Rubino v Ziaee
[2021] ACTSC 331
•23 December 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Rubino v Ziaee |
Citation: | [2021] ACTSC 331 |
Hearing Dates: | 29 June 2020 - 1 July 2020 |
| Submissions last received: Decision Date: | 6 July 2020 23 December 2021 |
Before: | McWilliam AJ |
Decision: | See [220] |
Catchwords: | NEGLIGENCE – MEDICAL NEGLIGENCE – General practitioner – treatment of hyperkeratosis over three years – where plaintiff referred to a specialist but referral was ineffective – whether duty to follow up |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 40, 42 – 46 Court Procedures Rules 2006 (ACT) |
Cases Cited: | ACT v Gillan [2018] ACTSC 223 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Wallace v Kam [2013] HCA 19; 250 CLR 375 |
Parties: | Michael Rubino ( Plaintiff) Dr Soroush Ziaee ( Defendant) |
Representation: | Counsel A Campbell ( Plaintiff) C P O’Neill ( Defendant) |
| Solicitors Gerard Malouf & Partners ( Plaintiff) Avant Law ( Defendant) | |
File Number: | SC 22 of 2020 |
McWilliam AJ:
Introduction
The plaintiff in this case, Mr Michael Rubino, brings a claim in medical negligence seeking damages against the defendant, Dr Soroush Ziaee, who was his general practitioner, working at Tristar Medical Group (the Practice). The dispute is in relation to the treatment and management of a hyperkeratosis (more commonly known as a “corn”), on the plaintiff’s right foot over a three-year period. Ordinarily, this might be thought of as a relatively benign condition. In this case, the foot ultimately became infected and required emergency surgical intervention at Canberra Hospital.
In broad terms, the plaintiff alleges that between July 2013, when he first presented to the defendant, and 9 August 2016, when he received emergency surgery, he saw the defendant in relation to his foot condition on numerous occasions (he attended 19 separate consultations). The defendant prescribed pain relief, generally Panadeine Forte, to help the plaintiff cope with the pain caused by his foot condition. In 2014, the defendant referred the plaintiff to a surgeon through the public health system in the Territory. It is alleged that the defendant did nothing further, in terms of treatment, and failed to follow up the referral. The plaintiff alleges that such conduct fell short of the reasonable standard of care to be provided by a general practitioner. The delay in any effective treatment is alleged to have caused him to now suffer from an antalgic gait, with difficulties walking, due to ongoing pain. This has given rise to a somatic symptom disorder and an adjustment order with depressive mood as a result of the plaintiff being unable to undertake activities he used to do.
Issues
It was not in dispute that the defendant owed the plaintiff a duty to exercise reasonable care in the treatment of his patient. Every other element of the cause of action was disputed. The defendant disputed both liability and quantum. No alternative case of contributory negligence was alleged.
At a general level then, the following legal issues arise for determination:
(a)The standard of the duty of care, which involves evaluating what precautions the reasonable general practitioner would have taken to guard against the risk of harm in the particular circumstances of this case;
(b)Whether the defendant breached that standard of care;
(c)Whether any breach caused the injuries suffered; and
(d)If so, what quantum of damages by way of compensation is appropriate.
The parties disputed many of the facts as to what the defendant did or did not do on certain dates. I have dealt with those factual issues as part of considering the elements of the claim.
Evidence
It is convenient to first give a general overview of the evidence that was before the Court.
The plaintiff gave evidence and was cross-examined. He was aged 39 at the time of hearing and lives with his wife Rebecca Rubino, their three-year-old child, and two children from his wife’s previous relationship. After graduating from a technical college in the Australia Capital Territory, the plaintiff worked in a range of professions, including as a storeman in fruit and vegetable shops, a labourer for his brother’s civil engineering company and a security guard. The plaintiff did his best to recall the facts, though the events occurred some years ago. As a result, the plaintiff’s memory was not entirely reliable, but in terms of the treatment he received from the defendant, I broadly accept (subject to specific findings made below) that what he remembered did occur.
The plaintiff’s wife also gave lay evidence and was cross-examined. Although her memory may have been vague as to dates, I found her to be entirely credible and generally reliable as to what happened.
A key area of dispute was the treatment that occurred on a particular date, which by deduction from the clinical notes in evidence, was most likely to be 5 February 2014. That is addressed separately in the chronology of the treatment history below.
The defendant gave evidence, including being cross-examined. He completed his medical studies at Shiraz University in Iran in 1998. In Iran, the defendant worked at a burn and accident hospital in the city of Genaveh, starting out in emergency then attaining a “HMO” position. He described this as “the highest level of the chief seat”, involving training other doctors and determining treatment plans for patients. The defendant came to Australia in 2008 and worked as a GP in Inverell in New South Wales from 2010 to 2013. The defendant moved to Canberra in 2013 and commenced working at the Practice, where he was the most senior practitioner.
Due to the busy bulk-billing nature of the Practice, the defendant saw many patients a day and he did not have any specific memory of the plaintiff at all. He was assisted by his clinical notes and his usual practice as to what he would have done. Although I have not accepted the plaintiff’s evidence in its entirety (discussed further below), to the extent that the defendant’s version of events differed from that of the plaintiff, I have accepted the plaintiff’s version of events.
However, to the extent that the plaintiff’s version of events differed from clear medical records to the contrary, I have preferred the documentary evidence.
In terms of the expert evidence, two general practitioners provided reports directed to what a reasonable general practitioner treating this plaintiff would have done. They were: Associate Professor Peter Clyne for the plaintiff and Dr Paul Gooding for the defendant. Oral evidence was given concurrently in the witness box and each assisted the Court with understanding the different approaches a general practitioner would, or should, have taken.
One of the questions dealt with by the general practitioners in the proceedings was whether the plaintiff should have been referred to an orthopaedic surgeon. Two orthopaedic surgeons gave evidence, again by way of expert report and then concurrent oral evidence, essentially concerning what they would have done, had they received such a referral: Professor Ronald Sekel for the plaintiff, and Associate Professor Paul Miniter for the defendant.
Two specialists in infectious diseases also gave evidence: Associate Professor Michael Guinness, a pathologist, for the plaintiff and Professor Barrie Gatus, a microbiologist for the defendant. Their evidence concerned the presence of infection in the foot at certain times throughout treatment.
Expert reports were also admitted from two forensic psychiatrists: Dr Robert Kaplan, for the plaintiff, and Dr Antonella Ventura for the defendant. Neither was cross-examined.
Two occupational therapists gave evidence, again by way of report and then concurrent evidence: Mr Darren Simpson for the plaintiff and Ms Cherie Marantz on behalf of the defendant.
In addition to the expert evidence, a number of documents were admitted into evidence, including medical certificates, photographs of the plaintiff’s injured foot, payslips from the plaintiff’s employer from 2014-2017, a number of interrogatories that had been issued in the proceedings, the plaintiff’s Medicare record (although not any Notice of Charge) and clinical notes from the following entities:
(a)Canberra Hospital;
(b)Calvary Hospital;
(c)The Walking Clinic;
(d)The Practice; and
(e)Scullin General Practice (a different medical practice attended by the plaintiff from August 2016).
In this case, the clinical notes were critical to piecing together what occurred, and when. They are set out in detail below on key dates. However, the context in which they have been considered is with due caution that has been expressed in other cases, such as Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 and Mason v Demasi [2009] NSWCA 227 (Demasi). In particular, I have been mindful of the following (see Demasi at [2] per Basten JA):
(a)Clinical notes are usually taken in furtherance of a purpose different to that for which they are used in proceedings.
(b)Clinical notes do not contain the questions of the health professional that elucidated the patient’s reply.
(c)Clinical notes are likely to be only a summary rather than a verbatim recording. and
(d)The content of such notes may be affected by a range of factors, including fluency of language and the patient’s understanding of the purpose of the questioning.
In relation to that last item, both the plaintiff and the defendant here gave evidence in the witness box in English and without an interpreter, but they were each from non-English speaking backgrounds.
What was the standard of care owed to the plaintiff?
The plaintiff argued that the standard of care owed by a reasonably skilled general practitioner involved devising, implementing and maintaining an effective treatment plan with regard to the plaintiff’s complaint, which included referring him for specialist surgical treatment, and following up any such referral. The allegation is that the defendant was in breach of that duty from 5 February 2014 to 8 August 2016, when the plaintiff was admitted to Canberra Hospital for emergency surgery the following day and the defendant effectively ceased being the plaintiff’s general practitioner.
The defendant’s case centred upon what treatment plan a reasonably skilled practitioner, with the knowledge that the plaintiff was a public patient, would have devised.
The applicable test
The starting point is s 42 of the Civil Law (Wrongs) Act 2002 (ACT) (the Act), which provides:
42Standard of care
For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant's position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
In this case, the statutory words “reasonable person in the defendant’s position” reflect what has been described as the ordinary skilled person exercising or professing to have that professional skill: Rogers v Whitaker (1992) 175 CLR 479 (Rogers v Whitaker) at 487. The standard required was that of an ordinary skilled general practitioner acting reasonably.
The duty involved is a “single comprehensive duty” to exercise reasonable care and skill in the provision of professional advice and treatment: Wallace v Kam [2013] HCA 19; 250 CLR 375 at [8], citing Rogers v Whitaker at 489. Earlier in Rogers v Whitaker, it was stated by the plurality (at 483) that the duty extends to (emphasis added):
… the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. It is of course necessary to give content to the duty in the given case.
Passing over examination and diagnosis, the present case concerns treatment (or lack thereof) and to some extent, the failure to provide information in the form of advice.
As to the allegations of a failure to treat, including a failure to follow up a referral for surgical treatment, the following principle is taken from Tai v Hatzistavrou [1999] NSWCA 306 (Tai v Hatzistavrou) where Powell JA (with whom Handley JA agreed) said at [101]-[102]:
101.It seems to me that, in a case such as this was, in which a patient consults a doctor concerning what appears to be a persisting health problem, the doctor is, as a consequence of his being consulted, and with a view to restoring the patient's health, called upon to examine the patient; to carry out, or have carried out, such tests or procedures as might be thought necessary, or desirable, to be carried out to enable or to assist in, diagnosis; to diagnose the cause of the patient's problem; to determine what treatment is called for; to prescribe that treatment, or to set in train steps for that treatment to be given; and to advise the patient in relation to the condition diagnosed and the treatment prescribed or proposed.
