Wei Fan v South Eastern Sydney Local Health District (No 2)

[2015] NSWSC 1235

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wei Fan v South Eastern Sydney Local Health District (No 2) [2015] NSWSC 1235

Hearing dates:

16, 17, 18, 19, 20, 23 & 30 March 2015; 25, 26 & 28 May 2015

Date of orders:

31 August 2015

Decision date:

31 August 2015

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

Judgment

 

(1) Judgment is entered in favour of the defendant.

 (2) Costs are reserved.

Catchwords:

PROFESSIONAL NEGLIGENCE – medical negligence - alleged failure to diagnose type 2 diabetes – alleged failure to diagnose acute cholecystitis – alleged failure to carry out cholecystectomy – breach of duty of care – causation - damages

Legislation Cited:

Civil Liability Act 2002 (NSW)
National Health Act 1953 (Cth)

Cases Cited:

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; [2009] HCA 48
Astley v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6
Dell v Dalton (1991) 14 MVR 158; (1991) 23 NSWLR 528
Dobler v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151
Government Insurance Office (NSW) v Rosniak [1992] Aust Torts Reports 81-178; (1992) 27 NSWLR 665
Hirst v Sydney South West Area Health Service [2011] NSWSC 664
Hunter Area Health Service v Marchlewski [2000] NSWCA 294; (2000) 51 NSWLR 268
King v Western Sydney Local Health Network [2013] NSWCA 162
Lee Transport Co v Watson [1940] HCA 27; (1940) 64 CLR 1
Matthews v Dean (1990) 11 MVR 455; [1990] Aust Torts Reports 81-037
New South Wales v Doherty [2011] NSWCA 225
Pamment v Pawelski [1949] HCA 43; (1949) 79 CLR 406
Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311
Pollard v Baulderstone Hornibrook Engineering Pty Ltd (2008) 172 IR 453; [2008] NSWCA 99
Richardson v Schultz (1980) 25 SASR 1
Rogers v Whitaker (1992) 109 ALR 625; (1992) 175 CLR 479
Sharman v Evans [1977] HCA 8; (1977) 138 CLR 562
Southgate v Waterford [1990] Aust Torts Reports 81-065; (1990) 21 NSWLR 427
State Government Insurance Commission v Hitchcock (Supreme Court of Western Australia, Full Court, 11 March 1997, unreported)
Sutherland Shire Council v Major [2015] NSWCA 243
Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12
Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62
Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19
Woolworths Ltd v Strong [2010] NSWCA 282

Texts Cited:

Fleming, The Law of Torts (10th Edition)
Luntz, Assessment of Damages for Personal Injury and Death (4th Edition, LexisNexis)
Mosby’s Dictionary of Medicine, Nursing & Health Professions (3rd ANZ Edition)
Street, The Law of Torts (4th Edition)

Category:

Principal judgment

Parties:

Wei Fan (Plaintiff)
South Eastern Sydney Local Health District (Defendant)

Representation:

Counsel:
P Glissan (Plaintiff – 17 March 2015)
S Woods (Defendant)

  Solicitors
David Fan (Assisting the Plaintiff)
Curwoods Lawyers (Defendant)

File Number(s):

2008/289228

Publication restriction:

Nil

TABLE OF CONTENTS

Tutor

A brief overview of the plaintiff’s claim

The medical experts

Credibility in the plaintiff’s camp

The plaintiff

Ms Wang’s credibility

David Fan’s credibility

Duty and standard of care

The facts

(A) St George hospital from 20 to 23 January 2007

Diabetes

Initial diagnosis of cholangitis (not cholecystitis)

Removal of gallbladder?

(B) Prince of Wales hospital from 23 to 31 January 2007

Evidence of Professor Stephen Riordan

Evidence of Dr Gregory Keogh

The ERCP

Discharge – 31 January 2007

(C) Gastroenterology Outpatient clinic of Prince of Wales hospital on 8 February 2007

(D) Surgical review on 15 February 2007

(E) Prince of Wales hospital pre-admission clinic on 21 February 2007

Was the plaintiff 44 kilograms?

Weight loss – SIADH?

(F) Cancellation of surgery scheduled for 28 February 2007

Appointment with Dr Chu

(G) Admission to Sutherland hospital on 8 March 2007

Did the plaintiff discharge himself against medical advice?

Fall after discharge from Sutherland hospital

The cause of the plaintiff’s fall

(H) Transfer and admission to St George hospital from 9 March 2007 to 16 March 2007

The plaintiff’s weight at St George hospital

The fall from the hospital bed – 11 March 2007

Cholecystectomy – 15 March 2007

Discharge on 16 March 2007

(I) Further admission to Sutherland hospital on 28 April 2007

The plaintiff’s further alleged falls

Diagnosis of type 2 diabetes and neuropathy

Breach of duty of care

(1) Failure to investigate, diagnose and manage type 2 diabetes mellitus?

(2)(a) Failure to diagnose and treat cholecystitis

(2)(b) The delay in performing a cholecystectomy and decision to first perform an ERCP

(3) Fall from hospital bed on 11 March 2007

(4) Discharge from St George hospital on 16 March 2007

(5) Information and advice

The law on causation

Diabetes

Diagnosis of cholecystitis

Delay in cholecystectomy

Information about procedures and costs

Fall from hospital bed on 11 March 2007

Discharge from St George hospital on 16 March 2007

Contributory negligence, failure to mitigate and volenti non fit injuria

Damages

General principles

Statistical information

Overview of my approach to calculating damages

The plaintiff’s psychiatric condition and care

Interrelationship between the plaintiff and Ms Wang

Non economic loss

The plaintiff’s life pre and post accident

Past and future economic loss

Future economic loss

Out of pocket expenses

Future medication expenses

Future training and professional services

Past and future care

Handyman expenses

Landscaping and architectural needs and hydrotherapy pool

Additional future home maintenance and running costs

Additional travel costs

Special equipment costs

Assistive technology

Provision of suitable motor vehicle

Exercise (membership of club or gymnasium with membership for his carer)

Future medical interpreter fees

Childcare past and future

Court and legal expenses

Wei Fan’s hospital debts and Medibank Private statement of benefits paid

Conclusion

Judgment

Judgment

1. HER HONOUR: The plaintiff seeks damages in the sum of approximately $86,000,000 for alleged medical negligence.

2. The plaintiff is Wei Fan. The defendant is South Eastern Sydney Local Health District. The plaintiff’s wife is Yue Wang (“Ms Wang”). During the hearing, Ms Wang sat at the bar table with Qing Zhang Fan (known as and referred to as David Fan in this judgment). David Fan is the son of the plaintiff and Ms Wang. David Fan is in his final year of Law School and acted as an advocate for his father. It was a difficult position for him to be placed in. The hearing of these proceedings was not without its difficulties.

3. The plaintiff was legally represented up until May 2013. His solicitors drafted the further amended statement of claim and medical reports, instructed medical legal experts and obtained experts’ reports on damages.

4. The plaintiff speaks Mandarin. He is not fluent in the English language, nor is Ms Wang. When the proceedings came on for hearing, the plaintiff did not have an interpreter. No statements of witnesses had been prepared nor served.

5. This Court arranged and paid for an interpreter for the plaintiff while the evidence was being given. Time was allowed for David Fan to prepare statements. The Court provided David Fan with a copy of each day’s transcript. The plaintiff tendered three folders of hospital records but they were not in any particular order. Documents from different hospitals were interspersed with each other, mixed with pleadings and what I think can best be described as written commentary.

6. The hearing took place over nine days commencing 16 March 2015 and concluding on 28 May 2015. Some months after this Court reserved its judgment, the plaintiff, without leave of this Court and without explanation, forwarded a folder of documents relating to out of pocket expenses, and later, again without leave of this Court and without explanation, forwarded a new occupational therapy assessment report of Anna Everett, of ARW, dated 12 August 2015. In relation to the admissibility of these documents, after the receipt of written submissions by both parties in relation to each, I decided to allow the tender of the out of pocket expenses folder. However, I disallowed the tender of Ms Everett’s occupational therapy assessment report. Reasons for these decisions are given under the headings “out of pocket expenses” and “the plaintiff’s psychiatric condition and care” respectively.

7. Both David Fan and Ms Wang were witnesses in the plaintiff’s case. They provided statements and were cross examined. As some of their evidence was strongly contested, both David Fan and Ms Wang, as witnesses, had to absent themselves from court while the plaintiff was being cross examined. At very short notice, Paul Glissan barrister appeared for the plaintiff on a pro bono basis. Mr Glissan was present when the plaintiff was being cross examined in the absence of his wife and son.

Tutor

8. At the outset of the hearing, there was an issue as to whether the plaintiff still had a tutor acting on his behalf. On 16 March 2015, David Fan repeatedly referred to Ms Wang as “the tutor”. This Court sought to clarify whether or not the plaintiff had a tutor. David Fan informed this Court that Ms Wang had been the plaintiff’s tutor, but that order had been revoked the week before this hearing.

9. On 19 March 2015, this Court again raised the issue of a tutor with David Fan, having not been able to locate an order revoking the need for the plaintiff to have a tutor act on his behalf. Counsel for the defendant had also tried and failed to locate the order by looking through transcripts from recent directions hearings. It became apparent that no such revocation order was ever made.

10. David Fan agreed. I then noted that during these proceedings, the plaintiff had been under no legal disability and a tutor had not been required. As this Court had been earlier told by David Fan that the order for the tutor had been revoked and the proceedings had been conducted on that basis, the order was backdated to 16 March 2015, the first day of the hearing.

11. As the proceedings continued, I carefully observed the plaintiff while he gave evidence, was cross examined and sat in the back of the court. I have read the transcript of his evidence a number of times. I formed and have continued to hold the view that the plaintiff understood what was being said in court (with the assistance of the interpreter).

A brief overview of the plaintiffs claim

12. Between 20 January and 16 March 2007, the plaintiff attended three hospitals, Sutherland Hospital (“Sutherland hospital”), Prince of Wales Hospital (“Prince of Wales hospital”) and St George Hospital (“St George hospital”).

13. On 4 April 2012, the plaintiff filed a further amended statement of claim (“FASC”) which had been prepared by his former solicitors. The plaintiff separated his claim into two causes of action, headed “Claim in tort of negligence” and “Claim for breach of contract”. However, liability based on negligence is determined by the application of Part 1A of the Civil Liability Act 2002 (NSW), which “elides the traditional categorisation of causes of action and instead imposes uniform rules and principles wherever there is a claim for harm resulting from a failure to exercise reasonable care and skill”: see Leeming JA in Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 at [41]. Section 5A explains the application of Part 1A, and reads:

“5A Application of Part

(1)   This Part applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.”

