Smith v Minister for Health

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SMITH -v- MINISTER FOR HEALTH [2010] WADC 77

CORAM: STAUDE DCJ

HEARD: 22-24 & 26 MARCH 2010

DELIVERED : 28 MAY 2010

FILE NO/S: CIV 3284 of 2008

BETWEEN: TRACY SMITH
Plaintiff
AND
MINISTER FOR HEALTH
Defendant

Catchwords:

Torts - Negligence - Medical negligence - Causation of lumbar disc protusion - Preexisting chronic pain syndrome - Assessment of damages

Legislation:

Nil

Result:

Plaintiff awarded damages of $237,530

Representation:

Counsel:

Plaintiff: Mr J R Criddle
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: Hoffmans
Defendant: Minter Ellison

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

Griffiths v Kerkemeyer (1977) 139 CLR 161
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638

STAUDE DCJ:

Introduction

This is a claim for damages for personal injury caused by the negligent calibration of a Medtronic intrathecal pump which caused the plaintiff to suffer an overdose of hydromorphone. Liability is admitted, but the defendant disputes the principal injury alleged, namely, a lumbar disc prolapse.
The plaintiff who was born on 6 July 1964, has a long history of chronic abdominal and other pain associated with Crohn's disease and other gastro‑enterological disorders from which she has suffered since her teens. She has been dependant on opiate medication. In May 2001 she underwent the surgical insertion of an intrathecal catheter and pump which was intended to deliver a regular measured dose of hydromorphone and local anaesthetic.
On 1 March 2006 the plaintiff attended Royal Perth Hospital for the refilling of her pump. Because of a calibration error made at that time it was programmed to administer medication at a much higher rate than prescribed.
The refill of the pump occurred on the day before the plaintiff travelled to Adelaide for her grandmother's 100^th birthday. The effect of the overdose was to make her extremely sick. She vomited frequently until Saturday 4 March 2006 by which time the medication had been consumed. The plaintiff recovered fully from this effect of the overdose. There is no question that the plaintiff did experience an overdose of hydromorphone that caused her to be violently ill over a number of days. However, she alleges that on 3 March 2006, she suffered a serious injury to her lower back caused by vomiting.
This is the central issue. It falls to be determined on the evidence of the plaintiff and those to whom she reported her back symptoms, namely, her mother Mrs Margaret Salerno, her partner at the time Mr John Currie and her daughter Ms Danielle Smith, documentary evidence of her complaints and statements around the time of the overdose, and the expert evidence of Mr Ralph Stanford, neurosurgeon, and Dr David Perlman, the plaintiff's treating pain specialist. This evidence has to be considered in the context of the plaintiff's overall medical history, most of which was evidenced by extensive medical and hospital records. Almost 5,000 pages of such records were received in evidence without objection. I have treated the documents as having been admitted pursuant to s 79C of Evidence Act 1906 and paid due regard to the provisions of s 79D dealing with the weight and effect of such evidence, although no submissions were addressed to me by either counsel in this regard.
It is the plaintiff's case that she suffered severe and chronic lower back and left leg pain from the evening of Friday 3 March 2006. She later suffered an acute episode in the United Kingdom which caused her to seek medical treatment at Princess Alexandra Hospital in Harlow on 26 March 2006 and 5 April 2006. The plaintiff contends that her subsequently diagnosed L5/S1 disc protusion was caused or contributed to by the effects of the negligent overdose.
The defendant, on the other hand, contends that the disc protrusion was unrelated to the overdose because no back injury was suffered as alleged, or, alternatively, any back symptoms in the aftermath of the overdose were unrelated to those with which she presented to Princess Alexandra Hospital and for which she was subsequently treated surgically. The defendant denies that there is any causal nexus between the overdose and the disc protusion.
To the extent that the plaintiff's case relies on her evidence of the onset of back symptoms on 5 March 2006 the defendant takes issue with her credibility by reference to the lack of any relevant documented complaints of back symptoms prior to 26 March 2006 and the inconsistencies in her evidence generally. The defendant contends that the plaintiff had a prior history of back pain and sciatica, albeit right-sided, for which she was hospitalised in December 1999 and that an MRI at that time showed that she had a degenerate lumbo‑sacral disc.
The defendant also takes issue with the claim for damages on the basis that the plaintiff had a long history of disabling chronic pain prior to the event complained of. Her working capacity was significantly compromised prior to the overdose. As her pre‑existing pain state has continued, the defendant submits that no loss of earning capacity due to any supervening back injury can be demonstrated and that no increased need for assistance or treatment is provable.

Evidence of Ms Tracy Smith

The plaintiff said that in 1986 she suffered from symptoms of diarrhoea and stomach cramps following the birth of her first daughter Michelle. Her gallbladder was removed. She was subsequently diagnosed with Crohn's disease and treated with steroids before having bowel surgery in 1987. She had undergone bowel surgery on seven occasions since that time. She also suffered from von Willebrand's disease, a blood clotting disorder, and had undergone a hysterectomy for that reason.
She said she had never had any back problems but she admitted to a shoulder injury in about 2001 for which she had treatment but no time off work. For many years she had been seeing Dr David Perlman a pain management specialist at the Royal Perth Hospital pain clinic at Shenton Park. She was originally prescribed subcutaneous morphine which was injected in her abdomen. In 2001 she had an intrathecal pump inserted by Dr Paul Graziotti, a device which dispensed morphine through a subcutaneous catheter.
On 1 March 2006 she had her pump refilled. Later that day she started vomiting and continued to do so through the night. The following day, 2 March 2006, the plaintiff flew to Adelaide with her daughters Danielle and Chantelle. She was ill throughout the three hour flight. In Adelaide she went with her daughters and her mother to visit her grandmother. She continued to be sick. She then went to her mother's home in Fulham Gardens where she and her daughters were staying. After dinner her mother called an ambulance which took her to Queen Elizabeth Hospital. The plaintiff was advised at the hospital that she may have a bowel obstruction so she was given an enema and put on intravenous fluids. She was discharged in the early hours of the following morning and returned to her mother's house by taxi.
During the day she continued to vomit. She went to her grandmother's birthday party, but missed most of the celebration due to being sick.
That evening, she was in the toilet vomiting when she had a shooting pain from her lower back through her buttocks and down her leg. She said that when she told her mother of this, her mother said "it sounds like sciatica". Ms Smith said that she had never experienced that type of pain before and she described it as being "really awful".
On the next day, 4 March 2006, the plaintiff heard her pump alarm which indicated that it was nearly empty. As a result she contacted Queen Elizabeth Hospital and was taken there by car by her stepfather. She was transferred to Royal Adelaide Hospital. The plaintiff said she complained of having a sore back and feeling very drugged. She was given IV fluids and discharged early the following morning. She telephoned Dr Perlman at 7.00 am on the morning of Sunday 4 March and arranged that she would attend for a refill of her pump on the following Wednesday. By that afternoon the vomiting had stopped.
When asked about what happened that evening and the following day (5 March 2006), she said:
"I was just very very weak obviously from all the vomiting. And the pain in my leg and my buttocks and my back was just – it was terrible. I had never had anything like that before."
On Tuesday 7 March she went with other family members to visit family graves and then flew back to Perth.
The following day when she had the pump refilled she saw Dr Perlman and told him of pain in her back and buttocks. According to the plaintiff, Dr Perlman told her that it was sciatica and that it would go away in a week or two. He said it was from the vomiting. The plaintiff said that he was "in disbelief" that she had survived the overdose.
The plaintiff said that on 13 March 2006 she attended the Spencer Road Medical Centre. She explained her reason for doing so as follows:
"Because I did not want to fly all those hours on a plane. I did not know what all these – all that drug could have done to my system. I did not know whether it could have caused a deep vein thrombosis or not, so I wanted to make sure before I flew to England that I certainly did not have one of those."
She said that she told the doctor at the medical centre that she had had an overdose and that she was going to England and was worried about her buttocks and leg. He recommended a scan. She was told that she did not have deep vein thrombosis.
She then obtained from Dr Perlman a letter which authorised her to travel with her medications. She left for London on 21 March 2006 two weeks after her return from Adelaide. At that time her left leg pain was very severe and she had to be helped onto the plane. The plaintiff had decided to go to England to join Mr Currie after she had been advised by Dr Perlman that her back would be fine in a week. She had not previously planned to travel to England.
On the flight she was able to lie down as she had five seats to herself. When she arrived in England her back pain became worse because of the cold weather. She was picked up by Mr Currie and went to his sister's place in Essex before travelling by car to Scotland. She said her back and leg were not good at that time and they had to make regular stops. After four nights away they returned to Essex.
On 26 March 2006 the plaintiff suffered severe pain and was taken to Princess Alexandra Hospital where she was given morphine. She attended the hospital again on 5 April 2006 when she was advised to return to Australia. She returned on 8 April 2006 and saw a doctor at the Armadale‑Kelmscott Hospital on the 10th. She was referred to Royal Perth Hospital.
On 19 April 2006 she underwent an MRI scan which showed a disc protusion with evidence of neural compression. She was then referred to Mr McCloskey who performed a discectomy on 20 June 2006. While she was convalescing from this procedure she suffered a fall and jarred her back requiring another four days in hospital. At the time of her operation she was living in Thornlie. She was assisted by her daughter Danielle and a lady who lived next door. She also had eight weeks support from Silver Chain.
Since the operation she has continued to have pain in her lower back and left leg. She described a burning sensation that started in her hip and worked its way down the leg. She had very little feeling in the top part of her left leg. She also suffered swelling in both legs. She had used a walking‑stick from about four months after the operation.
The intrathecal pump was removed in September 2006 on Dr Perlman's advice. Subsequently she was prescribed subcutaneous injections of morphine as well as Valium, Gabapentin and Temazepam. Her morphine dose was significantly reduced in 2009 when she again attended at the Royal Adelaide Hospital whilst visiting her grandmother. She said that for 3 1/2 years prior to that she had been "living in a euphoric world" due to the level of her morphine dosage. This had interfered with her relationship with Mr Currie which eventually ended last year.
In cross‑examination the plaintiff admitted that she had suffered chronic pain for a long period and had become dependent on opiate medication. At the time of the trial she was taking 40 milligrams of MS Contin twice daily and 20 milligrams of Oxynorm four times a day. She also took Gabapentin for nerve pain, Mirtazapine, an anti‑depressant, and other medication for cholesterol control and gastric reflux.
As an aid to the cross‑examination of the plaintiff in relation to her medical history the defendant prepared from primary medical records (which were separately tendered) a chronology which was eventually received as Exhibit 6 and with which no issue was taken as to accuracy in terms of the primary records.
A number of medical notes and records were put to the plaintiff which indicated that in addition to her gastro‑enterological problems she had also experienced symptoms of lower back and leg pain from time to time. The first reference was in the notes of the Repatriation General Hospital Hollywood (now Hollywood Private Hospital) to which the plaintiff was admitted on 3 December 1990 for investigation of diarrhoea and Crohn's disease. The nursing notes indicate that the plaintiff's mobility was affected by "sore legs; pains nocte; similar to sciatic nerve involvement". Of this the plaintiff professed no recollection, but she admitted that she had been diagnosed with restless leg syndrome and advised that there was no sciatica involved. She said that the pain in her legs was from cramps. She had not heard much about the word "sciatica" until the incident complained of.
The plaintiff was reviewed by Dr Patrick Hanrahan, rheumatologist, on 3 March 1992 in relation to leg pain. The plaintiff's evidence was that her symptoms were due to restless leg syndrome. She was prescribed medication and the problem eventually went away.
She was hospitalised on a number of occasions in early 1993 for abdominal pain and bowel obstruction and in July 1993 the Hollywood Hospital records indicated a history of substantial use of pethidine at home to control migraine. The plaintiff denied ever self‑administering pethidine. She agreed, however, that she had had a narcotic dependency for many years. When she withdrew from morphine she suffered pseudo seizures. This was documented at Royal Perth Hospital on 29 March and 29 May 1995 and elsewhere on other occasions.
In November 1995 the plaintiff attended at the William Street Clinic of the Alcohol and Drug Authority regarding a methadone programme. She recalled going to the William Street Clinic once and being advised that the available programme was not appropriate for her. The plaintiff could not explain a Royal Perth Hospital record on 9 October 1996 that she presented with chronic pain having run out of supplies of methadone and morphine as, she said, she never took methadone as she could not tolerate it.
At about this time the Royal Perth Hospital records indicate that Dr Geoff Forbes, gastro-enterologist, wrote to the plaintiff's general practitioner observing that the plaintiff presented as an extremely difficult management problem. She was on 80 milligrams of morphine per day having previously been on 240 milligrams per day earlier that year. In a letter dated 9 January 1997 Dr Perlman informed the plaintiff's general practitioner that the plaintiff had been unable to change from morphine to methadone.
In 1997 the plaintiff moved to Karratha where Mr Currie worked. She continued to seek medical treatment for Crohn's disease and narcotic dependency. Her usual symptoms were vomiting and diarrhoea associated with frequent bowel obstructions.
The plaintiff was asked about her admission to Nickol Bay Hospital on 30 November 1999 which was noted to be for chronic abdominal and back pain, the records indicating a history of three days of back pain with no known incident of injury. The notes record central lower back pain extending through the right buttock and thigh. The plaintiff had no memory of this complaint. It was also put to her that the hospital records indicated that she was taking morphine, pethidine and paracetamol. The plaintiff answered emphatically that she had never been on pethidine and morphine at the one time. She said "that's one thing I am positive about". The medication chart, however, clearly showed morphine and pethidine being administered during the period of the plaintiff's admission. The pethidine was noted to be for "new back pain". When this was put to her the plaintiff said:
"Look, I can't deny what's written there. I just don't ever ever remember being given pethidine and morphine in conjunction. I don't remember the back pain part of it, but I do remember having a lot of trouble with my bowel."
In fact there are numerous references to lower back pain in the Nickol Bay Hospital notes. Although the authors were not called, the notes indicate that they were made by a number of different persons at different times and on different days. It is clear that the plaintiff at that time was also having particular problems with her dependency on opiate medications such that she was requesting analgesia frequently. (It has occurred to me that her complaints of acute back pain at this time may have been forgotten because they were made as a pretext for extra pain relief, but this was not the plaintiff's evidence; nor was it submitted on her behalf as a possible explanation. In any event, an MRI on 7 December 1999 clearly showed lumbo‑sacral disc pathology).
It is clear, however, that she was noted on 30 November 1999 to be unable to straighten her back due to pain and the pain extended into her right buttock and leg. On 1 December 1999 Dr Cree, who was the plaintiff's general practitioner, noted that she had acute back pain which then appeared to be localised in the left sacroiliac joint. Pethidine was prescribed for that pain. She was also given physiotherapy.
On 3 December 1999 the integrated progress notes record that the plaintiff claimed to have fallen in the bathroom and hurt herself. She was requesting pethidine and morphine. She originally said that she had fallen due to the effects of her medication but when it was explained to her that if this were the case she would not be able to have both injections (morphine and pethidine) so close together, she denied falling at all. On that day an issue also arose as to whether the plaintiff should be discharged as her partner had to work nightshift and there was no one at home to care for her children. The hospital staff had to field an inquiry from the local Member of Parliament in this regard. The plaintiff had no recollection of these events. It is clear from the notes that the plaintiff was receiving morphine and pethidine at her insistence, but with the support of her general practitioner.
The notes on 4 December 1999 also referred to back pain for which the plaintiff requested analgesia and to some exaggerated pain behaviour. Pain was reported in the lumbar spine bilaterally, worse on the right.
The plaintiff was discharged from Nickol Bay Hospital on 5 December 1999 and admitted to St John of God Hospital Subiaco the following day. The Nickol Bay Hospital medical discharge summary gave her diagnosis as "opiate addiction, chronic pain syndrome, von Willebrand's, Crohn's disease, back strain". Again, when this evidence was put to her the plaintiff denied any recollection of back pain.
The records of St John of God Hospital indicate that the plaintiff was admitted under the care of Dr Berrigan to whom she had been referred by her doctor in Karratha for investigation of back pain and sciatic pain down the right leg. According to notes made on 11 December 1999 the plaintiff described "unbearable left leg pain" also. An MRI showed a degenerate lumbo‑sacral disc with a right postero‑lateral annulus tear and a mild broad based disc bulge.

