Tattoli v Ali No. DCCIV-97-641

DOMINIC TATTOLI v SAMSHER ALI
[2000] SADC 143

Judge Lunn
Civil

Background

The defendant was born and raised in Fiji where he obtained his basic medical qualifications. Thereafter, he spent about five years in New Zealand doing post graduate training in general surgery. This included some training and experience in orthopaedic surgery. In 1988 he obtained his Fellowship of the Royal Australian College of Surgeons as a general surgeon. He practised in various places as a general surgeon in some of which he did some, but not a great deal of, orthopaedic work.
In 1991 the defendant obtained a position as a Senior Surgical Registrar in the Colorectal Unit of the Queen Elizabeth Hospital in Adelaide. While there he performed orthopaedic hip surgery on a Mrs Mather. (The written reply of the plaintiff’s counsel asserts that this operation was at Port Pirie, but T953, T954 and T957, while not clear cut, suggest that it was at the Queen Elizabeth Hospital.) She died soon after the operation although the defendant said it was from causes unrelated to the operation. A Dr Shepherd, who had assisted the defendant in the conduct of this operation, made some complaint about the way in which the defendant had conducted this surgery. As a result the defendant had some discussions with Professor Bauze, who was the President of the Association of Orthopaedic Surgeons in South Australia, about the circumstances in which the defendant should perform orthopaedic surgery. Precisely what was communicated by Professor Bauze to the defendant was the subject of dispute and I will return to it later in these reasons.
In late 1991 the defendant took up a position of a general rural surgeon attached to the Port Pirie Hospital (“the Hospital”). The category of general rural surgeon is a relatively new one. It is for surgeons based in rural regional areas and envisages they will carry out a wide range of general surgery within their areas of competence. It encompassed the defendant performing some orthopaedic surgery, particularly of an urgent nature, but in the defendant’s case it was subject to certain conditions which had been arranged with Professor Bauze. The defendant developed a busy general surgical practice in both Port Pirie and other northern towns.
There was an xray facility at the Hospital. Xrays were taken and developed there. Once developed the xrays were available for immediate inspection by the doctor who had ordered them. Copies of the xrays were also sent to a radiologist’s practice in Adelaide. There they were examined by a specialist radiologist who provided a written report on what they disclosed. A copy of that report was sent to the doctor in Port Pirie who had ordered the xrays, but the doctor did not receive it until several days after the xrays had been developed.
In 1995 the defendant was the only surgeon resident in Port Pirie. There was no orthopaedic surgeon there. If any urgent orthopaedic surgery was required which was beyond the capabilities of the defendant, it was necessary to send the patient by ambulance to one of the major hospitals in Adelaide. In 1995 an orthopaedic surgeon, Mr Munyard, did visit Port Pirie every second week and conducted a clinic at the Hospital where he saw patients with orthopaedic problems who were referred to him by doctors in Port Pirie. The defendant knew Mr Munyard and had some professional association with him.
The plaintiff was born in 1963 and has always lived in Port Pirie. He only had a basic education and thereafter a number of manual jobs including work as a fish filleter. He is married to Karen Tattoli and they have two children who were born in 1986 and 1991. In July 1987 while working at BHAS he injured a disc in his lower back which disabled him from future work there. In September 1987 he and his wife purchased the Seabreeze Cafe in partnership. This was a fish and chip shop in Port Pirie in which the plaintiff was able to make use of his previous experience as a fish filleter.
In July 1990 the plaintiff and his wife sold the cafe and purchased in partnership a business known as “Handy Drum Rubbish Removal” for $75,000 using the proceeds of the settlement of a workers compensation claim which the plaintiff had just received from BHAS. This rubbish removal business involved the plaintiff driving a rubbish truck around Port Pirie, collecting 44 gallon drums of rubbish from various homes and businesses and emptying the drums into the back of the truck using a hydraulic lifter. The plaintiff was able to cope with this work with his back disability. Prior to 1994 it occupied him for five days of the week for a total of about 30 hours. He was assisted generally in conduct of the business by Bronte Alchin who was on unemployment benefits and who was only paid small amounts in cash which did not exceed what he was permitted to earn without reducing his unemployment benefits. In about 1993 the plaintiff listed the business for sale for $87,000 but was unsuccessful in obtaining any purchaser.
The plaintiff and his wife both have a longstanding hobby of training trotting horses. They live on a property on the outskirts of Port Pirie where they regularly keep a small number of horses and have a training track for them. The plaintiff holds a licence from the South Australian Harness Racing Association as a trainer. In conjunction with that licence he was required to take out, and did take out, a disability insurance policy covering him for loss of income resulting from accidents while training horses.
On Wednesday, 26 April 1995 the plaintiff was exercising a trotting horse on the training track at his home. He was riding in a cart (known as a bike) which was being pulled by the horse. He had each of his feet in stirrups which were part of the harness. At about 2pm the horse, while running, fell over. The plaintiff’s left foot was caught in the stirrup which caused a high velocity dislocation of his left ankle and various fractures in his lower left leg. It was a serious injury.
A friend took the plaintiff to the Hospital where he arrived at about 3pm. He was then in considerable pain but was conscious and reasonably alert. The Hospital summoned Dr Kajani, a general practitioner in Port Pirie, who was the plaintiff’s regular general practitioner. Dr Kajani arranged for the plaintiff’s left ankle to be xrayed. Dr Kajani contacted the defendant who was performing other surgery at the Hospital on that afternoon. The plaintiff had never previously heard of, or met, the defendant.
Later on that afternoon there were discussions at the Hospital between the plaintiff and the defendant. What was said was disputed and will be dealt with later. When the defendant first saw the plaintiff’s left ankle the foot was white and there was an undoubted problem of ischaemia and potential serious adverse consequences for the plaintiff if the blood supply to his left foot was not restored fairly quickly. The defendant proposed to the plaintiff that he perform an immediate procedure under general anaesthetic whereby he would attempt a closed reduction of the left ankle to put the displaced bones back into proper alignment and thereby restore the proper blood flow to the foot. The plaintiff signed a consent form for this procedure. The consent also referred to a possible open reduction. I accept the defendant’s explanation that this was merely to cover the contingency that he may not be able to effect a closed reduction while the plaintiff was under the anaesthetic and therefore may have to have opened up the ankle to achieve the reduction.
At about 6.15pm the defendant carried out at the Hospital the closed reduction of the plaintiff’s ankle under general anaesthetic. In the operating theatre he had an image intensifier, which was a portable xray machine, which enabled him to view the position of the bones. Some xray photographs were extracted from what was shown on the image intensifier at the end of the procedure. Having achieved a closed reduction of the ankle the defendant then encased the plaintiff’s left leg in plaster of paris from just below the knee to the toes.
Shortly after he came out of the anaesthetic the plaintiff saw the defendant who told him that the procedure had gone well. The plaintiff spent a painful and uncomfortable night in the Hospital. Early on the following morning he was again seen briefly by the defendant. Some time previously the defendant had made arrangements to attend a medical education seminar in Leura in New South Wales. He left for this on the Thursday morning and did not return to Port Pirie until the following Sunday. He left the plaintiff in the Hospital under the care of Dr Kajani. He wrote a letter dated 26 April to Dr Kajani which merely said:
“(The plaintiff) had been admitted with a disrupted left ankle. This was manipulated and normal configuration was obtained. The leg was put in a below knee plaster of paris.”
Dr Kajani regularly saw the plaintiff while he remained in the Hospital. The plaintiff continued to experience considerable pain. It seems that this in part was caused by swelling of the leg within the plaster. On Friday, 28 April Dr Kajani split the plaster to relieve some of the pain. In the early afternoon of Saturday, 29 April Dr Kajani discharged the plaintiff from Hospital. He was then able to walk with considerable difficulty and pain with the aid of crutches. Dr Kajani told him to see him again in about a week. The plaintiff then remained at home but continued to suffer considerable pain in the ankle and was largely immobile.
On Friday, 5 May the plaintiff saw Dr Kajani at his rooms and complained that his ankle was still painful and did not feel right. Dr Kajani referred him back to the defendant. He saw the defendant in the casualty department of the Hospital on Saturday, 6 May. There was no xray facility available at the Hospital on that day. The defendant arranged to see the plaintiff again on Monday, 8 May at the Hospital. Xrays were then taken of the foot. The defendant viewed the xrays and told the plaintiff that they showed the bones to be in good position. The plaintiff again saw the defendant on Wednesday, 10 May when he referred him to Mr Munyard. He wrote a letter of referral but no copy of that letter was able to be produced at the trial. He gave the plaintiff Mr Munyard’s telephone number and left it to the plaintiff to organise his own appointment.
The plaintiff arranged to see Mr Munyard on Friday, 19 May, which was the next occasion after the defendant’s referral when Mr Munyard was in Port Pirie. Unfortunately, Mr Munyard has misplaced all of his notes relating to his consultations with the plaintiff and so was not able to give detailed evidence about them. On that day he xrayed the plaintiff’s foot and merely suggested continuing conservative treatment. He made some comment to the effect that the plaintiff was three weeks too late in seeing him. He arranged for him to see him again in Port Pirie on 16 June. On that date Mr Munyard removed the plaster and told the plaintiff to start weight-bearing on his left leg albeit with the assistance of crutches. The plaintiff found this very difficult and painful and believed there was still some major problem with his left ankle.
Mr Munyard made a further appointment for the plaintiff to see him some weeks later, but the plaintiff did not keep it. He went back to Dr Kajani and asked to be referred to another specialist. An xray taken in late June clearly revealed that there had been some shift in the ankle bones since the closed reduction, but it is uncertain when this shift occurred and what may have caused it. The plaintiff subsequently saw a number of other orthopaedic surgeons, but no evidence was adduced from any of them. He has not as yet had any further operative treatment on his ankle. After the plaster was taken off he commenced physiotherapy and hydrotherapy. In about late June he slipped and fell at a swimming pool which he was attending for hydrotherapy. This aggravated the ankle and Dr Kajani put it into a backslab for about two weeks. He was prescribed anti-inflammatory medication and painkillers which he has continued to take.
After the trotting accident Mr Alchin continued to operate the rubbish removal business for the plaintiff and his wife. Although he was then doing all of the work, he was not paid anything extra for it. In about mid 1995 the Port Pirie Council introduced wheelie bins for the disposal of household rubbish. This eventually led to a substantial reduction in the demand for bins from the plaintiff’s business and undoubtedly significantly reduced its value.
By about August 1995 the plaintiff was attempting to return to work in the rubbish removal business. However, he had difficulty from the disabilities in his left ankle in hoisting himself into the cabin of the truck and operating its clutch and he was generally slow in performing the work. He was only able to operate the business with continued assistance from Mr Alchin. He listed the business for sale with a land agent but there were no purchasers. On 13 October 1995 the plaintiff and his wife sold the business to Mr Alchin for $37,000.
In October 1995 the plaintiff and his wife formed a company, Fyfemede Pty Ltd, in which they were the only directors and shareholders. This company bought the Phoenix Fish and Chip Shop in Port Pirie for $68,000. The plaintiff and his wife both worked in the business. They had assistance from the plaintiff’s father and sister, but they were not paid. Because of the disability in his ankle the plaintiff had difficulty in standing for the necessary lengths of time in the shop and over a sink washing potatoes. He was also unable to fillet as much fish as he would have been able to do if his ankle had not been injured. The company sold the shop in June 1998 for $70,000.
After the sale of the shop the plaintiff was unemployed for some time. He looked for work but was unsuccessful. On 22 September 1999 he commenced employment with Murray Pest Control as a termite technician and still had that job at the time of trial. There he earns $450 per week gross.

