Martin v Minister for Health

[2016] WADC 15

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   MARTIN -v- MINISTER FOR HEALTH [2016] WADC 15

CORAM:   BOWDEN DCJ

HEARD:   9 NOVEMBER 2015

DELIVERED          :   5 FEBRUARY 2016

FILE NO/S:   CIV 3195 of 2013

BETWEEN:   ROY CHARLES MARTIN

Plaintiff

AND

MINISTER FOR HEALTH
Defendant

Catchwords:

Medical negligence - Failure to perform ultrasound, duplex ultrasonography, and EMG - Failure to make an earlier diagnosis of compression of the right median nerve - Whether such failure resulted in any harm being suffered by the plaintiff

Legislation:

Civil Liability Act 2002 (WA)

Result:

Judgment for the plaintiff in the amount of $444,254

Representation:

Counsel:

Plaintiff:     Mr D I Connor

Defendant:     Mr D Clyne

Solicitors:

Plaintiff:     Connor Legal

Defendant:     Panetta McGrath

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

Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48

Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408

Bolam v Friern Barnet Hospital Management Committee [1957] 1 WLR 582

Brocx v Mounsey [2010] WASCA 196

CSR Ltd v Eddy [2005] HCA 64

Dobler v Halverson (2007) 70 NSWLR 151

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553

Griffiths v Kerkemeyer (1977) 139 CLR 161

Kember v Thackrah [2000] WASCA 198

Lyle v SOC [2009] WASCA 3

Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705

March v E &MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Marinko v Masri [1999] NSWCA 364

Mawdesley v Owners Of Careening Gardens Being Strata Plan 3848 [2012] WADC 103

McGlen‑McLeod v Galloway [2011] NSWDC 163

McKenna v Hunter and New England Local Health Districts (2014) Aust Torts Report 82-159; [2013] NSWCA 476

Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 238 ALR 761

Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479

Strong v Woolworths Ltd [2012] HCA 5

Tabet v Gett [2010] HCA 12

Van Gervan v Fenton [1992] HCA 54

Villasevil v Pickering (2001) 24 WAR 167

Western Australia v Watson [1990] WAR 248

Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485

1. BOWDEN DCJ:  Mr Martin was admitted, on 20 November 2012, to the Armadale‑Kelmscott Memorial District Hospital (AKH) for treatment for septic arthritis.

2. During the course of that treatment an attempt was made, on 23 November 2012, to peripherally insert a central catheter (PICC) line via his right arm so he could be treated with antibiotics.  During the attempt he alleges he suffered injury to the interior of his right arm which resulted in compression of his right median nerve.

3. Mr Martin pleads that it was not until 24 January 2013 that an ultrasound was performed and the injury diagnosed and not until 28 February 2013 that he underwent surgery to decompress the right median nerve.

4. Mr Martin does not allege that the attempt to insert the PICC was negligently performed nor does he dispute that the ultrasound, EMG and surgery were competently performed, but says the surgery should have occurred within about two weeks of the failed PICC attempt.

5. He says that following the failed PICC attempt he developed symptoms in his right arm and hand consistent with compression of the right median nerve and complained to AKH staff of pain from approximately 23 November 2012, and made similar complaints to Fremantle Hospital (FH) staff from approximately 6 December 2012, when he came under their care.  He says that if those symptoms and complaints were investigated earlier, decompression surgery would have occurred earlier.  He says the defendants were negligent in not carrying out those investigations and surgery within the timeframe I have referred to.

6. He says that as a result of those delays his right median nerve suffered from prolonged compression which resulted in significant disability to the hands' function.  This not only caused significant pain but resulted in past and future economic loss as he is unable to work.

7. He further says that if surgery was performed within about two weeks of the failed PICC procedure, he would have regained the full use of his arm within days or weeks of the surgery and suffered little, if any, permanent damage or at the very worst his recovery time and the functionality of his median nerve and hand would have been greatly improved.

8. The defendant accepts they are vicariously liable for the negligence of its employees at both the AKH and FH but says that the 12‑week period between the PICC line procedure and the surgery was, in all of the circumstances, including the date and nature of Mr Martin's complaints, the period required for observation, investigation, diagnosis and surgery, entirely appropriate.

9. Further, they rely on s 5PB of the Civil Liability Act 2002 (WA) and say that, based on the signs and symptoms exhibited by Mr Martin from 23 November 2012 ‑ 28 February 2013, the treatment provided was in accordance with the practice that was widely accepted by professional peers as competent, professional practice.

10. Alternatively, the defendant says that if Mr Martin has suffered loss and damage that was caused or contributed to by a multitude of Mr Martin's pre‑existing medical conditions and, even if there was negligence on behalf of their employees, Mr Martin has not suffered any loss that is attributable to them.

The evidence

1. Each party called seven witnesses.

2. The plaintiff's witnesses were Mr Martin (the plaintiff), Mrs Martin (his wife), Dr Allison (hand surgeon), Professor Myers (general and vascular surgeon), Mr Robertson (telecommunications instructor), Associate Professor Thompson (occupational physician) and Ms Cunningham (occupational therapist).

3. The defendant called Dr Gillett (occupational physician), Dr Ryan (consulting physician), Ms Jeffery (physiotherapist), Dr Hamilton (retired plastic surgeon), Ms Chacko (registered nurse), Dr Manning (infectious disease physician), and Mr Strahan (consultant plastic surgeon).

The medical records

1. The medical records are of some importance.

2. The following is a brief summary of those records.  The entire contents of each record are not reproduced.  It is necessary to examine them in some detail to give context to the various issues for which Mr Martin was being treated.  The Hospital In the Home service (HIH) is a service for patients with severe infections.  Nurses visit the patient's home daily and administered intravenous antibiotics and there is a weekly review by a medical officer at the hospital.

