Waller & Waller v Fmc & Burns (No 2) No. DCCIV-98-1796
[2004] SADC 67
•5 May 2004
WALLER v FLINDERS MEDICAL CENTRE and BURNS (NO 2)
[2004] SADC 67
Judge Lunn
CivilIntroduction
The plaintiffs have sued the defendants for damages for the alleged medical negligence of the 2nd defendant. In its defence the 1st defendant admits liability for the acts and omissions of the 2nd defendant after 1 July 1977. The 2nd plaintiff’s claim is limited to one for losses of consortium and services arising out of the disabilities of the 1st plaintiff, his wife. On 10 March 2004 I deemed that this action had been commenced by both plaintiffs against both defendants on 16 August 2001.[1]
[1] Waller v Flinders Medical Centre (No 1) – Jud No [2004] SADC 45, 10/3/04, 232 LSJS 342.
Overview[2]
[2] The facts set out in this Overview were generally not in dispute but in any event I find them proved on the evidence.
The 1st plaintiff (“the plaintiff”) was born on 1 April 1954 on Kangaroo Island where she continued to live until the end of 2003. She left school at the age of fifteen to become an apprentice hairdresser at a hairdressing salon operated by her mother in Kingscote on Kangaroo Island. Her mother died in November 1970 and shortly afterwards her hairdressing salon was closed down. The plaintiff transferred her apprenticeship to another hairdresser in Kingscote, Richard Ley.
On 12 April 1972 the plaintiff married the 2nd plaintiff who had been born on 22 March 1951. The 2nd plaintiff’s father owned and operated a sheep and cereal farm of 1500 acres on Kangaroo Island. The 2nd plaintiff worked for his father for minimal wages and supplemented his income with work as a wool classer. After their marriage the plaintiffs lived in a fairly primitive old farmhouse close to the home of the 2nd plaintiff’s parents and about 25 kms from Kingscote.
In the early years of her marriage the plaintiff enjoyed good health and led an active social and sporting life. She played competitive netball and tennis. Her first daughter, Nicole, was born on 25 December 1973. Some weeks after the birth she resumed work as a hairdresser. She completed her apprenticeship in 1974 and she then continued to work for Richard Ley.
In early 1975 the plaintiff was pregnant with her second child. On 1 April 1975 she consulted Doctor Alcorn, a general practitioner in Kingscote, complaining of back pain which prevented her from sleeping. She was tender over T6-T8, but an xray of her thoracic spine did not reveal any damage. On 17 April she complained to Dr Alcorn of numb legs and feet and continued back pain. She had decreased sensation below her breast level and some ankle clonus. Although he did not tell it to the plaintiff, Dr Alcorn feared she had Multiple Sclerosis (“MS”).
In 1975 the 2nd defendant was a specialist medical physician practising in Adelaide as a neurologist. Dr Alcorn referred the plaintiff to him. On about 22 April 1975 the plaintiff was admitted to St Andrews Hospital in Adelaide as a patient of the 2nd defendant and where he saw her on several occasions. The 2nd defendant found that she had some weakness in her legs, but mainly in the right leg and foot although with some “definite pain and temperature impairment on the left side”. He considered the problem to be at about T6. He performed a lumbar puncture and took a sample of her spinal fluid. On 24 April he wrote to Dr Alcorn stating, inter alia:
“The signs indicated a probable intramedullary lesion in the thoracic cord. This seemed to be either a post-viral transverse myelitis or a first episode of Multiple Sclerosis. …”
An analysis of the spinal fluid after 24 April revealed nothing abnormal which was not particularly consistent with post-viral transverse myelitis. The 2nd defendant gave the plaintiff a course of steroids. While in hospital her neurological signs remained fairly static with her major disability being hip flexion weakness with posterior column disturbance in the right leg especially. The 2nd defendant did not carry out any further investigations in an effort to reach a more definite diagnosis of the cause of the plaintiff’s symptoms. Her pregnancy was an inhibiting factor. She was discharged on 1 May and returned to Kangaroo Island. On 1 May the 2nd defendant wrote to Dr Alcorn saying, inter alia:
“… The diagnosis I think lies between the first episode of Multiple Sclerosis versus a transverse myelitis of postviral origin.
…
I have not mentioned the diagnosis of Multiple Sclerosis to the patient or her husband. I have told them that it is some type of loss of myelin in the spinal cord of an imflammetory (sic) nature and that I am hopeful that in time it will get better. I said there was no clear relationship to the pregnancy and that there was no indication that the child would in any way be damaged. …”
On 13 May 1975 the 2nd defendant further wrote to Dr Alcorn as follows:
“The results of this patient’s I.g.G in the C.S.F. indicate that she has .03 G per litre compared with the protein which was .10 G per litre. This means that 30% is I.g.G. which is a finding greater than normal and consistent with a diagnosis of Multiple Sclerosis. …”
After her discharge from St Andrews Hospital the plaintiff did not return to her hairdressing work. Her second child, Tracey, was born on 2 November 1975. At about this time the plaintiff’s continuing symptoms in her lower body began to resolve and by about mid 1976 they had completely disappeared. By mid 1976 she was again playing competitive netball. She had resumed part time hairdressing work as well as caring for her two young children and running the family home. For all intents and purposes her life returned to what it had been before the onset of the symptoms in April 1975.
In 1977 the 2nd defendant became the Senior Director of Neurology at the Flinders Medical Centre and in 1978 an Associate Professor of Medicine at Flinders University. When the plaintiff saw the 2nd defendant after 1977 it was as an outpatient of the Flinders Medical Centre.
In the 1978 netball season the plaintiff was the playing coach of the A Grade team of the Dudley United Netball Club. In about early May 1978, while training for netball, she experienced vibrations in her knee cap which she feared were a recurrence of the problem which she had had in 1975. Her left leg began to feel numb and cold with tingling especially below the knee. She had intermittent aches in the lumbar region and around her waist. She continued to play netball, but she felt she was not running as well with her left leg. On a referral from Dr Alcorn she saw the 2nd defendant on 13 June 1978 at the Flinders Medical Centre. On examination he found no weakness in her legs, but there was lack of sensation to pin prick below T10 on the left and dyasthesiae were present in the right foot. He wrote to Dr Alcorn on that day, inter alia, as follows:
“She appears to have signs again of an intramedullary thoracic cord lesion on this occasion mainly on the left side involving particularly the posterior columns. Although the condition is not wide disseminated the second episode involving the other side of the spinal cord makes a diagnosis of Multiple Sclerosis much more likely bearing in mind also the previous elevation of her spinal fluid gammaglobulin.
… I told her that I though her leg would recover by itself in time. I discussed the whole problem with the patient and her husband at some length. I explained that she might have a benign form of Multiple Sclerosis but that even now I couldn’t be certain and in any case it seems to be behaving in a rather benign way. Obviously there is a very definite chance that she might experience future episodes elsewhere and if they become a problem I would be only too pleased to review her. …”
The 2nd defendant did not discuss with the plaintiffs the possibility of any further investigations being carried out to confirm or refute the diagnosis of MS. This was the first occasion on which MS had been mentioned to the plaintiffs. The plaintiff interpreted what was said by the 2nd defendant, and I infer subsequently by Dr Alcorn, to mean that she did have MS. She researched information about MS and discussed it with Dr Alcorn. He apparently told her that if the condition progressed she might die before she was 40. She learnt, as was the case, that there was no treatment or cure for MS.
After seeing the 2nd defendant in June 1978 the plaintiff was tired, unwell and walking with a bad limp (142). She stopped playing sport and apparently gave up part time hairdressing work.Her ability to look after her home and family was impaired and her mother-in-law was assisting her daily in some tasks such as washing, hanging out clothes and ironing and looking after her children on occasions. In 1979 the plaintiffs had a new transportable house erected on the farm which became their family home. It was built to standard specifications and did not cater for the plaintiff’s increasing disability. In October 1979 the plaintiff underwent a tubal ligation to prevent her having any further children as Dr Alcorn had advised her it would be unwise for her to have more children, which she otherwise wished to do, in view of her having MS.
From about mid 1979 the condition of the plaintiff’s legs deteriorated more rapidly. They became weaker, she limped more and she tended to lose her balance. She was unable to run and play any sport. As a result of this deterioration Dr Alcorn again sent her to the 2nd defendant. He saw her at the Flinders Medical Centre on 5 December 1979. On examination he found hyperactive knee and ankle jerks with clonus at the right knee, impaired vibration sense at the left knee and ankle and subjective dyasthesiae below about T12. On that day he wrote to Dr Alcorn, inter alia, as follows:
“There is still no evidence of disseminated disease but her thoracic cord lesion is now more obvious. I don’t feel inclined to do any further investigations although visual evoked responses would be of interest. I think she needs lots of reassurance at this stage and I have tried to give her this. It might be worth trying the effects of Baclofen, say 10 mgms b.d. increasing gradually if necessary to 25 mgms b.d. This might alleviate the spasticity and enable her to walk a little better. …”
The 2nd defendant prescribed her Baclofen, which she has taken ever since to relieve the muscle spasms in her legs. He did not raise with the plaintiff any doubts about the diagnosis of MS or discuss or recommend any further investigations or tests which might assist in confirming or refuting that diagnosis.
The plaintiff’s condition thereafter gradually worsened. In March 1980 she had an episode of faecal urgency and incontinence and another later in the year. She was increasingly dragging her right leg and feeling very tired. On 16 September 1980 she again saw the 2nd defendant at the Flinders Medical Centre. On examination he found she had weakness of the hip and knee flexion, greater on the right side, and a paraparetic type of gait. On that day he wrote to Dr Jeffries, a partner of Dr Alcorn, inter alia, as follows:
“Her neurologic signs remain confined to the thoracic cord. I still believe that demyelination is the most likely pathogenetic mechanism although it is to be noted that she does not have, at the moment, evidence of disseminated neurologic lesions. The nature history so far is quite in keeping with this form of Multiple Sclerosis and her recent exacerbation may well have been triggered by increased physical stress and demands placed on her.
As she seems to be improving a little I would not suggest a further course of steroids at the moment although these could be given if her disability does progress. … I have advised her to try and rest a little more and I am hopeful that with these measures alone some degree of improvement will occur although it seems likely that some of her neurologic signs are now of a permanent nature. I am hopeful that the faecal incontinence will not be a persistent problem … .”
