Phelan v Melbourne Health
[2019] VCC 241
•20 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
MEDICAL LIST
Case No. CI-15-05977
| SEAN PHELAN | Plaintiff |
| v | |
| MELBOURNE HEALTH | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21, 22, 26, 27, 28, 29, 30 November 2018 | |
DATE OF JUDGMENT: | 20 March 2019 | |
CASE MAY BE CITED AS: | Phelan v Melbourne Health | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 241 | |
REASONS FOR JUDGMENT
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Subject: MEDICAL NEGLIGENCE
Catchwords: Medical negligence – informed consent – causation – loss of chance – usual practice of doctors
Legislation Cited: Evidence Act 1958
Cases Cited:Rogers v Whitaker (1992) 175 CLR 479; Chappel v Hart (1998) 195 CLR 232; Rosenberg v Percival (2001) 205 CLR 434; Tabet v Gett (2010) 240 CLR 537; Coote v Kelly [2016] NSWSC 1447; Neville v Lam (No 3) [2014] NSWSC 607
Judgment: Claim dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Ms N Hodgson | Lander & Rogers |
HER HONOUR:
Preliminary
1 On 21 January 2013, Mr Phelan jumped from the balcony of a second storey building, intending to land in the swimming pool below. Unfortunately, he missed the pool, landing heavily on his feet, approximately four metres below. As a result of the fall, Mr Phelan suffered comminuted fractures to the calcaneal bones in each ankle. Mr Phelan was taken immediately to the Royal Melbourne Hospital (the defendant’s hospital), where he was treated conservatively. He was discharged five days later, and subsequently attended follow-up appointments at the defendant’s Orthopaedic Outpatient Clinic over the following two weeks, at which time he was advised not to weight bear for a period of three months.
2 Following his final appointment at the Orthopaedic Outpatient Clinic, Mr Phelan sought a second opinion from an orthopaedic surgeon, soon after which he underwent surgery to his left ankle, but not his right ankle. Mr Phelan said that he received an excellent result from this surgery.
3 Surgical treatment of a calcaneal fracture usually involves an open reduction and internal fixation. It was the unanimous opinion of each of the orthopaedic surgeons in this case, that there is a limited window of time within which such surgery can be performed. This time period was said to be within four weeks, but possibly up to five or six weeks of the fracture being sustained.[1]
[1]Court Book (“CB”) 49, Transcript (“T”) 373 Line(s) (“L”) 29-30, T415, L9-18
4 Mr Phelan claims that the defendant failed to inform him of the option of surgical treatment for his calcaneal fractures, and said that, had he been so informed, he would have elected to undergo such surgery to his right ankle within the relevant time period. He further claims that, had he undergone the surgery to his right ankle, his outcome would have been better or more successful than his current outcome, and that it would have been similar to the outcome he has received to his left ankle. Instead, Mr Phelan claims that he has been left with ongoing pain and restriction of movement in his right ankle, such that he has not returned to work as a plumber.
5 The defendant denies that it was negligent in failing to advise Mr Phelan of this surgical treatment option. The defendant relies upon evidence provided by its medical staff, as well as independent expert opinions, to allege that surgery was contraindicated throughout the period in which Mr Phelan was treated by the defendant, on the basis that Mr Phelan was a smoker, and had extensive swelling in both his ankles. Notwithstanding that such surgery was not recommended by the doctors at the defendant’s hospital, the defendant alleges that it advised Mr Phelan of this treatment option on several occasions while he was an inpatient at the hospital. In the event that I was satisfied the defendant had breached its duty to Mr Phelan (which it expressly denies), the defendant alleges in the alternative that Mr Phelan has failed to establish that any such negligence has caused him to suffer injury.
6 The hearing of this case proceeded over nine days. Mr Phelan represented himself, and the defendant was represented by Ms Hodgson of counsel.
7 For the reasons which follow, I am not satisfied that the defendant was negligent in failing to inform Mr Phelan of a surgical treatment option and I therefore dismiss his claim.
Mr Phelan’s life prior to the fall
8 Mr Phelan is 40 years of age. He completed Year 12 at Parade College in Bundoora, before subsequently completing a plumbing apprenticeship. He thereafter worked for several employers in both Perth and Melbourne.
9 In 2010, Mr Phelan started his own business, which was known as DKD Plumbing Pty Ltd. Mr Phelan said that his business provided complete sanitary services, including sewerage, stormwater, gas, roofing and general maintenance. In the financial year prior to suffering his bilateral ankle injuries, Mr Phelan earned a gross income of $117,893.
10 In 1986, Mr Phelan fractured his left shoulder and, in 1994, he fractured his left ankle.
11 Mr Phelan said that he had played competitive football until he was about 25 or 26, and thereafter enjoyed having a casual kick of the football with his friends. Mr Phelan said that he had also played competitive cricket until about 2008 or 2009, and that, at the time of his fall, he had intended to return to cricket and to join a friend’s team.
The fall, the medical treatment and the advice that Mr Phelan received at the defendant’s hospital
12 At the commencement of the proceedings, it was agreed between the parties that there were some matters of common ground, which, if not expressly agreed upon, were not in dispute. These were as follows:
(i) On 21 January 2013, Mr Phelan fell approximately 3.95 metres from a balcony, to the ground, landing on both feet.
(ii) At the time of the incident, Mr Phelan was a smoker, and smoked approximately one packet of cigarettes per day.
(iii) Mr Phelan had consumed alcohol prior to the fall.
(iv) An ambulance attended soon after the fall and Mr Phelan was taken to the defendant’s hospital.
(v) X-rays were taken which demonstrated comminuted fractures in Mr Phelan’s left and right calcanea.
(vi) Mr Phelan presented with a small wound below the medial malleolus on his right ankle and a blister wound on his left ankle.
(vii) Both of Mr Phelan’s feet were swollen throughout the course of his hospital admission.
(viii) During his inpatient stay, Mr Phelan was treated conservatively. He was non-weight bearing and was prescribed analgesic medication.
(ix) On 25 January 2013, Mr Phelan was discharged from the defendant’s hospital in a wheelchair.
(x) On 29 January 2013, Mr Phelan re-attended the defendant hospital’s Orthopaedic Outpatient Clinic.
(xi) On 5 February 2013, Mr Phelan re-attended the defendant hospital’s Orthopaedic Outpatient Clinic. At this time, Mr Phelan was advised by the defendant that he should be non-weight bearing for a period of three months, after which he would be further reviewed.
13 There was a dispute between the parties as to the extent of the advice provided to Mr Phelan throughout the period he was an inpatient at the defendant’s hospital, as well as the discussions which transpired at his last outpatient appointment.
14 Mr Phelan was the first witness to give evidence in this case. He affirmed as true and correct, the contents of an affidavit he had previously sworn on 18 September 2017, in support of his application for summary judgment in this matter. In addition, I asked Mr Phelan a number of questions, in chronological order, to enable him to adduce evidence relevant to his claim. He was subsequently cross-examined by Ms Hodgson. Mr Phelan was then provided with a copy of the transcript, to enable him to consider his evidence, following which he was given the opportunity to clarify matters in re-examination.
15 On 21 January 2013, after finishing work for the day, Mr Phelan said that he purchased some beer before then driving to his friend’s home in Wattle Glen, Victoria. After having consumed some of the beer, Mr Phelan decided to jump from his friend’s balcony into the swimming pool below, a distance of approximately 3.95 metres. Mr Phelan was successful on the first occasion, and landed in the swimming pool below. He said that his son’s friend then encouraged him to jump a second time. On this occasion, Mr Phelan said that, as the decking on the balcony was wet, he slipped when he jumped, and landed on the brick paving on the ground below. Mr Phelan said that he could not recall the moment his feet actually struck the ground, but denied having lost consciousness. He said that he recalled lying on the ground, and recognising that his feet were “not in a good way.”[2]
[2]T19, L16–18
16 Soon after, an ambulance arrived for Mr Phelan, the notes of which recorded that he suffered pain levels of 10 out of 10. The ambulance officers provided him with Fentanyl, Morphine and Metoclopramide.[3]
[3]CB 160
17 At approximately 6.40pm, Mr Phelan arrived at the Emergency Department of the defendant’s hospital. He said that he was given Morphine for the pain, after which he recalls being “off me face”.[4] As a result, Mr Phelan said that he can only remember “bits and pieces”[5] from that night. However, Mr Phelan said that he could recall being told by a nurse that she would be surprised if he “didn't have surgery that night.”[6] Mr Phelan said that this was the only occasion that surgery was mentioned to him while he was at the defendant’s hospital.[7]
[4]T83, L29–30
[5]T84, L21
[6]T84, L13–14
[7]T92, L9–12
18 Mr Phelan said that he had a friend with him while he was in the Emergency Department, whom he believed to have answered some of the questions asked of him by the defendant’s staff. Mr Phelan was unsure, however, as to which aspects of the medical history he provided to the defendant’s staff, and which aspects were provided by his friend.[8]
[8]T95, L6-16, T100, L25-30
19 At the time of his admission to the defendant’s hospital, there was an initial concern to ensure that Mr Phelan had not suffered a spinal injury in the fall. As a result, he was provided with a neck collar. However, once medical imaging demonstrated that there was no such injury, Mr Phelan said that the collar was removed.
20 A CT scan was taken of Mr Phelan’s left and right ankles which was reported as follows:
“X-Ray Right Ankle:
Findings: There is moderate soft tissue swelling of the ankle joint. There is no subluxation or dislocation seen and no definite fracture seen in the distal fibula or tibia. There is a comminuted fracture of the calcaneus identified. The talus appears intact. There is widening of the subtalar joint.
