Markaboui v Western Sydney Area Health Service, t/as, Westmead Hospital - [2005] NSWSC 649

No judgment structure available for this case.

CITATION:
MARKABOUI v. WESTERN SYDNEY AREA HEALTH SERVICE, t/as, WESTMEAD HOSPITAL [2005] NSWSC 649

HEARING DATE(S): Monday 11 April to Friday 15 April 2005;
Monday 18 April to Friday 22 April 2005;
Monday 26 April to Tuesday 27 April 2005

JUDGMENT DATE :

12 July 2005

JURISDICTION:
Common Law

JUDGMENT OF:
Hall J at 1

DECISION:
A verdict in favour of the plaintiff in the sum of $163,197. The cross-claim is dismissed. Leave granted to the parties to make further submissions in relation to medical, hospital and other expenses, interest and costs.

CATCHWORDS:
Plaintiff had pre-existing disabilities - hospitalisation following motor vehicle accident - treatment for blood loss - dosage of opiates given - hydration of the patient - plaintiff developed inhalation pneumonitis - multiple organ failure - admission to intensive care unit - need for plaintiff to have been closely monitored - breach of duty by the hospital - general damages - damages for past care and assistance - damages for future care.

CASES CITED:
Tubemakers of Australia Limited v. Fernandez (1976) 50 ALJR 720

PARTIES:
Fouadi MARKABOUI v.
WESTERN SYDNEY AREA HEALTH SERVICE, t/as, WESTMEAD HOSPITAL

FILE NUMBER(S):
SC No. 20106 of 2003

COUNSEL:
Plaintiff: P. Menzies, QC./R. Wood/S. Kerrigan
Defendant: D. Davies, SC./G. Gemmell

SOLICITORS:
Plaintiff: Maloufs
Defendant: Francis Allpress

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL, J.

TUESDAY 12 JULY 2005

No. 20106 of 2003

FOUADY MARKABOUI v. WESTERN SYDNEY AREA HEALTH SERVICE t/as WESTMEAD HOSPITAL

JUDGMENT

HIS HONOUR
Liability

1 The plaintiff commenced proceedings in the District Court by Ordinary Statement of Claim filed on 4 July 2001 against the defendant with respect to medical treatment administered at Westmead Hospital between 8 October 1999 and 7 November 1999. I will refer to the defendant from time to time in this judgment as “the hospital”. As the evidence indicated, the plaintiff more particularly alleged a breach of duty owed by the hospital in the period from her admission until 13 October 1999, on which latter date she was admitted to the Intensive Care Unit.

2 The plaintiff is aged 35 years (date of birth 16 January 1970). She was therefore 29 years of age in October 1999. She suffered from congenital spinal muscular dystrophy since birth and accordingly had no active leg movement and significantly impaired muscle movement in her arms and hands. She was confined to a motorised wheelchair. She had had ongoing treatment for a number of related conditions over the years prior to the events with which these proceedings are concerned.

3 The District Court proceedings were transferred into this Court on 31 March 2003.

4 The proceedings against the hospital were heard with proceedings brought by the plaintiff against the driver of the vehicle involved in an accident that occurred on 8 October 1999. A separate judgment has been delivered in respect of those proceedings.

5 The plaintiff relied upon evidence from Dr. John Raftos, a specialist in emergency medicine, Dr. Conrad Winer, a consultant physician in rehabilitation medicine and Dr. A. S. Breslin

Factual background

6 The plaintiff arrived at the Emergency Department of Westmead Hospital at 10.26 am and was assessed by a Dr. Brady, a junior medical officer.

7 The emergency department clinical records for 8 October 1999 record that her heart rate was 92 beats per minute but that her blood pressure measurements on the arms could not be taken due to her injuries and pain, she not being able to tolerate placement of a cuff for that purpose. The x-rays revealed the following fractures:-

• a minimally displaced spiral fracture of the head and neck of the left humerus;

• a fracture through the olecranon process of the right humerus with some displacement;

8 The clinical records indicated that the plaintiff was to have a splint applied to the right knee, a slab placed on the right elbow and her left arm placed in a sling before being transferred to the ward.

9 The plaintiff was medicated with oral analgesics (Panadeine Forte) and Endone and was administered, at least from 9 October 1999, with morphine for her pain.

10 The plaintiff alleges that she was negligently treated in the relevant period on the following bases:-

• excessive administration of opiate analgesics;

• failure to provide adequate hydration;

• failure to recognise and treat blood loss;

• failure to respond to persistent tachycardia;

• failure to perform necessary investigations;

11 The analysis in this judgment of the medical evidence has specific regard to the history of the plaintiff’s medical treatment insofar as particular matters are directly or indirectly relevant to each and all of the bases relied upon in support of the claim in negligence.

Chronological analysis

12 The following data has been extracted from Exhibit H, volume one of the medical records of Westmead Hospital relating to the plaintiff’s admission:-

9 October 1999

0010 IDC inserted. Morphine 10 mg given for pain …

0100 … unable to attend BP due to deformity of limbs/pain and pts reluctancy … IDC attended … draining clear urine

0445 … Morphine 10 mg given 0200 hours … circ obs unchanged, all limbs cool … good sensation … draining clear urine

1320 … Drinking well … IDC in situ - draining well. IDC in situ draining well. Panadeine Forte and Endone given for pain as per regular chart. Morphine 10 mg … given for pain at @ 0830 hours

1840 Given morphine 10 mg at 1635. Also given regular Panadeine Forte … at 1800

10 October 1999

0620 … IDC in situ draining small amount overnight … lower limbs v cool … sensation present. Reg meds given as charted

1315 c/o pain morphine 10 mg given at 1040 - IDC in situ – draining well - tolerating with fluid well … regular Panadeine Forte … given at 1200

1940 … obs satisfactory as charted. Remains tachycardia - 140 bpm … refused to eat dinner … only had small amount of H20. IDC patent and draining. Given morphine 10 mg at 1930 hours … regular Panadeine Forte and Endone given as charted

11 October 1999

0455 Regular analgesia given as charged. Condition stable and unchanged. IDC patent and draining

1110 S/B Dr. Cummine - comfortable … will need to stay in for analgesia/ nursing care

1420 Pts obs as per chart … tolerated fluid well. IDC draining well … Pt voiced a lot of pain. R.N. informed medication given as per chart

1445 Morphine 10 mg given @ 1140 hours … resting comfortably since analgesia given (also continued on Panadeine Forte 6/24). IDC draining well 600 mls at 1330 hours

2220 Condition satisfactory … IDC patent and draining … given … morphine 10 mg … with good effect

12 October 1999

0530 Pt appeared to sleep well. Regular Panadeine Forte … IDC draining

Medical registrar present. Pt weak/lethargic … speech slurred. Very weak and lethargic. Difficulty breathing.

1150 … breathless for 3/7, worse today. Noted by nursing staff to be drowsy today and slurred speech. Meds include Panadeine Forte …Endone 10 … Morphine 10 mg … O/E drowsy xx … pupils small, not pinpoint … HR 120 reg … creps R laterally. Problems – Drowsiness … narcotics … ECG – sinus tachy. Consider trial Narcan – bloods done - x-ray done - ABC 1 done

1225 Patients observations satisfactory … patient complained of being weak and drowsy … s/b Dr. Chin … pain team consulted re pain control ? overnarcotisation – well r/v today

1300 Problems at present - lethargy/drowsiness/weakness up … c/o abdominal and back pain … urine output 20 mls/hr … Clinically … pr 140 … systolic 110 lethargic but orientated … Needs (items 1 - 11)

1530 Physiotherapy

1600 Nuclear Medicine and Ultrasound. Provisional report only … there are bilateral perfusion defects. The patient was unable to ventilate for the scan

1800 CT radiology

1950 Pt returned to ward 1930 hours following … scan + CT. Pt orientated but drowsy. Pt given H2O to drink today … drowsy

Physiotherapy

2245 Drowsy but oriented

Needs: IV access in am ? central line – multiple attempt today have failed … push oral fluid intake (has been drinking ++). Withhold Endone if not in pain, try paracetamol

13 Dr. Raftos’ opinion essentially was that there had been breaches of the hospital’s duty of care, including in particular:-

(a) a failure to treat for expectant blood loss consequent upon the fractures sustained in the accident giving rise to hypovolaemia;

14 The report of Dr. Raftos dated 30 May 2001 (being part of Exhibit E) provides the analysis in support of those two propositions. I observe here (and will return to them later) that the report omits reference to recorded data in the hospital notes pertaining to:-

(a) urinary output - data potentially relevant to the issue of the adequacy of the plaintiff’s hydration during her hospitalisation. Dr. Raftos’ opinion on the hydration issue was reached without reference to data consistent with urinary output being “normal” . He acknowledged in cross-examination that urinary output can, along with factors such as heart rate, blood pressure and peripheral perfusion provide an indication of the level of hydration.

(b) blood pressure - Dr. Raftos acknowledged that blood pressure readings taken were not hypotensive (ie., low) readings and could be regarded as normal, even if on the low side of normal on some occasions. Dr. Raftos, however, relied upon the fact that young people can maintain their blood pressure in the face of a substantial volume loss over an extended period of time, but they will certainly become unwell.

blood pressure recordings

“no blood pressure measurements were performed until 13 October 1999’

15 Mr. Davies, SC, for the hospital, relied upon all of those matters in cross-examination and final submissions. They were said to evidence error in Dr. Raftos’ opinion and approach in analysing the issues subjacent to the matters relevant to liability. They were also said by the hospital to refute the presence of signs indicative of significant blood loss and of excessive analgesic medication.

16 I note, again at this stage in passing, that normal blood pressure readings are relevant to a further issue raised by Dr. Raftos as to “shock” which he postulated the plaintiff suffered from from the time of her admission on 8 October 1999. (He stated in cross-examination that “shock” is blood pressure less than 100. He agreed that on the basis of normal blood pressure readings taken on 9, 10, 11 and 12 October, that had a reading been taken on 8 October it probably would also have been normal).