14. The reasoning of Leeming JA in Paul v Cooke makes it clear that “negligence” is not a reference to the tort, “but to a category of conduct, which may be an element of a cause of action in tort, in contract, under statute or otherwise”: at [40]. At [41] Leeming JA commented that: “Part 1A of the Act applies uniformly to a class of claims for damage, irrespective of how the cause of action has been formulated, so long as the damage results from a failure to exercise reasonable care and skill.” Hence, the plaintiff’s two separate causes of action do not need to be distinguished from one another in these reasons.

At paragraph [60] of the FASC, the plaintiff alleges that there have been fifteen separate breaches of the duty of care owed to him. While the pleading is not entirely clear, doing the best I can, they can be summarised as follows:

Failing to investigate, diagnose and manage type 2 diabetes mellitus (“type 2 diabetes”), with no follow up after initial tests were undertaken in January 2007;

Failing to properly diagnose and manage the plaintiff’s gallbladder condition, by:

Failing to diagnose the condition as cholecystitis and treat it accordingly; and

Delaying a cholecystectomy (at various points in time up until 15 March 2007, when a cholecystectomy was performed) and not performing an ERCP first on 30 January 2007;

Wrongly allowing the plaintiff to fall from his hospital bed on 11 March 2007;

Wrongly discharging the plaintiff from St George hospital on 16 March 2007 when he was not fit to be discharged; and

Failing to give the plaintiff information about treatments and the costs involved (considering his Medicare status).

The plaintiff alleges that as a result of those breaches of duty, he suffered the following damage and loss:

• Exacerbation of type 2 diabetes with development of complications including peripheral neuropathy, myopathy, cataracts and vascular disease;

• Progression of cholecystitis to a severe state;

• A Fractured skull on 9 March 2007;

• Syndrome of Inappropriate Anti-Diuretic Hormone (SIADH) release secondary to the fracture of his skull;

• Further injury to his skull and brain as a result of the fall from his bed while in St George hospital on 11 March 2007;

• A Traumatic brain injury resulting in widespread, permanent and progressive brain damage.

15. It is common ground that by May 2008, the plaintiff had developed type 2 diabetes as well as a moderately severe sensorimotor peripheral neuropathy. These conditions were diagnosed on 15 May 2008 (see letter from Professor Michael Anthony, Ex B, Tab N). It is also not in dispute that on 9 March 2007, the plaintiff suffered a skull fracture.

16. By amended defence to the FASC filed 19 September 2013, the defendant admits that it owed the plaintiff a duty of care in providing health services to him. The defendant admits that the relevant hospital staff at St George hospital, Prince of Wales hospital and Sutherland hospital, where the plaintiff was a resident, were at all material times employees of the South Eastern Sydney and Illawarra Area Health Service (formerly the Area Health Service) and that it is vicariously liable for negligent acts and/or omissions of those staff where those acts or omissions were performed during the course of their employment. (see amended defence at [67] and [68]). This duty of care will be discussed in more detail later in this judgment. However, the defendant denies the existence of the duty of care contended for by the plaintiff, denies breach of duty and causation, pleads s 5O Civil Liability Act as a defence; and alleges contributory negligence, failure to mitigate damage and volenti not fit injuria (see amended defence at [69] to [73] and [76] to [79]).

17. Before I deal with the facts that I will set out in chronological order, it is convenient that I refer to the medical experts, whose evidence will appear throughout this judgment. I will also discuss some issues about credibility, and set out the legal principles of duty and standard of care as these are referred to throughout the chronology of events. I will deal with the alleged breaches of duty of care as they arise throughout the chronology. However I will also make general conclusions on breach of duty after I have set out the facts, and before I determine causation and damages. Consequently, it is unavoidable that there will be some repetition.

The medical experts

18. Professor Ross Smith, Dr Christopher Vickers and Associate Professor Neil Collier provided individual medical reports, wrote a joint report dated 17 December 2014 (Ex A, Tab F) and gave helpful concurrent evidence at Court on 23 March 2015. Professor Smith was retained by the plaintiff and both Dr Vickers and Associate Professor Collier were retained by the defendant. The medical experts were asked for their opinions on various medical issues. Where they agree on issues I shall refer to them jointly as “the medical experts”. Where they do not agree I shall refer to them by name.

19. Professor Smith is a consulting hepato-pancreatico-biliary and upper gastrointestinal surgeon at the Royal North Shore hospital, St Leonards. His report is dated 8 December 2014. Dr Vickers is a gastroenterologist and

20. etiologist at St Vincent’s hospital, Sydney. His report is dated 17 October 2014. Associate Professor Collier is a hepato-pancreatico-biliary and upper gastrointestinal surgeon at the Royal Melbourne hospital and Airport Health Care, Melbourne. His report is dated 16 September 2014. They are all experts on the hepatobiliary system. However, not being a surgeon, Dr  Vickers declined to answer some questions about hepatobiliary surgery.

21. Professor Smith and Dr Vickers also offered opinions about diabetes despite not being endocrinologists. Dr Vickers provided opinions on diabetes as a specialist consultant physician as he frequently admits patients to hospital for gastrointestinal conditions, with diabetes as a common accompaniment. Dr Collier declined to answer questions about diabetes as it is out of his expertise.

22. In their individual medical reports, some of Professor Smith’s opinions differed from those of Dr Vickers and Associate Professor Collier. In their joint report, the opinions of Professor Smith to a lesser extent differed from those of Dr Vickers and Associate Professor Collier on some issues. However, in cross examination it became apparent that some of Professor Smith’s opinions were based on information that had been provided during a conference with the plaintiff and his family. Consequently, when the medical experts gave concurrent evidence in Court, Professor Smith, having been shown the actual hospital records, abandoned some of his earlier opinions and agreed with Drs Vickers and Collier.

23. While I am on the topic of medical reports, there are a number of medical terms that are defined throughout this judgment. I have used Mosby’s Dictionary of Medicine, Nursing and Health Professions (3rd Edition), except where otherwise stated.

Credibility in the plaintiff’s camp

24. It is convenient that I now also record my observations concerning the credibility of the plaintiff and his witnesses, Ms Wang and David Fan, as it is relevant to my findings on both liability and damages. They all provided statements and were cross examined (the plaintiff’s statement is dated 17 March 2015 (Ex E), Ms Wang’s statement is dated 18 March 2015 (Ex G) and David Fan’s statement is 17 March (Ex F)).

The plaintiff

25. The plaintiff made no submissions in relation to his credibility other than a request that this Court “decide upon the facts, and justice according to law”. Counsel for the defendant submitted that the plaintiff’s evidence is frequently contrary to contemporaneous medical records and where there is a conflict, the objective hospital records ought be favoured over the plaintiff’s recollection.

26. While it is not ideal that disputed evidence is dealt with here out of chronological order, it explains why I have reservations accepting the plaintiff’s evidence in relation to various admissions to hospital. I shall refer to a number of examples where the plaintiff gave evidence that is at odds with the medical records. They are:

• On 31 January 2007, when the plaintiff was discharged from Prince of Wales hospital, he denied being provided with any advice in relation to the need to see a surgeon (T72.8-29). However, the clinical notes indicate that he was advised of the need to talk to the surgical team (Ex 7, p 78).

• On 15 February 2007, the plaintiff denied telling Dr Keogh (a surgeon at the Prince of Wales hospital) that he had not had any further pain (T77.15-25; T77.40-42). In contrast, Dr Keogh recorded that the plaintiff told him that he had no further pain (Ex A, Tab O p 77).

• The plaintiff admitted that he did not actually recollect how he felt on 15 February 2007 at the Prince of Wales hospital surgery review clinic (T78.44-46) but could not explain why he put a definitive statement as to how he felt into his statement dated 17 March 2007 (Ex E [6]).

• On 9 March 2007, the plaintiff discharged himself from Sutherland hospital against medical advice. He signed the “Discharge From Hospital Against Medical Advice” form. The clinical notes record that there was a medical registrar who spoke Mandarin (Ex 4, 50-57). This is in contrast with the evidence given by the plaintiff where he denied the presence of an interpreter and says that he was told “sign this then you can go” (T82.17-49; T90.33-50). The plaintiff denied being advised that he ought not leave Sutherland hospital on 9 March 2007 and maintained that he was told that he could go. The hospital records are detailed and are supported by the statements of the staff involved in caring for the plaintiff. Dr Aziez (being the doctor who provided the treatment to the plaintiff and gave him the drip) denied telling the plaintiff that he could go home (Ex 17). Associate Professor Warrier (who at that time was a surgical registrar at Sutherland hospital) denied that he told the plaintiff he could go home (Ex 16). Ms Fuchs, (a registered nurse) confirmed her role in relation to the discharge of the plaintiff (Ex 15). The plaintiff did not challenge the evidence of Dr Aziez, Associate Professor Warrier or Ms Fuchs. The plaintiff was aware that an interpreter had been booked for that morning but maintained his view in evidence that he was told that he could go home (T 82.35).

• The plaintiff denied being weighed at St George hospital (T95.40-59; T96). Yet St George hospital clinical notes record the plaintiff’s weight (Ex B, Tab O, p 290). This is a critical issue and is the subject of detailed analysis later in this judgment.

27. There were other occasions when the evidence of the plaintiff was internally inconsistent. Two examples are:

• In relation to his fall at St George hospital, the plaintiff said that “four or five nurses at the door saw me having the fall” (T93.39-40). However, he also admitted that they did not see him fall (T92.50).

• The plaintiff gave evidence that he told Dr Chu that he had a fall at home on 26 February 2007 but he was not injured (T94.21-22). However, he contradicted that by saying that the first fall he had was on 9 March 2007 (T30-31).

28. There are other occasions where the plaintiff’s credibility is in issue but I will refer to them when they arise in the chronology of events.

29. I have taken into account the plaintiff’s lack of proficiency of English and that he may have, at times, had difficulty expressing himself during hospital admissions. He did not appear to have any discernible difficulty when he gave evidence and was cross examined in Court with the assistance of a Mandarin interpreter.

30. As previously stated, I carefully observed the plaintiff when he was giving evidence and during cross examination. I have reluctantly come to the conclusion that the plaintiff was deliberately attempting to present his case at its highest and tailored his evidence to further this objective. Hence, I have come to the conclusion that I can only accept the plaintiff’s evidence where it is uncontentious. Where the plaintiff’s evidence conflicts with the evidence of the hospital staff and contemporaneous hospital records, I prefer the contemporaneous records.

Ms Wang’s credibility

31. As far as Ms Wang’s credibility is concerned, again the plaintiff made no submissions other than a request that this Court “decide upon the facts, and justice according to law”.