He did not recommend any further tests or investigations to confirm or refute the diagnosis of MS. In the first half of 1981 the plaintiff’s ability to walk continued to diminish. At some time between about March and July of that year she started to use a wheelchair which improved her mobility around her home. Prior to the wheelchair she was using a walking frame on occasions. There were some episodes of bladder incontinence. At about this time Dr Alcorn provided her with a shower chair as she could no longer stand under the shower. She began to do tapestry work to occupy herself as she was largely immobile.
On a recommendation from a physiotherapist on Kangaroo Island the plaintiff went to the Multiple Sclerosis Clinic at Memorial Hospital in Adelaide. In September 1981 she spent two weeks as a patient at the Memorial Hospital with daily physiotherapy treatment and other assistance at the Multiple Sclerosis Clinic. On 10 September she was seen at the Memorial Hospital by the 2nd defendant. She said that he was surprised that she was then using a wheelchair. He reported that she could then only walk a few paces and had to use a wheelchair. Examination revealed bilateral ankle clonus and a vague sensory level at about T7. On that day he wrote to Dr Alcorn, inter alia, as follows:
“Her neurologic signs remain confined to the thoracic cord involving the cortico-spinal tracts greater on the right and the posterior columns. Despite the fact that she has no neurologic abnormalities rostral to the thoracic cord has always raised slight doubts about the diagnosis but I still think that demyelination is the most likely explanation rather than a spinal cord angioma.
I am afraid that with this type of insidious, progressive paraplegia that occurs in M.S., significant recovery is unlikely. … She is fortunate in that she maintains reasonable sphincteric control and her mental attitude has always been exemplary.
…
… The question of linoleic acid in the diet and also transfer factor remain controversial but I think at the present time it is fair to say that there is no agent that can really offer a significant chance of improvement.”
While at Memorial Hospital the plaintiff was fitted with a calliper to give some support to her right foot. She was also given a daily programme of exercises which thereafter she regularly performed at home with assistance from her husband.
In late 1981 the plaintiff wrote to the 2nd defendant concerning possible treatment of her MS through a “transfer factor” involving her sisters who were prepared to assist. She told the 2nd defendant in her letter that she had improved since September 1981. The 2nd defendant replied to her on 7 January 1982 saying that it was not practical for her to be involved in a trial of treatment through any “transfer factor”.
In about early 1982 the plaintiff commenced taking a large number of vitamins and minerals and embarked on reflexology and massage treatment from a friend which lasted for most of that year. Although the doctors would not relate it to the reflexology, her mobility started to improve and by April she was again walking with the aid of a frame and by August she had abandoned the walking frame in favour of a stick. By September she was walking without a stick, although still with a limp. On 2 December 1982 her father was killed in a road accident. It was feared that the emotional stress from his death might precipitate a recurrence of her symptoms as could happen with MS but her progressive recovery continued unabated. In January 1983 she returned a wheelchair to the Kangaroo Island Hospital as she thought she had no further need for it and in that month she was helping her mother-in-law with the cooking for the shearers on the farm. She still had a problem with her right leg which prevented her from running or playing sport, but she was able to resume most of her domestic duties and to engage in regular social activities. She was walking reasonably well but sometimes she needed some support. She did not walk outside the house very much. On 28 November 1984 she was again examined by the 2nd defendant. He found that she still had some weakness in her legs, and particularly in her right foot, and that her gait was spastic. She was fully ambulant. In February 1986 the plaintiff’s mother-in-law died.
In about March 1986 the plaintiff’s condition started gradually to deteriorate and she became weaker and less able to walk. In July 1986 the 2nd plaintiff’s father put his farm up for sale, but it was not sold. In anticipation of having to find alternative employment the plaintiffs investigated obtaining land in Kingscote on which to set up a new hairdressing salon. It is unclear whether the plaintiff was hoping to be able to resume her hairdressing career in that salon or whether it was for her elder daughter who was interested in a hairdressing career. No such hairdressing venture was ever pursued.
By later in 1986 the plaintiff’s condition, and particularly the use of her right leg, had markedly deteriorated. By November she was suffering regular spasms in both legs and was again using a walking stick. She was unable to do much of her housework and she employed her sisters to do some cleaning work in the house. Her mother-in-law was no longer available to assist her. Her husband was also doing more of the housework. In January 1987 she went on a houseboat holiday. She borrowed a wheelchair for the occasion to give herself additional mobility, but she did not use it after she returned home.
In early 1987 the plaintiff’s general practitioner recommended a course of cortisone injections, but she suffered an adverse reaction and did not complete the programme. She was becoming increasingly worried and anxious about the deterioration of her lower body. In February 1987 her doctor arranged for her to obtain a wheelchair which was tailor-made for her requirements. However, when the wheelchair arrived later in 1987 she refused to use it and put it out in the shed. She desperately did not want to be confined to a wheelchair and was determined to keep ambulant as best she could.
In May 1988 the plaintiff twisted her ankle. She was unable to hop on her other leg and so for the first time she used the new wheelchair. She has been confined to a wheelchair ever since. Her condition rapidly deteriorated after she twisted the ankle. She was able to stand, but not to walk. In about early June 1988 she started regularly to be incontinent of urine which was embarrassing and a social disability.
On 21 June 1988 the plaintiff again saw the 2nd defendant at the Flinders Medical Centre. At that time she could no longer walk and could only barely stand. She had become incontinent of urine and had no rectal or vaginal feeling. Examination revealed spastic paraplegia of the lower half of her body with a sensory level at about T10. The 2nd defendant wrote to Dr Alcorn, inter alia, as follows:
“Her signs then are in keeping with the previously observed deficit of a thoracic cord lesion involving the corticospinal tracts and posterior columns. Multiple sclerosis is the presumed diagnosis despite the abscence (sic) of disseminated lesions. The pattern of involvement and the exacerbations and remissions would be quite in keeping with this diagnosis but there is always that little doubt in one’s mind when the signs are so localised. It is for this reason that I have arranged for her to have a spinal cord M.R.I. just to exclude other much less likely possibilities such as spinal A.V. malformation.
Hopefully she will improve spontaneously but this cannot be guaranteed. … She maintains her brave approach and attitude to her disease although clearly now she is very disabled but gets by because of her strong personality and her very supportive husband.”
At this consultation on 21 June 1988 the plaintiffs learned for the first time that the 2nd defendant was not sure that the plaintiff had MS. They were shocked by this as since 1978 they had never been told that there might be any other possible diagnosis than MS for the plaintiff’s condition. The plaintiff said to the 2nd defendant words to the effect, “If it is not Multiple Sclerosis, what could it be?” and he replied, “It could be a tumour on the spine.”
In June 1988 MRI imaging was in its infancy in Adelaide. The sole available MRI scanner was at the Royal Adelaide Hospital where it had only been operational for a short time. The 2nd defendant prepared a written request to Dr Robertson[3], a radiologist, for him to carry out an MRI scan on the plaintiff. Both this request and the MRI scan itself were not able to be located for the purposes of this trial and are presumed to have been destroyed. The plaintiff underwent the MRI scan on 23 June 1988. Dr Robertson gave the following written report to the 2nd defendant:
[3] The plaintiffs’ counsel opened their case on the basis that he would call Dr Robertson. Subsequently the defendants amended their defence concerning this MRI scan and the plaintiffs, without criticism from the defendants’ counsel, did not call Dr Robertson. I ignore what the plaintiffs’ counsel said about his proposed evidence in his opening.
“M.R.I. SCAN OF THE SPINE:
T1 and T2 sagittal scans were obtained.
No evidence of any A.V.M. or tumour was seen from the T6 region down.
No definite evidence of any demyelination lesions was seen either.
DR.A.ROBERTSON TW 24/6/1988”
On 19 July the 2nd defendant wrote to Dr Alcorn concerning the MRI scan as follows:
“Mrs Waller had a normal M.R.I. scan of the spine, there being no evidence of tumour or A.V. malformation. Hence, it seems to support the diagnosis of multiple sclerosis even though no areas of demyelination were seen on the scan.”
While she was in Adelaide in June 1988 the plaintiff went to the MS Clinic, which by then had moved to Klemzig, to obtain advice and assistance about her incontinence problems. It was through that Clinic that she obtained pads, nappies, mats and other equipment to deal with her incontinence difficulties. She did not go there again after 1988 as it was no longer providing physiotherapy services. In August 1988 she went to the Kingscote Hospital to learn self-catheterising procedures which she has used ever since to void her urine. In about October 1988 she underwent several dental procedures to remove all the amalgam fillings from her teeth in a sincere, but misguided, belief that the amalgam fillings were contributing to her illness. In about November 1988 she made inquiries overseas about treatment for MS with snake venom, but wisely she did not pursue it. After the 1988 MRI she again believed that she definitely had MS and greatly feared the consequences of the likely progression of that disease on both her life expectancy and her quality of life.
From about June 1988 until the next major development in 1997 the plaintiff lived in the house on the Kangaroo Island farm. A few minor modifications were made to it to facilitate her utilising it, but it was not particularly suitable accommodation for her with her disabilities. She could only move around in either a self-propelled wheelchair or a car driven by someone else. She was able to perform many light household tasks, but much of the burden of running the home fell onto the 2nd plaintiff and their children.[4] The 2nd plaintiff was either at home with his wife or was nearby on the farm and able to be summoned quickly by the plaintiff by mobile phone if she needed him. The plaintiff became very dependent upon her husband. From March 1989 the 2nd plaintiff received a carer’s allowance from the Department of Social Security of about $70 per fortnight for the assistance he was giving to the plaintiff.
[4] By early 1992 both daughters had left home.
From mid 1988 onwards the plaintiff’s social and recreational activities became restricted. She could only go to places where there was access for her wheelchair and in any event she did not like being seen in public in the wheelchair. She was also fearful of embarrassment from incontinence episodes.
In the early 1990s the plaintiff expanded her hobby of dressmaking. She has a flare and talent for it. Before this time she had only ever made clothes for her immediate family. She had won prizes for dressmaking at the Kangaroo Island Show. She had her sewing machine modified so that she could operate it only with her hands. She began to make women’s clothing, including bridal dresses and formal wear, for women on Kangaroo Island who would come to her home to place their orders and for fittings. She made a small charge for her time, but only ever treated it as a hobby and not as a business.
