Rooke v Minister for Health - [2008] WADC 6

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ROOKE -v- MINISTER FOR HEALTH & ORS [2008] WADC 6

CORAM: DEANE DCJ

HEARD: 15-18 AUGUST & 8 DECEMBER 2006

DELIVERED : 18 JANUARY 2008

FILE NO/S: CIV 2907 of 2002

BETWEEN: MICHAEL ANTHONY ROOKE
Plaintiff
AND
MINISTER FOR HEALTH
First Defendant
ROBERT FITZPATRICK
Second Defendant
IAN TIMMS
Third Defendant
FIONA WHELAN
Fourth Defendant

Catchwords:

Medical negligence - 57yearold bricklayer suffering from Dupuytren's contracture - Alleged failure to warn of risk of postoperative complications - Causation - Claim for damages

Legislation:

Nil

Result:

Action against first, second third and fourth defendants dismissed

Representation:

Counsel:

Plaintiff:     Mr B L Nugawela
First Defendant              :     Mr P D Quinlan
Second Defendant         :     Mr P D Quinlan
Third Defendant            :     Mr P D Quinlan
Fourth Defendant           :     Mr P D Quinlan

Solicitors:

Plaintiff:     Vertannes Georgiou
First Defendant              :     Srdarov Richards Burton (now SRB)
Second Defendant         :     Srdarov Richards Burton (now SRB)
Third Defendant            :     Srdarov Richards Burton (now SRB)
Fourth Defendant           :     Srdarov Richards Burton (now SRB)

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

Chappel v Hart (1998) 195 CLR 232
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434
Sheppard v Swan [2004] WASCA 215

DEANE DCJ:

The pleadings and issues

The plaintiff, Mr Rooke, brings an action for damages in relation to treatment he received as a patient at Fremantle Hospital ("the Hospital") in May and June 2001. The plaintiff had been referred to the Hospital by his general practitioner for treatment of bilateral Dupuytren's contracture of his hands, his left hand being more significantly affected than his right. The disease involves a thickening of the fascia (fibrous connective tissue) which is a progressive condition for which there is no known conservative treatment. The treatment available for the condition is surgery which in rare and extreme cases involves amputation of the fingers.
The first defendant, the Minister for Health, is responsible for the administration of the Hospital and acts and omissions of hospital staff. The second defendant, Mr Robert Fitzpatrick, was and is a consultant plastic and reconstructive surgeon. At the relevant time the third defendant, Dr Ian Timms was a Fellow of the Royal College of Surgeons and a surgical registrar in plastic surgery at the Hospital. He is now a Fellow of the Royal Australasian College of Surgeons having completed his training. Dr Fiona Whelan, the fourth defendant, in June 2001 was a resident medical officer at the Hospital who had at the time of the plaintiff's treatment recently commenced a rotation in the plastics unit.
It is common ground that on 26 June 2001 the plaintiff underwent a fasciectomy and skin graft to his left palm which was carried out by Dr Timms with Dr Whelan assisting. There is no argument that on 21 May 2001 at a consultation between the plaintiff and Mr Fitzpatrick, at the plastic surgery clinic of the Hospital a decision was made to undertake the surgery. The plaintiff was placed on a waiting list for the surgery and advised his general practitioner of the situation. It is not suggested that in carrying out the surgery Dr Timms behaved in an unreasonable manner or there was any error in the course of the surgery being carried out. Allegations of this nature against the third defendant were withdrawn on the third day of the trial. Rather, it is asserted on behalf of the plaintiff that the defendants owed the plaintiff a duty of care to warn and/or advise him prior to the operation of the risk of post‑operative complications. It is pleaded that had the plaintiff been so warned or advised he would not have undergone the operation.
It is the defendants' case that on 21 May 2001 in the outpatients' clinic at the Hospital the second defendant verbally advised the plaintiff to the effect that:
(1)he would require a full thickness graft to his hand;
(2)grafts do not always take and if the graft did not take, it would need to be cleaned up and then either regrafted with a split skin graft or another full thickness graft;
(3)there was always the chance of infection;
(4)if there is any blood under the graft, it will not take;
(5)with any Dupuytren's contracture release there is a risk that the function of the hand will be no better and if the hand does not heal properly, the stiffness may be the same as before but that it is usually better;
(6)that Dupuytren's disease usually progresses in a hand which has undergone surgery.
The defendants therefore deny the plaintiff's allegation that there was a failure to warn him of the risk of post‑operative complications of the surgery, in particular the worsening or re‑occurrence of the plaintiff's Dupuytren's contracture as well as persistent sensitivity on the palm of his left hand which was the site of the skin graft procedure. Although there is no dispute that the decision to proceed with the corrective surgery relevant to the plaintiff's condition was made on 21 May 2001 the plaintiff asserts that this was only an occasion rather than the occasion for the provision of medical advice and warnings and says that there was an ongoing obligation or duty to issue such advice or warnings and that the second defendant in any event failed to discharge that duty on 21 May 2001. Although the plaintiff was attending the Hospital for surgery on 26 June 2001 rather than embarking upon a decision making process as to treatment, nonetheless it is argued on his behalf that if he had been provided with proper warnings on 26 June this would have been an occasion upon which the plaintiff could have withdrawn from treatment. The plaintiff asserts in any event that even if the duty to warn arose entirely or principally on 21 May 2001 then it was not discharged in fact or law on that date.
Essentially the plaintiff claims that at all material times there was a continuing duty on the second, third and fourth defendants to warn him of the possibility that the plaintiff may suffer continuing palmar hypersensitivity following surgery which would or may prevent him continuing to work as a bricklayer and that had such a warning or warnings been issued the plaintiff would not have undergone the surgical procedure.
In relation to the issue of causation the defendants argue that a number of issues arise; being whether the plaintiff would have had the surgery in any event, whether the risk for which the warning or lack thereof is related in a physical sense to the injury the subject of the plaintiff's claim and whether the plaintiff must prove that the injury for which damages are claimed in fact arose out of the surgery. This last aspect of the matter is said to be relevant to the question of the extent of any damage which the plaintiff is alleged to have suffered. The defendants submit that as far as the issue of damages are concerned in this matter, one must necessarily consider issues relating to the effect of the plaintiff's progressive condition on him in any event, including the period prior to June 2001. Counsel for the plaintiff argues that what he describes as this issue of disentanglement is not pleaded on behalf of the defendants, who in any event would bear the burden of proof in this regard.
The second defendant is alleged to have been negligent in failing to warn the plaintiff of the risk of post‑operative complications such as a recurrence or worsening of his condition and/or continuing sensitivity to the skin graft site on the plaintiff's left palm and further, wrongly advising the plaintiff that he would only be "off work for four to six weeks" following the surgery. The plaintiff's loss encompassing injury and damages is said to have been caused or contributed to by the negligence of the third and/or fourth defendants, for whom the first defendant is directly or vicariously responsible. The third and/or fourth defendants are said to have been negligent in that one or both of them failed to warn the plaintiff of post‑operative complications such as a recurrence or worsening or his condition and/or continuing sensitivity to the skin graft site on his left palm.
The specific injuries allegedly suffered by the plaintiff are:
(1)continued sensitivity to his left palm at the site of the skin graft;
(2)worsening of the plaintiff's condition;
(3)a recurrence or occurrences of the plaintiff's condition;
(4)stress and/or anxiety and/or other psychologist disturbances.
Further, the plaintiff claims damages in relation an alleged restriction in his socio‑domestic activities including;
(1)being unable to or having difficulty in carrying out general manual tasks around the home such as gardening;
(2)difficulty in participating as a volunteer in the State Emergency Service or Fire Brigade;
(3)difficulty and/or inability to carry out woodworking;
(4)difficulty carrying shopping bags;
(5)difficulty driving for long periods.
As a result the plaintiff claims he has needed and will continue to require the gratuitous assistance of friends and family members in the performance of his daily personal chores. Damages are claimed for past and future loss of earning capacity because it is pleaded that the plaintiff is no longer able to work as or is significantly restricted in working as a bricklayer.

