Toon v Central Adelaide Local Health Network - [2025] SADC 98

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
TOON v CENTRAL ADELAIDE LOCAL HEALTH NETWORK
[2025] SADC 98
Judgment of her Honour Judge Deuter
30 July 2025
TORTS - NEGLIGENCE - DAMAGE AND CAUSATION
The applicant claims that medical staff at the Queen Elizabeth Hospital were in breach of their duty of care to him, in that they, and particularly Dr Chan, did not perform fasciotomy surgery to his injured left forearm in a timely manner; performed the first surgery in a negligent manner; delayed further surgery of the left forearm and generally failed to treat the applicant with due care and skill and in a manner that took into account his risk of harm.
The negligence of the respondent was pleaded to be causative of the applicant’s significant loss of function in his left forearm and hand. Causation considered.
Claim for damages by the applicant, who had a significant pre-injury history of poly-substance drug abuse and mental health issues. Assessment of damages pursuant to the Civil Liability Act 2023. Causation in relation to damages considered.
HELD: That the applicant failed to make out any breach of duty on behalf of the respondent; nor did he make out causation in relation to his injuries. The applicant’s claim is dismissed.
Civil Liability Act 1936 (SA) ss 32, 40, 41, 52 & 58, referred to.
Rogers v Whitaker (1992) 175 CLR 479; Fairchild v Glenhaven Funeral Services Ltd [2002] 3 WLR 89; Roads and Traffic Authority of New South Wales v Dederer (2007) 238 ALR 761; Tabet v Gett [2010] HCA 12; East Metropolitan Health Service v Ellis [2020] WASCA 147; Circular Head Fencing P/L v Motor Accidents Insurance Board [2017] TASFC 6; Varipatis v Almario [2013] NSWCA 76, considered.

TOON v CENTRAL ADELAIDE LOCAL HEALTH NETWORK
[2025] SADC 98
CONTENTS
Introduction
The Pleadings
(i) The Applicant’s case
(ii) The Respondent’s case

Issues
(i)     Breach of Duty of Care
(ii)    Standard of Care for Professionals
(iii)   Causation

Facts
(i)     Mr Toon’s background – until surgery on 19 April 2017
(ii)    Events before hospitalisation on 19 April 2017.
(iii)   Arrival at the QEH
(iv)   Review by Dr Chan
(v)     The first operation – 19 April 2017
(vi)   Events post‑surgery
(vii) The second operation - 20 April 2017
(viii) Events post‑surgery on 20 April 2017
(ix)   Events post-discharge from QEH 29 May 2017.
(x)    Mr Toon’s functioning from the end of 2019
(xi)   Current function

Cross Examination of Mr Toon
Summary
Liability
(1)... Expert evidence relied upon by the Applicant
(a) Dr Peter Tomlinson

Cross Examination
Consideration
(b) Professor Lane

Cross Examination
Consideration
(2)... Expert evidence replied upon by the Respondent
(a) Mr Anthony Berger

Cross Examination
Consideration
(b) Mr Mark Westcott

Cross Examination
Re-Examination
Consideration
Quantum
(1)... Expert evidence relied upon by the Applicant
(a) Professor Peter Hand

Cross Examination
Consideration
(b) Dr Graham Wright

Consideration
(c) Dr Marcus Bem

Consideration
(d) Mr Steven Bois

Cross Examination
(2)... Expert evidence relied upon by the Respondent
(a) Ms Belinda Dwyer

Cross Examination
Consideration
Duty of Care: Consideration and Findings
(i)     The Legal Framework
(ii)    Breaches of Duty
(a)    Delay in performing first operation
(b)    The use of limited skin incisions during the first operation
(c)     Delay in performing the second operation
(d)    Use of a tourniquet during each operation..........................................

Conclusion on Liability
Causation
Decision on Liability
Damages
Heads of Damage
(i)     Non‑economic loss
(ii)    Past Economic Loss
Claim
Assessment
(iii)   Interest
(iv)   Future Economic Loss
(v)     Past Care / Services / Equipment
(vi)   Future Equipment Needs
Claim
Assessment
(vii) Future Gratuitous Services / Paid Services
Claim
Assessment
(viii) Future Medical Expenses

Summary of Damages
Conclusion

Introduction

Judah Toon (Mr Toon) is a young man, who has suffered much hardship in his life. At times, he turned to various illicit and legal substances to cope and for periods of time engaged in poly‑substance abuse. He struggled with his studies, work life and relationships.
On 19 April 2017 at approximately 5:15am Mr Toon woke up on the floor, lying on top of his left arm. He was between the left side of his bed and a bedside table. Mr Toon does not know for how long he was asleep/unconscious in that position. He does not know how he found his way to the floor. His last memory was exchanging in Facebook messaging with a friend at approximately 10:00am on 18 April.[1]
[1] Exhibit A3: Copies of Facebook messages.
When Mr Toon woke, he had numbness and a significant pain sensation in his left arm. He could not move his left arm from his shoulder to his wrist. Mr Toon called an ambulance and was taken to the Queen Elizabeth Hospital (QEH). He arrived at approximately 6:00am.
Mr Toon underwent an initial surgical procedure at the QEH on 19 April. This was performed by Dr Chan, a Plastic Surgery Registrar (Dr Chan) employed by the respondent. The procedure was performed to relieve swelling in the left forearm by reducing pressure in the forearm compartments. This surgery was undertaken to reduce the risk of damage to the nerves and blood vessels of the left arm and hand. Further surgery was required on 20 April 2017 as a result of ongoing swelling in Mr Toon’s left forearm. This surgery performed by Dr Chan, involved longer skin incisions along the dorsal and volar aspects of the forearm, and the removal of necrotic tissue.
Mr Toon’s recovery was long and complicated. He required several further surgeries. He has not recovered full use of his left hand and forearm, having suffered significant muscle loss, and nerve damage.
Mr Toon seeks damages in negligence alleging that the first surgery performed on 19 April 2017 (the first operation) was not performed in a timely manner, and did not involve extensive skin incisions of his left forearm as was required by his symptoms and presentation. He also pleads that a tourniquet should not have been used during the first operation, and that its use contributed to a poor surgical outcome.
Mr Toon claims that he has suffered significant muscle loss and damage, including nerve damage, in his left forearm as a result of Dr Chan’s negligence, in the manner in which the first operation was performed. The damage to his left forearm has not recovered, and has led to loss of function in his left arm and hand.
The Pleadings
(i) The Applicant’s case
The revised Statement of Claim (SOC)[2] pleads that Mr Toon arrived at the QEH at approximately 6:00am on 19 April 2017, having been brought there by ambulance. On presentation, he advised that when he woke, he was lying in a prone position on his left arm. When he moved, there was pain, weakness and an abnormal sensation in his left arm and fingers.
[2] FDN 72.
It is pleaded that when Mr Toon was first examined in the Emergency Department (ED) he was found to have:
(i)palsy of the left arm distal to the shoulder;
(ii)paraesthesia of the C5-T1 dermatomes;
(iii)significant swelling of the left forearm distal to the elbow;
(iv)0/5 power at the left elbow;
(v)compartment pressures of 28mmHg in the flexor compartment, 17mmHg in the extensor compartment and 17mmHg in the mobile wad compartment of the left forearm; and
(vi)Creatine Kinase (CK) levels of 13,040.
Mr Toon was diagnosed with a compartment syndrome[3] and brachial plexus neuropraxia on the left side.[4]
[3] A condition in which increased pressure within a limited space compromises the circulation and function of the tissues within that space – Matsen FA, 3^rd, Krugmire RB, Jr Compartmental Syndromes. Surg Gynecol Obstet 1978; 147: 943‑9.
As adopted by the authors of the article Clinical Practice Guidelines for the Management of Acute Limb Compartment Syndrome in 2010 in the journal of the Royal Australasian College of Surgeons (Exhibit A6).
[4] When the bundle of nerves that stem from the nerve roots in the cervical spine and upper trunk sections of the spinal cord (C5‑T1), and which connect to the nerves of the arm, are stretched to the point of injury. This can be caused by compression of the nerve root per John Hopkins Medicine – Brachial Plexus Injury (pages 26-33 of the Expert Tender Book, being Exhibit A1).
Mr Toon pleads that his presentation on 19 April 2017 meant that a fasciotomy, including skin incisions of a sufficient length to prevent the skin acting as a further limiting boundary (extensive skin incisions), should have been performed immediately. This would involve making deep incisions to all compartments of the forearm. However, it is pleaded that there was an unacceptable delay, as Mr Toon was not taken to surgery until approximately 11:30am. A volar and dorsal fasciotomy was then performed, with carpal tunnel release, via limited skin incisions. A pneumatic tourniquet was applied to Mr Toon’s left arm during the first operation.
It is pleaded that the first operation failed to properly release the pressure in Mr Toon’s left forearm. This led to the need for a further surgery, involving extensive skin incisions, to be performed on 20 April 2017 at approximately 9:50am (the second operation). A pneumatic tourniquet was again applied to Mr Toon’s left arm during the second operation.
Mr Toon required surgery involving debridement of necrotic tissue in the left forearm wounds on 9 May 2017 (the third operation). On 12 May 2017 Mr Toon underwent further surgery to again debride necrotic tissue in the left forearm, and to apply a skin graft over the wound (the fourth operation). Mr Toon remained a patient at the QEH until 29 May 2017, when he self‑discharged against medical advice.
It is pleaded that at the time of Mr Toon’s presentation to the QEH on 19 April 2017, it was reasonably foreseeable that failure to fully release the pressure in the left forearm by way of an urgent fasciotomy, using extensive skin incisions, would lead to permanent impairment of the left arm and hand (the risk of harm). It is further pleaded that on 19 April 2017, a reasonable person in the position of the respondent hospital would have taken precautions to prevent the risk of harm, including performing a fasciotomy involving the release of all compartments of the left forearm using extensive skin incisions.
It is claimed that on 19 April 2017 the respondent by Dr Chan, failed to perform or properly perform, a fasciotomy. The failure to perform, or properly perform, a fasciotomy by not using extensive skin incisions was a breach of the respondent’s duty of care owed to Mr Toon.
In relation to the use of a tourniquet, it is pleaded that between 19 and 20 April 2017 it was reasonably foreseeable that the application of a pneumatic tourniquet to Mr Toon’s left arm would lead to permanent disability of the left arm and hand through further reducing the blood flow to the area and prolonging the ischemia (the further risk of harm). It is pleaded that on the 19 and 20 of April 2017, a reasonable person in the position of the respondent would have taken precautions to prevent the further risk of harm by avoiding the application of a tourniquet. It is claimed that, in relation to both the first and second operation, the use of a pneumatic tourniquet was contraindicated, and the application of a tourniquet to Mr Toon’s left arm during each operation breached the respondent’s duty of care owed to him.
In summary, the particulars of negligence relied upon by Mr Toon in bringing his claim are:
(i)failure to treat him with due care and skill;
(ii)failure to perform a fasciotomy including using extensive skin incisions;
(iii)failure to properly perform a fasciotomy, including using extensive skin incisions, in a timely manner;
(iv)failure to release, or properly release, the pressure in Mr Toon’s left forearm;
(v)failure to recognise the need for a definitive release of the pressure in Mr Toon’s left forearm;
(vi)failure to heed the significance of the clinical presentation of Mr Toon on 19 April 2017; and
(vii)application of a pneumatic tourniquet to Mr Toon’s left arm during both the first operation and the second operation when its use was contraindicated.
Mr Toon pleads that as a result of the surgery on 19 and 20 April 2017, and the respondent’s negligence, he was injured and has suffered loss and permanent damage to his left forearm including muscle damage, nerve damage and rhabdomyolysis.[5] It is pleaded that Mr Toon also suffered consequential mental harm. In the alternative, it is pleaded that Mr Toon’s injuries would have been less significant, and he would have had a materially better outcome, if the respondent had not breached its duty of care.
[5] A medical condition involving the rapid dissolution of damaged or injured muscle.
As a result of his injuries, Mr Toon pleads that he has suffered, and continues to suffer, impairments and disabilities. These include loss of motor function in the left hand and forearm; chronic pain in the left forearm, wrist and hand; and a complete loss of the use of the left hand. These disabilities have caused Mr Toon to suffer a loss of earning capacity, that has led to a loss of income, and will continue to cause a loss of earnings in the future, including superannuation losses. Mr Toon has also incurred medical and treatment expenses as a consequence of his physical injuries and psychiatric response thereto. He makes a claim for the cost of that treatment and related expenses, past and future. Mr Toon pleads that he has also required, and will continue to require, assistance with his self‑care and activities of daily living (ADL). He makes a claim for that care on both a voluntary and paid basis.
(ii) The Respondent’s case
Through its defence, the respondent, sets out the factual background upon which it relies, in denying that it was negligent in the treatment of Mr Toon.[6] This includes that the South Australian Ambulance Service (SAAS) was called to Mr Toon’s home at 5:24am on 19 April 2017. They were given a history of Mr Toon waking up on the floor, having been lying on his left arm for 24 hours or more, after falling out of bed. Mr Toon told the ambulance officers that he had fallen to the floor at some unknown time after going to bed at about 10:00pm the night before. He woke lying on his left arm and in significant pain. The SAAS officers found marked swelling with a carpet imprint evident on the skin of Mr Toon’s left arm. There was loss of power and sensation from the left elbow distally.
[6] FDN 14.
The respondent relies upon the SAAS recorded history that Mr Toon ‘has been asleep for 24 hours and woke up on the floor of bedroom unable to get up’, and ‘called SAAS this morning after waking up more than 24 hours asleep’.[7]
[7] Paragraph 5 of Defence (FDN 14).
It is pleaded by the respondent that Mr Toon was transferred by ambulance to the QEH, arriving in the ED at approximately 6:00 am. It was then noted that he had swelling of the whole left arm with diminished sensation. A diagnosis of forearm compartment syndrome, with a brachial plexus injury was made. Upon review by the plastic surgery unit, the diagnosis of a forearm compartment syndrome and brachial plexus neuropraxia of the left shoulder was confirmed. Surgery was arranged. The respondent pleads that the correct treatment for compartment syndrome is surgery. It is pleaded that Mr Toon’s symptoms were compounded by the closed brachial plexus injury sustained at the same time as the compartment syndrome.
The respondent pleads that a left forearm fasciotomy and a carpal tunnel release were performed during the first operation, at about 12:40pm on 19 April 2017. This included a release of the volar and deep volar forearm fascia, the dorsal compartment, the carpal tunnel, and the mobile wad.
It is set out that Mr Toon’s CK level was elevated to more than 13,000 U/L (reference range being 250 U/L) when his bloods were first taken on presentation to the ED. Repeat blood tests post‑surgery at 5:30pm recorded CK levels of 35,000 U/L. By 10:50am on 20 April 2017, these had reduced to 10,000 U/L. It is pleaded that these CK levels indicate improvement in blood flow as a result of the treatment of the compartment syndrome, during the first operation.
The respondent pleads that the first operation was necessary, appropriate and competently performed. Mr Toon has lost function of his left forearm and hand as a consequence of the extensive muscle damage caused by prolonged compression over at least eight hours prior to his presentation to the QEH on 19 April 2017.
The respondent’s case is that extensive, irreversible damage had occurred to the muscles of the left forearm prior to Mr Toon’s presentation to the QEH, and that medical staff warned him of that on presentation. The respondent denies negligence and pleads that the surgery performed on 19 April 2017 was necessary, appropriate and competently performed. It denies that a full fasciotomy was not performed during the first operation, and denies that the failure to perform extensive skin incisions was a breach of the respondent’s duty of care owed to Mr Toon.
The respondent pleads that Mr Toon has been left with residual loss of function of the left forearm and hand due to the irreversible muscle, nerve and tissue damage which occurred prior to his presentation at the QEH. The respondent denies any liability for the residual disabilities that they plead were caused by the prolonged compression of the muscles in Mr Toon’s left forearm prior to his presentation on 19 April 2017.
The respondent’s case is that appropriate treatment was provided at all times by staff at the QEH. All claims in damages are denied.
Issues
The issues to be determined are:
(i) Breach of Duty of Care
(a)Timing of surgery
1.Was there unacceptable or inappropriate delay in taking Mr Toon to surgery for the first operation in the circumstances of his presentation to the ED at the QEH at 6:04am on 19 April 2017?
2.Was there unacceptable or inappropriate delay in taking Mr Toon back to surgery after the first operation?
(b)Fasciotomy using limited incisions
Did Dr Chan perform a full or partial fasciotomy during the first operation? Was fasciotomy surgery performed using limited incisions contraindicated in the circumstances of Mr Toon’s presentation?
(c)Release of Pressure
Did Dr Chan fail to release, or properly release, the pressure in Mr Toon’s forearm during the first operation?
(d)Use of tourniquet during the first and/or second operation
Was the use of a tourniquet inappropriate or contraindicated in the first operation and/or the second operation?
(ii) Standard of Care for Professionals
In considering the duty of care owed to Mr Toon both parties rely upon the standard of care required by professional persons, in this case medical professionals, in their treatment of Mr Toon.
Mr Toon relies upon s 40 of the Civil Liability Act 1936 (SA) (the CLA). The duty of care is codified in s 40 of the CLA regarding a person practising in a specialised profession, as set out by the majority of the High Court in Rogers v Whitaker:[8]
[8] (1992) 175 CLR 479 at 483.
40—Standard of care to be expected of persons professing to have a particular skill
In a case involving an allegation of negligence against a person (the defendant) who holds himself or herself out as possessing a particular skill, the standard to be applied by a court in determining whether the defendant acted with due care and skill is, subject to this Division, to be determined by reference to—
(a)what could reasonably be expected of a person professing that skill; and
(b)the relevant circumstances as at the date of the alleged negligence and not a later date.

