Wilson v Tier - [2008] NSWSC 92

CITATION: Wilson v Tier [2008] NSWSC 92

HEARING DATE(S): 04/02/2008, 05/02/2008, 06/02/2008, 07/02/2008, 08/02/2008

JUDGMENT DATE :
22 February 2008

JUDGMENT OF: Hoeben J

DECISION: Verdict for the defendant.
I reserve the question of costs.
The parties have liberty to approach the Court on 2 days notice for the purpose of dealing with the costs question.

CATCHWORDS: Medical negligence - oral surgeon performs wisdom tooth extraction - alleged breach of duty of care in failure to diagnose and treat deep neck space infection - causation - whether earlier antibiotic treatment would have made any difference - expert evidence given concurrently - effect of significant agreement of experts on contentious issues - damages - psychological/psychiatric reaction to treatment - whether evidence that psychological/psychiatric damages caused by treatment - difficulties in individual heads of damages.

LEGISLATION CITED: Civil Liability Act 2002

CATEGORY: Principal judgment

CASES CITED: Chappell v Hart (1998) 195 CLR 232
Dobler v Halverson [2007] NSWCA 335
Graham v Baker (1961) 106 CLR 340
Halverson v Dobler [2006] NSWSC 1037
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434 at [16]

PARTIES: Aleta Grace Wilson - Plaintiff
Dr Graham Tier - Defendant

FILE NUMBER(S): SC 20622/2001

COUNSEL: Mr D Hirsch/Ms N Watson - Plaintiff
Mr GB Evans - Defendant

SOLICITORS: GH Healey & Co with Graeme R Jenson & Co - Plaintiff
Abbott Tout - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Friday 22 February 2008

20622/2001 – Aleta Grace WILSON v Graham TIER
JUDGMENT

1 HIS HONOUR:

Nature of Proceedings

2 The particular allegations are that he failed to promptly diagnose the plaintiff’s post-operation condition, failed to appropriately investigate her symptoms and failed to appropriately treat those symptoms and her condition. As a result of those failures, the plaintiff alleges that she developed a deep neck space infection which required admission to hospital for the administration of intravenous antibiotics and an abscess drainage procedure. The plaintiff alleges that she thereafter developed psychological and psychiatric responses which have adversely affected her life to a significant degree.

Factual background

3 Except as otherwise indicated, I find the factual background to be as follows.

4 The plaintiff was born on 11 February 1972 in Paddington and grew up in Point Piper. Her father was an opera singer and died when she was 16. Her mother (Betty Hannan) had been a ballet dancer with the New Zealand Ballet Company. She married again when the plaintiff was 19-20. The plaintiff has a close relationship with her mother and got on well with her stepfather. He died before the events the subject of these proceedings.

5 The plaintiff has two brothers who are significantly older than her, one being 45 and the other 50. The oldest brother is an opera singer and the second brother retired from the Australian Ballet and has worked as a real estate agent and in the family business. The plaintiff attended Vaucluse High School until year 10. She then attended the BBO (British Ballet Organisation) for two years. Thereafter she worked in the family business.

6 The family business comprises a hostel for mentally disabled persons known as “Swatson House”. It is located at Smith Street, Summer Hill and has a capacity for 34 residents. Ms Hannan, the plaintiff’s mother, holds the licence to operate the hostel from the NSW Department of Ageing Disability and Health Care.

7 The plaintiff was unable to take up ballet dancing professionally because of her height (6’1”). The plaintiff, as well as working in the family business, also taught dancing. She ceased doing so in 1997 because “teaching five year old children was not satisfying”.

8 The plaintiff was first referred to the defendant in 1997 by her dentist for the proposed removal of wisdom tooth 38. The plaintiff decided not to go ahead with the removal at that time. She next attended the defendant on 18 January 2001 for the removal of three wisdom teeth – numbers 28, 38 and 48. As of that date the plaintiff had not suffered any serious illnesses, was not taking medication and had no allergies. She was smoking approximately five cigarettes per day.

9 The defendant graduated from the University of Sydney in 1975 with a Bachelor of Dental Surgery. He continued his studies in the United Kingdom and Australia obtaining fellowships of the Royal College of Physicians and Surgeons of Glasgow and of the Royal Australasian College of Dental Surgeons. He obtained registration as a specialist oral and maxillo-facial surgeon in December 1983. He went into private specialist practice in January 1984 in Randwick and has continued in practice there.

10 As of 2001 the defendant was a visiting specialist surgeon to the Prince of Wales Hospital and the Sydney Children’s Hospital. He is currently the Supervisor of Training in oral and maxillo-facial surgery at those hospitals. In 2005 he was appointed a senior lecturer in the Faculty of Medicine at the University of New South Wales.

11 The removal of the plaintiff’s three wisdom teeth took place under general anaesthetic at the defendant’s surgery on the morning of 7 January 2001 (a Wednesday). The plaintiff left the surgery at 3pm and was given a prescription for Amoxycillin 250mgs to be taken three times per day. The applicant’s face was swollen and she was in pain. She had extensive bruising to her face and over her chest.

12 The plaintiff attended the defendant’s surgery on 13 February (Tuesday) for a post-operative check up. The plaintiff complained of pain and said that she could not open her mouth properly. The defendant examined the inside of the plaintiff’s mouth and advised her that she had bitten the inside of her cheeks and caused ulcerations thereby. Savocol mouthwash was prescribed with a monojet syringe for injection of mouthwash into the bitten area. The defendant also gave instruction on oral hygiene and the plaintiff was asked to return in one week for review.

13 The plaintiff attended the defendant’s surgery as arranged on 20 February (Tuesday). The defendant examined the inside of the plaintiff’s cheeks and advised that the ulcers had healed. The plaintiff complained that she was still unable to properly open her mouth. The defendant explained that this was due to the jaw muscles on the left side being in spasm. (This condition is known as left-sided trismus.)

14 In order to treat the left-sided trismus, the defendant demonstrated to the plaintiff how to use spatulae (paddle sticks). The defendant’s notes indicate that he was able to place five spatulae between the plaintiff’s left molar teeth at that time. The plaintiff was asked to return in seven days time.

15 It was the plaintiff’s recollection (set out in her statement of 17 August 2007 exhibit B), that on this occasion the defendant had been able to insert two spatulae but was unable to fully insert a third. Given the clear reference to five in the defendant’s notes, I am of the opinion that the plaintiff’s recollection on this issue is incorrect.

16 The defendant told the plaintiff to try to insert one extra spatula per day. He warned her not to try to insert any more than one extra per day but to try to achieve at least what had been inserted the day before.

17 The plaintiff next attended the defendant’s surgery on 27 February (Tuesday). There is a factual conflict between the plaintiff and the defendant as to what occurred on that day.

18 It was the plaintiff’s evidence that when she saw the defendant on that occasion, there was swelling under her left jaw line from ear to chin which took away any tapering from her neck to her jaw line. She told the defendant that she was in a great deal of pain and said that while she could with difficulty get up to four sticks in her mouth earlier, it was pulling to the right, was terribly swollen and that the situation was much worse. She also asked the defendant about the swelling along and under her left jaw which had recently emerged. The plaintiff said that the defendant told her not to worry.

19 The plaintiff said that the defendant told her that she had just overstretched her jaw. The plaintiff recalled being upset by that comment and said “I don’t see how I could have done that”. In response she said that the defendant repeated to her that she had overstretched. She was told to take Mersyndol and advised not to stretch that night and to start again in the morning with the spatulae.

20 The plaintiff said that she was upset after this examination because she felt that the defendant’s behaviour towards her was very dismissive. The plaintiff believed that the defendant had implied that her pain was her own fault. The plaintiff was crying and telephoned her mother that afternoon who came over to visit her. The plaintiff said that although she had taken the Mersyndol she began to feel very ill, was still very upset and crying at the way she had been treated by the defendant.

21 Under cross-examination the plaintiff said that by 20 February the majority of the post-operative swelling had gone down so that although her jaw was still slightly swollen there was not much difference when compared to how her jaw had been before the operation. She said that on the night of the 26th February the swelling had come up again underneath her jaw line on the left side and that this was a new form of swelling (T.45.29). Later the plaintiff said that the effect of the swelling was that her jaw line had disappeared.

22 In relation to the use of the spatulae, under cross-examination the plaintiff agreed that there had been improvement in her left sided trismus until the night of 26 February when that improvement had stopped and had there had been some deterioration in trismus thereafter.

23 Ms Hannan gave evidence on this issue in her statement of 17 August 2007 (exhibit A) and orally. In her statement she confirmed that her daughter was upset on the afternoon of 27 February and complained about the defendant being rude and dismissive towards her and blaming her for the pain she was in because she had “over stretched” and that this was “causing the swelling in her jaw that she then had”. Ms Hannan said that the plaintiff’s pain seemed to be worsening. Ms Hannan said: “I felt her neck and it was very warm”. The following day (28 February) Ms Hannan received a call from the plaintiff: “She told me that her neck had swollen up and looked the way it did after the surgery”.

24 In her oral evidence Ms Hannan in chief expanded on the statement and said that on 27 February she had observed swelling beneath the plaintiff’s jaw line in her neck. Under cross-examination this evidence was challenged on the basis that there was no reference to it in her statement. No explanation was forthcoming for her failure to mention it in her statement.

25 The defendant’s notes on this consultation were:

“Opening improved but she has pushed L too far and it has gone backwards since yesterday – rest a day and take Mersyndol tonight. Resume spatulae tomorrow night and ease along until normal. To come again if problems arise.”

26 In his statement (exhibit 1) of 21 December 2007 the defendant said that on 27 February he visually assessed the plaintiff, carried out a bi-manual palpation of any swelling and examined the extraction site. If there had been anything clinically significant as a result of that examination such as an increase in swelling, he would have made a note to that effect. That was the purpose of such an examination. In the absence of any such note, he was of the opinion that he found nothing of clinical significance about the plaintiff at that time.

27 The defendant said that he thought overall there had been an improvement in the plaintiff’s ability to open her mouth but that the jaw muscle had in fact gone into spasm and that the trismus had increased. He said that the plaintiff had told him or used words to the effect “as the opening was improving I added more than one extra stick a day. However, yesterday, I felt pain while doing this and it had closed off a bit”. It was against that background that he had given the advice recorded in his notes.