The witnesses

The plaintiff did not have as good a memory of events as he thought he had. He had forgotten about signing the consent form and his visit to the defendant on 6 May 1995. Both he and his wife bore considerable animosity to the defendant which coloured their evidence to some extent. Overall I find the plaintiff to be an honest and a generally, but not wholly, reliable witness. His credibility was not impugned by the surveillance video taken in April 1999. Where there is any dispute between the evidence of the plaintiff and the defendant I prefer that of the plaintiff.
The defendant was a very unimpressive and unreliable witness. In the witness box he was surprisingly nervous for someone of his education and professional background. His demeanour was consistent with that of someone who knew he was not telling the whole truth. He was impetuous and impulsive in much of what he said. On occasions he resorted to unconvincing theatrics such as expressions of feigned surprise and sudden revivals of memory. In some instances he was discursive and argumentative. On other occasions he was evasive and pretended to lack any real recollection even of very recent conversations and events. Overall he appeared to have little regard for the truth and said whatever he thought might advance his cause.
I do not intend to go into every unsatisfactory aspect of the evidence which the defendant gave in almost five days in the witness box. I deal below with his evidence on the central topics, but in support of my overall rejection of his evidence I mention the following matters:
The three versions of the defence which were filed made numerous factual assertions about what had occurred. There were several instances of where the defendant’s evidence was substantially inconsistent with what had been pleaded in his defences. In some instances he claimed that his solicitors had misunderstood his instructions. However, although I raised the need to do so with his counsel, the defendant did not call any solicitor involved in the preparation of the defences to say that any mistake may have been made. In the absence of such evidence I infer that the matters pleaded in the defences accurately reflected the instructions given by the defendant. Under Rule 46.22 I draw an inference adverse to the defendant’s credit from the numerous discrepancies between what was pleaded on his behalf and what he said in evidence.
The defendant pleaded in the first version of the defence, and asserted in his evidence-in-chief, that he had a professional consultation with the plaintiff on 6 June 1995. (I do not draw any inference from the deletion of the plea of this consultation from subsequent versions of the defence as it was not a material fact which needed to be pleaded under R46.04(1)(b).) The defendant referred to the last entry in his clinical notes in support of his evidence on this topic which stated “6 JUN 1995 AC seems satisfactory.” The date was an imprint from a date stamp. “Seems satisfactory” were in the handwriting of the defendant. “AC” were in someone else’s handwriting, presumably a member of his staff. Initially he said that “AC” meant that an account had been rendered to the plaintiff for the consultation and he said he did not know whether it had been paid or not. Later after making some enquiries from his rooms he retracted this evidence. He then said that no account had been rendered and that “AC” stood for after care which meant that the consultation was covered for Medicare purposes by the fee which had been charged for the initial service. (His evidence about charges which he had made for the consultations on 8 and 10 May, which were also noted as “AC” in his clinical notes, was unsatisfactory and appeared inconsistent with what he was saying about his not charging for the consultation on 6 June.) His evidence that he did not on this occasion inquire about what had transpired between the plaintiff and Mr Munyard on 16 May is implausible. The defendant’s practice appointment book for 6 June 1995 had an entry in the plaintiff’s name at 3pm, but it had been crossed out in pencil. I reject the defendant’s evidence that he had crossed it out shortly before the trial when he was checking his records as an indication that he had found a reference to the plaintiff in the book. Although neither the plaintiff nor the defendant remembered it, the most likely explanation for the appointment on 6 June is that it was made on 8 May as being a time when the defendant was to review the continuation of the plaintiff’s plaster and that it was crossed out either after the plaintiff was referred to Mr Munyard on 10 May or when he did not attend on 6 June because he was by then under the care of Mr Munyard. The plaintiff had no recollection of any visit on 6 June which was because it did not occur. It is likely that the defendant wrote “seems satisfactory” into his clinical notes at a subsequent time after he had became aware of the plaintiff’s claim against him to assert falsely that there was then nothing apparently untoward about his treatment of the plaintiff. If the defendant had seen the plaintiff on 6 June, he would have complained of substantial continuing pain and disability.
As will be related below, a major issue in the trial was whether the defendant had made a telephone call from the Hospital to an orthopaedic registrar at the Royal Adelaide Hospital late on the afternoon of Wednesday, 26 April 1995. It was put to him in cross examination that he had lied about making that call. He was asked to identify the phone in the Hospital which he had used, but he said that he was unable to recollect it. It was then put to him what Mr Roger Kirschner, the maintenance manager of the Hospital, had recently told the plaintiff’s solicitors about the Hospital’s telephone system and whether there might be a record of the call being made if it was by STD from an identified phone in the Hospital. The plaintiff’s counsel foreshadowed that he might later be seeking to call evidence in rebuttal from Mr Kirschner about the Hospital’s records, or lack of them, of any such telephone call. On a subsequent day in his cross examination the defendant was asked whether after the previous cross examination on the topic of the telephone call he himself had telephoned Mr Roger Kirschner from Adelaide. He admitted doing so and said that he had questioned Mr Kirschner about the STD records in 1995 for two particular telephones in the Hospital complex. Without being asked why he had inquired about these two particular phones the defendant volunteered the following:
“......... the reason for this was I knew full well that you were going to ask him, and I knew full well in my mind that I had not used either of those phones at all. I knew full well.”