32. Counsel for the defendant submitted that the evidence of Ms Wang was of limited assistance to these proceedings and should not be taken as a truthful recount of events. Counsel for the defendant also drew this Court’s attention to numerous occasions where Ms Wang’s evidence was riddled with inconsistency. When giving evidence and in cross examination, the defendant submitted that Ms Wang was combative and uncooperative in answering questions.

33. I carefully observed Ms Wang throughout the hearing and in particular when she gave evidence and was cross examined. Overall, my conclusion is that Ms Wang was less than a satisfactory witness. She gave evidence with the assistance of a Mandarin interpreter but her evidence was evasive. She temporised. She gave unresponsive answers to questions. She took notes. The interpreter, at times, expressed difficulty in translating her evidence. After a while, this Court requested Ms Wang to stop taking notes as it thought this was an explanation as to why she was giving unresponsive answers to questions as her note writing may have distracted her from properly formulating her answers. After this Court’s request to desist with the note taking, she continued to do so until this Court had to make a further request for her to stop.

34. On a number of occasions, this Court directed Ms Wang to focus on answering the question and not to volunteer evidence. It was explained to her that if she did not do so, this Court may reluctantly have to reach the conclusion that she was endeavouring to bolster her husband’s case. She chose not to heed this instruction.

35. As previously stated, throughout the hearing, Ms Wang sat at the bar table. She spoke to David Fan. From time to time, she insistently drew David Fan’s attention to documents. Throughout this litigation and during this hearing Ms Wang took what can only be described as a very active role. An example of her behaviour prior to the hearing concerned an expert, Ms Joanne Oates, an occupational therapist. Ms Oates interviewed the plaintiff on 10 September 2014 (T277.26-27). Ms Wang was present during this appointment. I shall briefly refer to what occurred. Ms Oates gave evidence that she found it a “difficult interview process in terms of the questioning and the response process” (T262.45-50, T278.28-29). The plaintiff was hindered from providing direct answers to Ms Oates’ questions because Ms Wang was “dominating that process” (T278.35). Ms Oates added, “Or, if he sometimes would respond to things, I found that that would then be negated or altered in response from his wife” (T278.35-36). When Ms Wang was questioned in Court about her role in the plaintiff’s interview with Ms Oates, she refused to concede that she had been involved in a discussion during that interview, where the plaintiff said he could be left alone (T281.34, T282.2). This illustrates Ms Wang’s approach to the pre-litigation process and the litigation process.

36. Perhaps the most confusing evidence Ms Wang gave was on the topic of the plaintiff’s entitlement to Medicare. The case pleaded by the plaintiff was that he was not entitled to Medicare and the hearing proceeded on this basis. However, Ms Wang disputes that the plaintiff was not entitled to Medicare. In cross examination she stated:

“Q. That decision by the family to discharge was because you were paying overseas rates for the hospital stay, that’s true isn’t it?

A. Because on 26 January I married Wei Fan and I have a Medicare card, and because Wei Fan is marrying me so he is entitled to have the same treatment ‑ the same status so - because at that time I have already applied for PR visa for Wei Fan at that time.  At that time all the information has already sent to the immigration department.  I do know about these conditions and the circumstances.

Q. As at 31 January 2007 it was your understanding that Wei Fan had to pay overseas rates at the hospital wasn’t it?

A. Very simple, that day nobody talk to us about the hospital fees, the only thing mentioned was he would be discharged on that day.

Q. … Mrs Wang, it was your belief on 31 January 2007 that Mr Wei Fan had to pay overseas rates for the hospital stay weren’t you?

A. Yes.” (T254.29).

37. There is no doubt that Ms Wang has been the driving force in this litigation. Her evidence has been focused on presenting her husband’s case at its highest regardless of the truth or the consequences. Where her evidence is disputed, I have not accepted it unless it is corroborated by contemporaneous records or evidence other than that of the plaintiff or David Fan.

David Fan’s credibility

38. David Fan also sought to present his father’s case at its highest. The plaintiff made no submissions in relation to the credibility of David Fan. David Fan acted as interpreter for his parents during attendances at hospitals and medical appointments. His oral and written English is good. But regrettably I have reservations about the veracity of his evidence.

39. As I have said, David Fan has been placed in a difficult position. He prepared the statements for the plaintiff, his mother and himself. One of the most hotly disputed topics in the trial was the weight of the plaintiff on 27 February 2007. The plaintiff, Ms Wang and David Fan all say that the plaintiff weighed 44 kilograms on that day. I do not accept the plaintiff’s or his witnesses evidence on this issue and that includes the evidence of David Fan. It is not necessary for me to reach a conclusion as to whether David Fan’s evidence on this topic is deliberately false or a reconstruction, but it is definitely not a mistake.

Duty and standard of care

40. Before I set out the plaintiff’s submissions in chronological order, it is necessary to briefly set out the legal principles regarding the duty and standard of care for medical professionals, as throughout the chronology I will make assessments about whether or not the relevant medical professionals met the requisite standard of care. Later in this judgment, I will set out the legal principles relevant to my analysis of breach of duty, causation and damages.

41. It is not in dispute that the defendant, through its employees, owed the plaintiff as a patient, a duty to exercise reasonable care and skill in the provision of professional advice and treatment: Rogers v Whitaker (1992) 109 ALR 625; (1992) 175 CLR 479 at 483. That duty is a “single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment” and extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case: Rogers v Whitaker at 483.

42. The duty of a medical professional to provide information was most recently discussed in Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at [8]:

“8.   … A component of th[e] single comprehensive duty is ordinarily to warn the patient of ‘material risks’ of physical injury inherent in a proposed treatment. A risk of physical injury inherent in a proposed treatment is material if it is a risk to which a reasonable person in the position of the patient would be likely to attach significance, or if it is a risk to which the medical practitioner knows or ought reasonably to know the particular patient would be likely to attach significance in choosing whether or not to undergo a proposed treatment.”

43. The standard of care owed by a medical practitioner will depend on their relevant skill and it is necessary to give content to the duty in the given case. To ascertain the precise content of the duty in a particular case it is necessary to determine what, in the circumstances, constitutes reasonable care and what constitutes ordinary skill in the relevant area of medical practice: Gaudron J in Rogers v Whitaker at 492. In Rogers v Whitaker, Mason CJ stated at 487:

“In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill.”

44. In Rogers v Whitaker, Mason CJ continued at 487, that “that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade”. However, since the introduction of s 5O of the Civil Liability Act, a medical professional will not be liable for negligence arising from the provision of medical services if it is established that they acted in a manner that, at the time, was widely accepted in Australia by peer professional opinion as competent professional practice. Section 5O reads:

“5O Standard of care for professionals

(1)   A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.

(2)   However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.

(3)   The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.

(4)   Peer professional opinion does not have to be universally accepted to be considered widely accepted.”

45. Section 5O can operate as a defence. In Dobler v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151, Giles JA at 167-168 stated:

“Section 5O may end up operating so as to determine the defendant's standard of care, but the standard of care will be that determined by the Court with guidance from evidence of acceptable professional practice unless it is established (in practice, by the defendant) that the defendant acted according to professional practice widely accepted by (rational) peer professional opinion.”

46. Hence, in dealing with the plaintiff’s submissions it will be necessary to refer to the relevant skills of the medical professionals and, based on the opinions of the medical experts, determine whether those professionals acted in a manner that was widely accepted in Australia by peer professional opinion as competent medical professional practice. It is important to reiterate that s 5O provides that that peer professional opinion does not have to be universally accepted to be considered widely accepted.

The facts

47. The plaintiff was born in March 1962 in China. He came to Australia in July 2000. In January 2007, the plaintiff was 44 years old. When the plaintiff attended court he ambulated with the use of a walking frame. Outside Court he wears rugby style headgear. He has a hearing aid in his left ear. The plaintiff’s submission was that his weight before 20 January 2007 was approximately 70 to 75 kilograms and that when he lived in China his weight had always been 70 to 75 kilos for all his health checks. (T69.29-30). In other words, the plaintiff says that he had consistently weighed between 70 and 75 kilograms.

48. It is common ground that the plaintiff attended the defendant’s hospitals or clinics on the following occasions:

1. From 20 January 2007 to 23 January 2007 - St George hospital;

2. From 23 January 2007 to 31 January 2007 - Prince of Wales hospital;

3. On 8 February 2007 - the Prince of Wales hospital gastroenterology outpatient clinic;

4. On 15 February 2007 - Dr Keogh’s Prince of Wales hospital clinic;

5. On 21 February 2007 - the Prince of Wales pre admission clinic;

6. [NOTE: On 22 February 2007 - the cholecystectomy was cancelled];

7. On 8 March 2007 and 9 March 2007 - Sutherland hospital;

8. From 9 March 2007 to 16 March 2007 - St George hospital;

9. During April 2007 - Sutherland hospital; and

10. From 25 May 2007 to 15 June 2007 - the rehabilitation ward of St George hospital.

(A)   St George hospital from 20 to 23 January 2007

49. On 20 January 2007 at about 7.00 pm, the plaintiff attended the accident and emergency department at St George hospital seeking medical attention. He was accompanied by David Fan.

Diabetes

50. Prior to being admitted, Ms Amy Ashcroft, a registered nurse, reviewed the plaintiff. The hospital records indicate that the plaintiff presented with symptoms of abdominal pain, jaundice and vomiting. A glucometer recording was taken showing the plaintiff’s blood glucose level was raised at 10.8mml/L. A urine glucose recording was also taken showing that the plaintiff had glucose in his urine of 250mg/dl.

51. Dr Laura Cotiga, a resident medical officer, and Dr Melvin Muralidharan, a surgical registrar, reviewed the plaintiff. The plaintiff was admitted to St George hospital under the care of Dr Frances Chu. Dr Chu is a consultant hepatobiliary surgeon at St George and Sutherland hospitals. Dr Chu provided a witness statement (Ex 8) but was not required for cross examination. The plaintiff was not diagnosed with type 2 diabetes when reviewed by Drs Cotiga and Muralidharan, nor was he diagnosed with diabetes during his admission to St George hospital under the care of Dr Chu.

52. Diabetes is a complex disorder of carbohydrate, fat and protein metabolism that is primarily a result of a deficiency or absence of insulin secretion by the beta cells of the pancreas or resistance to insulin. Patients with type 2 diabetes are usually not insulin dependent but may be insulin requiring, are commonly obese, are generally older than 40 years and often have a genetic predisposition to develop the disease. Type 2 diabetes usually begins insidiously (Mosby’s p 513-514).