X-Ray Right Foot:
Findings: There is no subluxation or dislocation or fracture identified, in particular there is no evidence of a Lisfranc deformity.
X-Ray Left Ankle:
Findings: There is marked soft tissue swelling at the ankle joint. The alignment shows no subluxation or dislocation. There is a comminuted fracture of the calcaneus with a fracture of the posterior aspect of the talus and widening through the subtalar joint.
X-Ray Left Foot:
Findings: The left foot shows no fracture and no subluxation or dislocation.[9]
[9]CB 234
21 While in the Emergency Department, Mr Phelan was administered further intravenous doses of Morphine medication.[10]
[10]CB 225
22 The nursing notes from 9.20pm record that Mr Phelan was “sleeping and easily roused”.[11]
[11]CB 225
23 At 10.35pm, the nursing notes described Mr Phelan as “alert and orientated x3”.[12] The records indicate that Mr Phelan was examined by Dr Conor Crowley at about this time.
[12]CB 225
24 At 11.30pm, the nursing notes described Mr Phelan as sleeping, but easily rousable to voice.[13]
[13]CB 225
25 Mr Phelan said that he was subsequently transferred to a ward, where he stayed until 25 January 2013. He said that, on at least some of those days, he could recall having seen groups of doctors as they completed their ward rounds. However, he said that the doctors stood at the bottom of his bed and said very little to him.[14] Mr Phelan said that he did not feel comfortable enough to ask the doctors about treatment options or the expected length of his recovery.[15]
[14]T98, L4–11
[15]T98, L16–17
26 Mr Phelan expressly denied that surgical treatment of his calcaneal fractures was ever discussed with him by a doctor during his inpatient stay.[16]
[16]CB 73
27 Mr Phelan further said that the only discussion he had regarding his smoking, was one in which he was advised to quit smoking “like every doctor tells me.”[17] Mr Phelan said that he understood this advice to have been provided in the context of his “general health and well-being”,[18] and said that the reasons for which he needed to quit smoking for the purposes of potential surgery were not impressed upon him.
[17]T33, L28–31
[18]T62, L22
28 On 24 January 2013, Mr Phelan said that an occupational therapist accompanied him to his home, in order to assess its suitability for his convalescence, for the duration of the period in which he was to be non-weight bearing. Mr Phelan said that his home was assessed as being appropriate, and that he was discharged home the following day in a wheelchair.
29 As at the time of his discharge on 25 January 2013, Mr Phelan said that he was prescribed pain-relieving medication. He also recalled having reminded the pharmacist located at the defendant’s hospital to provide him with Clexane medication, in order for him to administer daily injections given that he was not ambulating.[19]
[19]T26, L11–15
30 At the time of his discharge, Mr Phelan said that he was aware that a fracture to the calcanea was a bad injury,[20] but was unable to say which doctor, if any, had informed him of this.[21] Mr Phelan also said that, based on his general knowledge, he understood it was sometimes necessary for the swelling of a fractured body part to subside before treatment options, including surgery, were considered.[22]
[20]T100, L12-16
[21]T100, L25–30
[22]T105, L12–25
31 Mr Phelan said that he was of the understanding that he would be reviewed every two weeks following discharge, and that the appointment scheduled on 29 January 2013 was for the purposes of changing his bandages.[23]
[23]CB 28
32 In the intervening days, Mr Phelan said that he stayed home, rested, and remained non-weight bearing. Mr Phelan said that he had a friend, Ms Karyn Owen, who worked as a nurse at the Austin Hospital, and that she attended his home each day to administer the Clexane medication to him.
33 On 29 January 2013, Mr Phelan attended the defendant hospital’s Orthopaedic Outpatient Clinic, but was unable to recall the details of the discussion he had with the doctor who examined him, and said that his attendance “was very quick”.[24]
[24]T103, L9
34 On 5 February 2013, Mr Phelan attended the defendant hospital’s Orthopaedic Outpatient Clinic for the second and final time. On this occasion, Mr Phelan said that he was told to return in three months, at which time further medical imaging would be taken, to review the progress of the fractures. Mr Phelan said that he was also told on this occasion that he would not be walking for six months. Mr Phelan claims that he then expressly asked if a surgical treatment option was available for his injuries, and that the defendant “lied”[25] to him, and told him that surgery was not possible.
[25]CB 73
35 Mr Phelan said that he was surprised by this advice, as it differed from the fortnightly review plan he claims he was told to expect.[26] At this time, Mr Phelan said that “alarm bells”[27] went off in his head, and that he lost confidence in the care being provided to him by the defendant. Mr Phelan said that he therefore contacted Ms Owen, and sought advice from her as to the availability of potential treatment options at the Orthopaedic Department at the Austin Hospital. Mr Phelan said that Ms Owen called him back shortly after, and informed him that there was a surgical treatment option available. She recommended that he arrange a consultation with orthopaedic surgeon, Mr Andrei Cornoiu.
[26]T29, L4-17
[27]T29, L6 and 14
36 Save for the fleeting mention of surgery by a nurse on the night of his admission, Mr Phelan denied that surgery had ever been raised with him by the doctors whom he had consulted at the defendant’s hospital,[28] and denied that Ms Owen had previously informed him of this possible treatment option.[29] Mr Phelan said that it was not until Ms Owen called him back, that he first became aware of the possibility that his calcaneal fractures could be treated with surgery.[30]
[28]T109, L19–22
[29]T107, L12–13
[30]T30, L19–30
37 The defendant tendered its clinical records in this matter, and also relied upon evidence given by several of the doctors from whom Mr Phelan received treatment at the defendant’s hospital.
38 The first doctor to attend upon Mr Phelan following his admission was Dr Conor Crowley, who gave evidence by video transmission from his current medical rooms in Southport, Queensland.
39 Dr Crowley said that while he did not have any independent recollection of Mr Phelan himself, he was able to recall his presenting complaint, on the basis that “jumping off a balcony is an unusual and extremely high energy mechanism of injury”.[31]
[31]CB 138
40 The clinical records indicate that Dr Crowley attended upon Mr Phelan at approximately 10.35pm. Dr Crowley’s handwritten note from that attendance records that he obtained a history as to the manner in which Mr Phelan had suffered his injury, that he was a smoker, a carpenter (sic), together with his findings on examination.[32] Such findings included Dr Crowley’s examination of each of the nerves and pulses in Mr Phelan’s feet. Dr Crowley said that he undertook this examination on the basis that Mr Phelan had suffered a very serious injury, and his concern as to the risk that Mr Phelan could develop compartmental syndrome, in which case he would require emergency surgery, with the further risk that his lower limb could be amputated.[33]
[32]CB 161
[33]T327, L16–31
41 Dr Crowley’s handwritten note then recorded his treatment plan as follows:
“1. Elevate limbs.
2. [Neurovascular observations].
3. Analgesia.
4. Advised to quit smoking.
5. [Operative versus non-operative] management to be decided by foot surgeon.
6. Bilateral [non weight-bearing].”[34]
[34]CB 162
42 Dr Crowley described this particular clinical note as being very detailed, and said that it was one of his more thorough handwritten notes for the time he worked in the Emergency Department at the defendant’s hospital.[35] He said that he believed he had taken such a detailed note, on the basis that he appreciated the seriousness of the injury, which was then reflected in his record of the attendance. Dr Crowley explained, however, that the time constraints associated with working in an Emergency Department are such that it is not possible to record everything that is discussed with a patient. He said that it was not his usual practice to record the details of a discussion he had with a patient.[36]
[35]T327, L16–17
[36]CB 140
43 Upon reflection, Dr Crowley considered that he would have spent approximately 10 minutes obtaining the history from Mr Phelan, 10 minutes examining him, and at least 20 minutes discussing his injuries and the available treatment options.[37]
[37]T333, L20–24
44 Dr Crowley said that, prior to Mr Phelan’s presentation, he believed there to have been approximately 10 patients, over the course of the year, whom he had personally attended upon, following their presentation to the defendant hospital’s Orthopaedic Department with calcaneal fractures. In addition, he estimated that a further 50 such patients had been discussed in the orthopaedic trauma meetings.[38]
[38]CB 140
45 Dr Crowley said that, based upon his usual practice, he would explain to the patient that the injuries were too severe for immediate surgery, and that the patient’s case would be reviewed by a team at the orthopaedic trauma meeting.[39] He would then explain to the patient that the calcaneus is “one of the worst bones in the body to fracture”,[40] and prepare the patient for the possibility of a bad outcome.[41] Dr Crowley said that he would have advised Mr Phelan that it would not be his decision as to whether or not Mr Phelan would be offered surgery to treat his injury, before then preparing Mr Phelan for the possibility that he would not be offered surgery.[42] Dr Crowley said that he would then explain to the patient that there are good reasons for which surgery may not be offered, including that patients with soft tissue swelling and a habit of smoking are placed in a high risk category in terms of developing an infection, which could result in severe complications if surgery was to be attempted. Dr Crowley also said that, ordinarily, he would explain to his patients that operative treatment may not lead to a better outcome in long-term pain and function.