The evidence

The plaintiff was born in England on 22 April 1944 so at time of trial he was 62 years of age. After leaving school at 16 he undertook a five year apprenticeship as a moulder or foundry worker which he completed before working in that occupation for approximately one year. He then worked in a milk round for a further year and returned to factory work for another two years before emigrating to Australia when he was 23 years old in 1967. At that time he was married to his current wife Maureen Rooke and they had one child. After arriving in Australia the plaintiff's son Paul Rooke, who is now 38 years of age was born. Following that another daughter was born, completing the plaintiff's family. In approximately 1971 the plaintiff ceased working as a moulder and undertook a government funded bricklaying course for approximately 18 months. He received a training allowance during that period of time and his wife supplemented the family income by working full‑time. Not long after he completed the course the plaintiff became a self‑employed bricklayer working initially in the business of M.A. & M.D. Rooke, which subsequently became S J Bricklayers. It is in this occupation which is concerned largely with the building of residential houses for a variety of building companies that the plaintiff has been engaged since 1975. In the past or initially he worked with another bricklayer with whom he shared the work and split the wages paid, given that according to the plaintiff, it is not the type of industry where a bricklayer actually tenders for a particular job. Eventually the plaintiff's son joined him in the business, and together he and his son would endeavour to work a seven hour day for a five day week. Although it was difficult for the plaintiff to say with precision how many bricks he would lay per day he estimated that it was on average 400 to 500.
In addition to his work as a bricklayer the plaintiff, both prior to and after his surgery in June 2001, has been actively engaged in a range of volunteer work for both the State Emergency Service ("the SES") and the Fire and Emergency Services Association ("FESA"). He lives in Mundijong where he is a member of the Voluntary Fire Brigade, although following his surgery his role in that organisation became less one of attending fires and more one involving public relations work. His work for the SES, which he has carried out for 17 years, is heavily connected with handling tracker dogs and he is a section leader of the tracker dogs. His work through SES increased after June 2001 because the plaintiff was then in receipt of a disability pension due to difficulties with his left hand and therefore he had more time to devote to this particular interest.
Prior to developing symptoms and difficulties with his left hand and the condition of Dupuytren's contracture or Dupuytren's disease as it is more commonly and generally called, the plaintiff gave evidence that his health was generally good. Further, he said prior to the surgery on 26 June 2001 he did not have swelling in his hand after laying bricks nor did he have pain in the joints of his fingers. He recalled one incident prior to June 2002 when he broke his ankle after jumping from an SES vehicle during training. The ankle was put in plaster which was subsequently removed but the healing process was not complete and so the plaintiff was given the option of a pin being placed in the ankle. He decided against that option when he was warned of possible complications which might follow such treatment.
Relevant to this action in early 2000 the plaintiff noticed he was experiencing difficulty placing both his left and right hands flat on surfaces such as a table. Even when he attempted to push the palm of his hand flat to the table top there was still a gap about the width of a pencil between the palm and flat surface. When he raised this issue with his 84‑year‑old father, who had experienced similar difficulties, he was told that he would be well advised to have surgery to correct the problem as that was what his father had done.
It was the plaintiff's recollection that he attended his general practitioner Dr Buters in about September 2000 for an unrelated matter and during the course of that consultation the plaintiff said he raised the issue of the difficulties he was experiencing with his hands. It would appear that the plaintiff's primary concern related to his left rather than his right hand, given that it was his left hand that he used to pick up and hold bricks whilst bricklaying. Later in cross‑examination the plaintiff said he could not remember the exact reason why he attended Dr Buters for that consultation, although certainly at about that time or at that consultation he believed that he also had a sun spot check. However it was as a result of that consultation that the plaintiff learned he had Dupuytren's contracture and his recollection was Dr Buters told him not that the condition, which was particularly evident in the plaintiff's left hand, would get worse but rather that it could get worse. This recollection is not in accordance with that of Dr Buters who gave evidence that in his view the plaintiff's condition would have progressed had he not sought corrective surgery. As a result a decision was made that Dr Buters would refer the plaintiff to Fremantle Hospital. This referral was to the plastic surgery clinic of the Hospital and not to Mr Fitzpatrick personally, as the plaintiff did not have private health insurance. There in the out‑patients clinic Mr Fitzpatrick would review the plaintiff as he was in the plaintiff's words an expert in the area, whereas Dr Buters was not. The plaintiff conceded in cross‑examination that whilst the situation was to a degree fluid after leaving Dr Buters surgery following that consultation, nonetheless the plaintiff was of the opinion he was attending Fremantle Hospital for the purposes of surgery being undertaken. The plaintiff could not recall an appointment at the clinic with Dr Summerville‑Briggs in February 2001 being cancelled and another appointment re‑scheduled for May that year, which is when he saw Mr Fitzpatrick. During the intervening period the condition with his left hand had not altered, and the plaintiff was still able to lay bricks at his usual rate.
On attending his appointment with Mr Fitzpatrick in May 2001 the plaintiff's evidence was the entire consultation lasted between 10 and 15 minutes. Mr Fitzpatrick examined both the plaintiff's hands for two to three minutes and indicated that he would operate first on the left hand and further that in the plaintiff's words he was "going to cut it in the palm" and that following surgery the plaintiff would be off work between four and six weeks. Further, Mr Fitzpatrick warned the plaintiff that as a result of a skin graft being taken from the plaintiff's groin and placed on the palm of the plaintiff's left hand there was the possibility of an infection developing at the graft site on the palm. The plaintiff claimed that this was the extent of any warnings that Mr Fitzpatrick gave him. The plaintiff's surgery was scheduled for 12 June but as he was engaged in a bricklaying job which he needed to complete at that time, the surgery was postponed.
On 8 June 2001 the plaintiff attended the Hospital for a pre‑admission check and spoke with a number of people regarding the forthcoming surgery. He said he spoke to an anaesthetist regarding the risks of anaesthetic, although he could not now recall what those risks were. Notwithstanding the risks he was content to undergo surgery.
After being admitted to hospital on 26 June the plaintiff put on a hospital gown and at about 1 pm was taken to an area he described as a children's ward where he waited for a short time before a person, he was unclear whether it was a male or a female, approached him with a form and said words to the effect of "we'll be in trouble if you don't sign it" and so the plaintiff did this before being taken into the operating theatre. That consent form is to be found on page 83 in Exhibit 1. The plaintiff could not recall if prior to signing the consent form he had taken any medication. He said he could not read the form as it was dim in the ward and he did not have his glasses. He agreed that signing the form was a formality that had been overlooked. He also conceded, though it was not read to him, that he knew it was a consent form relevant to treatment for a Dupuytren's contracture release and full thickness skin graft. He was not expecting this was an occasion whereby there was going to be further discussions regarding the decision to undergo surgery, as that had occurred approximately one month earlier. In the end result, however, the issue in this case does not concern consent to treatment in the sense that at all times the plaintiff was well aware of the nature of the treatment proposed.
In theatre he said he was probably introduced to a number of people present, but could not specifically recall meeting the third defendant. The plaintiff agreed however, that this was not an occasion for a full discussion regarding his decision to have surgery and any problems that might ensue in relation to undergoing surgery. He could not recall any doctor saying to him at this point that if there was blood vessel or nerve damage it would need to be repaired.
About a week later he returned to Fremantle Hospital for a review. The bandages were removed and a nurse removed some stitches before Mr Fitzpatrick briefly examined the left hand, commenting that it was healing quite well. He did not recall a review by the third and fourth defendants on 29 June. For the next two months the plaintiff attended physiotherapy but said he experienced difficulties because any form of exercise or therapy involving his left hand caused the fingers to swell and so he was administered an anti‑inflammatory to address this problem. As a result the plaintiff met with the physiotherapist and Mr Fitzpatrick following which the plaintiff was referred to a pain specialist, Dr Anderson. The plaintiff was also wearing splints or jigs on his left hand which were designed to enable him to straighten his fingers and also to assist him to form a fist. At night before going to sleep he would remove the splints and replace them with a special glove which he wore overnight to prevent swelling. Three months post‑surgery, despite ongoing physiotherapy, the plaintiff said he was unable to lay bricks as he could not use his left hand at all due to pain and swelling in it. At about this time, he had a consultation with Dr Anderson with a view to a nerve block being administered to deal with the pain that the plaintiff was experiencing. Based on information from Dr Anderson however, regarding possible side effects from the nerve block and given that the pain was not particularly intense, the plaintiff did not undergo the procedure.