53. Professor Smith and Dr Vickers were asked what the glucometer reading of 10.8mml/L and the multisticks 10 sg test result of 250mg/dg indicated, either alone, or in combination. Professor Smith and Dr Vickers agreed in their joint report that the results showed elevated blood sugar, but not necessarily diabetes. They also agreed that the results did not necessitate treatment as and of themselves (joint report Ex A, Tab F, p 2). Dr Vickers in his report stated that the normal course of action would be to monitor the blood sugar and HbA1c during an admission. Where a hospital admission was brief, Dr Vickers said that the patient would normally be told of his elevated sugar level and that it ought to be checked again when he is well. Dr Vickers added that a single elevated blood sugar reading of 10.8mml/L does not necessarily indicate diabetes. Professor Smith in his report stated that it would have been important for the staff to make a comment on the elevation of blood and urine glucose and to monitor it over a period of time. The experts were not cross examined on this issue.

54. Dr John Carter, an endocrinologist, prepared an expert report dated 17 April 2013 concerning the plaintiff’s diabetes. His opinions supplement those of Professor Smith and Dr Vickers regarding the diagnosis of diabetes. Dr Carter was not required to give evidence or required for cross examination. Dr Carter was asked to address (in his report) what the appropriate follow up of the plaintiff’s blood sugar tests should have been. Dr Carter’s opinion was that a random level of 10.8mm/L is not diagnostic of diabetes as the diagnosis can be made if the random glucose level is greater than 11mm/L and symptoms of high glucose levels, such as increased thirst or urination, are present. The plaintiff’s level was less than 11mm/L and those symptoms were not present. Dr Carter commented that he would have interpreted the reading as being above the normal range as being due to genetic predisposition for diabetes or due to the stress associated with his illness. The appropriate follow up would have been to monitor further glucose levels to determine whether they returned to normal.

55. On the basis of the opinions of Professor Smith, Dr Vickers and Dr Carter, I do not make a finding that when the plaintiff was admitted to St George hospital on 21 January 2007, he should have been diagnosed and treated for diabetes. That assertion is not supported by the medical evidence. I am satisfied, on the balance of probabilities, that the actions of the Drs Cotiga, Muralidharan and Chu were in accordance with competent professional practice within their various specialities.

Initial diagnosis of cholangitis (not cholecystitis)

56. The plaintiff’s evidence is that through his son, he informed hospital staff that he wished to have his gall bladder removed by way of a cholecystectomy [surgical removal of the gallbladder, often due to cholecystitis] and that hospital staff refused this request.

57. On 22 January 2007 at 12.30 pm an ultrasound was undertaken. Dr Chu reported, “Mr Fan’s presenting problem was obstructive jaundice.” Dr Chu referred to the ultrasound report. It showed multiple stones in the gallbladder with no evidence of cholecystitis. The report concluded, “Cholelithiasis with no ultrasound evidence of cholecystitis nor of biliary dilation”. The plaintiff’s common bile duct had multiple stones (Ex 3, p 325). Cholelithiasis is “the presence of gallstones in the gallbladder” (Mosby’s p 350). Hence, the results of the ultrasound indicated that there were stones in the plaintiff’s gallbladder but no evidence of acute cholecystitis.

58. The plaintiff was diagnosed with cholelithiasis and cholangitis. However, he was not diagnosed with acute cholecystitis. All three of these conditions occur within the biliary system.

59. The biliary system involves the gallbladder and bile ducts, which transport bile These are often called the biliary tract. The cystic duct is the duct through which bile from the gallbladder passes into the common bile duct. Gallstones, also known as biliary calculi, are stones formed in the biliary tract consisting of cholesterol or bile pigments and calcium salts. I have reproduced a diagram of the biliary system which shows common sites of biliary calculi (see Mosby’s pp 204 and 471):

60. Acute cholecystitis and cholangitis are complications of cholelithiasis. Cholangitis is “inflammation of the bile ducts caused either by bacterial invasion or by obstruction of the ducts”. Acute cholecystitis is “acute… inflammation of the gallbladder”. Cholecystitis can be acute or chronic (Mosby’s pp 350 and 351).

61. While cholangitis and acute cholecystitis both involve biliary inflammation, they are very different conditions (see evidence of Dr Collier at T188.28). It is important to keep in mind the differences between the conditions of cholangitis and acute cholecystitis. Acute cholecystitis is usually caused by a gallstone that cannot pass through the cystic duct. Cholangitis is caused either by bacterial invasion or by obstruction of the bile ducts by calculi or a tumour (Mosby’s p 350). Acute cholecystitis and cholangitis tend to be separate conditions as it depends on whether the inflammation is in the gallbladder or the bile duct. Dr Keogh said that it is very unusual to get acute cholecystitis combined with cholangitis (T173.35).

62. It is also important to keep in mind the differences between the indicators of acute cholecystitis and the indicators of cholangitis, some of which overlap. Indicators of acute cholecystitis are pain felt in the right upper quadrant of the abdomen accompanied by nausea, vomiting, eructation (burping) and flatulence. Indicators of cholangitis are severe pain felt in the right upper quadrant, jaundice (if an obstruction is present), intermittent fever and blood tests that reveal an elevated level of serum bilirubin and leucocytes (Mosby’s p 350).

63. The treatment differs depending upon whether the diagnosis is cholangitis or acute cholecystitis. Treatment for cholangitis may include antibiotics before surgery for acute obstruction (Mosby’s p 350). With acute cholecystitis, surgery is the preferred treatment, and usually occurs within 48 hours of presentation (see evidence of Dr Keogh at T166.30).

64. At the conclave, the medical experts were asked about whether or not cholecystitis should have been diagnosed from the ultrasound. Professor Smith stated that “I’ve reviewed the literature on whether an ultrasound can diagnose acute cholecystitis, and clearly, if the ultrasound shows the gallbladder swollen and inflamed and thick-walled, it’s 100%. But if you look at patients coming [to the hospital] with a syndrome of upper abdominal pain, inflammation, unwell and that gets better after a cholecystectomy, then the ultrasound report is only 60 to 70% accurate.”

65. By contrast, Dr Vickers and Associate Professor Collier were jointly of the view that the plaintiff had cholangitis rather than cholecystitis and this was correctly diagnosed on the ultrasound. Associate Professor Collier’s opinion was that “all the evidence points to his presenting complaint being one of cholangitis and with a normal ultrasound in terms of the wall thickness of the gallbladder, and the lack of tenderness mass, whatever when he’s examined, and the subsequent finding of a cholecystectomy is that he didn’t have acute cholecystitis, all these things point to the diagnosis on admission as being correct, of cholangitis, not cholecystitis, and that changes the way the patient is managed.” The evidence was strong that the stone was lodged in the bile duct. (T188.25).

66. Based on the opinion of Dr Vickers and Associate Professor Collier, it is my view that the diagnosis of cholangitis rather than cholecystitis made on 22 January 2007 by Dr Chu, was in accordance with competent medical professional practice. The ultrasound indicated that the gallstones were lodged in the bile duct, not the cystic duct, which is indicative of cholangitis, and the plaintiff presented with jaundice and abdominal pain, also indicating cholangitis.

Removal of gallbladder?

67. The plaintiff wanted to have a cholecystectomy at St George hospital. A cholecystectomy is the surgical removal of the gallbladder. As mentioned above, the plaintiff was diagnosed with cholangitis and cholelithiasis. In patients with severe attacks of biliary pain associated with cholelithiasis, cholecystectomy is recommended to prevent such complications as cholecystitis, cholangitis and pancreatitis. However, surgery may be delayed while acute inflammation is treated.

68. Initial treatment for acute inflammation from cholangitis, before a cholecystectomy, can occur via antibiotics or by an Endoscopic Retrograde Cholangio-Pancreaticography (“ERCP”) to drain the bile duct. An ERCP is an endoscopic test that provides radiographic visualisation of the bile duct through a flexible fibreoptic duodenoscope placed in the common bile duct. It involves inserting the endoscope into a natural opening in the body such as the mouth or anus for viewing (although incisions may be made for specific areas) (Mosby’s p 602). An ERCP can be used to remove stones from the bile duct before a cholecystectomy rather than removing the stones from the bile duct at the same time as the cholecystectomy (see evidence of Associate Professor Collier at T181.10). If an ERCP is successful, a cholecystectomy can then be performed to prevent further episodes of cholangitis.

69. After the ultrasound, the hospital staff, in particular Dr Chu, decided to perform an ERCP as an initial treatment rather than to undertake a cholecystectomy. The plaintiff’s evidence is that the hospital staff proposed: “an operation but they [staff at the hospital] did an ultrasound on my stomach and a chest X-ray and they told me there was a stone in my chest area.  They told me that the surgeon suggested to remove the stone by some explosives.  The plaintiff explained what he meant by “explosives” for treatment as: “It was a doctor or a nurse, I'm not sure on the identities, I was told there is this stone in my chest. They will put in a tablet to explode the stone into pieces. The outcome is after two year GP check ups in Princes of Wales hospital he was told there was no stone in my chest.” (T71.32.36).

70. The plaintiff says that he was told there was a “1% risk of death, that's all” and that the staff did not refer to the word, “ERCP” (T70.28-34). The plaintiff also gave evidence that he knew what an ERCP was, but did not think that the doctors were referring to an ERCP in that conversation. The plaintiff’s account conflicts with the clinical notes that record “Discussed: Dr Chu who strongly advises ERCP. Discussed: patient who is now happy to have ERCP tomorrow … Consent completed with son but interpreter will be needed to confirm it tomorrow.”

71. When Ms Wang and David Fan became aware that the doctors wanted to perform an ERCP on the plaintiff, they both say that they did some research on the topic of ERCP overnight, and then decided that the procedure was too risky. The plaintiff’s evidence is that when Ms Wang and David Fan told him it was too risky he decided not to go ahead with the ERCP (T70.35.39). In cross examination, Ms Wang first agreed that she left St George hospital and did research on ERCP at home. Ms Wang then denied that she left the hospital and said that rather, she and David Fan waited at the hospital from 10.00 pm to 1.30 am (T245.37). Later in cross examination, Ms Wang agreed that she was aware that the doctors wanted to perform an ERCP and that she was removing the plaintiff against medical advice. She wanted the hospital to transfer the plaintiff to Prince of Wales hospital because she was of the opinion that it was a better hospital with better facilities.

72. On 23 January 2007 at 1.30 am, Ms Wang and David Fan arrived back at St George hospital. Ms Wang called the plaintiff from the public phone in the hospital foyer and the plaintiff answered the phone next to his bed. Ms Wang asked the plaintiff to come downstairs and told him that they should leave because the ERCP procedure was very risky and could involve a 1% risk of death. The plaintiff’s evidence is that the family told the front desk that he was going to discharge himself (T71.1-12). The clinical records from 1.30 am to 2.00 am reveal that a discussion then took place between the doctors, the plaintiff, David Fan and Ms Wang about whether or not the plaintiff should leave St George hospital. The clinical notes record:

“0130   Long discussion with son and wife

- Want to remove patient from hospital

- Reasons are unclear

Came to ward to talk to patient but patient had absconded.