Blood loss

17 Dr. Raftos conceded that the plaintiff’s only symptom consistent with the blood loss which he had postulated resulted from the fractures was a high heart rate. He also conceded that both pain and anxiety can cause an elevated heart rate.

18 The hospital relied upon the evidence of Dr. Michael Burns, a consultant physician, who has specialised for many years in the field of thoracic medicine. Dr. Burns’ report dated 27 June 2003 contained a review of the plaintiff’s treatment when she was in hospital from 8 October until discharge on 2 November 1999.

19 Both Dr. Raftos and Dr. Burns agreed that the record did reveal the presence of tachycardia but differed upon its significance. Dr. Raftos said tachycardia was a clinical sign of blood loss. Dr. Burns was of the view that the record revealed only intermittent, not continuous, tachycardia and therefore discounted it as an indicator of significant blood loss. Dr. Raftos observed that on admission the plaintiff’s heart beat was recorded as 92 beats per minute, whereas by the early hours of 9 October it had increased to 118 beats per minute which was tachycardia and indicated he said at that time that the plaintiff was in hypovolaemia shock. On the date of her admission to intensive care, her heart beat was 140 to 160 bpm.

20 Whilst the clinical records did indicate an elevated heart rate, it was put to Dr. Raftos that this could be explained by other factors such as pain and anxiety. However, he stated that whilst these could cause an elevation in heart rate, it would be unlikely to be beyond a reading of 100. It was put to him in cross-examination:-

“Q. So is it your evidence that the only explanation for the heart rate that she demonstrated from 8 to 12 October was the fact that she had suffered this blood loss?

A. Well, given that – combined with the inhalation pneumonitis and the other illnesses, as I said yesterday …”

21 Before reviewing Dr. Burns’ evidence on specific issues, the essential propositions which he propounded may be summarised as follows:-

• The plaintiff did not suffer significant blood loss, a conclusion said to be supported by haemoglobin levels, particularly the reading taken of 121 on 12 October 1999 and the blood pressure readings said to be normal between 9 and 12 October 1999.

• The plaintiff received adequate oral hydration between the time of her admission and 13 October 1999. This conclusion he considered was supported by the urinary output record in that period.

22 Before considering Dr. Raftos’ evidence, I will first deal with specific aspects of Dr. Burns’ evidence concerning blood loss:-

23 Dr. Burns disagreed that the reading taken on 12 October 1999 was a normal reading and was one which was showing compensation for blood loss. He accordingly disagreed with Dr. Raftos’ opinion in this respect. He relied upon readings taken years before showing haemoglobin readings in the 120’s.

24 In relation to the blood transfusion that took place on 13 October 1999, Dr. Burns stated that it was common for blood to be administered whenever the haemoglobin readings were down:-

“But it’s routine when the haemoglobin level is reduced but they give blood because it’s usually due to blood loss …”

25 However, despite this concession, Dr. Burns stated that he did not consider that the blood infused was consequent upon significant blood loss commencing on 8 October, some five days before. He said that by 9 October the fluid would have poured into the blood stream from the system diluting the red cells and the haemoglobin level that was there. By 12 October the blood level should have been lower, but it in fact had remained within normal range. He accordingly stated “I don’t think there’s any good evidence that she sustained major blood loss. She possibly did, but I don’t think she did” (t.474).

The hypovolaemia (loss of blood) issue

26 This issue is best approached by:-

• placing the question of blood loss in context and identifying its significance to the issue of “damage” ;

• identifying the way in which it is contended that the plaintiff should have been managed and treated for the blood loss postulated as having been consequent upon the fractures sustained by the plaintiff;

• identifying the competing medical opinions on the question of whether substantial blood loss in fact occurred;

• on the basis that blood loss did occur, identifying whether there was a relevant failure to properly assess and treat the plaintiff for blood loss, given the difficulty of establishing intravenous access.

(i) The issue of hypovolaemia in context

27 Dr. Raftos, stated essentially that blood loss will always result from significant traumatic injury involving fractures and that, left unaddressed, hypovolaemia will develop which in turn can lead to renal failure or dysfunction. The plaintiff contends that her gravely ill condition for which she was treated in the hospital was, in part, due to renal complications arising from substantial blood loss. Ultimately she required urgent medical treatment by means of a blood transfusion on 12 and 13 October 1999 and treatment otherwise for associated complications in the intensive care unit of the hospital.

28 Dr. Raftos explained in evidence that a fracture itself releases blood in that it causes bleeding from the bone itself and from the structures around it. In evidence in chief, he explained that with a fracture of the bone, blood vessels outside the bone and inside it are disrupted and bleeding occurs. He stated that from humerus fractures, probably 500 to 700 mls of blood is lost in general. For fractures of the femora, around the knee, one would assume 500 mls to 1,500 mls of blood loss. He stated that a blood count would provide an idea as to how much blood had been lost. (I note here that Dr. Burns stated that he believed a fracture of the humerus would not produce a lot of blood loss but did not quantify how much would result.)

29 The plaintiff’s case was that she had suffered significant blood loss (hypovolaemia) and as previously observed it is known that this can lead to renal failure or renal dysfunction. The latter occurred in her case. There is no doubt on the evidence that when she was admitted to the intensive care unit on 13 October 1999, she was gravely ill by reason of a number of conditions or complications. The question was how and why that came about. She was, in due course, treated successfully in the intensive care unit.

30 Dr. Michael Kennedy, consultant physician, gave evidence on behalf of the defendant in the motor vehicle accident proceedings which were heard concurrently with these proceedings. Dr. Kennedy considered that the fractures sustained by the plaintiff were very significant injuries. He stated that there could be significant blood loss up to 500 mls as acute blood loss, but additionally there exists the possibility of chronic blood loss and that up to two litres of blood could be lost over time. The tachycardia experienced by the plaintiff was consistent with pain and/or blood loss and/or other intercurrent medical condition.

31 Dr. Burns, in opining that the plaintiff did not suffer significant blood loss, proceeded upon a fundamental and questionable assumption that her fractures were not sufficient enough to regard her as a severe trauma case. I found Dr. Burns’ evidence on the issue of blood loss, at times, less than satisfactory. In this regard, and in particular:-

“Close inspection of her hospital file failed to yield any evidence that she had lost blood …”

.. no blood loss was suffered by her.”

“overall comment”

(b) In cross-examination, he stated that the latter comment meant there had been no blood loss “externally” , although there had been no indication at all in the report that this is what had been meant.

(c) In cross-examination, Dr. Burns then stated that he had “no doubt that she suffered some blood loss” . Again, there had been no acknowledgement of this important fact in his report.

(d) In cross-examination he said “I suspect” that the plaintiff had neither major or minor fractures but was “in between” . However, I note that he considered that a fracture of the humerus generally was not associated with a lot of blood loss. There is cogent medical evidence to the contrary.

(e) He accepted that the purpose of taking haemoglobin readings (the measure of the amount of blood) was to monitor whether there had been significant blood loss and that it was standard practice to do so. However, whilst at first he relied upon the fact that the fractures were not severe enough to warrant taking blood, he, a little later, added that everyone taken to emergency at Westmead would have blood taken but that obtaining blood from the plaintiff was difficult. Given Dr. Burns’ acceptance that she was an “at risk” patient from the day of her admission, I found his evidence on the failure of the hospital staff to consider and then proceed to cannulate the sub-clavian vein unconvincing (see discussion on that topic later in this judgment.

(ii) The treatment of alleged blood loss as claimed by the plaintiff

32 The plaintiff claims that intravenous access should have been obtained, intravenous fluids then given and blood tests taken and that had this been done she would not have suffered the renal dysfunction, which she claims resulted from the hospital’s failure to address significant loss of blood.

33 Dr. Raftos stated in his report of 30 May 2001 that the standard treatment for severely injured persons (of which he considered the plaintiff one) includes the infusion of intravenous fluids and blood products to replace those lost due to injuries. The plaintiff, he said, should have had the infusion of two to three litres of crystalloid fluid initially, by way of replacement of blood lost into the fractures and then routine daily intravenous fluid management of crystalloid fluid. No blood tests were taken in the first five days of hospitalisation.

34 He acknowledged that it may be physically difficult to find a vein from which to take blood for testing, given the plaintiff’s condition and pain in her upper limbs. He explained in oral evidence that there was a sequence to be followed:-

“The site of choice is the cephalic vein in the forearm. If that’s not readily available, then veins in the cubital fossa at the elbow; if they are not readily available, then consideration needs to be given to accessing the larger veins, either the femoral vein or internal jugular vein.”

35 At the time of placement of the cannula and before infusion of fluid, blood is taken for testing. The blood count provides an idea of how much blood has been lost. The plaintiff weighed about 42 kilograms. A person of 40 kilograms would have a blood volume of 3.5 to four litres. He considered that in this case there was probably a blood loss of about two litres. He rejected that this would mean the plaintiff would have died. Compensatory mechanisms (described below) would, he said, have come into operation.

36 Dr. A.B. Breslin, consultant thoracic surgeon, supported Dr. Raftos on the need to insert an intravenous line. He acknowledged the difficulty of inserting a line into somebody in the plaintiff’s condition but added:-

“… if venous access is required, then you get it. It doesn’t matter how you get it, you get it.”

37 Dr. Burns spoke of the risk of infection of putting a long line in through the neck, although this in fact eventually had to be done and was done after the plaintiff was placed in intensive care. He acknowledged that had a line been inserted, hospital staff would have been in a better position to have made appropriate observations. In deciding whether the risk of inserting an intravenous line was justified and necessary, Dr. Burns assumed that the staff had formed a judgment that severe blood loss was unlikely.