[39]CB 140
[40]CB 140
[41]CB 140
[42]CB 140
46 Based upon his usual practice, Dr Crowley said that he would have told Mr Phelan that smoking increases the risk of infection and that, if he were to have surgery which involved metalware, it would be very hard to remove the infection from the metal. He also said that he would have advised Mr Phelan that if he were to develop an infection in the calcaneum, it could be potentially limb threatening and could lead to amputation.[43] Dr Crowley said that he would also have explained to Mr Phelan that smoking can delay bone healing, and that in a small percentage of patients, it can stop bone healing altogether.[44]
[43]T335, L4-13
[44]T335, L4-13
47 Finally, Dr Crowley said that he would explain to the patient, that some patients have a good outcome following surgery while others do not, and that there are surgical fusion procedures available at a later point in time in the event that the patient was to develop arthritis and pain.[45]
[45]CB 140
48 Mr Phelan cross-examined Dr Crowley extensively as to whether or not Dr Crowley had any concerns in relation to his capacity to understand the advice that Dr Crowley alleges he gave him that night. In so doing, Mr Phelan referred Dr Crowley to the medication which had been administered to him by the ambulance officers, and the hospital staff, together with the reference to Mr Phelan having been intoxicated, and the nurses’ description of him as being sleepy. Dr Crowley said that if he had any concerns in relation to a patient’s capacity to understand the nature of the advice being provided, he would document such a concern in the records.[46]
[46]T343, L12-16
49 Based upon his usual practice, Dr Crowley said that he would also make a record in his clinical notes, if he obtained any part of a patient’s history from any person other than the plaintiff. In the absence of any such recorded concern or note, Dr Crowley inferred that he had obtained a complete history from Mr Phelan himself, and that he had been satisfied Mr Phelan was capable of understanding the very detailed advice that he provided to him over the extended consultation.[47] Further, Dr Crowley said that if he had any concerns as to a patient’s capacity to understand advice due to analgesia, he would make a note of such concern in the record and come back to the patient at a later time. As there was no such note in Mr Phelan’s records, Dr Crowley inferred that he had been satisfied that Mr Phelan was competent.[48]
[47]T326, L29–31, T327, L1–-4
[48] T326, L29–31 to T327, L1-4
50 Dr Crowley believed that an orthopaedic consultant meeting would have occurred the following morning, being 22 January 2013, during which he would have presented the patients he had assessed the previous day to the other doctors in attendance.
51 Dr Crowley explained that there was a “chain of command”[49] within the Orthopaedic Department at the defendant’s hospital, and that it would be for the more senior orthopaedic doctor to decide the best course of management. He said that the most senior doctor at that particular time was Mr David Love. Dr Crowley believed that the decision in respect of whether or not surgery would be appropriate for Mr Phelan, would have been made the following day, at the orthopaedic consultant meeting.[50]
[49]T334, L27–31 to T335, L1-2
[50]CB 140
52 On 29 January 2013, Mr Phelan attended the Orthopaedic Outpatient Clinic at the defendant’s hospital and was attended upon by Dr Crowley. In his clinical notes of this attendance, Dr Crowley again referred to Mr Phelan being a smoker. On examination, he noted that the superficial wound on Mr Phelan’s right ankle had healed and that the blood blisters on his left ankle were dry, healed and clean. Dr Crowley then noted the management plan for Mr Phelan as follows:
“1. Redress left.
2. [Review] in [one week] with x-rays.
3. [Non weight-bearing 12 weeks]”
53 Dr Crowley said that the main purpose of this outpatient appointment was to enable him to review the condition of Mr Phelan’s soft tissues. He said that he had no recollection of the conversation which occurred between himself and Mr Phelan during that appointment, but that his usual practice would have been to discuss with Mr Phelan a non-weight bearing plan for 12 weeks, to allow his bones to heal.[51]
[51]CB 141
54 Dr Crowley accepted that it would not have been his usual practice to raise the option of surgical treatment at this attendance, as there was no reason to change the management plan.[52] If a patient had raised any concerns regarding the management plan, or had requested surgical treatment options, Dr Crowley said that, based upon his usual practice, he would have addressed such concerns with the patient, and documented the discussion in his clinical notes.[53]
[52]T350, L25–29
[53]CB 141
55 I considered Dr Crowley to be a credible witness. He admitted that he did not have an independent recollection of his consultations with Mr Phelan, nor the advice he gave him at the time. Instead, Dr Crowley gave evidence based upon his usual practice, in dealing with patients, both in the emergency department and on the ward, who presented with calcaneal fractures. I considered Dr Crowley’s evidence to be convincing, in the context of his experience, and the number of occasions upon which he has been required to examine and advise patients as to treatment options, following their presentation with conditions similar to that of Mr Phelan’s. Further, in my opinion, Dr Crowley’s explanation as to the lack of detail in his clinical notes, when giving standard advice as to the treatment options for the condition with which Mr Phelan presented, is understandable when one considers the patient load within the emergency department of a public hospital.
56 The next doctor to attend upon Mr Phelan at the defendant’s hospital was Dr Mithun Nambiar. He provided a sworn witness statement, which was tendered as an exhibit. Mr Phelan elected not to cross-examine Dr Nambiar in the proceeding.
57 On 22 January 2013, Dr Nambiar was on his first rotation as an intern in the Orthopaedic Department of the defendant’s hospital. Dr Nambiar stated that he had no independent recollection of Mr Phelan, and his clinical record of 22 January 2013 simply stated:
“Reviewed x-ray. Non-operative.
[Plan] stay another day at least.
[Non weight-bearing] 12/52 → wheelchair.
Cam boots.”[54]
[54]CB 130
58 As an intern in the Orthopaedic Department, Dr Nambiar said that it was his role to document the outcome of the ward round consultations with the patients.[55] He said that the team involved in a ward round usually comprised a registrar, a resident and an intern. Dr Nambiar said that a patient’s case was initially discussed at the orthopaedic consultant meeting, following which it was then discussed with the patient. The results of such a discussion would then be recorded in the medical record. Dr Nambiar stated that while it was his usual practice to record discussions with the patient in the medical record, he was relatively new to the role at that time and on this occasion, had failed to do so.
[55]CB 130
59 Dr Nambiar’s handwriting is also present in Mr Phelan’s medical record of 24 January 2013. Dr Nambiar stated that, on this occasion, the consultant ward round had occurred, and Professor Andrew Bucknill, the head of Orthopaedics at the defendant’s hospital had been in attendance. Dr Nambiar recorded the following:
“Progress noted.
[Plan CCNX].”[56]
[56]CB 131
60 Dr Nambiar stated that “CCNX” is shorthand for “continue current management”.[57]
[57]CB 131
61 Dr Nambiar was the most junior of the doctors to attend upon Mr Phelan, and, in the circumstances of this particular case, was essentially just the note-keeper for the ward rounds. Dr Nambiar did not advise Mr Phelan himself. It is regrettable that his notes are so brief and uninformative.
62 The next doctor to attend upon Mr Phelan at the defendant’s hospital was orthopaedic surgeon, Mr David Love. He has been a Fellow of the Royal Australasian College of Surgeons since January 2009 and has been a consultant at the defendant’s hospital since that time.
63 Mr Love accepted that, on the evening of 21 January 2013, the medical records indicate that Dr Crowley discussed Mr Phelan’s case with him. Mr Love said that he had no independent recollection of Mr Phelan; as such, his evidence was also based upon his usual practice and his reading of the hospital records.
64 Mr Love said that an orthopaedic trauma meeting was conducted daily, and confirmed that such a meeting would have taken place sometime between 7.30am and 8.00am on the morning after which Mr Phelan was admitted to the defendant’s hospital. Mr Love said that he was the responsible surgical consultant at that meeting,[58] at which time those in attendance would have discussed the cases of any new patients to have presented at the hospital the previous day, and their respective management plans. Mr Love said that they do not document the discussions of such meetings,[59] but that the subsequent discussion with the patient, during the orthopaedic ward round, is usually recorded in the patient’s medical record. Mr Love said that it was not his usual practice to attend this ward round, and that he would rely upon doctors, such as Dr Crowley, to convey what had been discussed at the orthopaedic trauma meeting with the patient.
[58]CB 133
[59]CB 133
65 Based upon his reading of the hospital record, Mr Love was of the opinion that Mr Phelan’s x-rays would have been reviewed at the orthopaedic trauma meeting on 22 January 2013. He said that, in circumstances where Mr Phelan was a smoker, had swelling in his feet and a laceration on his right foot, that they would have recommended non-operative management, with a plan to reassess at a date in the future.[60] Mr Love said that it is usual practice for a patient’s presentation to be reassessed, both while they are an inpatient at the hospital and while they are receiving treatment in the Orthopaedic Outpatient Clinic.[61]
[60]CB 133
[61]CB 133
66 In addition to the daily orthopaedic trauma meetings, Mr Love said that a weekly x-ray meeting was also usual practice within the hospital, at which the majority of the hospital’s orthopaedic surgery consultants would be in attendance. He said that such a meeting took place on 24 January 2013, and that Mr Andrew Oppy, the hospital’s foot surgeon, would ordinarily have been present at this meeting, had he been rostered on that day.
67 As with the orthopaedic trauma meeting, Mr Love said that the doctors do not usually document the discussions that take place in the x-ray meeting, but that, ordinarily, any discussions are then conveyed to the patient on the ward round, and subsequently recorded in the patient’s clinical notes. Mr Love said that there can be as many as 15 doctors in attendance at this ward round.
