Monument v Baker
[2007] WADC 164
•19 SEPTEMBER 2007
MONUMENT -v- BAKER [2007] WADC 164
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 164 | |
| Case No: | CIV:3433/2002 | 10-14 SEPTEMBER 2007 | |
| Coram: | SLEIGHT DCJ | 19/09/07 | |
| PERTH | |||
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Claim dismissed | ||
| PDF Version |
| Parties: | LEE ANDREW BARRY MONUMENT STEPHEN BAKER |
Catchwords: | Alleged medical negligence Damage to accessory nerve during operation Alleged failure to advise of risk and alternative treatment |
Legislation: | Nil |
Case References: | Chappel v Hart (1998) 195 CLR 232 F v R (1983) 33 SASR 189 Rogers v Whitaker (1992) 175 CLR 479 Rosenberg v Percival (2001) 205 CLR 434 Sheppard v Swan [2004] WASCA 215 Watts v Turpin (1999) 21 WAR 402 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
STEPHEN BAKER
Defendant
Catchwords:
Alleged medical negligence - Damage to accessory nerve during operation - Alleged failure to advise of risk and alternative treatment
Legislation:
Nil
Result:
Claim dismissed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr G H Lawton
Defendant : Mr P D E Quinlan
Solicitors:
Plaintiff : Lawton Lawyers
Defendant : Clayton Utz
Case(s) referred to in judgment(s):
Chappel v Hart (1998) 195 CLR 232
F v R (1983) 33 SASR 189
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434
Sheppard v Swan [2004] WASCA 215
Watts v Turpin (1999) 21 WAR 402
(Page 3)
1 SLEIGHT DCJ:
The claim
2 The plaintiff, Mr Monument, makes a claim for damages arising from the alleged negligence of the defendant, Mr Stephen Baker, a surgeon, specialising in vascular and general surgery.
3 Mr Baker operated on Mr Monument on 30 September 1997 at the St John of God Hospital Murdoch for the drainage of a lump on the right side of the neck and the removal of lymph nodes for a biopsy. As a result of this operation the plaintiff claims that his accessory nerve was damaged and that he has suffered, and continues to suffer, disabilities to his right shoulder.
4 The claim by Mr Monument is not based upon any alleged negligence of Mr Baker in the performance of the operation.
5 The plaintiff's claim in negligence is based upon an alleged failure by Mr Baker to give adequate advice to the plaintiff of the alternative treatments available for the plaintiff's condition or of possible risks to the plaintiff's wellbeing that may have resulted from the proposed surgery.
6 Paragraph 10 of the statement of claim particularises the alleged negligence in the following terms:
(a) failing to advise the plaintiff of alternate treatments which were available to the plaintiff other than surgery;
(b) failing to advise the plaintiff of the risks inherent in an operation of the type to be undertaken by the defendant; and
(c) failing to warn the plaintiff of the risk of damage to an accessory nerve arising out of the operation and the consequences of such possible damage.
7 In further and better particulars filed on 20 August 2007 the alternate treatments which it is said the plaintiff should have been advised were listed as follows:
(a) no further treatment;
(b) continued oral antibiotics;
(c) intravenous antibiotics with or without additional steroids;
(d) small incisional biopsy; and
(e) exploration of the neck with excision of the lymph node mass.
(Page 4)
8 The pleading of these alternate treatments appears to have been uplifted from a report of a Mr Matthew Campbell dated 16 August 2007. Mr Campbell is an Ear, Nose, Throat – Head, Neck Surgeon who was called by the plaintiff to give expert evidence.
9 The causal link between the alleged injury, loss and damage suffered by the plaintiff is pleaded in par 5 of the particulars filed on 21 May 2007 in the following terms:
"Failure by the defendant to warn the plaintiff of possible risks to an accessory nerve resulted in the plaintiff consenting to surgery on 30 September 1997 during the course of which his accessory nerve was damaged. Had the defendant warned the plaintiff of the inherent risks in such surgery, and of the alternative course of treatment available to him at that time, given the plaintiff's circumstances, namely that he was employed in a highly physical pursuit as an underground miner, and also pursued a career as a professional sportsman, it was highly likely that the plaintiff would have chosen not to undergo surgery, in which case the injury, loss and damage would not have been sustained."
Central issues
10 The central issues for this trial can be summarised as follows:
(a) What is the nature of the duty and standard of care of a surgeon in relation to giving advice to a patient prior to surgery?
(b) Did Mr Baker breach his duty of care?
(c) If so, did the breach cause the injury, loss or damage claimed by the plaintiff, Mr Monument?