28 In his oral evidence the defendant said that he did not note any extraordinary swelling above that which he has seen on the previous occasion. He thought that on 27 February swelling was still in evidence but it had not advanced. He said that there was nothing in the plaintiff’s presentation or anything which she said which indicated the presence of infection.

29 Under cross-examination the defendant agreed that although he had a faint recollection of the plaintiff telling him that she had inserted more than one spatula in her mouth per day, the recollection was not clear.

30 Under cross-examination in relation to swelling in the neck on that date, the defendant said that there was minimal to no swelling in the neck proper. He was then cross-examined on the basis of a letter of instruction sent by his solicitors to another doctor which contained the words “Dr Tier says he cannot specifically recall but he feels there might have been a little bit of swelling present in the neck and mouth area but nothing of any significance”. It was put to the defendant that these instructions would only have been provided by his solicitors if they were in accord with information which he had communicated to them. The defendant said that he had no recollection of providing such information and that his recollection at trial was that there was no swelling in the neck.

31 The resolution of this issue has not been easy. In that regard I should say something about the demeanour of the plaintiff and the defendant. The plaintiff was somewhat dramatic in the way in which she gave her evidence and it seemed to me that there was an element of hyperbolae in the way she described things. I do not think that this was necessarily deliberate but it did affect adversely the reliability of her evidence.

32 The defendant, while somewhat brusque in his delivery, appeared to me to be careful in his responses and to be doing his best to give accurate evidence despite the effluxion of some seven years. I consider the defendant to be a more reliable historian than the plaintiff.

33 I do not regard the evidence of Ms Hannan as being of assistance on this issue. Had Ms Hannan observed swelling on the left side of the neck on 27 February as she said in her oral evidence, it is extraordinary that she would not have referred to such a matter in her statement. This was the statement prepared with the assistance of her legal advisers. It refers amongst other things, to the plaintiff’s neck being warm to the touch. If there had also been swelling in the neck, either observable or palpable, this was the place in the statement where that fact could and should have been recorded. The absence of any such mention leads me to conclude that Ms Hannan did not observe or feel any swelling on 27 February.

34 That conclusion is confirmed by paragraph 14 of her statement. It is difficult to accept that the plaintiff would have described the onset of swelling in those terms if such swelling had commenced and been present on 27 February. The evidence of Ms Hannan generally as to the location of swelling of the plaintiff’s face and the dates upon which the swelling occurred was in any event quite vague.

35 It is apparent from the notes of Ms Weekes (the plaintiff’s treating psychologist) and from her reports, that the plaintiff remains very angry with the defendant and that her anger is focused upon what she perceives to have been his dismissive and accusatory behaviour towards her when she was describing her symptoms, particularly on 27 February. This, in my opinion, has coloured her evidence of events on that date.

36 The defendant has the advantage of having made contemporaneous notes of his observations on 27 February. His evidence is consistent with those notes. Having had the opportunity to observe the defendant and evaluate his evidence, particularly in the light of that given by the medical experts, I am firmly of the opinion that had the plaintiff reported new swelling in the neck of a significant kind such as she described in her evidence, the defendant would not have ignored it and would have made a reference to it in his notes.

37 It is not without significance that on 28 February the defendant made a note of “sudden increase in swelling” even though he had received that information via a third party because he regarded it as significant. It is not consistent with my overall impression and assessment of the defendant that he would have failed to have made such a note had the plaintiff presented on 27 February with new swelling in her neck as she described in her evidence.

38 There is also a certain implausibility about the plaintiff’s version of events. I gained a clear impression from the plaintiff that she would not have remained silent about any new symptoms but would have forcefully brought those to the attention of the defendant, particularly if a new form of swelling had developed.

39 Had she done so it is difficult to understand why the defendant would not have noted it and treated her for it. The unanimous opinion of the experts was that such swelling would have been an indication of infection which tended to occur about three weeks post operatively.

40 Moreover the plaintiff’s evidence on this point sits somewhat uneasily with the second hand report of 28 February of “sudden increase in swelling”. Even allowing for the limitations inherent in a second hand report, one would have thought that there would have been some specific reference to the new swelling allegedly reported on 27 February.

41 The challenge to the defendant’s evidence because in 2004 his solicitors advised another doctor “Dr Tier says he cannot specifically recall but he feels there might have been a little bit of swelling present in the neck and mouth area but nothing of any significance” does not lead me to reject the evidence of the defendant on this point. On the contrary it is generally consistent with his evidence as a whole and fully consistent with his answers under cross-examination “There was minimal to no swelling in the neck proper” (T.73.12); “No, there was no swelling beyond that which I had observed previously” (T.81.48). It is quite inconsistent with the plaintiff’s evidence that not only was there new swelling under her left jaw line in the neck but that the tapering between her jaw line and the neck had been lost.

42 I have concluded that on 27 February there was no new swelling in the plaintiff’s neck, such as the plaintiff described, nor was there swelling of such significance as would indicate to the defendant that infection was present.

43 There were some subsidiary factual issues relating to the attendance of 27 February which, although peripheral, ought be dealt with. Contrary to the plaintiff’s evidence I am satisfied that on 27 February the defendant did palpate her neck as he asserts and did not restrict himself to a visual assessment. I have reached that conclusion for substantially the same reasons as I have just indicated.

44 I do not accept, however, that the plaintiff told the defendant that she added more than one extra spatula per day. The defendant accepted in cross-examination that he had only a faint recall of something of that nature and no clear recollection. Such a statement by the plaintiff seems to be inconsistent with what I assess to be a sense of grievance genuinely held by the plaintiff, because (in her opinion) the defendant had accused her of causing the increase in her pain by pushing the jaw muscles too far.

45 I find that as a result of the description of symptoms given to him by the plaintiff and as a result of his examination of her, the defendant concluded that the plaintiff had been over enthusiastic in her application of the spatulae and that this had caused a deterioration in her trismus on 26 February. I find that the defendant communicated this conclusion to the plaintiff but that she did not at any time adopt it. On the contrary I accept that the plaintiff was offended by this suggestion and regarded it as some kind of accusation. For completeness it should be noted that both Dr Bowker and Dr Schifter agreed with the defendant that on the description of symptoms given by the plaintiff in relation to her trismus, this was a likely explanation for its deterioration.

46 On 28 February the defendant was operating in theatre all day. On such days he did not take a break for lunch, started early and continued until quite late. The defendant understood that a telephone call was relayed to him whilst he was in theatre, but he had no independent recollection of what was communicated to him. In such circumstances he said that what would happen was that the senior nurse would take the call and would briefly communicate to him the nature of the call. In this case the defendant made a note on the following day which read:

“Called yesterday with sudden increase in swelling and advised to see GMP for Amoxil 500mg.”

47 On the morning of 28 February at approximately 10.30 the plaintiff says that she looked in the mirror and became scared when she saw that her face had swollen to the size it was immediately after the operation. The plaintiff says that she rang the defendant’s rooms, learned that he was not there and told his secretary about the swelling and that she was scared because things were obviously very wrong. The secretary rang her back and told her that she had spoken to the defendant. The secretary said that the defendant said to get Amoxycillin 500mg and to take a double dose to start it working. The secretary told her that the defendant had said that it was “just a little infection”. The secretary told the plaintiff to see the defendant the next day. The plaintiff said that she felt that the defendant was not taking her seriously.

48 The plaintiff then telephoned her mother, told her about the increase in swelling and that the defendant through his secretary had prescribed Amoxycillin 500mg. Ms Hannan obtained the Amoxycillin from a chemist, having obtained a prescription for it from the general practitioner who treated the residents of the hostel. That general practitioner did not see the plaintiff before making out the prescription.

49 I am satisfied that the defendant’s note accurately records what he was told and what advice he gave in response. The respondent’s secretary was not called to give evidence so that the only other evidence is that of the plaintiff as to what she was told. Specifically the plaintiff denied that she was told by the secretary to see a GP. She did, however, agree that she knew that Amoxycillin could only be obtained by way of prescription by a doctor.

50 In his oral evidence the defendant said that he would have assumed that the plaintiff would have to see a GP in order to obtain a prescription for Amoxycillin. Under cross-examination he agreed that his main purpose in prescribing Amoxycillin was to ensure that the plaintiff commenced taking Amoxycillin. Although this was a secondary consideration, he would also have had in mind that the plaintiff would have to see a GP to obtain a prescription and presumably be examined by that doctor. The experts agreed that this was a reasonable assumption on the defendant’s part.

51 Although nothing turns on it other than credit, I am not satisfied that when the defendant’s secretary passed on the defendant’s message to the plaintiff, the plaintiff responded by saying that her mother would be able to obtain the Amoxycillin from the chemist (T.52-53). Nothing to that effect is set out in the plaintiff’s statement. In addition I find it unlikely that the plaintiff would have been aware of how her mother would go about getting the Amoxycillin before she had spoken to her mother and before a prescription had been obtained by her mother.

52 The plaintiff said that she took four Amoxycillin tablets that day and one the following morning. Despite taking those tablets her condition deteriorated. Her mother made an appointment for her to attend the defendant early on the afternoon of 1 March (Thursday). Because the plaintiff felt too ill to drive, her mother drove her to the appointment. By that time the plaintiff had taken another tablet.

53 The plaintiff said that when she entered the defendant’s rooms on 1 March he examined her neck and said to her mother “You’ll remember this, it looks like old fashioned Vincent’s Disease”. She said the defendant then told her mother a story about cows he had seen with Vincent’s Disease and how he had seen the cow’s neck go black because the flesh rots. In the course of this discussion Ms Hannan referred to “trench mouth”. When the plaintiff’s mother asked the defendant whether the plaintiff needed to go to hospital, the defendant is said to have emphatically responded:

“No. There is no need to go to the hospital just take this downstairs and take these as well as the Amoxycillin”.

54 The evidence of Ms Hannan generally accorded with that of the plaintiff, although under cross-examination it was clear that her recollection of what occurred in the defendant’s rooms on 1 March was vague. She remembered the defendant saying something about “old fashioned Vincent’s Disease” and referring to a cow that he once saw whose neck went black. She agreed that she had referred to “trench mouth”. She also recalled him saying that it was not necessary for the plaintiff to go to hospital and she remembered him writing out a prescription for Flagyl.