He returned for further review by Mr Fitzpatrick but said he rejected an option of further surgery to relieve his problem. He was last reviewed by the second defendant on 2 March 2002 and since that time the plaintiff said he has had no further treatment or investigation. The palm of his left hand is so tender at the site of the skin graft he cannot bear for it to come into contact with any object. As a result, he finds it difficult to hold a fork in his left hand or accept change from persons serving him in shops. He said he is now unable to use a broom and can only use a wheelbarrow if it is half filled, for which activity he must wear a glove on his left hand. He now drives a motor vehicle in a different manner whereby he holds the steering wheel between his thumb and forefinger. Somewhat curiously however, he is now able to place the palm of his right hand flat on a table surface which he was unable to do previously.
The plaintiff said since his surgery he has carried out some bricklaying in September 2001 around his swimming pool involving building a small wall using ordinary house bricks but holding them in a pincer like grip. Adopting this procedure, he was able to lay about 20 bricks in two hours. Later he said overall he laid 400 to 500 bricks on this project over a six month period. The most bricks he laid in one day was between 100 and 150 before his left hand started to ache. He then said they were not bricks but pavers. He did not advise the medical practitioners he was consulting at the time that he was engaged in this activity.
He is now able to place the palm of his left hand flat on a table surface without pain but has had to cease carrying out woodwork on a lathe which he used to do for three or four hours a week prior to his surgery. He continues however to carry out some gardening and some housework mainly using his right hand. Whilst he wears a glove for protection of the graft site, this does not make it easier for him to carry out physical activities with the left hand. He is unable to make a full fist with his left hand.
The plaintiff spends approximately 15 hours a week now doing voluntary work for the SES but it is generally of an administrative nature and is particularly concerned with the role of tracker dogs in that organisation. He works on a voluntary basis for the local fire brigade for 4 or 5 hours a week, again generally in an administrative capacity. He has undertaken some seven courses of study and obtained certificates through the SES between June 2001 and November 2003, including two four‑wheel drive courses, the first of which he completed in November 2003.
He avoids using his left hand when vacuuming or cleaning windows and the purchase of a sit‑on lawnmower has allowed him to cut the lawns in his large garden which is an acre or an acre and a half in size. The vibrations from the lawnmower do however cause difficulties with his left hand. He estimates that his wife now spends two hours extra every week in the garden since his surgery in 2001.
The plaintiff said his current financial circumstances are difficult in that he has been in receipt of a disability pension since his surgery. Prior to the surgery, he believed from about the middle of 2000 there was a downturn in the work available in his industry and so the plaintiff was obliged to apply for Centrelink benefits to supplement his income. He was receiving a Newstart allowance at the time he completed a week long security officer course in 2001, as reflected in Exhibit 4, but his work experience in that occupation proved problematic as he was unable to cope with carrying out night shift work. He returned to bricklaying but the work was somewhat intermittent. He recalled his last bricklaying job was at the beginning of June 2001 and in fact he said he worked laying bricks up until a couple of days prior to his operation on 26 June.
The plaintiff said that Mr Fitzpatrick warned him only of the risk of infection to the site of the graft on his left palm but did not tell the plaintiff of the extent of the incision and depth of it prior to the operation. Further, the plaintiff said that if he had been warned of the risk of sensitivity to his left palm and its ensuing physical restrictions, including its impact upon working as a bricklayer, he would not have given his consent to undergoing the surgery.
The plaintiff was referred to a book of taxation returns for the 1999, 2000 and 2001 financial years. After 30 June 2001 he did not file a tax return as he was in receipt of a disability pension. To illustrate his financial situation proximate to the time of his surgery, the plaintiff referred to the partnership tax return for 2001 contained in Exhibit 5 which showed his business receiving income of $29,177 which after deductions resulted in a net income before tax of $24,333 with a distribution of $12,385 to both the plaintiff and his wife and a distribution to the plaintiff's son of $11,948. The plaintiff's wife contributed to the business by carrying out various office and administrative work for about 5 hours per week. The income for the plaintiff and his wife was placed in a joint bank account from which they would pay household and living expenses.
Between September 2000 when the plaintiff applied for the Newstart allowance and 30 June 2001, he received $4279 in benefits relevant to periods when he was not able to obtain bricklaying work. In the end result, his taxable income for the financial year ending 30 June 2001 was $11,751 and his wife received no distribution from the partnership at that time. The plaintiff's evidence was that prior to June 2001 his intention was to continue working until aged 65 as he enjoyed his job as a bricklayer. Prior to his surgery in June 2001, the plaintiff claimed he had not experienced problems laying on average 400 ‑ 500 bricks per day.
After 1998 the plaintiff and his son worked equally in the plaintiff's bricklaying business and indeed up to 2000 had worked for about 12‑13 years together. Relevant to Exhibit 5 the plaintiff agreed in cross‑examination that the total business income for S & J Bricklayers for the financial year ending 30 June 2001 was $29,000 which after deductions left $23,333 to be divided between the plaintiff and his wife and their son. In July and August 2000, documentation contained in Exhibit 5 indicates that there was a considerable amount of work being carried out by the plaintiff's business, particularly for Don Russell Homes but after September 2000, the work fell away markedly. This remained the case in the first six months of 2001 although there was a job on for June in that year which was the reason why the plaintiff said he had to postpone his surgery. The plaintiff explained that although the records for that financial year might indicate that he worked just for one day in a particular month that could actually reflect a week's work. He conceded however that during the first six months of 2001 he did little work and was certainly not working full time as a bricklayer during that period. He was consistently in receipt of a Newstart allowance between January and June 2001 as reflected in Exhibit 10, and not working full‑time in that period – though he maintained that he was doing so for the three weeks prior to surgery.
The plaintiff recalled seeing Dr Harper in late 2003 but did not advise him that x‑rays had been taken of his left hand showing degenerative changes in the interphalangeal joints. He said he would have informed the doctor, however, that he could lay between 50 and 100 bricks a day wearing a cycling glove on his left hand before being prevented from continuing to do so by pain in the finger joints. He maintained, however, that although he did not mention it to Dr Harper the following day the plaintiff had swelling in his left hand and the palm was tender. Although the plaintiff did not mention his involvement with the SES to Dr Harper at the consultation in late 2003, he did refer to it at a consultation in July 2006, not because he became aware that the SES documentation had been subpoenaed by the defendants but rather because the plaintiff claimed he was then more involved with SES work, being a section leader with the tracker dogs. The plaintiff said this activity mainly involves holding the dog on a lead in his right hand although whilst walking in formation the dog is held on a short lead which the plaintiff holds in his left hand. That is not problematic however as the dog does not pull on the lead. He conceded that following his surgery his involvement with SES has increased considerably and this included obtaining 12 different certificates between January 2002 and 26 September 2004. The certificates related to four‑wheel drive safety courses involving off‑road driving activities as well as a first aid certificate course which the plaintiff said did not require him to make particular use of his left hand. He carried out CPR using an alternative method avoiding the use of pressure being exerted on his left palm. In 2004 the plaintiff became an urban search and rescue representative with FESA, relating to searching and rescuing people who may be trapped in collapsed buildings as a result of cyclones or other disasters. To this end he had to undertake a USAR Category 1 course involving physical practical work such as crawling through unstable surface rubble, placing persons on stretchers and removing them to safety. The plaintiff, however, said that to participate in such a course one does not have to be physically fit and totally able and he simply lifted stretchers using his right hand. Nonetheless, on Exhibit 7 being the plaintiff's nomination form for that particular course dated 15 February 2004, he stated he did not have a permanent disability. He explained this was an oversight on his part and the organisers knew of his disability and made allowances for it. In a further report referring to the assessment for the evaluation of the course the plaintiff was able to carry out the physically demanding tasks such removing rubble and extricating casualties without difficulty as reflected in Exhibits 8 and 9. He explained that it was a one day course of which only three quarters of an hour was devoted to the rubble crawling assessment. Further, he protected his left palm by using his right hand and two feet more intensely.
In relation to a general rescue training course involving in part vehicle anchoring and winching, the plaintiff said in undertaking that course he did not need to use both hands for all tasks, although he conceded that different knot tying exercises required the use of both his hands but said he used only the thumb and forefinger of his left hand to do this. He denied his fairly intensive involvement in courses such as urban search and rescue, including travelling to New Zealand on one occasion for such a course, was indicative of a preference for that activity rather than searching for alternative paid employment.
The plaintiff also denied that there was plenty of work available with Don Russell Homes for bricklayers in 2000 and 2001 and reiterated that that is why he attended Centrelink and applied for a New Start Allowance.

