Reid v Basson
[2000] QSC 310
•8/09/2000
SUPREME COURT OF QUEENSLAND
CITATION: Reid v Basson [2000] QSC 310
PARTIES: GAVIN JOHN REID
(Plaintiff)
v
DOCTOR ALLEN OWEN BASSON
(Defendant)
FILE NO: Plaint 8/98
DIVISION: Trial Division
DELIVERED ON: 8 September 2000
DELIVERED AT: Brisbane
HEARING DATES: 4, 5 September 2000 (Longreach)
JUDGE: Dutney J
ORDER:Judgment for the plaintiff against the defendant in the sum of $502,769.62
CATCHWORDS: MEDICAL NEGLIGENCE – LIABILITY AND QUANTUM – plaintiff underwent a medical procedure to have a lymph node removed from neck – plaintiff’s accessory, greater auricular and lesser occipital nerves were severed during procedure - whether Doctor exercised the standard of care required of him by the law in performing procedure – whether Doctor failed to warn of a material risk inherent in the proposed procedure – plaintiff left with 10% cosmetic disability and 81-95% disability of right arm as a result
Rogers v Whitaker (1992) 175 CLR 479, discussed
F v R (1983) 33 SASR 189, discussed
Jones v Dunkel (1959) 101 CLR 298, considered
Thompson v Priddles Transport (Rockhampton 25 of 1997 – 28 November 1997 – unreported), considered
COUNSEL:R Trotter for the plaintiff
G Egan for the defendant
SOLICITORS: Wattling Roche for the plaintiff
Hunt & Hunt for the defendant
DUTNEY, J: The plaintiff underwent surgery at the Barcaldine Hospital for removal of a lymph gland in his neck on 22 July 1997. The surgery was carried out by Dr Basson (the defendant). The plaintiff had first noticed a pimple sized lump in his neck underneath the skin. Within three weeks it had grown to about half the size of a golf ball. The plaintiff consulted his G.P. in Tambo who referred him to Dr Basson in Alpha. The plaintiff saw Dr Basson in Alpha on a Friday which would have been 18 July 1997. Dr Basson recommended removal and suggested removal in three weeks at Blackall Hospital. Over the weekend Dr Basson contacted the plaintiff’s mother to bring the surgery forward to the following Tuesday in Barcaldine.
The reason given by Dr Basson to the plaintiff for bringing forward the surgery was, according to the plaintiff, that he was a little bit concerned, although the chances of it being cancerous were small because of the speed at which it had grown.
Dr Basson informed the plaintiff that the operation was pretty straight forward and there was nothing to be worried about. He said it would take about an hour and afterwards there would be 6-8 stitches and a drain in the wound. The plaintiff says that nothing was said in the nature of warning of possible side effects or dangers (T10.7). Dr Basson did not give evidence but confirmed the lack of warning by his answer to interrogatory 1(a) (exhibit 24). I find that no warning was given.
The surgery to which the plaintiff was to be subjected was not without risk. Exhibit 2 shows that beneath the skin above the lymph node are three nerves: the accessory nerve, the lesser occipital nerve and the greater auricular nerve. The accessory nerve is also known as the 11th cranial nerve. For present purposes the greater auricular and lesser occipital nerves supply feeling to the region below the ear and around the posterior aspect of the ear. The accessory nerve operates the trapezius muscle to the shoulder.
Dr O’Rourke, a surgeon and a long time member of the Court of Examiners of the Royal Australasian College of Surgeons, gave evidence of the procedures which should be adopted to prevent damage to the nerves during surgery on the lymph node. In his report dated 4 November 1998 (exhibit 4) he wrote at page 3:
“…..I believe that whenever a surgeon operates in the posterior triangle of the neck to remove a lymph node he must assume that the lymph node is directly and closely related to the accessory nerve…..In all cases [the accessory nerve] should be identified and preserved as a standard procedure if biopsying a lymph node for diagnostic purposes”.