The plaintiff was taken to her admission form, which she had signed, and which indicated back pain as the reason for admission. She said that she saw Dr Berrigan about the insertion of a pump and that the reason she was in hospital was to come off morphine. She did not recall having an MRI of the lumbar spine at that time and she did not recall any back pain. She was shown a nursing assessment form dated 6 December 1999 which contained a pain scale indicating nine to 10 out of 10 for back pain and a pain diagram depicting pain in her lower back on both sides and down her left side (although stated to be on the right). She was also shown notes which indicated that she complained on that day of "unbearable" left leg pain.
I note that in the aftermath of the admissions to Nickol Bay Hospital and St John of God Hospital in December 1999 there were no further documented complaints of lower back pain or leg symptoms in the chronology of medical treatment, except in the admission notes of Hollywood Private Hospital on 12 July 2004 where there is a reference to a history of back and neck problems without further detail, in the admission notes of the same hospital on 11 October 2004 where a history of back problems is noted, and in the Nickol Bay Hospital notes of the plaintiff's presentation on 28 March 2005 of pain extending down her legs.
It appears that the plaintiff did in fact come off morphine at the end of 1999, but her abdominal symptoms continued. The plaintiff was seen frequently by Dr Linden Easton, gastro-enterologist. She was also referred to Dr Bill Douglas, clinical psychologist, for psychological assistance with chronic pain and withdrawal symptoms. In May 2000 she was referred to Dr Paul Graziotti, pain medicine specialist, and Dr Darryl Bassett, psychiatrist, for assistance with pain management and her tendency to opiate abuse. On 9 June 2000 Dr Easton noted that the plaintiff had not gone back on to narcotics. In July 2000 Dr Easton noted that the plaintiff was coping very well on minimal narcotics but prescribed five ampoules of pethidine for episodes of severe pain. The plaintiff was asked about a presentation to Nickol Bay Hospital on 3 September 2000. The notes indicated that she was admitted for fitting precipitated by alcohol ingestion. The plaintiff initially denied that she took alcohol. She said that alcohol may have been mentioned because she was at a local tavern when she suffered a seizure. She denied that she had been drinking on that occasion.
Later that month the plaintiff was referred to Dr Roger Goucke, another pain management specialist. On 10 October 2000 he reported successful opiate withdrawal but constant daily pain with occasional diarrhoea and incontinence. She had a further seizure in October 2000 for which she was admitted to Royal Perth Hospital. In October 2000 the plaintiff was referred to Dr Geoffrey Gee, pain management specialist who recommended a morphine pump due to problems caused by pethidine. The plaintiff was admitted to Hollywood Private Hospital in February 2001 with abdominal pain, nausea and vomiting and was diagnosed with a sub‑acute bowel obstruction. She underwent surgery. The notes indicate that she required large amounts of opiate analgesia and suffered pseudo seizures on withdrawal.
The plaintiff said that by May 2001 she was having difficulty controlling her pethidine consumption. At that time she was taking one ampoule per day. Dr Graziotti then recommended the insertion of the intrathecal pump which was done in late May 2001 at St John of God Hospital.
In July 2001 both Dr Cree and Dr Graziotti reported that the pain control with the intrathecal pump was successful, but by October 2001 Dr Cree was prescribing pethidine injections up to three per day in addition to the medication administered by the pump. The plaintiff said that she thought that the injections were of morphine, not pethidine. It was put to her that she in fact was given pethidine injections from 2001 to 2004. The plaintiff said:
"She was giving me morphine, most – I know she did start off giving me pethidine. There was a year where I had ups and downs, where I had to keep going back to the doctor because I couldn't control all the pain with Panadol at home. And having a blood disease, I can't have aspirin, and I am allergic to codeine."
She then said that she was given pethidine because the pump was not working. She said:
"What happened was, when the pump wasn't working properly, and I went through withdrawals, because it's a small town, you do get to know your doctors very well, and that. And when I was well, I was well, and when I was sick, I was really sick. And she could tell that what I was saying about my pump not working was true. And so she was supplementing with injections, because Dr Graziotti wouldn't believe me that it wasn't working."
The plaintiff then conceded that she had been on pethidine as well as morphine, but she said that she did not know that at the time.
It was put to the plaintiff by reference to the notes of Dr Cree of a consultation on 22 October 2001 that she had suffered depression at that time and had reported that her relationship with her partner had been unsettled for five years. The plaintiff insisted that the first 10 years of her relationship with Mr Currie were "absolutely fantastic" despite occasional arguments and that it was only in the last three to four years that the relationship had deteriorated.
Further cross‑examination as to her medical history highlighted the severity and chronicity of the plaintiff's abdominal pain and associated stress and psychological disturbance. In 2004 her condition was complicated by grief following the suicide of her cousin. The Nickol Bay Hospital records include notes taken on 28 May 2004 which summarise her condition at that stage as follows:
"Long history of Crohn's disease, abdominal surgeries, chronic pain, on hydromorpho and pump (see details Dr Cree's letter). Home stressors/chronic pain, then two weeks ago, close cousin's suicided and Tracy had insufficient time to grieve, has travelled back and forth to Perth re abdo pain and is now mentally exhausted, saying there is no point in fighting anymore, has chronic abdo pain and diarrhoea."
Notes later that day state:
"Patient tearful; expressed her need for sedation. Mental state and ability to cope with chronic pain has deteriorated in last two weeks due to social stressors (primarily grief over cousin's suiciding). Alcohol daily for past week → 4 - 6 Vodka Cruisers and half bottle spirits."
The plaintiff denied that she had taken alcohol at that time. She said:
"I don't know where that has come from, but just about everybody in my family will vouch that I do not drink alcohol for the simple reason [that] it does not agree with my bowel, it makes me very sick."
She admitted, however, that she had an occasional glass at Christmas. She said she could not have tolerated the amount of alcohol stated in the notes as she has had an intolerance to alcohol for 15 to 18 years. The plaintiff admitted to having suffered depression.
The plaintiff was shown a nursing admission assessment for Hollywood Private Hospital on 8 October 2004 in which she was recorded to have a history of back problems. When asked about the nature of the back condition disclosed in the hospital records, the plaintiff said that she had fallen on her shoulder whilst working as a carer. It was put to her again that she had been treated at Nickol Bay Hospital and at St John of God Hospital in December 1999 for back symptoms. Again she said she did not recall.
Many of her problems in 2005 the plaintiff attributed to the intrathecal pump not working properly and causing symptoms of withdrawal. On 3 August 2005 the Nickol Bay Hospital records show that the plaintiff collapsed with severe abdominal pain and was admitted by ambulance, suffering two seizures en route. She was admitted that time with morphine withdrawal due to a problem with the pump. The records of the hospital indicated a history of increasing oedema of the arms and legs for two weeks. The plaintiff denied having suffered oedema in her arms and said that she had only had oedema in her legs since her back injury. She then said that the oedema could have been caused by morphine. She differentiated between the oedema which was reported in the hospital records and that which she had suffered in March 2006. Later, she suggested that fluid retention was caused by the anti‑depressant medication Endep.
Finally, it was put to the plaintiff, in relation to her medical history up to the time of the overdose that she was continuing to suffer vomiting and diarrhoea through the latter part of 2005 and in January 2006 to the extent that it was causing problems with her work, her domestic duties and to her relationship with Mr Currie. The plaintiff conceded "we'd all had enough, we were sick of it all".
The plaintiff was questioned about the overdose in March 2006. She confirmed that she hurt her back on the evening of 3 March 2006 the day after she had been taken to Queen Elizabeth Hospital. It was put to her that in answers to interrogatories sworn on 5 February 2010 she deposed to having developed back pain on or about 2 March 2006. The plaintiff said she was not sure at the time whether 2 March was the second night that she had been in Adelaide but she was sure that it was before she went to hospital the first time.
She was also shown letters by her solicitors to medico‑legal experts Dr Beinart and Dr Stanford, dated 4 August 2008 and 13 February 2008 respectively, which also stated that the plaintiff suffered back pain on 2 March 2006 prior to the plaintiff being taken to Queen Elizabeth Hospital by ambulance. Again, the plaintiff said that it occurred on the second night she was in Adelaide. The letters each stated:
"During the afternoon of 2 March while vomiting, our client felt a sharp pain in her lower back through her left buttock and down her left leg. She had never felt this pain previously. Our client's nausea and vomiting continued and on the evening of 2 March, she was taken to Queen Elizabeth Hospital by ambulance."
The plaintiff agreed that the back pain had come on whilst she was vomiting, but it was not on the night she went to hospital. At that time she said she had no back pain at all. She was given an enema and some fluids. She did not complain at the hospital about her back.
In relation to the onset of back pain she said that it occurred at about 10.00 pm or 10.30 pm in the evening. She was kneeling at the toilet vomiting, heaving, when a sharp pain came on through her leg, buttocks and lower back. She said it was very severe. She had never felt such pain before. She said she mentioned it to her mother who said that she had experienced similar pain and that it sounded like sciatica. She then went to bed.
She described her pain in the next day as "pretty sore". It was a shooting pain through her leg to her calf. It was "extreme, horrible" pain. However, she did nothing about it because she felt quite drugged and dopey. She then admitted, however, that she injected herself with morphine that morning to see if it would ease her pain which it did not. That afternoon, about 3.00 pm, she heard her pump alarm. She went to hospital late that night. She said that she mentioned her back pain to people at the hospital but no one seemed to take any notice of anything apart from the pump alarming. She acknowledged that there was no mention of any complaint of lower back symptoms in the Queen Elizabeth Hospital or Adelaide Hospital records. She said that everyone seemed to be pre‑occupied with the pump.
The notes of the Queen Elizabeth Hospital indicate that she was seen at 11.55 pm complaining of a morphine overdose and with a history of chronic abdominal pains. The symptoms were noted as being continual vomiting, headaches, respiratory depression, slurred speech and constipation, all consistent with morphine overdose.
The plaintiff also said that she complained to ambulance personnel about her lower back. She conceded, however, that there is no mention in the ambulance notes of lower back pain. She accepted that by the time she was seen at Royal Adelaide Hospital she was alert. She was not vomiting. The hospital notes indicated that symptoms had worn off and that the plaintiff was hoping to get the pump turned off or refilled so that it stopped beeping. There was a record in the notes of headache, but none of back pain. The plaintiff said that her back at that time was extremely sore.
She returned to her mother's home from hospital on the morning of Sunday 5 March at about 9.00 am. She did very little that day. On the following day, Monday 6 March, she rested in the morning and then drove to a friend's home about half an hour's drive from her mother's house where she spent some time before returning with her daughters that evening.
On the following day she travelled by car to a cemetery to visit family graves about one hour from her mother's home. That afternoon she returned to Perth. During that day she said that her back was sore. On the Wednesday she went to Royal Perth Hospital to have her pump refilled.
It was put to her that she did not tell Dr Perlman about back pain and that he never mentioned sciatica. She disagreed. She was shown a letter she sent to Dr Perlman dated 10 March 2006 which she signed but which she said was written by her partner Mr Currie. The letter complained that the overdose of hydromorphone caused her to become seriously ill with constant vomiting, constipation and severe dehydration. There was no mention in the letter of the plaintiff suffering any back pain or sciatica as a consequence of the overdose. She attributed this to a mistake on the part of Mr Currie who, she said, knew of her back pain while she was in Adelaide.
When it was put to her that the letter sought compensation she said that she had merely asked for an apology. The letter, however, specifically sought compensation as follows:
"I ask that you consider, maybe in consultation with your legal representatives, some form of compensation for the ordeal that I went through this past week and the considerable amount of money I have spent on a holiday that I couldn't take. A simple apology, although welcomed, is not enough in this case."
The plaintiff had some difficulty in explaining the reference in the letter to the holiday she said she could not take. She had been to Adelaide as planned although she was ill during her time there. Her subsequent trip to the United Kingdom was taken within two weeks of her return from Adelaide and was in fact discussed with Dr Perlman who provided a letter authorising her to carry morphine. (The plaintiff suggested that she had been prevented from going to Bangkok where she originally planned to meet her partner on his way back from England, but it seems clear from her evidence that this was because she could not take her morphine medication there.)
The plaintiff accepted that there was nothing in Dr Perlman's notes to indicate that any complaint of back pain had been made to him by her prior to her departure to England. She also accepted that an incapacitated passenger's handling advice addressed to British Airways and signed by Dr Perlman described the nature of her incapacity as chronic abdominal pain only.
In relation to her attendance at the Spencer Road Medical Centre on 13 March 2006 the plaintiff said that she was concerned about the possibility of a deep vein thrombosis because she had a blood disorder and was unsure what effect the overdose of medication may have had. I understood her evidence to be that she did not go there for investigation or treatment of back symptoms.
The plaintiff also gave evidence that when she first saw Dr Perlman after returning from Adelaide she told him about her back and leg pain and that he advised her that it was sciatica and would go away within a week or so. He was very distressed by what had occurred and said that he did not know how the plaintiff had survived. He said it was "a mistake waiting to happen". She described him as having his head in his hands the whole time.
In relation to the scan for which she was referred by the doctor she saw at Spencer Road Medical Centre the plaintiff admitted that it was a Doppler scan and not an x‑ray. On the other hand, when she complained of backache and sciatica upon her return from England she was referred for an MRI immediately. It was put to the plaintiff that her back condition was dealt with expeditiously upon her return to Perth because of the symptoms that she complained of at that time. The plaintiff's answer was that she had expected that her sciatica would have resolved on the basis of Dr Perlman's initial advice.
The plaintiff said that despite her surgery she has continued to suffer ongoing back and leg pain, although her sciatic pain improved. She denied that her ongoing pain state was a continuation of the condition she had suffered for many years prior to the overdose.