102.If this be the scope of a doctor's duty to his patient in such a case, then, as it seems to me, if the doctor, without reasonable cause, fails to carry out, or to have carried out, such of the steps to which I have referred as, in the circumstances, were necessary or desirable, or, although carrying them out, does so without due care and skill, he has failed in the performance of his duty to his patient …
That is what I consider to be the applicable principle to the circumstances of this case.
Giving content to the duty – a general practitioner with the knowledge of the defendant
The Court then assesses what precautions would be taken by a reasonably skilled general practitioner “who was in possession of all the information that the defendant” had: s 42 of the Act. In this regard, s 43(1) of the Act provides:
43Precautions against risk—general principles
(1)A person is not negligent in failing to take precautions against a risk of harm unless—
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person’s position would have taken those precautions.
Central to applying s 43 is the identification of the “risk of harm”. Only once the risk of harm is known can one assess what a reasonable response to the risk would be: Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 (Dederer) at [59] per Gummow J.
In the present case, the plaintiff’s condition was a hyperkeratosis that required treatment. If not treated, there was a risk that the hyperkeratosis would become extremely painful and affect his ability to walk. There was also a risk that the hyperkeratosis would become infected, requiring surgery. These were plainly foreseeable risks. They could not be described as being insignificant.
The key issue is what specific precautions a reasonable general practitioner would have taken to guard against those risks. When assessing the “reasonable response to the risk”, the defendant relied upon this point made in Phillis v Daly (1988) 15 NSWLR 65 by Mahoney JA at 72B-D:
… The court is required to identify what is the thing which the defendants should or should not have done and to examine, in terms of reasonableness, the acceptability of it … the test of reasonableness involves a value judgment …
In that regard, the test for medical negligence is not what other doctors say they would or would not have done in the same or similar circumstances, nor is it relevant that other doctors have not said that they would pursue a particular course of action: Naxakis v Western General Hospital [1999] HCA 22; 197 CLR 269 (Naxakis) at 275 per Gaudron J.
As stated in Rogers v Whittaker at 484 and 487 (emphasis added):
… a practitioner is not negligent merely because his or her conclusion or procedure differs from that of other practitioners; a finding of negligence requires a finding that the defendant failed to exercise the ordinary skill of a doctor practising in the relevant field.
…
… that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion …
The principle was reaffirmed in Naxakis at 275-276 (per Gaudron J), 285-286 (per McHugh J), and 297-298 (per Kirby J).
Further, in Naxakis, Gaudron J reiterated at 276 what her Honour had earlier stated in Rogers v Whitaker at 493, that, at least in some situations, “questions as to the reasonableness of particular precautionary measures are…matters of commonsense”. Accepting that commonsense is an inherent part of evaluating reasonableness, s 43(2) of the Act is now also relevant to that task. It provides:
43Precautions against risk—general principles
(1)…
(2)In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
(a)the probability that the harm would happen if precautions were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity creating the risk of harm.
Section 44 of the Act sets out other principles to which the Court must have regard.
44Precautions against risk—other principles
In a proceeding in relation to liability for negligence—
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.
Applying the above legislation, in order to properly apply the above provisions of the Act, the Court takes into account all the information in the possession of the defendant, and then considers what precautions a reasonably skilled general practitioner in possession of that information would have taken to guard against the reasonably foreseeable risk of harm or injury identified.
That process calls attention to the facts which form the basis of the knowledge that either was or ought to have been in the defendant’s possession in the course of treating the plaintiff. Due to the nature of the plaintiff’s allegations being an ongoing breach of duty from 5 February 2014 onwards, it is necessary to traverse the full detail of the course of treatment over 2013 to 2016.
The plaintiff first attends upon the defendant
The plaintiff first saw the defendant at the Practice, complaining of a pain on the sole of his right foot on 24 July 2013. He had been aware of a hard and sore lump on the middle of his foot for a few months before his first consultation with the defendant.
He was advised to obtain insoles for his shoes and given a medical certificate. The defendant said he gave that advice because one of the causes for a corn developing is inappropriate shoes, which may cause chronic irritation in the foot. The plaintiff cannot remember that advice but it is clearly recorded in the defendant’s clinical notes and I accept that was the advice given.
The plaintiff then saw the defendant three times in September 2013. The first of those occasions was on 6 September 2013. The defendant took a swab of the plantar foot cyst on the right foot and requested pathology. Although the clinical notes record the specimen site as “Lt plantar foot cyst,” the defendant agreed that was a mistake, admitting “[i]t happen for us frequently, that we make a mistake”. The record shows the defendant prescribed Flucloxacillin, which was prescribed to treat an infection.
The second occasion was on 9 September 2013, when the defendant’s clinical notes record as follows:
Monday September 9 2013 11:46:34
Dr Soroush Ziaee
the lesion healed well
still is tender no discharge
no erythema
advised to finish the AB
review letter
Actions:
Letter Created – re. Certificate for Leave for medical reasons to.
Prescriptions added: PANADEINE FORTE TABLET 500mg/30mg 1-2 q.i.d p.r.n.
Prescriptions printed:
PANADEINE FORTE TABLET 500mg/30mg 1-2 q.i.d p.r.n.
At this stage, it can be comfortably inferred that the advice given by the defendant was to finish the course of antibiotics that had been prescribed.
On 11 September 2013, the defendant checked the results of the pathology and changed the medication to add a prescription for Septrin Forte. His explanation for doing so, which I accept, is that one of the organisms was not responding to the antibiotics he had prescribed, so he changed the medication.
The defendant then saw the plaintiff on 15 September 2013 (the third occasion). A repeat prescription for Septrin Forte was given to the plaintiff and a further medical certificate was also made.
For the next couple of months, it was submitted that Mr Rubino did his best to treat the condition, but by early 2014, he realised he could not bring the condition under control. The evidence did not make it clear what steps Mr Rubino took during that time, but as there was no case of contributory negligence against him and no allegation by the defendant that he took into account anything Mr Rubino had done, it is a matter that I have passed over.
What happened on 5 February 2014?
On 5 February 2014, the plaintiff returned to see the defendant. What happened during the attendance on 5 February 2014 was disputed between the plaintiff and the defendant. The defendant’s clinical notes on that date are as follows:
Wednesday February 5 2014 10:09:36
Dr Soroush Ziaee
CC of infected nodules over the Rt plantar
E tender nodule deep no discharge
Actions:
Prescription added: KEFLEX CAPSULE 500mg one q.i.d.
Prescriptions printed:
KEFLEX CAPSULE 500mg one q.i.d.
Letter Created – re. Centrelink Medical Certificate to .
Letter Printed – re. Centrelink Medical Certificate to .
The plaintiff says that at some point during the treatment, the defendant attempted to perform an excision, to cut the corn out of his right foot. He could not remember the date. By a process of deduction in reviewing the clinical notes, it was submitted that this probably occurred on 5 February 2014, and that the “E” in the clinical notes recorded that the defendant performed an excision procedure.
The plaintiff described the defendant as having stuck a needle in his foot and then cutting a piece out of his foot, stating as follows:
… [the defendant] just cut one piece and just took it out. It was just a piece of, like, hard – like skin, I guess, skin and flesh about that long. Like about the thickness of my finger. And he just pulled it out. Like, he cut it and just pulled it out, like, with a pair of tweezers or something like to cut it.
The plaintiff said that the procedure took between half an hour and 45 minutes and that his partner was with him at the time, and that there was possibly a nurse also present. The plaintiff said that following the procedure, the defendant put a bandage over his foot, prescribed painkillers and said words to the effect of “we’ll see how it goes”. The plaintiff could not recall if he was also prescribed antibiotics but the clinical note recorded that a broad-spectrum antibiotic, Keflex, was prescribed.
The evidence of the plaintiff’s partner was corroborative of his account. She gave evidence that she witnessed a piece being cut out of her husband’s foot (although she also could not recall the date). She described what she observed as follows:
We went to the doctor’s and Michael had a lump under his foot and it was really sore and it was infected really badly at this time and the doctor said to – he looked at it and assessed it, and said to Michael, ‘Just hop up on the bed and we’re going to cut that piece out.’ And so Michael hopped up on the bed and a nurse lady or a helper came. They got a little medical tray thing that had a plastic sheet and everything in it. They put all that down. They put Michael’s foot up. They asked me to keep Michael calm because Michael was a little upset about it all and so we started talking about fishing and that. And they got a scalpel and they cut around the piece.
…
[Plaintiff’s counsel] So what did he do with the scalpel?---He cut a piece out with it and got rid of all the gunk inside and kind of lifted it ---
[Plaintiff’s counsel] Where were you standing when this ---? ---Right beside Michael. Right beside the bed.
…
[Plaintiff’s counsel] Did he do anything before using the scalpel that you can remember?---Yes. There was a needle and he put the needle in the foot a couple of times and blew it up bigger before he cut it, yeah.
…
[Plaintiff’s counsel] So what did the foot look like? --- It was a hole.
The plaintiff and his partner both remember some sort of procedure occurring in graphic detail. The defendant could not remember what happened on 5 February 2014, but maintained that it was not possible that he had excised a deep nodule on the plaintiff’s foot. While he did have previous experience working in a burns hospital in Iran, the defendant said that it was not his practice in Australia to ever touch the plantar area, especially deep lesions, because it is involves highly specialised skin. The defendant said that “E” in the clinical notes meant examination, not excision.
The defendant accepted he prescribed Keflex as indicated in the clinical notes. His explanation, was as follows:
Because it was a new problem. I haven't had any evidence about what it is. As I said, is no discharge to be able to take some swab or find out what was the organism, so I just choose this one and it is a very broad spectrum one that we are usually using for different things, ranging from the skin, lung, gastrointestinal.
Counsel for the defendant submitted that if a surgical procedure had been performed of the kind indicated by the plaintiff and his wife, the defendant would have used a different code when he charged for such procedure. The Medicare statement indicated that the charge on that day was for a standard consultation of between 5 and 20 minutes. It was further submitted that memories are fallible and, over time, a person’s memory may recall an event in some detail that simply did not happen. There was a suggestion that perhaps the plaintiff and his wife were getting mixed up with what happened at the hospital in August 2016.