Exhibit	Date	Time	Content
C41	20-11-12	1800 and 1830	patient has had two episodes of vomiting….Ultrasound …aspiration of the left shoulder … possible osteomyelitis/discitis … if deteriorates to go to Fremantle Hospital for a MRI (Dr Ryan t/s 222-224).
C40	20-11-2012	2200	… patient complained of pain… 10/10 on arrival … patient very drowsy ..
C42	21-11-12	1030	… back pain associated with fever … left shoulder and knee painful … blurred vision … extra antibiotics (Dr Ryan ts 224)
C43	21-11-12	11.15	… acute on chronic back pain and fevers … gram – positive cocci on blood cultures still feels weak lower limbs … eye disturbance … CT head … MRI  spine at Fremantle Hospital today or tomorrow( lumbar sacral spine) continue intravenous antibiotics, if no epidural abscess will likely need 4 – 6 weeks of intravenous antibiotics with home in the hospital ,prophylactic clexane (Dr Ryan ts 225)
C45,46,47	22-11-12	Dr Benson's basic investigations ..  MRI of brain (Dr Ryan t/s 226)
C47	23-11-12	1330	… nil complaints of pain .. patient went for PICC insertion – not completed  … IVC inserted in other arm.
C48	23-11-12	1445	… feeling better today, mobilised with frame to toilet and back to bed … back pain improved … has not noted any blurred vision or double vision today … still complains of right sided deafness … streptococcus, L5 S1 early facet joint sceptic arthritis ,severe central canal stenosis L4 –L5 ,diplopia ……  for MRI brain … plan PICC line insertion, continue penicillin ,MRI in Fremantle Hospital next week or if mobility improves can have it done at SKG – review on Monday(Dr Ryan ts 226-227)
C49	24-11-12	0310	… patient was given PRN Oxynorm 5 mg immediate release as complaining of pain in his PICC line site (where tried to put the PICC line) and settled …(Ms Chacko t/s 430)
C50	24-11-12	17.45	… Roy says he does not want another attempt at a PICC line unless sedated – would prefer a central line – but advised that increased risk of insertion and infection etc …
C51	25-11-12	W/R… no pain. Still mentions that the PICC line was painful and would prefer central line or use neck veins
C58	25-11-12	Dr Benson … feeling better CPR 340 down to 120 … back better, still leg weakness, left greater than right.  Right sided deafness and nystagmus persists. MRI. complaining of painful  neuropathy feet. proceed … before discharge (Dr Ryan ts 229, 230)
C52	26-11-12	1030	… patient feeling better today .Continues to complain of visual disturbance and sinusitis .MRI spine.. background of rheumatoid arthritis sjogren's syndrome (igG4).. MRI brain today, ophthalmology ,eye nose throat review. patient refused further attempt at PICC line. (Dr Ryan ts 227, 228
C53	26-11-12	1250	… suggested PICC line should be considered again.. (Dr Ryan ts 228)
C54	26-11-12	1620	…wife who reports patient a bit agitated, a bit disorientated/confused and very tired, not following conversation well …speech a bit slurred
C54	26-11-12	1630	All entries relate to Mr Martin's back and mobility status (Ms Jeffery ts 375 – 376
C55	27-11-12	anaesthetist PICC line inserted in operation theatre consented. Strict asepsis, 1% chlorhexidine wash. Ultrasound guided technique … chest x-ray (Dr Ryan ts 228, 229
C57	28-11-12	1130	… history noted MRI brain reviewed  No acute lesions .. observation stable has had PICC line yesterday. Continue antibiotics eye nose and throat and ophthalmology review. (Dr Ryan ts 229)
C57	28-11-12	1526	entries relate to Mr Martin's back and mobility (Ms Jeffery ts 377 – 378)
C59	29-11-12	Dr Benson … option of home in the hospital to complete treatment once acute issues are resolved. For another 2 to 4 weeks off IV, penicillin or ceftriaxone. Oral omoxil for total duration (Dr Ryan ts , 230,231).
C61	30-11-12	… history noted. Patient stable.  Ongoing pain when mobilising … continue on the intravenous benzylpencillin for the septic arthritis as per the ID plan. Home next week or consider rehabilitation in the rehabilitation ward at Armadale if mobility does not improve …(Dr Ryan 231 )
C62	1-12-12	1115	.. Background. Septic arthritis on penicillin … Currently feels well.  Eating and drinking small amounts due to decreased appetite. Pain under control. Continue current treatment (Dr Ryan 231 – 232)
C63	2-12-12	0205	(Ms Chacko t/s 430) … Patient was complaining of numbness in his hands at the beginning of the shift, RMO was informed.  Did review the patient.  No further orders …[ First recorded complaint of numbness or tingling]
C63	2-12-12	1040	Dr Mazlin … day 13 … septic arthritis … feels good … eating and drinking … mobilisation … looks well all observations … continue current management (Dr Ryan 232)
C63	2-12-12	1200	… Complains of numbness on right fingertips, RMO informed
C64	2-12-12	1945	…Has complained of tingling in fingers – RMO aware.
C64	3-12-12	0335	… Complaints of numbness in his right arm and fingers noted again tonight. ( Ms Chacko t/s 430)…
C64	3-12-12	Penicillin … patient had a fever yesterday.  Right hand numb feeling query carpal tunnel (Dr Ryan  232)
C65	3-12-12	1250	Dr Tate … septic arthritis, L5, S1.  Strep pheumoniae.  Rheumatoid arthritis … ischaemic heart disease.  Benign prostate hypertrophy … back pain for six weeks.  Felt terrible.  Running down lower limbs.  Fevers for a couple of days prior to the admission.  Visual disturbance still being investigated.  Walking not back to normal.  Intravenous antibiotics for six weeks.   Complaining of decreased sensation and pain right hand arm since failed PICC right upper arm.  Just done examination … impression may be safe for discharge …
C66	3-12-12	1315	… Complain of some tingling in right hand has been present for a couple of days.  Med registrar and Dr Tate informed by patient- probably nerve problem.
C66-67	3-12-12	1530	... Complained of numbness, bilateral hands and ache on the right ulna side of the arm and the forearm over last 48 hours …may irritate haematoma on arms. ( Ms Jeffery t/s 378-379)
C67	3-12-12	1600	Patient reported right hand and forearm experiencing numbness -reported to doctor .Was able to discriminate deep pressure.  However poor pincer and tripod grips …unable to hold pen/pick up fine objects. fine motor skills poor. ( Ms Jeffery t/s 378)…
C67	3-12-12	1650	– WR … Patient feels better …Left (wrote left instead of right )   Hand medial(sic) nerve distribution numbness .Plan home refer to ENT ..(Dr Ryan   ts 234)
C68	3-12-12	2005	…  Complaint of pain at right upper arm with pain scale of 4 out of 10 … with haematoma noted at right upper arm and surrounding the PICC line.
C68	4-12-12	1115	… Haematoma noted at right and left upper arm.
C69	4-12-12	1245	… no new issues.  Home in the hospital for intravenous antibiotics .To liaise with infectious disease department. Ophthalmology review tomorrow.  ENT review Friday.  Request x-ray images.  Continue the IV antibiotics (Dr Ryan  234)
C69	5-12-12	5.15	… Patient complains of pain to right upper arm due to 'doctors'( according to patient) …
C69	5-12-12 additional	0700	... patient complains of bruised right upper arm which was from the failed insertion of PICC line before the PICC line in left arm.  Otherwise patient settled.  Patient marked the site with an X
C69	5-12-12	… resident medical officer … patient not in bed CRP decreasing  (Dr Ryan ts 234)
C71	5-12-12	home in the hospital.  Ophthalmology.  ENT discuss with ID consultant … happy with a plan to continue 2 to 4 weeks of intravenous antibiotics …(Dr Ryan ts 234)
C70	5-12-12	2100	… Oxynorm given for painful right arm where bruised.
C70	6-12-12	1230	… Oxynorm at 1045 hours given for right arm pain.
C4	6-12-12	Inpatient progress letter … Day 4 PICC line attempts failed Day 13 Reports mild paraesthesia of right hand – ulna and median nerve distribution.
C5	6-12-12	Discharge letter … 4. GP please follow progress of Right hand paraesthesia.  If no improvement, suggest booking for nerve conduction studies +/- refer to orthopedics for ? carpal tunnel syndrome or impingement at olecranon ulna canal.
D229	6-12-12	… Bruising and haematoma on other arm (failed PICC insertion).  Has numbness in hand, RMO at Armadale aware.  Plastics clinic 7-12-12.
D229	7-12-12	… Given Pregabalin for right arm nerve pain.
D223	7-12-12	Home in the hospital clinic … spinal infection ..blood cultures . Two failed PICC line insertions.  Neuropathic pain and weakness right hand.  improved on antibiotics … Median nerve weakness … Pain reasonably well controlled … Neuropathy of right median nerve possibly due to carpal tunnel syndrome (Dr Manning ts 434).  To start Pregabalin at 75 mg twice per day.
D229	8-12-12	0945	… Roy has had a terrible night with pain in right arm despite taking all the analgesics he has.  I note he has been prescribed Pregabalin again as of yesterday.
D224	12/13-12-12	…spinal infection..improving on IV benzylpenicillin .. Still complaining of neuropathic pain but slightly improved with Lyrica.  Will try increased dosage 150 mg twice per day … Plan review in one week.  (Dr Manning t/s 435)
D151	15-1-12	… EMG report … conclusion   The EMG findings are of a severe right median proximal median neuropathy, proximal to the branch to pronator teres.  There is almost complete loss of function of the anterior interosseous branch with mark damage to branches to pronator teres and hand.  There is an incidental mild right ulna neuropathy at the elbow.
E77	17-12-12	Dr Thonell (Mr Martin's GP) to Dr Ryan … I ref him to EMG study.  See result included.
D225	19-12-12	… receiving treatment for spinal infection ..benzylpenicillin.. Median nerve palsy that's likely due to difficult or failed PICC insertion at Armadale.  On Pregabalin 150 mg twice per day. … Feeling okay except nerve pain right hand …Right hand, poor abduction right thumb…Decreased sensation right palmar surface, thumb and next 2½ digits…Poor flexion of digits.. EMG report – severe right median neuropathy approximate to the branch of pronator teres…Right median nerve palsy …Review on 31/12. . spinal infection improving ( Dr Manning t/s 436)
D226	31-12-12	… More concerned about his right arm – getting sensation of electric shocks and burning pain in right hand …Right hand still very poor, thumb abduction…Slightly improved right hand flexion.  Increase Pregabalin to 300 mg twice daily.  Refer to hand clinic (plastics)…  Discuss with neuro +/- plastics … Discuss patient with plastics reg..  He advised seeing patient in plastics hand clinic next week and discussing patient with acute pain services … unable to contact acute pain services or plastics clinic…will try again on Wednesday 2nd … infection improving ( Dr Manning  ts 436 )
D40/39	30-1-13	… Discharge from hospital in the home on New Year's Eve.
D143	3-1-13	Internal referral from infectious disease at Fremantle hospital to plastic surgery at Fremantle Hospital  … Unfortunately when he had the PICC line put in (right arm) he sustained lots of bruising and consequently right median nerve palsy. Nerve conductor studies reveal a severe right (proximal) median nerve palsy.  He has very poor motor function in the right hand and lots of neuropathic pain for which he is on Pregabalin … We would value your advice on any further investigations or management.
D196	10-1-13	Consent  by Mr Martin to right arm exploration …resect  graft nerve (median), nerve transfer.
D141	10-1-13	Right median iatrogenic… bicep level … see rehabilitation pre‑op    Internal referral to hand therapist to do their assessment  and start pre‑operative manoeuvres, education, exercises... (Dr Strahan  t/s 441).
D142	10-1-13	… Iatrogenic right median nerve palsy sustained at Armadale Hospital during PICC line therapy for delivery of antibiotics for septic arthritis in November 2012 … bothered by the ongoing tenderness and weakness in his right upper limb. Pictures shown today show the extensive bruising post event and there is a palpable tender Tinel's positive neuroma in the mid‑bicep area topographically correlated to the median nerve.  His ulnar nerve distally is intact, as is his radial.  He has a moderately dense median nerve palsy including all the flexes of the forearm and associated sensory areas … I think he would benefit from exploration of the neuroma with resection and nerve grafting as required …  I have presented this patient also to Dr Fleming , consultant plastic surgeon, for a second opinion. ( Dr Strahan ts 440)
D41	10-1-13	… Incident happened at Armadale Health Service when he had a PICC line put in by them for intravenous antibiotics and he got a median nerve injury … there were some nerve conductions ENGs through Wally Knezevic at St John of God Murdoch. … Altered sensation and poor function of some of the tendons … Plan general anaesthetic and investigation of that nerve possibility nerve transfer or tendon transfers.  (Dr Strahan ts 439 – 440).
D93	24-1-13	… Ultrasound of right forearm … latrogenic injury to median nerve from cannula.  Extent of injury ?.  Findings – there is a large haematoma in the forearm measuring 2.3 cm in length, 1.4 cm in depth and 1.6 cm in width.  This is immediately adjacent to the brachial artery and compresses the adjacent vein and the median nerve within the proximal forearm.  No focal abnormality of the nerve itself is seen. Comment large haematoma extrinsically compressing the median nerve.
D40/39	30-1-13	… Discharge from hospital in the home on New Year's Eve …has been seen by a plastic peripheral neuropathy… planned nerve transfer… for an angiogram on 11/2.13 – depressed. … 24/1 ultrasound haematoma 2.3 cm x 1.4 cm x 1.6 cm compressing median nerve.  He's got three weeks of Amoxil to go.  Needs a complete six weeks.  See after in outpatients.  Plastics etc, to sort out arm (Dr Strahan ts 441 – 442).
D38	21-2-13	… Haematoma post‑PICC line, right forearm.  Occupational therapist agrees that is median nerve palsy and his loss of sensation or decreased sensation.  The ultrasound shows a haematoma of the right forearm.  Discussed with Fleming and Strahan plan for removal of haematoma next Thursday with or without nerve graft if he needs it. (Dr Strahan ts 442-443).
D194	21-2-13	…consent by Mr Martin to removal of right wrist/forearm haematoma plus/minus nerve graft.
D170/171	21-2-13	… Medication list for pre‑admission clinic…   stop Co‑Plavix seven days before surgery …
D165	21-2-13	… Inpatient booking/waiting list form…  Urgent must have a booking date within 30 days (cat 1)… right hand wrist haematoma for removal.  Removal of right wrist haematoma compressing median nerve. ..( Dr Strahan t/s 446)
D195	28-02/13	… Exploration of right upper arm median nerve.  Exploration of right upper arm median nerve done in relation to previous PICC line injury… 1. Gross scarring in the subcutaneous plain compressing towards the nerve.  2. An Organised false aneurysm of the brachial artery compressing the median nerve.  3. Tight epineural sheath and about 14 cm length.  Nerve not stimulated …Excision of the false aneurysm done.  Release of the tight epinueral sheath under microscopic view.  No microscopic scarring of the nerve. (Dr Strahan t/s 445)