68 Mr Love noted that Associate Professor Andrew Bucknill was the most senior member of the department at that time, and that he was recorded as having attended the ward round following the x-ray meeting of 24 January 2013. Mr Love said that it was his usual practice to attend the ward round following the x-ray meeting, and considered it likely that both he and Associate Professor Bucknill had attended the ward round on this day and consulted Mr Phelan.[62]
[62]CB 133
69 Mr Love noted that the medical record from this date states that the plan was to continue with current management. Mr Love said that he expects it would have been communicated to Mr Phelan that “surgery was still not appropriate and non-operative management was the recommended course”.[63]
[63]CB 133
70 Mr Love then stated that, when a patient attends the Orthopaedic Outpatient Clinic, it was his usual practice, and the general practice at the defendant’s hospital, to reassess the best course of management for the patient’s medical problem. He said they maintain this practice “even if the patient was initially considered for non-operative management”.[64] Mr Love explained the need to reassess the management of a patient’s medical problem at every stage, on the basis that the patient’s injury and presentation may change.
[64]CB 134
71 Mr Love said that the purpose of the reviews would be to assess Mr Phelan’s pain, to reassess his level of smoking, and to consider whether or not his treatment should involve operative or non-operative management.
72 Given the circumstances of this case, Mr Love considered non-operative treatment to be appropriate, and justifiable on the basis of Mr Phelan’s presentation during his inpatient admission, as well as his attendance at the Orthopaedic Outpatient Clinic.
73 Mr Love said that there was a limited period of time, up to four weeks,[65] in which surgery to calcaneal fractures could be performed. He explained that:
“From the moment a fracture occurs, the body is trying to make it heal and over a two to three week window, callus is starting to form...”[66]
[65]T373, L29-30
[66]T374, L6-9
74 He explained that it becomes more “challenging”[67] to achieve internal fixation after this period, and that it “becomes harder in terms of trying to get the bone fragments back where you need them to be.”[68]
[67]T374, L11
[68]T374, L10-13
75 Mr Phelan cross-examined Mr Love as to the effects of the medication he had been administered by the ambulance officers and the hospital staff. Mr Love stated that such medication could impact upon a patient’s level of drowsiness,[69] but said that, if he had any concerns as to a patient’s capacity to understand his advice, he would give the advice at this point, before returning at a later point in time to give such advice a second time, when any incapacity had resolved. Mr Love said that if a person was affected by alcohol and medication, he would expect a general improvement in their cognitive state over a 6 to 24 hour period.[70]
[69]T357, L6-18
[70]T376, L14-15
76 I considered Mr Love to be a credible witness.
77 The final doctor to attend upon Mr Phelan at the defendant’s hospital was Dr Yasith Edirisinghe, who assessed Mr Phelan on 5 February 2013 at the Orthopaedic Outpatient Clinic. Dr Edirisinghe said that he had no independent recollection of Mr Phelan; as such, his evidence was also based upon his usual practice and his reading of the hospital records.
78 Dr Edirisinghe’s clinical note of this day stated:
“Ortho ward.
[Two weeks] post [bilateral calcaneal fracture].
Sanders 4 both sides.
Jumped from 4 [metre] height.
Laceration to right ankle completely healed.
Fracture blisters left ankle completely headed.
Cut down smoking to [half] pack a day.
→ Advised non-smoking.
Discussed with Ben Brooker.
Review with x-ray in [three months].”[71]
[71]CB 136–137
79 Dr Edirisinghe said that, as a junior registrar at this time, it was his usual practice to discuss the patient’s presentation with a senior registrar. On this occasion, the senior registrar was Dr Ben Brooker. Dr Edirisinghe said that he would have discussed Mr Phelan’s presentation with Dr Brooker, and that Mr Phelan’s management plan, that he be reviewed in three months, would have been made in consultation with Dr Brooker.
80 Dr Edirisinghe stated that, if Mr Phelan had expressed any concerns in relation to his treatment plan at this appointment, or, in particular, if he had asked Dr Edirisinghe about surgery, as he alleges, that he would have “escalated these concerns to someone more senior.”[72] Dr Edirisinghe acknowledged that he did not have enough knowledge or experience to address such concerns himself at that point in time. Dr Edirisinghe stated that it was his usual practice to document such concerns in the medical records.
[72]CB 137
81 I also considered Dr Edirisinghe to be a credible witness.
Subsequent medical treatment and the advice provided to Mr Phelan after 5 February 2013
82 Mr Phelan said that, in circumstances where he had lost confidence in the advice provided to him at the defendant’s hospital, and on the recommendation of his friend, Ms Owen, he arranged to seek a second medical opinion. Ms Owen provided Mr Phelan with the name and contact details of Mr Andrei Cornoiu, whose rooms he called the following day to arrange an appointment.[73] Mr Phelan said that the first available appointment with Mr Cornoiu was 18 February 2013 at the Northpark Private Hospital.[74]
[73]T31, L2-3
[74]CB 9
83 On 11 February 2013, Mr Phelan attended upon general practitioner, Dr Margaret Prowse, at the Diamond Creek Medical Centre, and specifically sought a referral to Mr Cornoiu.
84 On 18 February 2013, Mr Phelan first consulted Mr Cornoiu. Mr Phelan said that Mr Cornoiu discussed surgical and conservative treatment options with him, but was “more favourable to operative.”[75] Mr Phelan said that Mr Cornoiu also impressed upon him the need to cease smoking, as, at that time, Mr Phelan said that he was still smoking close to one pack of cigarettes per day.
[75]T33, L21
85 In a letter to Dr Prowse at the Diamond Creek Medical Centre, dated 18 February 2013, Mr Cornoiu detailed Mr Phelan’s history following the fall. He noted that, clinically, Mr Phelan had “very severe swelling around both ankles, with the right significantly worse than the left”[76] as well as some residual blistering that had healed. In cross-examination, Mr Phelan agreed that his ankles were swollen at this time, but denied that his right ankle was significantly worse than the left.
[76]CB 240
86 Mr Cornoiu also considered Mr Phelan’s right hindfoot to be significantly broader than the left. Mr Cornoiu stated that he had been unable to view the CT scans that day, but was of the opinion, based on the photograph of a plain x-ray he had viewed on Mr Phelan’s phone, that Mr Phelan had at least Sanders Grade 3-4 calcaneal fractures. Mr Cornoiu advised that he would assess the films and review Mr Phelan at the Austin Hospital in the coming weeks, in order to ascertain whether or not a more aggressive treatment option was available. However, at that time, Mr Cornoiu considered that:
“Limiting factors at the moment are that of swelling and the time frame as he is now approaching four weeks which is usually the cut off for surgery. The other major issue for him that he needs to address is to cease smoking.”[77]
[77]CB 240
87 Mr Phelan said that “it kind of hit home”[78] at this time that he needed to cease smoking.
[78]T111, L8
88 On 21 February 2013, Mr Phelan consulted Mr Cornoiu at the Austin Hospital. Mr Phelan agreed that Mr Cornoiu’s clinical notes from this attendance recorded that his right ankle was very swollen with a healed blister, and that his left ankle was less swollen in comparison.
89 In his affidavit, Mr Phelan said that Mr Cornoiu discussed both conservative and operative treatment options with him, including the benefits and risks of each option, after which Mr Phelan agreed that he would undergo an open reduction internal fixation to repair his left calcaneal.
90 Mr Phelan said that he can recall Mr Cornoiu discussing the severity of his injuries, as well as impressing upon him the need to cease smoking. Mr Phelan said that, at this time, he was only smoking a couple of cigarettes per day. In electing to undergo surgery, Mr Phelan agreed that he accepted the associated risks of which he was informed by Mr Cornoiu, including amputation.
91 In his handwritten clinical notes dated 21 February 2013, Mr Cornoiu stated that Mr Phelan’s right ankle was very swollen, that the left was less swollen in comparison and that the right was “non-op.”[79] Mr Cornoiu did not elaborate or provide any explanation as to why this was the case.
[79]CB 333
92 Mr Phelan said that Mr Cornoiu informed him that, due to “time constraints”,[80] surgical treatment was only possible on one ankle, and not both.[81] Further, Mr Phelan claimed that Mr Cornoiu stated that he would not perform surgery on his right foot “because it would be too far out, the timeframe”.[82]
[80]CB 30
[81]T37, L9-11
[82]T37, L3-4
93 The defendant objected to this evidence on the basis that it was hearsay, and not something to which Mr Cornoiu had referred or stated in any of the tendered documents.
94 I am prepared to admit such evidence from Mr Phelan, on the basis that it is a contemporaneous statement about his health.[83] However, I give such evidence very little weight, in circumstances where numerous documents have been tendered from Mr Cornoiu, and in which there is no reference to him being prepared to perform surgery on only one foot, or to the time delay as being the reason for which he did not perform surgery on Mr Phelan’s right foot.
[83]s66A Evidence Act 1958
95 At this consultation on 21 February 2013, Mr Phelan also claimed that Mr Cornoiu questioned why he had not been transferred to St Vincent’s Private Hospital or the Austin Hospital, the day after which he had been admitted to the defendant’s hospital. He said that Mr Cornoiu “could not believe [it]”,[84] and that he had made contact with someone at the defendant’s hospital to advise of his feelings in relation to the manner in which Mr Phelan had been treated.[85]
[84]T36, L27
[85]T36, L28-31
96 The defendant did not object to the admissibility of such evidence. I note that Mr Cornoiu did not make reference to this telephone call, or his opinion as to the manner in which Mr Phelan was treated at the defendant’s hospital, in any of his medical reports or clinical notes. In any event, any concerns by Mr Cornoiu as to this aspect of Mr Phelan’s treatment are not directly relevant to the issues I need to determine in this matter.