In late 1989 the plaintiff commenced to have three-monthly Depo-Provera injections to prevent her periods as mensuration complicated her incontinence problems. In January 1990 she started taking sleeping tablets which she has continued to take ever since. In March 1990 she suffered a deep vein thrombosis and spent a substantial period in hospital. In early 1991 she first consulted Dr Tucker, a urologist and gynaecologist, who prescribed her medication for her incontinence problems. By mid 1991 her mobility had further diminished so that she was no longer able to stand unaided. This caused difficulties for her in transferring from her wheelchair to the shower chair and the toilet, but she was generally able to manage this without undue difficulty, although sometimes with assistance from her husband. In mid 1992 she was diagnosed as suffering from anaemia and has since been taking tablets for this condition. On 1 December 1993 she knocked her ankle on the wheelchair which led to a significant ulcer developing which took six years to heal. In mid 1996 she was diagnosed with thyroid problems and a goitre for which she has since been taking medication.
In about mid 1997[5] the 2nd plaintiff’s father ceased farming and went to live in Kingscote. Five hundred acres of his 1500 acre farm were transferred to the plaintiffs jointly and thereafter they farmed it in partnership. They also obtained a nearby farmhouse which they let out as a holiday house. Thereafter, the plaintiff did the book work for their farm and the holiday house.
[5] The evidence of the 2nd plaintiff at T772 gave the date as 1987. Later he gave further evidence at T806-7 apparently of the same transaction but with a date of 1997. The plaintiff’s evidence seems to suggest that it was 1997.
On 6 March 1997 the plaintiff’s then general practitioner, Dr Jeffries, had referred her again to the 2nd defendant for a review. He noted in his letter of referral that there had not been any progression of the neurological symptoms and that she was coping well. The plaintiff saw the 2nd defendant at the Flinders Medical Centre on 22 July 1997. On examination he found that she had no power at all in her legs and no feeling below her breast line. She had a complete sensory loss at about T6. He reported to Dr Jeffries, inter alia, as follows:
“She undoubtedly has a lesion in her thoracic cord and as you know a provisional diagnosis of multiple sclerosis has been made although this is not disseminated anatomically. Admittedly her symptoms were intermittent at first but the complete absence of signs above the thoracic cord and the rather dense neurological deficit with complete spinothalamic involvement is a little unusual in my experience for multiple sclerosis. It was for that reason that an M.R.I. scan was done in 1988 thinking that she might have some other intrinsic cord lesion such as a vascular malformation. I still have some doubts about the diagnosis and after discussing things with Vivien I am arranging for her to have another M.R.I. scan of her cord. The technology is a little better now and although it is unlikely that one will find a treatable lesion, I think it is important to try and establish a diagnosis with more certainty. …”
By November 1997 MRI technology had substantially improved since 1988. On 3 November 1997 the plaintiff had an MRI scan of her thoracic spine at the Flinders Medical Centre. The radiologist’s report stated, inter alia, as follows:
“FINDINGS: there is a well defined oval expansile intramedullary lesion which extend from the C7-T1 level to the T4/5 level. It measures approximately 8cm in length.
…
CONCLUSION: Large intramedullary lesion likely to be longstanding. The most likely diagnosis is a slow growing cystic cord tumour possibly a haemangioblastoma …”
On about 5 November the 2nd defendant rang the plaintiff to tell her that she did not have MS, but a tumour on her spine. He told her that he wanted to discuss the matter with Mr Brophy, a neurosurgeon at the Flinders Medical Centre, as to what treatment might be possible. On 7 November the 2nd defendant wrote to Dr Jeffries, inter alia, as follows:
“Please find enclosed a copy of the M.R.I. scan report of Mrs Vivien Waller which is extremely interesting.
OI have rung Vivien and told her it looks like she doesn’t have multiple sclerosis but I wish to discuss the film with a number of other colleagues before we decide if anything further should be done, i.e. decompression or biopsy. As you know I have always been concerned about the diagnosis of multiple sclerosis for/a variety of reasons and while it would be intriguing to find out I don’t want to subject her to any procedure if it going to run the risk of making her worse. On the other hand if there is something that we can do that might improve her that would be wonderful. …”Upon his review of the MRI scan the 2nd defendant thought that the tumour was some sort of ependymoma rather than a haemangioblastoma as suggested by the radiologist.
After some delay arrangements were made for the plaintiff to be admitted to the Flinders Medical Centre as an in-patient on 16 February 1998. From telephone discussions with the 2nd defendant and his staff she believed that Mr Brophy would then be performing spinal surgery to remove the tumour. On the evening of 16 February the plaintiff spoke briefly to the 2nd defendant in a ward at the Flinders Medical Centre. The 2nd defendant did not examine her but other doctors there had done so. He told her that he and Mr Brophy were to review her scans and then decide what was to be done. That was the last occasion on which the plaintiff saw the 2nd defendant. Early on the morning of 17 February she had a further MRI scan. Later that morning Mr Brophy, but not the 2nd defendant, saw her and told her that he was not going to operate because the nerve damage was too great and she was not going to get any better quality of life. He suggested that she have another MRI in six months time to see what was the growth rate of the tumour. She was discharged from hospital later that day and went home to Kangaroo Island. She had been desperately hoping that the surgery which she expected to have would improve her disabilities and she was devastated by being told there was to be no surgery.
The plaintiff arranged for Dr Jeffries to have her referred to another neurologist for a second opinion. On 21 April 1998 she saw Dr Andrew Black, a neurologist. He referred her to Professor Nigel Jones, the Professor of Neurosurgery at the University of Adelaide. He first saw the plaintiff on 17 August 1998. He wrote to Dr Jeffries, inter alia, as follows:
“Her MRI scan shows an intramedullary tumour which was reported to be most likely a haemangioblastoma. … There is no nidus of enhancement after gadolinium which I think would be very much against the diagnosis of haemangioblastoma and the appearances to me are more like an ependymoma.
I spent considerable time with Mr and Mrs Waller explaining the implications of this. They have been told that there is no indication for surgery and although I would agree that the chances of getting any recovery in her legs, given that she has been paraplegic for ten years, are zero, I do have some concerns about the outlook for her upper limb function. She feels that over the years the sensory level has risen on her trunk a little and she was unaware of the axillary numbness. She has definite evidence of C8 involvement with her very brisk finger reflexes and Hoffmann’s reflexes. She is only forty four years old and I think that the natural history of this sort of tumour would suggest that her arms are very likely to be significantly affected at some stage in the future. Although surgery at this time would carry some risk to her distal upper limb function, it is my feeling that this risk would be less than the natural history of the progression and it would be preferable to remove the tumour now rather than waiting until her arms are affected and recovery would be less likely. …”
On 16 October 1997 Professor Jones operated on the plaintiff’s thoracic spine at the Royal Adelaide Hospital. On opening the spinal cord he found to his surprise that the tumour was an intramedullary epidermoid cyst. He was able to remove it completely. The operation was successful in that it did not worsen the plaintiff’s symptoms. Minor symptoms in her upper body were improved after the operation. Her lower body paraplegia remained unchanged. She was discharged from the Royal Adelaide Hospital on 24 October and she returned to Kangaroo Island. However, she had to be re-admitted to the Royal Adelaide Hospital on 25 October as the staples on the operation wound had broken open and it had to be restitched. Subsequently she has had reviews and follow up MRIs with Professor Jones.
After she recuperated from the spinal operation life for the plaintiff continued much as it had from mid 1988. On 22 July 1999 she was first assessed by Ms Morgan, an occupational therapist. On 22 October 2000 her daughter Tracey was married. While she made dresses for the bridal party at about this time she largely lost interest in dressmaking and gave up doing such work for others. In March 2001 some airconditioning was installed in her Kangaroo Island house as she was having difficulties because of her paraplegia in coping with extremes of hot and cold. On 24 August 2001 she spent $2090 having a swivel seat installed in the front passenger side of the family’s Commodore car so that she could more easily transfer between her wheelchair and the car.
The 2nd plaintiff continued to be the plaintiff’s constant carer as well as running the farm. However, in about 2001 the strong marital bond between the plaintiffs started to break down. In February 2002 the 2nd plaintiff became ill. In May 2002 he had a colonoscopy and was diagnosed with diverticulitis, a condition involving inflammation of the bowel. There was no medical evidence about the cause of this condition or whether it was related to the stresses imposed on the 2nd plaintiff by reason of his wife’s paraplegia. In January 2003 the 2nd plaintiff became very ill and underwent major surgery to remove part of his bowel. The plaintiff believed that this surgery altered his personality and that after this operation he was a different man. At about this time he formed an ongoing romantic relationship with a female friend of the family which was the cause of much conflict between him and the plaintiff.
On 15 October 2002 the plaintiff was examined for medico-legal purposes by Dr Flynn, a psychiatrist, but she has never undergone any psychiatric or psychological treatment. On 13 November 2002 she was again assessed by Ms Morgan, the occupational therapist. On 15 November 2002 she was also examined for medico-legal purposes by Dr Ewer, another psychiatrist. In May 2003 she had a pair of special shoes made for her at a cost of $440. On 28 August 2003 her daughter Tracey gave birth to her first child.
In about November 2003 the plaintiff developed four pressure sores on her lower body. Two were particularly bad, being one on her hip and one on her buttock. They were caused by her continued confinement to bed and her wheelchair, and possibly from her wheelchair being inappropriately designed. Initially they were treated by dressings several times a week by a district nurse, but in more recent times the dressings have had to be changed daily. These sores have not healed and it is likely that they will require plastic surgery in the near future. On 12 December 2003 the plaintiff was assessed in her Kangaroo Island home by Ms Trankalis, another occupational therapist.
In the latter part of 2003 relations between the plaintiff and her husband went from bad to worse. Sexual relations between them ceased. There were arguments particularly about the 2nd plaintiff’s association with the other woman. The plaintiff lost a significant amount of weight. In about November 2003 the 2nd plaintiff came to Adelaide for a week on his own and the plaintiff’s daughters both came back to Kangaroo Island to stay with her for that week to look after her. By the end of 2003 the plaintiffs came to a consensus that their marriage was over and that they would separate. On 4 January 2004 the plaintiff left the Kangaroo Island home and permanently moved to Adelaide. The 2nd plaintiff continues to run the farm and to live in the farmhouse. No property settlement has yet been negotiated between them.