Mr Martin

1. Mr Martin was born in South Africa on 24 September 1952.  He is a married man with three children.

2. After leaving school he qualified as a telecommunications technician with South Africa Telecom and later obtained the position of chief Telecom electrician.  He remained with Telecom for 18 years.

3. He came to Australia in 1988.  Initially he could not obtain work in the telecommunications industry and worked in a variety of occupations, including factory work.  However, he completed various TAFE courses and was able, in 1989, to commence employment with Telstra.  Whilst so employed, he obtained further trade certificates.

4. He trained and worked as a linesman for a number of years on domestic and commercial buildings.  This work included digging trenches, putting conduit together, threading it through cables, feeding it through cavities, across roofs and down to sockets.

5. He ultimately left Telstra in 2000 and started his own business involving underground, aerial and structural cabling.  In 2003 – 2007 business was not going well because there were other issues and his earnings were not high.  It seems that he was pre‑occupied with a daughter's difficulties with drugs, however from 2007 – 2010 his work picked up.  In 2007 his taxable income was $58,121, increasing to $72,677 in 2010.

6. In July 2010 he hurt his back while moving a caravan and his income dropped dramatically to $14,852 in the year ending 30 June 2011 as he only took light work to protect his back.  He was looking to keep away from anything involving heavy jobs or lots of exertion (ts 97).

7. In the latter part of 2011 he commenced work as a lecturer in telecommunications cabling at Balcatta, working a nine-day fortnight, 37 hours one week over five days and 30 hours the next week over four days.  His duties involved teaching installation and cabling, both theory and assessment, and his lectures included demonstrating to students how to climb ladders, how to remove sheaves from cables, using plyers, and threading and installing cable.  Such activities required the use of both hands.  He was required to show students what they did wrong and demonstrate the correct procedures.  He also used computers, spreadsheets, whiteboards and overhead projectors to illustrate diagrams.  He would stand and observe students whilst assessing them (ts 98 ‑ 100).  For a nine-day course, he received approximately $3,366.

8. He said he enjoyed teaching and it paid well.  In addition, he performed intermittent pre‑provisioning work which involved wiring houses before the roof and ceiling went up thus avoiding the use of anything other than a stepladder.

9. In 2012, just shortly after his 60th birthday, he was having problems with his back and sought treatment from his GP and FH.  He also used crutches for about a fortnight.  He continued working until 20 November when he was in such distress that he was taken to the emergency department of AKH.

10. Upon arrival at the hospital he was disorientated, not knowing where he was, in considerable back pain and experiencing difficulties with his shoulder, chest and vision.  He was diagnosed with septic arthritis of the L5/S1 facet joint of the spine.  On 23 November 2012 he was taken to theatre for the insertion of a PICC line.  An unsuccessful attempt was made to insert it into each arm at about the crook of the elbow.  The attempted insertion into his right arm was very painful (the attempted insertion) and when the doctor removed the PICC line blood shot across the table (ts 105).  Later, another effort was made to insert the PICC line into his arms and it caused so much pain the attempt was abandoned.  He noticed bruising around the arm at the site where they had tried to insert the line.

11. He told the doctors and nurses that he did not wish a PICC line to be inserted in his arm again because of the pain.  He continued receiving treatment, inter alia, for his septic arthritis, diplopia, hearing loss and other issues.

12. On 26 November 2012 hospital staff convinced him that they should try again to insert the PICC line and he agreed.  He was subsequently taken to the theatre and it was inserted without any trouble (ts 104 ‑ 105).

13. Mr Martin said he developed pain around the site where the attempted insertion of 23 November occurred and experienced a funny feeling at the tips of his fingers a few days later (ts 106), which ultimately started to tingle and become numb, really kicking in about 1 December 2012 (ts 107).  He said he was in constant pain.  Eventually the pain started shifting like an electrical bolt down his arm.  Sometimes his arm felt it was like hot water, other times like boiling hot water and other times like ice cold water (ts 106).

14. As of 1 December 2012 he was still experiencing pain.  He could not use his fingers or hand and could not pick anything up.  He mentioned this to nurses and to Dr Ryan.  Dr Ryan suggested it was probably carpal tunnel syndrome and he told Dr Ryan that he did not have this problem prior to hospitalization.  He also had other issues, including difficulties with his back, vision and hearing.  He was ultimately told he was to be discharged to FH and their HIH.  He said at this stage he was in immense pain.