55 The defendant’s notes in relation to 1 March read:

“Today cellulitis of submandibular triangle and upper posterial triangle. No drainage from 38 site – indeed it looks clean. Prescription Flagyl 400mg as well as Amoxycillin. Call tomorrow and to call again next week to check. Emergency numbers given.”

56 The defendant said that the finding of cellulitis was consistent with an infection. He prescribed a high dose of Flagyl because it seemed to him that the plaintiff was not responding to Amoxycillin. There were no signs of an abscess and in his opinion the plaintiff’s condition did not call for more aggressive treatment than the additional oral antibiotic dosage prescribed.

57 On palpation of the swelling the defendant said he found the tissue firm and dense. Had an abscess been present, the clinical sign would have been fluctuance, ie a fluid filled cavity. Nevertheless, he thought it was necessary to monitor whether the oral antibiotics were producing a positive reaction and that is why he provided emergency phone numbers to the plaintiff and her mother. The defendant knew that the following day he would be out of his rooms on an HSC excursion with his daughter.

58 At the conclusion of the consultation the defendant said that Ms Hannan raised the topic of “trench mouth”. A discussion then took place between the defendant and Ms Hannan in the presence of the plaintiff during the course of which the condition of “Vincent’s Disease” was mentioned. The defendant said that at no time did he ever tell either the plaintiff or Ms Hannan that the plaintiff was suffering from Vincent’s Disease.

59 The defendant in his oral evidence identified the location of the swelling referred to in his notes, as being below the jaw on the left side (the submandibular triangle) and in the upper portion of the neck on the left side (the posterior triangle). The defendant said that such swelling as he observed on 1 March was the commonest presentation of an infected wisdom tooth. He said that the bacteria which cause these infections usually respond to antibiotics of the Penicillin family, such as Amoxycillin, and that those that do not usually respond to Flagyl. He said that having prescribed antibiotics it was necessary to allow sufficient time to assess whether or not they were having a beneficial effect. Whether the antibiotics were effective would usually be known within 24-48 hours.

60 I accept that the plaintiff told the defendant that either her condition was not getting any better or that it was getting worse. Had her swelling been responding to the Amoxycillin, there would have been no need for the defendant to prescribe Flagyl.

61 The extent of the plaintiff’s swelling, as described by her on the occasion of this consultation, seems somewhat inconsistent with the defendant’s notes although undoubtedly swelling was present in the two locations identified in those notes. It is not without significance that the swelling recorded in the admission notes of the Prince of Wales Hospital on 2 March is generally consistent with the defendant’s notes on this occasion, except that the hospital notes also refer to pre-auricular swelling.

62 I do not accept that the defendant ever said that the plaintiff was suffering from Vincent’s Disease. Not only is this inconsistent with the defendant’s notes and evidence but it is inconsistent with the evidence of Ms Hannan. Whether the plaintiff completely misunderstood the discussion between the defendant and her mother or whether she has sought to place doubt on the defendant’s professional competence, as was suggested in cross-examination, is not clear.

63 On 2 March (Friday) the plaintiff said that her condition was worsening despite taking Amoxycillin since Wednesday and Flagyl since Thursday. The plaintiff observed that her neck was swollen even more and the swelling had become hard and very hot. The plaintiff said that the swelling was so great that it extended from her neck to her shoulder with no definition at all. This somewhat dramatic description does not accord with the admission notes of the Prince of Wales Hospital.

64 The plaintiff was present when her mother (who had stayed with the plaintiff overnight) telephoned the defendant’s secretary. The plaintiff heard her say: “I need to speak to Dr Tier immediately. My daughter is so ill I am going to take her to hospital straight away”. The plaintiff said that the defendant’s secretary rang back about half an hour later.

65 Ms Hannan confirmed that she rang the defendant’s rooms and spoke to his secretary in those terms. She said that the defendant’s secretary said: “Please just wait until I can contact Dr Tier”. About half an hour later the secretary rang back and told her that the defendant had arranged for the plaintiff to see a specialist, Dr Ian Jacobson, at 3pm and that the plaintiff should wait to see him before doing anything else.

66 There was an issue as to whether the defendant had spoken to Ms Hannan or whether all communications on that day took place with the defendant’s secretary as the intermediary. The defendant’s note, which was written the day following ie 3 March, reads: “Called by pts mother on my mobile to report increase in swelling in neck. Description sounded like? Parapharyngeal space infection. Called Ian Jacobson’s office – he agreed to see her and manage neck infection.”

67 Both the plaintiff and Ms Hannan were definite that the defendant did not give to either of them his mobile phone number on 1 March. It was therefore impossible, so they said, for Ms Hannan to have rung him directly on his mobile phone.

68 The defendant had a strong recollection of having spoken to Ms Hannan. He was not sure, however, in what sequence the telephone conversations had taken place. He agreed that the first contact may have been between his secretary and himself with him then ringing Ms Hannan and speaking to her directly. One of the reasons the defendant thought that he had spoken to Ms Hannan directly was:

“Such belief was based upon the fact that I was given a first hand description of the problem. Now, my secretary was in no position to do that so I must have spoken to somebody in the immediate area of Miss Wilson”. (T.110.18) (See also T.71.32)

69 Under cross-examination Ms Hannan was not able to recall what she had said either to the secretary or (if one accepts the defendant) to the defendant. All she could say was that she remembered telling the secretary that the plaintiff’s condition had significantly worsened.

70 I have concluded that the defendant did speak to Ms Hannan directly. Since he was on an excursion with his daughter, it is likely that the first contact took place between Ms Hannan and his secretary who then telephoned the defendant on his mobile phone and passed on to him Ms Hannan’s number. Given the diagnosis in the note which the defendant made on the following day, it is difficult to accept that information to enable such a diagnosis was transmitted through the defendant’s secretary, rather than directly from Ms Hannan with the defendant asking specific questions as to the location of the swelling. I also accept, consistent with his note, that the defendant did give emergency phone numbers to the plaintiff and her mother.

71 The defendant said that as a result of the information which he had received, he suspected that there was a serious infection and that the plaintiff required urgent treatment. Because he was not able to provide that treatment himself and did not at that time have a Registrar at the Prince of Wales Hospital, he spoke to Dr Jacobsen, an Ear Nose and Throat Specialist, and arranged for him to urgently see the plaintiff. He did this so that the plaintiff could be admitted to hospital immediately without going through the triage assessment process in the Emergency Admission part of the hospital.

72 The reason the defendant thought the plaintiff would require hospitalisation was because of the need for intravenous antibiotics to be administered. The defendant explained the difference between oral and intravenous antibiotics as follows:

“With oral antibiotics there is a certain question mark over their absorption and that is one of the reasons why in all infections you commence with an oral regime in the initial stages and if there is a response then there’s no further need to progress to intravenous. Unless you satisfy yourself or the symptoms suggest that the oral regime is not getting on top of the situation. The other thing is you can give much higher doses in the intravenous regime than you can in the oral.” (T.92.32)

73 The plaintiff saw Dr Jacobson at 3pm on 2 March and he arranged for her urgent admission to the Prince of Wales Hospital. The plaintiff was commenced on intravenous antibiotics and had investigations including x-rays and a CT scan. The CT scan indicated an abnormality of the left masticator space consistent with abscess formation. The plaintiff was eventually diagnosed with a deep neck space infection.

74 The plaintiff remained on intravenous antibiotics until 7 March. By that date it was clear that the intravenous antibiotics had not been successful in eliminating the abscess. An operation was performed on that day to insert a drain in the plaintiff’s neck. This operation was performed under a general anaesthetic. The plaintiff described how unpleasant it was to be intubated for anaesthetic purposes through the nose. Intubation was carried out in this way because the plaintiff could not sufficiently open her mouth due to her trismus.

75 The plaintiff said that the defendant visited her on 4 March (Sunday) and told her that she would be discharged soon and would not need an operation. She said that the defendant visited her again on 6 March (Tuesday) accompanied by a professor. She said that much of the conversation was directed to her mother but she overheard the defendant saying to the professor that the plaintiff “overstretched and popped something”. She said that the defendant assured her that no operation would be necessary and said “Don’t listen to these young interns, listen to a man with grey hair, it will burst (or pop) overnight”.

76 The defendant denied that he visited the plaintiff on either 4 or 6 March. He said that he visited the plaintiff on 5 March 2001 being a Monday, which was his normal day for rounds at the Prince of Wales Hospital. The defendant said that he was accompanied by a dentist, Ross Toll, at the time. Since the plaintiff was no longer his patient he was visiting her not for the purpose of providing medical advice but to provide reassurance and sympathy for her condition. The defendant said that what passed between himself and the plaintiff on that occasion was of a conversational nature and did not involve the provision of medical advice.

77 There is a reference in the Prince of Wales Hospital notes to a visit by the defendant to the plaintiff on 5 March. I have concluded that the plaintiff is mistaken when she says that the defendant visited her on two occasions on 4 and 6 March. I accept that the defendant visited her on one occasion only, in a primarily social and supportive context and that this visit took place on 5 March.

78 The drain remained in position in the plaintiff’s neck until 12 March. This did not interfere with the plaintiff’s mobility but dressings needed to be changed on a regular basis. The plaintiff was discharged from hospital on that day. I will deal with the further progress of the plaintiff under the heading of damages.

79 Before moving to liability, I need to deal with some outstanding credit issues. Each side in this matter made submissions relating to credit. I have dealt with a number of those issues when setting out the factual background but some remain outstanding.

80 Much of the defendant’s evidence was in accordance with his notes, which were either contemporaneous or made on the day following the events recorded. It was never suggested in the proceedings that the notes were incorrect in anything which they recorded or that they had been changed after the event. The challenge primarily related to 27 February when there was no notation of swelling in the plaintiff’s neck.

81 I do not regard paragraph 6 of exhibit C as demonstrating that the defendant was an unreliable witness. This document was headed “Summary of Treatment”, is signed by the defendant and is dated 26 March 2002. Paragraph 6 referred to the information conveyed to the defendant while he was operating. It included a statement “advised that she had seen her GP who had prescribed Amoxil”. In the circumstances this was a reasonable assumption for the defendant to make. It was only when the statements of the plaintiff and her mother were served that the defendant and his legal advisers became aware that the prescription for Amoxycillin had been obtained without the plaintiff being seen by a general practitioner.