Security notified

0200   Explained risks/severity of current illness

Adamant about leaving

Discharged against medical advice

Advised to return if unwell.” (Ex B, Tab O, p 28).

73. Ms Wang confirmed this conversation took place. She agreed that the doctor told her that the plaintiff should stay at St George hospital but she was adamant that he leave. However, the plaintiff gave evidence that when he left St George hospital he did not understand that he was leaving against medical advice because he did not understand what they were talking about, and he was only aware that he needed to sign the form if he wanted to be discharged from the hospital. Further, during cross examination, the plaintiff said he had heard that not only in China but also in Australia, most of the hospitals were not using explosives for treatment. (T71.25.30).

74. On 23 January 2007, the plaintiff signed a certificate of removal from the hospital against medical advice, certifying that he was departing from St George hospital at his own risk. The hospital notes record that there was a long discussion that included “Discharge against medical advice”. As David Fan was present when this occurred, it is more likely than not that David Fan would have translated the conversation for his father. I make a finding that the plaintiff understood that he was leaving hospital against medical advice. This is the first occasion when the plaintiff discharged himself against medical advice.

75. The medical experts were asked what the treatment options available to the plaintiff were during his admission to St George hospital with respect to his medical condition. In their joint report the medical experts agreed (Q2, p 3) that there were two alternatives. The first was a laparoscopic cholecystectomy (the procedure that the plaintiff wanted) to remove the gallbladder; and the second was an ERCP. A cholecystectomy can remove the stones in the bile duct at the same time as removing the gallbladder [Associate Professor Collier]. The medical experts agreed that the cholecystectomy carried with it the usual surgical and anaesthetic risks. These risks could increase with the presence of jaundice. The stone might not always be cleared in a laparoscopic cholecystectomy and the procedure may need to be converted to an open procedure. Dr Vickers said that the risks associated with an ERCP were small. Associate Professor Collier agreed that the risks were small and that an ERCP does not carry the same anaesthetic risk as a cholecystectomy.

76. In their joint report (Q3, p 4), the medical experts were also asked whether, in accordance with competent professional practice, it was appropriate for St George hospital staff to decline to perform a cholecystectomy on the plaintiff without him first undergoing an ERCP. Associate Professor Collier answered yes. Professor Smith said it was a decision for the surgeon on the day, but it was not inappropriate. [Dr Vickers declined to comment as it was a surgical question]. I make a finding that on 23 January 2007, the decision not to perform a cholecystectomy on the plaintiff without him first undergoing an ERCP was in accordance with competent hepatobiliary surgical practice.

(B)   Prince of Wales hospital from 23 – 31 January 2007

77. At about 6.00 am on 23 January 2007, the plaintiff arrived at Prince of Wales hospital (T71) where he was admitted under the care of firstly, Professor Stephen Riordan and later, Dr Gregory Keogh. Professor Riordan is a staff specialist physician gastroenterologist/hepatologist at the Prince of Wales hospital and has worked there since 1999. He provided two statements dated 8 April 2013 and 12 March 2015. Dr Keogh is a senior staff specialist upper gastrointestinal surgeon at the Prince of Wales hospital and has worked there since 1995. He provided two statements dated 16 February 2015 and 12 March 2015. Both doctors gave evidence and were cross examined.

Evidence of Professor Stephen Riordan

78. On 23 January 2007, the plaintiff presented to the emergency department of Prince of Wales hospital with obstructive jaundice and cholangitis. Professor Riordan described those conditions as:

“Jaundice is a build of bilirubin in the blood due to a number of different ideologies.  Obstructive jaundice applies to when there's some pathology of the bile duct interrupting bile flow, so obstructive jaundice is that.  And Cholangitis is a very important complication of that in which there becomes infection of the bile and hence infection of the bile ducts and a systemic inflammatory illness consequently”. (T134.30).

79. Professor Riordan telephoned St George hospital to obtain the results of the plaintiff’s earlier ultrasound report. He gave evidence that the report was significant because it showed that although there were stones in the gallbladder, the clinical diagnosis was a problem with the bile duct. His evidence was:

“This is a very important report because the issue in patients that have gall stones in the gallbladder is whether the symptoms and the signs are due to inflammation of the gallbladder itself from the gall stones, or whether those stones in the gallbladder are for the moment incidental and the pathology lies elsewhere.  So what is looked for in an ultrasound, and this is done routinely, is to look for signs of cholecystitis.

Our clinical diagnosis, as I mentioned, was not a problem with the gallbladder itself, sure there were stones in the gallbladder, but our clinical diagnosis was a problem with the bile duct so gallbladder, cystic duct coming off that and joining the bile duct and the bile duct drains into the bowel and the clinical diagnosis based on the history, the degree of jaundice and the pain, in particular, and the inflammatory element, raised white cell count, low ..(not transcribable).. level in blood the clinical diagnosis was bile duct pathology, Cholangitis, rather than acute cholecystitis and the cause for the bile duct problem was assumed but not proven by this report to most likely be a stone, a small stone that had come out of the gallbladder and passed into the bile duct and got stuck before passing through” (T134.41).

80. Professor Riordan, as a gastroenterologist and hepatologist, diagnosed cholangitis not cholecystitis. In my view, there was nothing inappropriate about this diagnosis and it was in accordance with competent professional medical practice.

81. Professor Riordan said that the appropriate treatment for cholangitis involves two key elements. First is antibiotic therapy and the second is to ensure biliary drainage [through an ERCP] because the effectiveness of antibiotics in reducing infection will be compromised if there is no potential for infected bile to flow. He explained that the vast majority of patients with biliary obstruction and cholangitis settle with antibiotics in the short term, but around 15-30% of patients do not settle with antibiotics alone. The medical team at Prince of Wales hospital decided to perform an ERCP upon the plaintiff. This was the same test that the medical team had decided to perform at St George hospital.

82. Professor Riordan says that the plaintiff was symptomatic, had had a stormy course over the previous eight days, and that it was important for the medical team to know that there was no biliary obstruction. The plaintiff received antibiotics.

Evidence of Dr Gregory Keogh

83. The plaintiff was referred to Dr Keogh, who reviews patients in both the adult outpatients department and within the professional suite of Prince of Wales hospital.

84. On 24 January 2007, the plaintiff was initially reviewed by Dr Keogh’s Registrar, Dr Gandy. Dr Gandy made the preliminary diagnosis that the plaintiff had biliary sepsis and required an ERCP. The clinical notes record that Dr Gandy indicated that it would not have been “advantageous” to perform a cholecystectomy while the plaintiff had biliary sepsis and that a cholecystectomy could be performed at a later date. The plan was for Dr Keogh to review the plaintiff the following day and provide an opinion as to whether he required a cholecystectomy. It was noted that the plaintiff’s liver function tests were normalising but his temperature was still high. Dr Keogh was aware that the plaintiff had undergone an ERCP earlier that day but this had been abandoned because his oxygen saturation levels had dropped to 78 % on room air.

85. On 25 January 2007, the plaintiff was reviewed by Dr Keogh. Dr Keogh’s clinical diagnosis was cholangitis. In cross examination, Dr Keogh confirmed that the plaintiff did not have acute cholecystitis, and that this was based on clinical presentation and ultrasound findings (T162.6). Dr Keogh said that “the investigations, the presentation and the subsequent course of the illness were all consistent with an infection in the bile called cholangitis and were not consistent with cholecystitis which is inflammation of the gallbladder”. Like the medical staff at St George hospital, Dr Keogh reviewed the ultrasound report and in combination with the plaintiff’s clinical presentation, made a decision that the condition from which he suffered was cholangitis, not cholecystitis. This decision was appropriate and in accordance with competent professional medical practice.

86. Dr Keogh explained in evidence, that an ERCP is the intervention of choice to manage bile duct infection [cholangitis] as it drains the infected bile and usually removes the underlying gallstone cause. If ERCP is not possible, Dr Keogh said that radiological intervention to drain the bile is required, and if this is not possible, surgical intervention to explore the bile duct is then considered.

87. Dr Keogh’s view was that in a patient such as the plaintiff, the decision to perform an initial ERCP was the most expedient and the safest. This is because to try and do an operation for cholangitis can be quite difficult. Sometimes if endoscopy and percutaneous approaches have failed, surgery is the only option. That may require laparoscopy, bile duct exploration and possibly open surgery. Dr Keogh gave evidence that In a man who is unwell systemically with infection, it is better to wait for the infection to resolve and aim to do the operation when they are better (T163.19-26).

83. Dr Keogh’s opinion was that the decision to drain the bile duct by ERCP was the most appropriate way to manage the plaintiff’s problem. The subsequent decision to perform a cholecystectomy at a staged interval, was the most appropriate decision on that day, and this remains his usual practice to this day.

84. The medical experts were asked whether it was in accordance with competent professional medical practice to recommend an ERCP on 25 January 2007 and proceed with the procedure on 30 January 2007. In the joint report, both Associate Professor Collier and Dr Vickers answered “yes” and Professor Smith answered “yes” but with a qualification, namely that “it would have been better had a laparoscopic cholecystectomy been performed”. In cross examination, this issue was elaborated upon. Associate Professor Collier’s evidence was that there is an ongoing debate in medicine and surgery, which has never quite resolved, as to whether there should be an initial ERCP to remove stones from the bile duct, or whether a cholecystectomy should be performed, removing stones from the bile duct at the same time as removing the gallbladder. He indicated that both procedures are accepted methods of management of the condition and would generally come down to local expertise.

85. In cross examination, Professor Smith agreed with the proposition that both procedures are accepted ways of management of this condition. He added that the condition that the plaintiff presented with is difficult to label and the way in which such problems are treated are a matter of local expertise. Professor Smith explained “People don’t come in with a label on top of their head I have cholecystitis or I have obstructive jaundice… they come in with symptoms of pain and discomfort and they might have jaundice and it’s a complex issue … . When it’s sort of a frequent problem mostly it’s handled very well, occasionally things go haywire and it really does depend on local expertise to choose the right way to go”. (T181.32).

86. Associate Professor Collier, Dr Vickers and Professor Smith agreed that the plaintiff was sick when he arrived at Prince of Wales hospital and needed some intervention, and whether “you went down that arms towards endoscopic management followed by surgery or initial surgical management [an ERCP] probably doesn’t matter that much”. They agreed that “both methods achieve a good outcome in the majority of patients”. Professor Smith said that in a patient sick with infection from his bile duct, like the plaintiff, then there would be risks with surgery which would be ameliorated by clearing the bile duct first and letting the jaundice settle. Associate Professor Collier (T182.7) felt strongly that if the plaintiff was his patient he would have carried out the ERCP first. Dr Vickers’ opinion on the decision to do an ERCP before surgery was that if a patient presented with no features of cholecystitis, no tenderness, no distension of the gallbladder and was deeply jaundiced, as the plaintiff was, then “that would lead you more to ERCP, and in this case that was the direction that this fellow was going, and it was the correct decision…”

87. Based on the medical experts’ evidence, while both procedures were acceptable, it came down to local expertise, but as the plaintiff was sick with infection an ERCP should have been undertaken first. It is my view that the decision by Dr Keogh to carry out an ERCP first was made in accordance with competent medical professional practice.