At the point of the plaintiff’s surgery the three nerves are only about half an inch apart (T72.34). At T73.19, Dr O’Rourke said:
“And, when a – when a surgeon operates on that part of the neck, what standards do you expect to be exercised? - - Well, one knows or - that the - the most dangerous structure to divide is the – the cranial nerve and usually the standard procedure is to make a surface marking on the skin prior to making your incision and, once you get through the skin and fat, you go looking for the nerve before you do anything else. So the preservation of the nerve is paramount. I – if the greater auricular or lesser occipital nerves are in some ways hindering the exposure they can be divided, but preferably not”.
Dr O’Rourke reinforced the importance of first identifying the accessory nerve in exhibit 7.
The standard of care owed by persons possessing special skills is that of the “ordinary skilled person exercising and professing to have that special skill [in question]”: Rogers v Whitaker (1992) 175 CLR 479 at 487. A statement of principle approved by the majority in Rogers v Whitaker has been expressed by King CJ in F v R (1983) 33 SASR 189 at 194 as follows:
“The ultimate question, however is not whether the defendant’s conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community”.
Here, in the course of the operation on the plaintiff, Dr Basson divided all three nerves to which I have referred. While this is not admitted on the pleadings there is no doubt that this is what occurred. Dr Duke, an orthopaedic surgeon who attempted unsuccessfully to rejoin the accessory nerve went in through the scar from Dr Basson’s operation and himself observed that all three nerves had been severed (exhibit 3, exhibit 19). No explanation has been proffered as to how a competent surgeon could have severed all three nerves if acting with the standard of reasonable care demanded by the law. Because Dr Basson chose not to give evidence himself I am entitled to and do assume that his evidence would not have been of assistance to his defence: Jones v Dunkel (1959) 101 CLR 298 at 312, 319. There was, in my view, sufficient in the evidence of Dr O’Rourke and Dr Duke to require some explanation. He did not follow the procedure described by Dr O’Rourke (See [5] and [6] above). The defendant plainly did not identify and isolate the accessory nerve, at least before he cut it, and he consented to the receipt in evidence of the memorandum (exhibit 19) in which Dr Duke’s opinion is that “a surgeon, exercising ordinary skill and diligence would not have severed the three nerves”.
In the circumstances I find that the defendant, Dr Basson, did not exercise the standard of reasonable care demanded by the law in the conduct of the operation.
Whether or not Dr Basson exercised proper skill in the performance of the operation he ought to have properly informed the plaintiff of the risk of nerve damage from the operation. It is now established that a medical practitioner has a duty to warn a patient of a material risk inherent in the proposed procedure: Rogers v Whitaker (supra) at 490. In this case, the plaintiff gave evidence which I accept, that had he been made aware of the risk of nerve damage he would not have undergone the operation by Dr Basson at Barcaldine but would have gone to Brisbane and been operated on at the Holy Spirit hospital (T11.45-.48). Rather than give the appropriate information regarding risk Dr Basson in this case assured the plaintiff that the operation was straightforward and there was nothing to worry about.
I find that independently of the manner in which the operation was carried out Dr Basson negligently misinformed or at least failed to properly inform the plaintiff of the risks associated with the operation. Had he done so the plaintiff would not have had Dr Basson perform the operation and the failure to warn is thus causative of the loss. Accordingly, I am satisfied that the plaintiff is entitled to a judgment against the defendant on either or both the grounds alleged in paragraphs 8(a) and 8(b) of the further amended statement of claim.
Quantum
As a consequence of the severing of the lesser occipital nerve and greater auricular nerve the plaintiff has suffered numbness and loss of sensation on the side of his face and neck. The plaintiff noticed this immediately following the operation. He drew this to the attention of the defendant who told him that he had had to cut some nerves but they should join back up (T10.28).
The numbness never improved and resulted initially in some injuries while shaving but the plaintiff is now generally able to cope with the symptoms which have never improved. The symptoms are a nuisance rather than a disability.
The more serious problem relates to the severing of the accessory nerve. For six months after the operation, apart from the numbness, the plaintiff’s recovery was apparently uneventful. About six months after the operation the plaintiff was fixing the differential in his father’s scraper when a co-worker remarked that one of the plaintiff’s shoulders was smaller than the other. The plaintiff checked later in a mirror and confirmed that this was in fact the case. Before this the plaintiff had had some soreness or stiffness in his right shoulder but had thought nothing of it.