82 The court was invited to find as a fact that from 27 February the defendant had displayed a dismissive and patronising attitude to the plaintiff and her complaints. I am not prepared to make such a finding. I accept that the plaintiff genuinely believes that such was the case but I do not find that her belief was justified.

83 In relation to 27 February, as the experts accepted, the defendant’s conclusion that in performing the spatula therapy the plaintiff had over extended her jaw muscles was reasonable. The defendant’s statement to that effect to the plaintiff was not in those circumstances designed to belittle her or be condemnatory. Rather it was a statement of the defendant’s diagnosis of how the trismus had worsened. As the defendant said and other experts confirmed, such over enthusiasm on the part of patients in using spatulae was not uncommon.

84 I see nothing sinister in the defendant telling the plaintiff not to worry. I take this to be a remark designed to reassure the plaintiff and put her at ease. It is unfortunate that the plaintiff took these remarks as a trivialisation of her condition and as a personal criticism of her. I have already indicated why I do not accept that the defendant ignored the plaintiff’s complaints of swelling in the neck at that time.

85 Similarly, if the defendant did ask his nurse to pass on to the plaintiff the comment “It is just a little infection” on 28 February, I do not accept that this was dismissive of her complaints. It was a remark made in the context of the plaintiff telling the nurse that she was scared. I interpret the remark as an attempt by the defendant to reassure the plaintiff so that she did not become unduly worried. I am not prepared to find that the defendant was not taking the plaintiff’s complaints seriously.

86 I have reached the same conclusion in relation to the attendance on 1 March and the defendant’s visit to the plaintiff while she was in hospital on 5 March. The defendant’s comment that it was not necessary for the plaintiff to go to hospital on 1 March was in accordance with his assessment of her condition and did not involve a trivialisation of her complaints. At that time he wanted to give the oral antibiotics a chance to work.

87 In respect of the hospital visit, given the plaintiff’s earlier misunderstanding or misinterpretation of other comments made by the defendant in her presence (such as the alleged diagnosis of Vincent’s Disease), I am not satisfied that there was anything said by the defendant which was dismissive of the plaintiff’s condition or intended to trivialise it. If he did say something along the lines attributed to him by the plaintiff, he was probably once again seeking to reassure her by suggesting that there was a strong likelihood that the intravenous antibiotics would successfully deal with her problem without the need for an operation.

88 On the other hand, some of the credit-based criticisms of the plaintiff appear to me to have substance. In histories recorded by Dr de Burgh Norman in February 2002 and by Dr Baetz in July 2001 there are references to an undiagnosed fracture of the jaw. The implication is that this was caused by the defendant. When this matter was raised with the plaintiff she said that it was all a misunderstanding and that x-rays arranged by Dr Edelman in March 2001 had positively excluded such a fracture. If that were the case it is odd that the plaintiff was still talking in terms of an undiagnosed jaw fracture in July 2001 and February 2002 rather than telling Drs de Burgh Norman and Baetz that although such a diagnosis had been suspected, it was positively excluded by the x-rays. I do not accept the plaintiff’s explanation.

89 The other matter which is of concern is the plaintiff’s complaint of bruxism (grinding of teeth particularly at night) with the consequential physical and psychological problems which this brought about. Having read the plaintiff’s statement and the histories given by her to the doctors who have seen her, particularly her treating psychologist Ms Weekes and Dr Revai, I was left with a clear impression that bruxism remained a continuing and significant problem for the plaintiff up to the date of trial. This was confirmed to some extent by the tender of two broken mouth guard appliances which had been prescribed for the plaintiff in 2001/2002 which she had bitten through as a result of her bruxism (exhibit E). Ms Weekes recorded in her notes on 4 May 2004 that the plaintiff was having her mother stay several nights a week to help reassure her and wake her if she was audibly grinding her teeth. On 15 September 2006 the plaintiff told Ms Weekes that she continued to have difficulty with tooth grinding and difficulty in sleeping (report 17 January 2008 pp 7-8).

90 It was only when Dr Turek gave evidence in the defendant’s case that it became clear that he had provided the plaintiff with a NTI device in March 2003 which had effectively eliminated her bruxism. This device made it impossible to grind molar teeth. The device had required some adjustment in July 2007 but continued to function effectively for the plaintiff at the time of trial. When the plaintiff resumed her evidence as to damages after Dr Turek had given his evidence, she said that bruxism had not been a significant problem for her after she had commenced using the NTI device in March 2003. Given the importance of bruxism in the plaintiff’s damages case, this important fact should have been made very clear in her statement. It is difficult to reconcile her evidence in this regard with what was recorded by Ms Weekes on 4 May 2004 and 15 September 2006.

91 I am unable to resolve the factual dispute between the plaintiff and Dr Revai. The plaintiff asserts that very intrusive questions were asked of her by Dr Revai to which she objected. Dr Revai says he did not ask such questions. I wish to make it clear that on this issue I drew no inferences and I make no findings adverse to the plaintiff.

Liability

Breach of Duty

92 It was accepted by the plaintiff that the defendant’s treatment of her was appropriate up to 27 February 2001. It is in relation to the period from 27 February onwards and particularly 27 February – 2 March that the plaintiff says that the defendant was in breach of the duty which he owed to her to exercise proper care and skill in his treatment of her.

93 In order to understand the submissions as to liability and the references to expert evidence, it should be noted that on the issue of liability eight doctors gave their evidence concurrently. Those doctors comprised: Dr Jacobsen, ENT specialist; Dr de Burgh Norman, maxillofacial surgeon; Dr Baetz, prosthodontist (called in the plaintiff’s case); Dr Payten, ENT specialist; Dr Schifter, specialist in oral medicine; Dr Gatus, specialist medical microbiologist; Dr Bowker, maxillofacial surgeon and Dr MacGee, oral surgeon (called in the defendant’s case).

94 On 7 March when the drain was inserted into the plaintiff’s neck, a specimen was taken from the pus and sent to the microbiology laboratory at the Prince of Wales Hospital. Dr Gatus examined that specimen and concluded that the bacteria could only be one of streptococcus milleri, streptococcus pyogenes or staphylococcus aureus. All of those bacteria cause acute onset of disease with rapid progression of infection over a few days. Streptococcus milleri and staphylococcus aureus have an innate ability to form abscesses. Streptococcus milleri does respond to antibiotics, although some strains are resistant, whereas staphylococcus aureus does not respond. All of the medical experts agreed that the infective organism was one of those three types and probably either streptococcus milleri or staphylococcus aureus. With the exception of Dr de Burgh Norman, they agreed that whichever infective organism was responsible, the abscess formation developed quickly over a few days.

95 The medical experts agreed that a deep neck space infection, such as was diagnosed in the plaintiff, is a rare complication following removal of wisdom teeth and can be very difficult to diagnose. Organisms that cause infection are usually of low pathogenicity. Apart from trismus (which can be present in all kinds of infection), there may be no clinical findings in the case of a deep neck space infection because of the deep anatomical location of the abscess. When infection is suspected following teeth removal and when a treating surgeon is considering possible diagnoses, a deep neck space infection would be regarded as a rare event and towards the bottom of the list of likely diagnoses.

96 The position of the experts is best encapsulated by the evidence of Dr Bowker and Dr Gatus:

“In the overall assessment of the situation where the possibility of a deep neck infection is remote this is a rare occurrence … Following third molar surgery this is a rare event and most oral surgeons would rarely see it and you may see it once or twice in your practising lifetime. Post operative infections following third molar removal are relatively common, so somebody once said the most common things most commonly occur, so a patient rings up with swelling, you immediately assume infection and the standard treatment for that infection is Amoxycillin. To be jumping to a conclusion or thinking this may be a deep neck infection would be an extraordinary sort of a conclusion to be coming to.” (T.134.41 – Dr Bowker)

“I always warn my patients that they are at risk of late infection until three or four weeks. You may clinically look in the mouth and the wound is clean but the wound is still patent to the end of the socket. Food and plaque can easily penetrate that wound up to three weeks following the removal of the tooth. There is risk of infection up to that time. This is when many of the post-operative infections occur, up to about three weeks in clinical practice and most of them are superficial in the area and respond quite quickly to Amoxycillin. That’s the standard.” (T.135.11 – Dr Bowker)

“In medicine we work on probabilities, it is not black and white as legal people like. The probability in Dr Tier’s mind that this woman had a neck space infection is so remote as to not be tenable because we have established that neck space infections are indeed remote. Now, that would be the last in his differential diagnoses. His first diagnosis, which would have led to treatment with Amoxil, would be the standard diagnosis, ie she has got some sort of infection there but not a neck space infection.” (T.137.43 – Dr Gatus)

97 In that regard the comment by Dr Jacobson is not only instructive but demonstrates the benefit of the concurrent evidence process:

“It has been an education to me. I am not dentally trained. I have never pulled out a wisdom tooth, I am not trained in that area. I bring to this my head and neck bias where any swelling, inflammation or trismus three weeks after an operation is assumed to be infection unless disproven. To hear infection in a wisdom tooth three weeks after is common and commonly responds to antibiotics is something that is new to me.” (T.135.36)

98 It was submitted that because a deep neck space infection was a foreseeable consequence of wisdom tooth removal, the defendant should have had it in contemplation as a likely diagnosis and consequently the plaintiff should have been referred to hospital earlier than she was. In view of my factual finding that there was no neck swelling of clinical significance on 27 February, and in view of the unanimous evidence of the experts that such infections are rare, this submission must fail.

99 It was submitted that because the plaintiff’s post extraction recovery was significantly slower than expected with an acute deterioration of her condition from 26 February and then a sudden increase in swelling on the evening of 27-28 February, the defendant should have shown a higher degree of concern about significant infection.

100 There are some factual elisions in that submission which need to be corrected. The plaintiff’s recovery was slow but not abnormally so. There was no acute deterioration in her condition from 26 February rather the plaintiff’s history was that there had been steady improvement in her trismus until 26 February after which there had been a deterioration. Against that background there was a sudden increase in swelling during the evening 27-28 February so that when the plaintiff awoke this was obvious to her when she looked in the mirror.