While I am prepared to accept that the fallibility of memory was a possible explanation for the two divergent accounts, it is less likely that this would occur in respect of two witnesses especially where their accounts were broadly consistent. The plaintiff’s account was also consistent with what he told a podiatrist he consulted on 3 August 2016 (the notes of which are set out below at [89]), which was that the “GP took to [the corn] with a blade and it hurt a lot, bled a lot, and made my toes tingle”. As that communication with the podiatrist occurred before any surgery that took place on 9 August 2016, I do not accept that the plaintiff mixed up what happened at the rooms of the defendant with what happened at the hospital.
The defendant’s evidence, at its highest, was evidence of his usual practice. There were clearly a number of times when the defendant examined the plaintiff’s foot or other parts of the plaintiff’s body over the years for different medical problems. 5 February 2014 is the only time “E” appears in the clinical notes. While the prescription of Keflex is consistent with treating an unknown infection, it is also consistent with the defendant having attended to the plaintiff’s foot on that day, even if it was not to the extent of actually attempting to excise the corn. On the balance of probabilities, I accept that the defendant did something to the plaintiff’s right foot, and that it probably occurred on that day. It may not have been what the defendant would consider to be a formal surgical procedure to remove the corn, but I accept that he did more than just examine the plaintiff’s foot. Whatever was done, it did not fix the problem.
The plaintiff’s problem with his right foot persists
On 12 February 2014, the plaintiff then saw the defendant again. The defendant’s clinical notes record:
Wednesday February 12 2014 12:04:11
Dr Soroush Ziaee
CC of hyper keratosis over the Rt plantar
no discharge following medication
CC of pain over the affected foot
advised for debridement refused and cclame will do it by himself ?
needs pAIN KILLER
Actions:
Prescriptions printed:
PANADEINE FORTE TABLET 500mg/30mg 1-2 q.i.d. p.r.n.
Letter Created – re. Certificate for Leave for medical reasons to .
Letter Printed – re. Certificate for Leave for medical reasons to .
Diagnostic Imaging requested: Ultrasound evaluation of localised keratosis over the Rt plantar
The reference to debridement was explained by the defendant as him offering to use a pumice stone on the plaintiff’s foot. The plaintiff denied that he received any advice about debridement, or that he had said he would do it himself. I accept that debridement was offered, because in this instance I prefer the contemporaneous clinical record to the recollection of the plaintiff.
Although he cannot actually remember it, I accept that the plaintiff then attended Ginninderra Diagnostic Imaging, and a report was prepared dated 28 February 2014. The defendant said that the report showed there was a chronic cyst, that was the size of a small walnut, and there was some debris inside the cyst.
The first referral for surgery
The plaintiff returned to see the defendant on 6 March 2014 and the results of the ultrasound were discussed. At that point, the defendant referred the plaintiff for surgery to Dr Sivakumar Gananadha in general surgery at Canberra Hospital. The referral letter said:
I am pleased to refer Mr Michael Rubino, age 33 yrs, whom I consulted today with hx of chronic cyst over the Rt plantar area no responding to medication.
I will appreciate it if you could see him for further evaluation and management.
That referral appears to have been received by the Canberra Hospital and registered in “ACTPAS” (which I take to be the “ACT Patient Administration System”) on 10 March 2014. The Canberra Hospital records contain two printed records of an “Appointment Referral Request” from what appears to be an electronic database maintained by the hospital.
The first referral record was triaged on 28 March 2014, and then triaged again on 19 May 2014, as a result – it appears, and I have inferred – of a further referral written by the defendant considered below. There is a further entry under “Referral History”, indicating that someone accessed the record on 3 March 2016, but no indicating of the hospital taking any action to progress the referral on that date.
There was also a note on the document as follows:
As per Dr Gananadhai
Additional referral information received. Spoke to patient and he has seen the surgeon already
The contents of the note itself was a source of confusion during the hearing. The parties agreed that the note was not to be read as suggesting that the plaintiff had seen Dr Gananadha at some point prior to 19 May 2014. There is no date as to when the note was made. It may have been that the note was included on what was still an active referral at some point after 9 August 2016, when surgery had taken place. I accept that plaintiff’s evidence that he did not see a specialist at any point up to August 2016. The Appointment Referral Request contains a space for an “appointment date” and time, “the appointment status” and “notes to GP”. All of those are blank, which corroborate the plaintiff’s evidence that he was unsuccessful in seeing a surgeon before 9 August 2016.
No further information about the course of the referral is in evidence. The Canberra Hospital was initially a third party in the proceeding (not a defendant directly sued by the plaintiff) as the action against it resolved prior to hearing.
As to the second record in evidence, the referral status is recorded as “cancelled”. By reference to the “referral history”, the date that such cancellation appears to have been first entered in the system was 17 March 2014. There is a note on the record indicating that it was a “duplicate referral”, from which I infer that the defendant’s referral had been mistakenly processed twice.
The second referral for surgery
The plaintiff saw the defendant again on 2 May 2014 to receive an influenza vaccination. The defendant had not received any response in relation to the first referral letter. Accordingly, on 2 May 2014, the defendant sent a further letter. It was in the following terms:
I am pleased to refer Mr Michael Rubine, age 33 yrs, whom I consulted today with CC of pain over the plantar foot with chronic cyst over the Rt plantar area no responding to medication that affect his work performance and his daily activity ??
I will appreciate it if you could see him for further evaluation and management.
The defendant’s evidence as to why there were two referrals was that he was trying to highlight the complaint because it was affecting the plaintiff’s ability to work. The second of those referrals is recorded as having been received by the outpatient services administration of Canberra Hospital and registered in “ACTPAS” on 8 May 2014. Again, the Appointment Referral Request at Canberra Hospital records the status of the referral as “cancelled”, and again by reference to the “referral history” that appears to have been done on 19 May 2014.
From those features of the second Appointment Referral Request, I have inferred that what occurred was that when the second referral was received, it was initially processed in the hospital system but then cancelled once the administrators ascertained that there was already an active referral for the same issue in their system.
The plaintiff enters a treatment “holding pattern” for approximately two years
On 10 June 2014, the plaintiff saw the defendant in relation to mood issues. On this occasion, the plaintiff was prescribed Lovan, an antidepressant. On 9 July 2014, the plaintiff was again prescribed Lovan and Panadeine Forte.
On 12 September 2014, the plaintiff saw a different doctor at the Practice, who gave him a further script for Panadeine Forte and recorded the ongoing pain and the existence of a plantar cyst.
On 22 December 2014, the plaintiff again saw the defendant. The defendant’s clinical notes for that occasion are as follows:
Monday December 22 2014 10:01:28
Dr Soroush Ziaee
in waiting list for surgery
larg planta corn
needs pain killer
Actions:
Prescriptions printed:
PANADEINE FORTE TABLET 500mg/30mg 1-2 q.i.d. p.r.n.
The defendant’s evidence was that the plaintiff told him he was on the waiting list for surgery. Although he could not recall the consultation, the defendant believed that the plaintiff must have received a letter or a call from the specialist.
The plaintiff, on the other hand, said that he was aware he was being referred to a surgeon in early 2014 and that he thought the surgeon was at the Canberra Hospital. He said he was told by the defendant that he needed to see a surgeon and that the surgeon would be in contact with him. The plaintiff’s evidence was that he was never contacted by a surgeon, or anyone at Canberra Hospital about being placed on a wait list for surgery. The plaintiff’s version of events was that he went back to see the defendant at the Practice on multiple occasions between early 2014 and 2016 and that he told the defendant he had not heard from the surgeon and that he was in considerable and consistent pain. On one occasion he even asked the defendant for the phone number of the surgeon so that he could call and follow up the referral himself. The defendant gave the plaintiff a phone number, but when the plaintiff called the number, it reached the cardiac clinic at Canberra Hospital.
I accept that evidence. Again, it is consistent with what the plaintiff later told the podiatrist on 3 August 2016 (see [89] below). It is also consistent with what he told Calvary Hospital as recorded in a discharge summary from Calvary Hospital dated 3 August 2016 (set out below at [88]). On balance, I consider that the plaintiff did note during that consultation that he was on a waiting list for surgery, as recorded in the clinical notes of 22 December 2014. However, this was a product of his earlier knowledge that he had been referred to a surgeon by the defendant, and not because he had received any letter or call. The defendant’s evidence that the plaintiff must have received some communication about surgery was in my view a mistaken inference and was inconsistent with the plaintiff’s recollection.
During cross-examination, the plaintiff was asked why he did not tell the defendant that he had been given the wrong number and did not request the correct number. The plaintiff responded, “I told the doctor that it was the wrong number and he said to me that he was going to get somebody to give me a call.” I accept that evidence for the following reasons:
(a)it was the plaintiff’s sworn evidence and I believed him;
(b)it is inherently plausible;
(c)it is consistent with what the discharge summary from Calvary Hospital of 3 August 2016 recorded him saying, namely that he “has not yet heard about a date” (again, see [88] below); and
(d)it was not contradicted by the defendant, who had no independent memory of even seeing the plaintiff.
On 13 March 2015, and 28 April 2015, the plaintiff saw the defendant and was given further scripts for Panadeine Forte.
On 14 May 2015, the plaintiff saw the defendant again and the clinical notes record as follows:
Thursday May 14 2015 9:30:38
Dr Soroush Ziaee
Localised hyperkeratosis
advised for warm water for 20 min
scrab
Actions:
Prescription added: WART CLEAR LIQUID 17%/17% as direct
Prescription printed:
WART CLEAR LIQUID 17%/17% as direct
The defendant described the wart clear liquid as being a “stronger keratolic agent”. By reference to the above notes, he said his advice usually would have been to soak the affected area in the water for 20 minutes, then scrub the foot with the pumice stone and then use some cream.
On 6 August 2015, the plaintiff again consulted the defendant. The plaintiff was given a prescription for Panadeine Forte and Wart Clear Liquid. He was also given a medical certificate.
On 19 August 2015, the plaintiff presented to the defendant once again. The defendant’s notes record that the plaintiff needed a Centrelink certificate, and that “he [claims he] is [n]ot able to walk due to lesion over the Plantar area”. No further prescription is recorded.
On 19 December 2015, the plaintiff again saw the defendant for a further script for Panadeine Forte and was also prescribed Betamethasone ointment for an unrelated dermatitis condition over his arms.
The next time the plaintiff saw the defendant in relation to his foot was on 13 March 2016. The defendant’s clinical notes of this occasion set out the results of a general examination conducted by the defendant as follows:
…
Examination:
General: Not clinically anaemic. Not jaundiced. Not centrally cyanosed. Not peripherally cyanosed. No finger clubbing. No spider naevi. No abnormal bruising. No thinning of skin. Not dehydrated.