It should be noted that the plaintiff was only 24 years of age at trial having been born on 16 November 1975 and was only 21 at the time of the operation.
I found the plaintiff to be an impressive witness. He was frank and open with a tendency to stoicism rather than exaggeration. I had little trouble in accepting his complaints as genuine.
Before the operation the plaintiff was very active. He played football, he dabbled in rough riding, usually with friends after work although he did a few rodeos. He water skied, swam, played tennis and lifted weights. The plaintiff ceased the rough riding and football about a year before the operation (T53). The plaintiff has lived in the country, mainly in the south and central west for all but a very short period of his life. The plaintiff’s father has an earthmoving business in Tambo which operates two scrapers and a loader although the loader is not currently working. The plaintiff had acquired operators tickets for a scraper, dozer, front-end loader, grader and a roller before the operation. Since the operation he has obtained a licence to drive road trains.
After the plaintiff noticed the difference in his shoulders he consulted Dr Peter McMeniman who had successfully repaired his right anterior cruciate ligament in about late 1996. Dr McMeniman referred the plaintiff to Dr Duke who carried out a further operation to try to rejoin the accessory nerve. It was unsuccessful. The plaintiff was off work as a result of this operation for 2 weeks and suffered considerable neck pain for some time.
At the present time the plaintiff has problems sleeping on his right side because of the shoulder problem and wakes about three times a night. He relieves the pain with BEX which he takes before bed and a couple of times during the night (T12.20). The plaintiff has weakness as well as pain in his right arm aggravated by lifting, jarring or repetitive use. He is unable to lift his arm above his head without difficulty. He has difficulty with using a sledge hammer or crow bar. He has difficulty picking up children although at present he has none of his own. He has difficulty getting into and out of the cabs of large vehicles and suffers pain in old vehicles with heavy steering, poor suspension or stiff controls.
The plaintiff’s disability is visible and causes him embarrassment. He is ribbed by his friends about the wasting at the back of the right shoulder and the over development of the front. The plaintiff mostly regards this as good natured (T14). Dr O’Rourke described the physical appearance of the shoulder in these terms at T78:
“He’s got extremely ugly deformities of his neck and, if you take his shirt off, you – he has a gross bulging anterior. He couldn’t take his shirt off in public and, if you look from the back, he’s got what you call winging of the scapula and that’s a cosmetic disfigurement and that really is quite profound and, in a young man, quite significant”.
Dr O’Rourke assessed the cosmetic disability alone as 10% whole body.
Dr O’Rourke assesses the current disability as being 65%-75% of the right arm moving over the next 10 years to 81%-95% disability. Dr O’Rourke considers it probable that at some time, about 10 to 15 years into the future the plaintiff will require a right shoulder anthrodesis as the level of pain increases (exhibit 12). The rate of deterioration has apparently been rapid. By way of example, two years earlier (exhibit 3) Dr Duke had assessed the level of disability as 25% of the right arm. Dr Theile (exhibits 21,22) observed a deterioration from May 1999 to May 2000 from 20% to 25% assessed as a percentage of whole body function. Apart from the paralysis of the trapezius muscle caused by the severing of the accessory nerve the plaintiff has wasting of the other muscles around the right shoulder joint as a secondary consequence (exhibit 10).
The plaintiff’s position is made worse by his strong and entirely reasonable desire to remain in the country. As his capacity to cope with his disability declines he will have less and less opportunities open to him in country areas. While his duty to mitigate his economic loss may require him to abandon his chosen and preferred life style it is a factor which should be considered when looking at loss of amenity.
The plaintiff has an impressive work history for such a young man, particularly one from the south and central west where employment is often regarded as more difficult to obtain. Details of his work history are to be found in exhibits 18 and 15. He has never been on the dole.