Since leaving Kangaroo Island the plaintiff has been living with her younger daughter Tracey and her husband in their rented home at Cumberland Park. Tracey has become her carer and is receiving the carer’s allowance from the Department of Social Security. Understandably, the plaintiff has put any plans for her future accommodation and treatment on hold pending the outcome of this case.
On 7 January 2004 the plaintiff was examined for a second time by Dr Flynn, the psychiatrist. On 8 January she was first seen by Dr Ruth Marshall, a medical specialist in rehabilitation medicine for spinal disorders, at the instigation of her solicitors. Her first report became available shortly after 2 February 2004. Although this trial was listed to commence on 2 March 2004, I sat on 2 and 3 February 2004 for the plaintiffs’ opening and to take the evidence of Professor Nigel Jones who was about to go overseas for several months. Some evidence-in-chief was taken from the plaintiff on 2 February. On 16 February the plaintiff was assessed for the third time by Ms Morgan, the occupational therapist. On 24 February she was again assessed by Ms Trankalis, the occupational therapist, in her then home at Cumberland Park.
This trial resumed on 2 March 2004. The plaintiff gave her evidence between 2 and 15 March, although with some other witnesses being interposed in that period. On 13 March she was taken to hospital with hyperreflexia when she was unable to void her urine, but after being kept for observation for several hours she was sent home without any apparent further problems. On 16 March while at her home she fell out of her wheelchair and injured her left wrist. This is the only instance of any injury which she has ever suffered from falling out of her wheelchair.
Evidence on the facts on the issue of liability
The records of the 1st defendant, which included the clinical notes of the 2nd defendant, for dealings with the plaintiff between 1977 and 1988 were destroyed in 1996 as part of its standard procedure for the destruction of old documents. There was nothing sinister in this as it occurred before anyone realised there was a potential legal claim. Fortunately, the notes of the 2nd defendant of his examinations of the plaintiff in 1975, the file of the plaintiff’s general practitioners on Kangaroo Island and the file of the MS Society were available from which much important information was able to be obtained. In particular the letters written by the 2nd defendant to the plaintiff’s general practitioners, which seem to have been written on the days he saw her, are available and are by far the best evidence of the matters related in them. I accept their contents over any inconsistent oral evidence.
The plaintiff was generally an impressive and reliable witness. Naturally neither she nor any other witness could give entirely accurate evidence of events spanning almost thirty years. She was refreshingly candid and was prepared to say where she could not remember. She did not appear to be attempting artificially to bolster her case. She was wrong in her recollection of which leg was giving her the most problems in 1978 but that did not impeach her general credibility. Where it is consistent with the contemporaneous documentary evidence I accept her evidence in preference to any contrary oral evidence from other witnesses.
The 2nd plaintiff was an emotional and somewhat vague witness. His grasp of dates and detail was not particularly good.
While I do not doubt his honesty, the 2nd defendant did not have a good recollection of the details of his dealings with the plaintiff apart from what was recorded in the documents. He has seen many thousands of such patients and there was no reason why he should particularly remember his conversations with her. I prefer the plaintiff’s evidence about these conversations.
The evidence of the other witnesses on factual matters relating to liability was not challenged and I accept it.
MS and tumours
MS is a very serious disease which can lead to major disability and death. There is no cure for it. Its causes are unknown. There is no specific diagnostic test for it and diagnosis is only through clinical verification of what are known as the Schumacher criteria. These are:
“1. Neurological examination reveals objective abnormalities of CNS function.
2.Examination or history indicates involvement of 2 or more parts of the CNS.
3.CNR disease predominantly reflects white matter involvement.
4.Involvement of CNS follows 1 or 2 patterns:
i. Two or more episodes, each lasting at least 24h and a month or more apart.
ii. Slow or step-wise progression of signs and symptoms over at least 6 months.
5.Patient 10-50 years old at onset …
6.Signs and symptoms cannot better be explained by other disease process.”
(“CNS” is Central Nervous System.)
In this case the issue was whether the plaintiff satisfied the criteria Nos 2 and 6. Criterion 2 required disseminated lesions, which is why the disease is called “Multiple” Sclerosis. The manifestations of MS are such that once a label of MS is placed on a patient any symptoms thereafter displayed by the patient are likely to be attributed to the MS even if they have a different cause. There was particular difficulty in the diagnosis of MS from lesions in the spinal cord and rigorous processes were required to ensure that the proper diagnosis was not of some other medical condition which was treatable.
Epidermoid cysts of the type found in 1998 in the plaintiff’s thoracic spine are an extremely rare type of tumour. There is no recorded previous instance of such an intramedullary[6] tumour in this State, and there are only about fifty such cases recorded in the world. No doctor who gave evidence or reports in this matter had ever previously seen one. They are benign cysts which are formed before birth and grow slowly. They can become clinically symptomatic at any age, but there was no previous recorded instance of symptoms from them having remitted and returned as occurred with the plaintiff.
[6] This means within the spinal column and is to be contrasted with extramedullary tumours which are outside of the spinal cord.
Although fairly rare, there were various other types of spinal tumours which could have caused lesions in the plaintiff’s spine and have mimicked some of the symptoms of MS. However, generally these tumours were progressive in the onset of their symptoms and did not remit and then recur as was the experience of the plaintiff. Some such tumours were untreatable, but some could be treated.
One intramedullary spinal growth known to cause intermittent symptoms was an Arterio Venous Malformation (“AVM”). An AVM is a vascular formation which can occur in the spine and other places. In his request for the MRI on the plaintiff in 1997, and probably in the request in 1988, the 2nd defendant raised the possibility of an AVM as a potential cause of the plaintiff’s problems. While the primary diagnostic investigation for an AVM was a spinal angiography I accept the evidence of Dr Hallpike that it was usual first to perform a myelogram which would give some indication of an AVM before proceeding to the significantly higher risk investigation of spinal angiography.
Expert evidence on liability
I found Dr Hallpike, a specialist neurologist who had been in practice in Adelaide for many years, to be the most impressive and convincing of the neurologists who gave evidence. I accept his opinions where they are in conflict with those of other neurologists.[7] I accept the expert evidence of the neurosurgeon, Professor Jones. The plaintiffs submitted that I should reject the opinions of Mr North, a neurosurgeon, called by the defendants on neurosurgical practices from 1975 to 1981, which was before Professor Jones had commenced practice. However, I accept his expertise and integrity, but in my findings below I conclude his opinions are not contrary to the plaintiff’s case.
[7] I received some expert evidence from the 2nd defendant de bene esse over an objection that he should not be permitted to give expert evidence because no report from him had been served on the plaintiff pursuant to Rule 38.01. I need not go into the difficult question of whether Rule 38.01 prevents a party giving expert evidence in his own cause as I reject the expert evidence of the 2nd defendant insofar as it conflicts with that of Dr Hallpike.
The law
The law imposes on a doctor a single comprehensive duty to exercise reasonable care and skill in the provision of professional services which extend to the diagnosis and treatment of the patient: Rogers v Wittaker (1992) 175 CLR 479. The standard of care here is that of the ordinarily skilled neurologist for such a specialist: Rogers v Wittaker at 483. The extent of the duty, and any breach of it, are to be judged against the state of medical knowledge existing at the time of the alleged negligent act: Dwan v Farquhar [1988] 1 Qd R 234; Govis v South Australia (1985) 39 SASR 543 at 562. In a case such as this which is concerned with proper diagnosis and treatment the evidence of other similar specialists of what they would have done in the same circumstances is of considerable significance: Rogers v Wittaker (above) at 493 per Gaudron J, although ultimately it is for the Court to decide the extent of the duty and whether it has been breached: F v R (1983) 33 SASR 189.
Findings on breach of duty
I accept the opinion of Dr Hallpike that most neurologists would have adopted a similar approach to that of the 2nd defendant in their investigation of the plaintiff in 1975 and find that no breach of duty or negligence is proved for anything which occurred in 1975. This conclusion is supported by the opinion of Professor McLeod, but is contrary to the opinion of Dr Boyce. The plaintiff’s then pregnancy was a complicating factor and militated against invasive investigations such myelography. Even if the plaintiff had undergone myelography in 1975 which had led to the discovery and removal of the cyst, there is no evidence to suggest that her ultimate disabilities from the cyst would have been any less than if the cyst had not been discovered and removed until early 1980.
I also accept the opinion of Dr Hallpike that the 2nd defendant’s management of the plaintiff in 1978 was appropriate and find that there was no breach of duty or negligence by him in 1978. This conclusion of Dr Hallpike is supported by the opinion of Professor McLeod, but is contrary to the opinion of Dr Boyce. In 1978 the 2nd defendant knew that there had been a complete recovery by the plaintiff for a substantial period which was strongly consistent with MS. He also knew of the raised IgG level in 1975 which he also believed to be consistent with MS. A major contra-indicator was that there was no clear dissemination of lesions in other parts of the central nervous system. The plaintiff’s symptoms in 1978 were predominantly left-sided rather than right-sided as had been the case in 1975. Although this was not a true dissemination of lesions within the Schumacher criteria, it could have been some indicator and comfort to the 2nd defendant in his diagnosis. While a more vigorous differential diagnosis and pursuit of a definite diagnosis of MS could have been undertaken, as was advocated by Dr Boyce, in the light of the opinion of Dr Hallpike I am not prepared to find that it was negligent of the 2nd defendant not to have pursued myelography in 1978.
I accept the opinion of Dr Hallpike that when the 2nd defendant saw the plaintiff in December 1979 he should as a matter of proper neurological practice in the circumstances which then existed have pursued further investigations to reach a more definite diagnosis. His opinion on this is supported by the opinions of Professor McLeod and Dr Boyce. The plaintiff’s condition was then significantly deteriorating and she appeared to be progressing towards paraplegia. There was still no evidence of any second lesion in the central nervous system but outside of the spine which would satisfy the second criterion in the Schumacher Test. There were other possible disease processes which might better explain her symptoms in accordance with criterion 6 in the Schumacher Test.