97 On 28 February 2013, Dr Cornoiu performed an open reduction internal fixation and bone graft of Mr Phelan’s left calcaneal at the Austin Hospital. Mr Phelan said that he was in hospital for three days, following which he was discharged with Oxycodone and Endone. He was subsequently confined to a wheelchair for three months, during which time he was non-weight bearing. By this stage, Mr Phelan said that he had effectively given up smoking, save for one possible cigarette with his coffee each morning.[86]
[86]T113, L6
98 Following this surgery, Mr Phelan said that he did not resume smoking for approximately three months, after which he started to have a couple of cigarettes per day. Mr Phelan then said that from June 2013 until the end of the year, he resumed smoking approximately one packet of cigarettes per day.
99 Mr Phelan said that he had a follow-up consultation with Mr Cornoiu 12 weeks post-surgery, at which time he said that he was fitted with a moon boot and given crutches. Mr Phelan was unable to recall the exact period of time he was in the moon boot or on crutches, but thought that it was a few months. Once the moon boot was removed, Mr Phelan said that he used the crutches every now and then, depending on his pain levels.
100 Mr Phelan said that he was reviewed by Mr Cornoiu on 5 September 2013, at which time he signed a Consent for Elective Procedure Form in relation to an open reduction internal fixation procedure to the right calcanean.[87] Mr Phelan understood that the procedure would be performed in 2014, as Mr Cornoiu had not wanted to operate until the New Year, on the basis that it was too hard to manage follow-up appointments over the Christmas break.
[87]CB 416-417
101 At this time, Mr Phelan said that he was not receiving any treatment for either his left or right foot, but that he was swimming every couple of days. He said that he commenced swimming as soon as he was out of the wheelchair, and would complete a few laps, for 20 to 30 minutes.
102 On 13 February 2014, Mr Cornoiu performed an open reduction internal fixation of the right calcaneal and osteotomy and subtalar fusion and tibial bone graft. Mr Phelan said that he understood the surgery to involve a subtalar fusion, whereby Mr Cornoiu was able to put a plate down the side of his foot, and a couple of screws through the back of his heel into the top of his foot. Mr Phelan said that he was in hospital for a two to three days, before being discharged with Oxycodone and Endone.
103 Mr Phelan was unable to recall whether or not he had given up smoking, or had been required to give up smoking prior to this surgery, but agreed that he must have told the anaesthetist that he had quit two months prior to the surgery, in circumstances where it was recorded in the Austin Health Anaesthetics Report.
104 Following the surgery, Mr Phelan was on crutches for a period of three months. He said that he did not then feel too bad for a period of approximately 12 months, after which he began to experience pain in his right ankle, which became progressively worse. By reason of this increased pain, Mr Phelan sought a further referral to Mr Cornoiu, who recommended that he undergo a further procedure to his right ankle.
105 On 7 March 2016, Mr Phelan underwent an arthroscopy of the right ankle and calcaneus osteotomy, performed by Mr Cornoiu. Mr Phelan understood this procedure to involve the removal of the metalware in his right foot. He said that it was only a one-day procedure, and that he was discharged from hospital the following day. Mr Phelan said that he was then non-weight bearing for a couple of weeks, following which he was able to partially weight bear on crutches.
106 On 12 July 2016, Mr Phelan received a Cortisone injection to the right ankle, from which he obtained relief for a couple of weeks.
107 On 9 November 2016, Mr Phelan attended a case conference at the Austin Hospital with a number of orthopaedic surgeons and allied health practitioners. The records of the conference state that Mr Phelan was deemed to be a “poor surgical candidate.”[88]
[88]CB 316
108 The following day, Mr Phelan attended an appointment with Mr Cornoiu, who discussed the possibility of him undergoing a full ankle fusion due to “ongoing pain after subtalar fusion and calcaneal fracture with varus & supination deformity”.[89] Mr Phelan said that he did not recall Mr Cornoiu advising him that the other surgeons considered him to be a poor surgical candidate.[90]
[89]CB 316
[90]T136, L6-8
109 On 6 December 2016, Mr Phelan received a second Cortisone injection to the right ankle. The radiology documents from Austin Health noted that Mr Phelan had obtained excellent relief from the previous injection, but that it had only lasted a period of two weeks.
110 On 16 February 2017, Mr Phelan underwent a further arthroscopy of the right ankle performed by Mr Cornoiu, including a debridement and osteotomy. Mr Phelan said that his right ankle felt good for a little while after this surgery, but that it did not take long for the pain to return.
111 On 11 May 2017, Mr Phelan consulted Mr Cornoiu for a two month post-surgery review, where it was recommended that, due to a recurrence of right ankle pain, he should undergo an arthrodesis and/or Cortisone injection.
112 On 25 May 2017, Mr Phelan’s proposed right ankle arthrodesis procedure was cancelled, on the basis that he needed to cease smoking six to eight weeks prior to surgery. It was noted that he was then smoking one packet of cigarettes per day. Mr Phelan accepted that his smoking was a reason for the surgery having been cancelled, in addition to his not being ready to undergo such major surgery.
Mr Phelan’s allegations of negligence
113 As Mr Phelan was self-represented, he was permitted to rely upon allegations of negligence detailed in an Amended Generally Endorsed Writ, together with Further and Better Particulars detailed in a letter to the defendant’s solicitors dated 10 October 2017.
114 Mr Phelan alleges that the defendant’s employees were negligent in not informing him of the surgical option available to him for the treatment of his calcaneal fractures, from the time of his admission on 21 January 2013, until the time of his last attendance at the defendant’s Orthopaedic Outpatient Clinic on 5 February 2013.
115 Mr Phelan further alleges that the defendant was negligent in not arranging for him to be reviewed by an orthopaedic surgeon who specialised in ankle injuries.
116 Mr Phelan disputes that surgery was contraindicated by risk factors of swelling, a localised wound and his smoking.
117 Mr Phelan claims that, had he been reviewed by an orthopaedic surgeon who specialised in ankle injuries, he would have been advised of the risks and benefits associated with the surgical and non-surgical treatment of such fractures. Mr Phelan also said that, if he had received the substance of such advice, during the period in which he was being treated by the defendant, he would have stopped smoking and elected to have the surgery.
Relevant legal principles
118 To succeed in his claim, Mr Phelan must satisfy me that:
· surgery was a treatment option available to him for the treatment of his calcaneal fractures;
· he was not adequately informed of this surgical treatment option;
· had he been adequately informed of this surgical treatment option, he would have elected to undergo such surgery;
· had he elected to undergo such surgery, the procedure would have been performed on his right ankle, within the time period in which surgical treatment was an option;
· had such surgery been performed at that time, it is more likely than not that Mr Phelan would have received a better outcome in his right ankle than now exists.
119 In Australia, the case law relevant to the scope of a doctor’s duty to provide advice to a patient in respect of proposed medical treatment, has generally related to patients who have alleged a failure to advise of a material risk, which subsequently eventuated, in a proposed surgical procedure.[91]
[91]Rogers v Whitaker (1992) 175 CLR 479, Chappel v Hart (1998) 195 CLR 232, Rosenberg v Percival (2001) 205 CLR 434
120 In the High Court case of Rogers v Whitaker,[92] Mrs Whitaker complained that she had not been informed of the risk of developing sympathetic ophthalmia which, if it eventuated after surgery, would result in a total loss of vision to Mrs Whitaker. There was only a 1 in 14,000 chance of this condition occurring, but unfortunately for Mrs Whitaker, this risk eventuated. The High Court held that Mrs Whitaker ought to have been advised of this material risk, as it was a risk to which a reasonable person would attach significance. Further, the High Court was satisfied that if she had been advised of this risk, Mrs Whitaker would not have undergone the surgery.
[92]1992 (175) CLR 479
121 The court held that there was a “single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgement.”[93] This included a duty to provide information and advice to a patient.
[93]Ibid, at 483
122 The defendant accepted that it owed Mr Phelan a duty in accordance with the duty identified in Rogers v Whitaker. This duty required the defendant to inform Mr Phelan of the seriousness of his injury and the treatment options open to him, including surgery. The defendant alleged that Mr Phelan was advised in such a way while he was an inpatient at the hospital.
123 An issue for me to determine in this case, is whether or not Mr Phelan was advised, in accordance with this duty.
124 In addition, Mr Phelan alleged that the defendant had a duty to either refer Mr Phelan to, or suggest that he obtain an opinion from, an orthopaedic surgeon who specialised in ankle or foot surgery, in a timely manner.[94] The defendant denied that the scope of its duty extended in this manner, and submitted that there was no authority to support any such extension of duty.
[94]CB 72
125 In my opinion, when a patient receives adequate information as to the existence of potential treatment options, it would be reasonable to expect that patient, acting of their own accord, to obtain a second or subsequent specialist medical opinion, if they so desired.
126 In the circumstances of this case, I do not consider the scope of the defendant’s duty to extend so far as to require the defendant to inform Mr Phelan that he could seek a second or more specialised opinion if he so desired.
127 In closing submissions, Mr Phelan acknowledged that the decision to stay at the defendant’s hospital and receive the recommended treatment, or to “explore the options of surgical treatment elsewhere”,[95] was a decision that he needed to make for himself, provided he had been informed that surgery was a possible treatment option. I consider this concession by Mr Phelan to be appropriate, and am of the opinion that such a concession did not detract from his primary allegation that he was not informed of the option of surgical treatment for his calcaneal fractures.