Mr Toon argues that Dr Chan breached the duty of care owed to him, in that he did not, in his treatment and management of him, act with the due care and skill reasonably expected by a surgeon.
The respondent relies upon s 41 of the CLA, in relation to the management of Mr Toon on 19 and 20 April 2017. They argue that Dr Chan’s surgical management of Mr Toon, was widely accepted in Australia as competent professional practice by members of the same profession. This includes, but is not limited to, the performance of the fasciotomy via limited incisions; the performance of the extension of the skin incisions; the deployment of a tourniquet during both operations; and the timing of the surgical intervention. The CLA, at s 40 provides:
41—Standard of care for professionals
(1)A person who provides a professional service incurs no liability in negligence arising from the service if it is established that the provider acted in a manner that (at the time the service was provided) was widely accepted in Australia by members of the same profession as competent professional practice.
(2)However, professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.
(3)The fact that there are differing professional opinions widely accepted in Australia by members of the same profession does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
(4)Professional opinion does not have to be universally accepted to be considered widely accepted.
(5)This section does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in respect of a risk of death of or injury associated with the provision of a health care service.
In considering the alleged breaches of the duty of care owed to Mr Toon, I must take into account sections 40 and 41 of the CLA and determine whether it has been established that Dr Chan, when treating Mr Toon’s compartment syndrome, acted in a manner widely accepted by medical professionals as competent medical practice.
Both parties also rely upon s 32 of the CLA which provides:
32—Precautions against risk
(1)A person is not negligent in failing to take precautions against a risk of harm unless—
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)   the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a)   the probability that the harm would occur if precautions were not taken;
(b)   the likely seriousness of the harm;
(c)   the burden of taking precautions to avoid the risk of harm;
(d)   the social utility of the activity that creates the risk of harm.
(iii)   Causation
The issues to be determined are:
(a)Did the extent of the damage occasioned to Mr Toon’s left forearm, prior to his attendance at the QEH, mean that the left forearm compartment was largely unsalvageable? This was described by medical witnesses as the ‘die being cast’. As a result, does this lead to a conclusion that neither the first nor second operation, adversely impacted Mr Toon’s ultimate outcome?
(b)Is a large proportion of Mr Toon’s loss attributable to his pre‑surgery circumstances and issues including his poly‑substance abuse and background?
(c)Is Mr Toon functioning better now than before the surgery at QEH? If so, how does this impact damages?
(d)Is this a fact situation where the principle of “material contribution” should be applied in assessing damages? Does s 34(2) of the CLA apply in Mr Toon’s circumstances?
In relation to causation, the general principles to be applied are set out in s 34 of the CLA provides:
(1)A determination that negligence caused particular harm comprises the following elements:
(a)that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b)that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
(2)Where, however, a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number of different persons (the defendants) and it is not possible to assign responsibility for causing the harm to any one or more of them—
(a)the court may continue to apply the principle under which responsibility may be assigned to the defendants for causing the harm;[9] but
(b)the court should consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability.
(3)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
[9] Note‑ See Fairchild v Glenhaven Funeral Services Ltd [2002] 3 WLR 89.
Facts
The following facts are either not in dispute, or I have found them to have been proved. I begin by setting out the factual basis of the issues to be decided on liability.
(i) Mr Toon’s background – until surgery on 19 April 2017
Mr Toon was born on 6 August 1990 as the third eldest of eight children. His parents were very religious and imposed harsh discipline. At times, the children were deprived of food.[10] Mr Toon and his family regularly moved house. A large period of Mr Toon’s schooling was at home, as his parents were not satisfied with the religious standards of the schools he and his siblings attended.[11]
[10] T90.
[11] T8-9.
Mr Toon’s father was a cold and distant person who also suffered from bouts of extreme anger. He dealt out physical punishment on a weekly basis.[12] Mr Toon’s mother had suffered a hard life, and she was also prone to outbursts of anger, and physical punishment. Mr Toon was not close to all his siblings. He agreed in cross examination that his childhood could be described as unhappy, neglectful and abusive.[13] None of Mr Toon’s family members gave evidence at trial.
[12] T10.
[13] T89.
Mr Toon’s education was disrupted by the family’s regular moves. Despite this, he completed year 11 at Clare High School, and started year 12 at Sunrise Christian School at Marion in 2008. As a result of conflict with his parents, he left school and moved to live with his grandparents. He then obtained work in a part‑time role at Woolworths and enrolled at Noarlunga TAFE to study a Certificate III in music. He played guitar. He completed his music course at the end of 2009. He continued to be estranged from his parents.
In 2010 Mr Toon commenced studies at the University of South Australia in Law and Commerce, before changing to study a Bachelor of Law and Psychology. He continued to work part time. He was then working the eight hour night shift for three nights per week, at the BP, Mile End. About this time, he started binge drinking on weekends.
On 7 November 2010 Mr Toon presented at the Royal Adelaide Hospital (RAH) with increased anxiety and suicidal ideation.[14] A history was provided of depressive symptoms for six months, worsening recently. He described his emotions as being out of control and he was finding it hard to cope with life. This was despite consulting a private psychologist and commencing medication prescribed by his GP six months prior.
[14] Tender Book at pages 188 to 209, and pages 374 and 375.
Mr Toon described suffering from perceptual disturbances and auditory hallucinations, together with a poor appetite and poor sleep. He admitted to binging on alcohol. In discussion with a psychiatric registrar, Mr Toon said that he began suffering from mental health problems at 16 years of age. These included significant sleep issues. He viewed the treatment by his parents as having contributed to this.
On 8 November 2010 Mr Toon was transferred to the Lyell McEwen Hospital, (LMH) where he remained until 15 November. During this period, a provisional diagnosis of mixed depressive anxiety disorder or psychosis was made. After changing his medication and improvement in his mood and ability to sleep, Mr Toon was discharged to the care of his GP and psychologist.
In 2011 Mr Toon met Tegan Kempster (Ms Kempster) and they started a relationship. A few months later, Ms Kempster fell pregnant. Their son, Lucas, was born in 2012. Unfortunately, Mr Toon’s relationship with Ms Kempster ended three months after their son’s birth. The hostility between Ms Kempster and Mr Toon meant that he did not see his son as often as he would have liked. This was despite negotiated parenting plans.
Mr Toon increased his work hours at BP to financially support his son and Ms Kempster. The BP Service Station was sold to On The Run (OTR) in late 2014, and Mr Toon transferred his employment to them. Payment summaries confirm that from 21 November 2014 until 30 June 2015, Mr Toon earned gross earnings of $4,691.00 from his work with OTR. In the 2016 financial year, he earned $18,740.00 gross, and in the 2017 financial year he earned $9,033.00 gross.[15]
[15] Tender Book at pages 3868-3875.
At about the time Mr Toon began work at OTR, he also began partying more. This involved him beginning to take a mixture of different prescribed and illicit drugs. He started with amphetamines, including dextroamphetamine, which he obtained from a friend who had a prescription for them.[16] In 2015 Mr Toon started abusing oxycodone, MDMA and methylamphetamine. As a result of his pre‑existing anxiety and paranoia, methylamphetamine had a bad effect upon Mr Toon and he tried to limit its use. Dextroamphetamine was the main drug he consumed, with oxycodone when he could afford it.
[16] T19-20.
However, dextroamphetamine caused issues with sleep and Mr Toon began taking benzodiazepines such as Valium and Serepax to help him sleep. His evidence was that he would take dextroamphetamine as an upper in the morning, and Valium as a downer to sleep at night.[17]
[17] T21.
In mid‑2016 Mr Toon’s mental health began to deteriorate further as there was ongoing conflict with Ms Kempster regarding his contact with Lucas, who was then 4‑5 years old. This led to him using drugs more often, and he became more moody. He suffered from depression and anxiety and began consulting with a psychologist, Tracey Morrell.[18]
[18] Tender Book pp 30-38.
On 12 June 2016, Mr Toon presented to the ED of Flinders Medical Centre (FMC) with suicidal ideation, mostly related to conflict with his new partner, Ashleigh.[19] He reported ongoing poor sleep, increasing agitation and outbursts of anger directed at Ashleigh. Whilst still taking medication, Mr Toon reported feeling dizzy and anxious. He also struggled with concentration, which was impacting his studies. The diagnosis remained one of mixed anxiety with a depressive disorder.
[19] Tender Book at pp 13-15.
On 13 November 2016 Mr Toon was involved in a car accident whilst under the influence of Ritalin, and other substances. Later, he explained that this was a suicide attempt as he drove his car into a Stobie pole.[20] He was taken by ambulance to the QEH. In the clinical notes, Mr Toon is described as presenting with acute intoxication of amphetamines. He was staggering, had slurred speech, and at times was incoherent or delusional. He told staff that he had been abducted. He tested positive for opioids and was agitated. Mr Toon remained in hospital, in the psychiatric ward, Cramond Clinic, for several days, pursuant to a treatment order.[21] Upon release, Mr Toon was referred for drug and alcohol treatment at Drug and Alcohol Services SA (DASSA), and also back to his psychologist, Miss Morrell.
[20] Tender Book p 2210.
[21] Tender Book at pp 15-29.
Not long after, on 5 December 2016, Mr Toon unintentionally overdosed and was rushed to the RAH. The SAAS patient clinical record set out that Mr Toon had over‑dosed on Valium, and his partner called as he had stopped breathing. When the ambulance arrived, Mr Toon was unresponsive with an empty diazepam packet nearby. Naloxone was administered.[22]
[22] Tender Book at pp 221-222.
Mr Toon was placed in an induced coma at the RAH and admitted to Intensive Care.[23] A drug screen found benzodiazepines, methadone and an amphetamine‑like substance in Mr Toon’s blood. He denied any suicidal intent to hospital staff. He reported taking diazepam and a drug containing alprazolam[24] to help him sleep. He used other benzodiazepines and methadone at other times.
[23] Tender Book p 363.
[24] A form of Xanax used for sedation.
Mr Toon acknowledged his serious drug use, particularly with benzodiazepines that at times he acquired illicitly. Whilst in hospital he developed aspiration pneumonia and was finally released on 12 December 2016.[25] He met with a social worker from DASSA. He admitted his history of opioid and benzodiazepine use, together with oxycodone, increasing over the prior six months. He denied any IV drug use. Some of his drugs were obtained by prescription, and some illicitly. He explained that his drug use increased with stress. Issues with his former partner and access to his son had caused such stress. Mr Toon indicated that he was willing to engage with DASSA, to manage his drug use.[26]
[25] Tender Book at pp 212-220; 229; 245-299.
[26] Tender Book at pp 285-286.
Whilst Mr Toon was in hospital, his partner Ashleigh left him, taking with her all items of value. His mental state once again deteriorated. On 1 January 2017, as a result of paranoia and delusions after smoking Meth, he was taken back to the RAH.[27] He was diagnosed with drug induced psychosis and given some benzodiazepines to calm him. Mr Toon was discharged the next day.[28]
[27] T25.
[28] Tender Book pp 352-362; 365-368; 379‑397.
During this period, (2016‑2017) Mr Toon continued to work on a part‑time basis at the OTR at Mile End. His uncontradicted evidence was that he worked eight and a half hour shifts, and generally two to four shifts per week. These were between 3:00pm, and 11:30pm. However, as a result of his mental health issues, Mr Toon was not studying. He had then completed 2‑3 years of his law degree and one year of his psychology degree.[29] His income was supplemented by Centrelink benefits.
[29] T26‑27.
In early 2017, Mr Toon was living with a friend at Hendon. He was still using illicit and prescribed drugs. These included dextroamphetamine in the morning, and a mixture of benzodiazepines (sleeping pills) and methadone at night. He would mix these with his prescribed medication, sometimes taking three different pills at one time.[30] He found methadone to be sedating.[31] He had been prescribed the benzodiazepines by his GP, Dr Christie, to treat his anxiety and insomnia. He was prescribed Valium and Serepax. Mr Toon’s sleeping patterns were impacted by his amphetamine use, and he required the sleeping pills to enable him to sleep.[32] At this time, Mr Toon had recommenced contact with his son, however this was irregular as Lucas’ mother did not always comply with parenting orders.
[30] T28.
[31] T24.
[32] T29.
On 10 April 2017 Mr Toon was taken by ambulance to the QEH, having passed out after taking methadone. CPR was given and he was administered naloxone. Once in hospital, he was given fluids intravenously. Mr Toon stated this was not a suicide attempt.[33] He was discharged early on 11 April 2017. This was eight days before his left arm was injured, and he returned to the QEH.
(ii) Events before hospitalisation on 19 April 2017.
[33] Tender Book pp 667-701.
On 19 April 2017, when Mr Toon was 26 years of age, he woke up at approximately 5:00am in a confused state. He does not have a clear memory of the day before. His evidence was that he woke up on the floor, at the left side of the bed between the bedside table and the bed. He was lying on his left side, on top of his left arm.
Mr Toon does not know exactly how long he had been asleep. He gave evidence that his last memory was being in a conversation on Facebook Messenger with a friend, Mr Morrison, regarding spare parts for his car. This conversation is proved by a screen shot of several Facebook messages beginning at 9:55am on 18 April sent by Mr Toon. The next message is recorded to be when Mr Morrison responded on 18 April at 11:05am.[34]
[34] Exhibit A3 and T32.
In cross examination it was clear that Mr Toon has no independent memory of anything that occurred on 18 April 2017. I find that to be the case. I accept, as does the respondent, that Mr Toon sent a text message at 9:55am. However, I find that he was thereafter not in a position to reply to Mr Morrison’s text of 11:05am due to falling asleep or into unconsciousness.[35] The next message Mr Toon sent to Mr Morrison was after his surgery on 19 April 2017.
[35] T33, 300-302 and Exhibit A3.
When Mr Toon woke on 19 April, he was in a state of shock with no memory of falling out of bed. He immediately noticed swelling in his left forearm. He had no control over the arm from the shoulder to the hand. He was also in extreme pain. He called for an ambulance. The call to the SAAS occurred at 5:24am.[36] Mr Toon had no memory of falling out of bed, or of anything that occurred over the day and night of 18/19 April 2017.
[36] Tender Book p 475.
The SAAS records note an arrival at Mr Toon’s home at 5:36am.[37] The history obtained from Mr Toon was that:[38]
·he had gone to bed at approximately 10:00pm on Monday night;
·he had fallen to the floor during the night;
·the drop from his bed to the floor was 45cm;
·he had woken on Wednesday the 19^th of April at 5:00am; and
·he had not taken any extra prescription or illicit drugs the night before, although he had consumed some alcohol.[39]
[37] Ibid.
[38] Ibid.
[39] Ibid.
Mr Toon accepts that he fell out of bed at some time before he woke up. He does not know when that was.[40]
[40] Tender Book pp 1487 and 1503.
Mr Toon was taken to the QEH. He was found to have a lump on his head that caused concern for the QEH staff. A CT scan on 20 April 2017 found a large left parieto-occipital scalp haematoma. This is consistent with a fall to the floor some time over 18 or 19 April. Mr Toon also described experiencing extreme pain in his left arm and hand when he woke on 19 April.[41]
[41] T302.24-37.
There is no evidence of Mr Toon being awake or conscious between 9:55am on 18 April 2017 and when he rang for an ambulance at 5:24am on 19 April 2017. He did not respond to Mr Morrison’s message.[42] There was a period of lost time of in excess of 19 hours. At some time during this period of time, I find that Mr Toon fell to the floor, landing between his bed and beside table. This is what he told the ambulance officers had happened. It was set out in the QEH records that Mr Toon was ‘found at home by housemate unconscious on ground lying on left arm’.[43]
[42] Exhibit A3.
[43] Tender Book at p 985.
When exactly Mr Toon’s fall occurred cannot be established, nor how long he was lying on his left arm. Mr Toon has no memory of what occurred.[44] I cannot infer that he was lying on his arm for the whole time that he was in bed and/or on the floor.
[44] T35, 294-296.
Mr Toon told the ambulance officers that although he had not taken any extra prescribed or illicit drugs, his medications were Valium and a Benzodiazepine, oxazepam. On examination, Mr Toon was in pain over his left lateral side, including his humerus, leg and heel. He was unable to extend the fingers on his left hand without pain in his left forearm, and was unable to feel palpitation of his left hand. It was recorded that Mr Toon’s left hand was hot to the touch, swollen and red. A radial pulse was present. A carpet imprint appeared to be present on the left arm. Mr Toon denied any recent trauma to his left arm. No pain relief was administered as there was uncertainty as to whether there had been any head trauma.[45]
(iii) Arrival at the QEH
[45] SAAS Report at Tender Book p 475.

