Zambo v The State of South Australia - [2007] SASC 62

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
ZAMBO v THE STATE OF SOUTH AUSTRALIA
[2007] SASC 62
Judgment of The Honourable Justice Layton
28 February 2007
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE - CAUSATION - GENERALLY
PROFESSIONS AND TRADES - MEDICAL AND RELATED PROFESSIONS - MEDICAL PRACTITIONERS - LIABILITY IN TORT
Action seeking damages for alleged negligence by staff employed by Flinders Medical Centre ('FMC')- plaintiff injured his ankle in the course of his employment - taken by ambulance to FMC for treatment - ankle was x-rayed and showed no signs of bone fracture or dislocation - diagnosed as "ankle sprain" - ankle bandaged, crutches were provided and plaintiff advised to have physiotherapy - plaintiff continued to suffer from pain, swelling and restricted movement in ankle - subsequently diagnosed with reflex sypathethic dystrophy ('RSD') - whether FMC failed to accurately diagnose and appropriately treat the plaintiff's injury - whether the plaintiff's condition was caused by the FMC's alleged negligence - Held: the diagnosis and treatment of the plaintiff's injury was timely and appropriate - the RSD developed by virtue of an idiosyncratic reaction to the ankle injury - RSD was not diagnosible at the time of the plaintiff's treatment at the FMC - the onset of RSD was not preventable - the RSD was not caused by any alleged inappropriate treatment or failure to give treatment by FMC - plaintiff's claim dismissed.

LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS - THE PERIOD OF LIMITATION - PERSONAL INJURY CASES
Plaintiff applied for an extension of time pursuant to s 48 of the Limitation of Actions Act 1936 (SA) to instiitute proceedings for damages for personal injuries allegedly caused by the negligence of the Flinders Medical Centre on 6 April 1993 - the proceeding was instituted more than nine years after the expiration of the three year limitation period - the plaintiff received legal advice from solicitors approximately six months after the accident about a potential claim against the local Council - he later received advice from other solicitors approximately three to six years after the accident about a potential claim against the defendant - No evidence of material facts in the 12 months before the action was instituted - Held: there was an insufficient basis for granting an extension of time - Application refused.
Limitations of Actions Act 1936 (SA) s 36, s 48, referred to.