38 The evidence established that in cases such as the present, the issue of intravenous access is one that needs to be considered. The Westmead Hospital’s Guidelines for the Management of Trauma, 2nd Edition, 1997 (p.45) (Exhibit N) addresses this question and states, in part:-

“All patients admitted with significant injury,

absolutely

all who have evidence of blood loss should have two large-bore IV lines inserted as an immediate routine …

Preferred sites are the large veins in antecubital fossae or cephalic or other large vein in forearm, or cephalic vein in the arm. If there are major injuries to either upper limb, alternative sites are required. These are:-

…

external jugular vein …”

39 Dr. Kennedy, consultant physician, stated that, with skill, the internal jugular vein can be quite easily cannulated. It gives direct access and has the advantage of permitting measurement of central venous pressures which in turn assists in determining the degree of hydration. He stated that he would not be reluctant to insert a central line because of the dangers of infection (t.448). He identified as a possible complication, the risk of hitting the carotid artery and causing bleeding, injuring the lung and causing pneumothorax. Infection was a long-term complication of a cannular left within the chest. The procedure accordingly is one that requires monitoring once inserted to guard against infection. He stated that the plaintiff’s injuries, in his view, were very significant injuries. Whilst noting the reference in the hospital notes to factors which may make an insertion of an intravenous cannular difficult, he went on to state in his report of 11 September 2001 that it was “normal practice for patients admitted with serious trauma to have an intravenous cannular inserted and intravenous fluids are usually administered until such time as the person is fully assessed in relationship to the need for surgical treatment of the fractures or the possibility of trauma to soft tissue injuries …” (report of 11 September 2002, paragraph two). I accept Dr. Kennedy in relation to the above evidence.

(iii) Competing opinions on whether substantial blood loss occurred

40 The plaintiff’s case on the issue of hypovolaemia essentially raised three issues:-

• The first, if intravenous access could not be obtained through one of the peripheral nerves (as in fact was the case), whether intravenous access should have been obtained through the jugular vein.

• The second issue was whether blood loss had occurred as a result of or consequent upon the plaintiff’s fractures. It is plain that such loss did in fact occur.

41 Central to Dr. Raftos’ analysis was the concept of compensatory mechanisms that will often become operative in the event of significant blood loss (hypovolaemia). Dr. Kennedy, consultant physician, gave evidence to similar effect. Dr. Raftos explained that notwithstanding substantial blood loss, a person may continue to survive by virtue of compensatory mechanisms. He explained that a number of factors operate in this respect but the predominant one involves constriction of the small arteries in the non-essential vascular beds (that is, some of the muscles, the skin, the gastrointestinal tract). Such constriction makes the space into which the blood needs to fit smaller. If normal blood volume was four litres, then it was possible to contract the blood volume down to two litres. In those circumstances, the haemoglobin and certain other readings will be concentrated with the body compensating by fluid moving into the tissues and by the passing of urine.

42 Dr. Raftos was challenged in cross-examination as to how such compensating mechanisms could operate without showing symptoms during the first five days apart from a high heart rate. Dr. Raftos referred to the altered consciousness that had developed by 12 October, it being noted in the records that the plaintiff was “weak, lethargic, speech slurred”.

43 Dr. Raftos explained that with contraction of the small arteries the blood flow is maintained to the important organs – the kidneys, heart and brain – in the reduced space. Tachycardia was the predominant symptom. Young people, Dr. Raftos stated, can maintain their blood pressure in face of a substantial volume loss for an extended period of time but they will eventually become unwell.

44 On the basis of his analysis, Dr. Raftos said the haemoglobin reading on 12 October of 121 is not to be seen as a normal reading but was an indication of a concentrated reading due to blood loss.

45 In resolving the question as to whether blood loss occurred, it soon became apparent in the cross-examination of Dr. Burns that in fact there was no real issue between the medical experts but that the plaintiff had indeed suffered blood loss (issue (ii) above). The principal issues accordingly were, firstly, whether there had been significant blood loss and, secondly, whether such blood loss had gone undetected by hospital staff during the period between 8 and 12 October inclusive.

46 There is no clear evidence on this last issue. That is partly because of the fact of an absence of intravenous monitoring being performed and recorded and partly by reason of the conflict of medical opinion which in part turns upon the competing interpretations open on the clinical and recorded data. In this latter respect, the factual information that is available and which was recorded includes the following:-

(a) No haemoglobin readings were taken between 8 October and 11 October inclusive. Although Dr. Burns assumed that this was because of the risks associated with cannulating the subclavian vein (which, as previously mentioned, was subsequently done on 13 October in intensive care) there is no evidence that this procedure was, in fact, considered by the hospital staff at any stage in that period.

(b) The first haemoglobin reading of 121 was taken on 12 October and although apparently normal, Dr. Raftos considered this to be due to haemoconcentration – the process described by him in evidence and referred to above. It will be necessary to refer again to that matter later in this judgment.

47 This then was a central point of contention on the issue of blood loss. Dr. Burns did not believe that any blood loss for which the transfusion was given was related to the fractures sustained on 8 October. He did, however, concede that it is routine procedure when haemoglobin levels are reduced for blood to be given “because it’s usually due to blood loss”.

48 Dr. Burns pointed to earlier or historical haemoglobin readings taken on 22 June 1995 of 129, on 4 March 1997 of 128 and on 8 April 1999 of 122 and these were consistent, he said, with the reading on 12 October 1999 of 121.

49 Dr. Burns postulated that the low readings taken on 13 and 14 October could have been affected by dilution going in through the plastic line that had been established in the right subclavian vein on 13 October. This postulation was, however, not supported by any factual material. The fact of a blood transfusion on the same day (13 October) bespeaks blood loss of a significant amount and cannot be ignored in construing the reading of 121 taken the day before. The real question then became what could have caused such a significant loss?

50 I consider the low haemoglobin readings taken on 13 October were true readings. Indeed, they were seen and acted upon as such by hospital staff who took immediate steps to admit the plaintiff, by then a very ill patient, into intensive care and to undertake on an urgent basis a transfusion of three units of blood in response to an apparent blood loss in a significant quantity of blood. An additional fact pointing to blood loss of significance is the return of haemoglobin readings very shortly after the transfusions took place. I note that Dr. Burns conceded that as a matter of medical possibility there could have been significant blood loss due to the fractures but he took the view that he did not think that such a possibility had occurred.

51 This then brings back into focus the significance of the haemoglobin reading of 121 on 12 October, Dr. Burns saying that it effectively meant there could not have been significant loss on and after 8 October. Dr. Raftos’ explanation, on the other hand, based on the concept of haemoglobin concentration was shown by the evidence to be an accepted medical theory which could account for what appeared to be a normal reading. The basis for disputing concentration in this case was in part based upon blood pressure readings in the period which were within normal range. However Dr. Burns conceded in cross-examination that:-

• No blood pressure was taken until about 24 hours after admission so that one does not know if, within the initial period which Dr. Burns stated was important, hypotension had then existed.

52 Accordingly, Dr. Burns’ reliance upon blood pressure readings said to have been within normal range does not in itself constitute a sufficient basis for rejecting Dr. Raftos on the issue of blood loss.

53 Returning to the haemocentration theory, Dr. Burns conceded in cross-examination such concentration could in fact have been a factor at work but considered that it would not have influenced the haemoglobin reading taken on 12 October:-

“… I’ve never heard of someone having a high haemoglobin four days after blood loss due to body conservation mechanisms. I don’t think it’s a likely explanation. It’s possible, but not likely, in my opinion.”

54 Causation of a medical condition as a matter of medical possibility may be sufficient if there are objective facts that support it in the circumstances of a particular case: Tubemakers of Australia Limited v. Fernandez (1976) 50 ALJR 720. Here, the haemoglobin readings taken on 13 October, the fact of the blood transfusion in a significant quantity and its apparent effect as discussed earlier, Dr. Raftos’ analysis of blood loss involving or causing haemocentration, together provide an explanation for the observations taken on 12 and 13 October and are supportive of his conclusion that the fractures at the three sites did produce significant blood loss. Such a condition on the evidence is capable of causing renal dysfunction. I am satisfied on the probabilities that the renal problems of which the plaintiff was diagnosed and to which she was treated in intensive care was causally related to the significant blood loss and not some other unidentified cause as well as to the antecedent failure by hospital staff to identify and treat that blood loss by blood transfusion and close monitoring before 12 October 1999.

Conclusions on the blood loss issue

55 I am satisfied on the evidence of the following matters and make findings accordingly:-

(a) The plaintiff’s factures at three sites resulted in a substantial blood loss (hypovolaemia). I accept Dr. Raftos’ opinion to this effect. This opinion, I observe, has a measure of support from Dr. Malka of the hospital who wrote in the hospital notes that her impression was that the plaintiff’s decreased level of consciousness was due to “hypoxia/hypovolaemia” and “impending renal failure secondary to hypovolaemia” .

(b) Standard procedures of the hospital, in place at the time of the plaintiff’s admission, required that intravenous access be obtained for monitoring and maintenance of fluid and blood levels in categories of case which included cases of the severity of the plaintiff’s case. The hospital did not follow its prescribed procedure.

(c) Intravenous access in the particular circumstances of the plaintiff by a central venous line was essential and overrode competing risks from such an insertion.

(d) The hospital staff appeared to have acted (wrongly) up until 13 October upon the basis that the fractures involved relatively minor and not severe trauma. I accept Dr. Raftos’ evidence that the fractures were serious fractures and did result in substantial blood loss at the three fracture sites.

(e) The plaintiff manifested periodic tachycardia. On the basis of Dr. Raftos’ evidence, which I accept, this was a consistent reaction to substantial blood loss.

(f) The haemoglobin reading of 121 on 12 October was a concentrated or compensated elevated haemoglobin level resulting from substantial blood loss.

56 It was Dr. Raftos’ evidence, which I accept, that the blood loss and the pneumonitis (discussed below) contributed to the need for intensive care treatment. It is clear on the evidence that by 12 October both combined to render the plaintiff a very unwell patient to the point that intensive care treatment became an urgent necessity.

57 The hypovolaemia suffered by the plaintiff gave rise to liver dysfunction and coagulation dysfunction. The liver readings, however, did not reach levels indicative of liver failure. The plaintiff was very unwell from 12 October until her discharge from intensive care by reason of haemovolamia and pneumonitis.