Mr Toon arrived at the QEH ED at 6:04am on 19 April.[46] He does not know how long he waited to see a doctor, as he was still in a confused state, and there were different people coming and going.[47] He could not recall if he told staff about his drug use as he was embarrassed by it.[48]
[46] Ibid at p 475.
[47] T37.
[48] T38.
The SA Health records (QEH records) set out that Mr Toon was triaged at 6:10am.[49] At 6:33am he was given an infusion of sodium chloride,[50] and blood was collected.[51] Mr Toon denied use of alcohol or other substances despite saying that he had been asleep for over 24 hours, waking up on the bedroom floor. The QEH records confirm an awareness of Mr Toon’s previous drug issues, including his drug induced psychosis and overdose on 10 April 2017.[52] Initial review found that Mr Toon’s left arm was swollen with limited movement.[53]
[49] Tender Book at p 977.
[50] Tender Book at p 1382.
[51] Tender Book at p 1488.
[52] Tender Book pp 979-980.
[53] Ibid.
Dr John Ang was the first medical officer to review Mr Toon. This was at 7:00am. He recorded in the History of Presenting Complaint (HPC), completed at 8:25am that Mr Toon had woken after more than 24 hours asleep. He may have fallen out of bed. He appeared drowsy and could not move his left arm distal to the shoulder. There was reduced sensation from the C5 dermatome to the T1 dermatome. Dr Ang noted that in addition to the swelling of Mr Toon’s left arm, the forearm flexor was tense, with extensor mottling. He found a strong radial pulse in the left arm.[54]
[54] Ibid.
Mr Toon denied a drug overdose. He was however given 100mg of naloxone, an opioid antagonist used to reduce or reverse the effects of opioids.
Whilst in the ED, Mr Toon underwent an electrocardiogram (ECG) at 6:34am.[55] He was noted to be disorientated in place and time when Dr Ang first reviewed him.[56] Dr Ang requested a number of tests at 7:11am.[57] These included a blood chemistry panel that resulted at 8:10am.[58] This was just under one hour and 40 minutes after blood was collected.
[55] Tender Book at p 1486.
[56] Tender Book at p 978.
[57] Tender Book at p 1488.
[58] Tender Book at p 1488.
At 7:20am there were concerns regarding Mr Toon’s reduced respiratory rate and a Respiratory Therapist was called.[59] Dr Ang had ordered X‑rays of Mr Toon’s left forearm, left humerus and chest at 6:52am. These were performed at 7:21am and resulted at 9:50am in relation to the left arm and at 10:17am in relation to the chest.[60]
[59] Tender Book at p 978.
[60] Tender Book at pp 1486-1487.
It is recorded that with treatment there was immediate improvement in Mr Toon’s Glascow Coma Scale (GCS). He complained of increasing left arm pain after the naloxone was administered. Mr Toon’s response to naloxone leads to an inference that he had consumed an opioid substance over 18 and 19 April 2017. I do not need to find, and I have no evidence before me whereby I could find, the extent of the opioid drug consumed.[61] However, Mr Toon’s evidence was that he had no memory of waiting in the ED or how long it took for him to be seen by a doctor.[62]
[61] Tender Book at p 980.
[62] T38.
Mr Toon was handed over by Dr Ang, to the ED morning team, at 8:15am. At that time Dr Ang believed Mr Toon could be suffering from rhabdomyolysis,[63] and a compartment syndrome in his left forearm.[64] Dr Ang had not been provided with any blood chemistry results, at the time of handover. He had left an empty space next to the word ‘bloods’ in his notes.[65]
[63] A breakdown of muscle tissue that releases damaging protein into the blood that can lead to kidney damage.
[64] Tender Book at p 980.
[65] Ibid.
Dr Adrian Hill, a consultant, assumed Mr Toon’s medical care at 9:09am. He recorded that there was ‘swelling and no power or sensation from the L) arm distally’, and that Mr Toon was drowsy as the naloxone had worn off.[66] Examination of Mr Toon’s left forearm found the flexor compartment to be ‘hard, woody’. There were blisters to the dorsal aspect of the forearm and a lesion that Dr Hill identified as an injection site.[67] There was increased tenderness on passive extension.[68] Compartment pressures were measured at 28mmHg for the flexor compartment; 17mmHg for the extensor compartment; and 17mmHg for the mobile wad compartment.[69]
[66] Tender Book at p 982.
[67] I accept Mr Toon’s evidence that this lesion could have been a result of his IV treatment at the QEH on 10 and 11 April 2017.
[68] Tender Book at p 982.
[69] This is a measurement of mercury.
It was also recorded that Mr Toon’s CK levels were 13,040.[70] This is the first time any CK levels were reported, being after blood results became available at 8:10am. At 9:23am, Dr Hill assessed Mr Toon as having a developing left arm compartment syndrome. He ordered analgesia and ongoing IV fluids. He referred Mr Toon to the plastic surgery team.[71]
[70] CK refers to Creatine Kinase, an enzyme found in muscle tissue. CK levels measure the amount of creatine kinase in the blood, and are used to identify muscle damage and other medical conditions.
[71] Tender Book at p 982.
Mr Toon has no memory of waiting in the ED and cannot recall how long it took for a doctor to see him. He recalls nurses checking his vitals early on, but thought the first doctor who saw him was Dr Chan.[72] The hospital notes confirm that this is incorrect. It is an indication of Mr Toon’s level of confusion whilst in the ED. Mr Toon later confirmed that he was not confident in saying who he had seen in hospital and that his memories were not clear.[73]
[72] T38.
[73] T40.
Mr Toon as a witness tried to assist the court. He was candid regarding both his pre‑injury and post‑injury struggles, and his extensive drug use. By his evidence it is clear that at April 2017 Mr Toon had been engaging in a serious level of poly‑substance drug use for at least seven years. I find that his drug use was a cause of his admission to the QEH on 19 April.
When Mr Toon arrived at the QEH on 19 April 2017, he was, in his words, ‘very much in a bewildered state of mind’, and he did not have ‘a sharp vivid memory’ of what happened in hospital.[74] Caution must be taken when considering Mr Toon’s evidence, particularly where it is in conflict with the clinical records. I find his evidence to be unreliable, and I proceed with circumspection in relation to this version of what occurred at the QEH on 19 April.
(iv) Review by Dr Chan
[74] T298.
Dr Chan is a plastic surgery consultant now working at the Adelaide Children’s Hospital, and the Sunshine Coast Hospital in Queensland. Dr Chan became a surgical registrar in 2013.[75] He was admitted into the trainee program with the Royal College of Surgeons in 2017.[76] He worked at the QEH between February 2017 and February 2018 as a Plastics Registrar.[77] He was then a SET 1 trainee surgeon. He had been performing fasciotomy surgery since 2013.[78] Dr Michelle Lodge, consultant plastic surgeon, was his supervisor for Mr Toon’s case.[79] Dr Chan discussed Mr Toon’s case with her, and she gave him approval for the planned surgery on 19 April 2017.[80]
[75] T401.
[76] Ibid.
[77] Dr Chan’s Curriculum Vitae.
[78] T401-403.
[79] T402.
[80] T404.
Dr Chan first examined Mr Toon on 19 April at some unspecified time before 10:43am when Mr Toon was taken for surgery. In his progress note of 11:15am, Dr Chan recorded that the plastic surgery referral was for a left forearm compartment syndrome, on the background of a methadone overdose. The history of injury was difficult to obtain from Mr Toon as he was drowsy.
In relation to Mr Toon’s left forearm, Dr Chan noted the puncture wound on the volar aspect and found mild cellulitis extending to the mid upper arm. The forearm and dorsal compartments were both tense. There was no active movement of the fingers or wrist. There was no sensation from C6-T1. The radial pulse was now weak, and the ulnar nerve could not be felt. The compartment of the hand was soft, the hand was still warm.[81]
[81] Tender Book at p 985.
Dr Chan noted the CK levels, and that there was no fracture or foreign body in the arm. The pressures in the compartments measured in the ED confirmed a developing left forearm compartment syndrome with underlying brachial plexus neuropraxia causing the loss of sensation from C6 to T1. Dr Chan opined that a fasciotomy was required to release the compartment pressures in the left forearm. It was determined that Mr Toon was not able to provide informed consent to the surgery and a two‑doctor consent was obtained. Surgery was booked at 10:28am, with clinical priority 0‑1, meaning it should occur within an hour.[82] By inference, I find that Dr Chan had reviewed Mr Toon before booking the surgery at 10:28am.
[82] Tender Book at p 3190A.
Before the surgery proceeded, Mr Toon’s father was telephoned, and the required procedure was explained. Dr Chan also discussed Mr Toon’s presentation with his supervisor, consultant plastic surgeon, Dr Lodge, advising of the nature of the proposed surgery, by way of release of the fascia.
Mr Toon has limited recall of the plan for the surgery. He described himself as being ‘out of it’.[83] He was aware that Dr Chan consulted with other doctors by phone. He came back and drew lines on Mr Toon’s arm and explained what he would be doing, namely making incisions to release the pressure in his forearm.[84] Mr Toon agreed that marks on the volar aspect of his forearm, as depicted in a photo in the Tender Book,[85] were similar to those drawn by Dr Chan.[86] He also agreed that this picture showed the swelling of his forearm before surgery.
[83] T298.10.
[84] T39.
[85] Tender Book at p 4016.
[86] Although they were not exactly the same.
Mr Toon gave evidence that he was in a ‘bewildered state of mind’ before being taken to surgery. He agreed that upon attending at the QEH he may have confused the chronology of events.[87] I adopt the approach of preferring the clinical notes where there is any conflict with Mr Toon’s evidence.
(v) The first operation – 19 April 2017
[87] T298.10-18.
Mr Toon was taken for surgery at 10:43am, and into the operating room at 11:10am.[88] The first operation commenced at 11:32am.[89] This was just under 5.5 hours after Mr Toon’s arrival at the QEH ED.