15. Mr Martin said he was discharged from AKH on 6 December 2012 to FH's HIH programme.  He went regularly to the clinic at FH (7, 13, 19 and 23 December 2012) and a nurse came to his house every day.  He told the nurse he was in terrible pain.  When he attended the clinic on 7 December 2012 he was prescribed pain medication and later the dosage was increased.

16. He obtained an EMG privately and re‑attended FH on 19 December to discuss the results.  He said at that stage he was very ill, his arm was still painful and his hand was not working at all.  He had pain and immobility in his thumb, index finger, middle finger and half of the ring finger.  The EMG showed a median nerve palsy.  He was referred to the plastic surgery department.  As at 31 December 2012, Mr Martin said he was still suffering from constant pain in the arm.

17. Mr Martin attended the plastic surgeon on 10 January 2013 and there was some suggestion of surgery to his arm.  He saw the plastic surgeon again in late January and discussed the tingling of the nerves.  He underwent pre‑operation hand therapy and an ultrasound on 24 January 2014 and on 28 February 2013 he underwent surgery which resulted in the removal of the haematoma.  He stayed in hospital after the surgery until either 2 or 3 March 2013.

18. After the surgery the pain to his hand disappeared.  However he still had limited movement in the hand which still felt like it was receiving an electric shock and was burning.  He underwent hand therapy twice a week and was unable to drive.

19. By 13 August 2013 he attempted to return to lecturing.  He worked 30 hours in August and about 60 hours in September at $50 per hour but could not cope.  He could not carry out demonstrations for the students, hold or cut the cable, or manage the whiteboard, nor could he mark the students' assessment.  As he could not perform his duties, he stopped working.

20. Although his back was still painful in August and September 2013, Mr Martin said it did not restrict his lectures because he was able to sit whilst lecturing and his back was not painful whilst he sat.  However, towards the end of 2013 his back pain got worse so he saw Dr Wong in February 2014 and was put on the waitlist for surgery.  Between February 2014 and 31 July 2014 he said his back caused him difficulties and whilst he could not walk great distances, he said he could have worked (but for the hand injury) because when he was sitting his back was not painful.

21. On 31 July 2014 he underwent back surgery after which he had no problems with the back and could walk unaided.

22. He said currently his back caused no problem and, but for the hand issue, felt he could return to work as a telecommunications technician but would prefer not to because of his age.

23. Mr Martin said that prior to the difficulties with his hand he performed all the 'outside' work at his home such as guttering and painting, doing the gardening, the weeding and mowing the lawns and assisted his wife with cleaning and heavy-duty interior work.  He said he occasionally made beds and would cook twice per week.

24. Mr Martin said that currently he is unable to make the bed, use a lawnmower, edger, or climb ladders and he cannot do any gardening or hitch and unhitch his caravan because he cannot use his hand.

25. He said his wife had to help him do his shoelaces and button his shirts and pants, but his ability to dress was 'starting to come on now'.  Mr Martin said he is unable to play the saxophone and other musical instruments which he previously enjoyed playing (ts 119).

26. He said he planned to work until he was 70 because he did not have a large amount of superannuation and, given the light duties nature of lecturing, felt he could work till that age.

27. Insofar as his back is concerned, although he initially said that it first bothered him in 2010, he accepted that he went to FH in 1989 when he injured his back digging a trench.

28. In relation to his cardiac condition, he agreed a stent was inserted in 2005, and had a number of angiograms, including in November/December 2010 and February 2013, and took daily medication.

29. He agreed that he had suffered from depression since about 1999 and had been treated for it in December 1999, December 2005, July 2007, August 2007 and March 2009.

30. He agreed that he had an arthritic condition which, in 1999, resulted in swelling of the left knee.  In January 2010 he had difficulties with swelling of his fingers and from 2009 to July 2015 he suffered many bouts of arthritis which were managed with medication and treatment.  He said he suffered from palindromic arthritis, which meant the arthritis comes on severely, is quite intense and requires treatment, but once it is treated it disappears.

31. He agreed he had suffered from a variety of ailments including dizzy spells in 2007, shoulder, chest and wrist pain in January 2014, poor balance in April 2014, and had been referred to a psychologist because he struggled through not being able to work and just sitting at home.

32. He said he was able to drive but had difficulties holding the steering wheel (ts 156, 157).  He also underwent surgery in January 2015 for a carpal tunnel release.

33. Notwithstanding that the first complaint referred to in the medical notes of any pain at the PICC site was 24 November 2012, Mr Martin maintained that he had complained earlier.  Similarly, whilst the first note of any pain in his fingertips or numbness in the hands was 2 December 2012, Mr Martin said he first complained to Dr Ryan of such pains about two or three days after 23 November 2012.

34. The defendant attacks Mr Martin's credibility.  They say that his evidence was contradictory because he said that he was ill when admitted to the hospital and did not know what the day was, and on occasions did not know where he was, yet in other parts of his evidence was able to recall precise information about events occurring at the same time.

35. They also point out that Mr Martin gave Professor Thompson the impression that his depression only came on as a consequence of the hand problems (ts 304, exhibit G20).  The evidence clearly establishes that Mr Martin's history of depression commenced in 1999 (ts 128) and was so severe that it interfered with his working capacity over a lengthy period of time (ts 131), and he was on a mental health programme in 2010 (ts 132) and had been on Zoloft since June 2010 (exhibit A37).

36. Further, the defendant say Mr Martin downplayed the effects of the dizziness he suffered from 2007 and the effect of the incident when he suffered dizziness and wobbliness when walking in August 2013 (ts 153), and downplayed the effects of frequent angina (ts 153), and the left temporal lobe infarction (ts 154).

37. I do not consider Mr Martin downplayed the dizziness he suffered in 2007.  He readily agreed that it would be unwise for him to use a ladder while suffering from dizzy spells (ts 135).  Similarly, in relation to the August 2013 incident, he said that he suffered dizziness and wobbliness as a consequence of the difficulties he was then experiencing with his ear.  There is nothing to indicate that he is downplaying the effects of angina or the left temporal lobe infarction.  I also note Professor Thompson commented on the sparseness of the information relating to the left temporal lobe infarction.

38. However, I accept the validity of the defence criticism of Mr Martin downplaying the effects of his depression with Professor Thompson.  Clearly, Mr Martin has had significant issues with depression, commencing in 1999, to such an extent that it affected his working capacity over a three-year period (ts 131) and has required consistent treatment.  The fact that he appears not to have been frank is a matter of concern and causes me to scrutinise his evidence with extra care.

39. It is common enough in litigation for witnesses with a truthful story to succumb to the temptation of gilding the lily or over‑egging the pudding.  The test for the trier of fact is to separate the truthful parts from the rest: Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 [35].

40. The fact that a witness tells a lie or a series of lies or exaggerates is not a basis for rejection of their evidence without careful investigation: McGlen‑McLeod v Galloway [2011] NSWDC 163 (Gibson DCJ).

41. However, having scrutinised Mr Martin's evidence with care, I found him to be generally a straightforward witness and certainly do not reach the conclusion that he was deliberately trying to mislead the court, and I generally accept his evidence.

Mrs Martin

1. Mrs Martin, the plaintiff's wife, gave evidence.  She has been his carer since the middle of December 2012.  Her account of the events leading to Mr Martin's hospitalisation corroborated his evidence.

2. She recalled that in early December he complained of pain in the areas where the PICC line had been inserted.  She said both his arms were bruised and he complained of pain to the arm and numbness and pins and needles (ts 177).  She said they called a nurse and her husband was provided with some medication.  Upon his release from AH on 6 December he was still complaining of pain in the hand and arm.

3. Mrs Martin said that after her husband was discharged from hospital she helped him shower and button up his shirts and pants, and drove him to appointments.  After 28 February 2013 when he underwent surgery, he was required to have hand therapy twice per week for three months and she drove him to and from those appointments.  She said the domestic arrangement between the parties meant that prior to the hand injury her husband would do the cooking twice per week and on occasions do the dishes.

4. Mrs Martin said she did most of the housework unless it was heavy, such as vacuuming or scrubbing the tiles, and Mr Martin did the outside work including the edges, mowing the lawn, pruning, weeding and performed maintenance inside the house on taps, electrical appliances, phones and computers.

5. After the injury to his hand Mrs Martin said her husband could no longer cook because he could not cut up vegetables, lift heavy items from the stove and was unable to do gardening, repair work around the house or mow the lawns.