The question of the plaintiff’s tolerance to opiate medication

58 One issue in the proceedings concerned the plaintiff’s tolerance to drugs and of her habituation to opiate medication. The issue was whether she would, by reason of such tolerance/habituation, have required larger doses of opiates in order to obtain appropriate pain relief. Dr. Raftos stated that it would not necessarily have had that effect. He added:-

“But … it would make you pay more attention to getting the analgesia right.”

59 He also stated habituation to opiates would not generally make any difference to the physiological effect on an excessive prescription of an opiate.

60 Dr. Raftos’ considered the plaintiff’s drowsiness was explicable by the amount of opiate administered in hospital and the fact that her lungs were getting worse and becoming more hypoxic and because she was hypovolaemic.

(a) Excessive use of opiate analgesics

61 The plaintiff was prescribed and given large doses of three opiate analgesics:-

• Panadeine forte (paracetamol 500 mg, codeine 30 mg), two tablets, four times per day.

• Endone (Oxychodone 5 mg), two tablets, three times per day.

62 The following medications were administered in the amounts shown:-

Date Morphine Panadeine forte Endone

63 There were a number of matters of particular relevance to the plaintiff:-

• She was a young woman weighing less than 40 kilograms.

• She had had a prior history of heavy analgesic use and of opiate use.

• She had a pre-existing condition of kyphoscoliosis, which potentially restricted her lung function.

64 Dr. Burns opined that it was difficult to say from the hospital file that the plaintiff was given excessive doses of opiates but that it could be said that, with her abnormally shaped chest, what she was required to have by way of medication did cause some respiratory depression.

65 In cross-examination by Mr. Davies, SC., for the hospital, Dr. Raftos accepted that his criticism of drug administration subsequent to the plaintiff’s hospital admission was that whilst she should have been put on an opiate drug with a back-up for when the pain broke through the first one’s effectiveness, she should not have had a third. He accepted that the doses of morphine and panadeine forte given to the plaintiff were within acceptable limits but said that the Endone was higher than standard dosing.

66 The issue concerning analgesic/opiate drugs is not only related to the allegation of overdose per se but is also related to the question of breathing complications associated with the plaintiff’s pre-existing condition. Dr. Raftos agreed in cross-examination that the only complication from the administration of the complement of drugs was that of respiratory depression. The three drugs were all capable of causing that condition. Monitoring was required to ensure that the important side effect of respiratory depression did not occur. Drowsiness and constriction would be two relevant signs of that condition.

67 Dr. Burns stated that the combination of the narcotic or analgesic depressing effect and the predisposition to chest trouble from the plaintiff’s chest shape meant that “someone had to be monitoring the thing very closely and according to the notes they did”. I will return to examine this observation by Dr. Burn below (see “(c) The need for monitoring”).

68 Dr. Burns said that by 12 October it was considered that the plaintiff may have had a problem because the opiate medication was too high:-

“Q. Do I take it that your conclusion ultimately is that that was indeed what caused her problem – that is, the combination of her pre-existing compromised chest and the analgesics.

A. Yes.”

(b) The alleged failure to diagnose and treat inhalation pneumonitis

69 There was no doubt that the plaintiff succumbed to the condition of inhalation pneumonitis whilst she was a patient at Westmead Hospital following her admission on 8 October. The issue was whether or not it was related to the failure to properly manage and treat the plaintiff or whether it arose from some unrelated infection.

70 On 12 October 1999, Dr. Chin, orthopaedic intern, noted that the plaintiff was “weak/lethargic, also speech-slurred. Very weak + lethargic, difficulty breathing”. Dr. Johnston, medical registrar, noted that the plaintiff had been “breathless for 3 days, worse today. Noted by nursing staff to be drowsy today and slurred speech”.

71 In relation to the latter entry in the clinical notes, the submissions of the parties focused on whether this latter entry was based upon an account given by the plaintiff herself or whether it had been an observation that had been passed on to Dr. Johnson by a member of the medical or nursing staff. I observe at this point that the notes do indicate from time to time that when statements by the plaintiff were recorded, they were expressly attributed to her. This, however, is not the case with the latter entry.

72 A chest x-ray on 12 October 1999 confirmed that the plaintiff did have pneumonitis. Dr. Malca noted on 13 October 1999 that her impression was that the plaintiff had “probable respiratory failure/infection”. Upon admission to the intensive care the plaintiff was diagnosed, inter alia, as having sepsis “probably because of inhalation pneumonitis”. The notes also indicated that she was suffering from “acute respiratory failure because of a probable combination of inhalation pneumonitis and adult respiratory distress syndrome”.

73 Dr. Raftos, in his report of 30 May 2001 (p.5) considered that excessive doses of opiates had made the plaintiff excessively drowsy and suppressed her respiratory drive and her cough reflex. Elsewhere, he stated that both excessive dosages of opiates and untreated blood loss contributed to the plaintiff’s state of drowsiness. These, he stated, led directly to her inhaling regurgitated gastric contents causing the inhalation pneumonitis that contributed to her critical illness and admission to the intensive care unit.

74 By 12 October 1999, Dr. Raftos considered that the plaintiff clearly was in marked respiratory distress because of the pneumonitis which was the result of the inhalation of gastric contents due to her over-sedated state from the time of admission into hospital, but that this had not been suspected or detected until belatedly on 12 October 1999, four days after her admission. Dr. Raftos wrote:-

“The failure to prevent, detect, and treat Mrs. Markaboui’s inhalation pneumonitis until 4 and 5 days after her admission, represents a major departure from accepted standards of hospital medical care and led directly to her developing acute respiratory failure and multiple organ failure.”

75 Dr. Raftos also observed in his report that patients, such as the plaintiff, with kyphoscoliosis are at an increased risk of respiratory disease because their chest is physically deformed. Accordingly, he maintained that the plaintiff was, from the outset of her hospitalisation, at increased risk of developing respiratory complications after her accident (and accordingly had to be carefully managed) but, he claimed, hospital staff had paid little attention to that particular risk.

76 In oral evidence, Dr. Breslin, consultant thoracic physician, stated that the crepitations of the right base of the lung detected on 12 October were “new”. Dr. Breslin stated that breathlessness over three days could be due to pneumonia.

77 Dr. Raftos explained that pneumonitis is an inflammation of the lung due to inhalation of gastric fluids because of an incompetent gag reflex arising from sedation. He said that was not the same as pneumonia. There is a different cause. He stated that the sort of pneumonia that the plaintiff had was caused by the toxic effects of the gastric acids on the lung, whereas pneumonia is caused by bacteria.

78 In his oral evidence Dr. Raftos confirmed the inhalation pneumonitis probably arose because the plaintiff was over-sedated, and this contributed to the need for intensive care treatment. He also stated that there were no other features in the history other than the development of hypovolaemia and inhalation pneumonitis to explain her elevated heart rate.

79 Dr. Raftos also made the point that no-one at the hospital seemed to have known or postulated the cause of her emerging and altered consciousness and respiratory distress. He accepted that the plaintiff required substantial quantities of analgesics and opiates to control the pain. But the real issue was the requirement for close monitoring in order to ensure that the important side-effect of respiratory depression did not occur. Such monitoring would include clinical observation by nursing staff.

80 Dr. Burns stated that the plaintiff did have respiratory failure which built up on 12 to 13 October 1999 with changes noted in the lungs. He stated in his report of 27 June 2003 (p.5):-

“I believe she had respiratory failure due to hypoventilation due to some sputum retention and could well have had some infection in the chest as well, but it was never proven. Persons, such as Ms. Markaboui, with kyphoscoliosis are subject to impaired breathing if they become ill. I do not think that Ms. Markaboui had inhalation pneumonitis.”

81 Dr. Burns added, in relation to opiate dose, that he found it difficult from her file to say that she was given excessive doses of opiates but that it could be that, with her abnormally shaped chest, what was necessary by way of analgesia medication did cause some respiratory depression.

(c) The need for monitoring

82 I have referred above to Dr. Burns’ observation as to the need for monitoring given the depressing effect of medication and the plaintiff’s predisposition to chest trouble.

83 Dr. Burns assessed or assumed that the plaintiff was provided with a close level of monitoring according to the notes. In this respect he said:-

• the physiotherapist paid regular attention to her chest;

84 Dr. Burns agreed in evidence that the plaintiff was, at all material times, an “at-risk” patient, that is, at risk over and above an ordinary person of her age. He considered the “at-risk” problems were mainly respiratory. (The plaintiff’s deformed chest (kyphoscoliosis), meant that her lungs were restricted from expanding properly but this did not cause a problem when she was up and about.) People with kyphoscoliosis are at risk of hyperventilating, that is, the inadequate ability to expel carbon dioxide and take oxygen in.

85 Dr. Burns stated that the combination of the narcotic or the analgesic depression of respiration and the predisposition to chest trouble from the plaintiff’s chest shape “meant that someone had to be monitoring the thing very closely, and according to the notes they did. The physiotherapist paid regular attention to how the chest was. The oxygen level in the blood was monitored very closely and I think she was handled very well in the ward up till the 12th and she went off then fairly quickly”. (t.477).

86 An examination of the hospital’s notes, however, reveals that Dr. Burns’ statement that from the time of her admission the plaintiff received regular attention from the physiotherapist and that the oxygen saturation level in the blood was monitored very closely, is factually incorrect. There was no attendance of the kind he asserted according to the clinical records, until 12 October by which date the plaintiff was very unwell. It was on 12 October and not before that oxygen saturation levels were first investigated.

87 The close monitoring (in the form of physiotherapy review and monitoring of oxygen saturation levels) that was assumed and spoken of by Dr. Burns for possible respiration depression resulting from (a) analgesic medication combined with (b) the plaintiff’s predisposition simply did not take place. The fact that it did take place impacts significantly upon the opinion Dr. Burns expressed as to the adequacy of the monitoring. The clinical notes for 12 October are extensive indeed. They consist of 19 pages of entries for that date alone. They reflect the intensity of urgent attention that, by then, was clearly necessary. It is plain that by that the plaintiff’s condition had become grave. Indeed it is of some importance that the third entry for 12 October, at 11.30 hours, records the attendance of Dr. Johnston, medical registrar, who made detailed notes of the plaintiff’s condition. (I have referred to the notes earlier.) They include the following note:-

“Breathless for 3/7, worse today. Noted by nursing staff to be drowsy today with slurred speech.”

