Peterson v South Eastern Sydney Illawarra Area Health Service & Elliott
[2010] NSWDC 114
•24 June 2010
CITATION: Peterson v South Eastern Sydney Illawarra Area Health Service & Elliott [2010] NSWDC 114 HEARING DATE(S): 11, 12, 13, 14, 22 May, 1 July 2009
JUDGMENT DATE:
24 June 2010JURISDICTION: Civil JUDGMENT OF: Levy SC DCJ DECISION: 1. Verdict and judgment for the defendants;
2. Plaintiff to pay the defendants’ costs on the ordinary basis unless otherwise ordered;
3. The exhibits may be returned;
4. Liberty to apply on 7 days notice if further orders are required.CATCHWORDS: TORTS – professional negligence – medical – orthopaedic out-patient management of complex Type 3 Pilon tibial fracture following initial operative repair – whether unreasonable delay in arranging further orthopaedic surgery for non-union or delayed union of fracture – whether breach of duty of care by hospital – whether breach of duty of care by consultant visiting medical officer – whether defendants proved cigarette smoking by plaintiff constituted contributory negligence – whether legal test for causation of harm satisfied – considerations of Civil Liability Act 2002, s 5O - s 5E - DAMAGES – assessment of multiple heads of damage LEGISLATION CITED: Civil Liability Act 2002
District Court Act 1973
Uniform Civil Procedure Rules 2005CASES CITED: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538
Chappell v Hart [1998] HCA 55; 195 CLR 232
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Dobler v Halvorsen [2004] NSWCA 391
Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 113
Evans v Lindsay [2006] NSWCA 354
Gett v Tabet [2009] NSWCA 76
Halvorsen v Dobler [2006] NSWSC 1307
Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
Rosenberg v Percival [2001] HCA 18; 205 CLR 434
Sretenovic v Reed [2009] NSWCA 280
Strinic v Singh [2009] NSWCA 15
Tabet v Gett [2010] HCA 12
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158TEXTS CITED: Practical Fracture Treatment, by Ronald MacRae, Churchill Livingstone 1981
Hindsight bias and outcome bias in the social construction of medical negligence : A review; Journal of Law and Medicine; (2009) 16 JLM; pp 846-857PARTIES: Greg Peterson (Plaintiff)
South Eastern Sydney Illawarra Area Health Service (First defendant)
Dr Robert Elliott (Second defendant)FILE NUMBER(S): 1126 of 2007; 2007/291035 COUNSEL: Mr D Hirsch (Plaintiff)
Mr M Fordham (Defendants)SOLICITORS: Beilby Poulden Costello (Plaintiff)
Francesca Minetti (Defendants)
JUDGMENT
A. INTRODUCTION [1] – [21] Nature of the case [1] Background [2] – [7] Parties [8] – [10] Issues for determination [11] – [12] Summary of findings [13] – [15] Assessed heads of damage [16] – [18] Array of evidence [19] – [21] Oral evidence
[20] Documentary evidence
[21] B. FINDINGS - BACKGROUND FACTS [22] – [113] Plaintiff’s background [22] – [28] Plaintiff’s personal background
[24] Plaintiff’s pre-injury work history
[25] Plaintiff’s pre-injury health history
[26] – [27] Plaintiff’s pre-injury leisure pursuits
[28] Injury and initial treatment [29] – [48] Primary injury
[30] – [33] Medical description of initial injury
[34] Initial assessment at Shellharbour Hospital
[35] – [37] Initial treatment at Wollongong Hospital
[38] – [46] Discharge from Wollongong Hospital
[47] – [48] Concurrent and intervening events [49] – [56] Human growth hormone supplements taken by plaintiff
[50] Fall subsequent to discharge from Wollongong Hospital
[51] – [56] Relevant events occurring in course of follow-up treatment [57] – [82] Fracture clinic reviews at Wollongong Hospital
[58] – [59] Post-operative consultations with Dr Elliott
[60] – [72] Dr Elliott’s plan for remedial surgery
[73] – [76] Cancellation of Dr Elliott’s plan for remedial surgery
[77] – [81] Tertiary referral to Dr O’Carrigan
[82] Subsequent treatment by Dr O’Carrigan [83] – [113] Remedial treatment provided by Dr O’Carrigan
[99] – [111] Result of remedial treatment
[112] – [113] C. EVIDENCE REVIEW - LIABILITY [114] – [328] Tabulation of consultations with defendants 14.10.2003 - 11.08.2003 [114] – [119] Evidence of Dr Elliott [120] – [175] Expert evidence – plaintiff’s case [176] – [258] Dr Bornstein
[177] – [227] Professor Higgs
[228] – [258] Expert evidence – defendants’ case [259] – [328] Dr Donaldson
[260] – [286] Professor Nade
[287] – [328] D. EVIDENCE REVIEW - DAMAGES [329] – [352] Evidence of plaintiff’s mother [330] – [336] Evidence of plaintiff’s employer [337] – [338] Medical reports – damages issues [339] – [352] Dr Harvey - report obtained by defendants’ solicitor
[340] – [347] Dr Davis - report obtained by plaintiff’s solicitor
[348] – [352] E. FINDINGS - CREDIT AND LIABILITY ISSUES [353] – [503] Issue 1 – Credibility of testimony [354] – [372] Issue 2 – Progress of healing of distal tibial fracture [373] – [399] Issue 3 – Duty of care and breach [400] Civil Liability Act 2002 - statutory framework
[401] – [404] Duty of care
[405] Content of duty of care
[406] Alleged breach of duty of care
[407] – [466] Conclusions on alleged breach of duty of care
[467] Issue 4 – Causation [468] – [492] Issue 5 – Alleged contributory negligence [493] – [503] F. FINDINGS - DAMAGES ISSUES [504] – [528] Findings as to injuries [505] – [510] Findings as to treatment [511] – [516] Findings as to rehabilitation [517] Findings as to mitigation [518] Findings as to disabilities [519] – [525] Findings as to employment effects [526] Findings as to domestic activities [527] Findings as to plaintiff’s probable life span [528] G. ASSESSMENT OF DAMAGES [529] – [598] Non-economic loss [530] – [534] Past loss of earnings [545] – [554] Future loss of earning capacity [555] – [569] Past superannuation losses [570] Future superannuation losses [571] Past domestic assistance [572] – [577] Future domestic assistance [578] – [584] Future treatment [585] – [588] Past out-of-pocket expenses [589] – [596] Interest on past damages [597] Summary of damages assessment [598] H. DISPOSITION & ORDERS [599] – [600] Disposition [599] Orders [600]
A. INTRODUCTION
Nature of case
1. The plaintiff has brought these proceedings against Wollongong Hospital [“the hospital”] and its visiting medical officer [“VMO”] Dr Elliott, an orthopaedic surgeon, claiming damages for alleged negligence concerning out-patient follow-up treatment provided by the defendants in respect of fractures sustained by the plaintiff to his right tibia and fibula.
Background
2. The background to the proceedings is that the plaintiff had earlier sustained a most severe orthopaedic injury to his right ankle and lower leg in an off-road motorcycle accident on 11 October 2003 during a recreational Motocross sporting event. The fractures were identified as comprising a Type 3 Pilon injury. Dr Elliott described this injury as almost meriting an amputation. The plaintiff makes no complaint about the initial treatment he received. The initial surgical reduction of the fractures was achieved to a high standard of anatomical reconstruction.
3. However, the plaintiff alleges that the follow-up aftercare he received from the defendants as an out-patient was below the expected standard. The claim is that there was an unreasonable delay in the timely arrangement of further surgical treatment in respect of either a non-union or a delayed union of the fractures to the plaintiff’s distal right tibia. The plaintiff claims this delay has resulted in an avoidably poor outcome.
4. This case involved the interpretation of a series of 251 x-ray film images by 5 orthopaedic surgeons, whose expert opinions offered differing perspectives of interpretation as to what was shown on those images. This was in a context where the x-ray images in question, or selected prints of them, were not tendered in evidence, notwithstanding an invitation to do so : [T D3 page 25 lines 27-31].
5. The non-tender and continued absence of those films or images served to prolong and to a degree, confuse the evidentiary debate amongst the expert orthopaedic surgeons as to the true contextual meaning in this case, of non-union, or delayed union, of the plaintiff’s right distal tibial fracture. The case centred around whether, on the basis of abstract and retrospective non-clinical opinions interpreting those x-ray images, there ought to have been a more timely surgical intervention in the 4 – 7 months post-injury time range, rather than a tertiary referral for that surgery at 10 months post-injury, as occurred in this instance.
6. Unfortunately, in this case the parties took no pro-active steps prior to the trial to arrange for a joint conference of experts and for the taking of expert evidence concurrently. Had they done so, this would have led to a significantly shorter analysis of these expert medical opinions. As a consequence, the expert opinion evidence on the liability and causation issues, from 4 orthopaedic surgeons, was adduced in a wide-ranging manner. This has required a lengthy evidence review : Paragraphs [114] to [352]. My findings on credit, liability and causation appear between paragraphs [353] to [492] of these reasons.
7. The hearing of the case concluded on 1 July 2009 when judgment was reserved. Earlier, the decision of the Court of Appeal in Gett v Tabet [2009] NSWCA 76 was delivered on 9 April 2009. An application for Special Leave to appeal to the High Court in that case was filed on 6 May 2009. That application was heard and granted on 4 September 2009. The decision of the High Court in Tabet v Gett [2010] HCA 12 was published on 21 April 2010. By invitation, the parties concluded their written submissions concerning the implications of that authority to this case on 18 May 2010. The plaintiff’s case cannot involve any consideration of questions concerning loss of a chance of a better outcome if he had received the medical treatment for which he contended.
Parties
8. The plaintiff, Greg Peterson, was born in 1979. He is a journeyman plumber by trade.
9. The first defendant, the South Eastern Sydney Illawarra Area Health Service, is the body responsible for the Wollongong Hospital where the plaintiff received surgical and follow-up out-patient aftercare treatment for his fractures following a transfer from Shellharbour Hospital.
10. The second defendant, Dr Robert Elliott, is a specialist orthopaedic surgeon and VMO at the hospital. Dr Elliott’s initial involvement with the plaintiff’s treatment was that he had supervised and assisted the hospital’s orthopaedic registrar, who undertook the primary surgical reduction of the plaintiff’s fractures. Dr Elliott later also supervised the various hospital registrars who periodically saw the plaintiff during scheduled visits for post-operative review and care at the hospital’s out-patient fracture clinic. Post-operatively, Dr Elliott also saw the plaintiff on several occasions at the hospital’s fracture clinic, as well as at his own private consulting rooms, for management of the fractures. Previously, in 1999, Dr Elliott had treated the plaintiff as a private patient for an earlier fracture of the right arm.
Issues for determination
11. Against the background framework of the Civil Liability Act 2002 [“CL Act”], the following liability and causation issues arise for determination:
Issue 1 : The credibility of testimony;
Issue 2 : Whether, before 5 August 2004, and if so when, should non-union or delayed union of the plaintiff’s distal right tibial fracture have been reasonably diagnosed;
Issue 3 : Whether there was a relevant breach of the duty of care owed by the respective defendants, and if so, in what respects;
Issue 4 : Whether the defendants have established any contributory negligence on the part of the plaintiff, and if so, to what extent, and to what effect;
Issue 5 : Whether the plaintiff has established legal causation for the damage of which he complains;
12. The determination of Issue 2 requires a consideration of the nature, extent, likely course and the prognosis of the plaintiff’s initial tibial fracture, and the likely outcome that would ordinarily have been anticipated, absent the alleged negligent treatment. This issue is concerned with whether, from a period of about 4 months following the initial reduction of the plaintiff’s fracture, a state of non-union or delayed union persisted and ought to have been recognised by the defendants, thereby mandating an earlier surgical intervention that was likely to produce a surgical outcome more favourable to the plaintiff, and sounding in assessable damages.