[88] Tender Book at p 3190.
[89] Tender Book at p 3190.
The surgical plan was to perform a fasciotomy to relieve Mr Toon’s left forearm compartments, by incisions over the volar and dorsal sides of the forearm, with a carpal tunnel release. The surgery was to be performed under general anaesthetic, with a tourniquet applied. Dr Chan explained that fasciotomy surgery, particularly upper limb fasciotomies, fall within the skill set of plastic surgeons.[90] He was accredited to perform fasciotomies.[91] While this was not an assertion seriously challenged, other evidence was given that vascular surgeons also perform fasciotomies.[92]
[90] T377.
[91] T378.
[92] Dr Tomlinson at T445; Mr Westcott at T641; and Professor Lane at T768-769.
In relation to a compartment syndrome, the purpose of a fasciotomy is to achieve complete release of the fascia, being the thick connective tissue that surrounds the muscles of the forearm and extends from the wrist to elbow. Inside each layer of fascia is a confined space, known as a compartment. Muscle tissue, nerves and blood vessels are situated inside these compartments, protected by the fascia. The fascia tissue does not expand, and therefore any swelling in the compartment, causes it to press upon the muscles, blood vessels and nerves. This can cause blood flow to be blocked (ischemia) and ultimately cause damage or death of those muscles and nerves.[93]
[93] T388-389.
Dr Chan confirmed in his evidence that Mr Toon’s first operation was an emergency procedure and given a priority 1. However, it was not a trauma caused injury. If there had been trauma to the arm, such as a fracture, Dr Chan would have performed a fasciotomy by opening up the whole arm. His assessment was that this was not required in Mr Toon’s situation, and that the ‘Clinical Practice Guidelines for the Management of Acute Limb Compartment Syndrome following trauma’ (The Clinical Practice Guidelines), did not apply to Mr Toon’s presentation.[94]
[94] T420.20 - 421.9.
Dr Chan’s concern was to preserve the skin of the left arm by ensuring that as muscle in the forearm swelled it did not cut blood flow to the skin of the forearm;[95] and that the blood flow to the muscles was not compromised. This was the reason that the first operation was regarded as an emergency procedure. His evidence was that damage to tissue after six to eight hours is irreversible.[96]
[95] T421.11 - 422.15.
[96] T423.17 – 424.9.
When asked about the use of smaller or limited incisions to perform the fasciotomy, Dr Chan explained that he was concerned by Mr Toon’s presentation, determining that his prognosis was likely poor.[97] Dr Chan was therefore trying to reduce the risk to Mr Toon’s morbidity by:[98]
… minimising the amount of skin that's exposed and minimising the risk of infection and scarring that may affect his movement down the track.
[97] T398.18.
[98] T389.
In considering Mr Toon’s prognosis, Dr Chan explained that the severity of the brachial plexus injury was an important consideration. The forearm muscles would be the last to reinnervate, and in fact had not done so 12 months after the injury. This confirmed there was chronic denervation, with a further nerve process happening higher than the forearm.[99]
[99] T426-427; T437.
Dr Chan did not agree that Mr Toon had achieved complete recovery from the brachial plexus injury. His view was that there was an overlap between the brachial plexus injury and the muscle injury caused by the compartment syndrome, impacting Mr Toon’s left‑hand function. The brachial plexus injury caused loss of function, nerve sensation and movement. Mr Toon’s C7 to C6 and T1 nerves were all affected, and his whole arm could not move. Regeneration of the nerves would have to occur right down to his hand. In Dr Chan’s opinion this overlap meant that Mr Toon’s prognosis was poor.[100]
[100] T438.
Dr Chan explained that this was particularly if the time‑line for nerve reinnervation was many months and the muscle began to, or has atrophied due to lack of use. This leaves no, or no functioning muscle, when the nerve returns. In Mr Toon’s case, there was a concern that there would be a worse outcome if his brachial nerves had been compressed and in an awkward position. This could cause a dent in the nerve physically from the outside which can then cause a permanent injury.[101] It was these considerations and unknown factors that influenced Dr Chan’s management of Mr Toon’s complex presentation.
[101] T427-428.
Dr Chan also explained that longer incisions can potentially lead to infection and fluid or blood loss. A transfusion could then be required, and later the need for skin grafts. This may lead to worsening function of the hand and wrist.[102] His evidence was that using limited incisions reduces the risks of these complications.[103]
[102] Ibid.
[103] T390.
A difficulty arose with the commencement of the first operation as Dr Subramanian, the anaesthetist, raised issues regarding whether Mr Toon had fasted, and the extent of any methadone usage/overdose. Dr Subramanian, spoke to Mr Toon’s father and the risks were explained to him.[104] Consent was provided for the surgery to proceed.[105]
[104] Tender Book at p 1004.
[105] Ibid.
The first operation commenced when a tourniquet was applied at 11:42 am. It continued until 12:23 pm when the tourniquet was removed.[106] Mr Toon was taken from theatre at 12:55 pm. The surgical record set out that:[107]
(1)fasciotomy surgery had been performed by limited incisions;
(2)on the volar aspect of the forearm an ‘S’ shape incision was used. This incorporated the previous ‘puncture’ wound;
(3)the volar forearm fascia and deep volar forearm fascia were released;
(4)a dorsal incision released the dorsal compartment and mobile wad;
(5)the carpal tunnel was released by an incision between the wrist and palm.
[106] Tender Book at p 1005.
[107] Tender Book at p 1007.
Dr Chan’s evidence was that after using a scalpel to make the skin incisions, he could see the fascia over the muscles in each compartment. He described incising this with an electric diathermy before using scissors to cut, and open the entire fascia, thereby immediately releasing the bulging muscle. This bulging muscle confirmed the diagnosis of compartment syndrome. In relation to the deeper volar, the release was done by retracting the muscles to the side. Dr Chan then opened the carpal tunnel, which is a continuation of the fascia in the forearm. This allowed sighting, and thus preservation, of the median nerve.[108] He explained that the carpal tunnel wound was connected to the limited incision wound on the forearm, under the skin. This was done to ensure that the fascia was completely released between the two incisions.[109] This ensured the fascia was released under the skin bridge. This procedure was done to prevent the whole arm from laying open, and leaving a large skin defect.[110]
[108] T385-386.
[109] T386.25-31.
[110] T416.1-10.
Dr Chan also explored the median nerve and released the lacertus fibrosus on top of the nerve. This is a superficial fascia.[111] His clear evidence was that he released all the compartments in the left forearm.[112] Dr Chan explained that he had confirmed this by using his longest scissors to run the blade along the fascia connecting the two incisions to ensure it was all completely released. He was satisfied that this had occurred.[113]
[111] T429.
[112] T386.15-21.
[113] T386.32 – 388.19.
Dr Chan confirmed that a tourniquet had been applied for 41 minutes at a pressure of 250mmHg. He explained that this was standard for a fasciotomy as it reduces the risk of bleeding, and also allows better vision when cutting the fascia.[114] The further risk of damaging nerves, arteries, or muscles by cutting them is also reduced. Dr Chan also said that there can be increased blood loss if a tourniquet is not used. It was Dr Chan’s opinion that there was no reason not to apply a tourniquet when performing the fasciotomy surgery.[115]
[114] T394.
[115] T394-396.
Dr Chan was satisfied that he had achieved the purpose of a fasciotomy by decompressing the volar, dorsal and mobile wad compartments.[116] He was very clear that the surgery was a full fasciotomy and that the purpose was achieved by release of the fascia in all the forearm compartments. It was performed however by limited skin incisions.[117] Dr Chan also explained that it was expected that after the surgery the forearm muscles would swell.
[116] T388.
[117] T393-394.
Dr Chan further explained that one of the reasons for doing limited skin incisions was to avoid significant swelling as all tissue is confined. The risk with full incisions is that ‘you’ve essentially allowed everything … to seep out’.[118] In contrast, with limited incisions, ‘…as muscles – they will just readjust and they will swell on the other side as well.’[119]
[118] T430.8-11.
[119] T430.23-25.
On examination of the muscle tissue in Mr Toon’s forearm, Dr Chan found that it was mostly healthy and intact, with slight colour change in the flexor muscles. There was no infection in the arm.
Whilst there are issues raised by some other medical experts, regarding the manner in which the fasciotomy was performed on 19 April, there is no evidence to contradict Dr Chan regarding what occurred, and what was observed, during the first operation.
Dr Chan was an impressive witness who gave very thoughtful, clear and cogent evidence. I accept his evidence that he had a clear recollection of the first operation.[120] I proceed on the basis that a full fasciotomy surgery was performed as described by Dr Chan.
(vi) Events post‑surgery
[120] T378.18.
Whilst still in the operating theatre, Mr Toon’s left arm was dressed with Betadine,[121] and Mepitel[122] before being wrapped in a crepe/gauze bandage.[123] The wounds were left open. Instructions were for IV antibiotics and slow fluids overnight.[124] The left arm was elevated on an IV pole to reduce swelling. This also assisted with perfusion and penetration of the antibiotics into the wounds.
[121] A liquid used to prevent infection.
[122] A wound contact dressing.
[123] Tender Book at p 1007.
[124] Tender Book at p 1008.