88 As I have previously stated, it was suggested in submissions that this entry may merely reflect what the plaintiff herself told Dr. Johnston. The difficulty in accepting that proposition is that the note does not itself suggest that the plaintiff was giving an account of her own symptoms and of course by the time Dr. Johnston saw her she was drowsy, very unwell and was slurring her speech. Whatever the true position be in this respect, the note does record the fact of breathlessness having developed over the preceding three days. That, of course, is hardly unsurprising, given the level of drug intake and the plaintiff’s pre-existing lung function condition. Dr. Kennedy stated that the entry would indicate that the plaintiff had had too much opiate medication administered to her over a period, in all probability, consisting of several days.

89 Dr. Burns agreed that the entry as to breathlessness suggested that something “had been going on” and was presumably worsening. It is true that earlier entries in the clinical notes do not, in fact, note amongst the various recorded observations, symptoms of breathlessness. It is clear, however, that the close level of monitoring of the kind identified by Dr. Burns had from the outset been required as a proactive approach so as to guard against breathing abnormalities developing on and from 8 October. However, that regular monitoring (by the physiotherapist and by taking oxygen saturation levels) did not, in fact occur until 12 October, by which time the plaintiff’s clinical condition had become well-established. The failure to monitor in the circumstances (particularly on the evidence of Dr. Burns and Dr. Raftos) evidences a sub-standard level of care for a patient such as the plaintiff who was in a “risk” category.

90 Impairment of respiratory function requires medical attention to compensate for a lack of oxygen. This the plaintiff did not receive until 12 October. The respiratory distress leading to impairment of lung function by at least 12 October I find, on the evidence, arose from the hospital’s failure to protect or guard against the respiratory risk to which the plaintiff was exposed and its failure to ensure that clinical monitoring and support was maintained to avert the risk by supplementary oxygen supply. In particular, such failure included the failure to undertake appropriate physiotherapy and monitoring of the plaintiff’s blood oxygen saturation levels on a frequent or periodic basis. Had such monitoring and support been given, it is likely, either, that the plaintiff would not have developed respiratory complications, or, that early signs of respiratory complications would have been detected soon after admission and effectively managed so as to avoid the condition that did eventually develop and contribute to the need for intensive care.

91 Dr. Burns explained the nature of the respiratory complications that were to be avoided in Ms. Markaboui’s case:-

“That at-risk problems were mainly respiratory, in my opinion, and I believe that the problems she developed were mainly respiratory. She had a deformed chest, kyphoscoliosis – that is, the lungs were restricted from expanding properly – which didn’t cause any trouble when she was up and about. But people with kyphoscoliosis are at risk of developing a syndrome (called) hypoventilation, that is, inadequate ability to expel carbon dioxide and take oxygen in.”

(t.477)

92 Dr. Burns indicated that the cluster of symptoms that became evident on 12 and 13 October in hindsight indicated the need for the plaintiff to have been closely monitored by a specialist physician to have averted respiratory complications. The need for close monitoring of the kind discussed by Dr. Burns on the evidence was a foreseeable requirement. The plaintiff’s hypoventilation was explained by Dr. Burns as “due to a combination of the shape, the sputum retention, which caused the pneumonia, and the respiratory suppression from the narcotics”. He went on to explain that “… I think they had a physiotherapist in the ward attempting to give her chest physio several times a day. Sputum retention can arise where the patient is having drugs that suppress coughing and is unable to sit up in order to have physiotherapy. Even if the physiotherapist could not find any sign of sputum retention, material in the airways can be absorbed or aspirated into the lung with secondary infection occurring in the material that has been retained. However, as earlier noted, physiotherapy was only administered later by which time the condition was established.

93 Dr. Burns stated that the appropriate care for a patient in the plaintiff’s position would have included “active physiotherapy which would involve a higher level of narcotisation” than she had been having.

94 The evidence of Dr. Burns in this respect is much in line with that given by Dr. Kennedy. In the context of pain relief administered to the plaintiff, having regard in particular to the issue of tolerance arising from the plaintiff’s prior history of drug taking (Panadeine Forte and Endone), Dr. Kennedy explained that there is a complex balance between administering drugs for continuing complaint of pain and the risk of respiratory problems. The variables to be considered include:-

• The reason for continuing complaints of pain (eg., whether the plaintiff is in the right position, whether they are being nursed appropriately).

• The need to titrate the doses required for pain relief rather than administration by standard dose instruction.

• In a patient with a significant risk (including in particular, those with severe respiratory problems due to muscular disease) there is a need for great caution “… because you could be relieving their pain by higher doses, but, in another area, that might be required to relieve their pain, but the ability to drop their respiration is still absolutely sitting there at the very dangerous level. So you have to be very, very careful and watch the patient and you dose the patient. You don’t take it out of the text book, you give the dose to the patient and see how they respond.” (t.548-549).

95 Dr. Kennedy identified the factors which would have classified the plaintiff as a “high-risk patient”. These included the fact that the plaintiff had muscular disease, the fact that she had some thoracic problems affecting her lungs and the fractures.

Conclusions in findings in relation to opiate analgesic medication and inhalation pneumonitis

96 The analysis of the evidence supports the following conclusions and findings:-

(a) The plaintiff was administered large doses of three opiate analgesic during the period 8 October 1999 to 12 October 1999 inclusive, such medication being administered for significant pain suffered by the plaintiff consequent upon the fractures she sustained in the accident. The plaintiff’s prior history of heavy analgesic use and of opiate use, together with the level of pain suffered by her produced a situation whereby large doses of medication were required and appropriate. Accordingly, I do not consider that the allegation of excessive use of opiate analgesics per se is, subject to the question of monitoring below, made out.

(b) The plaintiff’s pre-existing condition of kyphoscoliosis meant that the plaintiff was necessarily at risk of developing pneumonitis leading to marked respiratory stress and for that reason required extremely close monitoring of a specialist nature as a preventative measure. The results of such monitoring would provide the basis for appropriate adjustments to medication levels to either prevent the development of pneumonitis or to control any early signs of that condition.

(c) The plaintiff did develop the condition of inhalation pneumonitis and consequent respiratory distress culminating in the need for intensive care treatment.

(d) The close monitoring required for the proper management of the plaintiff upon her admission included physiotherapy review and the taking of oxygen saturation levels at regular intervals. These precautions were not adopted until 12 October, by which time the plaintiff’s condition of pneumonitis had become well established.

(e) The development of the condition of pneumonitis in a patient such as the plaintiff, given her predisposition, was clearly a foreseeable complication and had proper or close monitoring measures been adopted from 8 October, the likelihood is that the plaintiff would not have suffered from pneumonitis and consequent respiratory distress syndrome. It was that condition which contributed to the need for the plaintiff to be admitted to the intensive care unit for urgent specialist treatment.

(f) The failure by the hospital to monitor the plaintiff in a proactive way to avoid or control the development of pneumonitis given the level of medication and her predisposition represented a breach of duty on the hospital’s part of providing appropriate care and treatment of the plaintiff.

The hydration issue

97 One of the failures of the hospital, according to Dr. Raftos, was the failure to infuse intravenous fluids on a routine daily maintenance basis. This failure (together with the failure to replace blood loss through injury) he considered a major departure from accepted standards of hospital medical care. Dr. Raftos claimed that it led directly to the development of cardiovascular collapse, acute renal failure and multiple organ failure.

98 The hospital’s clinical records in relation to the plaintiff’s admission included a fluid balance chart. The chart did not record oral intake, but did record urinary output. However, the nursing notes do include reference to fluid intake, in particular:-

9 October 1320 drinking well

10 October 1315 tolerated fluids well

11 October 1420 tolerated fluids well

11 October 1950 given water to drink

12 October 2245 oral fluid intake this shift 1.5 litres

99 The urine output was recorded as follows:-

9 October 1300 mls

10 October 1360 mls

11 October 1150 mls

12 October 1130 mls

100 The hospital relied upon evidence from Dr. Burns who maintained that the plaintiff did have adequate oral hydration through until 13 October 1999 when she was transferred to the Intensive Care Unit where the intravenous line was inserted.

101 In his submission’s on behalf of the hospital, Mr. Davies, SC. observed that Dr. Raftos had made no mention at all of recorded urinary output in his report. Dr. Raftos conceded in cross-examination that urine output, along with other factors such as heart rate and blood pressure and peripheral perfusion, is an indication of the level of hydration. He conceded that he had expressed his view about her hydration levels without reference to recordings of the urine output.

102 I have had regard to Dr. Raftos’ evidence on this issue, particularly that given in cross-examination. It seems to me that he essentially accepted that the urinary output readings were within normal range even though he sought to adhere to the proposition that urine output had been substantially reduced by reference to the fact that the plaintiff passed 200 mls plus per day whilst in intensive care.

103 Dr. Breslin agreed in cross-examination that the urine output figures recorded in the notes were within normal limits, stating:-

“They are a bit low, but they are not too bad.”

104 In particular, he conceded that the reading on 12 October was quite a good output and that it appeared on the figures that up until and including 12 October urine output was within normal range.

105 Similarly, Dr. Kennedy conceded in cross-examination that over the five days upon admission on 8 October, the plaintiff seemed to be maintaining her fluid balance reasonably well on the basis of the figures recorded.

106 The urinary output for 8, 9, 10, 11 and 12 October 1999 was considered by Dr. Burns to be a good output and that by 13 October the hospital staff considered it was falling, being the day that the plaintiff went to intensive care.

107 I have had some regard to the entries in the notes which do indicate that the plaintiff was being provided with fluids, even though the quantity of fluids were not recorded. I do not consider that the evidence overall establishes, on the balance of probabilities, that the plaintiff was dehydrated as alleged. I accordingly find that the hospital’s care of the patient on the question of hydration, on the evidence, was appropriate and that there was no breach of duty in that respect.