6. Mrs Martin said they had retained a lawn mower man to do the front and back lawn at $65 per month, but currently were paying home help $8 for those tasks however that did not cover the edges or the weeding.  She said previously they employed a person at $65 for 1 1/2 hours once per month to do the weeding and had paid $300 for some pruning.

7. She says Mr Martin is unable to do his shoelaces up or button his shirts, thread a belt or wear trousers which require buttons and cannot use the caravan because he cannot hitch or unhitch it or wind the pop‑up portion of the caravan up or down.  He is unable to play his musical instruments, particularly the saxophone, and complains of pain in his hand and arm which affects his ability to sleep.

8. Mrs Martin struck me as a straightforward, conscientious witness of the truth and I accept her evidence.

Dr Allison

1. Dr Allison is a specialist plastic and reconstruction surgeon, with over 20 years' experience.  He specialises in hand and wrist surgery, including nerve surgery to the upper limb, and is familiar with treating nerve injuries in the upper limb.

2. He prepared three reports, 13 August 2014, exhibit G32 – 36, 4 December 2014, exhibit G37 – 38, and 15 April 2015, exhibit G39 ‑ 42.

3. Although he made no formal assessment of Mr Martin, Dr Allison concluded that Mr Martin had sustained a permanent injury with a disability of approximately 50% of the right hand and suffered complete sensory loss to the thumb and radial 2 1/2 fingers.  He thought Mr Martin would have difficulties with any work requiring manual dexterity, including performing demonstrations for students.  When he saw Mr Martin on 4 August 2014 he did not think he required help to perform routine domestic chores such as cooking, cleaning, gardening and the like (exhibit G35).

4. Dr Allison said the symptoms noted on 2 December 2012 (numbness in the hands, on the right finger tips and the tingling in the fingers) and 3 December 2012 (numbness in the right hand and fingertips, increased sensation and pain in the right hand/arm and tingling in the right hand, present for a couple of days) were consistent with compression of the median nerve and indicated probable nerve damage.

5. He observed that the AH notes reported Mr Martin suffered median nerve symptoms on day 13of his admission (2 December 2013) and said there should have been investigations as soon as those symptoms were mentioned.

6. Dr Allison said there was no way of knowing at the time of the attempted insertion whether there was direct damage to the median nerve by way of a laceration or there was subsequent compression of that nerve because of swelling from a false aneurysm or similar problem.  Whether the compression was caused by a false aneurysm or a haematoma was irrelevant, what was of significance was the compression of the nerve (ts 210).

7. Whilst he agreed that there was not always a clear clinical picture (ts 216), he said Mr Martin's symptoms showed something was amiss.  He said that following the insertion of a catheter into the arm near the nerve there is always a possibility of a laceration to the nerve and when Mr Martin experienced symptoms consistent with nerve damage so long after the attempted insertion, early investigations such as EMG, ultrasound or exploratory surgery was required to rule out damage to the nerve (ts 194).  If the nerve had been cut there is only a limited two-week window of opportunity to repair it and if the nerve is just compressed, surgery is required to relieve the decompression.  He said an ultrasound would have been beneficial and have revealed something pressing on the nerve, although it would not have indicated whether there was a laceration unless there was a complete cut of the nerve fibres.

8. Dr Allison agreed there are some similarities between carpal tunnel syndrome and median nerve damage and Mr Martin's reported symptoms such as pins and needles, tingling and numbness to the fingers, weakness of the muscle and around the ball of the thumb, were consistent with a carpal tunnel injury.

9. Dr Allison said Mr Martin should have been referred to a specialist dealing with nerve injuries for possible exploration and there should have been prompt exploration, that is, surgery within days, not hours, as soon as possible after the reported nerve symptoms.

10. Dr Allison pointed out that the longer the compression continued the worse the result, as compression of the nerve results in blocked blood supply and if it persists, further damage to the nerve occurs.

11. Dr Allison was unable to say to what extent Mr Martin would have been better off following earlier surgery (ts 218).  In his opinion an earlier operation would have meant that Mr Martin on 'average' would have been significantly better and it could have resulted in him having full function of the hand.  Dr Allison recognised that, even with an early operation, Mr Martin may have had some hand dysfunction (ts 208).  Dr Allison remained steadfast in his opinion that generally the longer you wait before surgery, the worse the result (ts 217).

1. Dr Allison was unable to say whether the nerve compression occurring up until the EMG of 15 December 2012 was the cause of the permanent damage.  He noted the operation of 28 February 2013 revealed gross scarring in the subcutaneous plane, and an organised false aneurysm.  He said this indicated that the nerve had been compressed for weeks, not days (ts 194).

2. When asked by what date it was necessary to operate to stop any damage to the nerve, he said he could not answer that question precisely (ts 217) but thought the operation should have occurred sooner than it did, preferably in December, as soon as there was concern about the median nerve (ts 218).

3. The tenor of Dr Allison's evidence was clear, that is, that there should have been exploratory surgery much sooner than occurred and within days of the reported nerve symptoms.  He said surgery could have been performed under general anaesthetic if there were concerns about Mr Martin's fitness for surgery.

Dr Ryan

1. Dr Ryan is a consultant physician with over 15 years' experience.  At the relevant times he was in charge of Mr Martin's care.  He had no independent recollection of Mr Martin and relied on the notes he and others took.  He said the notes made when he did his ward rounds were written by the accompanying junior doctor and, although he was present when they were written, he did not read every single word or check every entry.

2. Dr Ryan was an impressive witness.  I find he was truthful and frank in his answers and made no effort to conceal matters which may have been adverse to the defendant's case.  He was clearly a witness of the truth.

3. Dr Ryan said that when Mr Martin was admitted to AKH he was quite unwell (ts 224).  There were concerns about the brain's involvement in the various illnesses and a CAT scan was organised.  He said the major concern initially was septic arthritis of the L5/S1 facet joint, that is, a serious infection of the lower spine.  He noted Mr Martin had a background of rheumatoid arthritis.

4. Dr Ryan said Mr Martin's complaints of pain were not surprising in view of his condition when first admitted and the pain would be expected to last 2 – 6 weeks (ts 231).

5. Dr Ryan noted the first mention of complaints of numbness in Mr Martin's hands was on 2 December 2012.  The medical staff were querying whether carpal tunnel syndrome was the cause.

6. Although Dr Ryan noted that the 3 December 2012 entry (exhibit C67 3‑12‑12 1650) referred to the left hand, he assumed the junior doctor had written 'left' instead of 'right' as this was a common error (ts 234).  Dr Ryan acknowledged that when he saw Mr Martin that day there was a complaint of median nerve distribution numbness.  Dr Ryan said the medical team assumed the pins and needles was due to carpal tunnel syndrome (ts 235).

7. Dr Ryan said it would often take two or three months for an EMG, even in the case of urgency, but an ultrasound could be done within a day.

8. Dr Ryan agreed that the first recorded complaint of numbness in the hand was on 2 December 2012 and that complaints of numbness to the right hand were recorded on many occasions.  He agreed Dr Tate's note (exhibit C65 3‑12‑12 1250) of 3 December 2012 recorded that Mr Martin was suffering pain and loss of sensation in his right arm and hand since the failed PICC line insertion (ts 238).  Dr Ryan agreed that these symptoms were consistent with a haematoma or other object pressing on the median nerve and with an injury occurring during the attempt to insert the PICC line (ts 239).

9. Dr Ryan frankly admitted that the possibility that Mr Martin's symptoms were caused by the attempt to insert the cannula was not considered by his team or himself (ts 239) at that time, even though it was clear, in retrospect, it was the cause of the pain and numbness.  Dr Ryan said it appeared they were concentrating on the hand and back rather than the upper arm and said there had not been sufficient questioning of Mr Martin, and it appeared the upper arm pain was not 'reviewed' (ts 244).

10. He acknowledged he thought Mr Martin's symptoms were as a result of carpal tunnel syndrome as it occurs in patients with rheumatoid arthritis (ts 242, 235) and when people are unwell and receiving a lot of intravenous fluids and proteins (ts 235).  Dr Ryan said he had seen lots of PICC lines inserted and had never seen this type of complication (ts 240).  He acknowledged that Mr Martin did not, at that stage, have carpal tunnel syndrome (ts 242).