(d) What is the appropriate assessment of damages if liability is established?
Duty and standard of care
11 Turning to the first issue, that is what is the duty and standard of care owed by a surgeon to advise a client prior to surgery, it is clear that in Australia that whatever might be the application of the duty, the duty of care is a part of a general duty owed by a surgeon to a patient. In Rogers v Whitaker (1992) 175 CLR 479, Mason CJ, Brennan J, Dawson J, Toohey J and McHugh J at 483 stated as follows:
(Page 5)
- "The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a 'single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment'; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. It is of course necessary to give content to the duty in the given case. The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have the special skill …"
12 Their Honours at p 492 went on to state the nature of the duty to warn a patient of risks involved in proposed treatment as follows:
"The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege."
13 The therapeutic duty spoken of is a privilege not to advise the patient of the risks where there is a particular danger that the provision or relevant information will harm an unusually nervous, disturbed or volatile person (although there are doubts expressed by Gauldron J in her judgment in the same case as to whether such an exception exists: see Rogers v Whitaker (supra) at p 494).
14 Further, it is clear from the above quote of the majority decision at p 492 in Rogers v Whitaker that in addition to the qualification of therapeutic duty, the extent of the obligation to give a warning is limited to "material risks". What is a "material risk" is an objective test based upon whether a reasonable person in the patient's position, if warned of the risk, would attach significance to the risk or, if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.
15 It is helpful to note that Rogers v Whitaker(supra) involved a case of elective surgery on a non-functional eye. One of the known risks of the
(Page 6)
- elective surgery in that case involved the quite catastrophic possibility of the patient losing the sight of the remaining functional eye.
16 It is clear that in the circumstances of the Rogers v Whitaker case there ought to have been given to the patient advice concerning the potential risk so that the patient was in a proper position to make a decision as to whether to proceed with the elective surgery or not.
17 However, the position might be quite different where the surgery is not wholly elective but is the only reasonable and viable treatment available for an injury or a disease that requires treatment. There are situations where advice clearly cannot be given at all, for example when the patient is in a coma. However, the situation becomes trickier when the patient is alert, the surgery is non-elective but is reasonably required in order to treat a person's injury or disease. The giving of advice as to risks may still be necessary as there may be situations where a patient may reasonably decline to receive necessary treatment. An example is where a patient being offered chemotherapy for cancer may decide not to proceed with the treatment because of the possible decline in the patient's quality of life.
18 On the other hand, if the risk relates to damage of a minor nature and the need for treatment is imperative, then the situation might arise where (using the test in Rogers v Whitaker) a reasonable person in the patient's position, if warned of the risks, would be unlikely to attach any significance to that risk.
19 Gauldron J in her judgment in Rogers v Whitaker stated as follows at p 493:
"Diagnosis and treatment are but particular duties which arise in the doctor-patient relationship. That relationship also gives rise to a duty to provide information and advice. That duty takes its precise content, in terms of the nature and detail of the information to be provided, from the needs, concerns and circumstances of the patient. A patient may have special needs or concerns which, if known to the doctor, will indicate that special or additional information is required. In a case of that kind, the information to be provided will depend on the individual patient concerned. In other cases, where, for example, no specific inquiry is made, the duty is to provide the information that would reasonably be required by a person in the position of the patient."
(Page 7)
20 In the South Australian case of F v R (1983) 33 SASR 189, King CJ stated at p 192 as follows:
"The extent of the duty to disclose is to a degree limited by the consideration that the essential task of the doctor is the care and treatment of the patient. The purpose of disclosure is to provide the patient with the information necessary to enable him to make informed decisions concerning his future and, in particular, whether to undergo proposed treatment. The duty extends therefore only to matters which might influence the decisions of a reasonable person in the situation of the patient. A risk of harm or of failure might be so slight in relation to the consequences of not undergoing the proposed treatment that no reasonable person would be influenced by it. The duty to disclose does not extend to such a risk. Of course a small risk of great harm might call for disclosure although a greater risk of slight harm would not. A doctor is not expected to spend an inordinate amount of time conjuring up fanciful fears in the mind of the patient by stressing risks which are not sufficiently substantial to be a factor in the decision-making of a reasonable person." (my emphasis)
21 The case of F v R(supra) involved a woman, desiring a sterilisation operation during the course of a caesarean birth and was advised to have a cutting and tying of her tubes. The gynaecologist failed to warn the woman of a remote possibility of recanalization occurring, but which in fact did occur and the woman became pregnant. The court held that the failure to warn of this remote possibility was in the circumstances not a breach of duty of care.