The consequences of the hospital’s breach of duty

108 I am satisfied on the balance of the probabilities that the plaintiff suffered pneumonitis and that this condition arose from the administration of opiates and analgesics which acted to depress the plaintiff’s breathing, causing a respiratory distress syndrome that was not properly monitored and detected. The lack of proper care by the hospital led to the plaintiff developing inhalation pneumonitis which contributed, along with her hypovolaemia, to the need for intensive care treatment.

109 It is clear on the evidence that the plaintiff’s condition that developed in consequence of the hospital’s breach of duty had immediate and severe consequences. She, as I have earlier stated, fell into a very grave, potentially life-threatening condition. The immediate effects of the failure to treat in accordance with the standard of care identified in the evidence of Dr. Raftos and Dr. Burns included:-

• hypovolaemia;

• resultant hypertension;

• respiratory compromise/pneumonitis;

• renal dysfunction;

110 The combination of these conditions rendered the plaintiff in a weakened condition, best described in the hospital notes, in particular, those of 12 and 13 October. These notes refer to the plaintiff’s conditions as:-

• weak and lethargic;

• difficulty in breathing;

• drowsy and slurred speech;

• anxiety

111 The plaintiff was in intensive care from 13 October to 2 November. She was discharged from Westmead Hospital on 11 November 1999.

112 The plaintiff responded to the treatment in intensive care and substantially recovered from the combination of conditions that led to her admission to the intensive care unit. One important question in these proceedings is, given that the plaintiff, on the evidence, is now in an even more disabled state than she was before 8 October, is her worsened condition due, in any respect, to the hospital’s breach of duty of care?

113 The plaintiff relied principally for the answer to that question upon the evidence of Dr. Winer, consultant physician in rehabilitation medicine. Dr. Winer’s report of 29 January 2002 is part of Exhibit E. He also gave evidence on 14 April 2005.

114 I observe at the outset that whilst Dr. Winer had the hospital notes for the period of admission between 8 October and 11 November (Exhibit H), he did not have any contemporaneous medical records of treatment after 11 November. To that extent, his opinion on his assessment of the plaintiff’s condition and disabilities after 11 November and of his apportionment of any change in her condition arising from medical complications that occurred between 8 October and 2 November is lacking some relevant clinical data.

115 Dr. Winer’s report analyses the plaintiff’s condition and progress and resultant disabilities under a number of headings. In particular, he discusses the “before” and “after” 1999 respective conditions and disabilities. He said, based on the plaintiff’s history and his examination of her, “that there has been a significant increase in her disabilities since October 1999” (p.10). Dr. Winer stated that the increased disability was due to a combination of:-

• increased weakness in the upper limbs, particularly important in the right arm;

• increased fatigability (tires more easily);

116 Dr. Winer also expressed the opinion that the weakness in the right upper limb resulted from a significant period of non-use. I pause here to observe that the inability to move or use the upper limb was, to a large extent, a necessary consequence of the orthopaedic injuries and associated treatment. Dr. Winer suggested, however, that some restricted use would also have been consequent upon the time spent in intensive care.

117 Dr. Winer explained that weakness in muscles requires more effort and this in turn leads to increased fatigue which Dr. Winer stated “would be experienced by anyone who suffers multiple organ failure …”.

118 He went on to express the opinion, “her increased disability is predominantly attributable to the effects of the multiple organ failure”. I will deal with Dr. Winer’s evidence in greater detail below.

119 Dr. Breslin, in his report of 26 July 2002, analysed the injuries received in the motor vehicle accident as well as the effects of subsequent treatment and management of the plaintiff at Westmead Hospital. He observed that the length of time in hospital, the development of inhalational pneumonitis, which did not receive treatment for several days, caused more severe derangement of the plaintiff’s general clinical state and respiratory reserve than the accident purely on its own may have done. Dr. Breslin then added:-

“I cannot quantify what additional role the treatment or lack of it at Westmead had in the permanent deterioration in her disease that has clearly occurred since the accident, but I believe it made a material contribution …”

120 In his evidence on 15 April 2005, Dr. Breslin stated that the plaintiff’s muscles, which were effected by the disease process prior to the accident, had been markedly de-conditioned since the accident and because of her underlying basic condition she has been unable to get back to the way she was prior to the accident in terms of muscle strength and in terms of her general degree of independence.

121 Dr. Breslin stated that the long period of inactivity in hospital and the reduced activity since discharge from hospital had de-conditioned all muscles, including the intercostal respiratory muscles. He stated that after a period of five or six weeks spent in hospital, the plaintiff, taking into account her pre-existing condition, did not have the ability to recover the strength in those muscles. Accordingly both the period whilst lying in a hospital bed and the recovery period from the fractures meant that she is less able now to do things that she was able to do beforehand.

122 Dr. Breslin also gave evidence as to the following:-

• A loss in muscle strength in a patient such as the plaintiff could occur in a matter of days of inactivity.

• The material contribution resulting from the treatment or lack of it at Westmead Hospital referred to in his report (p.6) is a reference merely to a contribution in terms of time spent in hospital.

• In terms of whether the additional period in hospital (including the period spent in the intensive care unit) contributed on an ongoing basis, he was unable to say.

“the hospitalisation sure didn’t help her … so in what way did it cause any deterioration? It certainly caused a significant period of increased dysfunction. Did she ever get back to what she was before? Well, she tells me she didn’t. Would that be a factor in prescribing for her sleepover? Perhaps.”

123 Mr. Menzies, QC., counsel for the plaintiff, cross-examined Associate Professor Jones on the question as to contribution which the prolonged hospitalisation made to the plaintiff’s disabilities as distinct from the accident itself. In the several answers given in cross-examination, he made the following points:-

• Apart from the upper limbs, he could see no significant assessable deterioration in the plaintiff’s condition because of the accident.

“Initially, and probably for the first year or 18 months, the intensive care problems would have been a higher proportion than they ultimately became. So that issue would diminish with the passage of time …”

• Following recovery from abnormal liver function, in the longer term, the effects would be small, if any at all.

124 Medical evidence was led on behalf of the defendant in the motor vehicle accident proceedings (Mr. Gardner). It is unnecessary to detail that evidence and it is sufficient here to note the following:-

• Associate Professor Richard F. Jones in his report of 1 August 2001 refers to the accident as having accelerated the plaintiff’s condition by some months or perhaps years. He does not suggest that there are ongoing physical effects resulting from the hospital treatment.

125 Whilst the report of Dr. Winer of 29 January 2002 attributes ongoing effects to the hospital treatment specifically to weakness resulting from non-use of the right upper limb and increased fatigue, on analysis, I do not consider that Dr. Winer’s opinion on these matters is sufficiently takes into account the ongoing effect of the orthopaedic injuries sustained in the accident. I consider that in evaluating what continuing effects, if any, flow from the hospital treatment, it is necessary to bring into account the plaintiff’s evidence, the basis identified in Dr. Winer’s report for his opinion and the concessions made by him in cross-examination.

The plaintiff’s pre and post-accident hospitalisation condition

126 The plaintiff relied upon the reports of Dr. Winer to support a claim for ongoing disability arising from her hospital treatment and consequent need for additional personal and domestic care. That claim is complicated as elsewhere observed by reason of her pre-existing disabilities and the effects of the car accident.

The plaintiff’s pre-injury condition and need for care

127 Prior to the accident, the plaintiff had two carers attending her home two hours in the morning and two hours in the evening. They assisted with food preparation, dressing, showering and assistance in getting to bed.

128 The plaintiff had limited use of her forearms. She could move both arms from the elbows including her hands. She could move her shoulder a little. She could use her arms to eat and was able to paint and draw.

129 The plaintiff was able to leave her home in the wheelchair being able to utilise its controls. She was also able to operate the remote control for the televison.

The plaintiff’s post-hospital condition

130 Ms. Markaboui gave evidence as to her post-injury/post-hospitalisation condition. This included evidence as to the following:-

• She felt “nerve pain” when she came out of ICU, described as “like insects crawling on my skin” that lasted for some months.

• She had pain in her thighs, arms and legs, a pain not previously experienced.

• Her voice was different after the tracheostomy, but it improved over time.

• She had care and assistance when discharged home from her brother Tarek – especially to help with transfers because of her pain, muscle spasms and nerve pain. Accordingly, she had three carers, not two, as before for six months. Other family members also assisted including help to feed her.

• Her condition was worse now than before the accident. She said she could do nothing now with her arms. The carer feeds her now.

• She gets tired with her arms and frustrated.

• She is not able to sit upright in her chair as she falls to the left side.

• The plaintiff said she no longer goes shopping as she has panic attacks.

• She was unable to operate her remote control. Before the accident she could operate it. She cannot operate the mobile phone to make calls. She could do so before the accident.

131 I noted that Dr. Winer in his report (pp.4-5) received a history from the plaintiff of increased pain since the accident and increased disability including weakness in the arms and that she fatigues more quickly. The plaintiff agreed that she took pain medication before the accident. She also said that she considered before the accident that she required more personal care than she was in fact then receiving.

132 Dr. Winer considered, as earlier noted, that there was generalised weakness in the arms. Importantly, he stated in his report (p.11):-

“The weakness in the right upper limb cannot be due to the small fracture at the outer side of the right elbow. The chip fracture was only a minor dislodgment of a small fragment from the long protuberance at the lateral aspect of the elbow ...

Some of the weakness could be a result of a significant period of non-use and then restricted use during her period of invalidity which would be experienced by anyone during the period of recovery from time in the intensive care unit with multiple organ failure. Muscles weaken and waste comparatively quickly. … The effect of such weakness and wasting is all the more significant in a person where the muscles are already at a serious disadvantage as in spinal muscular …”

133 Dr. Winer observed that:-

• Whilst some wasting and much weakness can be reversed in an otherwise healthy person, the plaintiff was unable to participate fully in muscle strengthening exercise programmes, partly due to pain, party due to weakness and party due to fatigability.

• The fracture of the left humerus without significant displacement would be followed by recovery from weakness in a normal person. Wasting and weakness from non-use is “relatively more significant when these occur in muscles which already are partially atrophied and weak” (p.12).