Summary of findings
13. I have found that neither of the defendants has been shown to have relevantly breached the respective duties of care they owed to the plaintiff in not making a more timely diagnosis and surgical treatment of non-union or delayed union of the plaintiff’s right distal tibial fracture.
14. Notwithstanding this finding, to allow for the possibility that I may be found to be in error in respect of my finding on breach of duty of care, I have proceeded to consider the causation issues. In this regard I have found that the plaintiff has failed to satisfy the requirements for proof of legal causation for the claimed damage. It follows that there must be a verdict for the defendants.
15. To allow for the possibility that I may be found to be in error in respect of my reasons for finding the plaintiff has failed to establish legal causation for the damage that he has claimed, I have proceeded to make findings on the issues that would have remained as if causation had been established. In this regard I have also found that the defendants have failed to establish contributory negligence on the part of the plaintiff. I have also found that even if the defendants had discharged their onus of proving that such contributory negligence on the part of the plaintiff, the defendants have failed to prove that such contributory negligence was a potent cause of damage to the plaintiff. I have notionally assessed the plaintiff’s damages in the sum of $807,841 as outlined in the damages summary that follows.
Assessed heads of damage
16. The plaintiff made a claim in respect of a total of 9 claimed heads of damage for assessment, plus interest on some of the claimed past losses. The heads of damage claimed by the plaintiff and the submissions made by the parties in this regard, are listed below, together with paragraph references to my assessment of the various heads of damage claimed.
17. The wide discrepancy between the submissions of the parties was accounted for by the defendant’s differing approach to the issue of causation. If I had found for the plaintiff, I would have ordered the entry of judgment for the plaintiff in the assessed amount of $807,841.
Head of Damage Claimed by Plaintiff
Primary SubmissionsParagraphs (a) Non-economic loss [530] – [544] (b) Past loss of earning capacity [545] – [554] (c) Future loss of earning capacity [555] – [569] (d) Past superannuation losses (e) Future superannuation losses (f) Past domestic assistance [572] – [577] (g) Future domestic assistance [578] – [584] (h) Future treatment [585] – [588] (i) Past out-of-pocket expenses [589] – [596] (j) Interest on past damages Totals
18. No memorandum of consent was filed to extend the court’s jurisdiction beyond $750,000. No occasion has arisen for an inquiry into the issue of whether the plaintiff would have been able to satisfy the requirements for the making of an order expanding the jurisdiction of the court beyond $750,000, pursuant to s 51(2)(b) and s 51(4) of the District Court Act 1973.
Array of evidence
19. It is convenient to set out an overview of the evidence. Apart from the evidence of the plaintiff, his mother and the plaintiff’s employer, the remainder of the oral evidence comprised expert evidence from 5 orthopaedic surgeons, including the second defendant, Dr Elliott. Most of the documentary material tendered comprised medical records and reports.
Oral evidence
20. The following 8 witnesses were called to give evidence:
(a) The plaintiff;
(b) Mrs Marilyn Peterson, the plaintiff’s mother;
(c) Mr Chad Stennard, the plaintiff’s current employer;
(d) Dr Robert Elliott, the second defendant;
(e) Dr David Bornstein, a consultant orthopaedic surgeon who was retained by the plaintiff’s solicitor;
(f) Professor Robin Higgs, a consultant orthopaedic surgeon who was retained by the plaintiff’s solicitor;
(h) Dr Wayne Donaldson, a consultant orthopaedic surgeon who was retained by the solicitor for the defendants.(g) Professor Sydney Nade, a consultant orthopaedic surgeon who was retained by the solicitor for the defendants;
Documentary evidence
21. The liability exhibits included a paginated bundle of 7 sets of hospital records, which documented the plaintiff’s various hospital admissions for the successive attempts at treatment of his fractures. This bundle was marked Exhibit “F”. A copy of Dr Elliott’s patient records concerning the plaintiff was also tendered, and was marked Exhibit “G”.
B. FINDINGS – BACKGROUND FACTS
22. In the paragraphs that follow I set out my findings concerning the plaintiff’ pre-injury personal circumstances, his pre-injury work history, his health history and his pre-injury leisure activities.
Plaintiff’s background
23. As is evident from the summary that follows, the plaintiff’s background circumstances are not suggestive of any pre-injury problems limiting his physical or employment capacity.
Plaintiff’s personal background
24. The plaintiff is a single man who was born in 1979. He was aged almost 24 years when injured. He was aged 30 years at the time of the trial. He shares the financial responsibility for the maintenance of his 6 year old son from a previous relationship.
Plaintiff’s pre-injury work history
25. After leaving school in 1996 at age 17 years the plaintiff trained as a journeyman plumber. He completed his apprenticeship and obtained his qualifications in the year 2000. This entitled him to work unsupervised as a tradesman under an employer’s licence. He is a qualified plumber, drainer and gasfitter. His work history between 2000 and 2003 was not the subject of evidence. On 7 July 2003 he commenced working for Malone Plumbing in a position for which he was paid $600 per week net. He left that position on 7 October 2003 after 4 months for reasons that were not explained or explored in the evidence. At the time of his injury on 11 October 2003, the plaintiff was in between jobs.
Plaintiff’s previous health history
26. Before the subject injury the plaintiff was in apparent good health. Previously, on 21 August 1999, the plaintiff had suffered an un-displaced fracture of the right distal radius following a snowboarding injury. That fracture was treated by immobilisation in a back slab cast. Dr Elliott first saw the plaintiff on 26 August 1999 for review of that injury, and then again on 23 September 1999, for removal of the cast, at which time it was noted that a satisfactory result had been achieved. There was no evidence that the plaintiff had any other health problems.
27. There was evidence in the hospital records that the plaintiff had been taking human growth hormone for 2 years before the injury. The reasons for this were not explained or explored in evidence. The plaintiff was a smoker of cigarettes, a fact that assumed some importance in the liability issues. There were no apparent pre-accident restrictions on the plaintiff’s physical ability to fully exercise an earning capacity in respect of manual work, either in his trade or generally.
Plaintiff’s previous leisure pursuits
28. Before his injury the plaintiff led an active outdoor lifestyle without restrictions. He was involved in physically dextrous and risk-laden pastimes, for example, snowboarding and the motocross riding of motorcycles. The hospital notes also noted his interest in surfing.
Injury and initial treatment
29. In the paragraphs that follow, I set out my findings on the events leading to the plaintiff’s hospitalisation and his initial treatment that have given rise to this claim.
Primary injury
30. The plaintiff’s initial injury occurred at about 2:00pm on Sunday 11 October 2003. He was taken to Shellharbour Hospital where, on admission, a history was recorded that in the accident he had “over-jumped” a set of doubles on his motocross bike and then landed on flat ground. He described how in these events his foot had come off the peg on the bike and had then hit the ground. Subsequent medical evidence described this as a high energy Type 3 Pilon injury.
31. In the plaintiff’s evidence in chief, the detail of these events was given very little attention, as is evident from the following extract:
“ Q. Mr Peterson you fractured your leg in a motorbike accident on 11 October 03 isn't that right?
A. Yeah that’s right.Q. And discharged on 14 October 03?Q. And you were treated at Wollongong Hospital?
A. Yep.
A. Yep .”
32. The nature, severity and impact energy of the injury became relevant in the debate amongst orthopaedic experts as to the appropriateness or not of surgical intervention in the plaintiff’s after-care when fracture non-union or delayed union was ultimately recognised.
33. In cross-examination, a more detailed description of the events of the plaintiff’s injury emerged:
“ Q. At the time of this accident you were riding - was it a trail bike?
A. Yeah.Q. A motorcycle?
A. Yeah.Q. You had gone off a jump, is that right?
A. Yep.Q. How high in the air were you?
A. I don’t know.Q. Just off the ground, couple of metres, what was it?
A. Yeah, just jump.Q. Are you able to estimate how high you were?
A. A metre, I don’t know.Q. How fast were you going?
A. I was in second gear, I don’t know. I haven’t - no speedo on trail bike.Q. Were you doing in excess of 40 kilometres an hour?
A. Probably around 40, just a little - just a little jump.Q. I also understand the mechanism of the actual accident. When you landed, did you land on your foot with the full weight of your body and the bike going through your foot?
A. My foot hit the ground.Q. Yes?
A. Yeah.Q. And that was the first thing that hit the ground?
A. My foot?Q. Whatever it was after that, you were in a lot of pain?Q. Yes?
A. Well I can’t - yeah, I know it hit the ground.
A. Yeah that’s right .”
Medical description of the initial injury
34. The various orthopaedic surgeons who gave evidence essentially agreed that the plaintiff’s injury was a most severe one. The unchallenged evidence of Dr Elliott was that on a severity scale of 1 to 10, where 9 involved amputation, the plaintiff’s injury was rated at 8.5 on that scale. It was common ground that the initial injury had been treated to achieve an excellent surgical reduction of the many fragments involved in the ankle fracture, which was very comminuted.
Initial assessment at Shellharbour Hospital
35. Following his injury, the plaintiff was initially taken to Shellharbour Hospital where he was first seen at 15:38 hours. This was about one and-a-half hours after his injury. He was in distress and in pain on arrival. He was unable to walk on his right ankle and he was unable to remove his right boot.
36. At about 15:45 hours the plaintiff was triaged and then seen in the emergency department. He was given morphine for his pain and his boot was then removed. The ankle region was noted to have been swollen and the distal lower leg was noted to be in rotational valgus deformity but the skin was not broken. An x-ray was arranged which showed a comminuted distal tibial fracture with intra-articular involvement where the distal tibia forms part of the ankle joint, as well as a transverse fracture of the distal fibula with displacement and external angulation of about 20 degrees. The initial x-ray report stated:
“ Right Tib and Fib
Clinical notes – Trauma.
There is a comminuted fracture of the distal right tibia and fibula, the distal fragments are slightly displaced anteriorly. There is associated gas is (sic) the soft tissues over the distal tibia, raising the possibility that this fracture is infact (sic) truly compound. The fracture extends into the talar articular surface of the tibia.No bony abnormality is seen, no effusion is demonstrated in the knee joint. Proximal fibula appears intact.”Right Knee
37. Arrangements were then made to transfer the plaintiff to Wollongong Hospital for appropriate orthopaedic treatment, including for operative repair, and for further management.
Initial treatment at Wollongong Hospital
38. The plaintiff arrived at Wollongong Hospital at 19:30 hours on 11 October 2003 after an uneventful transfer from Shoalhaven Hospital. This was about six and-a-half hours after his initial injury. He remained an in-patient at this hospital until he was discharged three days later on 14 October 2003.
39. On the first evening of his admission to the hospital it was noted that he was demanding of morphine and strong pain relief. It was noted that when this pain relief was deferred, he became verbally aggressive and abusive to nursing staff and threw away Panadol tablets that were offered to him.
40. On the following day, 12 October 2003 a CT scan of the right ankle was taken which was reported as follows:
“ CT Right Ankle
Axial slices have been performed with sagittal and coronal reconstructions.
There is quite an extensive comminuted fracture of the distal end of the tibia which involves its articular surface.