Evidence of Mrs Margaret Salerno

The plaintiff is Mrs Salerno's youngest daughter. Mrs Salerno said that when she met the plaintiff at the airport on 2 March 2006 she was very sick, so sick that she could not drive all the way to the nursing home where they went to visit Mrs Salerno's mother. She confirmed that later that evening she went with the plaintiff and the plaintiff's daughter Danielle to the Queen Elizabeth Hospital where the plaintiff was diagnosed with a bowel blockage. When the plaintiff returned from hospital the following morning she slept on a mattress on the lounge room floor.
On the following day the plaintiff was still asleep on the mattress when Mrs Salerno left the house to go to her mother's 100^th birthday party. She saw little of the plaintiff during the afternoon celebration. The plaintiff returned home with her sometime after 5.00 pm. Mrs Salerno said that the plaintiff could not keep anything down and was sick every time she tried to drink or eat something. She was then asked:
"Do you recall anything else happening on that day, on the third of … ? --- I was fed up hearing her say, 'my back's sore, my back's sore'. And I thought, 'well, you know, it's probably' – 'maybe it's a sciatic nerve, I don't know', but at the end of being up in the middle – up half the night and then all this partying, I was getting ratty at the end of the day.
Alright. So you say you were fed up with her saying that her back's sore? --- Yep."
Mrs Salerno gave evidence that previously she had not heard her daughter complain of having a bad back. At that time, however, she suggested that it was probably sciatica as she had had this condition sometime before.
Mrs Salerno could not recall when the plaintiff first complained of back pain but said it was probably in the evening because she did not see much of her during the afternoon. She recalled that the plaintiff slept that night on a mattress in the lounge room. Her daughters Danielle and Chantelle slept in the second bedroom.
Mrs Salerno said that on Saturday 4 March, sometime in the evening, the plaintiff's pump started alarming. She and her husband then took the plaintiff back to hospital. She was at home the next morning (Sunday) when the plaintiff returned. She had stopped vomiting by that stage. The following day (Monday) the plaintiff went to see her friend and returned in the evening with her daughters. On the Tuesday Mrs Salerno went with the plaintiff and another daughter Wilma and her husband to Aldinga Beach where three members of the family were buried. They had lunch at Morphett Vale. In the evening they went to the airport.
Mrs Salerno has kept a personal journal for some time. She provided it to the plaintiff's solicitors prior to trial at their request. The journal contains entries for the days on which the plaintiff was in Adelaide in March 2006. Mrs Salerno refreshed her memory prior to giving evidence by reference to the journal. An extract of the journal was tendered as Exhibit 5. It contains entries for Thursday 2 March to Tuesday 7 March. In her journal Mrs Salerno wrote at the end of her entry for Friday 3 March 2006, "Tracy's back is really bad". There is no other note of or reference to back pain. There is no mention of sciatica.

In cross‑examination she confirmed that the plaintiff slept on a mattress on the lounge room floor and that her daughters were in the second bedroom. The significance of this evidence is that the plaintiff's daughter Danielle Smith subsequently gave evidence that she and her sister slept on the lounge room floor and that the plaintiff slept in a bed.
Mrs Salerno stated that after the birthday party the plaintiff started complaining about her back. The following part of her evidence in cross‑examination is significant:
"And what time do you say she started complaining about her back? --- She – she nagged on about it every time she was sick.
When did she first start? --- I don't know exactly.
What did she say? --- She said that her back was sore and it's getting worse.
Did she say what part of her back? --- Nah, just that her back was sore.
Just that her back was sore? --- And then said, 'it's very sore' and I said, 'its probably a sciatic nerve'."
It was put to Mrs Salerno that she had written a reference to back pain in her journal as an afterthought:
"And you will see where it appears is the last entry on a line? --- Yeah, because I was writing my journal out and she came back out again from being sick and said, 'my back's really bad'. So I just shoved it in at the end.
I am suggesting to you it's been put in afterwards --- Alright. That's your idea. I don't mind. If you want to suggest that, go ahead.
Why do you think that you'd said something about sciatica? --- Because I did.
In your journal? – I don't know. Somewhere along the line I thought it was sciatica. I maybe didn't put it in my journal, but that's what I said to her.
And when you went to hospital with her when the pump was beeping, did you tell the people at the hospital that she had sciatica or a sore back? --- No.
Why not? --- They didn't ask me."
As the transcript shows, Mrs Salerno did not expressly deny the suggestion that her statement about the plaintiff's back at the end of the entry for Friday 3 March 2006 was added later. In re‑examination she said that she had written the entry for that day before she went to bed, although she acknowledged that the entry for the following day she would have written on the Sunday as it referred to her getting home from hospital at about 2.00 am.
Mrs Salerno was asked why there was no other mention in her journal of any complaint by the plaintiff about her back in the context of the other activities in which she was involved in the days after 3 March:
"And again, she was – there is no mention that she was being ill? --- Not to my knowledge.
Was she being ill? --- She wasn't being sick, no. Not anymore.
Was she complaining about her back? --- Don't know.
It's not recorded, is it? --- No, it's not recorded.
And the only recording of the complainant's back pain is that one line … ? --- Yeah.
… on 3 March? --- I mean she – she – Tracy complains a lot.
Yes? --- And I don't listen half the time. It's as simple as that. I know she was having difficult – I don't know. No, I'm not going to say anything more because I am not sure."
Mrs Salerno was asked what she meant by "sciatica". She described back pain radiating down her left leg to her toes which she had suffered many years before and for which she had undergone a laminectomy. She did not recall any complaint by her daughter of back pain prior to March 2006. She remembered coming to Perth in 1999 when the plaintiff was hospitalised at St John of God but she could not remember whether the plaintiff had low back pain or sciatica. Her recollection was that the plaintiff was being taken off morphine at that time.