Maureen Rooke

Mrs Rooke recalled that after the surgery the plaintiff experienced what she described as problems with the healing of his left hand and so he was attending the Hospital for physiotherapy once or twice a week until December 2001. She drove him to those appointments and noted that he was unable to engage in activities which required the use of two hands, such as driving for about six months following the surgery. She assisted him in tying his shoelaces and cutting up his food when necessary, for some months following the surgery. For a period of about 6 to 12 months following the surgery the plaintiff was unable to mow their lawns and so she would do this herself for three hours once a fortnight. In the last few years she observed the plaintiff has been able to assist a little more in maintaining the garden but for six months following his surgery he could not do any gardening tasks. It was only in that period that she spent additional time maintaining the garden. The plaintiff does not assist her to wheelbarrow items about the garden and her estimate was that she works in the garden for two or three hours a week, one hour of which involves using a wheelbarrow.
Prior to the surgery on 26 June 2001 she observed her husband laying bricks at a job involving the building of units which she believed was in Belmont although she was unsure of the name of the company for whom he was working, or the identity of his supervisor at the time. Prior to the operation the plaintiff was involved with FESA and he maintained that contact albeit it in a different capacity following his surgery.
Mrs Rooke confirmed she was a partner in the plaintiff's business and estimated she worked about five hours a week in the partnership mainly carrying out tasks such as providing food and drink or picking and dropping off scaffolding at various jobs