22 The general duty of a doctor to give proper advice prior to an operative procedure may include an obligation to advise the client of options that are reasonably available.
23 In the case of Sheppard v Swan [2004] WASCA 215, Heenan J at par 112 stated as follows:
"When sufficient time and opportunity are available it is no doubt necessary for an attending physician or other doctor to explain the varieties of treatment or therapy which are open and considered suitable for the particular condition and to explain the advantages and disadvantages of the preferred regime which the doctor is recommending and, if they be considered at all
(Page 8)
- material in the Rogers v Whitaker (supra) sense, to offer and explain other available options of treatment." (my emphasis)
24 In my view, in accordance with these authorities it is relevant to consider the following matters when assessing the extent of the duty of care of a surgeon to give advice prior to surgery:
(a) The circumstances of the need for treatment recommended by the surgeon and the potential consequences if such recommendations are not followed.
(b) Whether any reasonable and viable options of treatment are available.
(c) What is the likelihood of other damage occurring as result of the proposed surgery?
(d) If other damage occurs, what is the potential harm to the patient?
(e) Did the patient have any particular sensitivities to harm to which the surgeon has been alerted to or should have been aware of?
Did the defendant breach the duty of care?
25 The next question to consider is whether the defendant, Mr Baker, breached his duty of care to Mr Monument.
26 The starting point is to take into account all of the general circumstances. Before turning to the more controversial areas of the evidence I make the following findings based upon evidence presented at the trial and which is not in dispute.
(a) Mr Monument at the time of the surgery was aged 28 years. His history is that since leaving school he has pursued a semi-professional football career. At the time of the surgery he had completed a year playing for Mines Rovers in Kalgoorlie. I think I can take judicial notice of the fact that this is at least in terms of competitive Australian Rules football at a third tier below AFL and local premier State competitions such as the WAFL.
The plaintiff says that at the time he was also working as an underground miner with Kundana Gold Pty Ltd out of Kalgoorlie. None of this history was mentioned in the records of the hospital or Mr Baker other than in an Emergency Hospital Registration Form which recorded Mr Monument's occupation as "an underground miner".
(Page 9)
- (b) On 30 September 1997 Mr Monument attended his general practitioner complaining of severe left chest pains. He also had a lump on the right side of his neck for which he had been receiving treatment for about 2 weeks in the form of oral antibiotics prescribed by his general practitioner.
(c) Mr Monument was immediately referred to the emergency department of the St John of God Hospital in Murdoch. He arrived at the hospital at 8.30 am. He underwent an initial nursing assessment and was then seen by Dr Rik Hagan. Dr Hagan arranged for an ECG, an x-ray of the chest and an ultrasound of the lump on the right side of Mr Monument's neck.
(d) The ECG and x-rays removed any immediate concern relating to the chest pain. It was diagnosed as costachondritis – an inflammation in the cartilage of the ribs. The ultrasound report on the lump on the right side of the neck of Mr Monument stated that the lump was a "large complex hypo-echoic septated thick walled mass". The report stated that the lump measured 3 centimetres by 1.9 centimetres by 9 centimetres.
The description, "a septated thick walled abscess", was explained by various witnesses as meaning that the lump was divided into various compartments.
The ultrasound report further stated that there were "numerous associated enlarged lymph nodes in the cervical chain". The ultrasound report also contained a comment "given the clinical context, the mass most likely represents an abscess with associate extensive cervical adenopathy" (meaning an enlargement of the gland).
(e) Dr Hagan's notes indicate that he concluded the plaintiff had a right sterno-mastoid abscess and referred Mr Monument to Mr Baker. Mr Baker at the time was a surgeon operating at St John of God Hospital Murdoch and was on a voluntary list to attend to patients through the emergency department.
(f) Hospital records indicate that Mr Monument saw Mr Baker and an anaesthetist at 12.10 pm that day.
(g) After Mr Baker spoke to Mr Monument, Mr Monument was prepared for an operation that afternoon. Before the operation Mr Monument signed a consent form that described the operative treatment to be:
1. drain abscess right side of neck;
- 2. cervical lymph node biopsy.
- At all times when Mr Monument discussed the operation procedure with Mr Baker, Mr Monument's girlfriend, Ms Michelle Riddle, was present.
It is common ground that Mr Baker gave no advice as to any alternative treatment to the proposed operative treatment (although, it is implicit that the request to sign a consent form, indicates that Mr Monument could of his own volition refused to have treatment).