…
This was said to be a general examination with no specific finding. The defendant provided further medical certificates and prescribed a stronger painkiller, Tramadol. He also asked to see the plaintiff for a review in two weeks’ time.
A similar examination occurred at the defendant’s review of the plaintiff on 30 March 2016. The defendant again provided a script for Panadeine Forte. This repeated provision of scripts for pain relief without any other means of advancing the plaintiff’s treatment for such a lengthy period of time is what led counsel for the plaintiff to refer to the state of affairs that emerged from the evidence as being one of a man who was effectively in a “holding pattern”. Although that description was not accepted by the defendant, I accept it as being an accurate characterisation of the state of affairs.
A deterioration in the condition of the plaintiff’s right foot
On the evening of 2 August 2016, the plaintiff took himself to Calvary Hospital, suffering severe pain relating to the corn on the sole of his right foot. He was discharged in the early hours of the following morning with a diagnosis that his foot had become infected. He was told to present to Calvary Hospital after 8.30am so that x-rays could be taken.
The plaintiff evidently did this, as there is a record of the plaintiff attending the Emergency Department of Calvary Hospital on 3 August 2016. The discharge summary to GP and Specialist provided by the Emergency Department states as follows:
Thank you for reviewing Michael who represented as planned from overnight for x-ray of his foot with painful corn to base ? osteomyelitis.
HPC
- Infected corn on sole of right foot for past 2 years.
- Worsening pain over past few weeks to point where walking, driving very difficult.
- Sometimes feels faint from pain.
- Reports ultrasound last year showed deep infection. Reports S. aureus infection.
- Denies fevers.
- GP has been prescribing Panadeine Forte but this is no longer very effective.
- Awaiting surgery but has not heard about a date.
…
O/E
- corn is clean, hol[e] in central aspect of corn wound with superficial tunnelling
- there is no surrounding redness to corn or surrounding area
- stabbing pain on palpation of immediate surrounding area however not extending into the dorsum or foot or toes
- movement of toes does not increase pain
- Afebrile
- Very antalgic gait.
The Discharge Diagnosis was
Metatarsalgia secondary to corn placing pressure on nerve endings
The management in the ED and discharge plan is
Management:
X-Ray – see report below
Chased pathology from last night – as below
Reviewed with ED Consultant – as below:
Recommend GP review today to consider:
- Amitriptyline at night to assist with nerve pain
- Chasing surgical referral attended 1 year ago
Have suggested to patient a podiatrist review may be beneficial to assist in managing until surgical intervention.
The plaintiff acted upon that suggestion. He saw a podiatrist at the Walking Clinic the same day. The notes made by the podiatrist on 3 August 2016 are as follows:
S: pt presented with ED discharge notes – have had an ongoing history of pain with his corn, it initially was just a corn then one day it popped open and lots of pus came out, then its been opening and closing since. GP took to it with a blade and it hurt a lot, bled a lot, and made my toes tingle – GP said that was the nerves. Went to ED with it last night because the pain was the worst I’ve ever experienced.
O: Large, complicated hyperkeratotic lesion plantar 2nd-3rd met head right foot. There is a central crevice shaped hardened Hk lesion, with scar tissue partially overlying. It is too painful to touch with light touch.
A: Was unable to debride due to pt’s perceived idea of how much it would hurt. Padded with 10mm molefoam and stuck to foot with large cutout around lesion. Advised take the rest of the week off work and come back on Monday, having taken recommended level of Endone one hour prior to arrival – please get a lift to and from the appointment, do not drive.
P: Review Monday, attempt debridement of devitalised tissue. Suspect will need debridement under heavy sedation with surgeon – unsure how to get this via referral pathway, will call GP and suss it out – something fishy about story.
NB
Called GP and spoke to Dr who last treated him at Tristar medical group (didn’t give spelling, hard to hear clearly over the phone)
GP reported not having seen Michael in the clinic for approx 2 months, he was recommended surgery and given a referral to general surgeon to have the lesion removed, this was the last contact [G]P clinic has had with Michael.
Report to GP my consult – too painful to touch, recent ED admission and discharge.
Agreed with GP that general surgery is appropriate referral and reported that Michael stated that when he called the referred clinic they said they were a heart specialist and couldn’t help him so he hadn’t followed through.
GP asked me to request that Michael come back in to see him and he would repeat the referral pathway.
I agreed that this would be a good idea, as there is very little we can do for him if conservative debridement is non viable treatment option.
[Below is a further note made on 10 August 2016]
Pt failed to attend appointment. Unable to reach by phone. Unable to convey message from GP.
This note greatly assists with piecing together the chronology of events. The plaintiff’s account on the timing was at odds with the record and this is one of the occasions where I consider the clinical record to be the more accurate history.
On 4 August 2016, the plaintiff saw the defendant. This was obviously after the podiatrist called the defendant, as he had told her that he had not seen the plaintiff for about two months. The clinical notes record:
Thursday August 4 2016 14:31:23
Dr Soroush Ziaee
Still complaint of pain over the Rt foot
Been in Calvary HospitalActions:
Prescription added: ENDONE TABLET 5mg one b.d
Prescriptions printed:
ENDONE TABLET 5 mg one b.d
Two things may be observed about the podiatrist’s record and the plaintiff’s subsequent consultation with the defendant the following day.
First, despite telling the podiatrist that he would repeat the referral pathway, the defendant plainly did not write any further referral or follow up on the previous referrals that he had issued. That was not his evidence and any such advice is not recorded in the notes. Indeed, the defendant does not appear to have discussed the surgical approach he had suggested to the podiatrist at all.
Second, the plaintiff went to the Walking Clinic on Wednesday, 3 August 2016. The appointment that was made for him was on the following Monday, 8 August 2016. It is evident that the reason the plaintiff did not attend the podiatrist appointment (as recorded in the last sentence of the above notes at [89]) was because the plaintiff had been admitted to Calvary hospital the day before for emergency surgery.
On 7 August 2016, the plaintiff attended the Emergency Department at Calvary Hospital, presenting with a lump on his foot that he said was now the size of his hand, and pain that had increased to the point that he could no longer withstand it, even with the Endone he had been prescribed. Two 5mg doses of morphine, administered by nurses at Calvary Hospital, similarly had no effect. At this point the plaintiff’s recollection was that there was also “redness, greenness, yellow, blackness” on his foot. The notes record the plaintiff as being in a wheelchair, in obvious distress and crying.
The plaintiff was transferred to Canberra Hospital due to the speed at which the infection in his foot was spreading. The discharge summary records that the plaintiff was admitted for acute care. He was finally discharged from the orthopaedic surgery unit on 22 August 2016.
During that time, two operations or procedures were carried out. The first was described as in the hospital records as an incision and drainage of right foot abscess, on 9 August 2016. The second was a debridement and washout right foot abscess. A swab of the foot showed heavy growth of mixed anaerobic bacteria.
The plaintiff was then prescribed a combination of three antibiotics, and provided with what might be characterised as standard follow up care, with wound review and wound dressing changes, blood tests and monitoring.
After that date, the plaintiff ceased attending the Practice.
What precautions should have been taken?
The general practitioners who provided medico-legal reports and expert evidence on the question, Associate Professor Clyne and Dr Gooding, were at odds as to what treatment a reasonable general practitioner would have provided in the factual circumstances set out above.
Associate Professor Clyne’s view was that where a patient had a large abscess in the deep tissue of the foot, where there are many densely packed anatomical structures and where local anaesthesia may be difficult to obtain, it was necessary that the abscess be incised and drained under proper operating conditions. The plaintiff should have been referred to a specialist surgeon and such referral should have been followed up.
Associate Professor Clyne further indicated that where the patient was facing delays in a public health system, a general practitioner may need to devise alternative strategies and advocate for their patient. This may include attempting to ring a surgeon or otherwise escalate the process, or to discuss generally his patient’s case with the specialist so as to receive expert advice on management. That in turn may include arrangements for a referral.
In oral evidence, Professor Clyne said as follows:
… [G]eneral practitioners have a duty to do their best for their patients in those circumstances to try to give them the health care that they need. Now, they may succeed, they may not succeed. But in the same way … you don't walk past a dying person on the street because we think we can't help, we try, and in this case, there's a duty to try.
Dr Gooding’s expert report dealt first with whether the contents of the referrals provided by the defendant met a particular standard. His view was that they did.
He was then asked to comment upon the specific question of whether a surgical referral for treatment was in accordance with a reasonable standard of practice. His view was that it was. Dr Gooding considered that the second referral was also in accordance with a reasonable standard of practice.
Dr Gooding did not consider there was any urgency for further treatment, and that reasonable treatment was to organise a specialist clinic appointment and for the plaintiff to then wait for a spot at the clinic. As the defendant had referred the plaintiff, there was “no act of omission”.
Dr Gooding was then asked two limited questions as to the practicalities of ringing the outpatients’ clinic at the Canberra Hospital or, alternatively, a general practitioner contacting a private surgeon. As to the first, Dr Gooding’s view was that the action was highly unlikely to result in an earlier date being given. The relevant part of his report went on to state:
… Sometimes it is suggested that the GP can call the hospital and discuss the case in order to obtain an earlier appointment. In practice this only makes a difference if there has been a significant change in the patient’s condition that is very likely to lead to a very significantly adverse outcome if not attended to earlier … the public hospital system caters well for acute emergencies, serious acute illness, and other life-threatening illness such as cancer, but if a patient has a very painful, but not life-threatening problem, then obtaining earlier treatment is generally not possible.
As to Associate Professor Clyne’s suggestion that it may have been appropriate for a general practitioner to contact a private surgeon, Dr Gooding stated:
Assessment and treatment with a private surgeon within our locality would not be at all practical in [circumstances where the patient had no capacity to pay for surgical treatment privately]. Without private health insurance, or the financial means to cover the very significant gap payments incurred obtaining treatment in a private setting, this would not have been an option available to Mr Rubino.
During oral evidence, Dr Gooding was asked about what steps should have been taken following referral, including the option of ringing the hospital. Dr Gooding said as follows:
In my experience, that would simply lead to the doctor then being requested to provide additional written information.
…
And if there was additional written information that would suggest that there was a greater urgency, then that could make a difference potentially, but if there wasn't any information suggesting that the condition required more urgent treatment, then I wouldn't anticipate that that would make much [difference] within the ACT system.