Ronald Goldsword

Mr Goldsword has been a registered builder for a considerable number of years and has a company called Dorwood Developments Pty Ltd. He worked in that business for a number of years and then worked as a building supervisor for a number of builders before returning to work in his own business in 2001. At some point between 1993 and 1995 he came into contact with Mr Rooke, the plaintiff, who worked for him for approximately five years. The plaintiff's son was working with him at that time also when Mr Goldsword was a supervisor for Don Russell Homes. During the five year period they had contact at that time Mr Goldsword estimated the plaintiff worked for him between 70 and 90 per cent of the time on a 40 hour per week basis. Mr Goldsword observed the plaintiff to be an excellent bricklayer whose speed at bricklaying was good considering the high quality of his work. Mr Goldsword believed he left Don Russell Homes and went to Homestyle as a site manager/building supervisor and remained there for approximately 12 months. During that period the plaintiff commenced working under Mr Goldsword again in approximately January 2000 and once again the quality of the plaintiff's work was good and Mr Goldsword did not notice the plaintiff having any difficulty carrying out bricklaying.
In late 2000 Mr Goldsword left Homestyle and went to work for Mike Merrin Homes where he remained for three or four months before that organisation went into liquidation. Following this Mr Goldsword started his own company Dorwood Constructions which is associated with another company called Dorwood Developments. He believed that following the introduction of the GST and he could not precisely say when this occurred but his recollection was in late 2000 there was a downturn in the building industry which persisted for a period of approximately six months on his observation. This was similar to the observation of Mr McCrudden a bricklayer called on behalf of the plaintiff. He could not recall for whom he was working at the time, but it was not Don Russell Homes. In his 40 years as a bricklayer he has suffered no health problems or injuries adversely affecting his ability to work in that job. In Mr Goldsword's experience an average team of bricklayers lays between 800 and 1000 bricks every day working in a team of two bricklayers and one labourer which translates to about 400 to 500 per day per bricklayer on average. In 2000 the industry was paying bricklayers between $550 and $600 per thousand bricks laid. At time of trial he estimated that that figure would be somewhere between $850 and $1600 per thousand bricks laid. Mr McCrudden's estimate was about $900 per 1000 bricks laid.
Mr Goldsword recalled a building job for Homestyle which he thought was on Ashton or Edward Street in Belmont between February and April in 2001 in which the plaintiff was involved laying bricks. This job he thought was the last occasion upon which the plaintiff worked for him before the plaintiff's surgery. The method of payment involved was that Mr Goldsword would issue a purchase order through the company to the plaintiff who ran his own business. The plaintiff would then be given a plan and specification outlining the details of the project relevant to the brickwork. The plaintiff would issue an invoice for a claim being whole or part of the purchase order but if the job was finished in a fortnight then a whole invoice would be raised. If it took longer Mr Goldsword would receive either two or three part claims and in turn he would issue them to his pay clerk who would then issue the plaintiff (if he was a subcontractor) or the plaintiff's company with a cheque in the mail by way of payment. Generally, Mr Goldsword would see the plaintiff on Tuesday and receive documentation relevant to the invoice from him. Mr Goldsword would then sign it and pass it on to the pay clerk who would initiate a cheque by way of payment on the Friday. In relation to Exhibit 5 (at p 165) there is a remittance advice from Homestyle to S J Bricklayers for a total of $1287.55 referable to properties which appear to be numbered 27, 28, 28A and 28B. At p 164 of that exhibit dated 5 June 2001, six days prior to the earlier invoice, again there is a remittance advice from Homestyle Pty Ltd to S J Bricklayers for $3850 reference to property No 26. Mr Goldsword believed that these were documents indicating Homestyle had paid S J Bricklayers those funds on those particular dates and so he corrected his earlier evidence regarding February and March as being the last job the plaintiff did under his supervision before the surgery. On that particular job his opinion was the plaintiff's work was of its usual high standard. Following the plaintiff's surgery he rejected offers of work from Mr Goldsword providing the explanation that his hand had not yet healed completely.
Currently, in Mr Goldsword's assessment, a good bricklayer can earn between $80,000 and $120,000 a year depending on whether they head a team or if they are working in tandem with another bricklayer and in fact a contractor can earn up to $100,000 a year. His assessment was that at the time the plaintiff was working under his supervision the plaintiff was earning an average income for a bricklayer. Later in his evidence Mr Goldsword agreed that in terms of his work periods with Don Russell Homes and Homestyle he could possibly be wrong in his recollection of dates to an extent of about six months. On reflection he conceded he left Don Russell Homes in 1999 which was at least six months before the GST was introduced in mid‑2000. However, Homestyle he maintained, was a far bigger builder than Don Russell Homes.
He maintained that the documents he was referred to in Exhibit 5 related to the job in Belmont in what he believed was Edwards Street. He pointed out, however, that he has supervised the building and been involved directly in the building of a very large number of houses. He could not remember if the particular job concerned was a weekly or fortnightly paid job but maintained the sum of $3850 paid on 5 June 2001 would reflect work done prior to that date as would the work reflected in the payments of 11 June 2001. At p 161 of Exhibit 5 Mr Goldsword recognised the document as a typical tax invoice in draft which he believed referred to Lot 435 Edwards Crescent the amount owing being a total of $3850 including $350 GST. That job would have started however, according to the invoice at p 160 with the invoice dated 21 May 2001 for $1650 worth of work being the first draw. The second draw relates to the invoice on p 161 of Exhibit 5. The invoice on p 162 relates to the last draw for that job so far as he could see in the sum of $1106.05.

Neville Stevens

Mr Stevens was called on behalf of the defendants and gave evidence that he is the building manager for Don Russell Homes. He commenced work with them as a construction manager in July 1999. He was in that capacity responsible for the day to day running of the building supervisors who, in turn, supervised construction of homes. He reported to the managing director of the company. He recalled Mr Goldsword was working in the company in July 1999 supervising an area south of the river and he was directly responsible to Mr Stevens. Since that time Mr Stevens' role and title have changed to a degree and he is now a building manager with a number of managers working underneath him.

In 2000 and 2001 Don Russell Homes were extremely busy engaged in various projects building homes. He could not recall from that company's perspective a downturn in the work carried out during 2000 and 2001 and in fact his perception was following the introduction of the GST on 30 June 2000 the work available increased. In this regard his evidence differed from that of both Mr Goldsword and Mr McCrudden.
In 2000 he confirmed that S J Bricklayers were providing bricklaying services to Don Russell Homes and agreed p 132 of Exhibit 5 is a Don Russell Homes remittance advice of the type issued to subcontractors. His specific recollection was during the period of time after he commenced working for Don Russell Homes there was never a downturn in the amount of work available for bricklayers which was always substantial. In the event that a supervisor on a project did not have work for a particular tradesperson be it a bricklayer or plumber, that person would liaise with another supervisor in a different area to see if the tradesperson's services could be utilised elsewhere. Whilst Mr Goldsword was the supervisor for the Canning Vale‑Armadale region there were five other supervisors given there were six regions in which the company built homes. The turnover records, however, were not broken down according to the geographical location of those areas. Mr Stevens did not personally know the plaintiff and was simply aware of the existence of S J Bricklayers having checked through the records of Don Russell Homes.