Evidence of Mr John Currie

Mr Currie is a power station controller who commenced a relationship with the plaintiff in or about 1991 and lived with her from that time in Perth and Karratha. He knew her medical history and had been instructed on how to inject morphine.
He gave evidence that in late 2005 the plaintiff obtained a job as a store manager for a Red Dot franchise in Karratha but came down to Perth just before Christmas 2005 for the purpose of getting her morphine levels down to an acceptable level. For this purpose he and the plaintiff took a six month lease on a house in Perth. He remained in Karratha for work but would come down to Perth on a regular basis, at least fortnightly.
Mr Currie recalled the arrangements that were made for the plaintiff and her daughters to travel to Adelaide in March 2006. Shortly after her grandmother's birthday the plaintiff told him that she had been very sick on the plane and that her morphine pump had emptied very quickly. He was told of her attendance at the Royal Adelaide Hospital. He said that the plaintiff complained to him that her leg and back hurt. He said:
"She told me that she had been – she'd been up vomiting all night and – and then all of a sudden she is telling me about her pain in her back and her leg and it seemed to overtake any other normal pain that she had. She couldn't feel any pain, just her back and her legs."
Mr Currie came down from Karratha after finishing a roster, he thought on 10 March, and left for the United Kingdom on 13 March. He spoke to the plaintiff via telephone from Bangkok and made arrangements for her to travel to England as well. I presume this was on 13 March the same day that the plaintiff went to the Spencer Road Medical Centre. She arrived in England a week after him. At that time he said she could hardly walk and complained of pain down her leg. She was unable to sit in a car for any length of time without complaining of pain. Eventually he took her to a hospital at Harlow because she could not stand the pain in her leg and back. Mr Currie mentioned only one visit to the hospital at which the plaintiff was advised to return to Perth immediately.
In cross‑examination Mr Currie was asked about the plaintiff's admission to Nickol Bay Hospital on 30 November 1999, her referral to Dr Berrigan for investigation of lower back pain and right sciatica and her transfer to St John of God Hospital Subiaco. He was taken specifically to hospital records indicating the plaintiff's complaints of lower back pain on admission to Nickol Bay Hospital. He said he could not recall her having back pain, only bowel pain.
When asked about her admission to St John of God Hospital he said that he remembered her going there on more than one occasion. He could not recall every admission. After further questioning he recalled a time when he visited her at St John's but he could not recall her having a lower back problem. He did not dispute the medical records that were put to him except to say that it was unlikely that the episode which caused the plaintiff's admission to Nickol Bay Hospital on 3 September 2000 was caused by alcohol ingestion as he said "Tracy hardly drunk anything, if at all". He accepted that she did drink alcohol from time to time, but that specific occasion was one that he remembered very well even though he admitted to being affected by alcohol himself at the time. Numerous other episodes in the plaintiff's medical history were put to him which revealed him to have a reasonably good memory of such events.
Cross‑examined as to the plaintiff's complaints to him of pain suffered during her stay in Adelaide, Mr Currie said that the plaintiff told him that her leg was hurting and that that was the overriding pain. It overrode her normal bowel pain.
Mr Currie admitted that he collaborated with the plaintiff in writing the letter dated 10 March 2006 to Royal Perth Hospital seeking compensation. Mr Currie explained that there was no mention made of back or leg pain because the main issue was that the plaintiff had suffered an overdose. He said he put in the letter the statement about the loss of a holiday at the plaintiff's request even though he did not think much of it. Similarly, the request for compensation reflected the plaintiff's input not his.

Evidence of Ms Danielle Smith

Ms Smith is the second of the plaintiff's three daughters and was aged 17 at the date of the overdose. She recalled the visit to Adelaide for her great‑grandmother's birthday and that the plaintiff was quite sick on the day of that trip. She recalled that at her grandmother's home she and her sister Chantelle slept in the lounge room and the plaintiff in a spare bedroom. She remembered the plaintiff vomiting and dry‑retching that night but did not recall her going to hospital. She also recalled that on the day of the birthday party her mother was still sick. That night Ms Smith and her sister stayed with her older sister and aunt and their partners.
Her next recollection of seeing her mother was when her pump alarm was going off. On that day, prior to her going to hospital the plaintiff was more coherent and not as sick as she had been previously. Asked whether she had any discussions with her mother about how she was, Ms Smith stated:
"When the pump started going off and – and she was starting to get sort of get a bit more coherent, she did start to complain that her back was a little bit sore but I figured it was just from the vomiting that she might have pulled a nerve. I know that sometimes when I have had gastro or something like that, I – I am quite sore afterwards.
Right? --- Sorry. Pulled a muscle, not a nerve."
Ms Smith also remembered that on the plane trip back to Perth the plaintiff's back was sore. She gave further evidence as follows:
"Did she say anything to you about the pain in her back? --- On the flight?
On the flight or after the flight? --- Yeah. For – for weeks she sort of went on about how her back was sore and there was a pain running down one of her legs. And we were just sure that it – you know, it would pass and – and that it'd go away.
So where were you living when you returned to Perth? --- With my mother at her place in Thornlie.
Right. What can you recall about your mother's trip to England? --- I think about a week previous to when she flew out, she had made her doctor's appointment to go and see the doctor about her back pain. She wasn't sure if it was sciatic or if she had DVT and she just wanted to get it checked out before she got on the plane to fly to England."
She recalled that her mother was limited in her activities at this time. She had a call from her mother whilst she was in England saying that she was in hospital because her back had become worse and that she was returning to Perth.
In cross‑examination Ms Smith said that on the day after her great‑grandmother's birthday she and her younger sister went to stay with her mother's friend. That was the day of the plaintiff's second admission to hospital. Ms Smith's recollection was that her mother complained to her of back pain on the day that her pump started alarming but she did not say when during the day this was. She said the plaintiff described it as painful and a cause of some discomfort. She complained of pain for the rest of the time they were in Adelaide. On the flight back to Perth her complaint was of lower back pain and pain down her leg. No challenge was made to Ms Smith concerning the truthfulness or accuracy of her evidence.

Evidence of Dr Ralph Stanford

Dr Stanford graduated in medicine in 1989. He has practised as an orthopaedic surgeon since 2000 and has specialised in spinal surgery since 2001. His expert qualifications were not challenged and his opinions were not contradicted by any evidence led on behalf of the defendant.
In his report dated 24 June 2008 and in his evidence‑in‑chief he explained that the process of disc degeneration is generally painless as the disc has no deep pain sensory nerves. However, a tear of the annulus that surrounds the nucleus could cause pain and could lead to herniation of the nucleus. This could compress an adjacent spinal nerve root causing sciatic pain, numbness and weakness. Intervertebral disc herniation was most common in the 30 to 50 year age group.
In his report Dr Stanford stated:
"The onset of symptoms is often abrupt and is frequently precipitated by a minor physical strain, such as twisting the back or sneezing. The majority of people that experience acute back pain and sciatica due to a disc herniation will go on to spontaneous clinical recovery in about three months, although the period of recovery can vary widely. The long term (four years) outcome of sciatica is probably the same regardless of early treatment, although some authors feel that surgery can provide better outcomes.
In general, surgical treatment is advised after six weeks of unremitting pain or at any time if there is progressive neurological deficit or excruciating pain not otherwise relieved. It is felt that surgery is best performed within a year of the onset of symptoms in order to obtain better results of pain relief. Many factors influence the quality of outcome for disc surgery and it is recognised that adverse psycho-social issues often lead to poorer outcomes."
For the purposes of his opinion Dr Stanford assumed that the plaintiff suffered an overdose of morphine over three days from 1 March 2006 and that she had not experienced any significant back pain or sciatica previously. Dr Stanford's opinion was also based on the plaintiff's history which was set out in his report as follows:
"Ms Smith says that she suffered simultaneous, acute onset of lower back and left sciatica during three to four days of excessive vomiting in early March 2006. Her excessive vomiting together with other symptoms was associated with the assumed overdose of intrathecal morphine delivered between 1 March and 3 March 2006. Ms Smith's back pain and sciatica persisted and she underwent a number of clinical reviews and investigation. A left sided L5/S1 intervertebral disc herniation was demonstrated on Magnetic Residence Imaging (MRI) performed on 19 April 2006 at Royal Perth Hospital. An epidural and nerve root sleeve injection of cortisone was performed on 4 May 2006 by Dr Perlman at Royal Perth Hospital, but did not alleviate her back or limb pain. Ms Smith underwent lumbar intervertebral discectomy surgery on 27 June 2006 by Dr McCloskey at Royal Perth Hospital, but this improved her back and limb pain only slightly. These symptoms persist to the present day. Ms Smith claims that they prevented her from seeking gainful employment."
According to Dr Stanford the plaintiff had been left with chronic back and left leg pain for which there was no correctable physical cause. By this he meant, as I understand his evidence in cross-examination, that there is no objective pathology to explain her symptoms. He said her spine was stable and her nerve function normal. In his opinion her symptoms represented a chronic pain syndrome and were in addition to her chronic abdominal pain. The pain syndrome was probably caused by the disc prolapse and related surgery.
Dr Stanford made a careful analysis of the medical records provided to him from which he observed that it was not until 26 March 2006 at Princess Alexandra Hospital that symptoms of back pain and left sciatica were recorded, some 25 days after the refilling of the intrathecal pump. The plaintiff told him that her back pain and sciatica started on 3 March 2006. He noted that none of the records relating to the plaintiff's attendance at the Queen Elizabeth Hospital and the Royal Adelaide Hospital, including ambulance, nurse triage and doctors' notes, recorded any symptoms of back pain or left sciatica. Dr Stanford observed:
"My opinion of the doctors' records is that they are thorough and detailed. This suggests to me that if Ms Smith had complained to those doctors of back pain and left sciatica then they would have recorded those symptoms in their notes."
Dr Stanford also noted that Ms Smith claimed to have spoken with Dr Perlman about her back pain and left sciatica on 9 March 2006 but this was not reflected in the written clinical record of that date. He also noted that Dr Perlman had cleared her for international air travel with reference to her chronic abdominal pain, but did not mention back pain or sciatica. According to Dr Stanford, incongruity between the alleged date of onset of symptoms and the written record was a notable inconsistency. He thought the problem could be resolved if Dr Perlman recalled that the plaintiff did in fact describe back pain and left sciatica to him between 9 and 16 March 2006.
On the issue of causation Dr Stanford was of the view that the abdominal strain associated with continuous vomiting would be sufficient to precipitate a lumbar intervertebral disc herniation causing acute back pain and sciatica in a person of the plaintiff's age.
It was also possible in his opinion that repeated vomiting could cause an annular tear without nuclear herniation causing back pain, with sciatica due to herniation occurring later. He thought the maximum time between the onset of back pain caused by annular tearing and sciatica caused by nuclear herniation could be between a few days and a few weeks.
Furthermore, he thought that vomiting could painlessly injure an intervertebral disc without causing a full annular tear so as to render it more vulnerable to full tearing and nuclear herniation in the event of a second injury. The maximum time interval between two such events was impossible to know but several weeks would be considered reasonable.
On the basis of this analysis he advanced four possibilities, as follows:
1.If back and sciatic symptoms commenced during the period of continuous vomiting from 1 to 3 March 2006 then the causal relationship between the acute pain and the vomiting would be direct.
2.If the plaintiff suffered acute back pain during the period of vomiting and experienced sciatica up to three to four weeks later then there would still be a causal relationship between the vomiting and the development of back pain and left leg pain.
3.If a close temporal relationship was not established between the period of vomiting and the onset of back pain and sciatica then it was still possible that the vomiting was a cause of the back condition as it could be seen as a sub‑threshold injury with a later event causing symptoms.
4.If the symptoms did not occur between 1 and 3 March as a result of vomiting then they may have resulted from some other provocation of the disc at the time of her travel to the United Kingdom.
In the context of the fourth proposition Dr Stanford observed that other movements, such as putting luggage in the overhead locker of an aircraft, could also precipitate a disc herniation such as the plaintiff suffered.
In examination‑in‑chief Dr Stanford made reference to the Spencer Road Medical Centre records for 13 March 2006 with which he had been provided some time subsequent to his report, indicating a complaint of left leg pain and buttock pain. From this information he understood that the first recorded date of back and leg pain was in fact on that date rather than 26 March. He thought this would "narrow down" his four scenarios. I did not understand Dr Stanford to suggest that it was determinative.
In cross‑examination Dr Stanford said, in relation to the Spencer Road Medical Centre records, that leg pain and back pain probably indicated sciatica, but he accepted that prior to that date there was no documentation of any back pain. He agreed that scenario two depended on back pain being experienced prior to leg pain. He did not consider that a prior episode of back and sciatic pain some years before was relevant, assuming those symptoms had resolved. He accepted, however, that the plaintiff's lumbar disc could have been injured previously. Asked whether previous episodes of vomiting and pseudo seizures were relevant, Dr Stanford said:
"Look, lumbar disc degeneration is a process of cumulative injury over a long time and so any of these previous events, pseudo seizures, vomiting or otherwise could conceivably contribute to disc injury over the years."