101 It was the opinion of Dr de Burgh Norman that because the plaintiff’s recovery was slower than expected with trismus he would have arranged for blood tests and an ultrasound. Dr de Burgh Norman said that he would have done this because such tests were cheap and could be done quickly. The trigger for those tests was the suspicion of a localised infection (T.129.37).

102 On the factual findings I have made, there was no suspicion of infection until its presence became obvious on 28 February. The other experts (with the exception of Dr de Burgh Norman and Dr Jacobson) did not regard the presence of trismus twenty days post extraction as being a sign of infection. They considered that the defendant’s diagnosis and treatment on the information which he had, to be appropriate. Even Dr de Burgh Norman was somewhat equivocal about the need for such investigations following the attendance on 27 February (T.127.24, 130.11). If an ultrasound had been carried out on 28 February, Dr de Burgh Norman thought that it may have shown something but he could not be more definite.

103 Doctors Bowker and Schifter disagreed with the approach of Dr de Burgh Norman. Dr Bowker said:

“I would disagree with that in terms of Dr Tier’s findings, limited just to those. On his findings I would see no indication to proceed to further investigations because the scenario that he had was of a trismus which had worsened due to trauma, the clinical picture was consistent with that, so I wouldn’t see there would be any need to be launching into other investigations at that stage. But he would certainly be concerned that this was a trismus that was going longer than normal and would need to be kept under fairly close observation.” (T.130.33)

104 Dr Schifter was of a similar view:

“I agree with that, but with due deference to Dr Norman, you consider it in the context of what the likely diagnostic yield would be. On that day on the 27th, as I understood particularly Dr Tier’s written evidence, I would feel those investigations in terms of looking for an infection would be very low or negligible.” (T.130.47)

…

“Context is important here. The doctor and the patient concerned, Dr Tier was dealing with a healthy, well, young woman who up to that point was making steady, not wonderful but slow and steady clinical improvement. My practice involves dealing with patients with various morbidities which make dealing with such infections difficult, and that would, but in this context, dealing with a young, fit, healthy woman, I think Dr Tier’s approach and management was perfectly appropriate.” (T.132.48)

105 I do not accept the plaintiff’s submission. Like the evidence of Dr de Burgh Norman it has, it seems to me, a significant element of hindsight which fails to have regard to the situation which confronted the defendant at the time. In accordance with the test approved in Rogers v Whitaker (1992) 175 CLR 479 not only was there a responsible body of professional opinion which supported what the defendant did but on the evidence before me, his approach was entirely reasonable.

106 In relation to the opinion of Dr de Burgh Norman the warning of Gleeson CJ in Rosenberg v Percival (2001) 205 CLR 434 at [16] has force:

“In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumes. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated.”

107 It was submitted that the defendant’s response to the report of a “sudden increase in swelling” on the night of 27-28 February was inadequate. It was submitted that the defendant should have ensured that the plaintiff was assessed by a doctor and should not have made an assessment of the plaintiff’s condition without seeing her. It was submitted that had the plaintiff been seen by a GP on 28 February the court would find that she was likely to have received different treatment than that actually prescribed by the defendant. Alternatively, it was submitted, that instead of prescribing just Amoxycillin on 28 February, the defendant should have prescribed both Amoxycillin and Flagyl.

108 There are a number of difficulties with that submission, the most obvious is that it is speculative to say that had the plaintiff been seen by a general practitioner on the 28th, different treatment would have been provided to that recommended by the defendant. The evidence of Dr Gatus, which was supported by the other experts on this issue, was:

“The advice to take Amoxil would be standard advice a dentist would give a person if he considered that they had an infection post tooth surgery, accepted practice. That’s probably the first thing you would do, and I don’t see there is any problem in what he did or what he advised on that day.” (T.131.28)

…

“First up when you think a person has an infection in this situation which in all probability under usual circumstances would be caused by organisms of low pathogenicity that would be susceptible to Amoxycillin, it is entirely reasonable to wait one day two days possibly three days to see the therapeutic response to the antibiotics. You don’t panic you don’t change treatment, you don’t send them off to anybody else, you give it time to see what the antibiotic is doing if they don’t react immediately.” (T.132.35)

109 Dr Payten said:

“Quite often when I see them that day or thereabouts later they say it has got no worse or it is even a little bit better. So my experience is that by and large people with swelling in the jaw area and the neck do respond to oral antibiotics in their early stages.” (T.131.41)

110 Dr Bowker said:

“In the overall presentation of these things the oral Amoxycillin would be regarded as the normal practice to use at that stage. Ideally it would have been useful for Mr Tier to see the patient on that day, but that would not, in effect, change the treatment. It would be merely for him to confirm the information that he had been given by the telephone to confirm that that was the situation. Messages can get garbled. But that would, in effect, not change the treatment at all.” (T.133.10)

111 While it may not have been optimum practice to prescribe antibiotics without actually seeing the patient, the defendant did see the plaintiff on 1 March and thus was able to confirm the information he had been given the day before. Having examined the plaintiff he made no change to his treatment except to add a prescription for Flagyl. This was because the infection did not seem to be responding to Amoxycillin. As the experts appreciated there was no basis for prescribing Flagyl until Amoxycillin was given a chance to work. This is particularly so since Flagyl treats a narrower spectrum of bacteria and can produce side effects. Not one expert suggested that the defendant should have prescribed Flagyl at the same time as Amoxycillin on 28 February and not one expert was critical of the defendant for prescribing Amoxycillin first and then waiting to assess its effect before prescribing Flagyl. (T.143.1)

112 All of the experts, particularly Dr Norman, accepted that it was a reasonable assumption on the part of the defendant that the plaintiff would have had to see a general practitioner in order to obtain a prescription for Amoxycillin (T.133.39). I am of the opinion that although the defendant did not see the plaintiff on 28 February, his direction that she take Amoxycillin was the same prescription as he would have given had he personally examined her on that day and that this was appropriate treatment. It follows that I do not accept this submission.

113 For the same reasons I find that the defendant’s treatment of the plaintiff on 1 March was appropriate and in accordance with good medical practice. There was no basis for sending her to hospital at that time. The oral antibiotics had to be given sufficient time to work.

114 On this issue Dr Bowker said:

“That would be, I think, a very unusual decision. I think that all oral surgeons see patients presenting with at some stage a few weeks later, late infection. All oral surgeons see these patients, sudden increase in swelling and infection is present, and the usual treatment is Amoxycillin, 500 milligrams 8 hourly, providing the patient is not allergic to penicillin or Amoxil. Likewise because it is a guess as to what antibiotic is going to work because you haven’t been able to do any antibiotic sensitivity, but Amoxil is the first choice and the result of that is then closely monitored for a day or so to see if it is working. If it is not working you either change or add another antibiotic.” (T.131.54)

115 I am not satisfied that the plaintiff has established that the defendant breached the duty which he owed to her as her treating oral surgeon. I am not satisfied that there was a failure on the part of the defendant to treat the plaintiff with due care and skill between 27 February and 2 March 2001.

Causation

116 The plaintiff’s challenge to the treatment which she received from the defendant was directed at establishing that an infection was present on 27 February and that antibiotic treatment should have been commenced at that time. If that had occurred the plaintiff submitted that there might well have been a resolution of the infection without there being any need to resort to intravenous antibiotics and the drainage operation.

117 Alternatively it was submitted that the experts generally agreed that antibiotics will always be of some value in the face of infection and so it will never be known what benefit the earlier administration of antibiotics would have achieved and what positive contribution they would have made to the treatment of the plaintiff. As a final alternative, it was submitted that the earlier administration of antibiotics on 27 February would have brought the time sequence forward by at least a day so that intravenous antibiotics would have been commenced on 1 March. Applying the principles of causation in Chappell v Hart (1998) 195 CLR 232 the plaintiff submitted that the defendant’s failure to prescribe antibiotics on 27 February resulted in an increased risk of injury to the plaintiff and that this risk eventuated, ie the development of a deep neck space infection.

118 The first difficulty with the submission is my factual finding that there was no swelling in the plaintiff’s neck on 27 February so as to indicate the presence of infection. Leaving that aside, there are some significant evidentiary difficulties which stand in the way of the plaintiff’s submissions as to causation.

119 The evidence on this issue is as follows:

“HIRSCH: If the antibiotics had been commenced at the first sign of infection on 27 on this scenario rather than a day later, would the likelihood of arresting the infection that ended up being a deep neck space infection have increased or not with earlier antibiotics?

DR GATUS: Impossible to say. The reason being if the infection was caused by staphylococcus aureolus and there is no reason why it is not, then Amoxil would have been ineffective. Most staphylococci are resistant to Amoxil so therefore the infection would have progressed. Streptococcus milleri is susceptible to Amoxil. Staphylococcus aureolus, usually not.

DR SCHIFTER: I was going to clarify with Dr Gatus that not all milleri are necessarily sensitive. There are unfortunately, because of the use of antibiotics, some persons who have resistant strains.” (T.146.50)

“HIRSCH: It cannot be said by anyone of you if antibiotics had been commenced on the 27th that she wouldn’t have improved?

DR BOWKER: I think in view of the fact that in the first 24 hours of Amoxil that she was put on there was no improvement one would expect from the 27th to the 28th there would have been no improvement either. I don’t know, it is too hypothetical.” (T.147.29)

“DR BOWKER: One would have to assume that if the intravenous antibiotics had started a day earlier that the infection would have come under control proportionately earlier. The question is whether coming under intravenous antibiotics earlier would have obviated the need for surgical intervention. I think that this certainly cannot be answered in black and white because one would have to know the exact progress of the infection and there will probably be variation of opinion about probably and possibly and that sort of thing in this sort of question. With the organisms that we are dealing with, and there seems to be a strong body of opinion that we are dealing with a highly pathogenic organism, one that is moving very rapidly, in all probability, even a day earlier, there still would have been pus production, and the basic tenet of surgery is an old saying, ‘the sun should not set on undrained pus’, and if there is pus present it really needs to be drained. Intravenous antibiotics may clear up the infection but it won’t eliminate that pus. So as soon as you’ve got pus if you don’t drain it it will probably indurate and form a scar, if it is sterile pus, but even within pus there can still be living organisms and if they are left there, although the strain of the infection appears to have disappeared, infection can come back. So I think in a significant infection such as we have here of rapid progress, surgical intervention was going to be likely.” (T.151.24)

“DR NORMAN: I believe that 24 hours of oral therapy was reasonable best guess treatment. I firmly believe that the period of intravenous antibiotic therapy as was carried out at Prince of Wales was absolutely responsible and timely and appropriate and they made the good judgment in regard to Miss Wilson’s management in deciding to drain the neck at the particular stage when it was obvious or apparent that it wasn’t undergoing detumescence and that was appropriate.