11. Dr Ryan said it was most likely that neither he nor the junior doctors read every word of Dr Tate's notes and it was quite likely that he did not read the two lines in her notes which drew the connection between the attempted PICC line insertion, the pain in the upper arm and the median nerve distribution symptoms (ts 240).  He said if he had read those two lines, he would have drawn the connection between the injury to the upper arm and the symptoms in the median nerve (ts 240).

12. Dr Ryan noted that Mr Martin's arm pain was severe enough for the nurse to prescribe OxyNorm (a narcotic analgesic) and agreed that alarm bells would have been ringing about the connection between the upper arm, the cannula insertion and the median nerve symptoms and those alarm bells would have continued to ring as OxyNorm continued at an increasing dosage over at least two days.

13. Dr Ryan said he suggested the entry on the discharge summary suggesting the GP perform an EMG (ts 235) if the paraesthesia did not settle.

14. He acknowledged that by the time Mr Martin arrived at FH there was a clearly documented connection between his upper arm pain, the numbness and the attempt to insert the PICC line.

15. Dr Ryan acknowledged the presence of a haematoma on Mr Martin's arm but said the vast majority of haematoma settle when the pain settles (ts 245).  He agreed that if pain continued there should be consultation with a specialist or at the least an urgent investigation, such as an ultrasound, followed by discussion with a specialist (ts 246).  He agreed it was clear that by 8 December 2012 the haematoma was not settling and something should have been done, at least, at that point to investigate (ts 247).

16. Dr Ryan considered a reasonable plan by 7 December 2012 considering the neuropathic pain, tenderness in the right hand and median nerve weakness was an investigation via ultrasound, an assessment and then a consultation with a specialist (ts 248).  He said it was most likely that the ultrasound would have revealed the haematoma (ts 246) and if it did, he would have sought advice (ts 251).

Associate Professor Myers

1. Associate Professor Myers has wide experience in endovascular procedures, inserting catheters and wires via the veins and arteries and in diagnosing, treating and operating upon injuries to those areas.  He said that he had carried out around about 2,500 procedures in the last 15 years.  He prepared two reports dated 26 August 2013 (exhibit G1‑10) and 27 October 2014 (exhibit G11‑15).

2. He said that when a catheter is inserted into a vein or artery, damage can be done.  He sees around about 150 cases a year where damage has been caused.

3. He said the median nerve is a motor nerve in the forearm and a motor nerve to the thenar eminence.  The thenar eminence is the bunch of muscles at the base of the thumb on the palmar aspect of the hand which supplies movement to the thumb and sensation to the thumb, index finger, middle finger and to the thumb side of the ring finger.  He said that if the median nerve is compressed you would expect to find numbness and tingling and if the compression is severe you would have difficulty with movement of the fingers referred to and the thumb.

4. He said exhibits C63 2‑12‑12 0205 and 1200 noting numbness to the right fingertips and tingling in the fingertips would indicate that something was going on and not quite right.

5. He said that the presence of a haematoma on the upper arm was not a typical symptom of a median nerve injury.

6. Associate Professor Myers said the observation that there was numbness in the right arm and fingers and the right hand was feeling numb meant carpal tunnel syndrome was a possible but highly unlikely explanation.  He said carpal tunnel is usually associated with driving or repetitive movement so you would need to query why Mr Martin would be suffering from that syndrome.

7. Similarly, he said rheumatoid arthritis was not tenable (highly unlikely) as the cause of Mr Martin's symptoms.

8. He pointed out that exhibit C65 3‑12‑12 1,250 (decrease sensation and pain in the right hand and arm since the failed PICC insertion in the right arm) was significant and damage to the median nerve needed to be ruled out.

9. In his opinion the notes of 3 December 2012 (exhibits C66 3‑12‑12 1315, C67 3‑12‑12 1650) (tingling in the right hand present for a couple of days, probable nerve damage and nerve distribution numbness) very clearly indicated steps needed to be taken to find out what was occurring and remedy it because the symptoms would not resolve themselves and if left could cause irreparable damage.

10. Associate Professor Myers said a detailed examination was required to ascertain if there had been direct damage to the median nerve or the nerve was being compressed and Mr Martin should have undergone early investigation, at least by ultrasound of the area, including a duplex ultrasonography of the arteries in the veins.  He considered this should have been performed within 10 days of the failed insertion (exhibit G7).  He thought an EMG may well have been helpful at that point (exhibit G 41).  He said this should have been done when a median nerve lesion was documented which, in his opinion, was on 3 December 2012.  An ultrasound performed at that time would have demonstrated a haematoma compressing the nerve and therefore the need to carry out decompression surgery.  Once an ultrasound was performed, the surgery should not have been delayed.

11. He said some of the notes referred to symptoms since the insertion of the PICC line which may indicate there was nerve damage caused by the needle.  Other notes refer to symptoms developing a couple of days afterwards, in which case it was highly unlikely the nerve damage was caused by the catheter and more likely to result from external compression.  Either way, an ultrasound and a nerve conduction study was required to see exactly what was going on.  Personally he said he would have performed an ultrasound and duplex scan and opined that an EMG may well have been helpful.

12. He said the complaints of pain were not a major concern because the pain could have been from the successful insertion of the PICC line and bruising in that area was not uncommon.  He said the major concern was lack of sensation and movement.

13. He said the EMG of 15 December 2012 clearly showed something significant going on and an ultrasound was required at that stage to determine whether it was a hematoma or something else compressing the nerve, and then action taken to decompress it by surgery.

14. He said surgery could be done under local anaesthetic if needed.

15. Although Professor Myers did not agree with the conclusion that it was a false aneurysm, as opposed to a haematoma, causing the nerve compression, he said there was undoubtedly something compressing the nerve and it needed to be surgically explored.

16. He noted the haematoma had thrombosed by the time of the ultrasound and, once thrombosed, could either be re-absorbed or simply scar up.  He said it was not reasonable to wait and see if the haematoma would re‑absorb when it was causing median nerve symptoms.

Mr Robertson

1. Mr Robertson is a telecommunications instructor who operates a cable telecommunications business providing training services to the telecommunications industry.

2. The current training course is 13 1/2 days over three weeks, half of the course involved theoretical components, the other half practical.  Mr Robertson said that he currently employed three casual employees and two subcontractors.  Employed staff were paid $45 per hour and on top of that they received a superannuation component which took them up to $45 [sic] (ts 283).

3. He said as casuals they were allowed to work 30 hours per week on average.  Their ages ranged from 52 – 77 years.

4. An instructor was required to instruct the students on the regulations, the colour codes applicable to cables, installing the cables, and test the students' competency in these areas.  An instructor was also required to prepare documents associated with those tasks and demonstrate how to cut cable, remove the sheath from the cables without cutting the cable cords, and how to place the cables on the various telecommunications frames.

5. He said he employed Mr Martin in about August 2013 but the latter experienced health problems and had to withdraw.  He said Mr Martin was a consistent and enthusiastic worker and had a good relationship with the students.

6. He said that currently he would not be in the position to employ Mr Martin and said there was not much chance of Mr Martin obtaining employment with his business.

Associate Professor Thompson

1. Professor Thompson has been an occupational physician since 2001 and specialist in occupational medicine since 2006.  He prepared two reports dated 3 November 2014 (exhibit G48 – 60) and 16 October 2015 (exhibit G61 ‑ 87).  He examined Mr Martin on three occasions, being 21 October 2014, 4 September 2015 and 29 July 2015.

2. He said Mr Martin had a permanent 29% hand impairment using the appropriate guidelines.  He noted some improvement since November 2014 when he assessed the impairment at 32% but did not expect any further improvement.

3. He noted on examination the circumference of the right forearm was thinner compared to the left and there was wasting of the thumb and its base and diminution of 10% of the forearm supination and pronation, and the hand appeared to be generally stiff.  The wrist movements appeared complete, however the index and middle fingers were shiny and tight and Mr Martin reported dry sweaty hands.  Mr Martin demonstrated minimum pinch grip strength between the thumb and index fingers and thumb and middle fingers.  Professor Thompson concluded that Mr Martin's capacity to grip using the pinch grip was very limited and his capacity to grip conventionally was impaired, although he could make a modified grip using his little and ring fingers.

4. Mr Martin reported that the hypothenar eminence region was hypersensitive and had diminished sensation over the dorsum of the index, middle and radial half of the ring finger and appeared hypersensitive over the index and middle finger palmar aspects (ts 294 ‑ 295).  Mr Martin also reported occasional stiffness and coldness in the arm in the evenings and sharp, intermittent and unpredictable wrist and hand discomfort of sudden onset and short duration.