The transcript continued:

"Q.... You knew you had not used either of those phones.
A...... I knew full well. It was just a plot to throw you off.”

It was a piece of remarkable and bizarre evidence by the defendant. He obviously foresaw that it would be put to him that his inquiry about these two particular phones could be construed as an admission by him that he had used one of these two phones to make the alleged telephone call. His assertion that “It was just a plot to throw you off” shows that he was prepared to be devious and underhanded to thwart the ascertainment of the truth of the matter. It is likely that the real reason for his inquiry to Mr Kirschner was that he wanted to know what records might be available for calls made on those phones before he gave any further evidence identifying one of those phones as being the phone which he used for the call. (The irony of the matter is that when Mr Kirschner later did give evidence in rebuttal it was to the effect that there were no records of the Hospital available for April 1995 which would show whether such an STD telephone call had been made to the Royal Adelaide Hospital from any of its 400 phones!)

I generally accept the evidence of each of the plaintiff’s wife, Mr Scott, his present employer, and Mr Alchin, who had worked for him in the rubbish removal business and then purchased it. I accept the evidence of Mr Thompson, the plaintiff’s accountant, but he could say very little about the plaintiff’s previous business activities except what he had put into the taxation returns. I accept the evidence of Mr Kennedy, the accountant called by the defendant, concerning his investigations into the prior businesses of the plaintiff. I accept that each of the three orthopaedic surgeons who were called, being Mr Osti by the plaintiff, and Mr Butcher and Mr Munyard by the defendant, were doing their best to assist the Court. Mr Munyard was hampered by not having his notes and was somewhat defensive against any suggestion that he might have been at fault in his treatment of the plaintiff. Dr Kajani was not called by either party, but no inference is to be drawn against either party for not having done so.

The initial discussions between the plaintiff and the defendant

I accept the plaintiff’s evidence that when he was first seen by Dr Kajani at the Hospital in the late afternoon of 26 April Dr Kajani said to him that he had a serious injury, but not to worry because his good friend, the surgeon Dr Ali, could attend to him. There was some discussion between the plaintiff and Dr Kajani about whether the plaintiff should be sent to Port Augusta or Adelaide, but the plaintiff was given no real choice about it. Shortly afterwards Dr Kajani introduced him to the defendant and the defendant said that he could fix the ankle in Port Pirie. The defendant did not explain what sort of a surgeon he was or make any reference to orthopaedic surgeons. The plaintiff had no understanding about the role of orthopaedic surgeons. The defendant explained to the plaintiff the proposed closed reduction under general anaesthetic and the possible need for an open reduction if the closed reduction could not be achieved. He reassured the plaintiff that it would take him eight to twelve weeks to recover with his leg in plaster and then he would be fine.

The alleged telephone call to the RAH

In paragraph 6.3 of the defence the defendant pleaded:
“6.3.. prior to the operation performed upon the plaintiff’s ankle he ‘(ie the defendant)’ telephoned the Orthopaedic Registrar at the Royal Adelaide Hospital and was advised that the foot was at acute risk from the ischaemia and the Registrar recommended that the foot be put in plaster following reduction and the patient be seen by the visiting Orthopaedic Surgeon.”

The defendant gave evidence to similar effect. He said he did not know the name of the registrar to whom he spoke and could not say which phone in the Hospital he had used to make the call. There was no corroborative evidence of it. He had made no contemporaneous notes of the call. His evidence about it was vague, specious and unconvincing and I find that it was not made.

Dealings between the plaintiff and the defendant after the closed reduction

I am satisfied on the evidence which I accept that the defendant with his lack of experience in such procedures mistakenly believed at the time of performing the closed reduction he could successfully treat the plaintiff’s fractured dislocated ankle and he did not foresee that there would be any significant residual disability for the plaintiff. He pleaded, although it was inconsistent with his evidence at the trial, that he had advised the plaintiff “that the manipulation would be performed in hospital as a day procedure, but it may be necessary to stay overnight.” (5.5.4 of the defence.) Early on the Thursday morning he discharged the plaintiff into the care of Dr Kajani not expecting anything other than a full recovery and that he would not need to see the plaintiff again. Accordingly, he left no instructions with Dr Kajani about any follow up, or further, treatment for the plaintiff. I reject the defendant’s evidence that on Thursday, 4 May he of his own volition spoke to Dr Kajani and took steps for the plaintiff to be sent back to him by Dr Kajani. The defendant only saw the plaintiff on Saturday, 6 May because the plaintiff had first consulted Dr Kajani.
When the plaintiff saw the defendant on Saturday, 6 May he complained that the ankle was giving him a lot of trouble and that it felt out of place. In his evidence the defendant said that on this consultation the plaintiff almost screamed at him. This was probably indicative of his pain and frustration. The note made by the defendant at the time of “doing OK” did not truly reflect the plaintiff’s complaints to him. There were no references on this occasion to any orthopaedic referral or to Mr Munyard.
It is likely that the plaintiff repeated his complaints when he saw the defendant on Monday, 8 May. When he was being reassured by the defendant that the xrays showed satisfactory alignment of the bones the plaintiff thought he was being fobbed off. There were also no references to any orthopaedic referral or to Mr Munyard on that Monday.
I accept the plaintiff that he made a further appointment to see the defendant for a consultation on Wednesday, 10 May. It did not result from the defendant having arranged it at the conclusion of the visit on 8 May. The plaintiff was then sufficiently unhappy with his treatment and progress that he wanted to obtain a second opinion. It was for this reason that his wife went with him on this visit. The defendant referred the plaintiff to Mr Munyard as a result of his request to see a specialist and not because he, the defendant, advised the plaintiff that it was the proper course to follow. The defendant made no attempt to expedite any consultation with Mr Munyard and left it to the plaintiff to organise his own appointment. This was the last occasion on which the defendant saw the plaintiff in a professional capacity. At that time he had not received the radiologist’s report from Dr Harrison on the xrays taken on 8 May. The defendant did not learn until early 1997 that the plaintiff was making a claim against him.