That answer was directed more to what would have happened had a call been made, rather than whether it was incumbent upon the reasonable general practitioner to first make the call. The answer also assumed an active referral was in the system.
Later in evidence, Dr Gooding’s evidence was that it was “very reasonable and good practice to discuss all possible referral options”.
While the evidence of the experts was of significant assistance, I do not wholly prefer either opinion over the other, and in any event, on the authorities set out above (for example, Naxakis), the evidence of experts in the relevant field is not determinative. The defendant submitted that Dr Gooding’s evidence should be preferred in part because he had familiarity with the local practice in the ACT and the local health system. While I accept there may be cases where the location of general practitioner may have some bearing on the standard of care expected (see for example, Richards v Rahilly [2005] NSWSC 352 at [145]), I have not found it necessary or appropriate to approach this case from a perspective that there is something special or unique about general practitioners working in the Territory that warrants any preference of Dr Gooding’s evidence on the question of the content of the duty over that of Associate Professor Clyne for that reason.
As at 5 February 2014, the facts known to the reasonable general practitioner were that there was an ongoing hyperkeratosis, that it was very painful to walk on and was affecting the patient’s ability to work, that antibiotics had assisted with infection, and that the hyperkeratosis was unlikely to resolve without incision and debridement, but that urgent treatment was not required.
At that point, I find that a reasonable practitioner would have referred the patient for surgery. That is the evidence of both the general practitioners. The reasonable practitioner would then have waited for a reasonable period of time for the recipient of the referral to act upon it. In circumstances where the issue requiring surgery was not urgent and the referral pathway was through the public health system, a month is a reasonable time.
A reasonable general practitioner would also have recommended some basic measures that could be done in the meantime to reduce the severity of the problem, such as using a pumice stone and attending a podiatrist for assistance.
From May 2014 (being the date of the next consultation with the general practitioner), if no response to the written referral had been received, and on the basis that three months had now passed since the referral had been made, I find that a reasonable practitioner in the circumstances would have followed up to find out what was happening, whether by telephone or in writing.
A reasonable general practitioner would also have followed up on what the patient had been doing to improve the condition of the foot. This should have included discussing steps the patient could take that did not need a referral, such as attending a podiatrist.
From June 2014, the reasonable general practitioner would also have the added knowledge that the patient’s physical condition and constant pain were contributing to a deterioration in the patient’s mental health, with a need for medical intervention by way of anti-depressive medication. With that extra information, a reasonable general practitioner would have ensured that the patient had been processed through the system and placed on the relevant list for surgery, perhaps with some idea of the approximate wait times.
A reasonable general practitioner would have again advised about the various conservative debridement measures, which may include ointments available from the pharmacy, scrubbing with a pumice stone, and attending a podiatrist.
I also accept Associate Professor Clyne’s evidence that a reasonable general practitioner may have attempted to ring a private surgeon for advice. I accept that a reasonable general practitioner, in the circumstances detailed above (where the patient was repeatedly attending the practice with significant ongoing pain), had a duty to try to assist the patient to progress a resolution. A phone call is not a burdensome precaution or measure for a general practitioner to take. However, I consider that such conduct is affected by s 44(b) of the Act (set out above at [37]), in that it is a different way of attempting to have the patient seen by a specialist. It does not of itself indicate that the referral pathway chosen by the defendant was unreasonable.
In any event, I do not accept that a general practitioner would have gone so far as to start making enquiries of whether there were any surgeons able to take on a public patient, at least without telephoning the hospital that had received the referral first to get a better understanding about the status of the referral. The defendant’s evidence was that if he started begging surgeons to take his public patients, no surgeon would ever take his call again. Such a concern would carry even greater force, in my view, if the general practitioner had not at least telephoned the hospital who received the referral, to try to find out how long it would take for his public patient to be seen by a specialist with a view to confirming that, as a first step, surgery was in fact appropriate.
What the circumstances of this case really call attention to is whether the duty of the reasonable general practitioner, which was to ensure the patient had access to specialised treatment that the general practitioner thought was necessary or desirable, ceased at the writing of a second referral letter.
Applying what has been set out in Tai v Hatzistavrou above at [27], reasonable precautionary measures were required to ensure that the defendant’s selected treatment course through referral was effective. As at 22 December 2014, following the consultation with the plaintiff, the reasonable general practitioner would have knowledge that the patient was on a waiting list for surgery. Whether that was a mistaken belief, it was the fact believed at the time, as recorded in the defendant’s notes of that consultation.
The general practitioner also knew the pain the patient was in, and the impact on the psychological state of the patient. Even taking account of Dr Gooding’s evidence about the realities of wait lists for surgery on public lists, following up on the referral after the consultation in December 2014 would not have been unduly onerous or costly. It would have been a reasonable precautionary measure to take. In the absence of receiving any communication from the recipient of the referral, I consider it to have been the minimum precaution forming part of the reasonable care to be taken to ensure that the selected treatment course through referral was effective. The circumstances were that the defendant had directly referred the patient, rather than, for example, printing a referral for the patient and leaving it to the patient to then make an appointment and provide the referral to the specialist at any subsequent appointment. If Dr Gooding’s evidence was to the effect that after such a significant period of time had passed, leaving it entirely to the patient to follow up a GP’s direct referral to a public hospital was appropriate clinical management of the second referral, that evidence is rejected.
I find that a reasonable general practitioner would have made enquiries of the hospital as to the expected timing of a consultation to confirm surgery was required, or if it was assumed such consultation had happened, whether any information that could be provided as to the timing of the surgery.
After the consultation on 14 May 2015, a reasonable practitioner would have the knowledge that his patient’s condition was not improving, he had been on Panadeine Forte for over a year, he was in significant pain, he was depressed and he was still awaiting surgery in the public health system. There can be no question that the reasonable practitioner would have taken action to follow up or escalate the surgical referral.
From 3 August 2016, the general practitioner treating the patient would have knowledge of the additional circumstances, namely (a) that the patient had been in the emergency department with acute pain, and (b) that he had seen a podiatrist, whose view was that the patient would need “debridement under heavy sedation with surgeon” (that is, surgery). The general practitioner would also have had the knowledge (from the podiatrist) that the patient was scheduled to re-attend on 8 August 2016, and that the patient had been advised to take stronger painkillers (Endone) before attending. Acting reasonably, a general practitioner would have examined the foot and if there was evidence or concern about an infection, prescribed antibiotics and well as the stronger painkillers, and awaited the outcome from the treatment by the podiatrist on 8 August 2016.
Did the defendant breach the standard of care owed to the plaintiff?
Determination of breach is a prospective inquiry that should focus on “foresight” of the risk of injury, rather than hindsight: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [126] per Hayne J.
The factual history set out above was relevant to understanding the facts known to the ordinary general practitioner acting reasonably at various points in the history of the treatment relationship between the plaintiff and the defendant. It also records what the defendant actually did, so as to enable the Court to measure the defendant’s conduct against the standard of care as found.
In essence, the plaintiff contended that the defendant’s “referral and the follow up for the referral fell below an appropriate standard”. The plaintiff argued the defendant owed him a duty to “do more than just prescribe Panadeine Forte and say, ‘Let’s just wait and hear from the hospital’”.
Central to the plaintiff’s case is the argument that the defendant did not refer the plaintiff to a surgeon in an “efficient and proper manner, where he took control of the referral”. The plaintiff submitted that it was not up to the plaintiff to make the appointment with the surgeon. The defendant was aware of the plaintiff’s “significant and ongoing problems” but did nothing and did not even call the surgeon. The plaintiff submitted that he should have seen a surgeon within one year of the referral, but that nothing was done for two and a half years. As the defendant had control over the referral process, he was responsible for the delay in the referral.
The expert medical evidence supported this contention. Associate Professor Clyne’s report stated that a conservative treatment for over two years with pain killers was not an appropriate clinical response. It was not a sufficient precaution to simply to manage the patient’s pain and wait for that period of time.
In a supplementary report, Associate Professor Clyne was critical of why the defendant wrote a second referral rather than ringing the surgery outpatients’ department to enquire about or escalate the first referral. Associate Professor Clyne’s view was that simply writing a second referral, without then taking any further follow up action, did not meet the relevant standard for following up and intervening to ensure the plaintiff received prompt and timely treatment.
Dr Gooding did not deal with whether there was a point in time where a general practitioner should have taken steps to follow up a referral that had been made many months earlier. Dr Gooding considered the defendant’s conduct to accord with reasonable clinical practice because he had organised a specialist clinic appointment and for the patient to wait for a spot at the clinic.
Dr Gooding’s evidence was focussed more on what may have happened in terms of public waiting lists for surgery and the hospital’s response to a general practitioner following up. His evidence addressed the adequacy of the contents of the referral. As I understood the reasoning, in part this was because if the general practitioner contacted the hospital about a low priority operation, the hospital would have asked for more information to see whether escalation was appropriate.
Given that the failure to devise a plan was pleaded as an ongoing failure, what is required is effectively an analysis of each consultation, which is why the clinical history and the findings as to the content of the duty at various stages of treatment (with the changing factual matrix) have been set out in admittedly somewhat tedious detail above.
Consideration
Dealing first with the allegation that the defendant performed an excision of the corn under local anaesthetic at his rooms on 5 February 2014, although this was initially pleaded as being negligent treatment, what was ultimately pursued was a case that if the corn was infected at that date, then the procedure should not have been performed at all. Further, to the extent that the excision was ineffective, the defendant then failed to devise, implement and maintain an effective treatment plan with regard to the plaintiff’s presenting complaint.
Although I have found the defendant undertook a procedure on 5 February 2014, I am not satisfied that it was inappropriate treatment. I am also not satisfied that the defendant had failed to devise an appropriate treatment plan. At that point, the defendant had examined the foot, taken a swab, treated the infection, and managed the plaintiff’s pain through prescribing painkillers. The condition was relatively common and did not require urgent treatment. Attempting to assist the plaintiff in his rooms by effecting some form of debridement under local anaesthetic before referring the plaintiff for surgery was not beyond a range of measures a reasonable general practitioner might take.
I am also satisfied the defendant met the standard of care required of a reasonable general practitioner in March and May 2014, when he issued each referral. Again, that was a reasonable measure, in light of the clear evidence from the expert general practitioners that referral was appropriate.