HIS HONOUR: What are your thoughts, though, Doctor, about if the treatment with antibiotics had started earlier. Do you think or are you able to express an opinion as to whether the need for an operation that is the draining operation procedure, could have been avoided?

DR NORMAN: With the benefit of hindsight and the findings on CT on the 2nd at Prince of Wales it was looking more likely than not that drainage would be required, but I do not agree with my colleague that this was in all probability a highly pathogenic organism, but nonetheless the CT of the 2nd, and I have actually seen the CTs before they were lost … my belief was that surgery was inevitable, but I wouldn’t have treated that patient Miss Wilson, and I have treated many patients of that ilk, I wouldn’t have treated Miss Wilson any differently than they did at Prince of Wales.

DR SCHIFTER: I am agreeing.

DR GATUS: I agree with the proposition.” (T.151.56)

“DR SCHIFTER: … The further point does need to be raised that the problem with deep neck infections is that they are found in spaces where there may not be a vascular supply and you can pump in all the antibiotics in the world you would like to for the benefit of the patient but it may not reach the site of infection to do any specific good. “ (T.155.24)

“HIRSCH: So now she is given oral antibiotics in an appropriate dose 24 hours earlier.

DR SCHIFTER: Yes.

HIRSCH: Can I first ask you this: Do you think it is inevitable that she would have had the sudden increase in swelling overnight?

DR SCHIFTER: Inevitable too strong a word but I think given what we now know of the virulence of the bacteria, most likely.” (T.159.47)

“HIRSCH: Isn't the whole point of giving a hit of antibiotics early that you, as it were, hit the bug on the head and that's the reason why you give the double dose?

DR GATUS: Now, in hindsight, knowing what we know, 500 milligrams three times a day is a minuscule dose to treat a neck space infection in a situation where, as Dr Schifter has outlined, the vascular supply to that area is poor. So it is not unexpected that a 500 milligram TDS dose, you are going to get failure even if the organism is susceptible to Amoxycillin in the first instance.” (T.160.27)

“HIRSCH: Dr Gatus, is it your view if she had been given oral antibiotics on the 27th, that she probably would have still gotten worse, or can you say one way or the other?

DR GATUS: I am thinking - I am weighing up probabilities in the head about the organism and what is likely to have happened. I don't think you can say - put it this way, I don't think you can say she would have got better. You are asking me would it have got worse? Well, I say I doubt whether it could have got better. And there is an intangible thing here, right. This is what's spinning around in my head. It is very intangible. We don't know what the organism is. I will come back to this.

If it is a staph aureus, the answer is definitely no, the antibiotics will not work. If it is a streptococcus milleri, my answer is maybe, maybe not, they may have worked because this organism is known to be inherently a very abscessogenic organism so again I am guarded. I can't say one way or the other definitively as to what would have happened. If it was streptococcus pyogenes which is probably the fastest runner of all of them in how it causes infection, it can go so rampantly that even if you had doubled the dose of antibiotic which was appropriate, you won't contain the infection, so I cannot give a definitive answer to you yes or no. I can't.” (T.162.39)

“DR SCHIFTER: Ms Wilson then went on to have, just trying to tally up the days, is it five days of intravenous antibiotics in hospital and made seemingly only a negligible overall improvement in her condition? Now, I think that we can draw some inferences and I think that's telling and so the short answer to your question is I am not convinced the earlier introduction of the antibiotics necessarily would have obviated or altered the outcome for this patient. “ (T.163.30)

“DR NORMAN: On the balance of probability, Mr Hirsch, oral antibiotics on the 28th would not have altered in a great - in a great manner, and mindful of what my colleague Dr Gatus had said, wouldn't have altered the progress, the inevitable march of this particular infection …” (T.163.56)

“DR BOWKER: I would just say that I think starting the day earlier in all probability would have made no difference …” (T.164.22)

“DR PAYTEN: I think we know that the organism was susceptible to the intravenous antibiotic that was given for five days in hospital because nothing grew on the culture. All that was left was the picture of the organism. Yet the CT scans just before operation, before the drainage, and the CT of the afternoon of the 2nd were essentially the same so there had been no – the antibiotics hadn’t been able to make any headway against that abscess. That’s point one. The other point – so it means we are dealing with not only an abscess but also a virulent organism in my opinion.” (T.164.44)

“DR SCHIFTER: Just for further clarification as well I think a very important word has been introduced which is virulence, which is how nasty is the bug concerned, which is effectively Ms Wilson – and ultimately ended up in deep space infection. I think Dr Gatus in his evidence and also recently said virulence is determined by a number of factors. The nastiness of the bug is due to a number of factors, some are patient-related factors, some are bug-related factors but one of the factors that affects virulence is your ability to get not just antibiotics which is what's concerning us but your ability to mount an immune response and if it is in a vascular deep space, you cannot get the inflammatory cells there either to map the response.

I would make the contention that it was almost inevitable, once the process had started - we can speculate as to the date - as to how this was going to end for Mrs Wilson, the same problems in terms of, if I am making some sort of sense here, your same problem of delivering antibiotics to that site of infection similarly affects your ability, your own ability of you to fight the infection and deliver your army of white cells to fight the infection and this is, I think, the circumstances that unfortunately ended in the circumstances of a deep neck infection occurring.” (T.165.20)

120 The effect of that evidence is that the experts were not able to say that the administration of oral antibiotics on the 27th would have overcome the infection thereby obviating the need for intravenous antibiotics and/or the drainage procedure. They regarded the proposition as being hypothetical. Three of the experts (Drs Bowker, Schifter and Gatus) felt on balance that the virulence of the bacteria was such that the earlier administration of oral antibiotics would not have prevented the plaintiff’s infection taking the course which it did.

121 All of the doctors, with the possible exception of Dr Jacobson, agreed that even if intravenous antibiotics had been administered to the plaintiff one day earlier, ie on 1 March, the drainage operation would have been inevitable. Dr Jacobson was not present when this issue was discussed by the experts. In his report of 14 December 2007 at paragraphs 16 and 17 he expressed the opinion that the likelihood of the patient avoiding surgical drainage would have been increased had the patient been treated with intravenous antibiotics sooner. It is significant that at the time that he expressed that opinion Dr Jacobson had not been provided with the reports of Dr Gatus and his findings as to the nature of the bacteria which had caused the plaintiff’s infection. I suspect that Dr Jacobson may well have modified his opinion in the light of that information and the concession which he made at [96].

122 Even if I had not made a finding of fact adverse to the plaintiff in relation to the presence of neck swelling on 27 February and if I had found that the defendant did breach the duty of care which he owed to the plaintiff, I am not satisfied that causation has been established. None of the experts was able or prepared to express a positive opinion that the administration of oral antibiotics on 27 February would have overcome the plaintiff’s infection. They were not asked to nor did they express their opinions on that subject in terms of “an increased risk of injury to the plaintiff”. They regarded the question as speculative and considered that there was insufficient data available to enable a definite response to be given. Three of the experts, even on that issue however, thought that the earlier administration of oral antibiotics was unlikely to have made any difference.

123 In relation to the earlier administration of intravenous antibiotics on 1 March the evidence was virtually all one way and against the plaintiff on that aspect of causation.

124 The statements of principle in Chappell v Hart and Halverson v Dobler [2006] NSWSC 1037 and Dobler v Halverson [2007] NSWCA 335 do not, in my opinion, assist the plaintiff on the issue of causation in this case. The facts here are different with a significant body of medical opinion against the plaintiff on both aspects of causation and no opinion in her favour. As a simple issue of fact, and as a matter of common sense, I do not find causation proved.

125 In the plaintiff’s written submissions and in the course of oral submissions, the plaintiff sought to put forward an alternative case on liability. The plaintiff submitted that part of the defendant’s failure to properly treat her consisted of his dismissive treatment of her complaints, his accusation that she had caused an increase in pain by overstretching her jaw muscles with the spatulae and generally minimising the deterioration in her condition by using such expressions as “not to worry”, “it’s just a little infection” and by the remarks which he made when he visited her in hospital. The plaintiff submitted that this insensitive treatment of her on its own, or coupled with his failure to properly diagnose and treat her physical condition, had caused or made a material contribution to her psychological response to what had happened to her, ie bruxism and its physical consequences.

126 I refused leave to the plaintiff to make that submission because the plaintiff’s case had not been pleaded or conducted on that basis. It would have been unfair after all the evidence had concluded to allow the plaintiff to put forward such a submission. As was pointed out by counsel for the defendant, had the plaintiff’s case been pleaded and particularised in that fashion the defendant would have conducted at least part of his case on a different basis, particularly insofar as the cross-examination of the plaintiff and the evidence in chief of the defendant were concerned. Additional witnesses may have been called in the defendant’s case.

127 In those circumstances I was of the opinion that this significant change in the plaintiff’s case had been made too late and it would have been unfair to allow the plaintiff to rely upon it. No application to amend the statement of claim or to apply for an adjournment was made on behalf of the plaintiff.

128 Even if I had allowed the plaintiff to put forward submissions of that kind, that case would have failed in the light of my refusal to make findings of fact to the effect that the defendant treated the plaintiff in a dismissive and insensitive way.

Damages

129 It follows from the above findings that the plaintiff’s case against the defendant fails. In case the matter goes further and in accordance with the guidance of the Court of Appeal I propose to deal with the question of damages. It was common ground that because of the date when proceedings were commenced, any entitlement of the plaintiff to damages was to be assessed under the common law and that the Civil Liability Act 2002 did not apply.