Mr Toon was returned to a ward at approximately 1:00pm on 19 April.[125] He was reviewed by Dr Toan Pham (Dr Pham), a junior medical officer at 2:45pm. He recorded that Mr Toon was drowsy with a GCS of 14. He was however easily rousable. The wounds on Mr Toon’s left arm were noted to be oozing blood, however Mr Toon told Dr Pham that he was not suffering any pain.[126] This was different to Mr Toon’s evidence that following the surgery he was in a lot of pain.[127] I prefer the evidence in the records of Dr Pham, as I am not satisfied that Mr Toon has complete recall of what occurred after the first operation as a result of the anaesthetic and his state before surgery.
[125] Tender Book at p 1008.
[126] Tender Book at p 1009.
[127] T40.
Dr Pham attended upon Mr Toon again at around 4:00pm. Mr Toon was noted to be more alert and was sitting up in bed using his phone. His GCS score had improved to 15. Dr Pham raised concern of self‑harm and/or increased depression and anxiety given Mr Toon’s pre‑surgery drug use. However, Mr Toon refused to be seen by the inpatient psychiatry team.[128]
[128] Ibid.
Mr Toon’s CK levels were tested via a blood test at 5:30pm. The levels had increased significantly to 35,770. Dr Chan’s evidence was that the CK levels were not necessarily an indicator to return Mr Toon to surgery. Other clinical signs were considered, including low blood pressure, high heart rate and pain. Dr Chan explained that the increased CK levels were to be expected as muscle enzymes had been released into Mr Toon’s blood system prior to the first operation.
Mr Toon was next seen by Dr Timothy Chan (Dr T. Chan) at 6:04pm on referral from Dr Pham. This was a psychiatry review and to obtain a more detailed history of Mr Toon’s drug use.[129] Dr T. Chan found Mr Toon to be an ‘evasive historian’, particularly in regard to the immediate events before falling asleep the previous day, and when he last used methadone or oxycodone.[130] Mr Toon admitted to buying oxycodone and methadone off the street, and said he had last used those drugs ‘sometime over the weekend’. Dr T. Chan noted a GCS of 15, and that Mr Toon was able to walk independently to the bathroom. He confirmed the IV plan for Mr Toon’s arm and recommended psychiatric review for his anxiety/Post‑Traumatic Stress Disorder (PTSD) issues. He also suggested a referral to DASSA.[131]
[129] Ibid.
[130] Tender Book at p 1017.
[131] Tender Book at p 1018.
Mr Toon was seen at 8:38pm by Cassie Borgelt EN. At that time, he complained of some pain, and it was noted that due to Mr Toon’s high drug tolerance, oxycodone was having little effect. A ‘severe amount of ooze on the left arm’ was noted, in addition to decreased sensation in the left hand.[132]
[132] Tender Book at p 1020.
At 6:43pm on 20 April, a nursing note recorded that Mr Toon had been reviewed by a plastics registrar, as a result of lack of sensation and movement in the left forearm, however Mr Toon was then sleeping.[133] Dr Chan in cross examination denied that he was the plastics registrar that had seen Mr Toon overnight.[134] I accept that this was the case.
[133] Tender Book at p 1021.
[134] T409-410.
I reject Mr Toon’s evidence that he saw Dr Chan overnight and that he had told him that further surgery was required to extend the incisions.[135] This version of events was not put to Dr Chan in cross examination and is not recorded in the hospital notes. The QEH records rather confirm that Mr Toon was in pain and highly medicated over the evening of 19/20 April. As a result, Mr Toon’s evidence regarding who he spoke to is unreliable and cannot be accepted. I prefer the detail in the contemporaneous clinical records, and Dr Chan’s evidence. I proceed on the basis that Dr Chan did not review Mr Toon overnight, and extended incisions were not discussed.
[135] T41-42.
Mr Toon also gave evidence that there was significant swelling in his left arm and that it had ‘blown up like a balloon’.[136] When shown photos of his arm taken on the morning of 20 April, he agreed that this is what his arm looked like.[137]
[136] T41.
[137] Tender Book at p 4072.
Dr Kate Stuart (Dr Stuart), an intern acting as scribe during the plastics’ team ward morning round on 20 April, recorded that Mr Toon remained slightly drowsy, and there had been no issues overnight. On examination of Mr Toon’s arm, it was noted that the skin surrounding the open anterior and dorsal compartments was still feeling tight. Sensation had improved slightly. There was still minimal upper arm and forearm sensation, and minimal range of movement. There was no sensation in the left hand.[138] The conclusion was that the compartments in the forearm were still tight, and further exploration and possible release by surgery was required.[139] I accept as more reliable this description of Mr Toon’s arm on the morning of 20 April, rather than Mr Toon’s description of the swelling.
[138] Tender Book at p 1022.
[139] Ibid.
Dr Chan was present at the ward round as he wanted to inspect Mr Toon’s arm. He agreed that given the skin tightness, further surgery was required to release the skin. This was to be done by extending the skin incisions.[140] Dr Chan booked the surgery at 8:30am as a priority‑1.[141] Mr Toon needed to be admitted to surgery as soon as possible.
[140] T391.
[141] Tender Book at p 3191A.
It was confirmed by Dr Chan in evidence that Mr Toon’s left forearm was swollen early on 20 April as demonstrated by the photographs taken before the second operation.[142] He described the swollen muscle as going out the path of least resistance.[143] The cause of the swelling in Mr Toon’s forearm was oedema. Fluid was being released into the forearm muscles.
(vii) The second operation - 20 April 2017
[142] T434 and photos at Tender Book p 4072.
[143] T434.21.
Mr Toon was taken into theatre at 9:23am on 20 April 2017, for further exploration of the left forearm compartments.[144] A tourniquet was again used and applied at 9:53am.[145]
[144] Tender Book at p 3191.
[145] Tender Book at p 1025.
Dr Chan, in his operation note, described the second operation as:
Left forearm – exploration and further skin fascial release. Findings: slight discolouration in superficial flexors mid‑forearm and thumb extensor muscle belly.[146]
[146] Tender Book at p 1028.
It was also recorded that the following procedures were carried out:
- volar: extended to full volar incision release – connecting to carpal tunnel
- dorsal: extended and connected to two incisions.[147]
[147] Ibid.
Dr Chan explained that the purpose of the second operation was only to release the skin that was tight, and thereby under pressure. The pressure raised concern for the integrity of the skin, as a result of the swelling underneath. This was why the second operation was given a priority‑1, to allow Mr Toon to get into surgery as soon as possible.[148]
[148] T391‑392.
When Dr Chan examined the left forearm compartments during the second operation, he found that all the fascia was open, and no further release was required.[149] Both the superficial and deep forearm fascia had been released. Upon all the evidence I find, and proceed on the basis that, the fascia in Mr Toon’s forearm had been completely released during the first operation, and was no longer acting to restrict the swelling of the forearm muscles. There is no evidence from any other surgeon or others present during the surgery, to contradict Dr Chan’s evidence.
[149] T393.
Mr Toon’s counsel tested Dr Chan regarding the nature of the second operation, suggesting that it had been recorded in later material as an extended fasciotomy. Dr Chan continued to deny that this was the case, and remained clear that during the second operation he did not need to further release the fascia as the release had occurred in the first operation. I accept that evidence, as to what occurred during the second operation.
I also rely upon the notes of the assistant surgeon Dr Kartik Iyer in coming to this conclusion.[150] On 23 April 2017, he recorded that Mr Toon’s two operations were firstly a ‘left arm fasciotomy’, and secondly a ‘further skin release’[151] Dr Chan also recorded in his Log Book Record, on 1 May 2017, that the second operation was a ‘Release of skin of left forearm compartment syndrome 1 day limited access fasciotomy’[152] This Log Book was kept as part of Dr Chan’s surgical training.
[150] Confirmation that he was present at the surgery: Tender Book at p 3191.
[151] Tender Book at p 1051.
[152] Tender Book at p 4014.
I acknowledge that Dr Stuart, in completing the discharge summary for Mr Toon, described the second operation as him requiring ‘further fascia and skin release’.[153] However in evidence, Dr Stuart explained that she was not present at the surgery, nor did she have any personal knowledge of the second operation. She had prepared the discharge note, as an intern, summarising the clinical notes.[154] I prefer the evidence of the two doctors present within the operating theatre, Dr Chan and Dr Iyer, as to what occurred during each of the first and second operations.
[153] Tender Book at p 2327.
[154] T191.27-36.
Dr Chan gave evidence that during the second operation he had checked that there were no bands of fascia still present. This was not however a further release of the fascia.[155] He acknowledged that his operation note stated that the second operation was a ‘further skin release/fascial release.’[156] He described this as a mistake as, the body of the operation note,[157] and the notes in his logbook confirmed that the surgery was only a skin release. He agreed that during the second operation he was decompressing the forearm.[158]
[155] T435.
[156] Tender Book p 1028.
[157] T436.27-36.
[158] T435-436.
Pictures of the extended skin excisions performed on 20 April 2017 are in the Tender Book.[159] Dr Chan’s evidence was that the top photo showed the palm side or volar aspect of the forearm; and that the bottom photo showed the dorsal aspect.[160] He explained that in relation to the palm side of the forearm the skin incision was extended to connect with the previous carpal tunnel incision and became one large curved incision. This was only a further skin release, as the fascia under the previous skin bridge (between the previous two incisions) had been released in the first operation.[161]