The medical evidence

Dr Faithfull

Dr Faithfull is an experienced medical practitioner and a Fellow of the Royal Australian College of Surgeons. He has worked over many years both in private practice and as a consultant in public hospitals. He has also worked with the R.A.N. between 1972 and 2002. His area of specialisation relates to upper limb surgery including the hand, elbow and shoulder. Dr Faithfull did not personally review or treat the plaintiff nor has he diagnosed the plaintiff in relation to his current condition, but has prepared some reports contained in Exhibit 2 relating to the plaintiff's treatment for Dupuytren's disease. He noted the plaintiff had been advised he may be able to return to work bricklaying within 8 to 12 weeks of surgery but in Dr Faithfull's view 12 weeks would be earliest possible return date to work and would involve protection being worn on the left hand to protect the palm graft given the plaintiff was a bricklayer. This reference to the patient's understanding of the time off work following surgery is at odds with the plaintiff's evidence that he was told by the second defendant he'd be off work for four to six weeks following surgery. Dr Faithfull confirmed that the only treatment option available for Dupuytren's contracture is surgery but whether or not that occurred must take into account the degree of inconvenience or difficulty the flexion contracture has on the sufferer's ability to carry out their usual work or daily living activities, because the disease is not a mortal illness. The only reason for undergoing surgery is because a finger is getting in the way of working or living activities.
Dr Faithfull also pointed out that whilst Dupuytren's disease can present in various forms in the hand, beginning with lumps in the hand and progressing to contracture of the fingers, it can also present in other parts of the body such as the feet. It is his practice to examine the patient's hands and feet and to make enquiries regarding other areas of the body to ascertain if further examination is required. In his view the initial treatment offered by the second defendant to the plaintiff should have included a discussion of the natural history of the disease, a discussion on the indications for surgery in Dupuytren's contracture, a discussion concerning the operation which the second defendant intended to undertake including the skin graft with the proviso that during any surgery because of unexpected circumstances there may need to be a change of course. There should also be a discussion concerning post‑operative management and finally, a discussion regarding possible complications. It is Dr Faithfull's habit to do this when he consults with patients suffering Dupuytren's contractures. Such a discussion would in his estimation take between 15 and 20 minutes, excluding taking a history and carrying out a physical examination, which would extend the time on average to approximately one hour depending on the extent of the disease. He was not sure what warnings were given to the plaintiff and therefore could not comment on their adequacy. He considered the risks attached to undertaking surgery for the condition to be that not all of the joint contracture could be overcome by excision of the cords and post‑operatively complications could include recurrence of bleeding, compartment syndrome, loss of graft, redevelopment of finger contracture, wound infection and reflex sympathetic dystrophy. This last complication includes a constellation of symptoms the main one of which is pain, but there can also be swelling of the limb, excessive sweating, change of colour to blue or white or red. There is also atrophy of the muscles, loss of flexion as a result of further contractures in the joints. The patient can also experience excessive sensitivity being an abnormal and disagreeable sensation when the relevant skin area is touched.
In Dr Faithfull's opinion, advice concerning risks and possible adverse results should be discussed with a patient not only in the outpatients' clinic prior to surgery but also on admission and prior to going into theatre. Post‑operative complications should be discussed with the patient before discharge and at the first post‑operative consultation. Frequent discussion in his view optimised the opportunity for the patient to understand possible complications more fully. Based on the material presented to him Dr Faithfull was of the view that the plaintiff's post‑operative care offered by the Hospital immediately prior to the surgery was below a reasonable standard, in particular with respect to asking the patient to sign the consent form whilst he was in the anaesthetic bay. It is the case, however, that this was not an issue in the trial. Counsel for the defendants conceded that this was less than ideal and normally should not occur.
Given that the plaintiff had a few degrees of contracture in the metacarpophalangeal joints of his ring and middle fingers only, Dr Faithfull considered that he would have been able to continue to work as a bricklayer, had he not undergone surgery and he would have been able to continue that occupation in the short term. In all probability he could have continued working as a bricklayer till 65 years of age. As to the plaintiff's complaints of tenderness and sensitivity at the graft site on the left palm upon touch or in cold weather, Dr Faithfull noted that the full thickness skin graft used was the correct procedure because the split skin graft tends to contract more than a full skin graft and the surgery is aimed at avoiding contracture post‑surgery. However, he noted that any skin graft in the palm tends to be more sensitive because normal palm skin is very thick and skin from the groin area used in a graft does not thicken in the same way as palm skin would thicken when worked. He considered this should have been explained pre‑operatively to the patient who was known to work as a bricklayer. He believed that this condition would continue and therefore the plaintiff would need to wear a glove while laying bricks to protect the left palm. Dr Faithfull noted that any graft to the palm of the hand would in all likelihood require the use of a glove for manual labouring such as bricklaying so this need was not so much a complication of surgery but the likely follow‑up position of a patient engaging in such an activity.
Dr Faithfull conceded that having never seen or reviewed the plaintiff he could not make any particular observations about his condition prior or post‑surgery and had certainly not made a diagnosis in relation to the plaintiff's current condition. As a general comment, however, he pointed out that whether surgery is required or not depends upon the extent to which there is a contracture in the cords that run into the fingers because that is what causes the contracture requiring the removal of the cord. A pitting effect in the skin indicates that the skin is attached to the palmar fascia. However, a great deal depends on what is seen at the time of surgery because it is only then that it becomes apparent whether a skin graft is required or not. That is why in his view the possibility of a skin graft must be discussed with the patient prior to surgery. With reference to a pathology report dated 27 June 2000 he agreed that the plaintiff's disease had progressed into the skin itself and so it was particularly important to prevent recurrence that the affected skin be removed in surgery. He agreed that with a graft taken from one area and transferred to another site there is always the possibility the graft will not take due to lack of blood supply at the recipient site and this with issues of infection, can impact upon whether further surgery is required.
A number of factors impact upon the speed at which the Dupuytren's contracture advances. For example, both Type 1 and Type 2 diabetes will hasten its progression significantly. The plaintiff gave evidence that he was diagnosed with Type 2 diabetes in September 2005. A strong family history of the condition will also hasten its progression as will the fact that the patient has the condition in both hands. A patient aged 45 or over presenting with the condition will generally experience a slower progression of the disease. These are all matters which in part would potentially have an impact upon how long the sufferer would be able to work. It is, however, patient specific and whether the progression of the disease can be termed comparatively rapid or comparatively slow must be addressed generally. In this case if the plaintiff noticed the condition as he described it in early 2000 and presented in September 2000 with the contractures in both hands, the left being worse than the right, that in Dr Faithfull's opinion would put the progression of the condition at the more rapid end of the scale. He could not really say with any certainty, given the fact that the plaintiff is now a diabetic with relatively rapid onset of the condition, if he could continue to work for another six to 10 years as a bricklayer.
Dr Faithfull was of the view that degenerative changes in the proximal interphalangeal joints could give rise to pain in those joints and that would be another factor affecting whether or not the sufferer would be able to continue working in a manual occupation such as bricklaying to age 65.