There is a fracture of the distal shaft of the fibula.”There is some displacement of most of these bony fragments.
41. Later that day, under the supervision of Dr Elliott, who assisted at the operation, the plaintiff was operated upon by the Orthopaedic Registrar, Dr Summersell, who performed an open reduction and internal screw fixation of the fracture of the right tibia with the insertion of two percutaneous screws. An external fixator device was also applied with anchoring pins. The position of the reduced fracture was checked intra-operatively using an image intensifier in the operating theatre.
42. At 17:05 hours on 12 October 2003, post-operatively the right leg was elevated with the position of the ankle above the knee to relieve the slight oedema to the right foot. At this time the clinical notes record that the plaintiff was asking to be taken outside for a cigarette. The nursing staff declined his request because he was still under the effects of morphine. The hospital admission notes recorded that the plaintiff was a smoker. This was the first post-operative reference in the clinical notes to the plaintiff being a smoker. Ultimately the matter of the plaintiff’s smoking was given some focus and significance in the evidence of Dr Elliott and to a lesser extent the other experts.
43. On 13 October 2003 post-operative x-rays were taken of the plaintiff’s right ankle. These were reported to show a good surgical result. The report was in the following terms:
“ Right Ankle
It is held in satisfactory position by external fixation device.”Fractures of the distal fibula and tibia are noted. These do not appear to extend to the articular surface.
44. On 14 October 2003 the plaintiff was assessed by an occupational therapist to be independent with the use of crutches. He was assessed to be mobilising well, able to self-care the tasks of daily living and was accordingly discharged from hospital at about 14:30 hours on that day.
45. On 16 October 2003 Dr Elliott’s intern prepared a discharge summary which was copied to Dr Elliott. It included the following details:
“ Diagnosis
Motor bike accident. fracture of right distal tibia
Procedure:
Closed screw reduction and percutaneous screws / application of external fixation on 12 October 2003
Summary:
Closed reduction and percutaneous screws and external fixation. Nil post operative complications.
Treatment:
Leg elevation:
Daily pin site dressings by Community nursing.
Non-weightbearing right leg.
…Fracture clinic in one week with new x-ray”Follow up:
46. A copy of Dr Elliott’s records was tendered as Exhibit “G”. These records show that Dr Elliott had 2 consultations with the plaintiff whilst he was an inpatient at the hospital. The first such consultation was noted to have occurred pre-operatively on 12 October 2003, including in what appears to be an intra-operative review, as set out in an operation note of the procedure performed by Dr Summersell. The second of Dr Elliott’s in-patient consultations with the plaintiff was noted to have occurred on 14 October 2003, prior to the plaintiff’s discharge from hospital.
Discharge from Wollongong Hospital
47. On 14 October 2003 Dr Elliott examined the plaintiff at the pre-discharge consultation. He noted that the plaintiff’s post-operative condition was satisfactory. He approved the plaintiff’s discharge from hospital. At the time of discharge, the further plan for management was for follow-up and review in the fracture clinic at the hospital.
48. When the plaintiff was discharged from hospital he was given information concerning care of the pin site wounds for the in situ external fixator device and the dressings to his right lower leg. Arrangements were also made for a community nurse to visit him at his home for daily dressing changes. The plaintiff was given an appointment to attend the hospital fracture clinic about one week later on 24 October 2003. Apparently, the plan was to leave the leg in plaster for some 12 weeks and in the interim, to review and assess progress at periodic intervals at the hospital fracture clinic.
Concurrent and intervening events
49. The evidence reveals a concurrent matter, namely the plaintiff was taking human growth hormone at the time of his injury. The evidence also reveals an intervening event, namely, a post-operative fall in which the plaintiff injured his right foot and lower leg.
Human growth hormone supplements taken by plaintiff
50. The Shoalhaven Hospital notes record a history given by the plaintiff that for approximately 2 years before his injury, the plaintiff had been taking a human growth hormone supplement of unspecified dosage, at an unspecified frequency and for unspecified reasons. This issue was not explored in the evidence at all. There is no evidence that this issue was considered by any of the orthopaedic experts. None of the orthopaedic experts commented upon this feature of the plaintiff’s history. In such circumstances, where the parties have chosen to ignore this evidence, I am constrained from drawing conclusions from that recorded history, irrespective of any views I might hold on the healing or retarding effects, if any, on bone fractures, that this hormone supplement may have had. Accordingly, I make no findings on this issue : Strinic v Singh [2009] NSWCA 15; Sretenovic v Reed [2009] NSWCA 280.
Fall following discharge from Wollongong Hospital
51. On 19 January 2004, some 97 days after his discharge from the hospital, by appointment, the plaintiff presented at the Physiotherapy Department at Shellharbour Hospital complaining of increased pain in the right foot and lower leg due to a fall that had occurred when he stumbled whilst using his crutches on the way to the physiotherapy appointment. This matter was dealt with in passing in the reports of Dr Donaldson and Professor Higgs.
52. The Shoalhaven Hospital physiotherapy notes have been ignored by the parties. They contain some references to matters that I consider to be of possible interest to the issues in the case.
53. The first item of interest in these notes is the reference by the physiotherapist on 18 November 2003 to the plaintiff’s calf being “wasted”. In the context in which the note appears, I infer that it was the right calf that was wasted.
54. The second item of interest in these notes is the reference on 19 January 2004 to the plaintiff’s post-fall experience of pain in the dorsal aspect of his right foot with pain to the right ankle. On examination the physiotherapist noted that the plaintiff’s right ankle was measured at 38º dorsiflexion in association with an equinus contracture, for which stretching exercises were prescribed for tight calves. The relationship between this contracture and muscle wasting was not explored in the evidence.
55. The third item of interest in these notes was on 29 January 2004 the pin sites were noted to be oozing pus and reddened such that the physiotherapist advised the plaintiff to see his general practitioner to have the pin site infection checked.
56. The causative role, if any, these matters played in his recovery or non-recovery from his tibial fracture was not really touched upon or explored in detail in the evidence. The possibilities are that the fall had no effect at all, or that it caused further trauma that affected the healing of the fractures including a possible novus actus interveniens. In the absence of expert medical evidence analysing the probable effects of the fall, I will not speculate on the issues raised by the occurrence of the fall : Strinic v Singh [2009] NSWCA 15; Sretenovic v Reed [2009] NSWCA 280. The issue is not something I can ignore but it nevertheless remains a matter of speculation that is not capable of resolution on the evidence, it is subject to only brief references in the reports of Dr Donaldson and Professor Higgs : Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352.
Relevant events occurring in the course of follow-up treatment
57. The plaintiff claims that during the period between 24 October 2003 and 9 July 2004 he received care at the hospital fracture clinic that was below the expected standard. It therefore becomes necessary to examine and analyse in some detail what actually occurred at those reviews in order to determine the issues that arise for decision in this case. Before doing so it is appropriate to first carry out a review of the chronology of treatment received by the plaintiff before setting out for consideration a tabulation of the relevant occasions on which the plaintiff was seen for review at the clinic and by Dr Elliott.
Fracture clinic reviews at Wollongong Hospital
58. Over the ensuing 8 months following his discharge from the hospital the plaintiff periodically attended the fracture clinic at that hospital for management and for review in order to check on the progress of the healing of his fractures. On those occasions, the state of healing of the fractures was assessed by various orthopaedic registrars at the clinic. Dr Elliott gave evidence that on some of these occasions in the clinic, he had been consulted by the registrars about the plaintiff’s presentation and ongoing management.
59. In the period between 24 October 2003 and 9 July 2003 there were at least 14 attendances of the plaintiff identified in the fracture clinic notes. I have tabulated these attendances in the course of my review of the liability evidence at paragraphs [114] to [119]. On 9 July 2003 the registrar in attendance requested a consultant’s opinion from Dr Elliott on the next scheduled visit. Pursuant to that request, Dr Elliott then saw the plaintiff in his private consulting rooms on 5 August 2003 some 27 days later.
Post-operative consultations with Dr Elliott
60. Dr Elliott saw the plaintiff for post-operative review on at least 4 occasions at the fracture clinic and on at least one occasion at his private rooms.
Post-operative consultations with Dr Elliott at the fracture clinic
61. Dr Elliott gave evidence that he saw the plaintiff on a number of occasions when the plaintiff periodically attended the fracture clinic. This was to be expected as Dr Elliott was a VMO at the hospital. As such, part of his duties involved the supervision of the hospital’s orthopaedic registrars as part of their training, as well as making himself available for consultations where required, in instances where registrars needed a consultant’s opinion or guidance on questions of patient management, including consultations at the hospital’s fracture clinic.
62. Dr Elliott’s records show that he had 3 such consultations with the plaintiff at the fracture clinic, one of which included an out-patient procedure where he supervised the orthopaedic registrar in a procedure for the removal of the external fixator from the right tibia. This procedure had been carried out because the plaintiff had developed a pin tract infection in relation to that fixator device which required that it be removed.
63. The first of those fracture clinic consultations took place on 9 February 2004 as a pre-operative consultation that was then followed by the removal of the fixator in what appears to have been a day only procedure that was carried out 3 weeks after the plaintiff’s fall on 19 January 2004.
64. The second such consultation took place on 7 May 2004.
65. The third such consultation took place on 11 June 2004.
66. There was no recorded detail in relation to these consultations because the only evidence of them having occurred is in Dr Elliott’s notes of these consultations which consisted simply of a transcribed dictated note stating “consultation” without further details concerning history, viewing of x-rays or findings on examination. The fracture clinic notes at Exhibit “F.B.22” contain a relevant entry for 7 May 2004 in Dr Elliott’s handwriting. In this regard, Dr Elliott wrote:
“7 May 04
# clinic : Elliott
Progress xray
- Slow progress of bone union
FOR 1. Stop smoking!
2. Partial weight bear (R) leg
SEE 1/12 Xray
(Signed Elliott)”
67. The 11 June 2004 note of the plaintiff’s attendance at the fracture clinic is in the hand of the orthopaedic registrar. There is no evidence within that note that Dr Elliott saw the plaintiff on that date.
68. On 9 July 2004, which was the last in the series of the reviews of the plaintiff’s ankle in the fracture clinic the Registrar made a note from which it is clear that Dr Elliott’s opinion on further management of the plaintiff’s fracture would be sought. The plan was to obtain this opinion at the next scheduled review. The medical records do not contain a note of the date of that scheduled review and in that regard the notes appear to be deficient concerning this clerical detail.
Post-operative consultations at Dr Elliott’s consulting rooms
69. The plaintiff next saw Dr Elliott in his private consulting rooms on 5 August 2004 after a referral from the registrar for review. The hospital records do not contain any entries concerning this consultation. Accordingly, the detail recorded in Dr Elliott’s patient notes needs to be considered when reviewing the relevant events of this consultation.
70. Exhibit “G” shows that at the consultation on 5 August 2004 Dr Elliott took a history and noted that the plaintiff told him that he had to use crutches and he complained of an aching right leg.
71. Dr Elliott noted that the cast had been removed some 12 weeks previously, which meant this had occurred in approximately early June 2004. He reviewed x-rays which were not identified as to a date series, the quantity of x-rays reviewed, or which views were reviewed. It was noted that these x-rays showed that there was tibial non-union with some slight anterior angulation. He also noted that the fracture of the fibula had healed.
72. On examination, Dr Elliott noted his finding that there was good circulation and the presence of what he described as minor deformity. He recorded his provisional diagnosis of non-union of the right tibia.