However, from June 2014 to December 2014, any treatment plan the defendant had devised appears to have lost its way. The plaintiff had not been seen by a surgeon for the best part of a year. Even if the plaintiff had told the defendant that he was on a wait list for surgery in December 2014, that must have been unlikely and indeed would have seemed unlikely to the defendant when, as far as he knew, the plaintiff had not been seen by anyone to confirm that surgery was appropriate.
I have found that by December 2014, in light of the silence from Canberra Hospital and apparent lack of progress, a follow up phone call or some attempt at communication with the recipient of the referral was a reasonable precautionary measure to take in order to ensure that the defendant’s selected treatment course through referral was effective. It is clear that the defendant did not take that step. I am not satisfied the defendant took any step from that date to satisfy himself that the plaintiff, as his patient, had not somehow got lost in the system. In that regard, there was a breach of the defendant’s duty of care.
By May 2015, the breach is even more clear. The evidence before the Court was that a patient with a condition that had been triaged at Canberra Hospital and given a level 3 (non-urgent), and might have to wait a year for surgery. Accepting the defendant worked in a busy medical practice, the defendant can still be expected to have some knowledge of his own clinical notes or at least to have reviewed them briefly before seeing the plaintiff. Accordingly, at that consultation, the defendant either knew or ought to have known that the second referral:
(a)Had not resulted in the plaintiff even seeing a surgeon within 12 months; or
(b)If he was under the belief that the plaintiff was on a wait list for surgery (that is, surgery had been confirmed by a specialist as appropriate), the surgery had not taken place and neither he nor the plaintiff had any indication of when such surgery was likely.
By May 2015, given the frequency with which the plaintiff was attending for strong pain relieving medication, his depressed mood, the fact that the condition had been affecting his ability to work for some time, and the fact that the defendant had not had any correspondence in relation to the referral, I accept the circumstances required an ordinary general practitioner acting reasonably to follow up the referral and find out what was going on. There was further information that the general practitioner could have provided to the hospital in terms of the consequences the injury was having on the plaintiff. I also accept that if a reasonable general practitioner had been given information of a delay in surgery, that they would have attempted to speak with a surgeon as to what might be an alternative response or encourage the plaintiff to attend to other means of reducing the impact of the problem in the meantime, such as attending a podiatrist.
Returning to the decision of Tai v Hatzistavrou, the NSW Court of Appeal there dealt with circumstances where a specialist gynaecologist filled out an admission form for surgery at the public hospital. The patient waited for the hospital to contact her and her specialist gynaecologist with the date for the procedure. The form was lost in hospital administration and the date for the procedure was never set. The gynaecologist did not follow up. Ten months later, the patient returned to the gynaecologist, who immediately booked the patient in for the surgical procedure he had considered necessary. The procedure revealed the patient had cancer and it was found that the delay in detection meant the cancer had spread.
The Court of Appeal confirmed that the specialist had been negligent in not better monitoring the patient’s progress. Priestley JA (with whom Handley JA agreed) stated at [86]-[87]:
86.In my opinion the defendant's practice in regard to his sending of patients to the Auburn District Hospital to put into train the fixing of dates for operations he advised them to have, was defective. No doubt, on most occasions, the arrangements made by the patients resulted in their being operated on at an appropriate time, as had happened with the plaintiff's two previous D and Cs. However, the defect in his practice was there and led, in the circumstances now before the court, to a dangerous delay in the diagnosis of the plaintiff's cancer.
87.I express no opinion on the question whether the Hospital and the plaintiff should be regarded as sharing the blame for the delayed diagnosis. The Hospital's position was not litigated before the trial judge and this court is not in a position to say anything about it. The question of the plaintiff's possible contributory negligence was litigated before the trial judge and he found in the plaintiff's favour. The defendant did not raise this aspect of the case in the appeal, so that, again, this court is not in a position to express any opinion about it.
I have included [87] of the reasoning because the same position exists in the present case, namely that a case against the relevant hospital was not litigated and contributory negligence was not raised.
In the same decision, Powell JA (with whom Handley JA also agreed) reached a similar conclusion, stating at [107] (emphasis added):
107.… In the present case, the Appellant, having considered - rightly - that in order that he might properly diagnose the cause of, and prescribe appropriate treatment for, the Respondent's complaint, he should carry out a dilation and curettage, and having put in train the steps for that to be done, by reason of what appears to have been inadequacies in his own system, failed to ensure that the procedure which he considered necessary in the Respondent's interests was carried out, the results obtained and the Respondent advised accordingly. That being so, he, in my view failed in his duty to the Respondent.
Here, all that the defendant really did for a two-year period was manage the plaintiff’s ongoing severe pain. He did not in fact have any treatment strategy during that time, apart from periodic advice to scrub the foot, and the recommendation to apply wart liquid (which the orthopaedic evidence said was incorrect treatment but was not a matter that was itself alleged to be negligent). There was no evidence of any system for following up referrals, but this was not a case where the plaintiff disappeared from the Practice for a period of time, so as to direct attention to the existence and adequacy of any follow-up system. The circumstances here were that having set in train steps the defendant thought necessary for the further treatment of the plaintiff’s foot, and, through regular consultations, having the knowledge that the plaintiff had exercised his personal autonomy to follow his advice to see a specialist, the defendant then took no steps at all from May 2014 to ensure that the referral pathway he initiated was effective.
I am therefore persuaded that from at least December 2014, the referral pathway, in terms of ensuring the plaintiff had access to specialist advice, was not managed with due care and skill. I accept there was a failure to ensure the plaintiff received specialist surgical treatment in a timely manner, including following up in relation to the referral that had been issued.
It should be made clear that the failure that has been found is a result of the particular circumstances of the case before the Court. It is not to be taken as a finding that a general practitioner has a more general duty to follow up any time a referral is made for consultation by a specialist.
I would also have separately found the treatment of the plaintiff was not carried out with due care and skill because there was a failure to develop any treatment strategy separate to waiting for surgery, as distinct from simply pain management. However, as will be discussed further when considering causation, that is not something the plaintiff can take very far. While the plaintiff’s pleading refers to a failure to devise, implement and maintain an effective treatment plan, and a failure to treat the plaintiff’s presenting complaint, the pleading does not identify what constituted an effective treatment plan. When the defendant asked this question of the plaintiff through requests for particulars, the plaintiff expressly relied on Associate Professor Clyne’s evidence in that regard. As set out above, Associate Professor Clyne’s evidence was that the appropriate treatment strategy involved proper and adequate incision and drainage through surgical treatment. That circles the case back to the referral. That is the case that was pursued at the hearing and I have proceeded accordingly below.
Did the breaches cause the injuries the plaintiff claims to have suffered?
Section 45 of the Act addresses how the Court is to approach causation. It is in the following terms:
45General principles
(1)A decision that negligence caused particular harm comprises the following elements:
(a)that the negligence was a necessary condition of the happening of the harm (‘factual causation’);
(b)that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability).
(2)However, if a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number of different people (the defendants) and it is not possible to assign responsibility for causing the harm to 1 or more of them—
(a)the court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but
(b)the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability.
(3)In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.
It is worth noting the following section as to the burden of proof:
46Burden of proof
In deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.
(Notes omitted)
As submitted by the defendant, this aspect of the claim requires assessment of a hypothetical. In Tabet v Gett [2010] HCA 12; 240 CLR 537, Hayne and Bell JJ held at [66] (citations omitted):
66For the purposes of the law of negligence, "damage" refers to some difference to the plaintiff. The difference must be detrimental. What must be demonstrated (in the sense that the tribunal of fact must be persuaded that it is more probable than not) is that a difference has been brought about and that the defendant's negligence was a cause of that difference. The comparison invoked by reference to "difference" is between the relevant state of affairs as they existed after the negligent act or omission, and the state of affairs that would have existed had the negligent act or omission not occurred.
In the same case, Kiefel J (as her Honour then was) similarly stated at [140] (again, citations omitted):
140The issue whether damage has been caused by a negligent act invites a comparison between a plaintiff's present position and what would have been the position in the absence of the defendant's negligence. Such an inquiry directs attention to all the circumstances pertaining to the plaintiff's condition at the time he or she sought the medical treatment which was not properly provided. The question of whether harm or damage has been suffered is bound up in the question of causation.
What would have been the position if the defendant had followed up the referral?
The plaintiff contended that if an effective treatment plan had been devised years earlier, the foot would ultimately not have become infected in August 2016 to the point where he required emergency surgery. Further, if the hyperkeratosis had been properly treated, then the plaintiff would not be suffering the various disabilities that he is now.
The evidence of the general practitioners was directed towards hospital waiting periods and the fact that, if not infected, the foot condition was a common complaint not requiring urgent surgery and would accordingly have been given low priority for surgery in the public health system. That may have been true, but the evidence before the Court (such as it was) indicated that the reason there was a lengthy delay in surgical treatment for the plaintiff was not that the plaintiff was on any waiting list for surgery and had been accorded low priority. He had not even been seen by a surgeon so as to assess whether surgery was appropriate. Something went awry so that the surgical referral to the Canberra Hospital had not been effective. No further action was taken by the hospital.
Both Professor Sekel and Associate Professor Miniter identified that something had gone wrong with the referral process. Professor Sekel said:
It is unclear why the referral to a surgical clinic did not eventuate in February/December 2014 or early 2015. When [the plaintiff] informed [the defendant] the appointment had not yet been organised then [the defendant] should have organized a further referral letter with a semi-urgent request for treatment.
Associate Professor Miniter said:
It would appear that there has been a collection of infective material develop over a long period of time … [By August 2016], the purulent material has accumulated into an abscess which required surgical drainage.
The confusing part of this matter is the exact nature of the referral process from the GP. As I mentioned earlier, the normal procedure for referral by a GP to a surgeon is for the patient to be given a referral letter and it is then the patient’s responsibility perhaps with some oversight from the General Practitioner to ensure that further management is undertaken …
Had the defendant followed up by telephoning the hospital outpatients department in the months following the referrals, what he would have discovered is that, for whatever reason, the referral pathway was ineffective to achieve the advice and treatment from a specialist that he considered was necessary or desirable.
I think it is likely that, had the defendant known the process he had initiated had been thwarted by oversight, mistake or misinformation, he would have been able to take whatever measures were necessary to at least get the plaintiff seen by a specialist for some sort of initial advice (whether that be by re-referral and providing more information on the referral, writing to a different specialist, or recommending to the plaintiff to present at the emergency department and wait for review by orthopaedic registrar, which is what he ultimately did).
What then, would the advice likely have been?