[159] At pp 4018 and 4073.
[160] T416.
[161] T416.28‑417.1.
During his evidence Dr Chan, in maintaining that the second operation was only a skin release, explained that skin incisions are necessary when releasing fascia around muscles, to ensure that expanding muscles do not compromise the blood flow to the skin. As the muscle swells, it can push against the vessels that supply the skin and which are in between the muscles and the skin. That swelling can then cause necrosis of the skin.[162]
[162] T421.26-422.15.
When Mr Toon was returned to surgery on 20 April Dr Chan found, despite the swelling, there was no compromise to the major blood vessels, including those to the hand. His concern was primarily the compromise of the small blood vessels to the skin.[163] When challenged, Dr Chan’s evidence was that the skin is rarely an issue in relation to being a limiting factor for blood vessels. In relation to Mr Toon, the blood vessels were not compromised over the night of 19 April. The skin can expand with swelling and often does.
[163] T430-431.
When asked about the photos of Mr Toon’s arm on the morning of 20 April 2017, Dr Chan confirmed that they did not demonstrate any compromise of the blood flow to the two major blood vessels (arteries) to the hand. This is separate to any possible compromise to the small blood vessels to the skin. It was that concern which led to the decision to conduct the second operation.[164]
(viii) Events post‑surgery on 20 April 2017
[164] T431.
Mr Toon was returned to the ward at 11:55am on 20 April. The skin of his left forearm was pink, however there was numbness in the arm and Mr Toon was recorded as not being able to move all his fingers. No oozing was noted on the left arm which was still elevated in the gallows sling.[165] Photographs of Mr Toon’s left arm after the second operation show the extensive skin incisions to the forearm.[166] Mr Toon has no recall of these photos being taken[167]
[165] Tender Book at p 1032.
[166] Tender Book at p 4018.
[167] T44.
The photos come from an interim audit of the procedures on Mr Toon’s arm.[168] They are described as:
2^nd op (20/4): Re‑Look and dermotomy (volar/midline dorsal).
Surgeon: Chan
Findings: some areas of discolouration of superficial muscles.
[168] Tender Book at p 4018.
Dr Chan agreed in evidence that a dermotomy is a ‘full cutting open of the skin’.[169] In the context of the second operation, I take this to mean, only the skin.
[169] T417.
Mr Toon described his arm as being ‘twice as big’ after the second operation than the first. In the morning of 21 April 2017, a ward round record noted that Mr Toon had ‘slightly improving sensation but still minimal upper arm, forearm, nil sensation hand; nil movement distal to shoulder’[170] A vacuum dressing was applied to the forearm wounds to remove fluid; and an occupational therapist provided a resting splint to be used at all times. This was to maintain length of ligaments around joints in the left hand. Mr Toon was also instructed to support his left shoulder at all times.[171]
[170] Tender Book p 1037.
[171] Tender Book p 1042.
At a review on 24 April an occupational therapist noted that Mr Toon’s arm was still swollen with significant oedema in the left hand and whole arm. There was still no active movement of the left arm or wrist, and no active flexion of the left elbow.[172] It was noted on 25 April that Mr Toon had yet to have any family visit.[173]
[172] Tender Book p 1061.
[173] Tender Book at p 1066 and p 1071.
In the week after the second operation, nursing staff recorded that Mr Toon was starting to respond to analgesia; had no pain on passive movement of his elbow but mild discomfort in left hand/fingers; was still having oxycodone for pain relief; and was still slow to answer questions or understand direction.
On 25 April Mr Toon’s entire left arm was still swollen, and there was no active movement from the elbow down. However, the compartments felt soft. There were still issues regarding pain management, given his previous poly‑substance abuse. However, it was necessary to continue pain relief, using oxycodone, tramadol, pregabalin and nortriptyline.[174] In evidence Mr Toon described feeling that he was part of a freak show as he was seen by multiple staff and students.[175]
[174] Tender Book at pp 1066 to 1072.
[175] T45.
Dr T Chan also reviewed Mr Toon on 25 April. There was a concern regarding Mr Toon’s analgesic regime and particularly his opioid intake over the preceding 24‑48 hours. An APS review was arranged to optimise Mr Toon’s analgesic routine.[176] This review occurred on 25 April, and again on 26 April. Mr Toon complained of pain that was ‘very deep, pain from the bone’, and of an inability to move his left hand. He had difficulty sleeping. Concern was raised that Mr Toon was developing a chronic pain syndrome.[177]
[176] Tender Book at p 1071.
[177] Tender Book at pp 1074 and 1078.
Mr Toon was also visited by a hospital social worker, regarding stress related to his financial situation, as he was not working. He reported not coping well with his pain, and was teary at times.[178] On 27 April it was noted that there was significant oedema in Mr Toon’s left hand and arm, and still no movement.[179] This continued until his release from hospital on 29 May 2017.
[178] Tender Book at p 1080.
[179] Tender Book at pp 1095-1099.
Dr Pham, on 30 April, reported that Mr Toon was suffering increased pain, describing it as feeling like his arm was being crushed. He opined that the brachial neuropraxia was contributing to Mr Toon’s pain.[180] Dr Pham noted that once the swelling in Mr Toon’s left arm resolved, surgery could be performed to close the arm wound by skin grafting.
[180] Tender Book at p 1135.
Mr Toon was seen by an occupational therapist on 1 May 2017 who again recorded significant oedema in the left hand with no range of movement of the hand and wrist.[181] Mr Toon had an ongoing need for a splint to ensure finger extension.
[181] Tender Book at p 1143.
Mr Toon continued with occupational therapy and pain medicine treatment until undergoing surgery on 9 May 2017 (the third operation). This was by way of debridement of necrotic tissue in his left forearm wounds. Findings were of segmental areas of necrosis of the left mid forearm. Although the median nerve was intact it appeared unhealthy; and the dorsal compartment muscles were viable.[182]
[182] Tender Book pp 1106, 1207.
On 12 May 2017, Mr Toon underwent surgery to close the forearm opening over the median nerve (the fourth operation). This was by skin grafting, using skin from Mr Toon’s thigh. Whilst Mr Toon was gradually recovering from these further operations, he self‑discharged himself against medical advice, on 29 May 2017.[183] This was after six weeks in hospital. He still remained under the care of the APS and occupational therapy teams at the QEH. He also had nurses from the Royal District Nursing Service (RDNS) attend daily to dress his left arm wounds.[184]
(ix) Events post-discharge from QEH 29 May 2017.
[183] Tender Book at p 2327.
[184] Tender Book p 2211.
Mr Toon explained that before leaving, hospital staff liaised with his GP, Dr Charles Christie to arrange provision of his prescription medications, including oxycodone.[185] The hospital also organised for Mr Toon to be on the suboxone program,[186] whereby he would attend daily on the pharmacy to retrieve the required medication.[187]
[185] T46.
[186] Suboxone is a fixed dose combination medication consisting of naloxone and Buprenorphine used to treat an opioid use disorder.
[187] T47.
Mr Toon was prescribed Lyrica.[188] This made him feel sedated but assisted with the nerve pain in his left arm. Oxazepam and nortriptyline were also prescribed to manage the neuropathic pain and Mr Toon’s anxiety.[189] Mr Toon explained that Dr Christie became uncomfortable prescribing him suboxone, and he started seeing Dr Damien Mead who specialised in addiction and chronic pain. Suboxone is generally only given in a dosage for one day. Mr Toon had to travel daily from Hendon to the pharmacy in the Adelaide Train Station to collect the daily dose.[190] This trip into the city terrified Mr Toon as he still had large holes in his forearm that made him feel vulnerable and ‘like a circus freak’.[191]
[188] A brand name for pregabalin.
[189] T47‑T48.
[190] T49.
[191] Ibid.
Mr Toon described experiencing significant anxiety and sleep deprivation at this time. He was still using illicit substances, but less frequently. These included MDMA and Meth.[192] In relation to his left arm, a nurse would see him at home to change the dressing.[193]
[192] T50.
[193] T51.
In relation to his employment, Mr Toon said that he had accumulated sick and annual leave, which he was able to utilise whilst he was in hospital and post admission.[194] In mid‑2018, Mr Toon sought a return to work at OTR. However, they were not prepared to allow his return, given the nature of his arm injury. Mr Toon’s employment was terminated, leaving him in financial hardship and causing exacerbation of his depression.[195]
[194] T52.
[195] Ibid.
On 6 June 2017, Dr Andrew Lawlor, psychiatrist, reviewed Mr Toon at the QEH. He noted Mr Toon’s previous poly‑substance abuse, and his admission to Cramond Clinic in November 2016. Dr Lawlor reported that Mr Toon had been referred by his psychologist, following an appointment where he was agitated and paranoid. He had told her that he was being spied on, and his computer had been hacked. Dr Lawlor imposed an Inpatient Treatment Order (ITO), given Mr Toon’s drowsiness, paranoia and drug induced psychosis. This involved a further admission to Cramond Clinic. It was noted that Mr Toon was still acquiring and using illicit substances.[196]
[196] Tender Book pp 2211-2015.