He agreed that an episode of disc herniation and sciatica could have occurred with very little insult. Dr Stanford considered that if there was no back pain before 10 March (the date of the plaintiff's letter to Royal Perth Hospital) "then the subsequent onset of her back pain and sciatica is related to something other than her vomiting on 1 to 3 March".

Evidence of Dr David Perlman

Dr Perlman was called by the defendant. In evidence‑in‑chief he stated that he was informed by the nurse who had refilled the pump of the overdose and of the plaintiff's admission to hospital in Adelaide. He subsequently discussed the incident with the plaintiff. He said he saw the plaintiff after her return from Adelaide because she was going to the United Kingdom and required a letter permitting her to carry narcotics overseas. That was the primary object of her visit. As far as he was concerned her symptoms had not altered.
He wrote a letter dated 16 March 2006 confirming that he had prescribed morphine and other medication. He also wrote another letter that day confirming that he had provided the plaintiff with morphine medication for one month and requesting that the plaintiff be allowed to take it into the United Kingdom. According to Dr Perlman, he first became aware of the plaintiff having low back pain and leg pain when he received a letter from Dr David Holthouse dated 11 April 2006 regarding the plaintiff's presentation to the Emergency Department of Armadale‑Kelmscott Hospital the previous day. He did not recall any prior complaints of sciatica. If he had he would have examined the plaintiff and ordered a CT scan. When he received Dr Holthouse's letter he obtained an MRI report and referred the plaintiff to Mr McCloskey.
Dr Perlman identified a handwritten letter he wrote on 13 March 2006 requesting that the plaintiff be prescribed morphine whilst she was overseas, and an incapacitated passenger's handling advice form for British Airways in which he stated that the plaintiff suffered from chronic abdominal pain.
The plaintiff's evidence that she told Dr Perlman of her lower back and leg pain on 9 March 2006 was put to him. He said if the plaintiff had reported sciatica he would have investigated it. He would not have said "it will go away". He said it was very unlikely that he would have told the plaintiff not to worry about it and not done anything more to investigate it. Dr Perlman also contradicted the plaintiff's evidence that she had taken marijuana for pain relief on his advice. He said he had strong views about the use of marijuana in the treatment of chronic pain. He did not believe that it had any effect on the type of pain suffered by the plaintiff and he would not have sanctioned its use.
In cross‑examination Dr Perlman said that he did not recall the plaintiff calling him from Adelaide on the morning of Sunday 5 March 2006. Further, he denied that he would have said words to the effect that the plaintiff's sciatic pain would go away within a week as he said it was not the sort of advice one would give over the phone without seeing the patient, knowing its significance. He was also asked about whether he saw the plaintiff on the day that she came into have her pump refilled on her return from Adelaide. He had no recollection of seeing the plaintiff on that occasion. He was shown an out‑patient case note dated 9 March 2006 which he accepted was in his writing. It was a prescription for morphine. He said that the issue of a prescription did not mean that he had seen the plaintiff on that occasion as it was common to prescribe repeat prescriptions.
Despite his lack of recollection of a meeting with the plaintiff, Dr Perlman stated that it was highly likely that he would have seen her on that day. He accepted that he may not have made any notes if he had seen the plaintiff while she was in the pain clinic for a refill. He accepted that he saw the plaintiff on 13 March 2006 for the purpose of issuing the letters necessary for her travel to the United Kingdom but he had no actual recollection of seeing the plaintiff on that occasion and conceded that his letters of 13 March 2006 could have been written without him seeing her.

Medical records

Reference has already been made in these reasons to the records of the hospitals attended by the plaintiff on the night of 4 March 2006 and the records of the ambulance officers who conveyed the plaintiff between those hospitals on that occasion. I have read these records carefully in the context of the plaintiff's evidence and that of Dr Stanford.
The Queen Elizabeth Hospital notes of the plaintiff's attendance on the night of Saturday 4 March 2006 indicate that she was seen by a doctor just after midnight. The notes indicate a very detailed interview of which the following notes were taken. The notes record that the plaintiff developed continual vomiting, headache, respiratory depression, slurred speech and constipation following the loading of the pump on the previous Wednesday. Her admission on 2 March 2006 with constipation and vomiting was noted. The plaintiff had heard her pump alarm beeping and realised that she had received a much bigger dose of morphine than usual. On examination she was neurologically normal except for very mild slurred speech. Amongst other things it was noted that her abdomen was soft with mild tenderness all over, but there was no guarding or muscle rigidity. No reference was made to any complaint of back pain or of any observation on examination indicating back or leg pain at that time.
The plaintiff was transferred by ambulance to Royal Adelaide Hospital. As previously noted, the ambulance service records disclosed no record of lower back or leg symptoms but otherwise detail the plaintiff's medical history, her current medications and various observations made on examination. The nursing triage notes (Assessment and Admission – Emergency Patients) indicate that the presenting condition was an overdose. The only symptom at that time was headache, the other symptoms of the overdose having worn off.
Although there was no viva voce evidence given by any medical practitioner or nurse who saw the plaintiff in Adelaide, the notes strike me, as they did Dr Stanford, as thorough and comprehensive.
The record of the plaintiff's attendance at the Spencer Road Medical Centre on 13 March 2006 has also been referred to. It states that the plaintiff presented with left leg pain and buttock pain. No note was made as to the history of the onset of this pain or of its nature. The plaintiff's history of Crohn's disease, von Willebrand's disease and chronic pain, requiring the Medtronic pump, is detailed, as well as her medication, but the only indication of the purpose of the consultation are the words "exclude DVT". There is no reference to the overdose. Dr Nagree was not called.
The Royal Perth Hospital records include nursing notes dated 8 March 2006, apparently written and signed by Ms M Rogerson. These refer to the overdose and state that she vomited and had a severe headache. There is no mention of back or sciatic pain. The plaintiff's pump was re-filled on this occasion which is consistent with the plaintiff's evidence that she went to the pain clinic the day after she returned to Perth.
As stated with reference to Dr Perlman's evidence, the record made at the pain clinic of Royal Perth Hospital on 9 March 2006 is of his prescription only. It does not detail any symptoms and makes no mention of back or leg pain. It does not indicate that he saw her that day. Similarly, as previously noted, none of the documents prepared by Dr Perlman for the purposes of the plaintiff's travel arrangements makes any reference to these symptoms.
The records of Princess Alexandra Hospital indicate that on 26 March 2006 the plaintiff presented with a history of back and leg pain since 3 March 2006. The nurse assessment notes refer to the plaintiff being treated in Australia for an overdose from an intrathecal pump causing vomiting. She was discharged to the care of a general practitioner with a letter from a registrar stating that a diagnosis of left sciatica had been made. The letter recommended that the plaintiff be prescribed more morphine and Diazepam.
The records of the plaintiff's attendance on 5 April 2006 indicate worsening back pain not controlled by morphine or diazepam. It was noted that the plaintiff was due to return to Perth on 13 April 2006 and that she was keen to return to her "pain team". A letter was written on her behalf requesting that she be prescribed morphine.
The notes of Armadale Health Service of the plaintiff's attendance on 10 April 2006 include the following history:
"3/52 ago had problems with her intrathecal pump – where apparently the 3/52 dose ran through in 3/7.
Presented to Adelaide Hospital with vomiting. Since then she has had shooting pains from her L buttock down the back of her thigh to ankle."
On the following day Dr David Holthouse wrote to Dr Perlman stating that the plaintiff required an urgent MRI to ascertain the extent of her radicular symptoms.
An MRI report of 19 April 2006 indicated a left paramedian disc extrusion/sequestration at L5/S1 with evidence of neural compression. The plaintiff was then referred to Mr McCloskey. She was seen initially by his Registrar, Dr Omar Khorshid on 12 May 2006. In a letter to Dr Perlman dated 18 May 2006 Dr Khorshid set out the plaintiff's history as follows:
"Tracy relates a history of malfunction of the pump resulting in an increased dose of opiate into her system, which caused severe vomiting. Since these vomiting episodes, she had experienced severe pain down the back of her left leg, which would be consistent with sciatica. She denies any sensory abnormality in the leg, but characterises the pain as extremely severe. There are no new specific bowel or bladder problems, but given her previous history, she has had some issues in this area over a period of time."
The plaintiff eventually saw Mr McCloskey on 16 June 2006. Mr McCloskey wrote to Dr Perlman on 22 June 2006 stating, "Tracy has had longstanding back pain but, more pressingly for herself is the left sciatica, which has been present now for about four months".