In his letter of 5 December 1979, quoted above, the 2nd defendant said, “I don’t feel inclined to do any further investigations although visual evoked responses would be of interest.” Visual evoked responses (“VERs”) were a new investigation at the time which revealed abnormalities in the visual pathways of 60-75% of persons who definitely had MS. If a VER test had been performed, and had produced abnormal results, that would have been a significant indicator of a para lesion in the optic nerves and confirmatory of MS. If any VER test results of the plaintiff were normal, it would not in itself have refuted a diagnosis of MS, but it would have thrown sufficient doubt on the diagnosis of MS to make tests for other possible causes of the symptoms more imperative. With the benefit of hindsight it is clear that if the plaintiff had undergone VER tests the results would have been normal. Professor McLeod, who practised in Sydney, had VERs performed routinely because facilities for them were readily available to him. Dr Hallpike thought they were not readily available in Adelaide in late 1979 and were only available at the Women and Childrens Hospital. However, the 2nd defendant said in his evidence that he was “pretty sure” that they were available at Flinders Medical Centre at the time. Thus there was no inhibition on carrying out such VERs from them being inaccessible.
If VER tests on the plaintiff had been normal, each of Dr Hallpike, Professor McLeod and Dr Boyce said he would then have sought to have the plaintiff undergo myelography to see if that revealed any other possible cause of the symptoms. Myelography is taking plain xrays of the spinal cord after dye has been injected into it through a lumbar puncture. It was an invasive procedure which could give rise to complications and problems. These include headaches, pain and possible worsening of the plaintiff’s neurological symptoms. I find that if myelography had been recommended to her by the 2nd defendant in late 1979 or early 1980 that the plaintiff would have undergone it. Her condition was progressively worsening and in such other matters as the tooth amalgams, snake venom and transfer factor from her sisters she had shown a willingness to explore avenues which might give even a slight hope of improvement or cure. In this era myelograms were regularly carried out for many spinal problems, some far less serious than those of the plaintiff. In his many years of practice Dr Hallpike had never known a patient to whom he had recommended a myelogram to refuse to undergo it because of the risks of adverse consequences.
As Dr Hallpike said in his second report:
“… the hazards to the plaintiff of overlooking a tumour diagnosis by 1979 greatly exceeded any risks associated with the investigation.”
In seeking a definite diagnosis of the cause of a spinal cord lesion myelography was treated in the text books of the time as the gold standard and the highest Court of Appeal. I accept the opinion of Dr Hallpike that if a myelogram had been carried out in about December 1979 on the plaintiff it is highly likely that it would have revealed a swelling in her spinal cord caused by the epidermoid cyst. Professor Jones gave similar evidence relating to what would have been likely to have been found on a myelogram in 1980, and that supports Dr Hallpike’s conclusion. However, a myelogram would have merely revealed the existence and location of swelling of the spinal cord, but it would not have been diagnostic of the cause of the swelling. I accept Dr Hallpike’s opinion that if a myelogram of the plaintiff in about December 1979 had revealed swelling of her spinal cord it is highly likely that a biopsy would then have been performed at that point in the spinal cord which would have revealed the nature of the epidermoid cyst. If that had been diagnosed in about early 1980, I find that it would have been surgically removed shortly afterwards. I do not accept any view of Mr North to the contrary. He conceded that a progressive worsening of the symptoms, as was the plaintiff’s case, would make it more likely that surgery would have been recommended. As to what such surgery in early 1980 would have meant for the plaintiff will be dealt with later in these reasons.
There is no suggestion that the 2nd defendant should have suspected on 5 December 1979 that the plaintiff’s symptoms were caused by an epidermoid cyst. From the absence of any second disseminated lesion since the onset of the condition in 1975 the reasonably competent neurologist treating the plaintiff in 1979 should have been looking for any other possible cause of the plaintiff’s spinal lesion. There was some, albeit a fairly remote, possibility that the cause could be an intramedullary tumour of some kind such as perhaps an AVM. This possibility could, and should, have been investigated by myelography as there was also some possibility that if some sort of tumour was found it might be treatable. As his subsequent correspondence with the general practitioners on Kangaroo Island showed the 2nd defendant was never sufficiently confident of a firm diagnosis of MS such as to obviate the need to pursue other investigations of alternative, although less likely, causes of the plaintiff’s symptoms, and particularly in view of her ongoing descent towards paraplegia. On the balance of probabilities his failure in December 1979 to pursue VER tests and a myelogram were a breach of his legal duty to the plaintiff.
The defendants’ counsel submitted that the 2nd defendant was entitled to be reinforced in his conclusion about the diagnosis of MS through it not having been disputed by other doctors who saw the plaintiff such as Dr Purdie, a neurologist at the MS Clinic, Professor Murrell, an expert in rehabilitative medicine, and her general practitioners. However, there is no evidence that any of those doctors independently sought to verify the 2nd defendant’s diagnosis of MS, and the likely inference is that they unquestioningly accepted the label of “MS” which he had placed on her.
Even if the 2nd defendant had not been negligent in not pursuing a myelogram in 1979, on similar lines of reasoning he would have been negligent in not recommending one when he saw her in each of September 1980 and September 1981. However, as her damages could not be any greater for such negligence in 1980 or 1981 than for negligence in 1979, there is no point in me pursuing further those alternative causes of action.
Similarly there is no need to pursue the alternative causes of action pleaded in relation to the 1988 MRI scan as any damages flowing from such negligence would be encompassed in, but probably less than, the damages from the 1979 negligence. However, in case it subsequently becomes relevant I briefly deal with it. Although the sensory levels found on the 2nd defendant’s examination of the plaintiff on 21 June 1988 suggested a lesion at about T10, there had been a prior history over the years of which the 2nd defendant was aware of other relevant sensory levels such as at T6. The written request from the 2nd defendant for the 1988 MRI scan is missing. If it only requested an examination based on a possible lesion at T10, the radiologist was justified in going no further than T6. However, in view of the plaintiff’s previous history the examination should have been requested for an area of the spine including up to T6 which should then have meant that the radiologist would have gone somewhat higher with the scan which would have been likely to have revealed the cyst in the vicinity of T2 or T3. Alternatively, if the 2nd defendant had requested the scan of the region from T10 to T6, it was obvious from the radiologist’s report that this had not occurred and the 2nd defendant should have followed it up and have had a further scan performed above T6 which presumably would have revealed the cyst. Furthermore, regardless of the contents of the request all the neurologists and Mr North were agreed that the terms of the radiologist’s report were ambiguous as to what actually had been scanned. The 2nd defendant should have pursued that ambiguity with the radiologist, and that would most likely have led to a further scan and detection of the cyst. If the cyst had been discovered in 1988 and surgically removed, it is likely there would have been some improvement in the plaintiff’s disabilities, but not as much as would have been the case if the cyst had been removed in early 1980.
Extension of time
The defendants belatedly pleaded in paragraph 37 of their Second Further Amended Defence that the plaintiffs’ claims were out of time pursuant to Section 36 of the Limitation of Actions Act 1936 (“the LAA”) which required the action to be commenced within three years after the cause of action had accrued. The plaintiff countered this by seeking an extension of that time under s48 of the LAA. For the reasons set out in my earlier judgment[8] this action was deemed to have been commenced by both plaintiffs against both defendants on 16 August 2001.
[8] Waller v Flinders Medical Centre & Burns (No 1), Jud No [2004] SADC 45, 10/3/04, 232 LSJS 342.
Section 48(3) of the LAA provides, inter alia:
“This section does not –
…
(b)empower a court to extend a limitation of time prescribed by this Act unless it is satisfied –
(i) that facts material to the plaintiff’s case were not ascertained by him until some point of time ….. occurring after the expiration of that period and that action was instituted within twelve months after the ascertainment of those facts by the plaintiff;
…
and that in all the circumstances of the case it is just to grant the extension of time.”
“Material” for the purposes of subs (3)(b)(i) was defined by the High Court in Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 636-7 as follows:
“… There is no warrant for writing into the Act a further qualification that, to attract the operation of s48(3)(b)(i), there must be some interaction between the material fact and the plaintiff’s decision to sue. It is materiality to the plaintiff’s case that must be shown. This is a broad general requirement that is capable of satisfaction by objective inquiry. To introduce notions, related to the decision to sue, that would require an examination of the subjective workings of the plaintiff’s mind would complicate the court’s task and impede rather than advance the purpose of the Act. A fact is material to the plaintiff’s case if it is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action and is of sufficient importance to be likely to have a bearing on the case. The Shorter Oxford English Dictionary defines the word ‘material’, inter alia, to mean ‘Of such significance as to be likely to influence the determination of a cause’. Although a definition attributed to the 16th century, in our opinion it provides an apt guide to the intention of the legislature in choosing to refer, without any elaboration, to ‘facts material to the plaintiff’s case’.”
The facts only need to be material to plaintiffs establishing their case at trial and not for completing their causes of action: Wright v Donatelli (1995) 65 SASR 307 at 318 per Lander J.
By virtue of the action having been deemed to have been commenced on 16 August 2001 the relevant twelve month period for s48(3)(b)(i) was the twelve months on and after 16 August 2000. The plaintiffs pleaded in their Second Further Amended Statement of Claim in paragraphs 39.6 and a misnumbered 39.2[9] material facts which they claimed satisfy subs (b)(i). The subject matter of para 39.6 was the second report of Dr Boyce dated 31 August 2000. The plaintiffs’ evidence, which I accept, was that they had an arrangement with their solicitor that they would be posted copies of medical reports as soon as they were received by their solicitor and that they would read those reports as soon as they received them. It is likely that they received this report of the 31 August 2000 in early September 2000, and thus I find that it was first ascertained by each of them within the requisite period. However, paragraphs 1 to 5 of that report repeated verbatim what had been contained in Dr Boyce’s earlier report dated 18 July 2000. Thus it is likely that the contents of paragraphs 1 to 5 were ascertained by the plaintiffs prior to 16 August 2000 and hence were not new material facts ascertained by them for the first time within the requisite period for the purposes of subs (b)(i). Accordingly, both plaintiffs are limited to what was contained in paragraphs 6 and 7 of the report of 31 August 2000.
[9] There are two paragraphs bearing the number “39.2” in the Statement of Claim: I am referring to the second of them which follows immediately after 39.6.
I base my findings on paragraphs 6(c) and 7 of that report which read as follows:
”6. In your opinion was Dr Burns negligent in –
…
c. Failing to consider or adequately consider a differential diagnosis.
From the information provided to me, I do believe that there was negligence associated with this question.
7.Was it Dr Burns responsibility to appropriately instruct the Radiologist and if yes was Dr Burns negligent if he had failed to request the Radiologist to examine segments above T6.
Normally when I request a radiological assessment of a spinal lesion I indicate to the Radiologist what area I am interested in. Accordingly there would be a shared responsibility of knowledge both by Dr Burns, and the Radiologist concerned as to the extent of the investigation performed.”