[95]T528, L14
128 As I have previously stated, in the event that I was satisfied the defendant had breached its duty of care to Mr Phelan, in order to recover damages, Mr Phelan must satisfy me that the surgery to his right foot was open to be performed, and that, had it been performed, he would have received a substantially better outcome in his right foot than the outcome he currently has.
129 Mr Phelan claims that he has lost the chance of obtaining this better outcome due to the defendant’s negligence. In order to succeed in this claim, it is necessary for such loss to be more probable than not. In a personal injury claim such as this, a plaintiff is not permitted to recover damages if the breach of duty of care resulted in the loss of chance of a better medical outcome, where that which has been lost was only a possibility and not a probability.[96]
[96]Tabet v Gett (2010) 240 CLR 537
130 The defendant submitted that, in the event that I was satisfied that Mr Phelan had established a breach by the defendant of the relevant duty of care which it owed to him, any such breach did not give rise to a loss in respect of which damages may be awarded. It is the defendant’s position that Mr Phelan has failed to demonstrate that he has suffered anything other than the loss of a chance of obtaining a better outcome and that such a loss is not sufficient to entitle Mr Phelan to recover damages from the defendant.
Mr Phelan’s liability evidence
131 In support of his claim, Mr Phelan relied upon expert opinions from Mr Cornoiu, as well as from orthopaedic surgeon, Dr Terence Saxby. Written reports were tendered by both doctors, neither of whom were cross-examined by the defendant. It follows that the evidence relied upon by Mr Phelan was therefore confined to that set out in the various expert reports he tendered throughout the course of the proceeding.
132 It is appropriate that I make mention of the various orders made in the course of the numerous pre-trial directions hearings conducted by his Honour Judge Saccardo, in which it was made clear to Mr Phelan that it was his obligation to establish, on the balance of probabilities, not only that the defendant was in breach of the relevant duty of care owed to him, but also the consequences to him of any such breach.
133 In a report dated 22 August 2018, Mr Cornoiu stated that the purpose of surgery on calcaneal fractures “is to reduce the fracture, improve the shape of the fractured calcaneus, reduce intra-articular deformity and improve heel height as well as reduce heel width”.[97] Further, Mr Cornoiu said that the result of such surgery may be a delay in post-traumatic osteoarthritis in the subtalar joint, less irritation of the peroneal tendons by the displaced lateral wall of the calcaneus, an improved ability to wear shoes, a reduced strain on the ankle and especially, a reduced anterior ankle impingement due to flattened heel.
[97]CB 703
134 Mr Cornoiu stated that the risks of such surgery included wound problems, infection, sural neuritis, as well as the ongoing risk of osteoarthritis.
135 Mr Cornoiu said the alternative was non-operative treatment. Mr Cornoiu noted that a number of studies had been done in the past in relation to the treatment of calcaneal fractures and “in general no treatment option has been found to have substantially better results”[98] than the other.
[98]CB 703
136 Mr Cornoiu stated that calcaneal fractures are complex injuries and that each should be treated on its merits. He said that a surgeon should have a thorough discussion with the patient regarding the risks and benefits of surgery, including the manner in which other factors such as smoking could impact upon the outcome.
137 Mr Cornoiu stated that while Mr Phelan had obtained a good result on his left ankle, such a result did not “directly translate to a guaranteed good outcome”[99] on his right ankle.
[99]CB 703
138 In an email dated 26 August 2018, Mr Cornoiu stated that the results of surgical treatment of a calcaneal fracture are variable and that there are no studies which have shown the absolute superiority of operative over non-operative treatment.[100] Mr Cornoiu could not say that there was an absolute advantage in treating the injury operatively as opposed to non-operatively, as the medical evidence does not support such a conclusion.
[100]CB 704
139 Mr Cornoiu stated that, if he had reviewed Mr Phelan “acutely”,[101] he would have discussed operative and non-operative treatment options with Mr Phelan, before then offering Mr Phelan surgery, on the basis that he consented, after having been advised of the risks, and had ceased smoking.[102]
[101]CB 704
[102]CB 704
140 Mr Phelan also relied upon a medico-legal opinion provided by orthopaedic surgeon, Dr Terrence Saxby, who was provided with a copy of Mr Phelan’s medical records to review. Dr Saxby did not examine Mr Phelan.
141 In his undated medical report, Dr Saxby stated that the treatment of calcaneal fractures is a controversial area in orthopaedics, and that there is equal support for non-operative treatment, as well as surgical intervention.[103] Dr Saxby stated that the medical considerations which must be taken into account, in determining the most appropriate treatment for a calcaneal fracture, include a consideration of the patient’s age, the type of fracture, the condition of the skin and other comorbidities (such as cigarette smoking or diabetes), as such factors increase the risk of infection. Dr Saxby stated that cigarette smoking has “a very strong negative outcome with regards to surgery as it increases wound problems and therefore increases the risk of infection and a poor outcome from surgery”.[104] Dr Saxby stated that many surgeons would not consider operating in the form of an open reduction and internal fixation of calcaneal fractures on a person who smokes.
[103]CB 127
[104]CB 128
142 Further, Dr Saxby stated that swelling is also an important consideration in terms of surgery. He said that surgery cannot usually be carried out for a period of two to three weeks until the swelling has decreased.[105] Dr Saxby said that, if the region remains very swollen, the surgery is prejudiced by the risk of wound infection, and that such surgery would be contraindicated if there is any degree of significant swelling in the limb.[106]
[105]CB 128
[106]CB 128
143 Dr Saxby stated that there are different classifications of fractures to the calcaneus, ranging from Sanders classification Grade 1 to Grade 4, with Grade 1 being the least severe and Grade 4 being the most severe injury. Upon his review of the records, Dr Saxby stated that Mr Phelan had a Sanders Grade 3 fracture on his left calcaneus and a Grade 4 facture on his right calcaneus.
144 Dr Saxby also noted that there were some fracture blisters at the time Mr Phelan suffered his injury, and that it would be standard practice to wait until such fracture blisters had healed before proceeding to surgery.
145 Dr Saxby stated that an advantage of operative treatment was that the fracture could be reduced and that a more anatomical outcome could be achieved. However, he stated that the risks of surgery could lead to wound problems and infection, and said that an infection could ultimately overtake any benefit gained from surgical intervention. Dr Saxby therefore stated, “this is a difficult area”[107] and there “is no simple solution where one treatment fits all patients”.[108]
[107]CB 127
[108]CB 127
146 In circumstances where Mr Phelan was a smoker, with a Grade 4 fracture and swelling, Dr Saxby stated that the treating orthopaedic surgeon would have considered non-operative treatment preferable to surgery.[109]
[109]CB 128
147 Dr Saxby said that, in explaining the risks and benefits of conservative versus surgical treatment, it can be “difficult for patients to understand the concept of the relative risk of each procedure versus the relative gain”,[110] and that a patient should be given the option of each potential treatment so as to make an informed decision as to what treatment option to pursue.
[110]CB 128
148 Dr Saxby then stated that, on 29 January 2013, surgery was a possibility but that, at that stage, he would have remained concerned as Mr Phelan was still smoking, and still had a significant degree of swelling in his ankles.[111]
[111]CB 129
149 Ultimately, Mr Phelan asked Dr Saxby to comment on whether or not he would have achieved a significantly better outcome if he had undergone surgical correction of his fractures, either during his admission to the Royal Melbourne Hospital or soon thereafter. In answer to this direct question, Dr Saxby answered “possibly yes”,[112] but said that it was difficult to be certain. He stated that it was “possible”,[113] but that if everything went well with the surgery, and he did not develop any type of wound problems, then it could be “hoped”[114] that anatomical reduction of the fracture would have achieved a better outcome. However, Dr Saxby stated that this is “not a guarantee”.[115]
[112]CB 129
[113]CB 129
[114]CB 129
[115]CB 129
150 In a supplementary report dated 13 September 2018, Dr Saxby stated that, if Mr Phelan had ceased cigarette smoking and the swelling of his limbs had reduced, his risk of infection would also have reduced. He stated that surgery should be delayed until those two factors had been resolved. In respect of the outcome of such surgery, Dr Saxby again stated that there is no way to be certain that surgery would have been beneficial, and that there is debate and controversy about the benefits of such surgery. Dr Saxby stated that, where surgery results in a poor outcome, it is often as a consequence of wound infection. If the risk of wound infection could therefore be reduced, the likelihood of obtaining a better outcome from surgery would be increased.[116]
[116]CB 705
151 Dr Saxby further explained that where surgery was performed, and a more anatomical position of the foot was achieved, there is still a risk that the patient would require a subtalar fusion, as there is a significant risk of further degenerative change. Dr Saxby stated that the Grade 3 and 4 Sanders fractures from which Mr Phelan suffered were highly comminuted fractures which are known to have a poor outcome.[117] In conclusion, Dr Saxby stated that, if Mr Phelan had undergone “successful” surgery, in terms of open reduction and internal fixation, it was more likely than not that he would have had a lower risk of secondary surgery, but Dr Saxby said that secondary surgery remained a risk.
[117]CB 706
The defendant’s liability evidence
152 The defendant relied upon expert evidence it obtained from foot and ankle orthopaedic surgeon, Mr William Edwards, who provided two reports in this matter, dated 10 March 2018 and 8 May 2018. Mr Edwards also gave oral evidence and was cross-examined by Mr Phelan. In providing an opinion in this matter, Mr Edwards reviewed the relevant medical records, but did not examine Mr Phelan.