130 After her discharge from hospital on 12 March the plaintiff’s problems with mouth opening continued and plateaued after about eight months. Medical opinion is that there remains a slight restriction but that the plaintiff’s capacity to open her mouth is within normal limits.

131 For about two weeks after leaving hospital, a discharge continued from the wound in the plaintiff’s neck which required dressing, sometimes as much as two or three times per day. The wound then healed with a slight scar which can only be seen on close examination of the plaintiff’s neck.

132 Although the time frame is not clear and the plaintiff gave conflicting histories to the doctors who treated her, she seems to have developed a number of new problems after her discharge. Within a couple of weeks of discharge she commenced grinding her teeth (bruxism) particularly at night. The noise was so loud that it used wake her flatmate. She saw dentists, Drs Peet and Turner, for this problem.

133 The plaintiff also suspected that she had an undiagnosed fracture of the mandible. She saw Dr Edelman on a number of occasions in March 2001. X-rays were arranged by him on 24 March 2001. On either that date or 28 March Dr Edelman told the plaintiff that the x-rays did not show any fracture of the jaw.

134 Both Dr Peet and Dr Turner advised the plaintiff to use a mouthguard device to control her bruxism. Dr Turner provided the plaintiff with such a device on 8 May 2001. This device was only moderately successful. Not only did it not effectively prevent the plaintiff’s bruxism but she eventually bit through the device. Between May 2001 and March 2003 the plaintiff bit through two such devices.

135 The plaintiff was referred to Dr Baetz whom she saw in July 2001. Her complaints when she saw Dr Baetz were her bruxism and continuing difficulties with opening her mouth. Dr Baetz having examined her mouthguard device, advised her that he could not prescribe anything better. In relation to her difficulty in opening her mouth, he prescribed specialised physiotherapy and recommended a physiotherapist, Ms Belinda Smith, who was expert in providing such physiotherapy.

136 The plaintiff says that she was extremely upset and disappointed to be told by Dr Baetz that he could do nothing for her bruxism. It is for that reason that she did not seek physiotherapy treatment at that time. She said she was sick and tired of seeing doctors and went to stay with her brother’s family in Melbourne for about a month in August 2001.

137 The plaintiff eventually undertook the physiotherapy with Ms Smith, which Dr Baetz had suggested, in November 2001. The report of Ms Smith indicates that the treatment was successful and significant improvement in the plaintiff’s mouth opening was achieved. The plaintiff demonstrated the nature of the physiotherapy which she said was extremely painful. Dr Baetz in his report pointed out that the delay in undergoing physiotherapy had allowed scar tissue to form, which in turn had further reduced the plaintiff’s ability to open her mouth. I infer that this also contributed to the painful nature of the physiotherapy.

138 The plaintiff’s bruxism caused her to develop severe headaches. These did not adequately respond to analgesics prescribed by her general practitioner. The bruxism and headaches were causing the plaintiff great distress and were significantly interfering with her sleep. The plaintiff said that she became increasingly depressed by the continuation of these problems.

139 The plaintiff saw Penelope Weekes, clinical psychologist, for the first time on 8 November 2001. On that occasion the plaintiff complained of severe and frequent headaches, head, neck, back and facial tension and severe nocturnal tooth grinding. She said that her mood began to deteriorate at the time she saw Dr Baetz in July 2001. The plaintiff told Ms Weekes that she recalled feeling “quite desperate” because Dr Baetz told her he could not help her and referred her to a physiotherapist. The plaintiff said that she had lost interest in sex entirely and had lost approximately two stone in weight. Her sleep had become increasingly disturbed causing her to sleep in. On the occasions that she slept poorly, she usually developed a headache which was of such severity as to prevent her from going to work. Ms Weekes diagnosed the plaintiff as suffering from a major depressive disorder.

140 On 1 March 2002 the plaintiff described to Ms Weekes a new symptom being excessive checking of the telephone, door locks, light switches and gas taps. She would carry out this checking four or more times. She felt the greatest need to check when her mother was not staying with her. The plaintiff realised that this behaviour was irrational but could not prevent herself from doing it. Ms Weekes diagnosed an obsessive-compulsive disorder.

141 The plaintiff had not previously suffered from mental illness problems. There was no history of mental illness in her family although her father had developed Alzheimer’s Disease before his death. Over the years the plaintiff’s sleep problems and headaches caused her to lose a considerable amount of time from work. The plaintiff saw Ms Weekes on at least 40 occasions between November 2001 and the beginning of 2004. Thereafter her attendances on Ms Weekes have been much less, averaging about four attendances per year.

142 The plaintiff’s headaches became so disabling that in March 2002 she was referred by her general practitioner to Professor Lance, consultant neurologist. Dr Lance thought the plaintiff was suffering from tension type headaches associated with her bruxism. He initially prescribed Prothiaden, an antidepressant medication. The plaintiff was unable to tolerate the side effects of this medication. He then prescribed Tofranil, which the plaintiff was also not able to tolerate. Professor Lance prescribed Clomipramine, which not only helped relieve the plaintiff’s depression but also markedly reduced her checking behaviour. Unfortunately the plaintiff developed vasculitis as a result of that medication and had to discontinue it.

143 It was not until the plaintiff was prescribed another antidepressant, Cipramil, in March 2003 that her depression became controlled and she was able to substantially overcome her checking behaviour. The plaintiff says that from time to time since that date she has ceased taking Cipramil in the belief that her condition had resolved. On each occasion after a relatively short period of time her depressive and checking symptoms returned. The plaintiff said that she is now resigned to having to take Cipramil for the rest of her life.

144 The plaintiff saw Dr de Burgh Norman for medico-legal purposes in February 2002 and he diagnosed “myofascial pain dysfunction syndrome secondary to para-functional habits of bruxism and jaw clenching”. Thereafter Dr de Burgh Norman did not express any opinion as to the plaintiff’s condition but restricted his reports to liability issues.

145 In March 2003 the plaintiff saw Dr Turek, a dental surgeon, and was fitted with the NTI device. As indicated earlier in this judgment, the NTI device effectively relieved the plaintiff of her bruxism symptoms. The device is inserted at night and prevents the molars from rubbing together. There may or may not be a coincidence in the fact that the plaintiff’s symptoms of depression and checking also seem to have come under control at this time. This was attributed by the plaintiff to the taking of Cipramil.

146 One of the unexplained issues in the plaintiff’s damages claim is that, at least temporally, her headaches and depression appear to be related to her bruxism and the inability of the medical profession to provide any relief for it. At no time in her evidence, however, did the plaintiff say that once her bruxism was effectively controlled in March 2003 her headaches and depression ceased. If one accepts the plaintiff, her depressive condition and headaches seem to have developed a life of their own at some time between their development in March 2001 and the use of the NTI device in March 2003 so that the alleviation of her bruxism had no beneficial effect on them.

147 The plaintiff in re-examination (T.281) sought to explain her continued sleep problems, despite the obvious effectiveness of the NTI device in controlling her bruxism since March 2003. I found her explanation unconvincing. In the absence of bruxism continuing to be a problem it is difficult to see why the plaintiff would have sleep difficulties thereafter. Similarly, there was no evidence to explain why the plaintiff would continue to have headaches after her bruxism was brought under control. The plaintiff’s description of her present headaches with photophobia clearly involves migrainous features. The origin of such migraine headaches after March 2003 was never explained.

148 The plaintiff was referred to Dr Canaris, psychiatrist, for medico-legal purposes in September 2003. Dr Canaris expressed his conclusions as follows:

“1. Your client comes with a very interesting presentation in that she was apparently entirely free of psychiatric disorder before the complications ensuing from the dental extraction. Afterwards, however, she appears to have developed a substantial mood disorder that was certainly severe enough from her description to qualify for a diagnosis of major depressive disorder. However, this was in turn further complicated by the emergence of panic anxiety and marked obsessive-compulsive disorder-like symptoms. These continue to be present today though to a much lesser degree.

2. Some might argue that the emergence of panic anxiety and obsessive-compulsive disorder indicates that her problems were unrelated to the dental extractions. The argument runs on the following lines: That panic disorder and obsessive-compulsive disorder in particular are fundamentally constitutional disorders that wax and wane over a lifetime and tend not to be influenced by life events. This however is not true in my experience. Moreover, there is considerable overlap between depression and the anxiety disorders including panic attacks and the obsessive-compulsive disorder. The critical issue as far as causality is concerned seems to me to be the temporal relationship between onset of symptoms and the putative life stressor.”

149 Professor Kennett, psychologist, saw the plaintiff in January 2006 and administered a number of tests to her. Those tests showed high readings for anxiety and depression.

150 The plaintiff saw Dr Revai, psychiatrist, on behalf of the defendant in October 2003 and March 2005. Initially Dr Revai concluded that “It is possible that Ms Wilson suffers from an adjustment disorder with anxious and depressed mood as a result of the non resolution of her physical complaint.” He was not prepared to relate her obsessive-compulsive symptoms to her dental problems. By March 2005 Dr Revai had modified his opinion as follows:

“1. Q. Are you able to form a view as to the event, on the balance of probabilities, that is more likely to have triggered the psychiatric symptoms described by the plaintiff?

I believe her obsessive-compulsive disorder is a constitutional disorder. There is no family history of such disorder, but Ms Wilson admitted that her personality is that of a perfectionist. Theoretically it could be possible that as a result of being under so much emotional distress because of the non-resolution of her dental problems, she decompensated into a depression along with obsessive-compulsive symptoms.

2. Q. If so, was the event either the tooth extraction (event 1) or the abscess (event 2) or some other event?

I believe that Ms Wilson could have psychologically decompensated, not as a result of her tooth extractions or the abscesses, but due to the ongoing dental problems that ensued thereafter.”

151 By the time Dr Revai gave oral evidence he had had the opportunity to examine the notes recorded by Ms Weekes during the plaintiff’s numerous consultations with her. Dr Revai identified a number of discrepancies between the history he had been given and that which was recorded by Ms Weekes. As a result of those discrepancies he expressed scepticism as to the reality of the plaintiff’s complaints and as to her motivation in making them.