5. Professor Thompson said these injuries were consistent with a median nerve injury, although the muscle wasting could be due to the lack of use of the forearm.

6. He said that Mr Martin's work capacity was reduced because his capacity to perform demonstrations was impaired.  As a lecturer he was required to demonstrate to students the construction of various Ethernet and coaxial cables and how to strip those cables and fit them to junction boxes.  Professor Thompson noted Mr Martin was not able to use the pinch grip necessary to manipulate the cable and had difficulties grasping things in a modified grip between his little and ring fingers.  Professor Thompson concluded that Mr Martin did not have the capacity to undertake the demonstration aspects of his lecturing role and, given the composite nature of that role which involved both demonstrations and teaching, he was unable to perform the role of a lecturer.

7. In Professor Thompson's opinion, Mr Martin would not be able to work as a telecommunications technician because of the physical nature of that work (ts 298).

8. Leaving aside the hand injury, Professor Thompson examined each of Mr Martin's previous health issues from a work capacity point of view.

9. He said that due to Mr Martin's back condition he would not have been able to work from October 2012 ‑ December 2012 and perhaps a little bit longer even if he had not had the hand injury.  His experience with spinal surgery like that undergone by Mr Martin was that not everybody successfully returns to work and he could not say with confidence that Mr Martin would have returned to work as a telecommunications technician even in a light duty capacity.  Even light duties would involve scrambling through confined spaces, crawling under house stumps and whilst such work may be possible, if he had an offsider, Mr Martin would not be able to work solo in that capacity due to his back condition.  Professor Thompson said the appropriate way to test Mr Martin's light duty capacity was by a return to work trial.

10. He said Mr Martin's right shoulder complaints (an underlying acromioclavicular joint issue) were not sufficient enough to disrupt his capacity to work and the symptoms were mild, not problematic, at the time he was seen.

11. Professor Thompson acknowledged the extent of Mr Martin's rheumatoid arthritis but said it was controlled and he appeared to have a satisfactory range of movement in the joints previously affected and the condition would not affect his working capacity.  He observed that Mr Martin's previous episodes of rheumatoid arthritis had been controlled by a change in medication.  Professor Thompson acknowledged the possibility that control could be lost and said he was unable to say whether the flare ups in October 2014, January 2015 and March 2015 had affected Mr Martin's work capacity because he had not seen him at those times.

12. Similarly, he believed the bilateral horizontal diplopia would not affect Mr Martin's work capacity as he had no neurological deficit in that area and did not currently have any symptoms.

13. Professor Thompson said Mr Martin's acute coronary syndrome was not affecting his current sedentary role but it was possible that heavy physical work may cause symptoms.  He acknowledged such an assessment was best made by a cardiologist.

14. Professor Thompson said Mr Martin's right‑sided hearing difficulties were not a problem and there were no communication difficulties or imbalance reported or noted at the consultation.

15. As to the left temporal lobe infarct, Professor Thompson said there was no objective evidence upon which he could make a clinical assessment.  He did not detect any ongoing problems and there appeared to be very little objective evidence in the medical records of the stroke having occurred.

16. Professor Thompson said Mr Martin's spinal canal stenosis, a narrowing of the spinal cord canal, was adequately treated.  There was underlying degeneration at other levels which were currently not symptomatic.  Notwithstanding those spinal difficulties, he thought Mr Martin was fit for sedentary work but he was less certain that Mr Martin would be able to carry out physical labour.

17. Professor Thompson said Mr Martin's reported respiratory illness and symptoms were not sufficiently severe enough to prevent sedentary work or onerous physical work.

18. Professor Thompson said Mr Martin's depression and anxiety did not appear to be severe enough to impact upon his ability to work.  Professor Thompson agreed that Mr Martin told him the symptoms of depression came on after the onset of medical problems in the arm and it was only after those issues arose that he started using medication for depression.  Professor Thompson agreed it was significant that over a 12‑year period Mr Martin had a history of depression and had not worked between 2003 and 2007 because of associated worries with his daughter.

19. Professor Thompson did not think future hand surgery was required, although he recommended exercise and quarterly reviews by a GP.  He acknowledged that Mr Martin's antidepressant medication and the rheumatoid condition would in any event require review by the GP.

Ms Cunningham

1. Ms Cunningham is an occupational therapist with over 12 years' experience who examined Mr Martin on 29 May 2015 at his home.  For 10 years she has worked predominantly in the field of disability, home modifications and equipment provisions.

1. Gratuitous services are awarded because of Mr Martin's incapacity to look after himself or attend to his normal domestic functions.  The true basis of the claim is Mr Martin's need for the services.

2. Damages for gratuitous services cannot be awarded if the services would have been provided in any event, even if he had not suffered the injury: Van Gervan v Fenton [1992] HCA 54.

3. Mr and Mrs Martin's evidence satisfies me that the hand disability alone has led to the need for the gratuities services claimed.  Mrs Martin told the court the 'domestic services' performed by her husband before November 2012 which post that date she performed (ts175-180).  Mr Martin's evidence confirmed that position.  These are services which would not have been provided in any event by Mrs Martin and are now provided because of Mr Martin's hand disability.  Mr Martin initially received a disability benefit and Mrs Martin a carer's benefit because of a combination of Mr Martin's hand injury and the other disabilities he suffered in December 2012/January 2013 (ts 123).  Both were in receipt of those benefits when they gave evidence.  There is no evidence from disability services or any other source as to what disability has led to the continuation of those payments.  The evidence I have heard satisfies me that the gratuitous services claimed, past and future, were performed by Mrs Martin, directly and solely, as a result of Mr Martin's hand disability.  Causation is established.  The appropriate department's right to recovery any part of the carer's pension is a matter for that department.

4. An allowance for gratuitous services cannot include an amount for Mr Martin's inability to provide gratuitous personal or domestic services to another person: CSR Ltd v Eddy [2005] HCA 64.

5. Such damages are not determined by reference to the actual cost of having the services provided but by reference to the cost of providing those services generally in the market: Van Gervan v Fenton [1992] HCA 54. Mr Martin is entitled to recover an amount equivalent to the commercial cost of domestic services which have been provided in the past and would be provided in the future by the family or friends: Griffiths v Kerkemeyer (1977) 139 CLR 161.

6. The defendant argues that Mr Martin's claim is inflated because Mrs Martin would have always made the bed, washed the dishes, cut up the food and changed the bedsheets and that Mr Martin does not require 10 minutes' assistance each day with dressing, bearing in mind his and his wife's evidence that he avoids wearing shirts with buttons, pants with zippers and uses a shoe horn to avoid needing to tie shoes (ts 119, 177).

7. They also point to Mr Martin's evidence that he prepared two, not three, meals per week (ts 117, 176) and they say the allowance of 30 minutes per week for driving to medical consultations is not supported by the evidence.

8. The defendant argues that Ms Cunningham's assessment was based on the premise that service providers would charge a minimum of one hour, even if they came out to do a five-minute job, whereas gratuitous services provided by Mrs Martin should not be assessed that way because she is present at the home thus alleviating the need for any travel.

9. In addition, they point to Dr Gillett's evidence that Mr Martin would have required domestic assistance for three weeks following discharge from AKH and then from 24 October 2013 ‑ 31 July 2014 and then for a further period of six weeks, making a total of 48 weeks (exhibit J17, ts 327) as a result of his back condition in any event.

10. The defendant also relies on Dr Gillett's report (exhibit J17) saying Mr Martin has been independent and has not required any assistance with daily living since October 2014.

11. The result of this, according to the defendant, is that, at most, an award of $2,888 should be made for past gratuitous services and from this, they say, a further deduction ought be made because Mr Martin's wife, mother and grand-daughter also reside at the home (ts 149, 167) and he is not the only one to benefit from the domestic services.

12. In relation to past handyman services, the defendant says that rather than an allowance for lawn mowing of 18 times per year, two hours per month for gardening and four hours per quarter for handyman services, lawn mowing should be allowed at 12 times per year, gardening once per month and handyman services one hour every two months.  The proper rate they say for lawn mowing is not $80 per hour, bearing in mind Mrs Martin's evidence that they receive home help to do the lawn mowing, at $8 per visit.  Therefore, for past lawn mowing, gardening and handyman, they say an allowance should be made of $2,622.