(h) The operation was performed by Mr Baker commencing at 13.26 hours on that day.
(i) Mr Baker reviewed the plaintiff the next day in hospital and again in his rooms on 2 October 1997. By that time pathology results had been obtained which reported a "necrotising lymphadenitis" (which was later described in evidence as indicating the lump was not an abscess but a lump of dead tissue). The pathology report went on to say that there was no evidence of lymphoma or other malignancy.
(j) Subsequently the plaintiff complained of problems with his right shoulder. Mr Baker saw Mr Monument on 30 October 1997. In a report back to the plaintiff's general practitioner, Mr Baker reported that the plaintiff had trouble abducting his right shoulder and Mr Baker expressed concern that there may have been damage to the accessory nerve in the course of the surgery. The accessory nerve is one of the cranial nerves which runs to the trapezius muscle and if damaged can cause limitation of function to the trapezius muscle and thereby to the right arm and shoulder.
(k) Mr Monument was referred by his general practitioner to Dr Mastaglia, a Neurologist. Dr Mastaglia conducted some nerve conduction tests which produced severely impaired results in the accessory nerve. A report obtained on an EMG concluded there was an isolated lesion of the accessory nerve supplied to the trapezius muscle.
(l) Mr Monument was referred to Mr Sean Hamilton, a Reconstructive Surgeon, (the plaintiff preferring to have an opinion from an alternative surgeon). Mr Monument saw Mr Hamilton on 28 November 1997. Mr Hamilton recommended surgery which was performed on 19 January 1998. On exploration, the accessory nerve was found to be fibrosed but in
- continuity (i.e. it had not been severed). The nerve was resected and restructured using a graft.
27 I will now turn to the evidence given which is of a more contentious nature.
28 The evidence of the defendant, Mr Baker, was that he concluded that on the basis of the ultrasound results, there was a real possibility that Mr Monument had a large abscess, which had not responded to antibiotics, and was located close to the inner ear and brain. Mr Baker was concerned that if it was not treated, then it could extend into the surrounding areas causing serious consequences which would be extremely difficult to treat. Further he concluded that, as the lump was septated, the lump could not be drained by needle and open drainage was required. Further, as a result of the ultrasound report indicating that there were enlarged lymph nodes, he concluded that the lump on a relatively young man, raised a real risk that the lump was malignant (possibly a lymphoma).
29 Mr Baker stated that he concluded that the patient required, and he recommended, an operation that involved an incision into the neck to confirm the presence of the abscess, to break down the septae (that is the compartmental walls of the lump) and drain the abscess. Further, to remove a lymph node in total in order to conduct histological assessment.
30 He concluded that this was the only reasonable and sensible treatment available. He described the treatment in cross-examination as being "mandatory". Both Mr Campbell (called by the plaintiff) and Mr T C McManus, (an Ear, Nose and Throat Surgeon called by the defendant) concluded that in the circumstances, the operative treatment recommended and performed by Mr Baker was the only reasonable and viable treatment available.
31 Mr Baker, Mr Campbell and Mr McManus rejected the theoretical alternatives pleaded by the plaintiff; that is:
(a) no treatment;
(b) continued use of oral antibiotics;
(c) intravenous antibiotics with or without additional steroids;
(d) small incisional biopsy.
32 Although in a report dated 16 August 2007 Mr Campbell stated that these alternatives could have been put to Mr Monument, he agreed in cross-examination that none of these alternatives was reasonably viable.
(Page 12)
33 It was argued by the plaintiff's counsel that the conclusion reached by Mr Baker as to the form of the appropriate treatment was based upon a false diagnosis that the lump was an abscess (the pathology results having subsequently determined that it was not an abscess but a lump containing necrotising material). It is argued that a small incisional biopsy would have identified that the lump was not an abscess and some other treatment might have been undertaken. However, the medical evidence does not support this contention. Mr McManus in his evidence stated that even if a small biopsy showed that the material consisted of necrotised material, then an open excision of the lump would have still been necessary. Further, because of the septated nature of the lump it could not be drained by a needle.
34 Further, Mr McManus stated that in his opinion to conduct a small incisional biopsy as a preliminary step increased the risk to a patient of damage because the incision would be made without the surgeon being able to see where the nerves and blood vessels were located in relation to the lump.
35 Further, Mr Campbell and Mr McManus stated that the use of a small incisional biopsy might confirm a malignancy but not exclude a malignancy. Both agreed with the conclusion of Mr Baker that a whole lymph node needed to be excised in order to achieve an appropriate diagnostic sample.