The ERCP

93. After an unsuccessful attempt at an ERCP on 30 January 2007, the plaintiff underwent a successful ERCP performed by Dr Kurtovic, a staff specialist gastroenterologist. Dr Keogh does not perform ERCPs as they are not classified as a surgical procedure and can be performed by gastroenterologists. At Prince of Wales hospital, ERCPs are performed by the gastroenterology service. In other hospitals, ERCPs are performed by both gastroenterologists and surgeons, and in some hospitals, ERCPs are only performed by surgeons.

94. The ERCP showed no residual bile duct stones. The inspection of the plaintiff’s ampulla endoscopically suggested that there had been recent passage of a stone. The bile was draining freely. Clinically, the plaintiff was improving. His liver function tests were improving. His fever settled fairly quickly.

95. On 31 January 2007, Dr Keogh recommended that the plaintiff have a laparoscopic cholecystectomy as an outpatient.

Discharge – 31 January 2007

96. On 31 January 2007, the clinical notes record that there was a discussion between the family and Dr S Jamani, a gastroenterologist. The clinical notes also recorded that the plaintiff’s family wanted him to be discharged because he was paying overseas rates. The clinical notes (Ex 7, p 78) record:

“1030   pt feeling improved

c/o mild pain o/n

result of ERCP explained

obs stable

afeb.

(P) will d/w surg team re: cholecystectomy

? take over care

…

1215  - d/w family

- want to D/C pt today as are paying for overseas rates

- advised family of need to talk to surgical team before discharge

- family not willing to wait as state pt is feeling well

- unable to contact upper GI reg as in theatre,

- acute surgical reg in theatre.

- d/w gastro reg – refer pt to outpt clinic

for arrangement of time for lap chole.

- letter faxed to outpt clinic

- will contact pt with date/time of appt.”

97. In contrast with these contemporaneous written notes, both Ms Wang and the plaintiff deny that a conversation took place between them and Dr Jamani. Ms Wang said that she, her eldest child (David Fan) and her youngest child went to the hospital together but she did not speak to a doctor because her English was poor. Ms Wang does not know if David Fan spoke to Dr Jamani. While David Fan was not cross examined on this topic, he was the only member of the family present at the hospital who could have interpreted for the plaintiff and Ms Wang and spoken to Dr Jamani.

98. Ms Wang denied that she is the family member who said that the plaintiff is paying overseas rates. In cross examination, Ms Wang said that the plaintiff was entitled to Medicare because he was married to her. Ms Wang’s evidence was that they married on 26 January 2007 (T254.31) (this would have occurred when the plaintiff was an inpatient in hospital).

99. Despite a marriage taking place between Ms Wang and the plaintiff on 26 January 2007, I find it unlikely that his visa would have been processed in only a few days. As set out earlier in this judgment, I do not accept Ms Wang’s evidence, that on 31 January 2007 the plaintiff was entitled to Medicare, as being correct.

100. The plaintiff gave evidence that when he was discharged from Prince of Wales hospital he was still suffering from persistent stomach pain. He says that he was told that after the ERCP there was “no stone in my chest” and that he could go home (T72.23-24).

101. The plaintiff gave the following evidence (at T72.32-50; T73.1-12):

“Q. When you left the hospital on 31 January 2007 you were feeling well, that's true isn't it? 

A. I felt there was no stone in my chest.  I felt good however I still couldn't eat, this is the fact.

Q. You were feeling well, you agree with that?

A. I felt ‑ this is what I can say, it was a big relief.  In my mind I avoided a life threatening situation

Q. You did not have a fever when you left the hospital?

A. No, no fever.

Q. You were told by the hospital to come back to the hospital if you became unwell?

A. Yes.

Q.  You were told to come back to the hospital if you developed a fever?

A.   Yes.

Q. You were told to come back to the hospital if you had any further pain?

…

Q. When you left the hospital you didn't have any pain, did you?

A. Yes, I did but not too painful and also during any stage while I was in the hospital I tried to talk to the doctors or nurses for having an operation but there had been no response at all.  It only turned up on 8 January we started to realise how to contact the theatre for operation.

Q. You were told on 31 January 2007 that you needed to discuss your condition with the surgical team so that an arrangement could be made for an operation, that's true, isn't it?

A. No.”

102. On 31 January 2007, Dr Jamani referred the plaintiff to Dr Keogh for review. The referral recorded (Ex 7, p 15):

“Thank you for reviewing this 44 yr old gentleman who was recently under the care of Prof. Riordan for biliary sepsis. (u/s at St George – showed stones in GB).

He presented to POW ED on 23/01/07 and had 2 ERCP. The second ERCP showed no sludge or calculi, a basket could not be inserted into the CBD.

He was seen by the surgical team for opinion, who suggested lap chole as an outpatient in the near future.

Could you kindly r/v re: lap cholecystectomy?”

103. Dr Keogh gave evidence that at the time of discharge, although the plaintiff’s liver function test had not normalised, it was certainly improving, consistent with the pattern of a passage of a bile duct stone. Dr Keogh said that the plaintiff was deemed suitable to be discharged on the basis of improving jaundice and improving liver function tests and no abdominal symptoms. In addition to this, the plaintiff’s white cell count was normal with a slight rise in the neutrophilfill count but this was consistent with improving infection. It was arranged for the plaintiff to attend the surgical outpatient clinic at Prince of Wales hospital. On 31 January 2007, the plaintiff was discharged from hospital. Ms Wang collected him.

104. The medical experts were asked whether it was in accordance with competent professional practice to discharge the plaintiff from Prince of Wales hospital on 31 January 2007 so that he could be reviewed in an outpatient clinic regarding a laparoscopic cholecystectomy. Professor Collier (with whom Dr Vickers agreed) said yes, because the plaintiff was improving and the stone must have passed spontaneously. Professor Collier added that “there was an advantage in waiting for the jaundice to resolve which would decrease the risk of surgery”. Professor Smith disagreed. He said no and explained “many people would have discharged, but I do not feel that it was appropriate. The raised white cell count and low albumin and the presence of fever suggests that the plaintiff was more ill than the staff realised.”

105. The medical experts were cross examined on this issue. Counsel for the defendant showed the medical experts the hospital records which indicated that by 28 January 2007, the plaintiff was afebrile and by 30 January 2007, his white blood count had normalised, both in relation to the while blood count and the neutrophils. Counsel for the defendant also showed the medical experts the clinical note recorded on 31 January 2007 at 12.15 pm that “Family not willing to wait as patient is feeling well.” Counsel then asked the medical experts to consider, given the plaintiff’s physical condition at this time, whether it was in accordance with standard practice to discharge. After reviewing this information, Professor Smith changed his position and said that if the plaintiff wished to leave, that would be fine, so long as he had follow up arrangements. It is my view that the decision by Dr Keogh to discharge the plaintiff was in accordance with competent medical professional practice.

106. The medical experts were also asked, as at 31 January 2007, what degree of urgency was attached to the need for the plaintiff to undergo surgical review to determine when a cholecystectomy should take place. Dr Vickers said that as the plaintiff was improving and getting over cholangitis with his bilirubin improving, the surgery was not urgent and it was better to wait for him to improve further. Associate Professor Collier said that the review needed to take place in two to three weeks, as there was an advantage in waiting for the jaundice to resolve which would decrease the risk of surgery. Professor Smith said that the surgery was not immediately urgent. In summary the medical experts agree that the surgery was not immediately urgent.

107. David Fan asked the medical experts whether a reduced appetite and weight loss would reinforce the case for a quicker surgery. Dr Vickers said “All I think you can say from that is that he doesn’t have any acute abdominal signs to indicate cholecystitis and that he wasn’t eating at a time when his blood tests were improving so to me that would indicate there’s a separate cause for his not eating and that separate cause could be just the fact that he's recovering from an acute illness, from a serious illness.” According to Dr Vickers, “it does not necessarily mean that he needs to have another urgent operation because he had no features, he had to indicate ongoing acute illness because all of his blood indices are improving and his abdomen is reported to be normal" and “you couldn’t justify a decision to do an operation on that.” Associate Professor Collier agreed that appetite is not an absolute in terms of an indication for operation. He also said that “it is often the case when we do ERCP on patients with cholangitis you see ulceration in the duodenum, it’s a common finding at the same time and the ulceration can lead to appetite changes so I think that Professor Riordan’s suggestion maybe a repeat endoscopy was appropriate was a reasonable option to think about why he wasn’t eating, not to go for urgent surgery to correct an appetite disorder which was not explained fully”. In other words, as at 31 January 2007, although the plaintiff had reduced appetite and some weight loss, urgent surgery was not required. The medical opinion is that as at 31 January 2007, a laparoscopic cholecystectomy was not immediately urgent.

108. Based on the medical experts’ opinion, the plaintiff did not have acute cholecystitis as at 31 January 2007 so it was appropriate that acute cholecystitis was not diagnosed. Adopting the opinion of the medical experts, in my view the surgery was not urgent and the decision to discharge the plaintiff and delay the cholecystectomy was in accordance with competent medical professional practice.

(C)   Gastroenterology Outpatient clinic of Prince of Wales hospital on 8 February 2007

109. On 8 February 2007, the plaintiff attended the gastroenterology outpatient clinic at Prince of Wales hospital conducted by Professor Riordan. The plaintiff was reviewed by Dr Kim, a surgical registrar. There was no interpreter present. The plaintiff gave evidence that Dr Riordan “only showed his face for a second from a room at the very end of the outpatient clinic” and that he did not exchange any words with Professor Riordan (T73.22; T74). The plaintiff also gave evidence that he told Dr Kim that he had reduced appetite and that he had constant pain in his abdomen, and that the abdominal pain was more severe than before but of a different type. The plaintiff says he did not have severe constant pain, fevers, raised temperature or sweating. The plaintiff also gave evidence that he did not mention unsteadiness or difficulty walking because at that time he did not have such difficulties. However, the plaintiff then stated that over the next few days, he felt “lightness” while he was walking. He described the feeling as“like walking on a cloud”. He says he did not tell the doctor about it but that is how he felt. He says that walking was not difficult at that time because he could control himself.