The competing expert opinions
The orthopaedic surgeon experts were agreed that where an abscess has developed, surgical drainage is necessary.
The orthopaedic surgeon experts were also agreed that otherwise, conservative measures undertaken by a podiatrist would have first been appropriate.
The evidence established that, had an effective or operative referral been in existence and a surgical procedure was necessary, such surgery through the public health system is likely to have occurred within a year.
Importantly, the surgery in August 2016 was to drain an abscess. It did not fix the foot. Where the experts differed was whether surgery was necessary at all.
For the plaintiff, Professor Sekel considered there was a recurrent hyperkeratosis, the underlying cause of which had not yet been adequately assessed or treated. Professor Sekel recommended surgical correction of the mechanical cause for the hyperkeratosis to prevent further deterioration, pain and suffering. The recommendation was a metatarsal osteotomy and/or repair of the volar plate tear treatment following surgery (depending on the result of an MRI scan).
This is reflected in the following evidence:
Chiropodists can temporarily assist by gently removing the hyperkeratotic skin, but this gives only temporary relief as the hypertrophic skin redevelops as the primary problem has not been corrected.
Should problems persist, as they usually do, then referral for specialist management should be organised.
His opinion was as follows:
The procedure carried out in August 2016 at the Canberra Hospital would not have been necessary in February 2014, and would not have been needed later in 2016 if the metatarsalgia problem had been addressed soon after February 2014.
Professor Sekel later said as follows:
It is my opinion that … had [the plaintiff] been referred to a specialist clinic then he would have not suffered continuous pain and recurrent infections of the right foot until appropriate surgery was carried out in August, 2016.
Had there been a deep seated abscess in the sole of the foot, as presumed, then surgical treatment may not have differed in February 2014 in comparison to August, 2016.
In a supplementary report, Professor Sekel stated:
Had adequate treatment been provided then it is more likely than not (greater than 51% chance) that the hyperkeratosis recurrence and repeated infection would have been avoided, that the antalgic limp and gait pattern would have been avoided and that a more normal gait pattern would have been able to be adopted and walking distance increased.
In a further supplementary report, Professor Sekel clarified what he meant by “adequate treatment” in the above extract, as being early referral by the general practitioner to an orthopaedic specialist clinic in September 2013 and definitely in February 2014, when a deep infection was present and established. That is provided by way of context for the above evidence. A breach of duty of care has only been accepted from May 2015.
For the defendant, Associate Professor Miniter considered the plaintiff had a cavo varus on the affected side – that is, there was a biomechanical reason for the hyperkeratosis developing – that it would reoccur, but that it could be managed through podiatry, not surgical intervention.
Associate Professor Miniter’s evidence included the following:
Hyperkeratosis is either [a] dermatological condition or due to local overload where the patient has a deformity that predisposes them to local pressure and subsequent hyperkeratosis and is not uncommonly seen in the community. Its management is by softening of the thickened soft tissues and debridement of the hyperkeratotic areas. This is often undertaken by a podiatrist or by a General Practitioner with an interest in this area.
…
… the claimant has a degree of cavo varus on the affected side, that is on the right hand side, the side that has caused him the issues. It is likely that the cavo varus is implicit in the ongoing nature of his presentation as the increased weight through the forefoot, particularly over the 1st and 2nd rays, causes increased pressure. There is therefore a biomechanical reason for this gentleman having increased symptoms on the side in question.
Associate Professor Miniter later said:
In my opinion, the hyperkeratosis relating to the recurrence of this matter is simply a reflection of the underlying disease process which led to the problem in the first place. One would expect hyperkeratotic skin to recur and one would also have expected this gentleman to have engaged in treatment with a podiatrist or similar to deal with this on both feet.
As to treatment recommendations post surgery in August 2016, Associate Professor Miniter’s view was as follows:
I believe that if these lesions were carefully debrided by a podiatrist with softening material provided to the area on a regular basis that the matter could be managed without surgical involvement.
Findings
The defendant during the hearing took issue with the case that unfolded in the evidence that the plaintiff should have seen a podiatrist. That aspect of the case arose in part from the evidence that was given by the orthopaedic surgeons. The defendant maintained that was a case that had not been pleaded. It was not put to the defendant in cross-examination that a failure to advise the plaintiff to see a podiatrist, at an earlier stage, was a breach of duty, nor did the defendant have the opportunity to lead evidence from a podiatrist as to what would have occurred.
It is thus important to make clear that the pleaded case deals with the referral to an appropriate specialist, being an orthopaedic surgeon, and the Court is dealing with what is likely to have occurred if an effective referral pathway had occurred, so as to assess whether the defendant’s failure was a necessary condition of the harm suffered. As stated above at [151], it is appreciated that what might have been a much simpler case, as to treatment by way of directly advising the plaintiff to attend upon a podiatrist which did not require any referral, was not advanced.
On that basis, if seen in a more timely manner by a specialist, I find the plaintiff would have:
(a)Followed the advice he received from said specialist;
(b)Undertaken conservative measures, and seen a podiatrist over a reasonable period, which I have estimated to be three months (based on Professor Sekel’s evidence about relief in that regard being only temporary if the underlying cause is not addressed);
(c)If that was ineffective, or if the podiatrist formed the view that debridement under sedation was required due to the patient’s pain threshold (or perception of likely pain), ultimately had surgery; and
(d)Taken steps to manage the underlying cause being a biomechanical problem, either through surgery or less interventionist means.
In making the above findings, it is appreciated that doubts were expressed in places in the evidence about the plaintiff turning up to medical appointments or following advice. The plaintiff attributed his mental health issues to his foot condition and “feeling down in the dumps, like, not really being … able to do my physical stuff that I’m normally able to do”. The plaintiff’s wife also described the plaintiff as being in “a state of depression”. The plaintiff could not step on uneven ground because “it would just drop him straight down on the ground”.
In my view, the motivation and conduct of a person whose mental and physical state has expressly been affected by significant ongoing pain and a poor experience with the health system is not the proper measure of what the plaintiff would have done had he seen a specialist in a timely manner and had some hope of improvement in a matter of months, as opposed to years.
The plaintiff’s frequency in attending his general practitioner is demonstrative of a person who needs their condition to improve in order to reduce the pain to a level where he can walk and work with the strong pain medication being prescribed. He went for x-rays, took the antibiotics, and attended the podiatrist when the emergency department suggested he do so. He did not allow the general practitioner to attempt to use a pumice stone on one occasion where he had no advance warning of what might occur, but he did agree to attend upon the podiatrist in August 2016 for debridement, having taken proper medication for management of his pain in advance.
On the balance of probabilities, and if it is assumed surgery was even necessary, the surgical procedure the plaintiff had in August 2016 (followed by a second procedure) would have occurred at least a year earlier than it did, and in circumstances without a scale of infection that made the surgery urgent. It is also likely that the pain experienced by the plaintiff in the meantime would have been much less, and his mobility would have been increased.
Significantly though, as the extracts of the competing expert evidence above demonstrate, the problem would have recurred and required ongoing management, if not surgery. I accept that either a metatarsal osteotomy or management under a podiatrist with appropriate orthotics and debridement would have been appropriate.
It is unnecessary to resolve which of those two options would have occurred. Medical problems may be reasonably treated in different ways. Whatever option was recommended, I find that the plaintiff would have followed the specialist advice and whichever way the problem was addressed would have allowed the plaintiff to work with an improved level of physical movement and without the significant pain that required daily doses of Panadeine Forte.
While the delay in getting advice and treatment is attributable to the defendant, the need for further surgery to remedy an underlying biomechanical cause, or other appropriate treatment, is not. I am not persuaded that any failure by the defendant gave rise to any present need for further assessment and further surgery or the plaintiff’s current antalgic gait and ongoing pain.
The consequences of these findings is that the breach by the defendant was a necessary condition of a delay in the plaintiff receiving effective treatment, during which time an infection arose which required urgent treatment. The “damage” caused by the defendant included ongoing severe pain which had psychological consequences for the plaintiff.
In that regard, Dr Kaplan’s view was that the plaintiff had adjustment disorder with depression and anxiety, and a variant of somatic symptom disorder arising from the pain, discomfort and restrictions caused by his foot injury. Dr Ventura had concerns about the credit of the plaintiff, but on the assumption that his reported symptoms were truthful, he agreed they were consistent with a diagnosis of somatic symptom disorder with predominant pain. He did not mention whether he agreed or disagreed with the diagnosis of the patient as having an adjustment disorder.
Dr Ventura’s view was that the plaintiff’s psychiatric conditions would have followed a similar course irrespective of any failure by the defendant. However, that view was in answer to a specific question by the legal representatives for the defendant, which contained an assumption that the Court found the plaintiff would have followed a similar course in terms of the surgical management of the abscess, particularly the timing of surgery. As I have not made that finding, I do not accept that aspect of the opinion.
The psychological impact of ongoing pain and inability to walk properly can be seen as starting to develop towards the latter half of 2014. I accept that the psychological impact on the plaintiff to the point where he developed an adjustment disorder with depression and anxiety as well as a somatic symptom disorder was caused by the delay in any treatment and therefore is attributable to the defendant’s breach.
What are the appropriate damages attributable to the harm caused?
The plaintiff was 35 years of age at the date of injury and 39 at the time of hearing. He has a working life of approximately 27 years.
General Damages
As a consequence of the ongoing debilitating pain, the plaintiff was not able to be as physically active. He did not socialise with his friends as often and his family life was affected. He could not drive his child to school. He could not go for walks with his wife, as walking on uneven ground was too painful.
The plaintiff sought $80,000 – $100,000 in general damages, with 60% awarded for past and 40% awarded for future non-economic loss.
The defendant estimated $40,000 at its highest, for the temporary physical pain suffered by the plaintiff and relied on the decision of ACT v Gillan [2018] ACTSC 223 (Gillan) at [152], where such amount was awarded. In Gillan, Penfold J relied on two other cases in forming a view as to the appropriate measure of general damages, adopting the following summary of them earlier in her Honour’s reasons at [144]:
In Anthony James Grinsted v Tony Madden Refrigerated Transport Pty Ltd[2001] ACTSC 37 the plaintiff suffered a soft tissue injury to his ankle. He remained able to work and engage in extensive travel and related activities at the date of the trial. Though he was able to walk reasonable distances, the degree to which he could do so and his ability to ambulate on rough ground were restricted (at [35]). He was awarded an amount of $45,000 on account of non-economic loss.