36 On the basis of this evidence I conclude that the operative treatment undertaken by Mr Baker was the only reasonable and viable treatment available in the circumstances. I find that Mr Baker was under no obligation to advise Mr Monument of theoretical treatment options that were not reasonable and viable. In fact, in my opinion, to have presented such options that were not reasonable and viable would have been inappropriate. Such options would only tend to confuse the patient and undermine the emphatic nature of the recommendation made by Mr Baker for the operative treatment he undertook.
37 A further issue that arises for consideration is whether Mr Baker gave a warning to Mr Monument of the risk of damage to the accessory nerve and whether the warning was adequate.
38 Mr Monument in his evidence stated that the advice he received from Mr Baker was that the abscess was cancerous and needed to be removed. He denied that he was told that there were any risks to the blood vessels or nerves in the neck as a result of the surgery. Mr Monument stated that he
(Page 13)
- asked Mr Baker how long it would take to get back to work and was told it was a simple operation and he would be back at work within 4 to 6 weeks. He was unsure whether he told Mr Baker the nature of his occupation.
39 Mr Monument denied that Mr Baker explained to him that the abscess had to be drained and a lymph node removed for a biopsy. He stated the only doctor who mentioned possible drainage of an abscess by surgery was Dr Hagen.
40 Mr Monument stated that he thought that the Consent Form he signed related to the fact that the operation was to be performed under general anaesthetic. He stated that he was advised by the anaesthetist of the risk of dying during the operation.
41 Ms Michelle Riddle, the plaintiff's girlfriend at the time, stated in her evidence that she recalled Mr Baker advising Mr Monument that an operation was necessary to drain the lump in the neck and also that some tissue had to be removed for a biopsy to ascertain whether the lump was cancerous. However, she denied that Mr Baker explained that there was a risk that the operation could affect the nerves and blood vessels in the neck.
42 Mr Baker in his evidence stated that he had no independent recollection of what discussion took place with Mr Monument. Surprisingly he did not take any notes whatsoever of the advice he gave. However, Mr Baker gave evidence that he believed that he gave advice to Mr Monument as to the risks involved in the operation proposed. This belief he based upon the Consent Form signed by the patient and also his usual practice.
43 The Consent Form was tendered into evidence as a part of the hospital records. Again, surprisingly, the Consent Form contained no mention of the advice given by Mr Baker, or for that matter the anaesthetist, as to the risks involved in the operation.
44 Mr Baker stated in his evidence that he had considerable experience in operating in the area of the neck. He stated that the neck area contained a lot of blood vessels (some of which passed to critical sites) and a lot of nerves. One of these nerves is the eleventh cranial nerve which is also known as the accessory nerve. He stated that in his opinion the risk of damage to the accessory nerve was about 5 per cent (that is 5 per cent of operations in the neck area result in some damage to the accessory nerve). The cause and nature of the damage can vary. The damage may be caused
(Page 14)
- by cutting, by contact with surgical instruments or by blood making contact with the nerve.
45 Although, Mr Baker has no memory of the conversation he had with Mr Monument prior to the operation, he stated that he would have told Mr Monument of the general risks of bleeding, infection and numbness and in particular that infection is a concern because an abscess is a form of infection. Further, he would have told Mr Monument of the risk of damage to nerves and blood vessels and in particular to the nerve that goes to the arm and shoulder. He did not believe that he would have mentioned the actual name of the nerve.
46 He said he would have told Mr Monument that he had to accept this risk because of the risk of infection from the lump and cancer. He stated that he would have told Mr Monument that there was no real alternative other than to proceed with the operation proposed.
47 Under cross-examination Mr Baker stated that he believed he told Mr Monument that if things went well, then Mr Monument would be back at work 4 to 6 weeks after the operation. He conceded that if things went wrong, such as a transection of the accessory nerve, the recovery time would be somewhere in the vicinity of 18 months to 2 years. He believed this to be a short time compared with the risk that the plaintiff might suffer if the suspected infection spread or he had cancer.
48 Mr Baker rejected a suggestion that the procedure undertaken on 30 September 1997 was rushed and that he failed to take the time to adequately advise Mr Monument of the risks involved in the operation proposed. He stated that he believed it was in Mr Monument's interest to have the operation expeditiously and as the operation theatre and he were available that day, he proposed to proceed with the operation that afternoon.
49 Mr Campbell in his evidence stated that in his opinion the suspected abscess in the neck required immediate surgery (within a day or so) due to the risk of infection spreading and the patient suffering septicaemia. He stated that the matter of investigating the malignancy was less urgent.