110. On 8 February 2007, neither Dr Kim or Professor Riordan diagnosed the plaintiff with cholecystitis. Professor Riordan referred the plaintiff to the surgical outpatient clinic conducted by Dr Keogh on 15 February 2007.

111. The medical experts were asked what degree of urgency there was to perform the cholecystectomy that was recommended on 8 February 2007. Associate Professor Collier in the joint report said that the procedure was not urgent as the plaintiff “did not have acute cholecystitis” and there was a benefit to delay because jaundice, after stones are removed or passed from the bile duct, can take several weeks to resolve. It was better, he concluded, to let the jaundice resolve completely before embarking upon surgery. Dr Vickers, in the joint report (Q4, p 7), did not wish to comment, as it was a surgical matter. Professor Smith’s comment, in the joint report, is that the surgery was due to be undertaken within 30 days from the outpatient appointment.

112. As at 8 February 2007, the expert medical opinion was that the plaintiff did not have cholecystitis and that the operation was not urgent. Hence, it was appropriate and in accordance with competent medical professional practice that neither Dr Kim or Professor Riordan diagnosed the plaintiff with cholecystitis, and for the cholecystectomy to be delayed.

(D)   Surgical review on 15 February 2007

113. On 15 February 2007, the plaintiff attended the Prince of Wales surgical outpatient clinic and was reviewed by Dr Keogh. David Fan accompanied the plaintiff.

114. It is not disputed that on 15 February 2007, a conversation took place between the plaintiff and Dr Keogh. However, there is a dispute as to whether the plaintiff told Dr Keogh that he was experiencing severe pain. Dr Keogh performed liver function tests on the plaintiff. The plaintiff gave evidence that Dr Keogh did not examine him physically and that he told Dr Keogh that he had severe pain. It is Dr Keogh’s evidence that the plaintiff informed him that he had no further pain and he recorded it in his clinical notes.

115. During cross examination, Dr Keogh gave evidence that when he saw the plaintiff on 15 February 2007, he formed an opinion that the plaintiff did not have acute cholecystitis (T165.35).

116. The plaintiff’s evidence is that by this stage, he had developed difficulty walking, his legs were weak and when he walked he had to hold onto some support. He says this problem was constant. The plaintiff admitted that he did not tell Dr Keogh about this unsteadiness nor about his difficulties when walking. So far as the plaintiff’s weight was concerned, Dr Keogh said that there was no obvious malnutrition and no obvious recent weight loss because if there had been significant weight loss, it would have been noted. I accept that based upon Dr Keogh’s usual practice, he would normally make a note of weight loss and malnutrition.

117. The plaintiff agreed that he and Dr Keogh (with David Fan acting as interpreter) discussed the plan for a laparoscopic cholecystectomy. Despite the fact that this was the same operation that the plaintiff had requested be performed on 22 January 2007 at St George hospital, he says that on 15 February 2007, he expressed the view that he was “strongly opposed” to having the operation. As there was no independent interpreter present, Dr Keogh did not obtain the plaintiff’s written consent for the operation to be performed. Instead, he directed the plaintiff to attend the preadmission clinic on a later date in order to ensure that he properly consented to having the procedure performed. Dr Keogh completed the “Recommendation for Admission Form” and wrote to Professor Riordan to advising him of the plan for the plaintiff to be placed on a waiting list to have a laparoscopic cholecystectomy. Dr Keogh’s letter to Professor Riordan is dated 15 August 2007 (it should read 15 February 2007).

118. Dr Keogh’s aim (in terms of clinical priority) was to operate on the plaintiff within 30 days. That clinical priority was based on an assessment of whether the plaintiff would potentially run into medical complications while awaiting surgery. Dr Keogh was of the opinion that “it was safe to put off surgery for a short period” because the plaintiff had no gallbladder symptoms that prompted urgent surgery. Dr Keogh’s evidence is that at that time, a delay of 30 to 40 days was reasonable.

119. The procedure for allocating a date for surgery is that once the preadmission clinic receives the preadmission forms, a date for surgery is automatically generated according to the clinical priority of the patient as noted on the form by the referring doctor. In this case, the scheduled date for surgery was 28 February 2007.

441. The defendant submitted that the plaintiff has not in any way established that he needs a “special” residence and it would appear that no attempts have been made to find more appropriate accommodation since the current premises were obtained. The defendant submitted that if the plaintiff could have established that an appropriate unit was available but would cost more than the current unit, then a small allowance could be made. However, it says that there is simply no evidence sufficient to enable the court to make a determination that appropriate accommodation cannot be found at the same cost as that currently being paid by the plaintiff.

442. Further, the defendant submitted that even if it were to be accepted that the plaintiff needed to be provided with a house, the costs of the additional requirements to suit the plaintiff could not be more than those set out in the supplementary report of Mr Hesse. Mr Hesse calculates the additional costs of modifying a new building at approximately $192,000, but as the report is based upon the need for the plaintiff to be in a wheelchair, this is not correct. There is no evidence to suggest that the plaintiff needs the additional items detailed, such as a ceiling hoist and so on.

443. It is my view that some allowance should be made for self care equipment including a stable shower chair, long handled equipment, an electric razor and specialised cutlery. On this topic, I would allow the items set out in Ms Oates’ recommendations at Appendix 3.2 (Ex 3, p 351).

444. It would also be appropriate to make an allowance for the plaintiff to relocate to a ground floor unit with a larger bathroom. That may involve the difference between the weekly rent currently being paid and the additional weekly amount to secure a unit on the ground floor with a larger bathroom. I would make an allowance for the possibility of a differential in rent. It is my view that there is no persuasive evidence to suggest that the plaintiff needs a hydrotherapy pool.

Additional future home maintenance and running costs

447. The plaintiff claims $741,672 for additional maintenance and running costs based upon the maintenance report by Mr Craig of Sydney Building dated 4 March 2014 (not provided). The defendant submitted that this claim is unclear.

448. I have already decided that the plaintiff does not need a special residence, but some allowance should be made for the difference in rent between his current unit and one in the same area on the ground floor with a larger bathroom. This does not mean that additional maintenance and running costs will be incurred with this change in residence. I disallow this amount.

Additional travel costs

449. The claim for additional travel expenses is based upon the report of Mr Ronald J Cook dated 12 July 2013 (Ex D) and the report of Dr Buckley. Mr Cook has calculated the costs of airflights, both domestic and international, the costs of disabled accommodation, meals (including carers) and costs of sightseeing. David Fan has calculated the costs of the additional carers. His calculations are as follows. Domestic travel to Perth $1,224,576, Darwin $746,130 and international travel $963,984, totalling $2,934,696. Dr Buckley does not refer to holidays in his report.

450. The plaintiff was last in China in July 2000 (T69.29). The plaintiff claims travel costs including two yearly domestic holidays to Perth and Darwin (flying Qantas business class) and one European holiday every four years (flying Qantas first class).

451. The defendant submitted that no allowance should be made in relation to travel expenditure.

452. The plaintiff submitted that he requires additional travel costs as he needs to go to Europe and travel domestically. He says that he will require two carers and company to assist him at all times with luggage due to his disabilities and the risk of falling (Ex E [33(a) & (b)]). Ms Alach supported the view that the plaintiff needs three weeks per annum for holiday travel (Ex D p 47).

453. However, Ms Oates considered it unlikely that the plaintiff would have travelled on holidays for three weeks per annum, particularly overseas, given he was not working in 2007. She also said that if the plaintiff does go on holidays, she would not anticipate that his care needs would vary and that care support would be purchased from a care agency in his holiday destination locale and that this allowance for care has been included under the heading future care (Ex 3, p 341).

454. The plaintiff gave no evidence of going on holidays between 2000 and 2007. He had limited funds to do so. He had not travelled overseas or visited family in China. I do accept that he would have gone on holidays both in Australia and overseas from time to time, but not with such regularity as set out by David Fan. The plaintiff could travel with Ms Wang who is able to support him. I would make an allowance of a modest sum to compensate the plaintiff as there are some holiday activities he is no longer able to undertake and it would be necessary for him to have accessible accommodation as he uses a rollator frame. He does not require business class or first class flights. He does not require carers to assist him. He would not have travelled to Europe every four years, but he may have travelled a few times over the next 32 years. Based on the past, there is no evidence to suggest that he would take two domestic holidays per year.

455. I would make a small allowance for the additional costs where standard accommodation is not accessible for him.

Special equipment costs

456. The plaintiff claims $8,476,063.66 in special equipment costs based on the report of Ms Alach (Ex D, p 54-55). I have already made an allowance as recommended by Ms Oates for special equipment. No further allowance should be made.

Assistive technology

457. The plaintiff claims $522,496.00 for assistive technology based upon the report of Dr Graeme Smith dated 25 July 2013 (Ex D). The plaintiff stated that before 20 January 2007, he was a healthy and strong person but now requires special assistive technology to meet his needs as a result of his medical complications and moderately severe widespread sensorimotor peripheral neuropathy (Ex E, p 9).

458. The plaintiff currently has a computer. He can use the internet for five hours per day (T110.10-17).

459. The defendant submitted that it is possible that the plaintiff may need an iPad. The cost of an iPad is approximately $600. The plaintiff’s claim for assistive technology totalling in excess of $522,000 should be rejected. Counsel for the defendant argued that there is simply no basis upon which it could possibly be asserted that the plaintiff is in need of the type of assistive technology set out in his experts’ reports. The defendant submitted that Dr Buckley had formed the view as to the entire or total disability of the plaintiff as a result of his psychiatric condition, and as that condition has entirely disappeared, there is simply no basis for the plaintiff needing assistive technology, other than for the cost of the iPad.

460. Ms Oates (report, 19 March 2015, Ex 10) said:

“… I do not understand why Dr Smith thinks a desktop computer and a tablet are necessary for Mr Fan and he has not made it entirely clear why a new computer is required at all given one was purchased for Mr Fan in 2011 and he only uses very basic functions.

I would not support software licences for Office and related products as these are not recreational in nature and are mainstream need, unrelated to the current claim.

I do not support training from a computer buddy or continuing maintenance or other training as a functional necessity. I find recommendations for technician, training and services to be excessive and unwarranted.

I do not support environmental control technology because Mr Fan and his family live in rented accommodation and so extensive modification is not reasonable or necessary. Mr Fan is mobile and able to transfer and should be encouraged, not discouraged, to get up and move around.

I do support iPad due to peripheral neuropathy and better access using touch screen technology. I have valued this item at $549.00 as a one off purchase. On screen training is available and a one off additional charge of $50.00 for some suitable Apps is supported. Total costs supported = $599.00 one off.”

461. The iPad (or its later version) would need to be replaced from time to time over the next 32 years. I would allow $5,000 for assistive technology.