The defendant’s arrangement with the Orthopaedic Association

I now return to the issue mentioned earlier in these reasons about the communications between Professor Bauze and the defendant concerning the defendant’s performance of orthopaedic surgery. The defendant’s evidence on this topic was vague and evasive, but there is no other evidence about it. In his evidence-in-chief the following was said:
“Q.... ......why you said to him that he should have an orthopaedic referral at that stage.
A...... It is for the reason that I’m a general surgeon and if I may go back to 1991, I had a discussion with the Australian Orthopaedic Association, South Australian Branch, about their views on orthopaedic surgery and they expressed to me that the safest thing would be, as a general surgeon, to get second opinions on what orthopaedic procedures you perform.” (T.535) (This was the first reference to the topic.)

Later the defendant said:

“........ my arrangement with the Orthopaedic Association, my understanding was that I should get a second opinion on orthopaedic cases that I treated .......” (T.564)

He there referred to it as an “arrangement”. In cross examination he was asked about whether he had ever rung any orthopaedic surgeon in relation to patients other than the plaintiff. He evasively answered:

"A..... “Did I speak to an orthopaedic surgeon in the past? I don’t think I can answer that.
Q...... Surely that would be something that you would remember. You have been told by Professor Bauze, that you should not undertake orthopaedic procedures without speaking to an orthopaedic surgeon.
A...... No, that is not what I was told.
Q...... What were you told.
A...... I cannot remember.
Q...... Its a very important matter, isn’t it.
A...... Yes, it is, but I cannot remember.
Q...... I am asking you to try and remember what it was that you were told by Professor Bauze.
A...... No, I cannot remember the discussion with Professor Bauze.” (T.631)

Later in the cross examination the following exchange occurred:

"Q.... “If you were following through what Professor Bauze had suggested wouldn’t you have considered before you undertook surgical procedures speaking for instance to Mr Munyard ........
A...... Way back in 1991, when I arrived in Port Pirie, I - there was a discussion I had with Professor Bauze and there was a letter that I - and I had other discussions as well and I have written to Professor Bauze as well and I have a letter - a copy of that letter is in my - on me - I think its dated 1992 - expressing to Professor Bauze that I - yes, I have a copy of the letter that I had written to Professor Bauze and if I remember correctly the date is 1991.
Q...... During the break would you be able to produce that letter.
A...... I will try. I think I have got it in there.
Q...... I thought you just said that you did have.
A...... I am sure I brought it, but I don’t know whether I’ve still got it there or not. I am sure I brought it. I will check for it.” (T.655) (This was the first reference by the defendant to any letters between himself and Professor Bauze.)

Shortly after counsel for the plaintiff read him the passage at T.535 quoted above and the following occurred:

“Q.... Was it your understanding that you should get an opinion from an orthopaedic surgeon before you carried out the surgery.
A...... That’s the operative word. It was not my understanding about when to get an orthopaedic opinion. I cannot remember the exact sort of thing, but getting an orthopaedic opinion was the operative phrasing.
Q...... There can only be two points where that opinion could be sought, one is before you have undertaken the surgical procedure and the other one is after you have taken the surgical procedure.
A...... Absolutely wrong, absolutely wrong.
Q...... Did you endeavour to obtain opinions from orthopaedic surgeons before undertaking orthopaedic procedures.
A...... I cannot answer that question.
Q...... Besides the opinion that you sought from the orthopaedic registrar at the RAH in Mr Tattoli’s case can you identify one occasion when you sought the opinion of an orthopaedic surgeon before you carried out an orthopaedic procedure.
A...... I can’t remember that. I cannot remember.
Q...... I suggest that the reason that you can’t remember is that you never did it.
A...... Did what?
Q...... Sought the opinion of an orthopaedic surgeon before you undertook orthopaedic procedures.
A...... All I can say I cannot remember.” (T.657)

However, subsequently he did remember two cases of which he gave some details where he claimed he had telephoned orthopaedic registrars. Shortly afterwards, the following interchange took place:

"Q.... “Before the morning break you mentioned that you did have that letter, I think, from Professor Bauze. Do you have it.
A...... No, I am sorry I have looked in my bag here, I haven’t got it here. I will try and look for it at home.” (T.664)

From similar evidence about other missing documents I interpreted “home” in that answer to mean at Port Pirie.

Later the defendant was cross examined as to why he had not kept a copy of his letter referring the plaintiff to Mr Munyard. The following then occurred:
“Q.... I am suggesting to you ......... why you should have kept a copy of that letter was that you were showing compliance with what Professor Bauze recommended.
A...... I cannot tell you.
Q...... What do you mean you cannot tell me.
A...... I don’t have to be - I am not answerable to Professor Bauze. .........
Q...... I am suggesting that an orthopaedic surgeon speaking to you on behalf of the College of Orthopaedic Surgeons had said, I think soon after you went to Port Pirie, ‘There is an issue of safety’. I think you have used the word ‘safety’ a number of times.
A...... ‘Safety’ yes.
Q...... That you should get an orthopaedic opinion in any orthopaedic cases you were handling.
A...... Not any orthopaedic procedures.
Q...... Perhaps if you tell us, because I have asked you about this letter a number of times.
A...... Yes, I am sorry, I cannot produce it. I can just remember the letter. I thought I had brought it with me, but I haven’t got it. If you wish you can have a look in my bag.
Q...... What did the letter say from Professor Bauze.
A...... I cannot say exactly what the letter said.
Q...... If you can try to remember to the best of your ability.
A...... I can’t remember exactly what it said.” (T.796)

The topic was raised again on a subsequent day of cross examination where the following occurred:

"Q.... “I want to come back to Professor Bauze’s involvement. You seem to be saying at various times that there was a letter that was sent. Have you been able to locate that.
A...... No sorry, I wasn’t certain. Excuse me if - I was referring to the letter that I had sent to Professor Bauze - or was there one in - yes, sorry I’m referring to the one that was in return.
Q...... You sent a letter to Professor Bauze.
A...... Yes.
Q...... Where is that letter.
A...... I haven’t got it.
Q...... What did you say to him.
A...... I can’t remember. .........
A.......... I spoke to him and I - I’m sure I had written to him. I forget. All I know is that there was communication.” (T.972-3)