Dr Elliott’s plan for remedial surgery
73. Dr Elliott’s recorded plan of management was to recommend bone grafting of the right tibia with internal fixation. His notes indicate that he also discussed with the plaintiff the option of a procedure for fibular osteotomy and plating procedure to be performed.
74. Dr Elliott’s notes record the entry “? Ilizarov”, which he explained in his oral evidence as being a reference to the possible need for an Ilizarov procedure to be carried out on the plaintiff.
75. At this time, Dr Elliott completed a medical certificate for the plaintiff, certifying him as being disabled and unfit to work for the period 5 August 2004 until 26 November 2004. The reason given for that unfitness was stated by Dr Elliott to be non-union of a fractured right tibia requiring surgery to the right leg because of an unsatisfactory response to treatment resulting in a fracture which had not healed. Dr Elliott also certified that the likely time of the plaintiff’s anticipated return to work was unknown. However, he predicted that the disability would remain for an estimated further 6 to 12 months.
Planned procedure for internal fixation with bone grafting
76. The evidence discloses that on an unspecified date, Dr Elliott placed the plaintiff’s name on a surgical waiting list to have an internal fixation and bone grafting procedure carried out on the plaintiff sometime in August 2004. This information is gleaned from an “Amendment to Elective Waiting Time Booking” form, which contained information that was provided to the hospital by both Dr Elliott’s secretary and by the plaintiff. This can be discerned from examining Tables 4 and 5 that are incorporated into that form and which comprise a number of classification fields to be filled in according to the assessment of patient readiness status for surgery.
Cancellation of Dr Elliott’s plan for remedial surgery
77. Dr Elliott’s clinical notes contain an entry dated 11 August 2003, which was made by his secretary to indicate that the plaintiff was referred to Dr O’Carrigan for ongoing management, advice and treatment.
78. On 12 August 2004 a notation was made on the booking form to the effect that Dr Elliott’s secretary and, it appears the plaintiff, each requested of the hospital that the readiness status for the planned procedure to be changed to “not ready” classification, thereby changing the scheduled status review date from September 2004 to November 2004. The stated reason given for the requested change was:
“Dr. request to seek 2nd opinion. Has other appt”
79. This amendment form has a number of other relevant entries which provide some assistance in unpacking the chronology in order to determine the sequence of relevant events. It would appear that the plaintiff’s name remained on the “not ready” list at the hospital pending arrangements being made for Dr O’Carrigan to treat him.
80. The amendment form shows that at 15:00 hours on 11 November 2004 someone made contact with the hospital to change the status review date of the “not ready for care” status to 30 November 2004. Subsequently, at 13:00 hours on 4 December 2004 it appears that the plaintiff himself was noted to have notified the hospital of the cancellation of the procedure of internal fixation and grafting on account of the stated reason that he was having the procedure done at Liverpool Hospital. It was therefore on this date that the procedure for which the plaintiff’s name was on the waiting list was cancelled.
81. Dr Elliott’s clinical notes do not record any further clinical contact with the plaintiff although Dr O’Carrigan kept him informed of the plaintiff’s treatment and progress.
Tertiary referral to Dr O’Carrigan for ongoing management
82. Dr Elliott’s file contains a copy of a referral letter dated 11 August 2004 which was addressed to Dr O’Carrigan in the following terms:
“ Thank you for seeing this twenty-five year old man who injured his right leg in a trail bike accident on the 11th October 2003.
His injury was treated by percutaneous screw fixation of the distal tibia and application of an external fixator. This was removed in February 2004 and a walking cast applied.
The fibula has united with anterior angulation and the tibia remains un-united .
[Emphasis added]He was referred for consideration and management according to Ilizarov principl es ”
Subsequent treatment by Dr O’Carrigan
83. On 27 September 2004 Dr O’Carrigan examined the plaintiff and wrote a letter to Dr Elliott in which he recounted the history, recorded his findings on examination, stated his interpretation of the x-ray films he viewed and set out a discussion on the risks and benefits of the treatment options for the plaintiff. Relevant extracts from that letter are in the following terms:
“…
He is now mobilising partial weight bearing on crutches and has no neuro-vascular problems. He has no leg length discrepancy. He has some deformity around the ankle and some pain with weight bearing. You have asked me to see him because of persistent non-union .[Emphasis added]His general health is otherwise good and he does not have any allergies. He did smoke until six weeks ago. He is taking medications …”
84. It seems to be clear from Dr Elliott’s letter to Dr O’Carrigan and from the above quoted portion of Dr O’Carrigan’s letter, that Dr Elliott referred the plaintiff for treatment for non-union of the tibial fracture.
85. After weighing up the relevant considerations, Dr O’Carrigan recommended that the plaintiff have remedial surgery. He gave that advice in the following terms:
I will review Greg again and will keep you informed.”“Whilst all these factors are a consideration, when one weighs up the potential benefits as opposed to the risks, I think clearly Greg’s deformity should be corrected, as leaving it untreated it (sic) will cause ongoing pain and could lead to early post-traumatic osteoarthritis.
86. An element of confusion appears to have arisen from the discussion section of Dr O’Carrigan’s 27 September 2004 letter to Dr Elliott in that having initially described the problem as non-union, Dr O’Carrigan then went on to describe the problem as being one of delayed union. The context appears from the following extract:
“ Discussion:
Greg has a problem of delayed union of the right distal tibia. I think it is actually healing and I am sure it has been helped by him stopping smoking recently and weight bearing.
It has healed however or is healing in a malunited position, with anterior translation of the distal tibia on the proximal tibia and that has caused significant angulation of the distal fibula and I think it has changed the orientation of the distal tibiofibular syndesmosis as well as the articulating part of the lateral malleolus relative to the talus. This has contributed to some ankle stiffness and I think is contributing to ankle pain and could potentially contribute to post-traumatic osteoarthritis long term.
I therefore think that it is advisable to correct this deformity.
If my impression is correct and the fracture has actually united, then it would take the form of removal of the screws and application of a Taylor spatial frame to the distal tibia, with an osteotomy in the fibula and with no fixation of the fibula, and an osteotomy of the distal tibial metaphysis with the aim of posterior translation of the distal tibia of the order of 2.0 cm and correction of the mild recurvatum.
[Emphasis added]The most important deformity to correct is the translation.”
87. As at August / September 2004 Dr Elliott believed the plaintiff’s problem was one of non-union. When Dr O’Carrigan saw the plaintiff on 27 September 2004, he wrote to Dr Elliott to identify the purpose of the referral as being for “persistent non-union”, however, in the discussion section of his report, Dr O’Carrigan defined the problem as being one of “delayed union” with healing having occurred in a mal-united position. It seems that Dr O’Carrigan’s acknowledgement of “non-union” could have simply been a confirmation of the terms of Dr Elliott’s letter of referral.
88. Unfortunately Dr O’Carrigan was not called to clarify what he meant when he used these differing terms. Nor was there any evidence of clarification by correspondence from Dr O’Carrigan.
89. On 30 November 2004 Dr O’Carrigan saw the plaintiff again at which time he filled out a Treatment Information Form which he gave to the plaintiff in which he set out a number of considerations. A copy of that form was tendered as Exhibit “A Tab B”. The principal purpose of this form appears to have been to inform the plaintiff of the treatment costs and the financial terms for the treatment, namely $20,000 payable over 12 months as the plaintiff was going to fund the procedure himself with the assistance of his family.
90. The form, which was signed by Dr O’Carrigan, stated the diagnosis as being mal-union of the right distal tibia and fibula. It states the recommended treatment as being osteotomy of the tibia and fibula with external fixation for gradual correction. No alternative procedure was listed in the space provided. However under the heading of complications reference was made to “delayed non-union” and the abbreviation “BG” which I interpret to refer to the possible need for bone grafting.
91. No evidence was available from Dr O’Carrigan to clarify these terms.
92. The form went on to identify the natural history of the underlying condition if left untreated, to be one of pain and arthritis in the right ankle. The treatment goal was identified to be to achieve correction of the deformity and to thereby relieve pain.
93. On 30 November 2004 Dr O’Carrigan wrote to Dr Elliott in the following terms:
“Greg…has had time to think about my recommendations, and wishes to proceed as soon as possible. He has a delayed union in the right distal tibia and he is going to get some up to date x-rays today to see whether it is united or not.
He has a malunion in the fibula and malunion in the tibia and he needs a Taylor spatial frame applied with an osteotomy of the distal tibia and fibula and a gradual correction. There is a risk of him requiring a bone graft.
[Emphasis added]He is yet to decide whether he is going to have that surgery and the possibilities are Sydney Southwest Private, or Liverpool Hospital as a public patient”
94. On 30 November 2004 Dr O’Carrigan filled out a Treatment Information Form describing his diagnosis as “Malunion R distal tibia & fibula.” He described the possible complications of the planned procedure as including delayed union, non-union and maybe bone grafting.
95. On 20 February 2007, the plaintiff’s solicitors wrote to Dr O’Carrigan to request a report outlining matters of history, treatment, the nature of the injury and disability, the present condition, the prognosis, fitness for work, the need for further treatment and related matters. In his reply to the plaintiff’s solicitor, dated 20 May 2007, Dr O’Carrigan recounted the pre-remedial operation history and then set out his interpretation of x-ray films he had viewed as follows:
“X-rays showed two AO screws transversely just above the right ankle joint. The ankle joint looked well preserved. There was a healed fibular fracture and there was a transverse distal tibial fracture in the metaphyseal region that had a sclerotic appearance. The fracture line was still visible centrally, but there was some evidence of periosteal new bone formation laterally. There was a sagittal plane deformity with recurvatum of 24 and anterior angulation with a distal fibular malunion. There was also 2.0 cm of translation of the distal tibia anteriorly on the proximal shaft.
It was felt that he had delayed union of the right distal tibia and it was healing in an incorrect position with anterior translation and angulation of the distal tibia on the proximal tibia. This was associated with a fibular malunion and some ankle stiffness.
He was advised to correct the deformity and because of the degree of accuracy required it was recommended that he have a Taylor spatial frame applied, which was a circular external fixateur that allows correction using a computer programme that can correct multiple planes simultaneously.
[Emphasis added]He was reviewed on 30th November 2004. He was keen to proceed with Taylor spatial frame correction of his nonunion.”
96. It appears that Dr O’Carrigan may have used the terms “delayed union” and “non-union” interchangeably.
97. In other evidence, it was explained that periosteal bone formation was not the same as callus.
Remedial treatment provided by Dr O’Carrigan
98. Dr O’Carrigan performed a total of five remedial procedures on the plaintiff’s right lower leg. These took place on 24 January 2005, 20 July 2005, 12 August 2005, 20 July 2006 and 8 November 2007. A sixth procedure was planned but the plaintiff did not proceed with the recommendation.
First remedial procedure - 24 January 2005
99. On 24 January 2005 the plaintiff underwent surgery at Sydney Southwest Private Hospital. On that occasion Dr O’Carrigan performed the planned osteotomy procedure. In his letter to the plaintiff’s solicitor he described the procedure as follows:
[Emphasis added]“ … application of a two ring Taylor spatial frame and a Gigli saw osteotomy of the tibia and fibula at the previous fracture site, which appeared to have united .”
100. At the trial some attention was focussed on the meaning of these words.
101. On 28 January 2005 Dr O’Carrigan sent Dr Elliott a copy of the operation note which provided a more detailed account of the first procedure he had performed. The note stated:
“ Operative procedure
Under a general anaesthetic, antibiotic prophylaxis and intermittent tourniquet control, the right leg was prepped and draped in the usual manner.