152 Neither Professor Kennett nor Dr Canaris gave oral evidence. The plaintiff relied upon their reports only. Ms Weekes did give oral evidence. Ms Weekes prepared three reports dated 6 February 2004, 21 December 2004 and 17 January 2008. While Ms Weekes set out in considerable detail the plaintiff’s complaints from time to time and provided a diagnosis for those complaints, she did not at any time in those reports express an opinion as to the cause of the plaintiff’s symptoms.

153 Before cross-examination commenced I asked Ms Weekes the following question:

…

HIRSCH: In what way do you say there was unsympathetic management on the part of Mr Tier?

154 In chief Mr HiHirsch took Ms Weekes through parts of the statement of the plaintiff and asked the following:

…

A. The key statement from Ms Wilson is that she didn’t feel that Dr Tier was taking her seriously in her complaints of pain and swelling etc.

…

A. Ms Wilson at that point and subsequently did not feel that that was a sufficient description of what was happening to her. She felt something much more serious was going on and that’s what she thought was dismissive “just a little infection”.

…

A. The discussion of old fashioned Vincent’s Disease and the cows getting black necks because the flesh rots, which as Ms Wilson describes several times she vividly recalls that, and that made her very very frightened but she couldn’t reconcile it with the treatment that she received and her failure to get better with the prescription of antibiotics.

…

A. Well once again she felt it didn’t – she couldn’t at that point reconcile it with the amount of pain and distress that she was going through and she obeyed him at that point. She didn’t go to hospital.” (T.178.43)

155 When questioned about the defendant’s visit to the plaintiff in hospital, Ms Weekes said:

“A. Well, what I understood from Aleta over the years is that she didn’t request that Dr Tier attend. She felt she was under the care of Dr Jacobson and she felt very distressed when he turned up and said “you’ve just overstretched and popped something” and particularly distressed when he said to her “don’t trust the young interns it will pop overnight”, because she didn’t know what that meant but it didn’t sound good to have an abscess bursting and she knew she was scheduled for surgery, so the conflicting information caused her distress.” (T.181.14)

156 Under cross-examination counsel for the defendant questioned Ms Weekes on this issue:

157 It was this evidence from Ms Weekes which I infer led the plaintiff’s legal advisers to raise an alternative basis for the plaintiff’s claim in submissions.

158 The plaintiff’s evidence was that it was not until about 2003 that she was able to accept the outcome of her operation in that her headaches and depression were under control. It was from that point in time that the plaintiff was able to play a more active role in the conduct of the family business – Swatson House. She felt her condition had been reasonably stable since that time, except for exacerbations when she ceased taking Cipramil. There continued to be occasions when she awoke with headaches and she was unable to work but these occasions only occurred every two or three weeks.

159 In 2004 the family company purchased the Town Hall Hotel in Waratah near Newcastle and the plaintiff used assist in running that hotel, particularly on weekends. The family company disposed of that hotel in 2007 but continues to run Swatson House.

160 The plaintiff explained that Ms Hannan holds the licence for the operation of Swatson House but because of changes in legislation, it will not be possible to transfer that licence to either the plaintiff or her brothers. The transfer of the licence would involve the upgrading of Swatson House to conform with present legislation and the cost of doing so would not only be prohibitive but would prevent Swatson House operating profitably. This means that when Ms Hannan decides to cease operating Swatson House, the business will come to an end.

161 In that eventuality the plaintiff would have to seek employment on the open labour market. She was of the opinion that she would have difficulty in doing so because whereas her mother was prepared to give her time off because of her headaches, a non-family employer would not be so understanding. Dr Canaris agreed that the plaintiff had continuing psychiatric complications. Mr Weekes was of the opinion that the plaintiff would have difficulties if she were required to obtain employment on the open labour market.

162 In her evidence at trial the plaintiff said that she was now in a stable relationship with a man she loved and that there were expectations of marriage. She expressed concerns as to her ability to obtain and hold employment once her mother decided to close Swatson House.

163 Ms Hannan gave evidence on the issue of damages. She said that although the plaintiff had taken a considerable amount of time off work, because she was her daughter the family business had continued to pay the plaintiff full wages. The business had not sought, nor did it intend to seek, repayment of those monies from the plaintiff. There was no agreement between the plaintiff and the family company that the plaintiff should repay those monies from any verdict which she obtained from these proceedings. The plaintiff in her evidence agreed that such was the situation between the family company and herself but said that she felt she had a moral obligation to repay those monies to the family company if she were successful in the proceedings.

164 Apart from the causation issues relating to liability, there is a causation issue in respect of the plaintiff’s damages. If the plaintiff had been successful in establishing liability, it seems to me that the physical injury which she suffered as a result of the defendant’s negligence would have been the need to undergo the drainage operation and its sequelae including the neck scar. Somewhat more remotely, her physical injury may have included the need to be admitted to hospital for the purpose of being treated with intravenous antibiotics. There would probably also be a component relating to the difficulties which the plaintiff had in opening her mouth for some months after her discharge from hospital although this is complicated by her failure to attend physiotherapy as prescribed by Dr Baetz.

165 These physical injuries, however, are relatively minor. They lasted but a short time and the expert evidence is that the physical effects of her time in hospital had completely cleared up by the time she saw Dr Baetz except for her difficulties in opening her mouth. My assessment of general damages in respect of those matters would be $35,000 if the physical injury comprised the drainage procedure and the difficulty in opening her mouth and $40,000 if one took into account the five days in hospital whilst intravenous antibiotics were administered.

166 The causation problem for the plaintiff arises in relation to the balance of her claim for damages. Her bruxism was due to psychological and/or psychiatric causes. This in turn caused depression and it appears to have been a combination of the bruxism and depression which gave rise to the obsessive-compulsive disorder. It was the bruxism which gave rise to the sleeplessness and headaches.

167 Because Dr Canaris did not give oral evidence, his report is unhelpful on this issue. He referred to the cause of the plaintiff’s psychological/psychiatric problems as being variously the “complications ensuing from the dental extractions” and “the putative life stressor” whatever that latter was. The opinion of Dr Canaris seems to encompass the whole of the plaintiff’s experience, ie the initial extractions, her pain and difficulties thereafter, her period in hospital taking intravenous antibiotics and the drainage procedure and its sequelae. There was no attempt to differentiate any of those matters and to indicate whether any individual event or any events in combination made a material contribution to the plaintiff’s psychological/psychiatric difficulties and if so in what way. Similarly, the evidence of Dr Revai and Dr Kennett is of no assistance.

168 The only direct specialist evidence on the topic of causation is that of Ms Weekes. She attributed the psychological/psychiatric difficulties exclusively to the plaintiff’s perception that her treatment by the defendant was dismissive and insensitive. For the reasons previously indicated, that was not the way in which the matter was pleaded and particularised, nor was it the way in which the trial was conducted. The evidence also runs into difficulty because I found that the conduct of the defendant towards the plaintiff was not dismissive and insensitive.

169 On that approach, the plaintiff’s entitlement to damages would be restricted to general damages associated with the drainage procedure and its sequelae and possibly the time in hospital when intravenous antibiotics were being administered.

170 There are other problems with the plaintiff’s claim for damages. The bruxism, which appears to have been responsible for depression, sleeplessness and headaches, which in turn brought about the OCD, was effectively controlled in March 2003. There was no evidence to link the plaintiff’s continuing depression and OCD and need to take Cipramil thereafter to anything which happened while she was being treated by the defendant and while she was in hospital thereafter. There is no explanation in the medical evidence for why these problems of which the plaintiff complains have continued unabated (albeit treated with Cipramil) after her bruxism came under control in March 2003.

171 Were it necessary to so find, I do not see how the plaintiff has an entitlement to damages for past economic loss. She has suffered no actual loss. The family company has no intention of claiming the money back. There is no legal obligation on her part to repay the money. It is a classic Graham v Baker (1961) 106 CLR 340 situation.

172 Finally, I am not persuaded that the plaintiff would have had any difficulty in employment after the bruxism came under control in March 2003. I am not persuaded that the plaintiff has any continuing problem with headaches. To the extent that she needs to take Cipramil, I am satisfied that she is able to function effectively in the workplace whilst taking that medication. Had it become necessary, I would not have awarded to the plaintiff economic loss beyond March 2003. I would not have been prepared to award anything to the plaintiff for future loss of earning capacity.

Conclusion

173 I propose to enter judgment in favour of the defendant. I do not propose to make any order as to costs at this stage since no submissions were made to me on that issue. It may be that the successful defendant has a basis for seeking a special costs order. Otherwise it would be my intention that costs should follow the event and that the plaintiff should pay the defendant’s costs.

174 The orders which I make are as follows:

**********

CITATION:	Wilson v Tier [2008] NSWSC 92
HEARING DATE(S):	04/02/2008, 05/02/2008, 06/02/2008, 07/02/2008, 08/02/2008
JUDGMENT DATE :	22 February 2008
JUDGMENT OF:	Hoeben J
DECISION:	Verdict for the defendant. I reserve the question of costs. The parties have liberty to approach the Court on 2 days notice for the purpose of dealing with the costs question.
CATCHWORDS:	Medical negligence - oral surgeon performs wisdom tooth extraction - alleged breach of duty of care in failure to diagnose and treat deep neck space infection - causation - whether earlier antibiotic treatment would have made any difference - expert evidence given concurrently - effect of significant agreement of experts on contentious issues - damages - psychological/psychiatric reaction to treatment - whether evidence that psychological/psychiatric damages caused by treatment - difficulties in individual heads of damages.
LEGISLATION CITED:	Civil Liability Act 2002
CATEGORY:	Principal judgment
CASES CITED:	Chappell v Hart (1998) 195 CLR 232 Dobler v Halverson [2007] NSWCA 335 Graham v Baker (1961) 106 CLR 340 Halverson v Dobler [2006] NSWSC 1037 Rogers v Whitaker (1992) 175 CLR 479 Rosenberg v Percival (2001) 205 CLR 434 at [16]
PARTIES:	Aleta Grace Wilson - Plaintiff Dr Graham Tier - Defendant
FILE NUMBER(S):	SC 20622/2001
COUNSEL:	Mr D Hirsch/Ms N Watson - Plaintiff Mr GB Evans - Defendant
SOLICITORS:	GH Healey & Co with Graeme R Jenson & Co - Plaintiff Abbott Tout - Defendant