In Warrener v Australian Capital Territory[2003] ACTSC 7, a 62 year-old plaintiff (14 years older than Mr Gillan at the date of injury) suffered an ankle injury, albeit of a more serious nature than Mr Gillan’s, and was awarded $50,000 for general damages.
The plaintiff drew the Court’s attention to each of those cases in a supplementary submission, which I granted leave to file following the hearing. In addition, the plaintiff relied upon Spence v Neilson [2018] ACTSC 273 (Spence), where Mossop J awarded $88,000 (plus interest on the past component of that sum) for general damages at [151]. In that case, the damages were to compensate a 63-year-old lady for hip and buttock pain which had arisen as a consequence of surgery, which affected the plaintiff’s capacity to walk without significant pain. The plaintiff in that case also suffered an adjustment disorder as a result of physical injuries, and lost satisfaction from an inability to continue her pre-injury work duties. Mossop J took as a starting point $160,000, with half attributable to the past. However, because there was a prospect of the disabling condition occurring in any event (and other vicissitudes) a discount of 30 per cent upon the past component and 60 per cent on the future component was considered appropriate: see Spence at [151].
The appropriate figure here is higher than that put by the defendant. The cases referred to in Gillan were many years old, and Penfold J did not place significance on evidence of psychological injury in any assessment of damages.
However, the figure is also lower than that submitted by the plaintiff. The extent of harm being caused by the defendant’s breach was less than that submitted by the plaintiff. Although the plaintiff in the present case was suffering ongoing pain and further treatment of the recurring hyperkeratosis was necessary, what is attributable to the defendant’s breach of duty is significant debilitating pain for a period of approximately 1 year, following my findings above, along with the psychological consequence arising from the delay, which is ongoing.
I consider the appropriate measure to compensate the plaintiff is $72,000, with two thirds allocated to the past and one third allocated to the future. That reflects my findings above as to the cause of the plaintiff’s injuries being mainly in the past, with his ongoing pain and future disabilities affected to a certain degree by a need for management or surgery which is not attributable to the case established by the plaintiff.
Interest on the past component of $48,000 at a rate of 2% for a period of 7 years is $6,720.
Past Economic Loss
The plaintiff ultimately submitted $60,000 should be awarded for past economic loss. The defendant submitted there was no economic loss. That was because of a comparison made between the plaintiff’s pre and post injury earnings. To his credit, the plaintiff was earning more post injury than he had been earning at any point before the injury. At the time of the hearing, he was earning $2,000 a fortnight.
The evidence was that the plaintiff had a loss of earning capacity, as distinct from a direct loss of earnings. I accept that the plaintiff could have earned even more, on the basis that someone who was not suffering pain and depression may have been able to take on extra shifts or higher duties, but I consider the evidence only permits a buffer to be awarded for a loss of capacity to earn, or to work longer hours. Such buffer should be set at $40,000, which includes compensation for any superannuation and interest at Court Procedures Rules2006 (ACT) rates.
Future Economic Loss
In closing submissions, the plaintiff submitted that a buffer of $25,000 to $30,000 for loss of earning capacity ought to be awarded. At the time of the hearing, the plaintiff was working as a security guard, and his duties appeared to be driving around sites and patrolling on generally flat surfaces.
The defendant submitted no amount should be awarded for future economic loss, on the same basis as that discussed in relation to past economic loss.
The medical evidence did not establish that the plaintiff’s ongoing mental health condition had substantially affected the plaintiff’s ability to work, and the hyperkeratosis which is currently affecting the plaintiff is attributable to an underlying biomechanical condition, rather than any ongoing repercussions arising out of the defendant’s breach.
I accept the plaintiff may have more sick days and time without work referrable to the defendant’s breach, but I am not satisfied that anything more than a small buffer is appropriate. I allow $10,000.
Out-of-pocket medical expenses
At hearing, the plaintiff made a claim of $8,000 at its highest for out-of-pocket expenses but foreshadowed that estimate would be revised down. The plaintiff indicated at the conclusion of the hearing that the parties would attempt to agree out of pocket expenses and provide a further submission in that regard. Although a further submission was then provided, the contents of that submission were limited to general damages. There was no Notice of Charge issued by Medicare among the evidence. There was no other evidence before the Court by way of invoices supporting the figure claimed. The plaintiff would have had expenses for pain medication, but the pain he suffers now is not directly attributable to the defendant’s breach. I consider it appropriate to allow the expenses recorded on any Notice of Charge issued by Medicare, plus a sum of $2,000 for pain medication.
Past and future gratuitous care
The plaintiff made a claim for $215,518.87 for past and ongoing care and assistance. That was based on the expert evidence given by Mr Simpson. The sum he arrived at was made up of the following two components:
(1)$32,296.88 for past gratuitous assistance; and
(2)$183,221.99 for ongoing costs and assistance.
In relation to the first component, Mr Simpson divided the past gratuitous assistance into four stages:
(1)Stage 1: From 5 February 2014 to 6 August 2016 (4.25 hours for approximately 130 weeks).
(2)Stage 2: From 7 August 2016 to 13 August 2016 when the plaintiff was admitted to hospital (no assistance required for that week).
(3)Stage 3: from 14 August 2016 to 14 November 2016 (14.5 hours for approximately 13 weeks).
(4)Stage 4: From 15 November 2016 to 30 November 2018 (3.25 hours for approximately 107 weeks).
In relation to the second component for ongoing costs, that figure comprised changes to the plaintiff’s accommodation and assistive technology and equipment, domestic indoor and outdoor assistance (two hours per week), and ongoing rehabilitation expenses.
The defendant submitted no compensation was payable for past or future care. That submission was based on the report given by Ms Marantz.
I have generally accepted the evidence of Mr Simpson in preference to that given by Ms Marantz. Following the concurrent evidence given in the witness box, I was not satisfied that the underlying basis for a number of Ms Marantz’s opinions was anything more than a feeling of what was appropriate. For example, Ms Marantz’s written report provided an opinion that the hours of assistance claimed should be discounted to 4.5 hours per week but there was insufficient underlying reasoning for why such a discount was appropriate and Ms Marantz did not deal with the detail of the figures provided in Mr Simpson’s report. Mr Simpson’s methodology and the reasons he gave for the opinions he held were more persuasive. That being said, Mr Simpson’s figures were based on an assumption that a breach of duty of care occurred in February 2014, and that is not what the Court has found. The ongoing costs were also based on attributing the entirety of the plaintiff’s current and future disabilities and requirements for assistance to the breach, and again, that is not what has been established.
In relation to past gratuitous care, I accept that the plaintiff should be compensated for past domestic assistance over the following periods:
(1)$10,710 for the period 22 December 2014 to 7 August 2016 at 4.25 hours per week (84 weeks) at $30 per hour;
(2)$5,655 for the period 14 August 2016 to 14 November 2016 at 14.5 hours per week (13 weeks) at $30 per hour;
(3)$6,360 for the period 15 November 2016 to 30 November 2018 at 2 hours per week (106 weeks) at $30 per hour.
In relation to the first two of the periods set out above, I have generally accepted the evidence of Mr Simpson, but taken account of the findings as to when a breach of duty arose. Having had regard to the hourly rates contained in Mr Simpson’s report, I have allowed an hourly rate of $30.
In relation to the third period, after November 2016, the plaintiff’s requirement for domestic assistance is not entirely referable to the defendant’s breach of duty. Mr Simpson considered 3.25 hours per week was appropriate. I accept that the plaintiff’s psychological state may have had some bearing on his ability to complete domestic chores. However, 2 hours per week for that period is a figure that more appropriately represents the plaintiff’s loss, taking into account that not all the assistance required is referable to the defendant’s breach.
In terms of future loss, Mr Simpson reported that the effects of the plaintiff’s psychiatric conditions were having a significant impact on his capacity to function in a healthy and effective way on a day-to-day basis. The plaintiff’s symptoms caused significant distress and interfered with his occupational roles and relationships. That is consistent with the oral evidence given by the plaintiff and his wife. I accept that is the position.
Mr Simpson allowed 2 hours per week for ongoing assistance. While the totality of the ongoing pain and requirement for assistance is not attributable to the defendant’s breach, there are features of the plaintiff’s mental health that are related to the breach, such as the somatic symptom disorder. The evidence was that with the appropriate treatment, the plaintiff’s physical condition could be expected to improve. Notwithstanding the nature of a somatic symptom disorder, I consider that the plaintiff’s need for assistance, to the extent that it is referable to the breach, is likely to decrease. I have therefore made an allowance of 1 hr per week for a period of 10 years for future assistance, at a cost of $60 per week, having had regard to the figures contained in Mr Simpson’s report. The compensation payable to the plaintiff for future care and assistance is $31,200.
Summary of findings on quantum
In summary then, the quantum for which the plaintiff ought receive compensation is $184,645.00 plus the expenses repayable to Medicare, made up as follows:
(1)Out of pocket expenses: $2,000.00 plus any repayments to Medicare in accordance with a notice of charge issued;
(2)Past loss of earning capacity $40,000.00;
(3)Past and future gratuitous care and assistance $53,925.00;
(4)Loss of future earning capacity $10,000.00;
(5)General damages $72,000.00; and
(6)Interest on general damages $6,720.00.
I note that a claim for interest was made in the Amended Statement of Claim. No one made any submissions about it and no schedule was provided to the Court. Notwithstanding this, cases such as McLennan v Meyer Vandenberg [2020] ACTCA 7 at [106] are to the effect that interest ought to be awarded, although the amount of interest may be affected by the sum that I have found above. Accordingly, the parties should be given the opportunity to either agree the amount of interest payable. In the event that agreement cannot be reached, it will be necessary to determine the appropriate sum at the time of making final orders.
Conclusion and Orders
The plaintiff has been successful. I will award costs on the basis that costs follow the event. However, there may be matters which are currently unknown to the court which affect that order. There is also one outstanding matter in relation to quantum, so that it will be necessary for the parties to provide short minutes of order giving effect to the above reasons. In light of those circumstances, I will list the matter for the making of final orders and any argument on costs.
The orders of the Court are as follows:
(1)The parties are directed to bring in short minutes of order to give effect to these reasons by 31 January 2022.
(2)The matter is listed for the making of final orders and any hearing on costs and interest on 3 February 2022 at 10:00am.
| I certify that the preceding two hundred and twenty [220] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice McWilliam. Associate: Dominic Page Date: 23 December 2021 |
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