13. I reject the defendant's contention that the amount of gratuitous services should be reduced by 75% because Mr Martin's wife, mother and grand‑daughter also reside at his home.  The fact that others receive benefits from gratuitous services provided to him is of no consequence.  Similarly, gratuitous services are to be assessed on the commercial cost of providing those services with no 'deduction' made because they are provided by his wife who resides at his residence.

14. However, I do not allow the past gratuitous services for 465 minutes per week as claimed by Mr Martin pursuant to Ms Cunningham's report (exhibit G125).

15. I reduce that amount to reflect the evidence that Mr Martin prepared two, not three, meals per week, (60 minute reduction per week) and, although it was necessary for Mrs Martin to drive Mr Martin to appointments more frequently in the past, including twice weekly for about three months for hand therapy, there is no evidence that frequency has been maintained until trial.  There is also evidence that visits to medical practitioners are required for other medical issues (15‑minute reduction).  The daily bed making was really confined to Mr Martin making up a bed 'if he got up last' and Mrs Martin was not present (ts 117) and ought to be reduced (25‑minute reduction).  The washing up seems to be confined to the occasions when Mr Martin cooked the meal (ts 117) (75-minute deduction).  I also reduce the time for assistance with dressing in view of the evidence of both Dr Gillett and Professor Thompson as to the adjustments Mr Martin has made to the clothes he wears.  Mr Martin has avoided wearing shirts and pants with buttons or zippers and now uses slip on shoes, however this all occurred over a period of time and he would have required some assistance during that time (35‑minute reduction).  I make a further 15‑minute reduction on the basis that some of the tasks Mr Martin claims he cannot now perform are unable to be performed due to his back condition (particularly heavy lifting).

16. I reject Dr Gillett's view that domestic assistance would have been required from 24 October 2013 – 31 July 2014 as a result of back issues.  I am prepared to allow a three-month period of incapacity due to back issues (being the period referred to by Professor Thompson as total working incapacity) and a further six weeks, as per Dr Gillett's evidence, as the period Mr Martin would have required assistance during his rehabilitation period following the July 2014 back surgery (exhibit J17, ts 327).  Although Professor Thompson referred to a period of 8 ‑ 10 weeks of working incapacity, he did not specifically deal with the domestic incapacity and, in those circumstances, I accept Dr Gillett's evidence.

17. This means that in total I therefore reduce the amount claimed of 465 minutes by 225 minutes, leaving 240 minutes or four hours.  At the rate of $25 per hour or $100 per week x 156 weeks (1 February, 13 ‑ 26 February 2016) less the 18-week period referred to = $100 x 138 weeks = $13,800.

18. As to the defendant's contention that Dr Gillett (exhibit J17) suggests that Mr Martin has been independent and not required any assistance with daily living since October 2014, the evidence of Ms Cunningham and Professor Thompson is to the contrary.  For similar reasons I reject Dr Allison's evidence that domestic assistance was not required as at 4 August 2014 (exhibit G 35).  The evidence of Professor Thompson and Ms Cunningham, who are specialists in their fields and examined those issues in more detail, is preferred.  I accept Mr and Mrs Martin's evidence that such assistance was required.

19. Professor Thompson specifically addressed this issue (exhibit G87).  He noted that Mr Martin had difficulties with the use of zips and buttons and modified the trousers that he was wearing and found making the bed, dishwashing, and food preparation and driving to appointments challenging but not impossible, whilst some activities requiring the use of both hands were not feasible.  Similarly, carrying moderately light weights, making the bed, dishwashing and performing light food preparation was not beyond him but carrying heavy items, changing the bed and complex cooking was.

20. Significantly, heavier household tasks and maintenance work including mowing, cleaning gutters, heavy gardening including the use of a fork or a shovel, forceful scrubbing or mopping could not be undertaken.  Professor Thompson thought performing fine motor tasks and operating power tools were beyond Mr Martin.

21. Professor Thompson said that handyman activities requiring the active use of both hands would be difficult for Mr Martin and he would benefit from assistance for regular tasks such as gardening, handyman work and unexpected matters.  Ms Cunningham supported Professor Thompson's evidence.

22. I am satisfied that Mr Martin still requires some assistance but not to the degree that has been claimed.  To suggest that Mr Martin is able to cope without any assistance from October 2014, as Dr Gillett suggests, overstates the position.  The weight of evidence from Professor Thompson, Ms Cunningham and Mr and Mrs Martin leads me to reject Dr Gillett's evidence in this regard.

23. I would permit lawn mowing at 18 times per year as claimed at the rate of $55 per hour (the same as the gardener and handyman charge).  Gardening should be allowed at two hours per month and the handyman as claimed by Ms Cunningham.  Whilst the defendant says in its written submissions that the average lawn mowing service in Perth is $30 ‑ $40 per hour, there is absolutely no evidence to support that submission.  I agree that $80 per hour for lawn mowing seems excessive.  The same rate should be allowed for lawn mowing as for gardening and handyman.

24. I would allow past gardening at two hours per month and a handyman at one hour per month, all at $55 per hour, making a total, with lawn mowing, of $2,970 ($57.11 per week) x 138 weeks for the same reasons that I have referred to in relation to domestic services above, making a total of $7,881.

25. The total for past gratuitous services is therefore $13,800 + $7,881 = $21,681.

Interest on past gratuitous services

1. I allow interest on past gratuitous services at 3% x three years, two months = $2,058.

Future gratuitous services and specialist equipment

1. Mr Martin claims $162,549 for future gratuitous services, being future domestic services at 7.7 hours per week ($119,408) and future home maintenance ($43,141, papers for the judge, pages 24 – 25).

2. The defendant submits that because Mrs Martin is on a carer's pension to provide the services to Mr Martin, they are not gratuitous services and therefore not compensable.  For reasons I have previously explained, I reject this submission.

3. The defendant then argues that 2.75 hours per week should be allowed for future gratuitous services.  They argue that because of the multitude of health issues I should notionally reduce the life expectancy of Mr Martin to 15 years as opposed to 20 years.  Even if I do accept the current life expectancy, they say future domestic services should be allowed at $25 per hour x 2.75 hours x 616 (6% multiplier for 20 years) being $42,370.

4. They argue that future home maintenance should be allowed at lawn mowing once per month at $8 per visit, one hour of gardening per month and one hour every two months for handyman services, using the same multiplier, making an allowance of $6,240.

5. I accept that the disability now suffered by Mr Martin is permanent.  To his credit, as both Professor Thompson and Ms Cunningham confirm, Mr Martin has adjusted his lifestyle and is coping without requiring assistance in many regards, but still requires assistance in some areas.  I assess his future gratuitous services for domestic services as less than that allowed for past services as the need for medical appointments for his hand declines and Mr Martin continues to adapt, and because the amount awarded for past losses recognises that more assistance was required initially.

6. I would therefor allow future gratuitous personal services of three hours x $25 x 616 = $46,200.

7. I allow future gardening, handyman, lawn mowing and home maintenance at the same as the past rate ($57.11 per week x 616 = $35,179).

8. I would not make any further deduction as sought by the defendant.

9. Ms Cunningham also recommended a once‑off allowance for driver assessment and car modifications on the basis that Mr Martin required modifications to his car and an assessment by a driver trained occupational therapist.  She reported that when he drove he would let go of the steering wheel to change gears and she thought that was unsafe.

10. She agreed however driver assessment and motor vehicle modifications required the opinion of a specialist occupational therapist and she did not have that speciality.  Accordingly, I would not make any allowance in this regard.

11. Ms Cunningham also recommended an allowance for a kettle tipper because Mr Martin could not lift the kettle if it was full.  She also recommended specialist door handles and lever taps.  Under cross‑examination she agreed that Mr Martin could use his left hand to open the door, but maintained he would require both hands to use the taps and, accordingly, I would allow the sum of $750 as claimed for lever taps plus $500 for installation, making a total of $1,250, rounding that up to $1,500 to cover the cost of the kettle tipper and its replacements.  I would not allow the other items.

12. Total for future gratuitous services: $81,379 less 15% for contingencies = $69,172.

13. Home modifications are allowed at $1,500.

Special damages

1. The plaintiff has not claimed any indemnities for recovery sought by Medicare or Centrelink.

2. The damages I award to Mr Martin are as follows:

General damages	$50,000
Past loss of earnings	$82,769
Interest on past lost	$7,655
Future loss of earning capacity	$209,419
Future medication	No allowance
Past gratuitous services	$21,681
Interest on past gratuitous services	$2,058
Future gratuitous services	$69,172
Home modifications	$1,500
Total	$444,254