Both Mr Campbell and Mr McManus stated in their evidence that a warning ought to have been given concerning the risk of damage to the accessory nerve. Mr McManus stated that the warning ought to have included advice that damage to the accessory nerve may result in some problem with movement around the shoulder.
(Page 15)
Findings
50 I conclude that both Mr Monument and Ms Riddle are not reliable witnesses in stating that Mr Baker did not give a warning as to the possibility of damage to nerves as a result of the operative treatment. I find that Mr Monument had generally a poor memory of what was discussed. A contributing factor to this poor memory is the fact that the alleged conversation took place almost 10 years ago and at the time of the conversation Mr Monument was in a state of anxiety about the possibility of having cancer. Ms Riddle described in her evidence that Mr Monument was "extremely scared, frightened, yes, very worried".
51 Further, Mr Monument's unreliability is demonstrated by his evidence that Mr Baker did not explain to him that he needed open drainage of the abscess and a biopsy of a lymph node. This is contrary to the evidence of Ms Riddle who recalled both procedures being explained by Mr Baker. Further, Mr Monument's evidence is contrary to the Consent Form he signed which acknowledges that Mr Baker had explained to him the nature and purpose of the operation which is described on the Consent Form as:
"1. Drain abscess right side of neck.
2. Cervical lymph neck biopsy."
52 Further, I form the view from Mr Monument's answers generally that he did not have a good recollection of the details of what occurred at the hospital prior to the operation.
53 Further, I conclude that there are instances in his evidence where Mr Monument was clearly being evasive. One of these occasions was when he was questioned about his use of a growth hormone, Sustanon, which he said he was prescribed sometime in 1995 to 1997 and which was injected in his buttock. However, he was not able to provide any details of why he was prescribed this growth hormone. I find it unbelievable that he would not remember why he was prescribed such a hormone and I believe that he was being evasive as to his use of the growth hormone. Another occasion of unsatisfactory evidence related to Mr Monument's evidence that on 11 October 1997 he resigned his position of employment with Kundana Goldmine. He gave various accounts as to his reasons for resigning. In cross-examination he initially said he resigned due to personal issues between he and Ms Riddle but then later, in an almost argumentative fashion, stated it was due to the operation (when in fact at
(Page 16)
- that stage he was well within the 4 to 6 weeks of the recovery period forecast by Mr Baker).
54 I also conclude that Ms Riddle is an unreliable witness as to what risks were discussed with Mr Baker. Although, I find she is an honest witness, and although her recollection is more reliable than Mr Monument's on many details, she conceded that her memory was poor due to the time that had elapsed and also because she suffers from depression which affects her memory.
55 On the balance of probabilities I conclude that it is likely that Mr Baker gave to Mr Monument a warning in the terms that Mr Baker has described in his evidence. He is an experienced surgeon and he stated that the giving of such a warning was his usual practice. Further, the evidence of Mr Campbell and Mr McManus suggests that an experienced surgeon would give such a warning.
56 I do not believe that Mr Baker in giving advice to the plaintiff of the potential damage to the nerve went on to elaborate on how the nerve damage might affect the function of the shoulder and Mr Monument's occupation. I conclude that Mr Baker was more intent upon stressing to Mr Monument the need for surgery, in view of the risk of infection from the abscess spreading to other vital areas of the body and also the need to obtain an adequate sample of a lymph node in order to obtain a biopsy.
57 In such circumstances, given the imperative nature of the proposed operative treatment, I am satisfied that Mr Baker fulfilled his duty of care.
58 I am satisfied that Mr Baker told the plaintiff that if all went well he would be back at work within 4 to 6 weeks. However in the circumstances, other than to advise of the possibility of nerve damage, I do not believe Mr Baker was under an obligation to go into details about how Mr Monument's shoulder might be affected if the accessory nerve was damaged and how this might affect Mr Monument's employment. I find in accordance with Mr Baker's evidence that the risk of damage to the accessory nerve, although a real risk, was a relatively small risk. At worst, the interference with employment was likely to be 18 months to 2 years and not a permanent interference. In such circumstances I believe it was appropriate for Mr Baker to emphasise in his advice the proposed operative treatment and to give this advice as he did in such a way as to emphasise that in his opinion there was no real alternative other than to proceed as proposed.
(Page 17)
59 Further, other than to ask Mr Baker how long it would be before Mr Monument could expect to return to work, there is no evidence that Mr Monument alerted Mr Baker as to Mr Monument's sporting activities and the physical nature of his occupation or that Mr Monument had particular concerns if his shoulder was damaged. In such circumstances I find that Mr Baker had no obligation to give a warning other than in the general terms that I find he gave.