Later the following occurred:

"Q.... “Have you kept your letter and Professor Bauze’s letter.
A...... No I haven’t.
Q...... Why did you say -
A...... I thought I had, sorry, excuse me let me - yes, I have a letter, but I don’t know where it is now.
Q...... You seem to be indicating from the witness box the other day that the letter might be in your possession here.
A...... Yes, I had a look at it and I made a mistake, and I don’t know where it is.
Q...... Surely you knew what you had brought to Adelaide with you.
A...... Yes, I did; and I have brought a lot of other things as well in my car; and I used to book in the caravan park almost on a daily basis. I don’t know, I could have put it in the bin, I could have left it in the van, I could have left it somewhere. I don’t know.
Q...... You could have put it in the bin.
A...... I was in a caravan park at the time, everyday I have to empty everything out. ................
Q...... But you are not seriously saying that you would have thrown out a very important letter from Professor Bauze.
A...... I have lost the documents.
Q...... When did you last have it in your possession.
A...... I cannot tell you exactly, in the last few days I had it in my possession. .......
Q...... You had read the letter.
A...... No, I hadn’t read the letter. .........
Q...... So you made a deliberate decision to bring the letter to Adelaide.
A...... Yes and the reason was that you had given us an indication that you were going to get Dr Shepherd to give evidence and I brought them all down as part of it and I have lost them.
Q...... Did you have a copy of your letter to Professor Bauze with you.
A...... No, I didn’t have a copy of my letter to Professor Bauze.
Q...... Had you kept a copy of that in your files.
A...... I should have, but I haven’t. ..........
Q...... You’re not prepared to tell me, are you, about the contents of this letter from Professor Bauze.
A...... If I knew accurately I would have told you.
Q...... Do you think you don’t know accurately but you do know in a general sense what it says.
A...... In general specifically it says the safest thing for you to do is to obtain second opinions.
Q...... What information did you give to Professor Bauze for him to write to you in those terms.
A...... I don’t know exactly what information, I don’t know exactly what the discussions were. It was specifically to do with the setting up of a general surgeon, it was to do with the issue of setting up a rural general surgeon.
Q...... Something to do with your former patient the woman who died Mrs Mather.
A...... I don’t know.” (T.972-976)

The defendant denied that he had destroyed the correspondence with Professor Bauze. I reject his denial and infer on the balance of probabilities that he did destroy it during the trial. He admitted that he had some such documents in his possession during the course of the trial. They had apparently not been discovered. He had never previously been subjected to a cross examination of the type which he received in this trial. There were other instances where he found in the course of cross examination that his general assertions were undermined by reference to documents. It is likely that in the light of such experiences he decided that he did not want the cross examiner to see that correspondence. His explanation about how the documents came to be lost was unconvincing. He did not obtain copies of the documents from other sources to show that he had nothing to fear from their contents.

On the little which the defendant was prepared to say about the correspondence and the associated discussions with Professor Bauze I find they evidenced an arrangement between him as a general surgeon practising in the country and the Orthopaedic Association about the basis on which he might properly practice orthopaedic surgery in the interests of public safety. The arrangement contained some significant restrictions upon how and when he should practise in the field of orthopaedics. While I accept that the Orthopaedic Association had no legal authority to impose legal restrictions on the defendant’s activities as a surgeon, the terms of such an arrangement are strong evidence about the bounds of proper practice for him. Anything which he did contrary to the arrangement would be prima facie in breach of his professional duties to his patient.
On the evidence which I have on the topic, as scanty and unsatisfactory as it is, I must make proper findings about the terms of the arrangement insofar as they affect the defendant’s treatment of the plaintiff. One of the strange facets of this case was the apparently inconsistent lines of defence put forward by the defendant in his pleadings and at trial. On the one hand he was saying that he had properly and competently treated the plaintiff’s ankle and had acted in accordance with proper practice in doing so. On the other hand he was saying that he was continually advising the plaintiff to obtain an orthopaedic opinion which implied that there was some potential difficulty or complication which the defendant may not be able to handle. The defendant’s evidence was that on seven separate occasions from when he first saw the plaintiff until 10 May he advised him, often in strong terms, to seek an orthopaedic opinion. In respect of the first six of such alleged occasions it is contrary to the plaintiff’s evidence that this was mentioned by the defendant. They are not reflected in any of the contemporaneous documents. I find that the defendant did not make any reference to an orthopaedic surgeon until 10 May and then it was only in response to the plaintiff’s request to be referred to a specialist and not in compliance with the arrangement with the Orthopaedic Association. The defendant’s evidence about the first six of these occasions was far-fetched and unbelievable. However, the likely explanation for this false evidence, and also his false evidence about his alleged telephone consultation with an orthopaedic registrar before the operation, is that this was in purported compliance with the terms of the arrangement with the Orthopaedic Association. He did not know that the plaintiff was unaware of the terms of this arrangement and he was attempting to defend any attack which might be made on him for breach of it.

As the defendant destroyed the relevant documents I am justified in inferring that their contents, if put before the Court, would not have supported his evidence or his case: Allen v Tobias (1958) 98 CLR 367 at 375. In the circumstances I infer that the relevant terms of the arrangement were to the following effect:

·.. The defendant would consult with an orthopaedic surgeon before undertaking any orthopaedic procedure for an injury as serious as that of the plaintiff.

·.. If the defendant carried out an orthopaedic procedure because operative intervention was urgent he would immediately refer the patient for follow up by an orthopaedic surgeon. (The inference of immediacy stems in part from the defendant having asserted that he gave such advice to the plaintiff from the outset.) It is likely that the arrangement required the defendant to do everything necessary to ensure that the patient did see an orthopaedic surgeon.

·.. That the defendant would inform his patients that he was not an orthopaedic surgeon and that the management of their treatment should be under the supervision of an orthopaedic surgeon. (The need for the arrangement was that the defendant was perceived not to be sufficiently qualified or experienced to undertake unsupervised orthopaedic work. The disclosure was necessary so that the patient would comprehend why it was desirable to take the additional step of consulting an orthopaedic surgeon.)

I find that as a matter of law that the defendant’s legal duty to the plaintiff as his patient required him to adhere to the terms of his arrangement with the Orthopaedic Association in his dealings with the plaintiff. A duty stemming from an arrangement with the Orthopaedic Association was not expressly pleaded by the plaintiff, although the pleadings of the duties and their breaches are wide enough to encompass duties of this type. There is no suggestion that the plaintiff knew of the arrangement with the Orthopaedic Association. He did have some knowledge of the matter involving Mrs Mather and the complaint made by Dr Shepherd, but not of what flowed from that between the defendant and the Orthopaedic Association. It was the defendant who introduced the topic of his arrangement with the Orthopaedic Association into the trial when he asserted that what he had done was in accordance with that arrangement. Having first raised the issue himself, albeit misguidedly, he cannot thereafter say that it should not be pursued to its proper conclusion because that turns out to be adverse to him. Under R46.04(4) I am to determine this case on the evidence which is admitted pursuant to the issues raised by the pleadings. I do not consider that it is unfair to the defendant under R46.04(4)(b) to grant relief to the plaintiff in the circumstances based on the evidence led by the defendant himself of his arrangement with the Orthopaedic Association. In addresses I put the point to the defendant’s counsel and invited him to comment on it.