Under image intensifier control, a preconstructed Taylor spatial frame with two rings was applied, with distal fixation and proximal fixation with halfpins. A Gigli saw was passed across the tibia and distal fibula at the site of the previous fracture, which appeared to have united. A Gigli saw osteotomy was performed.”
102. Following the first procedure and before the second procedure Dr O’Carrigan saw the plaintiff for post-operative review on 5 occasions, namely 18 March 2005, 13 April 2005, 17 May 2005, 14 June 2005 and 18 July 2005.
Second procedure - 20 July 2005 or 28 July 2005
103. On either 20 or 28 July 2005, his letter refers to both dates, Dr O’Carrigan admitted the plaintiff to the Camden Day Surgery Centre where he uneventfully removed the Taylor spatial frame. The fracture was clinically united at that time. Dr O’Carrigan’s operation note dated 28 July 2005 states that Dr O’Carrigan carried out a second remedial procedure on the plaintiff, which consisted of the removal of the Taylor spatial frame from the right tibia. His operation note stated:
“ Operative procedure
Under a general anaesthetic and antibiotic prophylaxis, the right Taylor frame was removed. Clinically it was united. The pinsites were dressed.
Post-operative Instructions
Mobilise non weight bearing. Followup (sic) in two weeks.”
104. On 9 August 2005 Dr O’Carrigan reviewed the plaintiff following removal of the Taylor frame and determined that it was obvious to him that the fracture had not united and that there was some movement at the fracture site. When he reviewed the x-rays he was still able to see a clearly visible fracture line.
Third remedial procedure - 12 August 2005
105. On 12 August 2005 Dr O’Carrigan carried out a third remedial procedure on the plaintiff consisting of open reduction and internal fixation with bone grafting of the right lower tibia for non-union. His operation note stated:
“ Operative procedure
Post-operative Instructions
Under a general anaesthetic, antibiotic prophylaxis and intermittent tourniquet control, the right leg was prepped and draped in the usual manner. The right iliac crest was prepped and draped.
The previous transverse incision was used and the non-union (sic) identified. There was some partial bridging callus formation but not strong enough to maintain fracture union and integrity.
All fibrous tissue was excised and bleeding bone surfaces confirmed after release of tourniquet.
The wound was closed in layers. A vacuum dressing was applied.A corticocancellous wedge of bone graft was harvested from the right iliac crest as well as a large amount of cancellous bone graft and this was placed into the nonunion (sic) site with the wedge placed anteriorly to act as a structural graft. A percutaneous Zimmer anterolateral eight hole plate was applied with percutaneous fixation distally and proximally to maintain the correction.
Elevate leg. Circulation observations. IV antibiotics.”
106. The above procedure involved the insertion of a percutaneous Zimmer antero-lateral eight hole plate which was applied with percutaneous fixation distally and proximally to maintain the correction.
107. Following the third procedure and before the fourth procedure Dr O’Carrigan saw the plaintiff for post-operative review on 5 occasions, namely 2 September 2005, 1 November 2005, 13 December 2005, 7 March 2006 and 12 May 2006.
108. On 12 May 2006 Dr O’Carrigan noted that it was clear that there was an external rotation deformity in the tibia itself. Further corrective surgery was then planned for 20 July 2006.
Fourth remedial procedure - 20 July 2006
109. On 20 July 2006 Dr O’Carrigan carried out a fourth remedial procedure on the plaintiff which consisted of the application of an external fixator to the right lower leg for assisted internal derotation osteotomy of the right tibia with osteotomy of the right fibula. His operation note stated:
“ Operative procedure
Post-operative Instructions
Under a general anaesthetic, antibiotic prophylaxis and intermittent tourniquet control, the right leg was prepped and draped in the usual manner. Two Ilizarov arches were applied proximal and distal allowing for the degree of internal rotation required.
A power saw proximal tibial osteotomy was then performed with repair of the periosteum and the correction held with the external fixateur and checked clinically prior to application of the seven hole proximal, lateral, tibial locking plate, which was inserted percutaneously and fixed with five proximal screws and four distal screws. The wound was closed in layers.The left leg was prepped and draped in the operative field for comparison and a power saw mid-fibular osteotomy was performed. The wound was closed in layers.
Elevate leg. Circulation observations. IV antibiotics. X-ray.”
110. Following the fourth procedure, Dr O’Carrigan saw the plaintiff for post-operative review on 4 further occasions, namely 2 August 2006, 25 October 2006, 9 January 2007 and 17 May 2007. Dr O’Carrigan offered the plaintiff a further procedure to remove both the proximal and the distal implanted fixation plates.
Fifth remedial procedure - 8 November 2007
111. On 8 November 2007 Dr O’Carrigan carried out a fifth remedial procedure to remove the implanted proximal and distal fixation plates from the plaintiff’s right tibia.
Result of remedial treatment
112. Dr O’Carrigan continued to see the plaintiff for post-operative review between March 2005 and May 2007. During this period Dr O’Carrigan sent some 20 letters to Dr Elliott to keep him informed of the progress being made by his former patient : Exhibit “G”.
113. Following the removal of the fixation plates on 8 November 2007 the plaintiff was scheduled to attend a post-operative review with Dr O’Carrigan but he did not attend for that review.
C. EVIDENCE REVIEW – LIABILITY AND CAUSATION
Tabulation of consultations
114. The tabulation that follows conveniently sets out the sequence of the historically relevant occasions on which doctor-patient contact in the relevant period occurred, both at the hospital fracture clinic, and with Dr Elliott.
115. These were the occasions on which the incremental reviews took place concerning the progress of healing of the plaintiff’s fractures. On these occasions the planning of further management of the plaintiff’s care was also considered. This tabulation therefore serves to provide a convenient reference framework for the consideration of the allegations of negligence relied upon by the plaintiff in order to seek to make out his case against the defendants.
116. The source of the tabulated information is the Wollongong Hospital fracture clinic notes comprising Exhibit “F Tab B” and the patient notes kept by Dr Elliott, which comprised Exhibit “G”.
Review date Evidence source 1. 14.10.03 Wollongong Hospital Dr Elliott “Satisfactory post-op. Follow-up at fracture clinic” Plan for review Ex G p.9 2. 24.10.03 Fracture Clinic Wollongong Hospital Dr Salman “… Xrays R ankle : position satis.” See again 2/52 with repeat x-rays Ex F.B.23 3. 07.11.03 Hospital Dr Palapitige “3/52 post op. int-fixation of pilon fracture of left tibia … Recent X ray – looks O.K
Seen by Dr Elliott.”“Mx
1. Gentle ankle physio.
2. NWB.
3. R/V in 3/52 with a new x ray.”Ex F.B.24 4. 28.11.03 Hospital fracture clinic Dr Salmon “… X rays R ankle : Satis – early callus.” “… see again 3/52 with new x rays … (consider looking for removal of fixator on next visit) * non – weight bearing” Ex F.B.25 5. 19.12.03 Hospital fracture clinic Not identified “… New x ray – Still N of healing (???)” “R/V in 3/52 with new X ray. Keep NWB. Ankle physiotherapy.” Ex F.B.26 6. 09.01.04 Hospital fracture clinic Dr Palapitige “…O/E equinus deformity + today’s X ray a- minimal callus. Gap in the # site” “ Fixator dynamised.
Wt bearing allowed as tolerated
Intensive ankle physio
R/V in 3/52 (with) a new xray”Ex F.B.27 7. 06.02.04 Hospital fracture clinic Dr Palapitige “…Still no callus. gap after dynamisation. Two pins got infected. Equinus deformity of foot improved a bit. Discussed (with) Dr Elliott.” “ Remove int - fix
POP
Book for surgery on 9.02.04.”Ex F.B.28 8. 09.02.04 Hospital Dr Elliott
Dr PalapitigeOperation note :
“… Pin tract infection … Removal of external fixator right tibia …. Radiographs have demonstrated delayed union of the distal tibial fracture.”Not stated Ex G p.10 9. 24.03.04 Hospital fracture clinic Orthopaedic Registrar not named “~ 20° anterior angulation; appears unchanged from previous Xray.
Good callus fibula; some callus tibia. → replace POP + check wounds.”Review with x-ray in 1 month Ex F.B.21 10. 23.04.04 Hospital fracture clinic Orthopaedic Registrar not named “R/V OOP – non tender, reasonable ROM ankle X ray – not fully healed.” “OOP
ROM
Partial WB”
Review in 2 weeksEx F.B.22 11. 07.05.04 Hospital fracture clinic Dr Elliott “Progress X ray – slow progress of bone union.” “1. Stop smoking!
2. Partial weight bear R leg.
See 1/12
X ray ”Ex F.B.22 12. 07.05.04 Hospital fracture clinic Dr Elliott Consultation Not stated Ex G p.10 13. 11.06.04 Hospital fracture clinic Not identified “…X ray today – lat suggests minor collapse posteriorly with better bone compaction (aligned AP – good position maintained” “Progress to FWB; initially x 1 crutch then as tolerated. R/V 1/12 with Xray” Ex F.B.29 14. 11.06.04 Hospital fracture clinic Dr Elliott Consultation Not stated Ex G p.10 15. 09.07.04 Hospital fracture clinic Dr Palapitige “…X ray today # healing progressionslightpasteanterior angulations +.”“For Dr Elliott’s opinion on next visit.” Ex F.B.29 16. 05.08.04 Dr Elliott’s private consulting rooms Dr Elliott Consultation.
Cast removed812 weeks ago. X ray shows that there is tibial non-union with slight anterior angulation. O/E good circulation. Minor deformity. PDx : Non-union # right tibia.Requires bone grafting R tibia with internal fixation. Option of fibular osteotomy & plating discussed as well. Ex G p.11 17. 11.08.04 Dr Elliott’s private consulting rooms Dr Elliott Referral to Dr O’Carrigan. Referral for management Ex G p.11
117. It is apparent from my review of the evidence that the references in the medical records to a review of relevant x-rays has been only briefly summarised in the notes. This is also evident in the quoted portions set out in the above tabulation which draws upon those notes.
118. In approaching the task of making findings on the issues calling for decision I have had regard not only to the summarised notations in the notes, but also to the more extensive professional opinions expressed by the orthopaedic experts who reviewed the relevant x-ray films. It is of importance to note that such experts relied not only upon radiologically reported descriptions of such films, but on their own expert interpretations of the films, drawing upon their clinical knowledge and understanding of the condition under review and treatment.
119. The expert liability and causation evidence comprised the reports and oral evidence of 5 specialist orthopaedic surgeons, including the second defendant, Dr Elliott. In the paragraphs that follow, I set out a summary of the written and oral opinion evidence of those witnesses. No evidence was called from the registrars who saw, treated and reviewed the plaintiff at the hospital.
Evidence of Dr Robert Elliott – treating orthopaedic surgeon / second defendant
120. At the time the plaintiff was treated for his injury, Dr Elliott was a VMO at the hospital.
121. Dr Elliott did not provide any written reports for the purpose of the proceedings. Without objection, in addition to giving factual evidence concerning his management of the plaintiff’s fractures, his oral evidence also included opinion evidence.
122. Given the nature of the case, in which Dr Elliott’s professional clinical judgments were under attack, I consider it only appropriate that I set out a detailed summary of the evidence given by Dr Elliott. This is so especially since his management was the subject of criticism by the plaintiff and by the two experts called in support of the plaintiff’s case.