Findings on causation

The Civil Liability Act 2002 (WA) applies. My determination of the issue of causation is made in accordance with the principles expressed in s 5C and s 5D of the Act.
The ultimate issue in this case is whether a particular bout of vomiting provoked by the overdose caused the plaintiff's lumbo-sacral disc protusion. Although no objection was taken, Dr Stanford's opinion that it did, albeit qualified, is inadmissible. However, his evidence is admissible to explain the physiology of the intervertebral disc at L5/S1 and the means by which that disc can be damaged, including the cumulative effect of multiple injuries, or what might conveniently be described as "wear and tear". As Dr Stanford explained, the incidence of intervertebral disc protrusion is highest in the 30 to 50 year age group and symptoms may be brought on by a minor physical strain.
I accept the evidence of Dr Stanford that an episode of vomiting could have caused an injury to the disc which directly resulted in a herniation associated with sciatic pain, or a less serious injury which damaged the disc causing it to rupture at a later time, and that in fact the plaintiff's lumbo-sacral disc protrusion could have been precipitated by a number of other events. The plaintiff was vulnerable to intervertebral disc injury. Degeneration of the disc was clearly evident in December 1999 when an MRI was reported as showing a right postero-lateral annulus tear and a mild broad-based disc bulge. The appearance in May 2006 showed a 2 millimetre disc protrusion displacing and compressing the left S1 nerve root. Unfortunately, there was no radiological evidence of any comparison or analysis of the two appearances.
Dr Stanford explained the difficulty of establishing a causal nexus between the vomiting episode described by the plaintiff and the subsequently diagnosed disc protusion due to the lack of contemporaneous medical documentation of lower back pain or sciatic symptoms, thus highlighting the central problem in the plaintiff's case, a problem which the plaintiff would have the Court resolve by simply accepting her evidence.
The plaintiff's case at trial was based on the first scenario postulated by Dr Stanford, involving the commencement of back and sciatic symptoms during the period of vomiting i.e. 1 to 3 March 2006.
The plaintiff's evidence was unequivocally to the effect that on the evening of 3 March 2006 she experienced the onset of lower back pain and left sciatic pain following an episode of vomiting, that the symptoms were severe and unlike any she had experienced before. On the plaintiff's evidence, these symptoms clearly penetrated the analgesic effect of her morphine overdose.
It was not the plaintiff's case that she suffered back pain only, followed by sciatica some weeks later as contemplated in scenario 2 of Dr Stanford. Nor was it argued on behalf of the plaintiff that the vomiting caused a "sub‑threshold injury" which predisposed her to disc injury at a later time prior to her presentation to Princess Alexandra Hospital in Essex on 26 March 2006 in line with scenarios 2 and 3.
The defendant's case was that scenario 4 was established in that there were no clinically relevant symptoms experienced between 1 and 3 March 2006 and that the subsequent disc protusion was a result of some other provocation of the disc which occurred around the time of the plaintiff's trip to England.
The possibilities thus explained, I consider it is necessary for me to determine not only whether the plaintiff suffered the onset of symptoms as she described in evidence, but, also, if that were not the case, whether the plaintiff suffered a less acute injury which may have increased her susceptibility to the disc protrusion with which she was diagnosed over three weeks after the overdose, and to have thus caused the protrusion in the sense of having materially contributed to it.
Unfortunately, the plaintiff was an unreliable witness to her medical history. This, together with the dearth of corroborative contemporaneous medical documentation, has made the necessary fact‑finding rather difficult.
An example of her unreliability is that the plaintiff had no recollection of her complaints of and treatment for acute lower back pain and right sciatica in December 1999. Such symptoms were clearly documented over a number of days at Nickol Bay Hospital and St John of God Hospital Subiaco and eventually warranted investigation by MRI on 7 December 1999.
Given that her mother had a history of back injury causing sciatica for which she required surgery in 1972 and from which she said she still had occasional symptoms, a history of which the plaintiff was aware, one would have expected the plaintiff to have given significance to this condition and remembered it. I accept that the plaintiff was attempting to come off morphine, but her recorded complaints were of severe pain and were apparently consistent with the radiological findings. She also complained at that time of "unbearable" left leg pain, yet professed no memory of this either.
Interestingly, neither Mr Currie who was present when the plaintiff was admitted to Nickol Bay Hospital on 30 November 2006 and saw her from time to time thereafter until she was transferred to Perth, and the plaintiff's mother Mrs Salerno, who travelled to Perth after the plaintiff had been admitted to St John's, had any recollection of the plaintiff suffering acute lower back and right and left leg pain at that time, both of them recalling only that the plaintiff was coming off morphine.
As I have observed, after the plaintiff's discharge from St John of God Hospital no further complaints of low back or left leg pain appear to have been made. The acute condition for which she was treated, principally by increased opiate analgesia, appeared to resolve. Later references in the medical records to the plaintiff having suffered lower back pain appear to have been merely historical. If there were any ongoing back problems after December 1999 it is likely that they would have been documented. I therefore infer that her symptoms resolved.
As far as the plaintiff is concerned, I cannot tell whether she honestly has no recollection of having suffered lower back pain at that time, which may be a product of her long‑term overuse of narcotics, or wishes to avoid acknowledging a feature of her medical history which might be seen as potentially damaging to her claim. Either way, to the extent that the plaintiff did not recall or was not prepared to acknowledge such a clinically significant condition, the reliability of her evidence is diminished.
As for the evidence of Mr Currie and Mrs Salerno in this regard, I do not consider that they have been untruthful and can only infer that they were not aware of the plaintiff's complaints of lumbar symptoms, or did not give them any significance in the context of the plaintiff's overall medical condition and need for treatment at that time. There was no reason for them to untruthfully deny any recollection in the face of clear and unequivocal documentary proof.
Another aspect of the plaintiff's medical history about which her evidence was unsatisfactory was her treatment with pethidine at various times and in particular from 2001 to 2004. The plaintiff made two categorical statements, first that she did not ever self‑administer pethidine, and the second that she was not prescribed morphine and pethidine at the same time. Her evidence was convincingly contradicted by documentary evidence to the contrary. The same observation may be made about the plaintiff's denial that she consumed alcohol. Her evidence in relation to the letter she wrote Royal Perth Hospital was unsatisfactory and the untruthfulness of the statement in that letter about the loss of a planned holiday reflects badly on her.
My impression of the plaintiff giving evidence was that she did not have a good memory, but at the same time was concerned not to concede any fact adverse to her case. Although her history shows that she has indeed suffered from disabling pain and intrusive gastro‑enterological symptoms she tended to play down the effect of her pre‑existing condition on her relationship with Mr Currie, her recreational activities and her capacity for gainful employment, no doubt to paint a better "before" picture. My finding on the evidence as a whole is that, in fact, the plaintiff was severely incapacitated by her pre‑existing pain state. I will elaborate on this later.
Faced with the obvious difficulty created by my reservations about the plaintiff's credibility, I turn now to the issues of fact. Before doing so, however, I should point out that I have not given any weight to the inconsistencies between the evidence of the plaintiff, Mrs Salerno and Ms Danielle Smith in relation to where the plaintiff slept at her mother's home in the days after the overdose, or to the plaintiff's answers to interrogatories indicating the date of onset of symptoms as 2 March 2006, the same date as the plaintiff's solicitors gave in the history they supplied to Dr Stanford and Dr Beinart. These inconsistencies, which have been explained to some extent, are not sufficiently material, in my opinion, to impact on the plaintiff's credibility, other than to highlight her poor memory.
The first question is whether in fact the plaintiff did suffer the onset of lower back and left leg pain on the evening of 3 March 2009 of the nature she described. Her evidence was that she suffered a shooting pain from her lower back through her buttocks and down her left leg of a kind she had never experienced before. She told her mother of it. Her recollection was challenged in cross‑examination but her account of the incident was essentially the same. At the time of the incident the plaintiff was still being overdosed by the morphine pump. She described herself as feeling quite "drugged and dopey". Nevertheless, she self‑administered a morphine injection the next day to ease her pain. She did very little that day. Late that night she went to hospital after her pump alarm was activated.

According to her daughter Danielle, it was after the pump started alarming that the plaintiff became more coherent and complained that her back was "a little bit sore", which caused Danielle to suspect that she had pulled a muscle, based on her own experience of having suffered back soreness after a bout of gastro‑enteritis. Danielle also recalled that her mother complained of back soreness on the plane trip back to Perth and in the following weeks. According to Danielle, her mother described back soreness and pain running down one of her legs.
As I have noted earlier, evidence of the plaintiff's complaints of back pain at this time was also given by her former partner Mr Currie. Although it is not clear when Mr Currie was told of the back injury, I take it from his evidence that it was by telephone while the plaintiff was in Adelaide, as he was in Karratha at that time and did not come to Perth until 10 March.
The three witnesses to the plaintiff's complaints were all closely related to her at the relevant time and could be expected to support her by their evidence. Although it was implicitly the defendant's case that their evidence should not be accepted, apart from a suggestion made to Mrs Salerno that her journal reference to the plaintiff's back pain was inserted at a later time, there was no direct challenge to the evidence of these witnesses. Whilst it is clear that their evidence could not be contradicted, such that any challenge to their recollection would have been a mere formality, it is important to note that there was no suggestion to any of them that they had colluded in any way with the plaintiff or each other with respect to their evidence.
As the evidence of these witnesses tended to show consistency on the part of the plaintiff in terms of her response to the alleged injury it would, if accepted, displace any negative inference to be drawn from the lack of any documented complaint at Queen Elizabeth Hospital and Royal Adelaide Hospital (or to the ambulance drivers who transported the plaintiff between the two) on the night of 4 March 2006, and at Royal Perth Hospital on 9 March 2006.
The evidence of Mrs Salerno, Mr Currie and Ms Danielle Smith needs to be carefully considered. Their evidence of the plaintiff's complaints to them is not, of course, evidence of the truth of those complaints, which are self‑serving, but is admissible to rebut the defendant's contention that the plaintiff either invented a connection between the overdose and the symptoms she suffered in England three weeks later, or was fundamentally mistaken as to the history she gave at that time.
Having heard these witnesses, I am unable to find that they were untruthful or that they collaborated with the plaintiff or each other with respect to their evidence. At the same time I do not find that their evidence is wholly reliable. It is likely that in respect of each witness there has been an element of reconstruction, as I am sure is the case with respect to the plaintiff's account. However, I accept that the evidence is sufficient to corroborate the plaintiff's testimony for the following reasons.
The diagnosis of a lumbo‑sacral disc prolapse in the context of severe disabling lower back and left leg pain occurred within a few weeks of the overdose. It is likely, therefore, that this diagnosis gave considerable significance to any symptoms of back pain experienced by the plaintiff during or in the aftermath of the overdose in Adelaide. Given the problem identified by Dr Stanford with respect to the hospital records, the testimony of the family witnesses was critical to the plaintiff's case. Yet their evidence was not very detailed and not wholly consistent as one would expect if the witnesses had colluded.
Mrs Salerno struck me as a somewhat reluctant witness who said no more than she honestly could about the matter. She described herself as being "fed up" by the plaintiff's complaints of having a sore back, but it occurred to her that she may have had sciatica as she was familiar with this condition. Her journal entry "Tracy's back is really bad" does appear, from its context, to have possibly been an afterword, but whether it was or not, I am not prepared to find that it was untruthful.
As far as Mr Currie is concerned, again, he has a limited recall of the plaintiff's complaints. Of the three family witnesses, he is, in my view, the least reliable because he was not with the plaintiff during the relevant period and did not return to Perth until 10 March, before leaving for England on the 13^th. He collaborated with the plaintiff in the writing of the letter to Royal Perth Hospital requesting compensation for the overdose, a letter which is of some significance because of the omission of any reference to the plaintiff's alleged lower back or left leg symptoms and what I find to be a false claim on behalf of the plaintiff that she suffered the loss of a planned holiday by reason of the overdose.
Interestingly, Mr Currie's evidence was that the plaintiff told him while she was in Adelaide that her left leg pain was the worst of her symptoms yet Mrs Salerno and Ms Danielle Smith gave no evidence of the plaintiff complaining specifically of leg pain (although Mrs Salerno had cause to suspect sciatica and Ms Danielle Smith did mention that after her return from Adelaide the plaintiff complained of pain running down one of her legs).
My conclusion of fact on the balance of probabilities is that the plaintiff did suffer an episode of back and left leg pain in Adelaide on the evening of 3 March, but that it was not as severe as she described and improved over the following days. Whilst I have considerable reservations about many aspects of the plaintiff's evidence, I consider that the history given to personnel at Royal Alexandra Hospital on 26 March 2006 was truthfully given and not invented. The later MRI showing nerve root compression proves that the plaintiff was genuinely distressed by sciatic pain at that time such that it is improbable that she misrepresented the history of her symptoms.
Turning now to deal with the absence of any recorded complaint to hospital and ambulance personnel in Adelaide on the night of 4 March 2006, I find, contrary to the plaintiff's evidence, that no specific complaint of low back or leg pain was made. In my opinion the hospital notes are sufficiently detailed to indicate that a thorough history was obtained and examination performed at Royal Adelaide Hospital. It may be inferred from the reference to the plaintiff suffering a headache at that time (and other symptoms earlier), that if a complaint of low back and leg pain had been made, it would have been recorded.
I conclude that the plaintiff did not make any complaint because her low back and left leg symptoms had ameliorated somewhat and had no relevance in the context of a hospital admission related to a medication overdose. Also, if her symptoms were severe and constant she would have had cause to complain to the family members to a greater extent, remembering that Ms Danielle Smith's evidence was that her mother told her on that day that her back was "a little bit sore".
It is consistent with an amelioration of the initial symptoms, too, that the plaintiff was able to engage in other activities in which she was occupied for the remainder of her stay in Adelaide. I do not mean to imply that her symptoms resolved entirely, merely that she was not indisposed by them at that time.
I am not satisfied that the plaintiff complained to Dr Perlman of lower back and left leg symptoms in a telephone conversation with him on 5 March or on 9 March when she saw him in the course of attending the pain clinic for a refill of her pump. I accept Dr Perlman's evidence that if he had been told of symptoms which indicated sciatica he would have investigated those symptoms and would not have advised the plaintiff that the symptoms would go away. The plaintiff is mistaken in this regard. On the basis of Dr Perlman's own evidence I find that he probably did see her on 9 March, but not on or about 13 March when he wrote the letters she required for the purposes of her trip to England.
In relation to the plaintiff's attendance at the Spencer Road Medical Centre on 13 March, I find that she did report lower back pain and pain in her left leg and buttock as noted, but that those symptoms were not so severe as to cause her to seek advice or treatment. Rather, having decided that day, after talking by telephone with Mr Currie, to join him in England, the plaintiff was concerned that her symptoms, which she associated with her medication overdose, should be investigated so as to exclude a possible deep vein thrombosis. Again, her symptoms were not severe and I accept that for whatever reason the plaintiff thought they would resolve.
When the plaintiff travelled to England on or about 21 March 2006 she suffered an aggravation of her lower back and left leg symptoms which, over a period of about four days, during which she travelled by car to Scotland, became unbearable so as to warrant medical attention. I do not accept that the plaintiff was in severe pain when she flew to England or that her symptoms worsened on account of cold weather. If her symptoms were as bad as she described she would not have travelled. However, on the basis of Dr Stanford's evidence I infer that some further insult was occasioned to the lumbo‑sacral disc in the course of or soon after the flight to England, exacerbating an injury which was initially precipitated by a vomiting episode on 3 March 2006.