The defendant’s breaches of duty

From the first time that he saw him the defendant was obliged to have properly informed the plaintiff that the injury to his ankle could best be treated by an orthopaedic surgeon but that he, the defendant, was only a general surgeon. In order that the plaintiff could make a proper informed decision to consent to orthopaedic treatment from the defendant the defendant had to explain to him the difference between an orthopaedic surgeon and a rural general surgeon and the general effect of his arrangement with the Orthopaedic Association. He did none of that and was thus in breach of his duty to the plaintiff by reason of that omission. While that advice, if properly given, would not have made any difference to what occurred at the Port Pirie Hospital on the night of 26 April it would have made a significant difference to the course which would have been adopted by the plaintiff immediately after the closed reduction. There is no doubt that if the plaintiff had been told that the treatment of his injury should be under the control of an orthopaedic surgeon in whose province it properly fell he would, once the immediate danger to his foot from the ischaemia had been dealt with by the closed reduction, have elected to have been seen by an orthopaedic surgeon as soon as practicable after that closed reduction.

Causation of disabilities

The defendant disputed that even if proper orthopaedic advice had been obtained by the plaintiff soon after the closed reduction, the outcome for the plaintiff’s ankle would have been any different from what has occurred. There is a divergence of expert orthopaedic opinion on the point. If Mr Osti had been consulted soon after 26 April, and had seen an xray of the plaintiff’s ankle similar to that taken on 8 May, he would have advised the plaintiff to undergo promptly further surgery on the ankle to internally fix the bones with screws and plates. If the plaintiff had then received such advice it is likely that he would have undergone such a procedure on his ankle. However, if the plaintiff had soon after 26 April consulted Mr Butcher, and he had seen an xray of the ankle similar to that taken on 8 May, he would not have advised a further operation for internal fixation but to continue with the conservative treatment of the ankle in plaster. If the plaintiff had consulted Mr Munyard soon after 26 April it is unclear what would have occurred. The following passage appears in Mr Munyard’s cross examination:
"Q.... “The next paragraph you say ‘As he was three weeks down the track, I felt that no further treatment was necessary.’ Isn’t it the case that, really, it is not so much that it wasn’t necessary, but you are really saying that there was no treatment that you could offer because of all of the reasons that you have said about the bones and the way they heal.
A...... I think - well, I thought that the fracture was still in a reasonable position, and that there were increased risks of trying to reduce the fracture, which I enumerated, and that under those circumstances, I thought that he should do reasonably well.
Q...... It might be entirely different advice that you would give if you were seeing him, say, two or three or four days after the event.
A...... I think, yes. I think probably there would.” (T.783)

I infer from that passage that Mr Munyard may well have advised upon an internal fixation of the ankle if he had seen the plaintiff soon after 26 April and that he is probably closer to the position of Mr Osti than he is to that of Mr Butcher. It appears that Mr Munyard’s next regular trip to Port Pirie after 26 April would have been on 5 May. It was not explored in evidence whether, if Mr Munyard had been rung by the defendant on 26 or 27 April, he would have advised sending the plaintiff to Adelaide rather than waiting to see him when he was next there on 5 May. Thus it is unclear what would have occurred if the defendant had done what he should have done on 26 or 27 April and had immediately referred the plaintiff to an orthopaedic surgeon. I consider that the evidence of the three orthopaedic surgeons here probably represents a cross section of the likely views which would have been expressed if the plaintiff had consulted an orthopaedic registrar at an Adelaide hospital about the matter. If he had consulted to an orthopaedic registrar of the Osti school, it is likely the plaintiff would have undergone internal fixation of the ankle. If he had consulted a registrar of the Butcher school, it is likely conservative treatment would have continued. If he had consulted to Mr Munyard or a registrar of his school, there is some reasonable possibility, but no certainty, that it would have led to an internal fixation of the plaintiff’s ankle. Thus if the defendant had fulfilled his duty to the plaintiff, there was a reasonable prospect, but no certainty, that this would have led to an internal fixation of the ankle and the plaintiff has lost the chance that any such internal fixation would have improved the subsequent condition of his ankle. This is an appropriate case to view the plaintiff’s loss as one of a valuable chance rather than seeking to conclude on the balance of probabilities as a matter of causation whether he would have been referred to an orthopaedic surgeon who would have carried out an internal fixation: Malec v Hutton (1990) 169 CLR 638; Naxakis v Western General Hospital (1999) 162 ALR 540; “Halsburys Laws of Australia”, volume 18, para 280-2,150. The decision of the majority of the High Court in Chappel v Hart (1998) 195 CLR 232 was not that there could never be damages in such cases for loss of a chance, but that it was not the appropriate way to deal with causation in the circumstances of that particular case.

My conclusion that the defendant was under a duty to ensure that the plaintiff obtained immediate orthopaedic advice is reinforced by the plea in paragraph 5.5.8 of the defence, which read:
“5.5.. (The defendant) ........ told the plaintiff: ............
5.5.8......... That we would treat the fracture (by pin and plate) within 2-3 weeks or earlier if all went well with his recovery.”

I reject the defendant’s contention that this paragraph was not pleaded in accordance with his instructions and find that it was based on what he had told his solicitors. While I do not find that it was said to the plaintiff, as is alleged in the pleadings, it is likely that it represented the defendant’s view at some subsequent time of what would have been appropriate advice in the circumstances to the plaintiff. It is reasonably clear that the statements of expert opinion contained in the defence emanated from the defendant and not from independent experts retained by the defendant’s insurer. The reference to “we” in 5.5.8 is mysterious. It is the only use of “we” in the defence. In its context it probably meant an orthopaedic surgeon assisted by the defendant carrying out the internal fixation procedure in Port Pirie. The crucial words are “or earlier if all went well with his recovery”. This must mean that some suitably qualified person had to decide what was the best time at which to carry out an internal fixation. It could not be left for two to three weeks on the basis that that was necessarily the appropriate time to carry it out. Subject possibly to some complications through initial swelling in the ankle, all of the orthopaedic surgeons were generally agreed that the sooner an internal fixation was carried out the more likely it was to be successful. The clear inference from what was pleaded is that it was the defendant’s view that an orthopaedic surgeon experienced in such matters should have seen the plaintiff as soon as practicable after the closed reduction and have assessed when any internal fixation was to be effected. The defendant did nothing to facilitate the plaintiff’s ankle being promptly assessed by an orthopaedic surgeon.