In a more recent Court of Appeal decision in Western Australia of East Metropolitan Health Service v Ellis[853] (Ellis) the court noted that causation can be established through inference where direct proof is not available. However, circumstantial evidence must be ‘sufficiently strong and coherent’[854] to prove causation. Expert opinion evidence must be taken into account and accorded such weight as appropriate. If the cause of an outcome is unclear or the subject of debate between experts, a court’s role is to determine causation on the balance of probabilities.[855]
[853] [2020] WASCA 147.
[854] Ibid at [264].
[855] This principle was applied in Circular Head Fencing P/L v Motor Accidents Insurance Board [2017] TASFC 6 at [84].
When determining causation, the court must take into account, and consider the circumstances of the plaintiff, rather than the ‘reasonable person’.[856]
[856] See Varipatis v Almario (Varipatis) [2013] NSWCA 76 (Varipatis).
In Mr Toon’s case, given his confusion when he awoke on the morning of 19 April 2017, the medical records and the expert medical evidence are determinative in considering causation. I have set out my preference for the expert opinions of Mr Berger and Mr Westcott, regarding what occurred in relation to Mr Toon’s attendance at the QEH, and the extent of his arm injury when he first presented. Both surgeons opine that Mr Toon had suffered a catastrophic crush injury due to a prolonged lie, likely caused by his intoxication due to his drug use, over 18 April.
The crush injury was proved by Mr Toon’s extreme pain upon waking on 19 April, and his inability to move his left arm. He did not recover movement in his arm by the time he presented to the QEH. I find that Mr Toon’s condition at the time he sought medical treatment, was such that he had suffered irreversible damage to the muscles, nerves and other soft tissue in his left forearm. In doing so I adopt the opinions of Mr Berger and Mr Westcott, in preference to those of Dr Tomlinson and Professor Lane.
In reviewing the medical evidence and my conclusions in relation thereto, I find that the evidence of Dr Chan, Mr Berger and Mr Westcott provide a clear, rational and reasoned explanation of the medical processes that led to Mr Toon’s condition upon his presentation at the QEH on 19 April 2017. I accept on their evidence, and particularly the evidence that upon arrival Mr Toon could not move his arm, that by the time he reached hospital the die was cast.
Unlike Professor Lane, I do not take this to mean that nothing could be done for Mr Toon. In fact, I find the opposite in relation to the attempts made by Dr Chan and other QEH staff to save Mr Toon’s arm.
I find that the medical management, and treatment of Mr Toon at the QEH over 19 and 20 April 2017 was extensive and did not contribute to his adverse outcome.
I find that what Mr Westcott and Mr Berger meant, as explained by them, was that the ischemic processes in Mr Toon’s arm had commenced well before he arrived at the QEH, and that whilst all attempts were made to save the left arm, as they did, Mr Toon was left with significant muscle and tissue loss.
I make that finding on the basis of the evidence I accept from Dr Chan, Mr Westcott and Mr Berger that Mr Toon presented with serious pain in his left arm, yet he could not move it; that he had fallen to the floor sometime during the night and had been lying on his arm for a significant period of time; and as a result he had suffered a catastrophic crushing injury to his left forearm, together with a brachial plexus injury which set off the chain of events that led to his transfer to the QEH. I accept as accurate the evidence of Mr Westcott that the combination of Mr Toon lying on his arm for an extended time, his late presentation, and poor presentation on arrival, all pointed to a poor outcome.
Decision on Liability
My conclusions on liability and causation lead to a conclusion that Mr Toon’s action is to be dismissed.
Damages
Although the findings I have made regarding liability result in a dismissal of this action, should I be found to be in error, I briefly set out the basis upon which I would assess damages. In doing so, my calculations are based on Mr Toon now being 34 years of age.
I accept Mr Toon’s evidence regarding the impact on his life of his left arm injury, his multiple surgeries and his ongoing restrictions. I also accept that as a result of his compression injury/compartment syndrome he has suffered a loss of function in his left forearm, wrist and hand.
However, since his injury, treatment and rehabilitation, Mr Toon has in some way turned his life around by ceasing the use of illicit drugs and following medical advice to improve his arm function. He deserves credit for the hard work he has put in to improve his lifestyle, including finding avenues to improve his physical capacity.
I have set out and will not repeat, Mr Toon’s evidence and the medical evidence regarding his struggles both before, and after the arm surgery in April 2017. There was a significant period after the injury when he was quite disabled and reliant upon his family and friends to assist him. He could not work and was struggling to manage his pain and drug use. He was frustrated by his rate of recovery and ongoing pain levels. I do not have any concern that he was exaggerating his symptoms.
I accept that Mr Toon’s chronic pain affected his mood, his capacity to work, and his ability to cope with his ADLs. He relied upon assistance from his friends and family, particularly his brother.
I would assess damages on the basis that:
(i)between 19 April and 29 May 2017, whilst Mr Toon was a patient at the QEH, he suffered serious levels of pain, confusion and functionality, having no use of his left arm and hand. During this period, he underwent four surgeries;
(ii)upon release from the QEH, Mr Toon continued to require daily visits from the RDNS to dress his wounds. Between 29 May 2017 and May 2019, Mr Toon struggled with his mental health and drug induced psychosis. He was attending rehabilitationat times for his arm. He was not working. Mr Toon reported paraesthesia of his left forearm with a crushing pain in his wrist. He felt unsafe when away from home;
(iii)between May 2019, and the end of 2019, Mr Toon underwent further surgery to his arm but continued to struggle with the contraction of his fingers. His pain levels remained high, and he was prescribed Lyrica. By the end of 2019 he was starting to engage more with the community;
(iv)between the start of 2020 and the trial, Mr Toon’s mental health improved and he commenced work at Datacom in September 2020. He has continued to work in call centre positions, three or four days per week until trial.
Mr Toon underwent successful surgery in August 2021 to extend the tendons in his left index finger, and in 2023 he completed his university studies gaining a Bachelor degree of Psychology. His finger surgery now means he can type as required by his job. He is able to reach with his right arm. He has developed some strength in his left bicep and triceps.
Mr Toon now lives with no assistance, except from his housemates at times. He is able to perform his ADLs with some modifications. He engages in running activities, weight training and yoga. However, he still requires medication, including pregabalin (Lyrica) to assist with his pain levels. He struggles with chronic fatigue with pain impacting his sleep. He is prescribed nortriptyline for his nerve pain.
In assessing damages, I take into account Mr Toon’s pre‑injury functioning, including his poly‑substance use, his difficulties with employment and his psychiatric illnesses. These have been set out in detail in these reasons.
Mr Toon’s current impairment as a result of his left forearm injury was assessed by Dr Hand, in his report of 3 July 2022.[857] Applying the requirements of the AMA guides he assessed Mr Toon as having a 47% WPI for the neurological impairment of his left arm. This took account of the local damage to the muscles of Mr Toon’s arm as a result of the compartment syndrome and surgery, and the extensive injury to the three major nerves of the forearm at the level of the left elbow. Dr Hand described a moderately severe median nerve injury, a severe ulnar nerve palsy with wasting of the hypothenar and interossei muscles and significant weakness of the left‑hand function.
[857] Exhibit A1 at p 272.
Dr Hand described the left forearm as being ‘profoundly wasted, with hollowing out of both extensor and flexor compartments as a result of surgery and muscle necrosis’; that ‘there was gross wasting of all flexor muscles in the distal three quarters of the forearm’; and ‘extensive muscle atrophy and muscle loss as a result of necrosis in the extensor muscles from the level of the elbow to the wrist’ which ‘was held in a flexed position’. He described Mr Toon’s left hand as ‘grossly abnormal, with the thumb full flexed and all fingers flexed at the metacarpophalangeal and proximal interphalangeal joints’.[858]
[858] Exhibit A1 at p 279.
In relation to his psychiatric response to his physical injuries, Dr Bem, acknowledging Mr Toon’s pre‑injury psychiatric difficulties, assessed that ‘he may be left with a whole person impairment of 10% secondary to his arm injury’.[859]
[859] Exhibit A1 at pp 254-256.
His opinion was that Mr Toon’s overall WPI was largely consistent with his pre‑injury functioning, as I have set out when discussing Dr Bem’s evidence. I proceed on the basis of Dr Bem’s evidence in court that Mr Toon’s psychological state was largely consistent with his pre‑injury psychological functioning. In coming to that conclusion, I take into account Mr Toon’s evidence that of recent times his mental health was much better, describing it as having ‘really, really improved’.[860] I find this evidence was given in the context of Mr Toon’s life now being more settled, his engagement with more physical activity and his regular employment.
[860] T340.34.
There is no doubt that Mr Toon has sustained a very significant left arm injury. However, his background and pre‑accident functioning must be taken into account when assessing his losses. The assessment is also made difficult as no evidence was led by Mr Toon from family members or acquaintances regarding his post‑injury functioning. There was no evidence to corroborate Mr Toon’s evidence, or to explain it.
I would have regard to the following factors in assessing damages, namely that Mr Toon:
·has now been cleared to drive a motor vehicle;
·is now committed to his health and fitness. He attends Yoga several times per week; runs regularly, including participating in 5 kilometre Parkruns; has worked out at a gym; and now regularly uses dumbbells to increase his arm musculature; and goes hiking with his father and brother at Mount Lofty;
·now has wider outside interests, including listening to podcasts regarding history and politics; and
·has expressed interest in attending a pain clinic, to determine pain management strategies that would see a reduction in his use of pain medication.
I agree with the submission of the respondent’s counsel that Mr Toon presents as a person of great resilience, given the extent of his injury, his very difficult childhood; and his previous very significant poly‑substance abuse. However, I accept that his arm injury has an ongoing impact upon Mr Toon’s functioning including his psychological functioning. He is very aware of his arm injuries and has some social phobia as a result. He can no longer play the guitar or compete in Japanese martial arts.
Heads of Damage
(i) Non‑economic loss
Mr Toon’s damages are to be assessed pursuant to s52 of the CLA. He clearly meets the threshold in s 52(1).
Damages for non‑economic loss are determined by a scale from zero to 60, where the scale reflects 60 equal gradations of loss. Zero reflects an injury that does not justify an award of damages, and 60 an injury of the ‘gravest conceivable kind’. The assessment is known as an Injury Scale Value (ISV) and also impacts other heads of damage.
Mr Toon seeks damages based upon an ISV of 33, being an assessment of 55% of the most severe injury that could be suffered. In response, the respondent did not quantify an ISV, rather pointing to Mr Toon’s recovery and his ability to return to function despite his serious injury.
Mr Toon is a resilient person, who has worked hard to regain function in his left arm and hand. However, this does mean he did not suffer a very serious, and life changing injury. Mr Toon was in hospital for a significant period of time. He describes unbearable pain. He has been left with limited function in his left arm and hand, in addition to neuropathic pain. Although he has adapted, all aspects of his day‑to‑day life have been impacted. He will not improve further.
Mr Toon’s injury is complex as it involves damage to the hand, fingers and thumb, together with injury to the wrist and forearm. There will be no improvement. In all the circumstances I assess the injury at an ISV of 27. This equates to damages for an injury in 2017 of $83,200.00.
(ii) Past Economic Loss
Claim
At the time of his arm injury in 2017, Mr Toon was working between two and four shifts per week at the Mile End OTR, and his income was supplemented by Centrelink benefits. His university studies were on hold. He was working the most regularly as he ever had; his poly‑substances use and his mental health having impacted his work capacity.
From 21 November 2014 to 30 June 2015 Mr Toon’s gross earnings were $4,691.00. These increased in the following financial year, being the year before the arm injury, to approximately $18,740.[861] This level of income is supported by Mr Toon’s evidence regarding him working more to support his son.
[861] Tender Book at p 3840.
Mr Toon’s evidence was that OTR was not prepared to have him return to work with his injured arm. He received Centrelink payments for the remainder of the 2017 financial year and withdrew some monies from his superannuation fund. He claims a net loss of $18,600[862] for the 2019 and 2020 financial years; and half that sum, $9,300, for the 2018 financial year, as he was in rehabilitation for six months.
[862] His pre-injury salary.
In September 2020, Mr Toon began working for Datacom, starting three days per week. This was extended to four days per week in 2022. Mr Toon submits that if not for his arm injury he could have worked full-time with Datacom. He claims loss calculated at a weekly net amount of $350 per week to 30 June 2021, for a total of $14,405. In the 2022 financial year losses are claimed at $125.00 net per week, as Mr Toon was then working four days per week. This calculates out at $6,500
Mr Toon began work with Westpac in March 2023. His evidence was that he found the work fatiguing, and he was not able to complete his part‑time hours. His contract was terminated on 1 June 2023. He claims loss for the financial year of 2023 of $6,931.00.
Mr Toon obtained employment with Audika in August 2023 and claims a further loss for the 10 weeks he was unemployed from 1 July 2023, until he commenced work at Audika. This is a claim of $10,640.00.
Mr Toon’s income at Audika is based upon a net hourly rate of $24.00. He works three days per week. His case is that he works these lesser hours as a result of his ongoing left arm pain, and fatigue. An ongoing loss of $365.00 net per week is claimed for the two days per week of lost income. Between 21 August 2023 to 1 August 2024 (49 weeks) the loss claimed is $17,885. A further year of losses after trial, would equate to a loss of $18,980.00.
The total past economic loss claimed, (including post trial loss) is $121,841.00. Superannuation losses at 11% are claimed at $13,402.51.
Assessment
Although I accept that Mr Toon’s arm injury has had a significant impact upon his work capacity, particularly in the 12 to 18 months after the injury, it was not the sole reason that he was not always in full‑time employment. Mr Toon’s serious poly‑substance abuse from about 2014, and increasing significantly in 2015, caused multiple issues for him, including severe mental health difficulties. These have been previously set out, and impacted his work capacity.
In 2016 Mr Toon became suicidal and continued to consume amphetamines, methadone and Valium. His drug use had increased by the end of 2016, and continued at significant levels throughout 2017, requiring hospitalisation at times. He was only discharged eight days before he suffered his arm injury. Mr Toon never had the capacity to work full‑time, or even extended part‑time hours before his arm injury. The evidence is that Mr Toon’s income dropped significantly between July 2016 and April 2017 to $9,000.00
There is no evidence that Mr Toon would have been able to work full-time hours, or in fact continue to work at all, even if he had not suffered the arm injury.
On review of the evidence, I am not persuaded that at the date of his arm injury, Mr Toon had the capacity to work on a full-time basis, or on a consistent basis in his part‑time roles. He was still in the grips of a serious drug addiction and severe mental health difficulties
I would assess past economic loss upon the basis that if Mr Toon had not suffered his arm injury he would have continued to work on a part‑time basis. There is no evidence that he would have stopped abusing poly‑substances. He also would have required some time away from work due to his compartment syndrome surgery in any event, and for rehabilitation of his arm.[863]
[863] Surgery would have been required in any event on 19 April 2017 to release the compartments in Mr Toon’s arm. There would have been a period of recovery after that surgery, even if there was no negligence.
I accept that after his arm injury, OTR would have been concerned about Mr Toon being able to complete his duties on return to work and without suffering further injury. However, there is no evidence to support a claim that Mr Toon had no capacity to return to work in late 2018, 2019 and 2020. I do not accept that Mr Toon could not have returned to full-time work by September 2020 for Datacom, only as a result of his arm injury and its consequences.
I am also not persuaded that Mr Toon’s arm injury was the sole reason Mr Toon did not seek full‑time work hours. The claim for past losses is limited to losses related to the arm injury and any psychiatric response thereto. These damages are modest.
I would assess Mr Toon’s past economic loss taking account of the following:
(1)That from 19 April 2017 to 30 June 2020 Mr Toon would have earned approximately $20,000 net. I do so by applying a discount to his claim to take into account his pre‑accident serious drug use and mental health issues.
(2)I make no allowance for any losses between September 2020 and March 2023 when Mr Toon was working at Datacom, as I am not persuaded that Mr Toon would have worked full-time even if not injured. He had never previously worked on a full-time basis for a number of reasons, including his drug addiction and mental health issues.
(3)I am not persuaded that Mr Toon’s difficulties at Westpac in 2023 were necessarily causally related to his arm injury, given he suffered from fatigue issues before his injury due to his drug use and mental health difficulties.
(4)As a result, I would also make no allowance for Mr Toon’s period of unemployment between 1 June and August 2023.
(5)Mr Toon has worked three days per week at Audika since August 2023. This is during a period where Mr Toon’s health has improved, and he has stopped abusing poly‑substances.
Whilst I do not find that the sole reason for working part‑time is his arm injury, I am satisfied that Mr Toon’s arm injury has contributed to his inability to increase his work hours. This is largely due to his fatigue as a result of the stress on his left arm and hand in performing his work duties, his pain, and his pain medication. I assess Mr Toon’s past economic loss since August 2023 to date, at 75% of the amount claimed, being $27,648.75