In relation to 6c of that report its subject matter had already been dealt with in part in question 2 of the earlier report of 18 July 2000 which read:
“2. Did Dr Burns, in your opinion, consider or adequately consider a differential diagnosis when arriving at his diagnosis of Multiple Sclerosis?
My answer to that question would be NO.
In considering a differential diagnosis one has to look at a range of issues, firstly as to whether the lesion is congenital, or acquired. Whether the lesion is infective, neoplastic, inflammatory, vascular etc. All of the signs from 1975 at least for a further twenty years remain at one level, and a more adequate differential diagnosis needed to be entertained and reappraised.”
However, the fact of Dr Boyce categorising the actions of the 2nd defendant, as set out in the earlier report, as contrary to proper practice and negligent was an additional fact which had not been stated by him in the earlier report, and hence was a new material fact ascertained by the plaintiffs from the report of 31 August 2000 within the requisite period. An opinion of an expert is a fact for the purposes of sub (3)(b)(i): Sola Optical Australia Pty Ltd v Mills (above) at 638.
The subject matter of paragraph 7 of the report of 31 August 2000 had also been dealt with in part by Dr Boyce in the following passages from his report of 18 July 2000:
“1. What more in your opinion could or should have been done by Dr Burns in 1975 and subsequently to correctly diagnose our client’s condition?
…
Particularly in 1988 when the MRI scan was performed, I believe that the Radiologist should have been advised that the cut off point was at T6 so that they should have looked at several spinal segments above T6, perhaps to T3. It is more likely than not that had that been done again the lesion would have been more correctly diagnosed.
…
4.Should the tumour in our client’s spine have been detected by the MRI scan in 1988?
No one will ever know the answer to that question. As I have indicated previously the Radiologist should have been requested to look for several segments above T6 as it is well known that the spinal tracks cross over and take several segments to do so. One could say that it is more likely than not that had the Radiologist been appropriately instructed, than (sic) an MRI scan would have found the tumour, however that answer is somewhat speculative.”
Again what is contained in paragraph 7 of the subsequent report adds a new material fact of a shared responsibility by both the 2nd defendant and the radiologist, and thus is a new material fact ascertained by the plaintiffs within the requisite period.
In a number of other subparagraphs of paragraph 39.6 of the Statement of Claim, and in paragraph 39.2, the plaintiffs relied upon material facts being ascertained which were either contrary to their case or so equivocal that they did not advance their case. The plaintiffs’ counsel submitted that there was no requirement in subs (3)(b)(i) that the new material facts had to have the potential to advance the plaintiffs’ case. I am not satisfied that the authorities go as far as saying that facts which are material to the case, but which do not have the potential to advance the plaintiffs’ case, can be material facts within subs (3)(b)(i), but I need not determine the point. For the reasons stated I uphold the plaintiffs’ pleas that their ascertainments of the facts in paragraphs 6(c) and 7 of the report of 31 August 2000 of Dr Boyce in about early September 2000 satisfied the threshold test in subs (3)(b)(i) of s48 of the LAA to enable an extension of time to be granted to them..
That extension is not to be granted unless the plaintiffs also satisfy me “that in all the circumstances of the case it is just to grant the extension of time”. The plaintiffs did not discover that there had been any mistake by the defendants in 1979 until 1997. This was principally due to the negligence of the defendants in the misdiagnosis of MS at least since 1979 and in their negligence in failing properly to arrange and check the MRI scan in 1988. All the parties were equally disadvantaged by the long delay. The defendants could not put forward any prejudice which they had suffered from the delay which was attributable to any act of the plaintiffs. The factual findings above on which the liability of the defendants is based come almost entirely from the version of the facts as recorded by the 2nd defendant in his letters to the plaintiff’s general practitioner. Neither party challenged the accuracy of those records. While I have preferred the evidence of the plaintiff to that of the 2nd defendant on the conversations between them, the same findings on liability would still have been made even if I had accepted the 2nd defendant’s version of those conversations. On the issue of damages up to 1997 there is no suggestion that the defendants have suffered any greater disadvantage from the delay than the plaintiffs in dealing with those issues. Accordingly, I find that it is just in all the circumstances of the case to extend the time under s48 of the LAA for both plaintiffs to have commenced this action to the deemed date of its commencement of 16 August 2001.
Notional consequences for the plaintiff of a removal of the tumour in about early 1980
It is a difficult question of what life thereafter would have held for the plaintiff, and what disabilities she would still have had, if the epidermoid cyst had been surgically removed in early 1980. The only medical witness who really addressed the issue was Dr Hallpike. I accept his conclusions. The relevant parts of his evidence were as follows (at T724-5):
"Q…. I want to ask you this: can we, in looking back at the history of this progression of this lady’s condition, conclude that over, as one moves further back towards 1975, the results of removal of the tumour would almost exponentially have achieved a better ultimate outcome, the earlier the operation had been performed.
AYes. I mean, it’s widely held in the neurological literature, and I mean there are a very adequate number of significant series of operative treatment and outcomes in intramedullary tumours of all kinds. Things, of course, like to the fact of a broad category of tumour, malignant versus benign, rather than the detail of the histology of a particular benign tumour, and I mean, the rule, the general simple view is that the more disabled the person is pre-operation, the poorer – the longer the outlook is for recovery or full recovery. That’s taken a bit further in the sense that, I mean, it is said that people who are no longer able to stand independently stand a very poor chance of showing improvement after removal of a tumour. That’s quite a useful rule of thumb.
QIn the period 1982 to 1988, I think you’re aware that there was some remission of Mrs Waller’s symptoms.
AYes.
QSo that if, for example, at the beginning of that period, one had operated to remove the tumour, would that expected improvement level be the standard one should look to in terms of what the improvement might have been achieved at that point in time, or might it have been greater.
AWell, I think the straightforward answer to that is that removal of the tumour when she was independently ambulant – able to walk independently, the outcome there would have been very much more favourable on any statistical basis than the outcome when operated on when she was no longer able to stand or walk independently.”
Mr North also agreed that the earlier the surgical intervention the better would be the likely ultimate outcome.
In relation to any operation to remove the epidermoid cyst in late 1988 if it had been found by the 1988 MRI scan, Dr Hallpike said at T727:
"Q“Having regard to your earlier comments, if she had an operation around 1988 to remove the tumour, what would you expect to be her condition upon completion of that operation.
AI think if one had been looking at it at that time one would have been, I think, quite optimistic of substantial recovery, very significant recovery functionally. But one would have been guarded, as it were, about the prospect for complete recovery.”
However, Professor Jones said it was possible that an operation in 1988 would not have had any different result from the operation in 1998. The point was not pursued with Professor Jones and I prefer the fuller treatment of the topic by Dr Hallpike.
Although it was not directly addressed in the medical evidence, as a matter of commonsense I infer, and find, that after any removal of the cyst in about early 1980 the plaintiff’s disabilities thereafter would not have been any greater than they were when she was at her best during the period of spontaneous remission between 1982 and 1986, and with the removal of the cyst her disabilities would not have increased from 1986 onwards. She has proved this on the balance of probabilities and thus her claim is not merely for the loss of a chance that detection and removal of the cyst in early 1980 might have improved her subsequent condition. This means that her damages are to be assessed on the basis that in any event she would have had some problems with her legs and have walked with some limp, but she would have remained reasonably ambulant and fully continent. While she would not have been able to run and play sport, and have been restricted in more strenuous activities, she would have been able to perform almost all of her usual household duties and to have engaged in a wide range of social and recreational activities. I will deal later with the effect of her disabilities on her capacity for employment.
If the plaintiff had had the cyst removed in 1980 it is likely that the results of the operation would have been similar to those in 1998. While surgical equipment and techniques had advanced between 1980 and 1998 the cyst would have been somewhat smaller in 1980 and she would have been better able to convalesce at a younger age. There was no suggestion that the risks of the surgery in 1980 were so much greater than those in 1998 that, on the balance of probabilities, I should find that the result would have been any different in 1980. As the shell of the cyst was not wholly removed in the operation there is some prospect that the cyst will regrow to an extent where it will require operative removal in the future if it causes symptoms. Presumably, if the cyst had initially been removed in 1980, the chances of the plaintiff having to have further surgery for removal of the regrown cyst later in life would be considerably greater than after an initial removal in 1998. As the plaintiff would have had to undergo such surgery regardless of any breach of duty by the defendants the cost of such surgery, and damages for non-economic loss directly arising from it, are not to be allowed to her. On a broad axe basis I equate the cost and the non-economic loss of the 1998 surgery as roughly equivalent to the notional costs and damage from a 1980 operation and the increased likelihood of subsequent surgery if the cyst had been removed in 1980.
The plaintiff’s damages are to be assessed on the basis that if the cyst had been removed in 1980 she would still have suffered the medical problems of the deep vein thrombosis, the anaemia and the goitre, as there is no medical evidence to link those with the paraplegia. They would have occurred even if there had been no breach of duty by the defendants.
DAMAGES
Witnesses on damages
I accept the evidence and opinions of Dr Marshall, the medical specialist in rehabilitation medicine. I prefer her opinions where they are in conflict with those of the occupational therapists, Ms Trankalis and Ms Morgan. While there was a wide divergence between some of the opinions expressed by Ms Trankalis and Ms Morgan I resolve them principally by reference to the opinions of Dr Marshall. The evidence of the plaintiffs and their daughter, Tracey Govis, on the issues of damages was not challenged and I accept it.
Physical disabilities
As a result of the defendants’ breach of duty in 1979 the plaintiff has suffered substantial paraplegia from early 1980 to about 1982, progressive paraplegia from about 1986 to June 1988 and complete and permanent paraplegia since June 1988. In association with the paraplegia she has no feeling in her body below her breast line. Accordingly, she experiences no physical pain in her lower body. Since June 1988 she has been completely incontinent in her bladder and bowels. The bladder incontinence has been substantially dealt with by catheterisation, which she can largely do herself, although with some assistance from others on occasions, and with some problems through equipment malfunctions and urinary tract infections. During the night she often urinates on her bed and has to use special protective bed coverings. There have from time to time been episodes of urinary incontinence during the day with consequent odours and embarrassment.