Other causes of action

I reject that the plaintiff had any of the following alternative causes of action against the defendant:
That he was under a duty to have sent the plaintiff to an orthopaedic surgeon in Adelaide immediately after the accident. All three orthopaedic surgeons agreed that immediately after the accident the primary concern was to deal promptly with the ischaemia in the foot by a closed reduction of the ankle. The defendant acted properly in performing that closed reduction in Port Pirie. There has never been any criticism of the manner in which he performed that closed reduction. Insofar as the bones in the ankle joint subsequently shifted that was not as a result of any fault of the defendant in performing the closed reduction.
That the defendant should not have left the plaintiff in the care of Dr Kajani when he left Port Pirie on 27 April. There was no obligation on the defendant to remain in Port Pirie and to care personally for the plaintiff while he remained in the Hospital. The plaintiff did not show that it was not reasonable for the defendant to have given responsibility for his general post operative care to Dr Kajani. As I have found above, the defendant should have taken immediate steps to have the plaintiff referred to an orthopaedic surgeon. Presumably this could have been done by the defendant arranging for Dr Kajani to effect this.
That on 8 May the defendant should have interpreted the xrays taken on that day to mean that there was not a sufficient alignment of the bones and therefore there was a need for an internal fixation. This was the opinion of Mr Osti on his viewing of those xrays, but it was his opinion as an orthopaedic surgeon. He could not say that a competent rural general surgeon would have been acting unreasonably in not interpreting the xrays in that way. In support of the defendant on this issue is that both Mr Butcher and Mr Munyard also did not consider that those xrays revealed any shift of the bones which would warrant internal fixation at that stage. Furthermore, the subsequent expert radiologist’s report on those xrays suggests “that the various fractures are in satisfactory position in plaster.” Although the defendant did not have the benefit of that report when advising the plaintiff, it reinforces the conclusion that he acted reasonably in the opinion which he formed from the xrays. While Mr Osti thought that such an xray report should not be read at face value there was nothing to show that a reasonable general surgeon should not have acted on it at face value.

The plaintiff’s disabilities

As a result of the trotting accident the plaintiff has been left with a significant permanent residual disability in his left ankle. However, he is only entitled to recover damages in this action from the defendant insofar as it is shown that his disability results from the defendant’s breach of duty to him as I have found above.
His entitlement is limited by two major factors. The first is that his damages are only to reflect the loss of the chance that if the defendant had fulfilled his duty he would have seen an orthopaedic surgeon who would have performed an internal fixation of the ankle joint. It must be borne in mind that that operation, if it had been carried out, had some slight risk of producing complications such as infections which may have resulted in other adverse consequences for the plaintiff and not have improved his condition. If he had been referred to an orthopaedic surgeon, who, acting within the legitimate bounds of professional opinion, had not recommended an internal fixation, the plaintiff’s subsequent condition would have been no different from what it has been and he would have suffered no loss from the defendant’s breach of duty. Furthermore, even if an internal fixation had been carried out, it would not necessarily have meant that the plaintiff would not have subsequently suffered osteoarthritic problems in the ankle. I accept the opinion of Mr Osti that if such an operation had been successful something in the region of 20% of patients would still have suffered osteoarthritis in the ankle.
Secondly, as a result of the trotting accident the plaintiff suffered damage to his talo-fibula and calcaneo-fibula ligament, damage to his peroneal retinaculum, damage to his anterior distal tibio-fibula ligament and a longitudinal split over the short segment of his posterior tibial tendon. Those injuries to his left foot would not have been corrected by any internal fixation of the ankle. Part of his continuing problems with the ankle stem from these injuries. Thus, even if he had had a successful internal fixation of the ankle it is likely that he would still have had some permanent disability in the ankle, although not as severe as he has at present. Hence his claim against the defendant is only for the loss of a chance that the disabilities resulting from the continued osteoarthritis in his ankle may have been significantly less, although it is impossible to say how much of the overall disability stems from the osteoarthritis and how much from other causes.
The plaintiff has no passive dorsi-flexion of the left ankle and only 30o plantar flexion with marked discomfort. There is only about 50% of the contra-lateral range of movement of the left subtalar joint in the ankle. There is some occurrence of swelling in the ankle. The plaintiff continues to suffer pain in the ankle but its severity fluctuates. He has a noticeable, but variable, limp. He is not having any current treatment for the ankle except that he takes painkillers on some occasions.
There is likely to be a deterioration of the osteoarthritis in the ankle over about the next eight years. He could have an ankle arthrodesis which would be likely to decrease the pain and improve the functional disability resulting from the osteoarthritis, but it would leave him with a permanently stiff ankle joint. The plaintiff has not as yet decided to have such surgery. He did not call Mr Dracopoulos, an orthopaedic surgeon specialising in ankles, who has been advising him about such a possible arthrodesis of the ankle. If his ankle deteriorates substantially in the next few years, there is a reasonable possibility that he will eventually undergo this operation, but it is far from certain.

Past economic loss

The plaintiff has not shown that he suffered any loss of earnings from the rubbish removal business as a result of his ankle injury. There was no evidence that Mr Alchin was paid anything extra for the additional work which he did to cover for the absence of the plaintiff from the business immediately after the accident. There is no evidence that the plaintiff’s absence from the business in any way diminished the volume of business available or increased the expenses of the business. While the plaintiff and his wife suffered a substantial capital loss on the sale of this business to Mr Alchin in October 1995 for only $37,000 there is no evidence to attribute any part of that capital loss to the plaintiff’s disabilities from the accident. It is most likely that it was the Council introducing wheelie bins for free garbage collection that caused a downturn in the business and thus reduced its value. While I accept that the plaintiff sold this business when he did because of his difficulties with his ankle in continuing to work in it, the reduction in its capital value would have been suffered by the plaintiff and his wife whenever they ultimately sold it. On the evidence of Mr Alchin the volume of the business has further diminished since he took it over. It would seem likely that if there had been no accident and the plaintiff and his wife had continued with the business after 1995, they would not have been able to realise even $37,000 for it when they would have ultimately sold it. The true value of the business at the time of its sale was only $37,000. As no loss to the partnership has been demonstrated I need not go into the vexed question of what proportion of any loss to the partnership arising from the accident is properly attributable as damage to the plaintiff. His wife kept the books and records of the business and played a significant role in its management.
Only a minimal loss of earnings has been shown to have been suffered by the plaintiff during the period from October 1995 to June 1998 when he was employed by Fyfemede Pty Ltd in the business of the fish and chip shop. His precise wages from Fyfemede were not established. There was no suggestion that what he otherwise would have been paid by the company for working for it was reduced because of his incapacity to perform all of the duties for which he was employed or that the company incurred any additional expenses in employing anyone else to cover for him. I accept the evidence of his wife that if he had been fully fit the company could have done some additional business in wholesaling filleted fish, but there was no evidence about what the likely profit of the company would have been from any such additional business. Even if the company had been able to make some such additional profit if the plaintiff had not been incapacitated, the plaintiff is only entitled to damages for the nett amount of that profit after tax which would have flowed through to him by way of wages or dividends but not where it would have flowed through to his wife. The company never paid any dividends. It had the power to declare differential dividends to its shareholders. There was no evidence as to whether any additional profit that might have been made from such wholesaling of filleted fish would have been paid by way of additional wages or dividends to the plaintiff as distinct from his wife. I am only prepared to make a nominal allowance for the possibility that there would have been some such profit which would in part have flowed through to the plaintiff. I accept that the shop was sold in June 1998 because the plaintiff was having difficulty in coping with the work due to his ankle. However, it was not shown that it was not sold for its then proper value or that the purchase price was in any way diminished as a result of the plaintiff’s disabilities.

