516.68

Income Maintenance $55,258.64

Loss of Earning Capacity $57,425.18

Lump Sum - Section 43 $122,200.00

Travel  $750.90
  ---------------
         Total  $326,563.55
  =========

Having regard to the compensation paid it would not be appropriate, in my opinion, to award any interest on that aspect of the male plaintiff’s claim for the loss of earning capacity to date of judgment or on the special damages.
Interest therefore should be awarded on:
1...... Past pain and suffering and loss of expectation of life, $50,000, at 4% for 2 years and 9 months viz. $5,500.
2...... Past voluntary services $84,000 at 4% for 2 years and 9 months viz. $9, 240.
On the female plaintiff’s award for loss of consortium she should have interest on the whole of her loss at the rate of 4 per cent for two years and nine months. That is a sum of $1,650.
The male plaintiff will have judgment for $1,125,740 including interest.
The female plaintiff will have judgment for $16,650.00 including interest.
The third plaintiff’s claim is dismissed.

[1999] SASC 236

4 June 1999