When an indwelling catheter does not void the plaintiff’s urine, or other catheterisation is ineffective, there can be a build up of urine in her bladder which can lead to autonomic dysreflexia which in turn can produce high blood pressure and possibly brain damage or strokes. The plaintiff has no feeling to make her aware of the fullness of her bladder and she must always be alert to other signs of dysreflexia. She has had episodes of it in the past although without major adverse consequences. She is always at risk of it in the future.
To empty her bowels the plaintiff has had daily since 1988 to go through a cumbersome procedure of taking laxative medication and then to sit on the toilet for between 45 to 75 minutes, using digital stimulation, to wait for her bowels to empty. Since early 1980, apart from between about 1982 and 1986, she has had continual problems with spasms in her legs in which her legs and feet will noticeably jerk spontaneously. She suffers embarrassment when this occurs in public. While she has taken Baclofen to control these spasms it has not been entirely effective. As a consequence of her paraplegia she becomes easily tired and lethargic and she is particularly sensitive to extremes of hot and cold. Prior to her recent problems with pressure sores starting in November 2003 she spent most of her waking time in a manually-propelled wheelchair. Her present wheelchair is badly designed and has contributed to her pressure sores and has caused pain and discomfort in her left shoulder. She has not driven a motor vehicle since the mid 1980s, and she has never driven other than on Kangaroo Island.
The paraplegia has reduced the plaintiff’s life expectancy in the order of 5%.
Psychological sequelae
Since early 1980 the plaintiff has suffered considerable emotional and mental trauma and stress through the mis-diagnosis of MS and the consequences of becoming permanently paraplegic. However, she has put on a brave front and has only allowed those very close to her to see her considerable distress and anguish. Soon after she was diagnosed with MS she was told by a local doctor that she would be fortunate to reach 40 years of age. After early 1980 this continued to distress her as she feared she would not be available to care for her children. She became very distraught in early 1998 where after what she thought were arrangements for an operation to remove the tumour, her hopes of improvement were dashed when Mr Brophy declined to operate.[10]
[10] Damages flow from this as a consequence of the 1979 negligence and not from any separate cause of action based on her not being properly advised by the defendants about what was to occur on 18 February 1998.
The psychiatric evidence was given through reports tendered from Drs Flynn and Ewer. Dr Ewer saw the plaintiff on 15 November 2002, and in his only report stated:
“At no point has Ms. Waller felt the need to seek treatment for her emotional/psychological symptoms and indeed she has on the whole felt that she has been managing well relying upon her own resources and the considerable support she has received from her husband.
…
My overall impression of Ms. Waller at mental state examination was a resourceful person who related well to her husband and who had coped remarkably well with a long history of very difficult circumstances. … At times she was understandably depressed, sad and angry. …
Ms. Waller currently fulfils the DSM-IV diagnostic criteria for the axis-1, psychiatric diagnosis of a Chronic Adjustment Disorder With Depressed Mood. In particular Ms. Waller experiences the symptoms I have described above and on occasions these emotional symptoms lead to mild impairment of functioning and to significant distress.
It is possible that Ms. Waller has also suffered an Adjustment Disorder or possibly even a Major Depressive Disorder at various times in the past. … I suspect she was clinically depressed in 1980 when she was reluctant to go out. I would attribute that behaviour to her mood disorder rather than invoking the diagnosis of Agoraphobia.
It sounds as though at times Ms. Waller has suffered from significant panic attacks but I do not believe she is currently suffering from Panic Disorder.
…
In my opinion Ms. Waller has certainly suffered from an Adjustment Disorder With Depressed Mood over the last five years. This was substantially caused by the doctors informing her that she was suffering from a spinal tumour and by her perception that Professor Burns was negligent in not making this diagnosis years earlier.
… I suspect resolution of the current litigation will assist Ms. Waller’s mental state and therefore such improvement will probably result in Ms. Waller being sufficiently psychiatrically well that treatment is not indicated.
On the other hand it would be entirely reasonable for Ms. Waller to see a Psychologist for ten to twelve visits for cognitive therapy and relaxation training. It would also be reasonable for Ms. Waller to be prescribed an SSRI medication to offer her further relief from her feelings of depression and anxiety and this may also lead to improvement of her sleep pattern. I would recommend that she take such medication for approximately six months. …
I believe Ms. Waller has a good psychiatric prognosis and I would expect her Adjustment Disorder to fully resolve with treatment and with her claim being settled. …”
Insofar as the plaintiff’s need created by the defendants’ negligence has been satisfied by these gratuitous services the plaintiff is entitled to recover damages assessed at the commercial value of those services: Van Gervan v Fenton (1992) 175 CLR 327. The Court looks to the cost of notionally providing those services on a commercial basis without reference to the family obligations which motivated the plaintiff’s relatives to provide them: Van Gervan v Fenton (above) at 335-7. The value of the services is to be assessed in the money value of the services at the date of trial: Calvaresi v Lawson (1995) 184 LSJS 147 at 169-171. The decision of the High Court in Grincelis v House (2000) 173 ALR 564 related to the award of interest where the damages were apparently assessed on the prevailing costs of the services from time to time as the loss accrued. It is not an authority that such damages must be assessed on this basis provided an appropriate pre-judgment interest rate is applied. In any event it is impossible here assess them on any other basis as no evidence was adduced by either party of their commercial cost between 1980 and July 1999.
In their respective evidence the plaintiffs did not attempt to quantify in terms of hours spent the time occupied by the 2nd plaintiff in his providing the services in question to the 1st plaintiff.[22] I doubt that the four hours of services a day from a carer which Dr Marshall thought was appropriate for the future is also likely to have been appropriate in the past while the plaintiff lived in the Kangaroo Island farmhouse. While the plaintiff did not then have the benefit of the proposed rehabilitation treatment or special modifications to her house to make it fully suitable for use by her in her disabled state, her lifestyle at that time did not create as much need for care as it will in the future. If paid care had been employed to meet the plaintiff’s needs it probably would only have been for about two or three hours each day. However, prior to the separation greater periods of care were needed where the plaintiff was away from the Kangaroo Island farmhouse and when she had other problems such as pressure sores and the deep vein thrombosis. Many of the journeys in the family car in which the 2nd plaintiff transported the plaintiff would have been undertaken by the 2nd plaintiff in any event, such as the regular Friday trips into Kingscote.
[22] Even if they had attempted to quantify the number of hours on average it probably would have been such a gross generalisation that it would be of little use.
In 1982 the plaintiff had weekly visits from a reflexologist. She paid nothing for them. No evidence was led as to any commercial rate for reflexologists. I make some allowance for it as a gratuitous service.
In addition to active care there is also the issue of an allowance for past passive care. This is a particularly difficult issue. The plaintiff was dependent on her husband and was comforted by the knowledge that he was nearby on the farm during the day and with her in the house during the night in case she should need him. There is virtually no evidence that she encountered problems which necessitated her summoning him for assistance when he was out of the house. When he was away in early 2003 for his operation one of her sisters stayed with her from 5pm each night until after she had had her shower on the following morning, but she was apparently then alone during the rest of the day. There was no evidence on the topic of whether a paid carer could have been available in Kingscote about 25 kms away through mobile phone contact or a “Vital Alert” connection, but I assume it probably could have been arranged. There is no evidence that if the 2nd plaintiff was unable to provide passive care for the plaintiff over an extended period the plaintiff’s need for such care was such that a person would have been employed for any extended period to stay with her in the Kangaroo Island farmhouse during the night and/or the day to provide passive assistance for her. I do not accept the evidence of Ms Trankalis that she required such extended passive care. However, in the assessment I do make a significant allowance for some occasions on which the plaintiff’s needs would have required the employment of a carer to live with her in the farmhouse on Kangaroo Island.
I base the current cost of commercial care on the charges of PQA Home Care Plus on their country rate as annexed to the report of Dr Marshall of 2 March 2004 and allow kilometrage between Kingscote and the Kangaroo Island farmhouse. I assume that much of the services would have been provided on contracts exceeding three months, but some ad hoc assistance would have been at on-call rates. For the period after 6 January 2004 I have had regard to the PQA Home Care Plus metropolitan rates. Damages for past gratuitous services are assessed on a broad axe basis at $900,000.
Future gratuitous services
Almost all of the plaintiff’s needs for future services arising out of the defendants’ negligence in 1979 will be met by paid carers. However, it is likely that her daughter Tracey will continue to play a significant role in her life and will provide some services which are needed, but over and above those provided by the paid carers. Damages for future gratuitous services are assessed on a broad axe basis at $12,000.
Economic loss
If the plaintiff had not had the epidermoid cyst she would have successfully pursued a career in hairdressing until about the usual retiring age. Since 1988 her paraplegia has prevented her working as a hairdresser. It is likely that while her children were young, if she was able to do so, she would have only worked part time as a hairdresser such as she had after the birth of her first child. Such work would have been available to her in Mr Ley’s salon in Kingscote. She loved hairdressing and was well motivated to work.
The major issue is whether, if the plaintiff had had the cyst removed in early 1980, the permanent disability which she would then still have had in her legs would have prevented her from working commercially as a hairdresser or otherwise. The issue was not directly addressed in the evidence. The most relevant piece of evidence was in the plaintiff’s examination-in-chief where she said (at T242-3):
"Q“Throughout 1983, can you give his Honour a sort of a general overview of how your condition progressed.
AI was just, like, as in, how to explain it? I stayed very stable as I was. I didn’t deteriorate at all during 1983. I was still walking with a limp and I was still walking and still able to look after the girls and do my housework.
QBy 1983, how old were the girls.
ANicole was 10 and Tracy was 8.
QWere you in that year attending to all of their needs.
APretty well, yes.
QAs far as the housework was concerned, were you able to do all of the housework.
AI believe I was back then able to do the vacuuming and wash the floors as well.
QYou’ve told his Honour that you had a limp, but had you remained in that condition as you were in 1983, would you have been able to return to some form of work.
ANo, most definitely not. I wasn’t strong enough to be able to actually stand constantly for any length of time.
QDid that improve over a period of years before your next relapse.
ANo, it didn’t.” (underlining added)
It is beyond argument that a hairdresser must be able to stand for significant periods of time while working.[23] The plaintiff did not seek to return even part time to hairdressing work during her time of maximum remission between 1983 and 1986 although the diagnosis of MS may have inhibited her from doing so. As I have found above, if the cyst had been removed in early 1980, her residual disabilities would still have been those which existed when she was at her best between 1982 and 1986. I find that she would not ever have been fit again for work as a hairdresser. Her evidence quoted above in referring to “return to some form of work” also precludes any realistic return to part time hairdressing. Accordingly, I find that the defendants’ 1979 negligence has not resulted in the plaintiff being unable to exploit any earning capacity as a hairdresser.