All of the plaintiff’s post operation work has been either in operating heavy earthmoving equipment or as a station hand. Some of the earthmoving work has been for his father and some for his friend, Mr Rodman at Dans Earthmoving. Such employers undoubtedly make allowances for him. In driving earthmoving machinery the plaintiff has coped well despite suffering discomfort and fatigue as a consequence of the greater effort required. These difficulties are increasing and how long he will be able to continue coping with the driving is problematic. The plaintiff has not been able to cope as well with the other tasks expected of the operator of such machinery. Servicing the machine is difficult because of the problem of lifting 20 litre oil drums up to the engine. Changing of blades and cutters every 2 or 3 days is pretty much beyond the plaintiff. To drive machinery on the coal fields apparently requires an introductory medical and fitness test which the plaintiff simply couldn’t pass (T67.35). As a driver on the coal fields the plaintiff could have expected to earn between $80,000 and $100,000 per annum (T66-67). I find it quite likely that had the plaintiff remained fit this is the type of position the plaintiff would have attained. This would equate to a net income of between $1000 and $1200 per week. As he is now , the plaintiff is restricted to jobs where there is back up support (such as a fitter) for the jobs he cannot do. He has such a job at present with Lane’s Developments from which he earns an average of $730 net per week. He would be earning more but with his disability he is unable to work the same number of hours as the other operators. This job finishes in December and I suspect he will have trouble getting another as good with his limitations. The plaintiff’s experience in Mackay suggests he will not get a job at all if he discloses his disability. The increased earnings from his current job compared to average wages in the past is said to be because the plaintiff is becoming experienced and experienced operators of machinery command higher wages. The plaintiff is, after all, still only 24 and even at the age of 20 was netting $460 per week. Without the disability the plaintiff would currently be earning close to $800 net per week and I am satisfied would quickly be up around the $1000 net per week level. There is no reason why a plant operator cannot work a full life to age 65. Mr Rodman who gave evidence currently employs a 62 year old driver who shows no signs of retiring.
The plaintiff’s preferred long term work, but for the disability, was as a station hand with progression ultimately to manager. This would have earned him in the order of $100,000 plus 11% superannuation (T81): see also the report of Vincents Chartered Accountants (exhibit 14).
I do not propose to set out all of the evidence which satisfies me that work as a station hand and progression up that ladder is no longer a realistic goal. It is sufficient to refer to the evidence of Mr Mayne, a long time friend who employed the plaintiff from January 1999 for about 15 months. Of his capacity at fencing Mr Mayne said of the plaintiff (T98.18):
“How about fencing? Did – was he able to discharge his duties doing the fencing work? - - Yeah, he still could. He still could get by but he just had trouble with the driving, like steel pegs. You have to lift the donger up above the steel peg which is five foot six and that was a – he could still do it but that was straining and – so we normally – we did a stretch of about seven kilometres here while he was here and the other two men practically had to do the work for him, which he didn’t like at all”.
Of stock work Mr Mayne said (T98.28):
“……Yeah, stock work, all types of stock work you have to be – like sometimes you have to be fairly agile in the yard, like you have to climb the fence every now and then or jump out of the road or you have to grab a gate, just on impulse, and open it and sort of loading cattle, you know, its – you have to climb all over a double decker crate. There’s ladders and what not. Well, he was – he could climb up and that. There was no problem there, but he was always hesitant, you know, and he was always hesitant in the yards as well, because he was like making another grab or make a safe grab with his disabled arm, so – and in the end it was sort of a little bit dangerous and I just used to do it and I knew that played a – yeah, it didn’t go down well with him, no”.
Mr Mayne summed up the position this way (T98.41):
“Would you employ him again? - - Yes, I would. As a – as a friend, yes I would. I’d help him out, but if – if he was someone else and I knew – and I knew he was – his disability, no, I’m afraid I couldn’t – I couldn’t put someone on like that, because of – yeah, it’s just – it’s dangerous for other people and its just not good to have someone like that in a camp, because usually nine times out of 10 someone has to usually do the work for them and that – that just disrupts everything”.