123. Dr Elliott’s evidence was introduced in the following terms:
“ Q. During October of 2003, were you called to deal with a fracture suffered by a Mr Peterson?
A. Yes.Q. Sitting here today, do you have a recollection of that fracture?
A. Yes I do.Q. What sort of fracture was it?
A. It was a grossly comminuted fracture of the distal tibia and also involved the fibular. The radiographs and CT scans done pre-operatively demonstrated multiple fragments. The fracture extended into the joint, there was displacement of the fragments. There was also - there were also gaps within the joint, indicating severe disruption of the ankle joint itself with small fragments probably pushed into the tibia. There were abrasions over the front of the leg, there was also air in the joint and both of those factors indicate that it was technically a compound fracture.Q. On the scale of fractures of a lower limb that you see, how would you rate this particular one?
A. Eight, eight and a half out of ten, where nine and ten would lead to amputation.Q. Do you have a recollection of how many individual fragments there were?
A. Probably 25 to 40.Q. I think Dr Summersell undertook a closed reduction supervised by you, is that correct?
A. We both - yes it is.Q. What was the reasoning behind a closed reduction as opposed to an open reduction and or fixation?Q. What if anything was applied or inserted during the course of that closed reduction?
A. Yes we - we inserted wires attached to an external fixator and we inserted two small fragment screws into the distal tibia to hold the reduction.
A. This is classified as a high energy injury and there is significant damage, not only to the bone and to the ankle joint and the articular cartilage of the ankle joint, but there is significant damage to the blood flow to the limb and surgical intervention would add insult to injury and further compromise blood flow and possibly compromise the final outcome. ”
124. Dr Elliott explained that at the time he treated the plaintiff he had a practice of following the progress of patients at the fracture clinic in cases of complex injuries, such as in the case of the plaintiff. This involved not just leaving the treatment to the sole discretion of the registrars, but to sit with the registrars, discuss and review progress, look at the x-ray films, and discuss pathways of management.
125. Dr Elliott stated that in early 2004, in connection with tibial fractures, it was his usual practice to remove external fixators as soon as possible within the time range of 2 to 4 months. He said this was because the continued presence of the fixation device could delay progress of healing to bone union by keeping the fracture site rigid and preventing minor movements, thus inhibiting the formation of callus around the fracture site.
126. He said that in January 2004 he advised the removal of the fixator device because of the presence of an infection. He stated that the radiographs taken a few weeks following the removal of the external fixator showed an anterior angulation of the fracture at approximately 20 degrees in the sagittal plane, which he described as being the plane of joint movement. He stated that there were a number of management options at this point.
127. In this regard, he stated that one option was to accept a certain degree of angulation because it was in the sagittal plane, as it was best left at that time to try and achieve bone union. He stated that another option was to perform a closed reduction under general anaesthetic and correct the anterior angulation, but he said he did not think this was a viable option because in his experience, the angulation would have recurred, so an internal fixation would have been required at the same time.
128. He gave his reasons for rejecting the latter option in the following terms:
“ Q. As at February, March 2004 did you consider the possibility of performing an open reduction and fixation with or without graft?
A. It was considered but rejected because this is a high energy injury, severe soft tissue damage. It was felt that opening a fracture site and disturbing the soft tissue envelope around the bone would further compromise bone healing and in addition, it’s a very distal fracture and it is very, very difficult to get adequate distal fixation of the fracture with the implants available at that time.Q. What was the advantage if any that you considered as at March 2004 as to delaying the osteotomy? What is it that you achieved by delaying it?Q. Would you have contemplated an osteotomy as at March 2004?
A. No I felt it would have delayed his progress, led to further immobilisation. My aim was to obtain bone healing and move the joint and improve the soft tissue function of the leg and to do an osteotomy at a later date, once fracture healing had occurred.
A. Earlier union. ”
129. Dr Elliott explained the purpose of a later performed osteotomy as being to correct angulation. He explained that he would have regarded more than 20 degrees of external rotation as being significant. He stated that a patient might be able to cope with a certain amount of rotation. He stated that he was attempting to achieve bone union, and would then analyse the extent of any deformity to see whether or not it required repair.
130. Dr Elliott explained that weight bearing was important for promoting bone union because bone was a dynamic tissue which responded to stress placed around it and the formation of callus was dependent on some degree of movement, hence the need for weight bearing following the removal of the fixation frame.
131. Dr Elliott explained the disadvantage of a failed attempt at internal fixation and bone grafting in the February, March and April 2004 period as being a cause of further delay in union, interference with blood flow, delay in wound healing, possible skin loss requiring rotation flaps at a later stage, and an increased risk of infection, both of the soft tissues and of bone. He said these were risks which he was not prepared to take.
132. Dr Elliott said he was aware of the April 2004 radiology, and stated it was his belief that it showed that bone union was progressing. He based this belief on a comparison between the April 2004 radiological appearances and the appearances on the previous radiographs. He stated that he believed bone union had progressed following the removal of the external fixator.
133. Dr Elliott stated that the range of time for a tibial fracture to heal was progress to union after 2 months, but it was possible for progress to union to take 4 to 6 months, depending on the severity of the injury. Apart from the severity of injury factor, Dr Elliott stated that other factors that influenced healing included the amount of energy that caused the fracture, the amount of soft tissue damage, whether the fracture was simple or compound, and other factors, such as cigarette smoking. In this latter regard he gave the following evidence :
“ Q. Just on that score, was any advice ever given by you to the plaintiff in relation to cigarette smoking?
A. Yes.Q. What was it?
A. To cease smoking and I gave the reasons.Q. Do you recall when that was?
A. Yes it was in one of the fracture clinic sessions. I clearly remember it because the registrar had told me that he was still smoking and I remember my feeling at the time, it was one of disbelief and I spoke to him about it and explained what cigarette smoking does and as I usually do with patients, I say if we make the effort then I would expect him to make an effort as well and to give up the smoking, because it has serious consequences for fracture healing.Q. Well that’s the question I wanted to ask you, what are the consequences of smoking on progression to union?
A. It delays healing.Q. On what you were told of this accident, would you have described the fracture as a high energy one?
A. Yes.Q. Would you have described it as simple or complex?
A. Complex.Q. Did you apprehend when you started treating Mr Peterson that this may take longer to heal?
A. Yes.Q. The progression of the fracture, would you have described that as delayed?Q. What factors influence whether or not you are prepared to continue to watch and wait to see whether or not healing is taking place?
A. I like to see a change in the X-ray from month to month, indicating progression of bone healing. I am also very hesitant to inflict surgical trauma on an injured limb that has sustained a high energy injury, because of interference with blood flow from the surgery and the initial injury. I am very hesitant to operate on anyone who smokes because of the world literature which points out the adverse affects.
A. Yes. ”
134. Dr Elliott stated that at some stage, which was not initially identified, but which I infer was in early August 2004, he formed the view the plaintiff’s condition may be going backwards. This view was as a result of a call he received from a registrar at the clinic. Dr Elliott asked for the plaintiff to be sent to his rooms.
135. On 5 August 2004 Dr Elliott examined the plaintiff at his rooms and accessed and reviewed the x-rays via a website. He concluded that maybe he could possibly have been wrong and union was not progressing, and as a result of weight bearing and activity, the plaintiff was experiencing pain coming from a non-union rather than a delayed union. He based that view on the radiological appearance of a small anterior break in the callus formation. Dr Elliott’s patient history notes for 5 August 2004 contain his handwritten note that states “x-ray shows that there is tibial non-union with slight anterior angulation”.
136. Dr Elliott stated that at the consultation in his rooms on 5 August 2004, he made a provisional diagnosis of non-union of the fracture when looking at the lateral view of the x-ray that he had examined at that time. The terms delayed union and non-union were defined by Dr Elliott as follows :
“ Q. What is the difference between non-union and delayed union?
A. Delayed union is - the definition is that union will eventually occur. Non-union - the definition that union will not occur without intervention .”
137. Dr Elliott stated that he had gone over the plaintiff’s x-rays and looked at them carefully. He stated that at no time was there strong evidence of non-union. He explained this was because sclerosis at the fracture margins indicated callus because the fracture line itself had become blurred with time, indicating that the callus was crossing the gap at the fracture site. He explained that in cases of non-union, the ends of the bone become more sclerotic and the fracture line becomes clearer when viewed on x-ray.
138. Dr Elliott stated that in his view, the plaintiff’s x-rays did not show any clearing at the fracture site, and over time actually showed that the line became less and less discernible, indicating to him that union was progressing, and that therefore he was dealing with delayed union rather than non-union.
139. On 5 August 2004, Dr Elliott made an entry in this clinical notes showing a provisional diagnosis of non-union. In his oral evidence he explained this to mean that at the time he thought the plaintiff may have a non-union rather than a delayed union of the right tibia.
140. Dr Elliott stated that at that time the treatment option appeared to be a bone graft, either with or without internal fixation. This would at the same time correct the fibular deformity comprising 20 degrees of anterior angulation, which he was able to discern both clinically and radiologically. He stated that he felt something needed to be done, and he intended to himself perform an osteotomy procedure on the plaintiff, and at the consultation he made arrangements for the plaintiff’s admission to Wollongong Hospital to undergo that procedure.
141. He identified the intended procedure as being an Ilizarov procedure, in which a frame is placed around the limb with screws, allowing correctional forces to be applied three-dimensionally in all planes to correct complex deformities by holding them in the desired position pending healing occurring.
142. Dr Elliott explained that shortly after these booking arrangements had been made for the intended procedure, he reconsidered carrying out the procedure himself, and in the plaintiff’s best interests, he referred the plaintiff to Dr O’Carrigan, a tertiary specialist in the use of that technique. He indicated that he felt Dr O’Carrigan was in a better position to attempt to deal with the plaintiff’s difficulties than he was at that time.
143. Dr Elliott stated that following that referral, Dr O’Carrigan has kept him informed through correspondence with regard to the plaintiff’s progress. He has not seen the plaintiff since making the referral to Dr O’Carrigan.
144. Dr Elliott was cross-examined at length.
145. Dr Elliott was taken to the x-ray reports within the first defendant’s hospital clinical notes that comprised Exhibit “F”. It was clear that he disagreed with some of the reporting on the x-ray films by radiologists as set out in the notes. He rejected the notion of a connection between osteopenia or disuse osteoporosis and non-union or delayed union, stating that bone healing took place despite such a condition being present. He disagreed with the radiological diagnosis of tibial non-union.
146. In this regard, he stated that he looked at the radiological films and formed his own opinions on the radiology signs rather than relying on what was said by the radiologist. He stated that if a radiologist had reported that callus formation was present, he would have to look at the x-ray himself to view it, as reports would not necessarily assist him in forming a clinical opinion on a review of the patient.
Disabilities
519. The approach taken on behalf of the plaintiff with regard to his ongoing disabilities is to claim that these were due to the alleged negligence of the defendants. This is evident from the way in which the disabilities are framed in the statement of particulars filed on behalf of the plaintiff.
520. The plaintiff asserts that he has had 3 additional operative procedures carried out on him in order to achieve union of his right tibia. He claimed that these procedures were unnecessary. The plaintiff also claims that he has been left with mal-rotation of his right lower leg which would have been avoided if he had been treated in the manner contended. He claims that as a result of these matters, he has been put through the trauma of unnecessary surgery, he has been left with significant physical restrictions, including difficulty with all forms of physical activity, an inability to run or play active sport, pain and discomfort when walking up and down stairs and difficulty negotiating uneven ground. He claims his right lower limb carries the scars of unnecessary surgery. He also claims the need for domestic assistance and assistance with handyman and gardening activities. He also claims he has suffered severe depression.