Professor Harper

In his capacity as an occupational physician with a Masters Degree in Public Health Professor Harper reviewed the plaintiff and issued a number of reports. He reviewed the plaintiff on 11 November 2003 and concluded he was incapacitated to work as a bricklayer or in manual occupations of that nature. Whilst the plaintiff could physically work in a lighter occupation such as a shop assistant, Professor Harper observed that given the plaintiff's lack of prior experience in this area and his age it was most unlikely he would find gainful employment in such a new occupation as he was essentially not competitive. When he reviewed the plaintiff in July 2006 the most significant complaint noted by Professor Harper was tenderness in the palm of the hand, particularly as it was related to the plaintiff's work capacity and a degree of impairment in relation to carrying out daily activities such as holding cutlery. As at July 2006 he was of the opinion the plaintiff was precluded from returning to work as a bricklayer, given his inability to effectively grasp with his left hand and reduced grip strength in the left hand. These results were consistent with those obtained on similar testing in 2003. However, he believed the situation regarding the left hand and his limitations was relatively stable given the consistency of results some three years apart. He suggested treatment was limited to avoiding aggravating circumstances such as direct pressure to the palm of the hand because it was painful.
As to any limitation with respect to domestic or household tasks in which the plaintiff might be involved Professor Harper noted that the plaintiff could use a wheelbarrow within certain limits but could not manoeuvre one. He was advised by the plaintiff that he could lay bricks for a short period of time to a limited degree and relatively slowly. He could carry out vacuuming with his right hand and hold a broom in a modified position in his left hand. He could carry shopping with his right hand and a lighter bag with the left hand using only the fingers not the palm. He was capable of using a computer with his right hand as well as using hand tools with the right hand in combination with the stabling pincer grip of the index finger and thumb of the left hand.
Professor Harper conceded that with respect to the plaintiff's pre‑June 2001 work capacity he was entirely reliant on the history provided to him as indeed he was with respect to the plaintiff's post‑June 2001 work capacity. He confirmed that he had not been advised by the plaintiff that he had been in receipt of Centrelink benefits in the six months prior to surgery in June 2001 and said the history of those payments in Exhibit 10 was inconsistent with what he understood to be the situation. The report to him was of the plaintiff working normal full‑time duties until his surgery. He was not advised by the plaintiff that he suffered sweating as a symptom. Professor Harper noted on the history provided to him that the plaintiff had been able to lay between 50 and 100 bricks in a day wearing a cycling glove but reported that for the following two to seven days due to pain in the proximal interphalangeal joints he could do no further work. He could not exclude, however, that this was also a reference to pain in the palm of the hand. He also pointed out that the limitation in grip strength he noted was related to the friction of the joints and muscles of the hand rather than the palm or pressure applied to the palm. Essentially, Professor Harper reported on the pain and limitation of grip strength relevant to capacity rather than the cause of the pain. In addition whilst he was aware of the plaintiff's voluntary work with the SES Professor Harper was not told of its extent nor could he recall being informed that a month prior to reviewing the plaintiff he had completed a four‑wheel drive course.
Professor Harper said he would not alter his opinion regarding the plaintiff's incapacity to lay bricks if he was in receipt of unemployment benefits for six months prior to June 2001 due to lack of work rather than incapacity. Grip strength testing involving the left hand used only the index finger and thumb whereas on the right hand it involved the whole hand. This was because the left hand impairment meant the plaintiff could not grasp the dynamometer due to tenderness in his left palm and further he was unable to employ the stiff remaining fingers on the left hand. If the palm was not hypo‑sensitive Professor Harper would have been able to test the other fingers on the left hand. He noted that the plaintiff has good use of his left thumb and index finger in a pensive position and there are no impediments regarding the use of his left forearm and wrist. He has a limited ability to carry with the stiff fingers of his left hand because of resulting discomfort and further contact with the left palmar surface needs to be avoided.

Dr Anderson

As a specialist in pain management Dr Anderson reviewed the plaintiff and prepared a number of reports. When he initially saw the plaintiff in late 2001 his left hand was swollen with reduced movement in the fingers but Dr Anderson commented that diagnosis of sympathetic dystrophy would usually be accompanied by a greater amount of pain. At that time there was no obvious hyper sensitivity. When he next reviewed the plaintiff in early 2002 sweating in the left hand had increased slightly and the hand though swollen was pain free. The range of finger movements was reduced. The plaintiff though offered a Stellate Ganglion block had decided against it as he was somewhat concerned about the possible risks.

Dr Buters

Over the years as his general practitioner Dr Buters has come to know the plaintiff well. He was aware that in the past the plaintiff was a self‑employed bricklayer subcontracting to various builders. He confirmed that in November 1995 the plaintiff suffered a left ankle inversion twist injury for which he was treated into the following year. In November 1999 the plaintiff suffered an injury to the right medial knee and then on 25 September 2000 there was a notation the plaintiff presented with one bilateral Dupuytren's contractures, a condition with which Dr Buters was quite familiar. If the condition is mild it is often not treated but where it is moderate the patient is advised to undertake treatment because if left to advance the only available treatment is surgery which does not always have good outcome. Any advice to the patient also takes into consideration their age and lifestyle. Dr Buters noted that the condition was worse in the plaintiff's left palm than in his right and expressed his practice as being that if the impairment was moderate he would recommend the patient seek a surgeon's opinion because if left untreated and the condition advances the surgery is less successful. He could not recall the specific consultation with the plaintiff but being aware of his occupation Dr Buters believed that he would have referred the plaintiff to a specialist to deal with the issue. As there was no reference to it in his notes Dr Buters believed that the plaintiff did not ask him detailed questions regarding complications in relation to surgery or Dupuytren's disease. He considered that the plaintiff's condition was interfering with his life and livelihood to the point where it was a significant impairment and that in those circumstances surgery was reasonable and he made the referral accordingly. In the end, however, his view was that the final decision was between the patient and the specialist.
In his referral letter to Fremantle Hospital Plastic Surgery Clinic regarding the plaintiff Dr Buters noted in part "he requests corrective surgery to the left hand". He believed that the plaintiff would have been present in his rooms when he wrote the referral letter and would have been aware of its contents. He also made the point that on the date of that consultation the plaintiff was attending for a general check‑up. He was of the view that the plaintiff's Dupuytren's contractures would have progressed had he not sought surgery and he said he would have advised the plaintiff to that effect. Dr Buters was not aware of any effective non‑surgical treatment for Dupuytren's contracture. In a report of 31 July 2001 on review Dr Buters noted the plaintiff's left hand was swollen following surgery so exercise and anti‑inflammatories were prescribed. An x‑ray of the hand was also ordered in September of that year in conjunction with a full blood test which proved normal. The x‑ray showed changes consistent with some wear and tear and of the interphalangeal joints affecting the first and second metatarsal‑metacarpophalangeal joints.
In a report of 17 May 2003, Exhibit 11, Dr Buters expressed the view that had the plaintiff not had surgery he would have been able to continue working as a bricklayer but the speed at which he did and his productivity would have gradually deteriorated. Further, he again noted that if the plaintiff had not had surgery the Dupuytren's contractures would have progressed but he could not comment on the rate of progression which varied between individuals.

Although the second defendant was largely though certainly not totally reliant in his evidence on what he would do or say according to his usual practice when consulting with a patient with Dupuytren's contracture, in my view his evidence had a consistency and clarity that was lacking in the evidence of the plaintiff as to what occurred at the particular consultation in question. In view of the second defendant's considerable experience and expertise in relation to dealing with patients with this medical condition and his recollection in part of this particular patient, the plaintiff, I accept the second defendant's evidence as to what he would have said to the plaintiff by way of warnings and advice following his usual practice, and I do not find that the allegation of negligence against the second defendant, being a failure to warn the plaintiff as pleaded and as submitted in the plaintiff's case, has been established. There was a duty to warn the plaintiff and that is accepted. I find that that duty was not breached on 21 May 2001 at the relevant consultation. Further, it was at that point in time that the duty existed. It does not necessarily follow that there was an ongoing duty to warn of the same matters or to repeat any warnings or advice although that is not to say that this could not be done. The focal point, however, is the time of consultation with the second defendant on 21 May. The action against the second defendant is dismissed. In view of the dismissal of the plaintiff's action against the second, third and fourth defendants it necessarily follows that the action against the first defendant, being the Minister for Health, also fails and is dismissed.