I accept Mr Mayne generally. While he gave evidence by telephone and I did not see him, his narrative was compelling. His manner of speech impressed me as a matter of fact, straight forward and honest account of his observations and impressions of the plaintiff. My one reservation was his indication that he would re-employ the plaintiff because he was a friend. That seemed an emotional rather than a pragmatic response. I doubt such employment would last. My impression of the plaintiff was that he could not accept being carried and this is inconsistent with his explanation for leaving at T23.40-.44. I could not imagine the relationship between the plaintiff and Mr Mayne surviving “charity” for very long.
The plaintiff plainly has and will continue to have a residual earning capacity. I do not think he will survive the heavy work he is doing for much more than a year or two. He is now close to unemployable in that field. I consider that despite no current experience, his personality and presentation is such that he could succeed at being a salesman of some sort or in another sedentary occupation. The plaintiff has said he would try selling if forced to. Doing the best I can, in a largely speculative area I consider his reduction in earning capacity to be about $450 per week. He is not quite 25 years old. To age 65 at 5% discount this comes to $394,200. This sum should be discounted by 15% to allow for contingencies. The result is $335,070. The plaintiff’s stoicism is both a plus and a minus in this exercise. While he has a capacity to continue working with his disabilities that others might lack, he is also less likely to be affected by the vissisitudes of life that might reduce the overall work record of others.
I allow superannuation lost at the current statutory rate of 8% in the sum of $26,805.60.
The parties are agreed that I should allow $5,588 for past economic loss. Interest on that sum for 3.2 years at 6% totals $1072.90. Special damages are agreed at $5,108.14. $1,713.25 of that is refundable to the Health Insurance Commission. I allow interest on the balance at 6% for 3.2 years, totalling $651.82. I allow lost superannuation at 7% on past economic loss in the amount of $391.16.
There is likely to be some need for future care. Ms Stevenson assesses the need at about 1.6 hours per week, which I accept. I see no prospect of the need for it decreasing in the future. The plaintiff submits that the allowance should be delayed for three years. I accept this on the evidence of the plaintiff attempting to cope with his disabilities himself at present. As he ages and his level of disability increases he will find this increasingly difficult. I therefore allow 1.6 hours per week for 50 years delayed by 3 years at 3% in the sum of $26,162.
Dr O’Rourke considers an arthrodesis of the plaintiff’s shoulder is likely. It might be as soon as 10 years or even less. The present cost of such an operation is assessed at $8,000, which I allow. The plaintiff also claims $12 per week for future medication. He takes about a box of BEX a week at $2 per box. He doesn’t appear to take anything else. He may or may not need medication if he has the arthrodesis. Overall, I allow $2,000.
Prior to his operation the plaintiff was fit and active. He was young, with a promising future to look forward to. I have described his prognosis above. He now faces chronic pain, perhaps or perhaps not relieved by an arthrodesis in future. He has suffered and will continue to suffer frustration at his inability to do things that would once have been easy for him. His chosen life style in small, country communities will probably not be open. In the short term his working life is likely to depend on the charity of family and friends in giving him work he is not really fit to do. This is a great hardship for a proud and independent young man. He has been badly disfigured which is again a great loss for a single, healthy, young person. His cosmetic disability is 10% of the whole person. On top of a functional disability increasing to up to 95% of his right arm. He is likely to suffer over use injuries in his left arm and shoulder as a consequence of having to favour that side (T116.13-.30). I consider that an appropriate sum for general damages is $90,000. In reaching this figure I have had regard to the decision of Demack J in Thompson v Priddles Transport (Rockhampton 25 of 1997 – 28 November 1997). The overall disabilities in that case were similar to this in percentage terms and the attitude of the plaintiff in that case and this to return to as nearly as normal life as possible are similar. Mr Reid is slightly younger. I allow interest on $30,000 at 2% for 3.2 years in the amount of $1,920.
Overall I assess the following damages:
Pain, suffering and loss of amenity 90,000.00
Interest1,920.00
Special damages 5,108.14
Interest651.82
Past economic loss 5,588.00
Interest1,072.90
Past superannuation 391.16
Future economic loss 335,070.00
Future superannuation 26,805.60
Future care 26,162.00
Future medical expenses 10,000.00
Total:502,769.62
I give judgment for the plaintiff against the defendant in the sum of $502,769.62. I will hear argument on costs.
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