134 In this way, Dr. Winer linked the medical complications, what he termed multiple organ failure, to the plaintiff’s ongoing disabilities. He considered her condition was stationary.

135 In cross-examination, Dr. Winer conceded:-

• The plaintiff’s scoliosis has probably worsened and this would restrict the lungs and hence breathing and bring on fatigue.

• The scoliosis, however, would not be expected to increase so rapidly as to be a major cause of respiratory compromise.

• Muscle wasting would result from immobility of the arm in plaster, especially in a person who already has muscle atrophy.

• The fact that the plaintiff suffered liver dysfunction as distinct from liver failure did not alter his overall conclusions.

• The factors restricting use of the arm were contractures, pain and fatigue.

136 In re-examination, Dr. Winer restated his view that weakness after 19 days in intensive care and associated immobility in that period produced weakness in the plaintiff. The period of weakness, that is, the combination of fatigue, tiredness and weakness of muscles, in her case would have lasted longer than with the normal patient. She was thereby rendered less able to regain function, particularly in the upper limbs, due to that combination of factors.

137 The hospital’s medical witnesses did not deal with the evidence of Dr. Winer on these aspects. Dr. David Bowers, specialist rehabilitation physician, did assess the plaintiff but does not directly or precisely seek to say that the period in intensive care and the dysfunction for which the plaintiff was there treated had made no contribution for her ongoing disabilities. He does state that the motor vehicle accident impacted upon the plaintiff’s employment capacity such as it was. He then addressed, in his report of 7 June 2002, her specific needs. He considered that she required, at that time, six hours per day personal care assistance and three and a half hours per week domestic care assistance.

138 The evidence, in fact, supports the conclusion that the plaintiff would have recovered from many of the effects of the conditions due to the hospital’s breach of duty and which put her into the intensive care unit and for the treatment given for those conditions following a period of approximately 18 months. The evidence establishes clearly enough that the fractures and the immobilisation consequent upon the treatment for them would themselves have produced muscle wasting within a comparatively short period of time, perhaps days or weeks, and that this contributed to the loss of the flexibility and muscle strength that she formerly had.

139 Accordingly, in assessing damages for breach of duty by the hospital, it is necessary to have regard to:-

(a) The nature of the medical conditions produced by the negligent treatment.

(b) The fact that those conditions combined to render the plaintiff gravely ill to the point of being life-threatening.

(c) The need for urgent intensive treatment to address and bring under control the medical conditions resulting from the acts and omissions of the hospital.

(d) The fact that the plaintiff experienced extreme distress, discomfort and dysfunction in terms of her level of consciousness and the other effects which I have earlier set out.

(e) The ongoing effects of (a), (b), (c) and (d) was particularly marked over a period of 18 months.

140 I will return to the assessment of damages in relation to these matters. Before doing so, I turn to the evidence on the plaintiff’s psychological condition.

Psychological sequelae

141 Dr. Anthony W.F. Harris, consultant psychiatrist, has treated the plaintiff since her initial referral in 1994. At that time he saw the plaintiff for depressive symptoms, she having had chronic depression which was traced in part to a history of past alleged sexual abuse and the frustrations experienced due to her significantly disabled state.

142 Initial treatment at that time was directed to control of substance abuse and thereafter treatment of the complex mix of depressive and anxiety symptoms.

143 Over the period 1994 to 1998, the plaintiff became more independent, electing to move out of her family home and she took up a TAFE course

144 At the beginning of 1999, the plaintiff was again referred to Dr. Harris, due to an increase in symptoms of depression and anxiety. Over a period of seven months, up to the time of the motor vehicle accident, Dr. Harris treated the plaintiff for increased depression, anxiety and anger and this treatment had been ongoing up till the date of the car accident.

145 Dr. Harris, who I regard as an impressive witness, stated that subsequent to the car accident, the plaintiff’s psychiatric morbidity centred on four areas:-

(a) depression as to her loss of independence and increasing levels of disability;

(b) post-traumatic phenomena associated with an increase in anxiety and related panic attacks due to fears surrounding travel;

(c) anger about her treatment in Westmead Hospital;

146 Dr. Harris has been treating the plaintiff since 1994 when he worked at the Wentworth Area Health Service and subsequently following his move to the Western Sydney Area Health Service in about 1997 or 1998.

147 In this detailed report of 8 March 2005, Dr. Harris sets out the history of the plaintiff’s condition and treatment in respect of a condition of chronic depression, mixed anxiety disorder together with the history of substance abuse, inter-personal difficulties and pain which has troubled the plaintiff for many years.

148 He noted that the number of interacting conditions affecting the plaintiff had led to marked limitation in her daily functioning initially and a difficulty with suicidal ideation on which she had initially acted on at least one occasion. However, over the course of treatment there was substantial improvement in her symptoms and her functioning. He saw her just prior to the motor vehicle on 1 October 1999.

149 In February 1999, the plaintiff returned to Dr. Harris for treatment following an incident involving sexual abuse. By October 1999, she had improved and Dr. Harris, in evidence, stated that his expectation was that she would continue with depression but that she would recover from the exacerbation due to the severe stressor that occurred in February of that year. He expected that she would have been able to get back into life and that the severity of her depression would have reduced and that she would be able to participate in activities such as her interest in art and music.

150 The plaintiff’s principal psychiatric symptom since the accident has been the return of her major depression. Associated symptoms included disturbance of sleep pattern, which has also been effected by an increase in symptoms of panic and anxiety and frequent nightmares.

151 Apart from the depressive symptoms, there had been a recurrence of her anxiety-based symptoms subsequent to the accident. Dr. Harris said that the plaintiff experienced considerable panic attacks when going outside the house and feels very frightened when she comes to cross over roads, particularly busy roads. Such fears had limited her ability to attend hydrotherapy. These anxiety symptoms, Dr. Harris stated, were hallmarks of a post-traumatic stress disorder.

152 Of particular relevance to the proceedings against the hospital, Dr. Harris stated that the plaintiff’s post-traumatic symptoms were also related to her stay in hospital, particularly the experience of being in the Intensive Care Unit. In 1999, she was required to attend Dr. Harris at Westmead Hospital and this had triggered painful memories of her treatment at the hospital and caused increased anxiety. He recorded in his report of 16 May 2002 (p.5) (part of Exhibit E) that she continued to have difficult and frightening dreams, some of which included hospital experiences.

153 In his report of 7 March 2005 (also part of Exhibit E), Dr. Harris summarised the history of consultations prior to the motor vehicle accident and then the effect of the motor vehicle accident on her. He observed in the report (p.7) that subsequent to the initial post-accident consultation, her level of depression increased as did her anxiety and agoraphobia. Her symptoms were aggravated by her realisation that she was not regaining her strength and movement and was becoming more restricted than before. Dr. Harris, in summary, stated that the plaintiff had experienced a significant exacerbation of her mood and anxiety disorders accompanied by an increase in the level of despair that she experiences and recurrent ideas of suicide. She had, in Dr. Harris’ assessment, become totally dependent upon carers for all her needs.

154 In cross-examination, Dr. Harris confirmed that the anxiety symptoms related to her fear of hospitals arising from her treatment at Westmead remains.

155 The plaintiff reported being extremely traumatised by the hospitalisation and recounted patchy memories of events during her admission. Subsequent to the initial post-accident consultation, her level of depression increased, as did her anxiety and agoraphobia. The plaintiff’s realisation that her strength was not returning and that she was more restricted than before was causing her stress and additionally she experienced panic when outside the house and other anxiety symptoms. Dr. Harris said that the hierarchy of fears which the plaintiff experienced subsequent to the accident had many features of a post-traumatic stress disorder.

156 In cross-examination, Dr. Harris gave evidence that in 1988 the plaintiff had a number of attendances upon him in relation to pain, panic attacks and anxiety.

157 In terms of the plaintiff’s past history, he confirmed that the plaintiff had attended Nepean Hospital (June or July 1995) in relation to a suicide attempt and a further admission for a suicide attempt on 5 July 1999, both occasions involving an overdose of therapeutic drugs.

158 Whilst Dr. Harris identified certain fears engendered by her experiences in Westmead Hospital, the severity of her anxiety condition, agoraphobia and mood disturbance appear to be principally related or attributable to the loss of independence consequent upon the injuries received in the motor vehicle accident and the lack of recovery of her physical health. As Dr. Harris expressed in his report of 7 March 2005 (p.8), the disturbance in mood has increased as the extent and treatment resistant nature of her physical disability has become evident.

159 On this basis, it has been the motor vehicle accident and its physical effects that has given rise to an ongoing exacerbation of the plaintiff’s pre-accident psychological condition and well-being. The psychological impact or effects of the treatment at Westmead Hospital were of a more limited nature as described in Dr. Harris’ report.

Assessment of damages

(a) The general approach

160 The damages attributable to the plaintiff’s hospitalisation are to be assessed by reference to the immediate and consequential impact of the hospital’s breach of duty against the background of, and with due allowance for, both the plaintiff’s pre-existing (pre-accident) disabilities as well as the physical and other effects of the motor vehicle accident and the associated needs of the plaintiff due to those factors.

(b) General damages

161 The plaintiff is entitled to an award of general damages in relation to the medical conditions that developed in consequence of the hospital’s breach of duty and the effects of such conditions upon her. Those conditions were severe and were life-threatening. They produced a number of effects upon the plaintiff as summarised in paragraphs 130 and 139 of this judgment. I consider on the evidence those effects extended beyond the period of hospitalisation and to the extent indicated by Dr. Winer’s evidence. I consider $80,000 is an appropriate amount to compensate the plaintiff for the physical and psychological consequences of the hospital’s breach of duty.

(c) Cost of past personal care

162 The plaintiff’s claim for the cost of personal care and the assistance rendered by her family members is related principally to the motor vehicle accident and its effects.