Causation
60 In the context of this trial, the issue of causation also needs consideration, that is whether Mr Monument, if warned of the potential harm to his shoulder, would have refused to undergo the surgery recommended by Mr Baker. Under the Australian common law in determining whether a patient would have undertaken treatment, if warned of a risk of harm involved in that surgery, the Court asks whether this patient would have undertaken the surgery. That is, the test is a subjective test (see Rosenberg v Percival (2001) 205 CLR 434 McHugh J at 443).
61 Mr Monument's evidence is that if he had been advised of the risk to the accessory nerve and how it might affect his shoulder, he would not have undertaken the operation. I do not accept this evidence.
62 His evidence-in-chief at p 28 of the transcript is worth quoting:
"Let's come back to the operation on 30 September 1997. If you had been told that there was a risk to the accessory nerve, in performing an open biopsy, what would you have done?---Not knowing what the accessory nerve was, I think more the complications and – if it was explained to me that I couldn't play sport or anything again, or it was going to effect me physically, I wouldn't have had it. If I had have known – if I had have known what I know today, I just definitely wouldn't have had it.
Can you tell us what you may have done in lieu of refusing the operation?---Well, I think through prior history, with my sport and my operations and things that I've had on my knees and all the things, it's the last option is for an operation, or to go through physio or rest or you would try everything before you go under a knife. If those options had have been available, I'm sure I would have taken them …"
(Page 18)
63 It is significant that the plaintiff stated "If I had have known what I know today, I just definitely wouldn't have had it".
64 What became known after the operation was that the lump was not an abscess and therefore the risk of spreading infection was not as significant. Further, the lump was not malignant. That is a completely different set of circumstances to that facing Mr Monument at the time he discussed the matter with Mr Baker prior to the operation. The ultrasound report suggested that the lump was an abscess and there was also a possibility of malignancy as suggested by the enlarged lymph nodes.
65 Further, Mr Monument compares the situation on 30 September 1997 with a sporting injury (he later gave evidence of a groin injury which was improved with non-operative treatment). However, this reasoning I conclude is contrived. The situation on 30 September 1997 was vastly different due to the risk of infection and cancer. As I have already found there were no other reasonable or viable options available. There certainly is no evidence suggesting that physiotherapy or other non-invasive treatment was an available alternative.
66 I am also influenced by the fact that in my opinion it is highly unlikely that a person in Mr Monument's position on 30 September 1997 would have declined to proceed with the operation given that on the information then available:
(a) there was a risk of the lump being an abscess and infection spreading to vital organs such as the brain;
(b) there was a risk that the lump was cancerous, a fact that in evidence was causing great worry to Mr Monument.
67 In such circumstances to have refused to undertake the operative treatment recommended by Mr Baker would have been extremely reckless.
68 Further, I believe some significance ought to be attached to the evidence that Mr Monument was advised by the anaesthetist that the use of a general anaesthetic can result in death. Notwithstanding this advice Mr Monument consented to the operation proceeding. Also I believe it is relevant to take into account that Mr Monument must have understood that if the lump was cancerous, then other forms of treatment would have been required which would have been likely to interfere with his occupation and sport.
(Page 19)
69 Finally, in assessing the credibility of Mr Monument on this critical subjective issue of causation, I take into account evidence of Mr Monument's general character. He failed to lodge income tax returns from 1997 onwards and I conclude that this was done to avoid paying income tax. Further, in June 2004 he was charged with two counts of possession of an illicit drug with an intention to sell or supply to another and was convicted of these charges in 2006. He received a term of imprisonment of 7 years which he is currently serving. These matters lead me to the conclusion that Mr Monument is not a person of good character and not a person who I can accept to be an honest and reliable witness on matters critical to his claim.
Conclusion on liability
70 In summary I conclude that:
(a) The plaintiff has failed to establish that the defendant was in breach of any duty of care.
(b) Even if I did find that such a breach of duty had occurred, then I am not satisfied the plaintiff would have refused to undergo the operative treatment recommended by Mr Baker on 30 September 1997.
Assessment of damages
71 I propose to undertake an assessment of damages of what I would have awarded if the plaintiff had been successful on the issue of liability.
72 In making this assessment of damages I place little weight on Mr Monument's evidence of his disability as I do not believe that he is an honest and reliable witness for the reasons outlined earlier in this decision. Accordingly, my assessment of damages is based not so much upon Mr Monument's evidence but other evidence produced in support of his claim.