521. The reports of Dr Harvey and Dr Davis deal only with the results of the primary injury and do not differentiate between the effects of the primary injury and the additional effects of the alleged negligence. There is no medical evidence concerning treatment of the plaintiff for depression.
522. It is incumbent on the plaintiff to establish that his claimed disabilities are as a result of alleged inadequate treatment at the hands of the defendants rather than such problems being due to the ordinary, natural and probable consequences of the primary injuries.
523. I have not accepted the opinion of Professor Higgs that the plaintiff would have probably had a much better predicted outcome if there had been an earlier surgical intervention in the period 25 February 2004 to 11 August 2004. I have stated my reasons for that finding in setting out my causation findings.
524. For the reasons I have outlined with regard to the causation component of the claim, I consider that the plaintiff has failed to establish these matters by evidence. Accordingly, these matters remain as unproven allegations. It is insufficient for the plaintiff to merely complain of these disabilities as that approach does nothing to serve to discharge the onus of proof that he carries with regard to showing these matters are the avoidable consequences of the treatment of which he complains.
525. In my view, the plaintiff has failed to establish by evidence, any disabilities that either have in the past, or continue at present, to afflict him in a way that would not have occurred in any event, if he had been afforded the treatment he contended he ought to have been given. In this case the plaintiff carries the evidentiary burden of establishing the relevant difference in the level of his claimed disabilities so as to differentiate the effects of the primary injury from the subsequent events for which he claims damages for negligence : Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. In my view the plaintiff has not discharged that evidentiary burden. This is a matter of some significance to the plaintiff’s claim for damages for non-economic loss and other heads of damage.
Employment
526. I accept the evidence of the plaintiff and his employer Mr Stennard, to the effect that the plaintiff no longer has the capacity to carry out the full duties of a tradesman plumber or any other work that requires the exertion of unrestricted physical mobility, strength, agility and dexterity. I accept the evidence of Mr Stennard that the plaintiff is being reasonably remunerated in the labour market at $600 per week net on account of his restricted earning capacity. I also accept the evidence of Mr Stennard that the reasonable measure of the plaintiff’s lost earning capacity is to be identified as being at $600 per week net. I regard that sum as being conservative as it does not include any provision for overtime.
Domestic effects
527. I accept the evidence of Mrs Peterson that following his injury, the plaintiff was unable to fully care for himself for a time, and this required that she provide him with domestic assistance in the manner and to the extent she described in her evidence. This was initially in the form of 24 hour on call care for the first few weeks, followed by an average of about 25 hours per week from the end of October 2003 until the end of January 2007, a period of about 169 weeks. I will analyse the significance of this in my reasons concerning the plaintiff’s claim for domestic assistance.
Plaintiff’s probable life span
528. Having regard to the current prospective life tables, at age 30 years, this being the plaintiff’s age at trial, in the absence of any medical or other evidence suggesting a decreased life span, I assess the plaintiff’s life expectancy, which is by definition a statistical estimate or average, to be in a rounded down estimate of a remaining 55 years.
G. ASSESSMENT OF DAMAGES
529. Although I have found that the plaintiff has not succeeded in establishing an entitlement to damages on account of a failure to establish causation, in accordance with convention, to allow for the possibility that on an appeal it may be determined that my findings on causation were made in error, I now turn to an assessment of the heads of damage claimed by the plaintiff.
Non-economic loss
530. On behalf of the plaintiff, Mr Hirsch submitted that the “injuries and disabilities” sustained by the plaintiff merit an assessment of damages for non-economic loss in the range of 40 per cent to 45 per cent of the most extreme case [“MEC”] pursuant to section 16 of the CL Act. The current indexation of s 16 damages, equates this to a range of between $189,500 to $213,000.
531. On behalf of the defendant, Mr Fordham submitted that on an assessment of this head of damage, the appropriate percentage of a MEC would be 25 per cent. After allowing for the statutory deduction, this currently quotes an amount of $31,000.
532. In view of the disparity between the submissions, the underpinning assumptions requires evaluation.
533. Damages pursuant to s 16 of the CL Act are intended to compensate the plaintiff for pain and suffering, loss of enjoyment and the amenity of life, and to place the plaintiff in the position he would most likely have been in, but for the negligence of which he has complained. In this context, it is necessary to identify the position the plaintiff would most likely have been but for the claimed negligence.
534. The unchallenged evidence of Dr Elliott, which I have accepted, was that the plaintiff’s original ankle fracture was very severe, on the scale of 8.5 out of 10, where a score of 9 would have led to an amputation. The fracture and the related soft tissue injuries were certainly very complex. The recollection of Dr Elliott was that there were as many as between 25-40 individual fragments of bone.
535. Further, in the convalescence period, in January 2004, which was well before considerations were required for further intervention, an issue arose with regard to an infection at the pin sites. That infection consisted of a penicillin resistant staphylococcus aureus infection, otherwise known as MRSA or golden staph, which was associated with infection, pain and increased discharge at the surgical wounds. There was no criticism of Dr Elliott’s decision to advise removal of the fixator devices at that stage because the continued presence of a rigid external fixation potentially inhibited the formation of callous and therefore, bone union.
536. Further, as at March 2004, there was no criticism of Dr Elliott’s opinion not to consider performing an osteotomy procedure to correct angulation at that stage because it would have delayed progress and would have led to further immobilisation. At that stage, it was therefore clearly apparent that in the coming weeks or months, a further surgical procedure of the kind carried out by Dr O’Carrigan would have been necessary to correct the angulation problem that emerged following the removal of the external fixation device.
537. In my view the evidence does not permit a reasoned analysis of whether the first operation conducted by Dr O’Carrigan, if carried out earlier, say between March and May 2004, or even before August 2004, or before January 2005 for that matter, would have obviated the need for the plaintiff to have the subsequent procedures that were identified as having been carried out by Dr O’Carrigan on 24 January 2005, 20 July 2005, 12 August 2005 and 20 July 2006.
538. It is in this context, that a differential analysis of the plaintiff’s complaints of disability is required to be undertaken in order to achieve an understanding and definition of what most probably would have been the case concerning his likely level of disability, if the initial treatment carried out by Dr O’Carrigan had been carried out within the time frame that was contended on behalf of the plaintiff.
539. In my view, the state of the evidence in this case does not reasonably permit that analysis, other than by impermissible speculation : Luxton v Vines [1952] HCA 19.
540. I have already summarised the physical, cosmetic, functional, psychological and emotional consequences for the plaintiff of his injuries and resultant disabilities. That summary appears between paragraphs [519]-[525] of my reasons. In my view the evidence does not reasonably permit a differentiation within those disabilities to segregate for assessment purposes which of them relate to the original injury and which of them should be regarded as having arisen in whole or in material part to alleged negligence. Accordingly, in my view, there is no rational basis upon which to base a finding that involves such differentiation. This is a matter upon which the plaintiff carries the onus of proof. I find such proof to be absent from the fabric of the evidence in this case.
541. Other than through what I consider to be insupportable speculation, the medical evidence in the proceedings offers no guidance on this issue.
542. In my assessment the plaintiff has failed to provide any evidence that would, by reasoning, demonstrate a relevant difference in his situation if the contended treatment had been afforded to him, so as to base an assessment of damages for non-economic loss based on the considerations required by s 16 of the CL Act. I come to this view because of my acceptance of the evidence of Professor Nade that the procedures performed on the plaintiff for mal-rotation would have been required in any event, noting that they were not performed for any non-union or delayed union.
543. However, in coming to that view, I have to consider the possibility that I may be in error in my findings in this regard such that an alternative assessment is necessary. In order to allow for that possibility, for the purposes of an alternative assessment, in the absence of evidence to differentiate the plaintiff’s present disabilities from those due to his original injury, I accept the appropriateness of the MEC concession made on behalf of the defendants, namely 16 per cent of a MEC, which equates to a monetary assessment of $31,000.
544. Accordingly, if the plaintiff had been entitled to damages for non-economic loss, I would have assessed such damages in the conceded amount of $31,000.
Past loss of earnings
545. The plaintiff makes a claim for past loss of earning capacity in the net sum of $145,400.
546. The basis upon which the plaintiff’s claim proceeds is that at the time of his accident he was earning $600 per week net as a plumber. It is claimed that absent the negligence of the defendants, the plaintiff would have ordinarily returned to work after about 7 months following the accident, namely around the end of October 2004. The plaintiff claims this is a conservative estimate that allows for even further time than that which was anticipated in the evidence of Dr Bornstein for recovery.
547. The quantification of the plaintiff’s claim for past economic loss proceeded upon an imprecise basis, mainly that in each of the financial years following his accident, up until the date of the commencement of the trial, his weekly earnings would have increased by about $100 per week net having regard to award wages, increased skill and experience.
548. On this approach the plaintiff claims that his probable net earnings, but for the alleged negligence of the defendants, would have been of the order of $188,000. The submission concedes that the plaintiff earned mitigatory earnings in the 2008 and 2009 financial years totalling $42,600, thus identifying a claimed net loss of $145,400.
549. Whilst the evidence for the approach contended on behalf of the plaintiff is imprecise, I consider the approach to be nevertheless reasonable.
550. On behalf of the defendant Mr Fordham submitted that at best, the plaintiff’s claim for past loss of earnings should be limited to 6 months at $600 per week net or $15,600.
551. The basis for that submission was that the plaintiff’s underlying injury, for which he was not entitled to compensation, had the potential to keep the plaintiff out of the workforce for a considerable period of time, during which he would be undergoing continuing post-operative recuperation, including recuperation from multiple surgical procedures. These procedures at the very least comprising the original operation and the subsequent fixator removal, in respect of which there was no complaint, and a further procedure for tibial osteotomy, which may or may not have been successful and may or may not have required subsequent revisionary surgery, as had been performed by Dr O’Carrigan.
552. In view of the inherent imprecision in the exercise of assessing past loss of earning capacity, I consider that a more conservative approach than that advocated on behalf of the plaintiff is required in order to accommodate the point made by the defendant, but not in terms that are as constrained as that which has been argued on behalf of the defendant.
553. In taking this approach, and in adjusting the figures argued on behalf of the plaintiff to accommodate this approach, I considered that it was more likely than not that the plaintiff would have returned to his trade as a journeyman plumber, but with the present restrictions on the physical tasks he could carry out in that employment. I consider that he would have returned to such work by about the beginning of January 2005, at which time he probably would have been earning income of the order of $600 per week net. On that approach, the plaintiff’s submitted calculation for past lost earnings of $145,400 are adjusted downwards to $129,800.
554. If the plaintiff had been entitled to an award of damages for past loss of earnings, I would have assessed such damages in the amount of $129,800.
Future loss of earning capacity
555. On behalf of the plaintiff it was submitted that the claim for future loss of earning capacity should be assessed in two parts, the first part being until the age of 55 years and the second being from age 55 years to the age of 65 years.
556. In developing that submission, it is claimed that as a result of the negligence of the defendants, the plaintiff will never be able to work as an able-bodied plumber, whereas if he were able to do such work, he would be earning around $1200 per week net as indicated by Mr Stennard, instead of the $600 per week net which he presently earns. The plaintiff contended that in his injured state, he will not be able to work after the age of 55 years, and as a result, during the last 10 years of his working life, it is unlikely that he will earn any income. That submission was based on the evidence of Dr Davis, whose opinion I accept.