Assessment of damages

Medical evidence

The plaintiff relied on the medical opinions of Dr Stanford and Dr Beinart with respect to her residual disabilities and injury caused needs. Dr Stanford examined the plaintiff on 4 June 2008 and Dr Beinart on 1 and 26 August 2008.
Dr Stanford was of the opinion that the plaintiff's intervertebral disc herniation was appropriately treated by surgery which he described as timely and complete. He reported:
"Her outcome has been chronic pain in her back and left lower limb in addition to her chronic abdominal pain and other symptoms. She was at risk for this outcome because she had established chronic pain syndrome (abdominal pain) requiring continuous high dose morphine for many years before surgery. Although Ms Smith has been unable to work since she suffered back and left lower limb pain (a period of over two years), her employment history prior to this event was poor. The records kept by Dr Cree clearly describe the frequent and disabling abdominal symptoms suffered by Ms Smith over the period 2004 to 2006 and that she had difficulty in maintaining employment as a result. Ms Smith held and lost five positions in a 15 month period prior to her back and left sciatic symptoms developing."
Asked specifically about the effect of the plaintiff's back condition and on her capacity to work Dr Stanford also stated as follows:
"Ms Smith's earning capacity was significantly impaired prior to the events of March 2006 as indicated by the number of positions that she held and lost during 2005. That impairment stemmed from her chronic abdominal pain and associated symptoms. Since March 2006 Ms Smith has been unable to work at all because of her additional chronic back and left lower limb pain. Thus it appears that her back condition has reduced her earning potential, but from an already impaired base. I believe that Ms Smith is unable (not unfit) to perform any of the tasks listed from 6.1 to 6.4. Her back and limb pain are sufficiently severe to prevent her from doing such tasks even though her lumbo‑sacral spine is structurally stable and her nerve root motor and sensory function are not objectively impaired."
The tasks described in 6.1 to 6.4 (a reference to the plaintiff's solicitor's letter of request) were managing a Red Dot store, work involving repetitive bending and/or lifting, work involving heavy lifting and work involving long periods of standing or walking.
Dr Beinart who is a specialist in rehabilitation medicine was told by the plaintiff that she continued to have lower back pain despite undergoing surgery, although the operation did improve her left leg pain. She considered she had not been capable of returning to work.
The plaintiff also told Dr Beinart that her general practitioner, Dr Adebayo was investigating thoracic and bilateral shoulder pain (about which no other evidence was given). She continued to have chronic leg pain which was less severe than her back pain which she described as constant and stabbing in nature and accompanied by severe lower back stiffness. She was unable to weight bear on her left leg due to pain and suffered soreness in the right leg and knee as a result of favouring the left. She had pins and needles in her left foot and stabbing pain from her left buttock to her knee.
The plaintiff told Dr Beinart that she had difficulty in attending to matters of personal hygiene. Her housework was done by her daughter. She was only able to wash dishes for a short period and was unable to vacuum, mop or hang out washing. She avoided sex because of pain. The plaintiff told Dr Beinart that she would like to return to work as a carer but believed that this was beyond her.
In relation to his examination Dr Beinart said that the plaintiff was emotional and teary and that it was "difficult to get her to answer my questions directly without over-embellishment". He described her as walking with a marked antalgic gait supporting herself with a cane. He reported that axial compression and rotation tests resulted in the plaintiff reporting a significant increase in lower back pain. Dr Beinart conceded in cross‑examination that these were signs of exaggeration or non‑organic pain. He also noted exaggerated tenderness and voluntary inhibition of low back movement and straight leg raising. He stated that neurological examination of the lower limbs was difficult to interpret, observing that there was no obvious wasting and no evident neuropathic changes.
In cross‑examination Dr Beinart said that the examination was difficult to interpret because of "the difficulty in examining her due to her discomfort laying down, or maintaining any position". He also noted that there was non‑anatomical decreased sensation in the left leg. Whilst Dr Beinart diagnosed chronic mechanical back pain and referred left leg pain due to neural sensitivity, he was unable to point to any objective neurological signs of irritation of the nerve root at the spine.
Dr Beinart's opinion was that the plaintiff was not fit for any form of paid employment for the foreseeable future. He considered that her low back injury was set against a background of a chronic pain syndrome, chronic anxiety and depression and narcotic dependence. Nevertheless, he attributed her incapacity for work to her spinal injury due to the fact that he was informed that she had been able to work as a carer prior to the overdose and before that had been employed as a manager of a Red Dot store which involved manual handling.
Dr Beinart considered the plaintiff to be significantly restricted in all aspects of daily living. When he was asked in evidence to estimate her requirements for care and assistance, however, I allowed the defendant's objection on the basis that no notice of such quantitative evidence had been given, bearing in mind that the plaintiff's injury-caused needs were controversial and Dr Beinart had not been relevantly qualified to express an opinion.
The plaintiff called no other evidence. No treating practitioners were called. Although Dr Perlman had been called by the defendant in relation to the causation issue he was not examined or cross-examined in relation to issues of loss and damage even though he had treated the plaintiff for many years prior to her overdose and continued to see her until 2009. There was no evidence called in relation to the plaintiff's treatment at Royal Adelaide Hospital in 2009, which she said resulted in her morphine consumption being reduced, apart from clinical records.
The only other medical evidence going to quantum is documentary, the defendant having tendered most if not all of the plaintiff's known medical and hospital files. These indicate that the plaintiff continued to be treated at the Royal Perth Hospital pain clinic following her surgery and that she was treated for stress and anxiety caused by chronic pain. On 28 August 2006 Mr McCloskey reported to Dr Perlman that the plaintiff had indicated improvement in her left leg pain and when examined that day did not have a limp. She continued to have ongoing back pain. Mr McCloskey noted that she was trying to wean herself off her medication. He was unable to offer any further advice. On 22 February 2007 Mr McCloskey's registrar wrote to Dr Perlman following an examination of the plaintiff on 16 February. She continued to report good relief of her left leg sciatica but had ongoing lumbar pain and was referred for physiotherapy.
On 23 March 2007 Dr Perlman wrote to Dr Cree in Karratha stating that the plaintiff had lost a considerable amount of weight and was increasing her exercise routine. Her main complaint was of a residual haematoma where the intrathecal pump was removed. Dr Perlman thought that this required surgical removal. He noted that her analgesic needs had not reduced.
In the first half of 2007 the plaintiff underwent considerable dental treatment, including surgery, as a result of multiple abscesses. During the period, March to May 2007 all of the plaintiff's attendances for treatment appeared to be in relation to her dental problems. On 24 May 2007 she was admitted for removal of the haematoma around the area of her intrathecal pump insertion. When she was discharged on 25 May 2007 she was taking morphine by injection 60 milligrams per day, Gabapentin, Diazepam, Temazepan, Mirtazapine and Paracetamol.
On 3 August 2007 she was admitted to the Emergency Department of Royal Perth Hospital with back pain following a fall, as well as central chest pain, pain in the left leg and diarrhoea. On 5 August 2007 she attended at Reynolds Road Medical Centre complaining of nausea, vomiting and diarrhoea. She was admitted overnight to Royal Perth Hospital on 9 October 2007 with abdominal pain, nausea and vomiting associated with a small bowel obstruction. She re-presented on the day that she was discharged with generalised abdominal pain and was re‑admitted the following day with constipation due to a sub‑acute intestinal obstruction. On 16 October 2007 the plaintiff was reviewed at the spinal clinic and reported worsening back and right leg pain (not left). She was reviewed again on 22 November 2007 with neck and back pain and increased pain in the left leg.
On 17 October 2007 Dr N Stevens from the Department of Health wrote to Dr Evan Tziavrangos of Royal Perth Hospital noting that the plaintiff over a 106 day period from 14 May 2007 had received on average 10.9 morphine ampoules (30 milligrams) a day which was described as a very high dose. An application for authorisation for continued treatment was invited.
The Royal Perth Hospital records indicate that from 22 November 2007 to 7 December 2007 the plaintiff underwent a home rehabilitation programme. She presented at Royal Perth Hospital on 4, 5 and 6 December 2007 complaining of a headache, nausea, backache and photophobia. On 13 December 2007 she underwent an MRI of the lumbar spine which showed no evidence of recurrent disc extrusion but a broad based disc bulge in keeping with disc desiccation and enhancing epidural fibrosis at the sight of her surgery which has not been the subject of any expert evidence.
The records which I have perused after that date are of attendances at the Reynolds Road Medical Centre, Bentley Medical Centre and the Royal Perth Hospital pain clinic from which I note that the plaintiff continued to require large quantities of morphine. It appears in the records that her main treatment provider has been the Bentley Medical Centre where she has seen Dr Roger Lekias, Dr Paul Poon and Dr Motunaro Adebayo.

It is evident from their records that the plaintiff's principal complaints over the last two years to February 2010 have related to her morphine addiction, chronic dental problems, respiratory problems as well as various other ailments. The plaintiff has complained from time to time of lower back and left leg pain and of suffering falls due to pain in her left leg, but in 49 consultations from 5 March 2008 to 11 December 2009 I have counted only four in which back pain is mentioned, the last being on 13 May 2009. The note is: "10 days mid‑spine pain after travel from Karratha, chest clear, local tenderness, note chronic back pains-bone scan‑degeneration shown in 2008". She has been investigated for suspected osteoporosis. A bone scan in September 2008 showed degenerative changes in the mid and lower thoracic spine. There have been numerous consultations for gastro‑enterological symptoms including diarrhoea, vomiting and constipation.
Overall, the medical documentation of the plaintiff's history following surgery is indicative of a continuation of pre‑existing chronic abdominal pain syndrome and associated gastro‑enterological problems mainly due to the effects of her morphine consumption. A note by Dr Abedayo on 9 October 2009 reads: "Partial bowel obstruction due to chronic opiod use – colonoscopy not revealing any active Crohn's disease".
Having had to trawl hundreds of pages of medical records I can only lament the paucity of more satisfactory evidence of the plaintiff's medical treatment over the last four years. As it is, I have had to rely on the documentary evidence tendered by the defendant in circumstances where I would have expected viva voce medical evidence to have been adduced by the plaintiff. Where the task of assessing damages has to be performed against a background of a pre-existing disabling chronic pain syndrome complicated by opiate addiction, one would expect to hear evidence from the plaintiff's general practitioners and treating specialists, not merely examiners who have seen her for the purpose of providing medico-legal reports. As it is there is a great deal that remains unexplained about the plaintiff's various medical conditions.
As to the plaintiff's medical condition and level of functioning prior to the overdose, the documentary medical evidence, which I regard as more reliable than that of the plaintiff, shows that although she was employed by Red Dot from 24 November 2005 to 24 January 2006, which was on her evidence not a continuous period, she was not able to cope with that employment. The following extracts from Dr Cree's notes are telling:
"2 November 2005
Biggest prob is still first thing in morning for – and feeling like lead weight, takes 2hr to get mobile.
This week worse with vomiting and diarrhoea infection.
8 November 2005
Cannot see Dr Perlman until 9 February. Tracy saying she cannot handle things til then, or now. Has been 'in a state' – took Endep but this was what caused fluid retention/bowel problems.
To use valium for sedation evenings.
Cannot control diarrhoea so is not able to work/seek work. Diarrhoea few hours in mornings, starts again late afternoons – then even if no diarrhoea will be lots of cramps. Vomiting in mornings as well.
Pain – stomach hurts to just breathe, morning pain waking out of sleep and distressing.
18 November 2005
Stress in family with pressure on her to be working but not able to manage house let alone do this.
Feeling has no friends left to spend time with socially in day hours. Isolated.
Discussed options for work type jobs, not able to guarantee able to turn up regularly at present, should not be looking at any physically involved jobs e.g. stocking shelves. Headaches daily, Panadol use daily."
On 5 January 2006 the plaintiff told Dr Cree that she was unable to manage her new job and would have to cease work. On 12 January 2006 Dr Cree noted that the plaintiff was suffering distress and was not coping with work. Her relationship (with Mr Currie) was suffering. At that time the plaintiff was being treated with morphine injections, as well as Gabapentin, Ondansetron, Valium and Stilnox. It appears that the plaintiff was endeavouring at that time to get her morphine consumption under control. She was having hydromorphone administered through the intrathecal pump and also having regular self‑administered morphine injections.
Although I accept that the plaintiff did experience the onset of low back and leg pain on 3 March 2005, relatively mild in severity until her symptoms were exacerbated by her trip to England later that month, and that following her diagnosis of lumbo‑sacral disc herniation she required surgery, I do not consider that her symptoms of ongoing low back and leg pain have been as severe as the plaintiff would have me believe. I nevertheless accept that she has a chronic pain state which now includes symptoms of lower back and left leg pain. These symptoms are no longer attributable to the disc injury but form part of her overall pain presentation. Associated with this pain state is the plaintiff's chronic addiction to narcotic medication.
It is not pleaded on behalf of the plaintiff that her disc injury has contributed to her drug dependency or her associated symptoms, although the plaintiff did suggest in her evidence that but for the overdose she would have managed to get her morphine consumption under better control. Having regard to her medical history, I am not satisfied that this would have occurred. I consider that the plaintiff's pain state as presented to her medical advisors from time to time is very much bound up with her narcotic dependency.
On the basis of these findings I now turn to the various heads under which damages have been claimed.