163 However, there is a remaining issue as to whether the plaintiff’s condition in the period following her discharge from Westmead Hospital on 7 November produced a need for personal assistance or care due to the effects of the hospital’s breach of duty. The plaintiff did receive additional care of 39 hours per week, but that did not commence until about two and a half years after the accident through until 18 March 2005 (the plaintiff’s written submissions, paragraph 45). That extra care was provided by the motor vehicle insurer. It is reasonable to adopt 39 hours per week as a basis for the immediate 18 months following the accident when additional care was provided gratuitously by family members. That 18 month period was the period Associate Professor Jones considered the effects of the hospital’s breach to be most pronounced. The evidence does not segment the additional care requirement in the first 18 months between the motor vehicle accident and the effects of the hospital’s breach of duty. However, it is clear that the majority of that care was due to the effects of the motor vehicle accident. I consider that the need for additional care and assistance in that 18 month period should be regarded as two-thirds attributable to the car accident and one-third to the hospital’s breach of duty. The calculation of past care and assistance on this basis is as follows:-

18 months: 72 weeks x 39 hours per week x $17 per hour

$15,912

164 Damages for additional past care and assistance due to the hospital’s breach of duty is therefore assessed as $15,912.

(d) Future cost of care

165 The evidence establishes that the plaintiff had a need for personal care and domestic assistance prior to the motor vehicle accident. The evidence also indicates that the plaintiff had, before that accident, intended to press for additional care beyond that which was then provided for her on the basis that her needs were such that there was a requirement for the level of care to be increased.

166 I also have regard to the evidence which establishes that the increased disability following the motor vehicle accident is, to a considerable extent, the consequence of physical injuries sustained in that accident and the residual effects flowing from them. I have referred earlier to the evidence, including, in particular, that of Dr. Winer, on the ongoing effects he attributed to the immobility and period of hospitalisation in the intensive care unit. I have also referred to the opinion of Associate Professor Jones in which he stated that the effects of the intensive care period and the associated problems would have been more intense or significant in the first year or 18 months.

167 I consider the evidence does require, in assessing the claim for future care in the present proceedings, that significant allowance be made for the fact that the injuries sustained in the motor vehicle accident had contributed in a significant measure to the ongoing need for additional care beyond that which was provided to the plaintiff as at the date of the accident.

168 The evidence on the plaintiff’s future care requirements was addressed in a number of reports which may be summarised as follows:-

(a) Ms. MacMaster, consultant occupational therapist, in her report on behalf of the hospital dated 9 May 2003, stated that the plaintiff requires the assistance of an additional two hours daily over and above what was normal and expected prior to the injury. This included time for feeding and grooming.

(b) Ms. Kennedy-Gould, occupational therapist, in her report to the plaintiff’s solicitors dated 22 August 2002, considered that the then current care regime did not adequately meet the plaintiff’s requirements for significant periods of the day and considered that the plaintiff required a 24 hour care regime. She adhered to that opinion in her report of 25 January 2005.

(c) Associate Professor Richard Jones, in his report of 9 December 2004, on behalf of the defendant to the motor vehicle proceedings, considered that the plaintiff’s personal care need will progress as time passes, as allowance needs to be made for a progression of spinal muscular atrophy.

169 The assessment of Ms. Kennedy-Gould, is out of line with the other assessments of the plaintiff’s need for personal care and assistance and I do not consider that a 24 hour care regime is supported by the evidence.

170 Given Professor Jones evidence, that the contribution from the hospital’s breach of duty will diminish as time goes by, there is a need to establish a proper basis on the evidence to consider the claim for future care against the hospital. Whatever approach is taken to this aspect of the claim, due allowance must be given to the fact that any additional care requirements have, in part, been brought about by the effects of the motor vehicle accident. In fact, those effects have, I consider, been the principal contributor to the increased requirement for care. I must additionally, as I have previously indicated, make allowance for the fact that as time goes by the plaintiff’s need for care will largely result from a deterioration in her pre-existing condition. I must also bring into account the likely diminishing contribution that the effects of the hospital’s breach will have over time in accordance with the evidence of Associate Professor Jones.

171 The careful assessment by Ms. O’Reilly of an additional 17.5 hours per week when taking all factors into consideration, I consider, is an appropriate starting point for calculating the cost of future care attributable to the hospital’s breach. This is in line with the submission of senior counsel on behalf of the defendant in the motor vehicle proceedings.

172 Another variable to bring into account is the evidence concerning the plaintiff’s life expectancy. This might be summarised as follows:-

• Associate Professor Morgan considered the plaintiff now had a 50% chance of living to age 50.

• The evidence of Dr. Breslin in the plaintiff’s case was that she will die within the next 10 years at the most.

173 The range of opinions mainly varies between approximately six to 10 years plus life expectancy. On the three percent tables, the multiplier for 10 years is 451.7. The basic calculation of the cost of care on this basis at a cost of $30 per hour, accordingly, is:-

174 Adopting the same approach which I have adopted to the assessment of past care, namely, that the hospital’s breach contributed one-third to the overall need for increased care, one-third of $237,142 results in a calculation of $79,047 for future care attributable to the hospital’s breach.

175 This latter figure, I consider, requires further adjustment in the light of Associate Professor Jones’ evidence to which I have earlier referred, namely, that as time passes, the effects of the hospital’s breach will diminish. On this account, I consider that the last mentioned figure should be discounted by a further 25% to produce a figure of approximately $59,285 for additional future care attributable to the hospital’s breach of duty and consequent requirement for intensive care hospitalisation.

(e) The claim based on loss of earning capacity

176 The plaintiff was not gainfully employed at the time of the accident. The plaintiff attended a TAFE course in a Diploma in Fine Arts course where she undertook painting and drawing. She produced in evidence samples of her work which were date-marked 1994 and 1995. She stated that her long term ambition was to study at university and hopefully gain employment and be able to sell her artistic work.

177 The only paid employment she has had was in 1994 when she undertook paid work experience at a place called Garage Graphics which job she obtained through the Northcote Society. The work lasted for about four months. The plaintiff had continued to attend TAFE up until the date of the accident.

178 On the evidence, I do not believe that the plaintiff has established that she had any realistic prospects of undertaking consistent paid employment as at the date of the motor vehicle accident. She, of course, at that time was significantly disabled and had had only limited education and very limited employment experience as at October 1999. There is no evidence to indicate what the prospects of the plaintiff might have been in terms of exploiting her artistic interests for the purposes of earning a living or, at least, generating income.

179 The plaintiff was born on 16 January 1970 and is accordingly 35 years of age. Given her personal circumstances, including her pre-existing disabilities, her limited education and lack of work experience, I do not consider that it is either realistic or appropriate on the evidence to consider an award of damages as claimed based on impairment of earning capacity for claimed past or future economic loss.

180 The plaintiff’s claim against the hospital was heard concurrently with the claim against the driver of the motor vehicle involved in her unfortunate accident. I have determined that a verdict should be entered in favour of that defendant in those proceedings.

181 The plaintiff’s claim for economic loss in those proceedings could only have established, in my view, a limited claim based upon the proposition that, given that pre-accident she had some independence of function she may, on completing her course, have undertaken intermittent employment perhaps in a sheltered or protected workplace as she had done in 1994. Such a claim was not calculable on a specific rate per week for a specific period but would, had the plaintiff succeeded in the motor vehicle claim, I believe, have been assessed as a lump sum “cushion” or “buffer” of the order of $30,000.

182 Based on the analysis of Dr. Winer referred to earlier, the effect of the hospital’s breach combined with the effects of the accident leading to her post-accident impairment, especially in her upper limbs, the hospital’s contribution would, in my view, be no greater than one-third of such estimated loss of $30,000. I have determined that an allowance of $8,000 is the appropriate amount under this head of claim to be awarded in these proceedings.

(f) Medical/treatment expenses and interest

183 The plaintiff is entitled to the cost of any treatment expenses with respect to her treatment between 13 October 1999 and 7 November 1999 and any other treatment expenses related to the conditions which necessitated treatment in the intensive care unit. These were to be agreed between the parties. I have also not heard submissions in relation to questions of interest and costs.

184 I will accordingly grant leave to the parties to make further submissions in relation to the following:-

(a) Medical, hospital and other expenses.

(b) Interest.

Summary of heads of claim (b), (c), (d) and (e) (excluding effects of motor vehicle accident)

• General damages $80,000
• Past additional gratuitous care and assistance $15,912
• Cost of future care $59,285
• Impairment of earning capacity $8,000

$163,197

185 Accordingly, there will be a verdict in favour of the plaintiff in the sum of $163,197. I dismiss the cross-claim in these proceedings.

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Citations

Markaboui v Western Sydney Area Health Service, t/as, Westmead Hospital [2005] NSWSC 649

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Henville v Walker [2001] HCA 52

CITATION:	MARKABOUI v. WESTERN SYDNEY AREA HEALTH SERVICE, t/as, WESTMEAD HOSPITAL [2005] NSWSC 649
HEARING DATE(S):	Monday 11 April to Friday 15 April 2005; Monday 18 April to Friday 22 April 2005; Monday 26 April to Tuesday 27 April 2005
JUDGMENT DATE :	12 July 2005
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	A verdict in favour of the plaintiff in the sum of $163,197. The cross-claim is dismissed. Leave granted to the parties to make further submissions in relation to medical, hospital and other expenses, interest and costs.

CATCHWORDS:	Plaintiff had pre-existing disabilities - hospitalisation following motor vehicle accident - treatment for blood loss - dosage of opiates given - hydration of the patient - plaintiff developed inhalation pneumonitis - multiple organ failure - admission to intensive care unit - need for plaintiff to have been closely monitored - breach of duty by the hospital - general damages - damages for past care and assistance - damages for future care.
CASES CITED:	Tubemakers of Australia Limited v. Fernandez (1976) 50 ALJR 720
PARTIES:	Fouadi MARKABOUI v. WESTERN SYDNEY AREA HEALTH SERVICE, t/as, WESTMEAD HOSPITAL
FILE NUMBER(S):	SC No. 20106 of 2003
COUNSEL:	Plaintiff: P. Menzies, QC./R. Wood/S. Kerrigan Defendant: D. Davies, SC./G. Gemmell
SOLICITORS:	Plaintiff: Maloufs Defendant: Francis Allpress