Provision of suitable motor vehicle

462. The plaintiff claims $764,222.40 for the provision of a suitable motor vehicle, based upon a report by mechanical automotive engineer Mr Ali Akbarian (report, 14 February 201, Ex D, p 6) and the reports of Dr Buckley and Ms Alach.

463. The plaintiff gave evidence that before 20 January 2007, he had obtained a green P driver’s licence but, as a result of his medical complications and moderately severe widespread sensorimotor peripheral neuropathy, he now needs the provision of a suitable motor vehicle and car maintenance (Ex E [37(a) & (b)]). The plaintiff’s green P licence expired in 2009.

464. The only evidence on this topic was given by Ms Wang. She said that when they were separated, he came and picked her up in a car:

“Q. He has never had a car, has he?

A. He has a car. He has NRMA Insurance. Also has a licence, P Plate, means a provisional licence.

Q. You told her Honour that he had a car and he had a licence. It was a lie that he had a car wasn’t it?

A. He has a car. He hasn’t got a car. He has a car. When you ask whether he has a car or he hasn’t got a car, I said that he has a car.

Q. That was not true was it?

A. Yes, he has a car.

Q. When did he have a car?

A. Because at a certain stage we were separated, the exact year, which year he has a car I didn’t ask him.

Q. You don’t know if he had a car or not during that period of time do you?

A. Yeah, sometimes I was sitting in his car.

Q. That’s just a lie isn’t it?

A. No.

Q. You’re willing to say anything that you think will help this case aren’t you?

A. Yes, he has a car.” (T271.4-27).

465. Even if I accepted Ms Wang’s evidence, then at best, the plaintiff had a car sometime before 2007 for a short while.

466. The defendant submitted that the plaintiff does not need a suitable motor vehicle because the plaintiff is able to use public transport and an ordinary taxi. The defendant considered that at worst, the plaintiff might need to use a disabled taxi.

467. Ms Oates’ (report, 14 February 2015, Ex 3, p 314) opinion was that while Ms Alach has made recommendations for a motor vehicle the plaintiff has not had a vehicle in the past and Ms Wang does not drive. According to Ms Oates, the plaintiff seems to be able to negotiate community living using public transport. Ms Oates anticipated that he could do so safely in his local area following a period of inpatient rehabilitation. She recommended some assistance for travel outside the local area.

468. It is my view that the evidence to the effect that the plaintiff needs a special vehicle was entirely unpersuasive and based upon the notion that sometimes there might be shopping. Evidence on this topic was given by Ms Wang where she says:

“Q. Why can’t he use an ordinary taxi?

A. Small taxi, sometimes the space can’t put the walking frame in the back. Also can’t put the walking frame in and sometimes he has luggage, so the taxi got to be a big one.

Q. What sort of luggage does he have?

A. Shopping like this time, lots of cases, and sometimes the shopping bags, and also the walking frame. He needs a taxi for disabled person.” (T270.7).

469. I do not accept Ms Wang’s evidence that the plaintiff had a car. Her evidence is vague and even if the plaintiff had a car for a while, it has not been established that he owned it. I do accept that he had a green P plate licence prior to 2007. Ms Wang did not give evidence that she had a drivers licence or a car. It is possible that the plaintiff may have acquired a motor vehicle in the future but I accept that since 2007 it is extremely unlikely that he would be able to hold a drivers licence and drive a car. I would make an allowance for taxi hire from time to time including the occasional need for a disabled taxi.

Exercise (membership of club or gymnasium with membership for his carer)

470. The plaintiff claims $104,832.00 for membership of a club or gymnasium for him and his carer based upon Dr Buckley’s report (dated 12 January 2010, pp 2, 15).

471. Dr Buckley opined that the plaintiff’s brain injury and executive dysfunction is likely to cause considerable difficulty in identifying exercise options which the plaintiff is likely to maintain. Therefore, the plaintiff would require a wide range of exercise options, such as those available in a club or gymnasium, in order to assist his carer to help the plaintiff to maintain an appropriate cardiovascular and strengthening exercise program. In addition, the activities coordinator should have membership of the club or gymnasium, because the plaintiff is unlikely to maintain his exercise program without the direct involvement of his activities coordinator (Buckley report, Ex D, p 15).

472. The defendant submitted that there is no evidence that the plaintiff would intend, in any way or to any extent, to utilise a gymnasium membership nor is there any basis upon which it could possibly be asserted that the plaintiff requires such a need.

473. It is my view that Dr Buckley reached his opinion based on the wrong premise, namely the plaintiff’s brain injury. I would not make an allowance of $104,832 for membership of a club or gymnasium for the plaintiff and a carer.

Future medical interpreter fees

474. The plaintiff claims $198,000 for future medical interpreter fees. He says that he needs to claim these costs due to his disabilities (Ex E, p 10). This seems to be based largely on the plaintiff’s assumption that he needs in home physiotherapy intervention three times per week for 36 years, occupational therapy and scooter training.

475. The calculation is made as follows. Physiotherapy in home intervention interpreter fee, $250 x 3 per week = $750, $39,107.14 per year for a total of 36 years = $1,407.857.04; occupational therapist prescription for equipment interpreter fee $250 x 12 hours = $3,000; occupational therapist assess and training to “max person care IADL” interpreter fee $250 x 18 hours = $4,500; and occupational therapist for scooter assessment and training interpreter fee $250 x 8 hours = $2,000.

476. The defendant considered that if the plaintiff required specialist medical intervention as a result of a disability caused by a breach of duty by the defendant, then it would follow that he would be entitled to an allowance for damages for future medical interpreter fees, but it is by no means clear how frequently the need would arise. However, the defendant submitted no allowance should be made.

477. I agree that some allowance should be made for an interpreter to assist past and future medico-legal appointments and for his initial visit to a physiotherapist and home visit by an occupational therapist.

Childcare past and future

478. The plaintiff claims $685,955.51 for past childcare for Su Fu Garana and $370,526.63 for future care. This claim is made on the basis that because of his disabilities, the plaintiff says, he can no longer reach or achieve the standard of responsibilities as a father for Su Fu Garana.

479. Such claims for childcare are governed by s 15(B) of the Civil Liability Act. Section 15(B)(2) provides:

“(2)      When damages may be awarded

Damages may be awarded to a claimant for any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependents, but only if the court is satisfied that:

(a)   in the case of any dependents of the claimant of the kind referred to in paragraph (a) of the definition of “dependents” in subsection (1) the claimant provided the services to those dependents before the time that the liability in respect of which the claim is made arose, and

(b)   the claimant’s dependents were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and

(c)   there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant’s dependents:

(i)   for at least 6 hours per week, and

(ii)   for a period of at least 6 consecutive months, and

(d)   there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.

Note: Section 18 provides that a court cannot order the payment of interest on damages awarded for any loss of capacity of a claimant to provide gratuitous domestic services to the claimant’s dependents.”

480. The defendant submitted that no evidence has been provided which would enable the court to determine how the plaintiff intended to provide childcare, and that this is particularly important given that a claim is also made for past and future economic loss. Counsel for the defendant pointed out that the plaintiff has not provided any evidence as to how he would provide significant childcare when he alleges that he would also have been working full time. In addition, the defendant said there is simply no evidence to support the contention that the plaintiff is unable to provide childcare. The defendant also said that the plaintiff is mobile, although with restrictions, and that no evidence was adduced that indicated that he was unsafe to be left with his child.

481. According to the defendant, there is a significant degree of confusion in relation to the domestic relationships between the plaintiff, Ms Wang, David Fan and Su Fu Garana. The defendant submitted that the plaintiff now claims that but for disabilities caused by the negligence of the defendant, he would have been engaged in a significant amount of childcare. The defendant questioned how the plaintiff would have been able to attend to such childcare simultaneously with full or part time work, and that this has not been made clear.

482. The defendant submitted that it is not clear how the plaintiff’s current disabilities would prevent him from performing childcare tasks. The defendant submitted that it is clear that the plaintiff is of perfect intellectual capacity; is able to mobilise with the use of his walking frame; and is not totally disabled. The defendant also submitted that it is unclear how any aspect of the plaintiff’s disabilities have been caused by an unspecified breach by the defendant, which would impact on his ability to look after Su Fu Garana, and how allowance should be made.

483. Finally, the defendant submitted that the plaintiff has not established, but for the injury, how he could have a reasonable expectation that he would have provided childcare for at least six hours per week.

484. The plaintiff and Ms Wang gave some evidence on this topic (Ex E, p 41; Ex G, p 3). In 2006 and 2007, neither the plaintiff nor Ms Wang were working on a full or part time basis. Ms Wang and the plaintiff were sharing the responsibility for caring for Su Fu Garana. In 2007, David Fan also assisted with this care. I accept that while Su Fu Garana was a baby and toddler, the plaintiff would not have been able to physically carry him, change his nappy, bathe him and undertake tasks like that. The plaintiff would not have been able to play physical games with him, such as hid and seek. As Su Fu Garana has grown up (he is now 12 years old), he can look after his physical needs. However, I accept that there are some activities that the plaintiff would like to, but cannot do with his stepson due to his disabilities. For example, the plaintiff cannot participate in physical activities such as playing soccer or some other sport with Su Fu Garana and cannot take him to theme parks and the like.

485. While I would make some allowance for past and future childcare, I am unable to assess a precise amount as there is no specific evidence from the plaintiff or Ms Wang as to the type of physical tasks the plaintiff would have undertaken, or as to what level of supervision and amount of the hours of childcare were provided to Su Fu Garana. Nor were there any costings.

Court and legal expenses

486. The plaintiff claims reimbursement of the legal fees of $19,779.34 paid to Lamrocks solicitors. An order for costs will made after this judgment has been delivered. It is not appropriate to deal with a claim for legal expenses and court costs in this judgment, because they are matters to be taken into account if the plaintiff had a judgment entered in his favour and a subsequent costs order made in his favour. He has not. No allowance for these costs are made in an assessment of damages.

Wei Fan’s hospital debts and Medibank Private statement of benefits paid

487. The plaintiff claims $9,380.10 for hospital debts owing to St George, Prince of Wales and Sutherland hospitals and $96,371 for reimbursements of Medicare Private fees which have been paid by him. He was treated in hospital between January and March 2007 on the basis of that he did not have Medicare Private insurance at that time. It is not clear what these expenses relate to. Further, it appears that the hospital debts or Medicare private expenses have been claimed earlier. No allowance should be made for these items here.

Conclusion

488. The plaintiff’s claim fails. I enter judgment in favour of the defendant.

489. Costs are reserved.

Judgment

(1)   Judgment is entered in favour of the defendant.

(2)   Costs are reserved.

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Amendments

31 August 2015 - Paragraph [240] citation 239 CLR 42 amended to 239 CLR 420.

Decision last updated: 31 August 2015