Non‑pecuniary loss

As I have noted, the Civil Liability Act applies. No decisions of this or any other courts have been brought to my attention with respect to the amount to be assessed for non‑pecuniary loss as permitted by s 10, but the plaintiff's counsel has submitted a range of $60,000 - $80,000 which is above the level at which the deductable applies, Amount C being $49,500.
In my opinion there is no tariff to be applied in this case. Whilst some injuries may be capable of generic categorisation, this is not one of them. In this case the plaintiff at the time of her injury suffered many privations due to the effects of her pre‑existing chronic ill health. This situation was liable to continue indefinitely.
Whilst the disc injury occasioned the need for surgery by Mr McCloskey, by all objective accounts the procedure was successful and subsequent imaging of the plaintiff's spine has shown no further cause for symptoms due to sciatic nerve compression. Nevertheless, as Dr Stanford has said, the injury has resulted in a further chronic pain state manifested by ongoing complaints of low back and left leg pain. I prefer his evidence as to diagnosis to Dr Beinart's, but am nevertheless still uncertain as to what is causing the plaintiff's ongoing symptoms.
Furthermore, the nature and extent of the plaintiff's pain state is difficult to determine for the reasons I have set out. I do not accept all that the plaintiff says about her symptoms and disabilities and am not assisted by the lack of evidence of her treating practitioners which might corroborate or at least better explain her ongoing problems.
Doing the best I can I would assess the plaintiff's general damages in the amount of $60,000. Applying s 9(3) of the Act I allow $55,000.

Past loss of earning capacity

I have adverted in these reasons to the plaintiff's pre‑accident work history, specifically her attempt to hold down a job she obtained as a manager of a Red Dot store in November 2005. The plaintiff's tax returns were tendered in evidence for the years ending 30 June 1998 to 2006, with the exception of 2001. I also received from the plaintiff's counsel a schedule which set out, year by year, a comparison between the plaintiff's net annual income and her hospital admissions. A summary of these comparisons is set out below:

Year

Net Income

No/Length Hospital Admissions

1997/98

$12,360.00

1 admission              3 days

1998/99

$8238.00

2 admissions            17 days total

1999/00

$2459.00

3 admissions            26 days total

2000/01

Nil

4 admissions            27 days total

2001/02

$5,007.00

2 admissions            10 days total

2002/03

$27,789.00

0

2003/04

$16,442.00

3 admissions            12 days total

2004/05

$6,579.00

3 admissions            8 days total

2005/06

$6,244.00

2 admissions            13 days total

2006/07

Nil

3 admissions            17 days total

2007/08

Nil

2 admissions            4 days total

2008/09

Nil

Nil

2009/10

Nil

3 admissions            42 days

The plaintiff's evidence was that she worked in various positions. She has worked as a service station attendant and cook, an aged carer, a shop assistant and in numerous other unskilled or semi‑skilled positions. In the four financial periods prior to the overdose the plaintiff's average weekly net earnings were $237 or $12,324 per annum. Over the entire period from 1997 to 2005 the plaintiff's average annual earnings were $9,048, or $174 per week net.
Shortly before the overdose the plaintiff was, according to her evidence, working part‑time as a carer. It is not clear how much the plaintiff earned from that work as her income was not declared in her 2006 tax return and no alternative proof of it was proffered.
Whilst I have grave reservations about the extent to which the plaintiff would have worked had the overdose not occurred, her work history shows that she was capable of doing work from time to time and did so even when she was acutely afflicted by her various medical disorders. I doubt, however, that she would have earned, on average, as much as she earned in 2002/2003 or 2003/2004.
That the plaintiff has not worked since the overdose is partly due to her pre‑existing medical problems. Nevertheless, it is clear that whilst the plaintiff was able to do some work before the overdose she has not been able to do any since. The chronology certainly suggests that there is at least a temporal link between the overdose and the plaintiff ceasing to do any form of gainful employment.
In my view it would be reasonable to credit the plaintiff with an earning capacity of around $200 per week net, inclusive of superannuation. From 1 March 2006 to 28 May 2010 is a period of about 220 weeks. The loss is therefore $44,000 and interest at the rate of 6 per cent averaged (3 per cent) for 4.25 years is $5,610.

Future loss of earning capacity

The plaintiff will turn 46 years on 6 July 2010. As far as her prognosis is concerned it is the opinion of Dr Stanford that her back condition is unlikely to change. In his opinion the plaintiff's lower back and left leg pain are sufficiently severe to prevent her from working even though her lumbo‑sacral spine is structurally stable and she has no evidence of neurological impairment.
Dr Stanford is not a pain management specialist. On my reading of his curriculum vitae his speciality is spinal surgery. Given that he has found that there is no persistent reversible physical cause for the back and leg symptoms, it is difficult to understand on what basis Dr Stanford has concluded that the plaintiff's symptoms are unlikely to change. This aspect of his evidence is not satisfactorily explained.
As far as Dr Beinart is concerned, it was his opinion that the plaintiff's low back condition meant that she had no work capacity in the foreseeable future. Dr Beinart's conclusion appears to be based on the plaintiff's subjective complaints. It is not clear on what clinical basis Dr Beinart has concluded that the plaintiff will not improve to the point of being able to do the work which she previously did.
Notwithstanding its deficiencies, in my view the evidence supports an allowance for future economic loss due to reduced earning capacity. Taking into account the plaintiff's pre‑accident earnings and the extent to which her average rate of pay is likely to have increased over the last four years, I would credit the plaintiff with a capacity to earn $250 net per week, inclusive of superannuation, in part‑time or periodic employment. I do not consider that she could ever have expected to obtain and hold down a permanent or full‑time job.
I would allow future loss at this rate for 10 years (multiplier 395), total $98,750, which I would round up to $100,000, a sum which I consider to be in all the circumstances appropriate to compensate the plaintiff for her future diminution of earning capacity. My assessment takes into account the uncertainty of prognosis of her pre‑existing and compensable conditions and, in particular, the chance that she would have injured her back at some point, even had the overdose not occurred, the chance of this being quite high due to the fact that she had a degenerate disc at L5/S1 which was very susceptible to injury. I base this finding on the evidence of Dr Stanford that a minor strain is capable of causing a protrusion of a degenerate disc. In the circumstances Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 applies.

Past services

The Civil Liability Act prescribes a threshold for damages for home care services. Section 12 provides that no damages are to be awarded if the amount assessed does not exceed $6,000. The Act also provides by s 12(2) that no damages are to be awarded for the services if they would have been provided even if the injured person had not suffered injury.
The plaintiff's evidence was that she was given assistance by her daughter and a next door neighbour following her return from England and that after her spinal surgery she had personal assistance from Silver Chain. Her daughter looked after things such as shopping, cleaning and cooking. The plaintiff also gave evidence that she was entitled to subsidised cleaning services which she engaged for one and a half hours per week at $8 per hour. Prior to that she had employed a young woman to work two to three hours per week at $15 per hour.
The claim is essentially for her need for services, based on Griffiths v Kerkemeyer (1977) 139 CLR 161, although it comprehends, as I understand it, her actual expenditure, not proved, on paid services from time to time which are compensable on a different basis. As no exception was taken by the defendant, I would assess the claim on the basis of her actual need for services, irrespective of how that need was met.
The evidence does not allow me to make any precise calculations of the plaintiff's needs from time to time. I have not been asked to. The plaintiff's submission is that she should be allowed damages based on assistance for five hours per week at $20 per hour as an average measure over the period since the overdose.
There is no evidence of a need for personal care. The medical evidence, however, supports to some extent the evidence of the plaintiff as to what she cannot do by way of domestic tasks. In my opinion, the lack of expert evidence as to how many hours of home-help the plaintiff has required does not prevent an inferential finding in this regard based on common sense and experience.
I am not satisfied on the evidence that the plaintiff's need has been as great as that submitted. On the evidence, it has varied. For example, there have been periods in which the plaintiff has been travelling or in hospital. Taking into account, also, the plaintiff's need for personal and domestic assistance due to her other health problems, I would allow past loss on the basis of a need for two hours domestic assistance per week at $20 for 220 weeks, total $8,800, with interest of $1,120.

Future services

The claim for future loss is based on a need for seven hours assistance per week at $20 to age 65, which takes into account what the plaintiff acknowledges to be a significantly high level of contingencies in her case. I allow $50 per week for 14 years (multiplier 499.4), in round terms, $25,000. This assessment allows for the high probability that the plaintiff would have injured her disc at some point in any event.

Future medical treatment

The evidence does not demonstrate that the plaintiff's need for medical treatment in the future is any greater than it would have been had the overdose not occurred. I am not satisfied from my analysis of the plaintiff's documented medical history that she will require treatment for her lower back and leg pain which is likely to cause her to suffer loss in the future.

Special damages

There is no claim, as I understand the plaintiff's submissions, for special damages.

Summary

In summary my assessment is as follows:
Non‑pecuniary loss  $55,000.00
Past loss of earning capacity  $42,000.00
Interest$5,610.00
Future loss of earning capacity  $100,000.00
Past services  $8,800.00
Interest$1,120.00
Future services  $25,000.00
TOTAL $237,530.00
The plaintiff should have judgment accordingly.

[2010] WADC 77

28 MAY 2010

Key Legal Topics

Areas of Law

Tort Law

Legal Concepts

Negligence

Causation

Medical Law

Assessment of Damages

Year	Net Income	No/Length Hospital Admissions
1997/98	$12,360.00	1 admission 3 days
1998/99	$8238.00	2 admissions 17 days total
1999/00	$2459.00	3 admissions 26 days total
2000/01	Nil	4 admissions 27 days total
2001/02	$5,007.00	2 admissions 10 days total
2002/03	$27,789.00	0
2003/04	$16,442.00	3 admissions 12 days total
2004/05	$6,579.00	3 admissions 8 days total
2005/06	$6,244.00	2 admissions 13 days total
2006/07	Nil	3 admissions 17 days total
2007/08	Nil	2 admissions 4 days total
2008/09	Nil	Nil
2009/10	Nil	3 admissions 42 days