I would therefore assess the total past economic loss at $47,648.75 net. Lost superannuation at 11% is $5,241.36.
(iii) Interest
Mr Toon’s legal team claim interest on past economic loss, past medical expenses and other special damages, and past superannuation. A rate of 6% is appropriate. I do not calculate the losses at this stage.
(iv) Future Economic Loss
Mr Toon’s ongoing work capacity has been considered by several of the medical experts.
Professor Hand in 2022 opined that Mr Toon has significant left arm deficits due to damage to his forearm muscles leading to muscle contracture, and extensive injuries to the three major nerves of the forearm. He assessed a 78% left arm impairment or a 47% WPI. These impairments are permanent. Professor Hand described Mr Toon’s left forearm as being functionally useless, and that the muscles in his left hand were significantly wasted. Professor Hand, in evidence opined that Mr Toon was not fit for work where he would be required to use his left arm in performing manual tasks. He opined that Mr Toon was fit to work in an office environment for eight hours per day, over five days per week, with some ability to take breaks to rest his arm.
However, both Professor Hand and Dr Wright opined that Mr Toon’s fatigue from the nerve pain in his left arm, and the medication to manage that pain, could impact his work hours. Dr Wright opined that four days per week, as Mr Toon was then performing, was likely the best Mr Toon could cope with.
The respondent argues that given Mr Toon’s proven capacity to adapt to his post‑injury circumstances, including to now being able to work four days per week, there must be a contingency considered, in assessing future economic loss, that Mr Toon will in the future work five days per week as opined by Professor Hand. The respondent’s position is supported by Mr Toon’s evidence that, since adopting a healthy lifestyle, and weaning himself off all non‑prescribed drugs in 2020 and 2021, his physical capacity has improved, including his left arm strength. He is now able to type fast enough for call centre work, has finished his psychology degree, and has plans to teach English as a second language. He is now cleared to drive a car. In evidence, Mr Toon confirmed a desire to work on increasing his work hours and exploring further medical options to improve his left arm pain levels.
I am not persuaded that Mr Toon’s ongoing loss of work capacity should be assessed on the basis of a permanent loss of 40% as claimed. I also do not commence the assessment of his future loss on a basis that, at April 2017 Mr Toon had a work capacity of 38 hours per week. He never worked those hours. Whilst physically he may have been able to work more hours than he did, he never did. He was impacted by his serious mental health issues and significant poly‑substance abuse.
I would assess Mr Toon as having a residual work capacity of 80%, taking into account the opinions of Dr Wright and Professor Hand, and Mr Toon’s ongoing nerve pain and issues with fatigue caused by that pain, and his medication.
I will not assess damages for future economic loss as updated multipliers are required. The court also needs to be provided with Mr Toon’s current wage rate, and work hours. The discount provided by the multipliers to be used, should be confirmed.
A further discount is to be applied to take account of the contingency that Mr Toon will increase his work hours, and income if he is able to pursue his plan to teach English as a second language. A further discount of 20% should be applied to take account of this contingency, and of Mr Toon eventually working days per week as opined as possible by Professor Hand.
Damages for future loss of superannuation are to be assessed once the final loss of future economic loss is calculated.
(v) Past Care / Services / Equipment
Mr Toon has made no claim for any voluntary past care provided to him for the period from the surgery until trial. This would appear, on the evidence, to be as a result of s 58 of the CLA providing that damages for gratuitous services are not to be awarded unless the services are provided by a parent, spouse, domestic partner or child of an injured person. No evidence was led that would qualify Mr Toon for damages. There is also no evidence that Mr Toon has paid for any care or services or purchased any equipment to assist with his arm injury.
(vi) Future Equipment Needs
Claim
Mr Toon has claimed the cost of equipment required to assist with his day‑to‑day domestic and work activities as recommended by Mr Bois in his evidence and report. These items are claimed from 34 years of age using a multiplier over the remainder of his life (49.46 years).
It is not disputed by the respondent that Mr Toon would be assisted by some of the items recommended, as Mr Toon is restricted in many bimanual activities, and tasks involving fine motor skills. However, at trial it had been over two years since Mr Bois had assessed Mr Toon. There was no pre‑trial review. There are also some differences between Mr Bois’ recommendations and those of Ms Dwyer.
The total claim for future equipment is $36,516.30. The cost of most of these items are relatively modest.
Assessment
The more significant items sought are dictation software, a two‑drawer dishwasher, a glass rinser, Thermomix and Dyson vacuum. Ms Dwyer was supportive of the need for most of these items, (except the Thermomix). I am therefore persuaded that most of the items would be of assistance to Mr Toon, allowing him to independently perform domestic tasks, and reducing the paid assistance.
I take account of the serious nature of Mr Toon’s arm injury, and the day‑to‑day issues for him. Whilst he has battled on, his condition will not improve as he ages, and his arm will likely deteriorate.
I assess the cost of equipment that will assist Mr Toon and enable him to be as independent as possible in the future at $32,000.00. This includes allowance for replacement, and applying a deferred multiplier.
(vii) Future Gratuitous Services / Paid Services
Claim
Mr Toon claims a significant level of services as follows:
·Domestic assistance at 3.8 hours per week to cover weekly general cleaning; major spring cleaning, and laundry tasks at $211.00 per week. This equates to $10,978 per year and totals $205,936.00 after the relevant multiplier is applied.
·Removalist costs, assuming Mr Toon will have to move at least once, at eight hours being $1,040.00.
·Professional handyman assistance for heavy tasks that cannot be completed by Mr Toon at 1.5 hours per month, or a weekly cost of $31.00. The total claim is $30,256.00.
·Window cleaning service at four times per year at $150 per clean or $11.50 per week The total claim is $11,224.00.
·Gutter cleaning at four times per year at the same cost as window cleaning for a claim of $11,224.00.
·Grocery delivery service at $15.00 per week for a claim of $14,640.00.
·Car washing once per month for a total cost of $899.40 per annum, and a total claim of $16,875.04.
The total claim is therefore $291,195.04.
Assessment
The nature of Mr Toon’s arm injury is such that he will have a permanent difficulty in performing heavy activities where both arms and hands are required. Most of the services claimed are of that nature. However, there are some items that I do not accept Mr Toon will require as a result of his arm injury. This is particularly as Mr Toon does not own his own home, and that he is unlikely to do so in the future. Items like gutter cleaning, window cleaning and all professional handyman services are unlikely to be paid for by Mr Toon. I am also not persuaded that Mr Toon could not do his own laundry. I accept that there may be occasional need for handyman services even if renting.
I assess damages on the basis of allowing domestic assistance of two hours per week, removal costs, and handyman assistance at six hours per year. I make no allowance for grocery delivery, as Mr Toon gave evidence that he is able to complete his weekly shopping.
In relation to car washing, I accept that Mr Toon would have difficulty washing a car. However, he has never owned a car and no allowance can be made for this service.
I calculate Mr Toon’s damages for future care:
Domestic Assistance                   $111.05 per week
Removal costs  $1,040.00 per one occasion
Handyman assistance                  $10.38 per week.
The weekly services are $121.43. When multiplied by the weekly multiplier of 968, there is a total for future services of $117,544.24. When once off removal costs are added, there is a total of $118,584.24.
I apply a 25% discount for contingencies to take account of Mr Toon’s pre and post injury serious poly‑substance abuse, his severe pre‑injury mental health issues and the multiple other challenges in his pre‑accident life on a long‑term basis and meant he could have required care and assistance. The damages for care would be reduced to $88,938.18.
(viii) Future Medical Expenses
At trial, Mr Toon was not having any regular medical treatment or other therapy beyond seeing his GP as required to obtain prescriptions for Lyrica. He was independently working on improving his mental and physical health. I have set out his evidence regarding his improved physical mental health from mid‑2020. He is no longer suffering depression.
However, Mr Toon would like to explore further pain management strategies and options to enable him to sleep better and reduce his fatigue. The court was told that Mr Toon’s Lyrica was provided at a cost of $19.32 per week and he uses Paracetamol at a cost of $4.08 per week. There was also a claim for psychiatric medication recommended by Dr Bem. I would make an allowance for the pain medication, but not the psychiatric medication, as there is no evidence that Mr Toon intended to take this medication, nor that he would seek any of the other psychiatric treatment suggested by Dr Bem.
In addition, it must be taken into account that Mr Toon had suffered from mental health issues, including depression and PTSD before his arm injury. He was at times using anti‑depressant medication.
The weekly multiplier for Mr Toon, who is now 34 is 968. Applied to the weekly pain medication cost of $23.40 the future sum is $22,651.20. I add an additional $5,000.00 for pain management, as I accept that if he had the income, Mr Toon would seek that treatment. I assess future medical expenses at $27,651.20.
I make no allowance for the claims made for physiotherapy, gym membership, therapeutic massage, or Yoga therapy. I am not satisfied that Mr Toon would take up this therapy, as he has made significant progress by his own fitness regime and strategies. The flexibility of doing ‘his own thing’ seems to suit Mr Toon’s lifestyle.
Summary of Damages

694      Non economic loss

695  $83,200.00

696      Past economic loss

697  $47,648.75

698      Past superannuation

699  $7,648.75

700      Future economic loss

701  To be determined

702      Past care / services equipment

703  Nil

704      Future equipment needs

705  $32,000.00

706      Future gratuitous / paid services

707  $88,938.18

708      Future medical expenses

709  $27,651.20

The total of damages assessed is $287,086.88 in addition to future economic loss, which is to be assessed once further detail is provided. In addition, interest is to be calculated at the date any judgment on damages is delivered.
Conclusion
Based upon the reasons I have set out, I dismiss Mr Toon’s claim.

694 Non economic loss	695 $83,200.00
696 Past economic loss	697 $47,648.75
698 Past superannuation	699 $7,648.75
700 Future economic loss	701 To be determined
702 Past care / services equipment	703 Nil
704 Future equipment needs	705 $32,000.00
706 Future gratuitous / paid services	707 $88,938.18
708 Future medical expenses	709 $27,651.20