153 In his first report, Mr Edwards stated that, in his opinion, surgery would have been a potential treatment option for Mr Phelan while he was treated by the defendant, but that it was strongly contraindicated.[118]
[118]CB 124
154 In his oral evidence, Mr Edwards explained that the surgical technique generally used to treat calcaneal fractures in 2013 involved a long incision, with an extended lateral approach, to enable access to the bone. He then said that “you then take all the bone … and you build this jigsaw puzzle back”[119] and secure it with the placement of a plate and screws.
[119]T393, L 27- 31
155 Mr Edwards explained the reasons for which he considered surgical treatment to be contraindicated throughout the period from 21 January to 5 February 2013. He noted that Mr Phelan had suffered extensive trauma, with Sanders Grade 3 and 4 fractures in his left and right ankles respectively. Further, Mr Edwards stated that there was also a severe soft-tissue injury, with a laceration to his right ankle and extensive blistering on his left ankle. Mr Edwards also noted that Mr Phelan was a smoker, which added to the risk of infection.
156 In his oral evidence, Mr Edwards said that he considered swelling in the ankle to be a contraindication to the performance of such surgery.[120]
[120]T391, L20-22
157 In his supplementary report, Mr Edwards noted that, as at February 2014, the non-union in Mr Phelan’s right hind foot was a result of the initial fracture. Mr Edwards then stated that non-union of the calcaneum is not uncommon and that the incidence of non-union is increased with smoking.
158 Further, Mr Edwards stated that, in the presentation of injuries such as those suffered by Mr Phelan, problems with the subtalar joints are common, notwithstanding that a patient might have undergone an open reduction and internal fixation of a calcaneal facture, and notwithstanding that surgical injuries of that type “not uncommonly give rise to the need for further surgery”.[121] Mr Edwards thought it probable that the absence of surgery had increased the chance of Mr Phelan requiring arthrodesis surgery. However, he remained of the view that it would not have been safe to operate on Mr Phelan during the time he was a patient at the defendant’s hospital.
[121]CB 126
159 In addition, Mr Edwards stated that, in his opinion, Mr Phelan’s subsequent need for ankle arthroscopy was not influenced one way or another by the absence or presence of surgical treatment for the initial calcaneum fracture.
160 In his oral evidence, Mr Edwards confirmed that he had considered the opinions contained in the reports and correspondence of Mr Cornoiu and Dr Saxby, and stated that such opinions did not cause him to alter his opinion in any way.
161 In cross-examination, Mr Edwards maintained that surgery was contraindicated, given Mr Phelan’s presentation. However, Mr Edwards stated that it would be good medical practice to inform a patient of the potential treatment options, including surgery, in circumstances where the doctor did not recommend that such surgery be performed.[122]
[122]T411, L31 to T412, L1–4
162 Mr Edwards also stated that while it is not ideal to perform bilateral calcaneum surgery, and it is not something he would undertake,[123] it is possible to perform surgery on both feet at the same time.[124] In the alternative, Mr Edwards said that a surgeon may perform surgery on one foot, and then perform surgery on the other foot a few days later.
[123]T415, L1–8
[124]T415, L1–3
My analysis of Mr Phelan’s negligence claim
163 None of the defendant’s doctors could recall what they had said to Mr Phelan, as none had an independent recollection of their attendance upon him. Instead, the defendant’s doctors gave evidence based upon their clinical notes and their usual practice.
164 In circumstances where the defendant’s doctors would attend upon a significant number of people each year, and where Mr Phelan’s complaints relate to treatment provided to him almost six years ago, I consider any such failure in their ability to recall Mr Phelan, or the conversations they had with him, to be both understandable and expected. I have therefore given weight to both the handwritten notes and the doctors’ evidence as to their usual practice.
165 Save for the detailed notes of Dr Crowley on the night of Mr Phelan’s admission to the defendant’s hospital, the other medical notes were very brief and provided little or no detail as to what was discussed with Mr Phelan. Given the manner in which a busy public hospital operates, I also consider this to be understandable. I accept the evidence of the defendant’s doctors that they would usually only record discussions which they considered to be out of the ordinary, for example, if a patient was asking lots of questions,[125] was impaired[126] or was assisted by another person.[127]
[125]CB 140
[126]T343, L9–16
[127]T325, L27–31 to T326, L1–4
166 The defendant referred me to two New South Wales decisions in which Supreme Court Judges had admitted into evidence, and given weight to, the usual practice of doctors, where the doctors could not recall what was said and done in consultations which had taken place many years ago.[128] I was informed by the defendant that there were no Victorian decisions directly on this point.[129]
[128]Coote v Kelly [2016] NSWSC 1447 and Neville v Lam (No 3) [2014] NSWSC 607
[129]T475, L18
167 In such circumstances, I was prepared to admit into evidence the usual practice of each of these doctors, in order to explain what was most likely said to Mr Phelan during the course of his admission to the defendant’s hospital, and during his attendances at the Orthopaedic Outpatient Clinic. None of the doctors were able to say unequivocally what they would have said to Mr Phelan, but each believed they would have advised Mr Phelan in accordance with their usual practice.
168 Mr Phelan himself was not certain as to the specifics of what he was and was not told. He said that he was only able to recall bits and pieces of the night of his admission. In the days following his admission, Mr Phelan said he could not recall the nature and extent of his discussions with the doctors. However, Mr Phelan was adamant that the option of surgical treatment for his calcaneal fractures was never discussed with him by any of the defendant’s doctors. Aside from surgery having been briefly mentioned by a nurse on the night he was first admitted, Mr Phelan said that it was not then mentioned again. Further, Mr Phelan alleged that, when he asked about the possibility of such surgery on 5 February 2013, he was expressly told that it was not an option.
169 As Mr Phelan makes the allegations that the defendant failed to properly advise him in relation to his treatment options, he bears the legal onus of proof. That is, he must satisfy me that it is more probable than not, that surgery was not discussed with him on the night of his admission, and that he was not informed that surgery was a treatment option in any of his subsequent discussions with doctors at the hospital.
170 I considered Mr Phelan to be a credible witness. As stated previously, I also considered the defendant’s doctors to be credible witnesses.
171 Mr Phelan did not call as a witness, the friend with whom he presented on the night of his hospital admission. In circumstances where Mr Phelan was self-represented, the defendant did not invite me to draw an adverse inference from Mr Phelan’s failure to call this witness. I will not therefore infer or even speculate as to what this friend may have said.
172 I am satisfied that, on 21 January 2013, it is probable that Dr Crowley advised Mr Phelan of the seriousness of his injuries, and the possible treatment options available to him, including surgery. Such a finding is consistent with Dr Crowley’s detailed handwritten notes from this attendance. Save for his excusable mistake in relation to Mr Phelan’s occupation, I am satisfied that Dr Crowley paid close attention in his attendance upon Mr Phelan. I accept Dr Crowley’s evidence that the importance of this first attendance was based upon his past experience with patients who had suffered calcaneal fractures. I considered Dr Crowley to have given credible evidence as to what his usual practice was in regards to the advice he provided to patients with such injuries. Such advice included the risks of surgery, the risk of infection to the metal, the risk of amputation, together with the importance of the patient ceasing to smoke.
173 As for Mr Phelan, the events of 21 January 2013 were life-changing. The fall itself was dramatic and caused him to suffer severe pain. In addition, Mr Phelan was intoxicated. Subsequent to the fall, he was given medications by ambulance and hospital staff which, together with the alcohol, may have caused Mr Phelan to become drowsy, such that he felt ‘off his head’.
174 The records refer to Mr Phelan being alert and orientated at 10.35pm. I accept Dr Crowley’s evidence that if he had any concerns as to Mr Phelan’s capacity to understand his advice, he would have noted such concerns in his clinical notes and returned the following day, to advise Mr Phelan again.
175 On the evidence, I am not satisfied that Mr Phelan’s cognitive state on 21 January 2013 was impaired to the extent that he was unable to understand the advice given to him. I am also satisfied that the defendant had no reason to either expect or believe Mr Phelan’s cognitive state to be so impaired.
176 Both Dr Crowley and Mr Phelan’s evidence regarding the night of 21 January 2013 are not necessarily inconsistent. Mr Phelan said that he now finds it difficult to recall the events of that night or what was said to him. I accept that Dr Crowley provided Mr Phelan with a great deal of information to take in. Given the nature of Mr Phelan’s injury and his presentation that night, I consider Mr Phelan’s evidence that he cannot recall the advice he was given that night, to be both credible and understandable.
177 As for the subsequent days in which Mr Phelan was an inpatient at the defendant’s hospital, the defendant’s evidence was to the effect that, in accordance with its usual practice at the ward rounds undertaken during this period, Mr Phelan would have been informed of the treatment options, including surgery, and the reasons for which non-operative treatment would have been recommended.
178 The contemporaneous medical records demonstrate that a discussion was had with Mr Phelan on 22 and 24 January 2013, during the ward rounds. The records of these attendances are very brief. However, Dr Crowley, Mr Love, Dr Edirisinghe and Dr Nambiar each said that such advice would have been provided to Mr Phelan at these bedside attendances, in accordance with the usual practice of both the doctors and the hospital.