557. The plaintiff’s submission was for damages for future loss of earning capacity to be assessed at $350,162 however that calculation contained a mathematical error. When corrected the amount identified was $423,245. The plaintiff’s submitted calculation omitted any allowance for the required discount in respect of possible future adverse vicissitudes. If a conventional approach was taken to vicissitudes, namely a discount of 15 per cent, this would result in an assessment in the sum of $359,758.
558. I consider that if the plaintiff had been able to demonstrate that the scenario for a reduced earning capacity, as was identified by Dr Davis, was due to the negligence of the defendants, then the claim would have to proceed in a two-stepped calculation as follows.
559. The first component of the claim is for a future loss of $600 per week, being the difference between the potential earnings identified by Mr Stennard at $1200 per week net and the plaintiff’s actual net earnings of $600 per week. If it had been shown that this level of reduced earnings was due to the negligence of the defendants then the projection of $600 per week at 5 per cent over 25 years (x 753.6) yields the amount of $452,160 before discount for adverse vicissitudes.
560. The second component of the claim, being the remaining 10 years to age 65 years, should also be projected at $1200 per week over those 10 years but deferred for 25 years. The projection of $1200 per week over 10 years at 5 per cent (x 412.9) and discounted by 25 years at 5 per cent (x 0.295) yields an undiscounted amount of $146,166.
561. The combined undiscounted total of these calculations amounts to $598,326. A conventional discount of 15 per cent on these calculations reveals a calculation of $508,577.
562. In contrast, on behalf of the defendants, it was submitted that the plaintiff has not demonstrated any entitlement to future loss of earning capacity. The basis of that submission was that it has not been shown that, from the perspective of demonstrating a difference in his future earning capacity, the plaintiff is in a different position now to the position he would most likely have been in but for the negligence of the defendants. In turn, that submission is based upon the evidence of the severity of the original injury, for which there could be no claim, and the inherent uncertainty over whether if treated in accordance with the argued standard, the ultimate outcome for the plaintiff would have been materially different.
563. There are imponderables and difficulties associated with both of these approaches on the evidence in this case. This requires an application of s 13 of the CL Act concerning the plaintiff’s most likely circumstances but for the injury, which in these circumstances, must mean but for the negligence.
564. In my view, recognizing the effects of the original injury, which was severe, I have to consider the possibility that, absent the negligence of the defendants, the plaintiff would have continued to work as he normally would have in his trade after the age of 55 years, consistent with the opinion of Dr Davis, but thereafter, the plaintiff may develop osteoarthritis in his injured ankle such that he would not be able to work beyond that time unless he had an understanding employer willing to give him light duty work.
565. Given the imponderable nature of this exercise, I consider the appropriate method for assessment of the plaintiff’s future loss of earning capacity to be an acceptance of the previously identified components of the figure of $508,577 but to treat the discount for vicissitudes in two stages to reflect the increasing risk of unemployability due to the natural effects of the plaintiff’s original injury as the plaintiff ages.
566. On that approach, I consider that in respect of the first period up to age 55 years, for which the loss of capacity is assessed at $452,160, the appropriate discount for possible adverse vicissitudes is 20 per cent : s 13(2) of the CL Act. This yields a figure of $361,728.
567. In respect of the second period, between ages 55 years and 65 years, for which the loss of capacity to earn is assessed at $146,166, I consider the appropriate discount for possible adverse vicissitudes to be 40 per cent : s 13(2) of the CL Act. This yields a figure of $87,699.
568. On this approach I consider that a reasonable assessment of the plaintiff’s claim for future loss of earning capacity to be a combination of these two discounted amounts, namely, $449,427.
569. If the plaintiff had been entitled to an award of damages for future loss of earning capacity, I would have assessed such damages in the amount of $449,427.
Past loss of superannuation
570. The convention is for the loss of past employer funded superannuation to be assessed at 11 per cent of the amount assessed to represent past loss of earning capacity. Accordingly, applying that approach, 11 per cent of $129,800 is $14,278. If the plaintiff had been entitled to an award of damages for past superannuation losses, I would have assessed the value of the plaintiff’s past superannuation losses to be in the sum of $14,278.
Future loss of superannuation
571. Consistent with the approach taken with respect to the assessment of past loss of employer funded superannuation, applying the same convention to the calculation of future superannuation losses, 11 per cent of $449,427 yields an amount of $49,436. This sum has already been discounted for vicissitudes. If the plaintiff had been entitled to an award of damages for future superannuation losses, I would have assessed the value of the plaintiff’s future superannuation losses to be in the sum of $49,436.
Past domestic assistance
572. The plaintiff makes a claim for the value of past gratuitous services provided to him by his mother in the form of domestic assistance, transportation and emotional support.
573. The claim is that the plaintiff received from his mother the benefit of 24 hour per day on call care for about one week after each surgical procedure, followed by regular care of a less intensive level of about 15 hours per week. On this basis the plaintiff argued that an appropriate allowance for past domestic assistance would be 25 hours per week from October 2004 to January 2007 at the rate of $20 per hour. This was the equivalent of 2.25 years or 117 weeks, which at $20 per hour was quantified at $58,500.
574. In respect of the second period mainly for eight weeks between November 2007 and December 2007 the plaintiff makes a claim for 15 hours per week at $20 per hour namely $2400.
575. The total claim made by the plaintiff is therefore in the sum of $60,900. As the hourly rate in respect of this claim does not exceed the amount prescribed by s 15 of the CL Act, I consider that the suggested hourly rate is reasonable.
576. On behalf of the defendants, it was submitted that an allowance for past care should be limited to 6 months at 15 hours per week calculated at the rate of $20 per hour. The basis of that submission seemed somewhat arbitrary.
577. Consistent with my findings concerning the nature and extent of the plaintiff’s disabilities, I consider that no entitlement has been shown for any negligence caused need for assistance. If I am ultimately found to have been incorrect in relation to this finding, then I consider that the alternative submission as identified by the plaintiff would be the appropriate alternative finding. Accordingly, if the plaintiff had been entitled to damages for past domestic assistance, I would have assessed such damages in the amount of $60,900.
Future domestic assistance
578. The plaintiff makes a claim for the provision of damages for future domestic assistance on a paid commercial basis. The claim is for 3-4 hours per week in respect of heavy household work, repairs and home refurbishments at a cost of $25 per hour or $75 per week. The plaintiff’s submission projects the sum of $75 per week over a 55.25 year life span to identify a projected sum of $106,500 using a multiplier of 1420 but reducing the projected sum to allow for the possibility of improvements in the plaintiff’s condition after possible eventual arthrodesis of the ankle. The submission is in the reduced sum of $90,000.
579. On analysing the plaintiff’s submission it is apparent that the incorrect multiplier has been used. The 5 per cent multiplier for 55 years is 996.4. Using this multiplier, the corrected projected figure is revealed to be $74,730. Applying a 15 per cent reduction, which appears to be the proportion used in the preceding submission of the plaintiff, this yields an adjusted submission of $63,520.
580. I consider that the rate of $25 per hour for these projections is reasonable as it is less than the current maximum rate provided by s 15 of the CL Act, and by definition, must therefore be regarded as being reasonable.
581. The basis upon which the plaintiff makes his submission for an entitlement to such domestic assistance is the difficulty the plaintiff has described with physical activities.
582. The defendants submitted that the plaintiff has not demonstrated any entitlement to damages for future domestic assistance.
583. In my view the submission made by the defendants is too simplistic and pays no regard to the difficulties the plaintiff is likely to encounter in the future in connection with the running of a home. That said, I consider that an allowance of three hours per week is excessive in the circumstances because of an absence in the evidence of any degree of precision by which to differentiate between the needs the plaintiff would probably have incurred for such assistance absent negligence. Notwithstanding the state of the evidence, I consider that an allowance should be made for such assistance as a lifetime average. I consider that an appropriate adjustment would be to reduce the revised amount claimed by the plaintiff by 25 per cent. In rounded figures this reveals a discounted allowance of $45,000.
584. If the plaintiff had been entitled to an award of damages for future domestic assistance, I would have assessed such damages in the amount of $45,000.
Future treatment
585. The plaintiff makes a claim for the cost of treatment in the rounded down sum of $8000. The basis of this claim is the opinion of Dr Davis dated 19 January 2008 in which Dr Davis spoke of the eventual outlook for the plaintiff to be, the need for an arthrodesis, which he costed at $10,500. Dr Harvey considered the cost of this possible procedure to be $20,000.
586. The defendants did not concede any entitlement to damages for future treatment.
587. In my view, the evidence does not permit the conclusion that the plaintiff will need the identified procedure as a result of the negligence of the defendants. However, that is not to say that he will not require some possible form of future treatment, absent the negligence of the defendants. On the state of the evidence I consider that a buffer against the possible cost of additional future treatment is warranted. I assess that buffer in the sum of $3000.
588. If the plaintiff had been entitled to damages for future treatment, I would have assessed such damages in the amount of $3000.
Past out-of-pocket expenses
589. The plaintiff makes a claim for past out-of-pocket expenses in the amount of $25,000 being the cost of the first operation performed by Dr O’Carrigan, which was paid for privately by the plaintiff. This sum was paid by the plaintiff in January of 2005.
590. The plaintiff makes a claim for an additional sum for out-of-pocket expenses in the sum of $4840, being $20 per week for 242 weeks from October 2004, comprising painkilling medication which included Voltaren, Panadol, Tramal and Panadeine Forte.
591. These claims are in the total sum of $29,840.
592. The plaintiff claims that he would not have had to incur the fees for the procedure carried out by Dr O’Carrigan if the procedure had been carried out by Dr Elliott as originally planned but at an earlier time. This was because as a public patient, the plaintiff would not have had to pay such fees.
593. The defendants made no concessions on the claimed out-of-pocket expenses.
594. In my assessment, the plaintiff’s submission is correct. I find that if the operation carried out by Dr O’Carrigan had been earlier performed by Dr Elliott the plaintiff would not have had a liability to pay the identified additional sum.
595. In my view, the evidence does not permit a finding that the medications claimed by the plaintiff in the sum of $4840, argued to be due to the negligence of the defendants and would not have been necessarily incurred absent the negligence of the defendants. Accordingly I do not allow that amount.
596. If the plaintiff had been entitled to an award of damages for out-pocket expenses, I would have assessed such damages in the amount of $25,000.
Interest on paid out-of-pocket expenses
597. As the plaintiff is not entitled to an award of damages, an assessment of the claim for interest does not arise.
Summary of damages assessment
598. My assessment of the plaintiff’s damages is summarised as follows:
(a) Non-economic loss (b) Past loss of earnings (c) Future loss of earning capacity (d) Past loss of superannuation (e) Future loss of superannuation (f) Past domestic assistance (g) Future domestic assistance (h) Future treatment (i) Past out-of-pocket expenses (j) Interest on paid out-of-pocket expenses
Total
H. DISPOSITION & ORDERS
Disposition
599. As I have determined the liability and causation issues in favour of the defendants there must be a verdict for the defendants. In accordance with convention, to allow for the possibility of a reversal of my causation finding on appeal, I have assessed damages in the amount of $807,841. The defendants are entitled to a verdict and judgment in their favour, together with an order for costs.
Orders
600. I make the following orders:
(a) Verdict and judgment for the defendants;
(b) The plaintiff is to pay the defendants’ costs on the ordinary basis unless otherwise ordered;
(d) Liberty to apply on 7 days notice if further orders are required.(c) The exhibits may be returned;
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