73 I find that Mr Monument suffered damage to the accessory nerve which caused a fibrosis. This caused a difficulty in the plaintiff abducting his shoulder as confirmed in a report of Mr Baker dated 30 October 1997 which was sent to the plaintiff's general practitioner, Dr Greenham.
74 Mr Monument received physiotherapy treatment from a physiotherapist, Mr B Slocombe, who treated Mr Monument for his shoulder problems.
(Page 20)
75 An operation was performed by Mr Hamilton on 19 January 1998. Mr Hamilton stated in a report dated 4 May 1999 that Mr Monument was fit to return to light duties on 28 July 1998. In a report dated 23 February 2000 Mr Hamilton stated Mr Monument was able to return to all pre-surgical activities, including sporting activities.
76 Mr Hamilton acknowledged that the plaintiff would not make a 100 per cent recovery but no medical evidence has been produced to enable me to reach any conclusion as to the extent of any residual disability of the plaintiff.
77 According to a letter from Kundana Gold Pty Ltd, tendered by consent, Mr Monument earned in the year ending 30 June 1997 an amount of $63,904.08. A further sum of $14,693 was earned from 1 July 1997 to 30 September 1997. This amounts to a gross earning of $78,597 over a period of 65 weeks or $1,209.19 gross per week.
78 The earnings that Mr Monument would have received if he had continued working at Kundana Gold Pty Ltd from 30 September 1997, say to 1 March 2000 (130 weeks) is $157,194.70.
79 Mr Monument's evidence was that he instructed an accountant, Mr Mario Turco, to prepare draft income tax returns for the years ending 30 June 1997 through to 30 June 2003. These draft income tax returns suggest the plaintiff's income from 30 September 1997 to 1 March 2000 was $70,605. However, Mr Monument conceded in cross-examination that a further $14,693 received from Kundana Gold Pty Ltd was not included in these draft returns for the year ending 30 June 1998 and accordingly the total earnings over the period from 30 September 1997 to 1 March 2000 based upon this information increases to $85,298.
80 Deducting these supposed earnings from the gross earning figure of $157,194.70 leaves a net figure of $71,896.70.
81 If a further one-third reduction is made for taxation, then this reduces the figure to $47,931.
82 Further, any loss of income ought to have added to it a component for loss of superannuation and interest. The rate of superannuation is 7 per cent and the rate of interest that should be used is 3 per cent (Watts v Turpin (1999) 21 WAR 402 at 422-423).
(Page 21)
83 This would increase the calculation of loss of earnings as follows:
Net loss of earnings $47,931.00
Superannuation at 7 per cent on $71,896.70 $5,032.77
Subtotal $52,963.76
Interest (3 per cent x 10 years x $52,963.76) $15,889.13
Total $68,552.90
84 However, the situation is further complicated by the fact that Mr Monument resigned on 11 October 1997 from his position of employment with Kundana Gold Pty Ltd. I find that this was due to personal reasons and not related to his shoulder injury. This means it is not clear as to what extent Mr Monument would have been able to earn income from 28 July 1998 when Mr Hamilton stated that Mr Monument was fit for light duties.
85 Further, the draft income tax returns were not supported by any supporting documentation and I am not satisfied that they necessarily accurately record income that Mr Monument earned during the relevant period.
86 Further, according to the evidence of Mr McManus, which I accept, the plaintiff, even if he had elected to take a small incisional biopsy instead of the recommended operation, would have been exposed to the risk of nerve damage from this procedure (which may have created a greater risk of damage because of the uncertainty as to the location of the nerve) and further surgery that would have been required in any event for removal of the lump. This probability of such damage occurring in any event needs to be taken into account (see Chappel v Hart (1998) 195 CLR 232, Gauldron J at par 19).
87 Taking all of the factors into account, I assess the damage for loss of earning capacity (including interest and superannuation) at $50,000. There is no evidence that the plaintiff would have suffered a loss of future earning capacity.
88 Special damages have been agreed in the sum of $2,529.50. Adding interest over 10 years to this amount increases the sum to $3,288.35.
89 I assess general damages in the sum of $15,000.
(Page 22)
90 Accordingly I make the following provisional assessment of damages:
Past loss of earning capacity
(including superannuation and interest) $50,000.00
Special damages (inclusive of interest) $3,288.35
General damages $15,000.00
Total $68,288.35
91 However, as stated above, on the basis of my findings of liability, this is a provisional assessment only and the claim is dismissed.
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