179 Mr Phelan stated that such discussions did not occur. However, he also conceded that he had seen so many doctors over the years, that he does not have a memory of what was said to him at these ward round meetings.[130]
[130]T91, L3-12
180 The defendant admitted that it did not discuss the option of surgery with Mr Phelan at his outpatient attendances as, by that time, the non-surgical treatment plan was being pursued. Mr Love and Mr Edwards both acknowledged that it would be good medical practice to discuss treatment options with a patient at this time.[131] However, on the defendant’s evidence, the option of surgery had previously been discussed with Mr Phelan while he was an inpatient, and it was not therefore necessary for the defendant to advise Mr Phelan about the option of surgery on a repeated basis.
[131]T361, L19-27 and T411, L31 to T412, L1-4
181 In providing advice to patients, the law requires that a doctor exercise reasonable care and skill. As was noted by Kirby J in Chappell v Hart,[132] “in judging the performance of a health care or other professional, the law does not require perfection”.[133] With hindsight, it would indeed have been preferable for the doctors to have discussed the surgical treatment option with Mr Phelan at each of these two subsequent outpatient appointments, notwithstanding that it was not the recommended treatment option. However, in the event that the defendant’s doctors had followed their usual practice and informed Mr Phelan of the surgical treatment option while he was an inpatient, I do not consider the defendant to have been negligent in not repeating such information at each subsequent appointment.
[132](1998) 195 CLR 232
[133]Ibid, at [93]
182 Mr Phelan alleges that, at his final appointment on 5 February 2013, he enquired about the possibility of surgery, and that Dr Edirisinghe expressly denied that surgery was an option. This allegation was denied by Dr Edirisinghe. It is difficult to reconcile this discrepancy in circumstances where I considered both Mr Phelan and Dr Edirisinghe to be credible witnesses.
183 In determining this case, I am left with the contemporaneous medical records, the evidence of the defendant’s four doctors, and the evidence of Mr Phelan. While the defendant’s witnesses may outnumber Mr Phelan, their evidence was based upon their usual practice, while Mr Phelan’s was based upon his recollection as to what he believes occurred at that time. I am not satisfied the weight of the defendant’s evidence is greater than that of Mr Phelan’s. Nor am I satisfied Mr Phelan’s evidence is more probable. Instead, I consider the weight of the evidence in relation to whether or not Mr Phelan was subsequently advised as to the option of surgical treatment to be evenly balanced. In such circumstances, Mr Phelan has therefore failed to discharge his legal burden and must fail in his allegation that the defendant breached its duty of care to him.
184 In addition to his allegation that he was not informed of the option of surgical treatment, Mr Phelan also alleged that the defendant was negligent for not referring him to or suggesting that he seek an opinion from, a foot specialist.[134] For the reasons I have expressed above, I am not satisfied that the duty of care owed by the defendant to Mr Phelan extended to include such an obligation. Further, I am satisfied that the evidence establishes, on the balance of probabilities, that Mr Phelan’s condition was assessed at the daily orthopaedic trauma meetings and the weekly x-ray meetings, at which a number of orthopaedic specialists attended, including specialists experienced in the surgical treatment of foot injuries.
[134]CB 73
185 Had I been satisfied (which I am not) that Mr Phelan had established his allegation that he was not adequately informed of the surgical treatment option, it would have been necessary for me to then consider whether Mr Phelan had established that, had he been so informed:
(i) that he would have elected to undergo such surgery; and
(ii) that such surgery would have been performed on his right ankle within the limited timeframe available for the performance of that surgery; and
(iii) that the performance of the surgery during that timeframe would have resulted in Mr Phelan achieving a better outcome than the one which eventuated.
186 Mr Phelan gave evidence that he would have elected to undergo such surgery, if he had been informed that surgery was an option, as well as the associated risks and benefits. He also said that if he had been properly advised, he would have immediately ceased smoking. Mr Phelan’s evidence in this respect was not challenged by the defendant. Instead, the defendant challenged this aspect of his claim on the basis that Mr Phelan has failed to prove that such surgery would in fact have been performed, and that had it been performed, the result would have been different.
187 There is no issue as to the defendant’s willingness to perform the surgery, and Mr Phelan did not allege that its failure to do so was negligent. Instead, Mr Phelan alleged that, had he been advised by the defendant that surgical treatment was an option, he would have sought a second opinion at an earlier time and then elected to undergo the surgery.
188 In relation to this issue, the defendant highlighted Mr Cornoiu’s decision not to perform surgery on Mr Phelan’s right ankle.
189 It was put on behalf of the defendant that the manner in which Mr Cornoiu managed Mr Phelan’s presentation speaks persuasively on this issue, in circumstances where Mr Cornoiu examined Mr Phelan within four weeks of the initial fall, and where he considered it appropriate to manage Mr Phelan’s injuries by:
(i) undertaking surgery on Mr Phelan’s left ankle;
(ii) undertaking conservative and non-surgical management of Mr Phelan’s right ankle.
190 Mr Phelan gave evidence that Mr Cornoiu had informed him that it was “too late” to perform surgery on the right ankle. However, such an assertion was hearsay and, significantly, was not contained within any of Mr Cornoiu’s clinical records, his medical reports or his correspondence with Mr Phelan.
191 In his closing submission, Mr Phelan focused on Mr Cornoiu’s comment that he would have performed surgery on Mr Phelan, had he seen him “acutely”. However, Mr Cornoiu does not state what he meant by “acutely”. Mr Phelan invited me to interpret Mr Cornoiu’s comment in the form of a statement that, had Mr Phelan presented to him at a time earlier than four weeks post incident, Mr Cornoiu would have elected to manage the right ankle injury by way of surgery.
192 I do not find that position to be persuasive in circumstances where the timing of Mr Phelan’s presentation to Mr Cornoiu had no effect upon Mr Cornoiu’s decision to undertake surgery upon Mr Phelan’s left ankle.
193 In circumstances where the injuries to Mr Phelan’s right and left ankle occurred at the same time, it therefore follows, in my opinion, that Mr Phelan presented to Mr Cornoiu during the window in which surgical management of Mr Phelan’s right ankle was not precluded by reason of the timing of that presentation.
194 At the time Mr Cornoiu saw Mr Phelan, four weeks after the fall, Mr Phelan’s right ankle was still more swollen than the left, and was classified as Sanders Grade 4, in comparison to the left ankle, which was classified as Sanders Grade 3.
195 While there is no specific evidence as to the reason for the decision by Mr Cornoiu to operate on Mr Phelan’s left foot, but not on his right foot, it seems to me that the likelihood of that decision involved the increased level of swelling present in the right foot as compared to the left, together with the right ankle being a Sanders 4 fracture, as compared to the left ankle being a Sanders 3.
196 I consider a fair reading of Mr Cornoiu’s records, reports and correspondence to suggest that Mr Cornoiu did not perform surgery on Mr Phelan’s right ankle on the basis that he considered such surgery to be contraindicated by reason of the overall condition of the right ankle and not by reason of the timing of Mr Phelan’s presentation.
197 Therefore, even if Mr Phelan had satisfied me that the defendant had breached its duty to him in respect of adequately informing him of the possibility of surgical treatment on his right calcaneal fracture, I am not satisfied that surgery would have been performed on Mr Phelan’s right ankle, had he presented to Mr Cornoiu at an earlier time.
198 However, if I am wrong in respect of such a finding, the final matter of which Mr Phelan would need to satisfy me is that, had he undergone surgery to treat his right calcaneal fracture in a timely manner, he would have achieved a successful, or at least better, outcome in his right foot, than he currently suffers.
199 In considering the opinions of Mr Cornoiu, Dr Saxby and Mr Edwards, I am not satisfied that the chance Mr Phelan has lost is more than a mere possibility. Mr Cornoiu refers at one stage to not being absolute,[135] and Dr Saxby refers to not being certain.[136] I consider that a fair reading of those three expert opinions, as a whole, to the effect that there is speculation as to whether or not a better outcome is achieved by surgical, as compared to non-surgical treatment. Further, in circumstances where there are risks associated with surgery for a patient who is a smoker and who has significant swelling, the prospect of Mr Phelan having achieved a better outcome, had right ankle surgery been performed in the relevant time period, is mere speculation. None of the doctors say that, on balance, it is probable that Mr Phelan would have achieved a better outcome if surgery had been performed within the relevant time period.
[135]CB 703
[136]CB 705
200 Mr Phelan’s understandable frustration is that Mr Cornoiu performed surgery on his left ankle, from which he has achieved an excellent result. However, that does not necessarily mean that the same result would have been achieved on his right ankle. Further, there are differences between the pathology in the right ankle as compared to the left, which I consider the most probable explanation behind Mr Cornoiu’s decision not to perform surgery on the right ankle.
201 Even if I was satisfied that the defendant did not adequately inform Mr Phelan of the existence of a surgical treatment option (which, for the reasons explained earlier, I am not), I am not satisfied:
a) that such surgery would have been performed on Mr Phelan’s right ankle within the limited timeframe available for the performance of that surgery; and
b) that the performance of such surgery, within the relevant timeframe, would have, on balance, resulted in Mr Phelan achieving a better outcome than the one which eventuated.
202 Despite my sympathy for Mr Phelan’s predicament, it is necessary for me to consider this case on the evidence. For the reasons given above, I am not satisfied that Mr Phelan has proven his case.
Conclusion
203 It follows:
(i) I am not satisfied that Mr Phelan has established the presence of any breach of duty on behalf of the defendant which was a cause of injury to him, and for that reason his claim must fail.
(ii) In view of the above, it is not necessary for me to consider Mr Phelan’s claim in respect of damages.
204 I will hear the defendant as to the orders it now seeks having regard to the findings I have made.
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