[23] The plaintiff did not think she would be able to do hairdressing from a wheelchair, T706.
While she lived on Kangaroo Island the plaintiff had no employment available to her which she could have undertaken with the disabilities which she would have had in any event if the cyst had been removed in early 1980. Her only opportunities to earn money were through dressmaking and book work for the farm and the holiday house. She was able to exploit those opportunities without being significantly disadvantaged by her paraplegia.[24] Between when she moved to Adelaide on 6 January 2004 and the trial there was not sufficient time for her to find any gainful employment. Accordingly, no damages are allowed for past economic loss.
[24] While the plaintiff’s efficiency as a dressmaker was impeded by her paraplegia she did not suggest that she could have earned any more money from such work if she had not been so impeded.
If the plaintiff had had the cyst removed in early 1980 and had moved to Adelaide in early 2004 after the breakdown of her marriage, it is likely that she would have found some type of gainful employment even with the disabilities which she would have then had in her legs. Although she has no work experience or training, she is a very presentable and resourceful person who would have been likely to find employment with which she could cope, albeit probably at only a basic wage level. It may be that she would have needed to have spent some unpaid time in education and training before re-entering the workforce. There is a fair chance that she could have exploited her dressmaking skills more profitably than she now can as a paraplegic. However, there is some chance that because of her age and some disability in her legs she would never have been able to find any gainful employment. There was no evidence about when she might have retired from any employment, but she still has a significant period of her working life left.
The plaintiff’s paraplegia has not entirely deprived her of the whole of her earning capacity, particularly while she lives in Adelaide. I take judicial notice of special employment opportunities for people confined to wheelchairs through organisations such as Bedford Industries, albeit that their earnings are not necessarily even at the basic wage level. There is a good prospect that once the plaintiff has been through her rehabilitation and plastic surgery, in which period she will have no earning capacity, and becomes settled in her new home, she could exploit her dressmaking skills for profit. What opportunities might be then available for her were not explored in evidence, but she has considerable talent in this field. She may well be able to obtain employment in this field or to run her own business. However, her efficiency in such work, and the profitability of it, will be significantly impaired by her paraplegia.
Damages for loss of future earning capacity resulting from the defendants’ 1979 negligence are assessed at $50,000. This includes a small allowance for loss of superannuation benefits.
Non economic loss
Many of the relevant matters have been dealt with above and I will not repeat them here in detail. The assessment is confined to the effects on the plaintiff of the 1979 negligence of the defendants which must be assessed against the background of the much lesser disabilities which she would still have had if the epidermoid cyst had been successfully removed in early 1980. Nothing is allowed for matters relating to the removal of the cyst or any subsequent matters relating to any regrowth of it.
In any event the plaintiff would never have played sport again after early 1980 or have engaged in other strenuous outdoor activities or dancing. However, apart from this she would have been able to lead a relative normal domestic and social life which she can no longer do because of her paraplegia. She is now confined to a wheelchair or a bed and is almost entirely dependent upon others to go out of the house. A significant amount of her time is occupied in dealing with her unpleasant bladder and bowel incontinence and other consequences of her paraplegia.
The mental and emotional traumas for the plaintiff from the mis-diagnosis after late 1979 of the MS and the paraplegia have been as great, if not greater, than her physical difficulties from the paraplegia. The psychological sequelae have been dealt with above. From mid 1988 to 1997 she lived with the fear that her symptoms would deteriorate and extend to other parts of her body with the progress of MS and that her anticipated life expectancy had been markedly reduced. While the future will be considerably brighter than the past for her she will continue to rue, and be angry about, what might have been.
I have already dealt with the limited relevance of the break down of her marriage on the assessment of damages. Her sexual relationship with her husband continued, as best it could, until shortly before the separation, but she had no vaginal feeling. She said she would like to have had more children. However, she had her tubal ligation in 1979 before the negligence of the defendants had occurred and so that negligence has not deprived her of having more children. Her paraplegia does restrict her in holding and enjoying her grandchildren. This litigation, and its uncertainty, has been a cause of considerable stress for her, but it will soon be past.
Damages are assessed for the plaintiff’s past non-economic loss at $140,000 and for the future at $80,000.
Pre-judgment interest
Under s39 of the District Court Act 1991 the plaintiff is entitled to interest at 4% per annum on her past economic loss and her past gratuitous services[25] for the period since early 1980 in which the losses have progressively accrued. The plaintiff is entitled to interest on her past special damages insofar as they have been paid by her[26] at a commercial rate since the time of their payment. As with the assessment of the past special damages it is impossible arithmetically to calculate this interest on them. I fix a lump sum in lieu of pre-judgment interest of $410,000.
The 2nd plaintiff’s claim for loss of consortium
[25] See Calvaresi v Lawson (above); Kite v Malycha (1998) 71 SASR 321 at 354.
[26] This does not include what was paid through Medicare.
The 2nd plaintiffs only claim in the action is for a loss or impairment of consortium and loss of services from the 1st plaintiff. It remained a good marriage until about the beginning of 2002, but it had completely broken down by the end of 2003. The 2nd plaintiff’s claim is confined to an impairment of consortium from early 1980 until the end of 2003.
Much of the relevant factual material has been dealt with above and I will not repeat it. As a result of the 1979 negligence of the defendants from early 1980 until the end of 2003 the 2nd plaintiff lost much of the comfort, society and assistance which he otherwise would have received from his wife: Toohey v Hollier (1955) 92 CLR 618 at 624-9; Andrewartha v Andrewartha (No 1) (1987) 44 SASR 1. His social activities were restricted from what they would otherwise have been. His wife was often depressed and anxious because of her condition. There is no evidence that from his side their sexual activities were significantly impaired. There is no award for loss or impairment of services as these have been covered in the damages for past gratuitous services. Damages are assessed for the 2nd plaintiff at $12,000. In addition he is entitled to interest at 4% per annum for the period of the loss for the loss as it progressively accrued. I fix a lump sum in lieu of that interest at $4,800.
Summary of the awards
The assessment of damages and interest for the 1st plaintiff is as follows:
Future accommodation $ 60,000
Future home care 800,000
Future transport and mobility 120,000
Future medical and like services and special equipment 620,000
Past special damages 10,000
Past gratuitous services 900,000
Future gratuitous services 12,000
Future economic loss 50,000
Past non-economic loss 140,000
Future non-economic loss 80,000
Pre-judgment interest 410,000
Total $ 3,202,000
There will be judgment for the 1st plaintiff for this amount.
There will also be judgment for the 2nd plaintiff including interest for $16,800.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1 Waller v Flinders Medical Centre (No 1) – Jud No [2004] SADC 45, 10/3/04, 232 LSJS 342.
2 The facts set out in this Overview were generally not in dispute but in any event I find them proved on the evidence.
3 The plaintiffs’ counsel opened their case on the basis that he would call Dr Robertson. Subsequently the defendants amended their defence concerning this MRI scan and the plaintiffs, without criticism from the defendants’ counsel, did not call Dr Robertson. I ignore what the plaintiffs’ counsel said about his proposed evidence in his opening.
4 By early 1992 both daughters had left home.
5 The evidence of the 2nd plaintiff at T772 gave the date as 1987. Later he gave further evidence at T806-7 apparently of the same transaction but with a date of 1997. The plaintiff’s evidence seems to suggest that it was 1997.
6 This means within the spinal column and is to be contrasted with extramedullary tumours which are outside of the spinal cord.
7 I received some expert evidence from the 2nd defendant de bene esse over an objection that he should not be permitted to give expert evidence because no report from him had been served on the plaintiff pursuant to Rule 38.01. I need not go into the difficult question of whether Rule 38.01 prevents a party giving expert evidence in his own cause as I reject the expert evidence of the 2nd defendant insofar as it conflicts with that of Dr Hallpike.
8 Waller v Flinders Medical Centre & Burns (No 1), Jud No [2004] SADC 45, 10/3/04, 232 LSJS 342.
9 There are two paragraphs bearing the number “39.2” in the Statement of Claim: I am referring to the second of them which follows immediately after 39.6.
10 Damages flow from this as a consequence of the 1979 negligence and not from any separate cause of action based on her not being properly advised by the defendants about what was to occur on 18 February 1998.
11 Ms Trankalis took a more pessimistic view about the extent of the need for passive care which I reject. In part she seemed to have been influenced in her opinion by the report of Mr Johnson, the psychologist, which was never established by any evidence.
12 Damages for gratuitous future care are dealt with separately below.
13 Hence nothing is allowed for household maintenance which she would have paid someone to carry out if she had been living independently.
14 The cost of replacement of cushions for the wheelchair is dealt with elsewhere.
15 Ms Morgan in her evidence suggested that a motorised scooter at a cost of between $4,000 and $5,000 would be sufficient, but this possibility was not put to Dr Marshall and I accept her evidence that a motorised wheelchair is the preferable option for the plaintiff.
16 The matters dealt with under this heading are in addition, and separate from, those matters for which other assessments are made in these reasons.
17 I have assumed that the plaintiff will not retain her health card after this judgment and therefore will not be entitled to prescription medication at a much reduced prices as in the past.
18 Some items in the Schedule were duplicated, eg podiatry and massages.
19 It was not suggested that this assistance should be characterised as partly assistance to the two children: cf Weinert v Schmidt (2002) 84 SASR 307, 223 LSJS 73.
20 Insofar as the plaintiff’s sisters were paid for cleaning work, allowance has been made for this in past special damages and it is not duplicated under this heading.
21 There was no suggestion that these Carer’s Allowances were refundable in the event of the plaintiff receiving damages.
22 Even if they had attempted to quantify the number of hours on average it probably would have been such a gross generalisation that it would be of little use.
23 The plaintiff did not think she would be able to do hairdressing from a wheelchair, T706.
24 While the plaintiff’s efficiency as a dressmaker was impeded by her paraplegia she did not suggest that she could have earned any more money from such work if she had not been so impeded.
25 See Calvaresi v Lawson (above); Kite v Malycha (1998) 71 SASR 321 at 354.
26 This does not include what was paid through Medicare.
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