Causation

Although the plaintiff has not established against any of the defendants a breach of duty relevant to a failure to warn of specific risks, nonetheless it is appropriate in the circumstances of this case to consider the issue of causation in the sense of if there had been a failure to warn of the alleged post‑operative risks as pleaded would the plaintiff have undergone surgery in any event. There is also the issue of whether the risk or risks associated with the alleged failure to warn is physically related to the alleged injury and whether the alleged injury arose out of the surgery which was undertaken.
In Hannell v Amaca Pty Ltd(Formerly James Hardie & Co Pty Ltd) [2006] WASC 310 at [251] it was noted that Australian Law concerning causation principles required the application of certain principles being:
"1.Establishing a connection between the plaintiff's injury and the defendant's negligent act or omission is a prerequisite to the recovery of damages.
2.The standard of proof is the balance of probabilities.
3.The legal burden of establishing that the defendant's negligent act or omission caused or contributed to the plaintiff's injury rests upon the plaintiff at all times."
That case also referred to Rosenberg v Percival (2001) 205 CLR 434 which in turn cited McHugh J in Chappel v Hart at [34]:
"The onus of proving that the failure to warn was causally connected with the plaintiff's harm lies on the plaintiff. However, once the plaintiff proves that the defendant breached a duty to warn of a risk and that risk eventuated and caused harm to the plaintiff, the plaintiff has made out a prima facie case of causal connection. An evidentiary onus then rests on the defendant to point to other evidence suggesting that no causal connection exists. Examples of such evidence are: evidence which indicates that the plaintiff would not have acted on the warning because of lack of choice or personal inclination … Once the defendant points to such evidence, the onus lies on the plaintiff to prove that in all the circumstances a causal connection existed between the failure to warn and the injury suffered by the plaintiff."
The focus is upon the particular or individual plaintiff, Mr Rooke, and what decision he would have made as at May 2001 given what he had been advised relevant to undergoing surgery. This does not involve a consideration of events that have occurred since in the sense that "hindsight" is not relevant. A decision a plaintiff may have made or believe that they would have made following a negative or unsatisfactory outcome might well be very different from a decision made by that person at the critical earlier point. This reflects the sentiment expressed in Chappel v Hart (1998) 195 CLR 232 at 272 per Kirby J:
"The subjective criterion involves the danger of the 'malleability of the recollection' even of an upright witnesshttp://thomsonnxt4/links/Handler.aspx?tag=c95c544f23a849f01dfed75c868cf65e&product=nswlr. Once a disaster has occurred, it would be rare, at least where litigation has commenced, that a patient would not be persuaded, in his or her own mind, that a failure to warn had significant consequences for undertaking the medical procedure …"
Relevant to this the plaintiff contended he was not provided with the alleged specific warnings pleaded in his case and had he been so advised or warned he would not have undergone surgery in June 2001. It is the case, however, that prior to this in 2001 the Dupuytren's contracture in both the plaintiff's hands, but particularly his left hand, was significant enough and of sufficient concern for the plaintiff to raise and discuss the matter with his father who had successfully undergone surgery for the same condition and as a result he encouraged the plaintiff to follow the same course of action. Further, the plaintiff mentioned his concerns regarding his hands to Dr Buters his general practitioner and in fact, according to Dr Buters, the plaintiff "requested corrective surgery for his hand". This was a request which evidently Dr Buters considered both desirable and reasonable given his referral of the plaintiff to the second defendant. There is no doubt that the condition, especially in the plaintiff's left hand, was significant and was going to worsen without surgical intervention, which was the only corrective treatment available for the condition in those circumstances.
I consider on the evidence that the plaintiff's condition was affecting his ability to carry out his occupation of bricklaying (albeit he was in receipt of Centrelink benefits between early and mid‑2001) to the point where he was keen to undergo surgery in an endeavour to resolve the problem, notwithstanding that he conceded he was aware that, for example, anaesthesia did carry a risk of death during surgery. On the plaintiff's own evidence he was not deterred from undergoing surgery even though he conceded he had been warned of the risk of infection.
The progress of the condition of Dupuytren's contracture or disease in the plaintiff's left hand in particular was in my view by early 2001 adversely affecting his livelihood and this remained the case as at June 2001. Despite his evidence and that called on his behalf, that there was a downturn in the building industry at the relevant time when he was on Centrelink benefits which adversely affected the work available for bricklayers, that evidence or assertion is inconsistent with and indeed contradicted by the evidence of Mr Stevens, whom I considered to be a forthright and objective witness. On this basis the plaintiff's receipt of Centrelink benefits I consider to be related not to lack of availability of work but rather as a consequence of the functional problems he was experiencing with his left hand in particular, which had a substantial and direct impact on his capacity to carry out his work as a bricklayer, in the sense that he could not longer do it as efficiently and easily as he had in the past. This is reflected in the evidence of Dr Buters, insofar as his evidence reflected his understanding of the plaintiff's difficulties with performing his work at the time he referred the plaintiff to Fremantle Hospital.
Mr Fitzpatrick, the second defendant, made the obvious point that the physical restrictions imposed by Dupuytren's contracture (of the hand or hands), will have significantly greater implications for a manual worker, such as the plaintiff, than for a person carrying out non‑manual or clerical work and logically the need for or desirability of surgery may be more pressing in the case of a manual worker.
On the available evidence the plaintiff is faced with considerable difficulty, which has not been overcome in my view, in establishing a nexus between his alleged current functional restrictions and the surgery carried out in June 2001. As has been observed, Dr Faithfull had never physically seen or reviewed the plaintiff or been involved in his treatment and so that witness was restricted to commenting on this issue, in the sense that he was confined to observations of a general and somewhat hypothetical nature, the end result of which was that he could not provide an opinion in this regard. Professor Harper did venture an opinion on this issue but it was very reliant, as he conceded, on what appears to be a somewhat inadequate history provided to him, and further, he agreed he did not comment on the pathology of the condition as he was not asked to do so, for example, he was not asked to comment on the cause of pain in the proximal interphalangeal joints, although he conceded it could have a number of causes including arthritic or degenerative changes.
Putting aside the finding that there was no failure to warn or advise the plaintiff of post‑operative complications and therefore no consequent breach of the duty owed on the part of any of the defendants, in relation to the evidence referred to above, I find the plaintiff would in any event have undergone the corrective surgery relevant to the Dupuytren's contracture in his left hand. He has not established that there is a nexus between the current alleged physical or functional restrictions in his left hand and the surgery he underwent in June 2001. In view of these findings it is not necessary to turn to a consideration of the issue of damages.
The plaintiff's claim against each of the defendants in this matter is dismissed.