But for the trotting accident it is unlikely that the plaintiff would have been unemployed from June 1998 until September 1999. He was well motivated to find employment. However, allowance is to be made for him being unemployed in any event during the whole or part of this period from his ankle disability which would have existed if the defendant had not been in breach of duty to him and from his back problem. His ankle disability has substantially reduced the range of employment available to him, particularly with his limited education.
It was not suggested that the plaintiff had suffered any loss of earnings from his trotting activities. He has been fully employed from 22 September 1999 until trial. Damages for past economic loss resulting from the established cause of action are assessed at $8,000.

Future economic loss

The plaintiff will have no future economic loss if he continues in his present employment with Murray Pest Control or like employment. However, his ankle disability causes him some considerable pain and difficulties in performing part of the work such as climbing ladders and negotiating confined spaces. He is well regarded by his employer, but there is some risk that occupational health and safety hazards from the ankle disability could jeopardise his future employment, presumably particularly if he has any accidents at work where his ankle disability is a contributing factor. If he does lose this employment, he will be substantially prejudiced in the general labour market in obtaining alternative employment, although that would also be the case to a lesser degree even if the defendant had fulfilled his duties to him. Damages for future economic loss from the established cause of action are assessed at $15,000.

Non economic loss

The plaintiff’s pain in his ankle fluctuates and is exacerbated by certain activities. It is likely to increase as the osteoarthritis gets worse, but it is likely to be improved thereafter if he undergoes the ankle arthrodesis. He is restricted by the ankle in being able to play with his children. He cannot run or jog or kick a football with his left foot. With some help from his wife and family he can still work as a trotting trainer. His efforts to maintain employment both in the past and in the future will result in more pain for him than if he was not so motivated to work. Damages for non economic loss from the established cause of action are assessed at $10,000 past and $20,000 future.

Special damages

The quantum of the past special damages were agreed at $2,599. I have not been told what items are included in this figure, but I presume from the R46.15 particulars that it represents all of the expenses arising from the trotting accident. Most of these items would have been incurred even if there had been no breach of duty by the defendant. On a broad axe basis I allow past special damages on the established cause of action at $300. The present cost of an ankle arthrodesis operation including hospital fees would be about $3,800. There is no certainty the operation will be carried out and it may not occur for a number of years. Some small allowance is also to be made for the cost of future painkillers. Damages for future special damages resulting from the established cause of action are assessed at $1,200.

Gratuitous services

The nursing care and assistance given by the plaintiff’s wife in his convalescence in 1995 would have been given in any event and is not attributable to the defendant’s breach of duty. A small allowance is to be allowed for such services which are likely to be supplied by the wife after any future ankle arthrodesis operation. Damages for future gratuitous services likely to arise from the established cause of action are assessed at $100.

Pre-judgment interest

The plaintiff is entitled to interest on his past economic loss at a commercial rate of interest and based on the loss principally being incurred between June 1998 and September 1999. He is entitled to interest on his past non economic loss at 4% per annum from mid 1995 until judgment. I fix a lump sum in lieu of pre-judgment interest of $2,500. There was no evidence that any of the special damages had been paid by the plaintiff so as to attract interest on those special damages.

Summary of award

Past economic loss $ 8,000.00

Future economic loss 15,000.00

Past non economic loss 10,000.00

Future non economic loss 20,000.00

Past special damages 300.00

Future special damages 1,200.00

Future gratuitous services 100.00

Pre-judgment interest 2,500.00

Total $ 57,100.00

There will be judgment for the plaintiff for $57,100.

Rejection of the second report of Mr Munyard

Shortly before Mr Munyard was called at the trial as part of the defence case the defendant’s solicitors gave to the plaintiff’s solicitors, and to me, a second report of Mr Munyard dated 28 November 2000. Leave was sought under Rule 38.01(7) for expert evidence to be adduced through Mr Munyard in accordance with this second report. The application was opposed by the plaintiff. I refused to grant the leave and indicated that I would give my reasons for that ruling in this judgment. I did not exclude any evidence of Mr Munyard which was either not expert evidence or was expert evidence which was the subject of his earlier report of 31 March 1998.
Rule 38.01(3) provides:
“A party shall obtain all expert’s reports which the party wishes to obtain for the purposes of the action ........ no later than 21 days before the date fixed by the Court or by the Rules for the first hearing of any application to refer the action for trial, provided that the party may obtain supplementary reports from experts from whom previous reports have been obtained which are confined to matters upon which a report could not reasonably have been obtained within that time.”

I reject the defendant’s contention that the report of Mr Munyard of 28 November 2000 was a “supplementary” report for the purposes of subrule (3). Such reports are those whose contents are confined “to matters upon which a report could not reasonably have been obtained” prior to 21 days before the first hearing of the application to refer the action for trial. Such supplementary reports are confined to dealing with issues raised by other reports or amendments to pleadings. In any event there is an implied obligation under R38.01 to supply supplementary reports as soon as reasonably practicable after the need for them arises.

Here the report of Mr Munyard of 28 November 2000 in broad terms raised six topics of expert evidence which were as follows:
The ability to predict the outcome of fracture dislocations when internal fixations were, and were not, done.
Whether the failure to use internal fixation on the plaintiff’s ankle would have made any difference to his ultimate disabilities.
Whether there would have been any advantage for the plaintiff if there had been a fixation of the ankle two weeks after the accident.
Whether most orthopaedics surgeons would have internally fixed the ankle after the closed reduction if the alignment of the bones continued to appear satisfactory.
The significance of the injury to the subtalar joint on the plaintiff’s disabilities.
Whether the treatment given by the defendant to the plaintiff was reasonable from the perspective of an orthopaedic surgeon.

Each of these issues were reasonably apparent from the pleadings and the earlier reports of Mr Osti. I do not accept the defendant’s contention that these issues arose out of the oral evidence given by Mr Osti earlier in the trial. Certainly the issues were canvassed in his evidence, but they were each quite apparent at a much earlier stage of the case.

The purpose of R38.01 is to formulate and define all of the issues of expert evidence in the case well before the action is referred for trial, and so avoid trial by ambush on those issues: Corporation of the City of Adelaide v City of Port Adelaide Enfield, Bleby J, 14/8/2000, Jud No [2000] SASC 271, unreported at para 49. Although the Supreme Court had an additional power under its SCR 38.02(3), which is not possessed by the District Court at present, the decision of the Full Court in Hillier v Lucas, 24/10/2000, Jud No [2000] SASC 331, unreported still applies in an application in the District Court under R38.01(7) to require that leave should only be granted to adduce expert evidence where a report has not been supplied at the appropriate time where such leave is necessary to do justice in the matter.

I do not consider that the justice of the matter required that the necessary leave should have been given to the defendant. No satisfactory explanation was given as to why the report was not obtained from Mr Munyard before the action was referred for trial. It was suggested that there were difficulties because the defendant needed permission of the plaintiff to approach Mr Munyard as he had previously been a treating doctor of the plaintiff. However, it was not suggested that that consent from the plaintiff had been sought until shortly prior to trial. If the defendant had wished to avail himself of expert evidence from Mr Munyard, that consent should have been sought much earlier in the proceedings. In opposing the leave the plaintiff’s counsel indicated he would need to speak to Mr Osti before he could cross examine Mr Munyard on matters contained in the further report. That was a reasonable course for him to adopt, but it would have seriously delayed and disrupted the trial. In all of the circumstances I did not consider it just that leave should be granted to the defendant and accordingly I refused it.

[2000] SADC 143

19 December 2000