ZAMBO v THE STATE OF SOUTH AUSTRALIA
[2007] SASC 62
Civil
LAYTON J:
Introduction

This is an action for damages brought by Mr Zolton Zambo against the State of South Australia. Mr Zambo claims that the Flinders Medical Centre (“FMC”) was negligent when he attended at the Accident and Emergency Department for treatment of an injury to his right ankle on 6 April 1993. Mr Zambo claims that the FMC failed to diagnose his injury and treat it an appropriate and timely manner. He complains that the FMC incorrectly diagnosed his condition as a “right ankle sprain” when in fact the correct diagnosis was a dislocation of the ankle joint. He contends that he was not given appropriate or usual treatment for a dislocation of the ankle joint, and that as a result he sustained a severe and permanent injury with disability and loss of function of the right foot and ankle joint.
Mr Zambo also applies for an extension of time pursuant to s 48 of the Limitations of Actions Act 1936 as he did not institute his proceedings until 1 June 2005.
The defendant argued that the action is statute barred and there was no appropriate or sufficient basis for an extension of time pursuant to s 48 of the Limitations of Actions Act 1936. As to the allegation of negligence, it was said that the FMC was not negligent because Mr Zambo’s injury was correctly diagnosed and treated, and that Mr Zambo’s disability was not caused by the FMC. Instead it was submitted that the disability was due to an unforeseeable idiosyncratic reaction to a right ankle injury, namely a reflex sympathetic dystrophy (“RSD”), which developed secondarily to his injury. It was submitted that the RSD developed regardless of whether Mr Zambo had suffered a sprain to his right ankle or a dislocation. Further, it was said that RSD was not able to be diagnosed at the time of Mr Zambo’s admission to the Accident and Emergency Department of the FMC on 6 April 1993.
In summary, apart from the statute of limitations argument, the defendant argued that there was no causal connection between the condition and symptoms suffered by Mr Zambo and any action or inaction by the FMC, and that the incapacitating symptoms which Mr Zambo presently suffers are the result of RSD.
I will first deal with the application for extension of time.
Extension of time
Mr Zambo seeks an extension of time pursuant to s 48 of the Limitations of Actions Act 1936, to institute proceedings on 1 June 2005. This is more than 12 years after his injury on 6 April 1993. The relevant time limit is three years.[1]
[1] Limitations of Actions Act (SA) s 36.
In the Statement of Claim the grounds upon which he sought an extension of time were expressed in the following manner:
[He] was led to believe by several of his treating Drs that this condition will heal itself in time, whereas the cause of the condition has worsened over time. He was also incorrectly advised by lawyers who he had consulted six months after the original accident not to pursue a legal claim against the state government, and it was not until after the maximum permitted to file a claim had expired that it became obvious to him that his condition would not improve.
In the course of his evidence and in particular in the course of cross-examination, the following further factors emerged which are relevant to an extension of time.
Approximately six months after his injury on 6 April 1993, Mr Zambo consulted Kelly & Co Lawyers with a view to suing the local Council in respect of the drain. He says that he was advised not to pursue a legal claim against the Council. He says that at the time when he consulted Kelly & Co he did not know that he could pursue a claim against the FMC. He also said that he thought his condition would heal but that in fact it worsened. He realised it would not heal after the time limit had expired.
Mr Zambo’s condition continued to worsen and he later saw another firm of solicitors, Tindall Gask. He initially gave evidence that this was around about 1996/1997, but later indicated that it was more likely 1998/1999. He said that those solicitors obtained copies of the hospital reports and ambulance notes, and indicated to him, “this is as far as we are prepared to go”. His condition continued to deteriorate to the present time.
Since the injury occurred, Mr Zambo has been receiving Workers’ Compensation payments. His current payment is $451.68 net per week. As at the trial date he had received approximately $312,038.55 which I understand included a lump sum in April 1996 of $54,050 for a 70 per cent loss of function below the right knee.
The defendant argues that there is insufficient basis for extension of time.
Section 48(3)(b)(i) requires a court to be satisfied that “facts material to the plaintiff’s case were not ascertained by him until some point of time occurring ... after the expiration of [the period of limitation] and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff.
Section 48(3a) further indicates that a fact is regarded as “material” unless:
(a) it forms an essential element of the plaintiff’s cause of action; or
(b)it would have major significance on an assessment of the plaintiff’s loss.
One of the first problems confronting Mr Zambo’s application is that the material facts relied on must be ascertained no more than 12 months before the action is instituted. The action was instituted on 1 June 2005, and nothing appears to have occurred relevant to the plaintiff’s cause of action between June 2004 and June 2005 which would qualify as facts material to Mr Zambo’s case. He had already received a lump sum payment in 1996 which is only determined after the injury has reached sufficient stability to enable a percentage loss to be ascertained. It is obvious that for many years he has continued to be incapacitated for work.
Considering Mr Zambo’s position at its highest, he was aware in about 1999 of the possibility of a claim against the FMC after he had spoken to Tindall Gask and obtained information. This was six years before the action was instituted. Even allowing for the fact that he appeared not to be able to get legal assistance to pursue the action, and was then required to proceed himself, these circumstances do not meet the requirements of s 48(3)(b)(i).
Mr Zambo therefore does not pass the threshold test in the first aspect of s 48(3) of the Limitations of Actions Act.
In so far as the question of discretion is concerned in relation to s 48(3b), I did not see there being any particular prejudice to the defendant by the bringing of the application for extension of time. No argument of this nature was put forward by the defendant. That, therefore, is not a relevant factor in my view.
I consider that in all of the circumstances the application for extension of time should be refused. However, I will not simply deal with the plaintiff’s action on the basis of a dismissal for want of extension of time. I will now consider the merits as if an extension of time had been granted.
Trial process
Mr Zambo represented himself at the trial. Although he understandably expressed concerns about his lack of skills, he nonetheless presented his arguments clearly and well. Mr O’Sullivan who appeared as counsel for the defendant was also helpful in his approach to Mr Zambo and this enabled the trial to progress smoothly.
Mr Zambo initially did not give oral evidence but instead wished to rely on a written statement. His statement contained a number of matters which were either inadmissible or were submissions rather than evidence. After hearing submissions, I ruled on the written document, which was then subsequently tendered as the evidence of Mr Zambo, deleting those matters which were inadmissible and highlighting in yellow those matters which were submissions. In addition, Mr Zambo acceded to my request to answer further questions and he was also later cross-examined by Mr O’Sullivan.
A number of exhibits were tendered, either by consent or without objection. They largely consisted of medical reports. In addition, Mr Zambo called two medical experts, Dr Ridings and Dr Zuvela, both general practitioners. He also called a number of lay witnesses who testified as to the appearance of his right ankle either on the day of his injury or within a day or two after.
The defendant called two medical experts, Professor Edwards and Mr Paterson, both of whom are orthopaedic surgeons.
In relation to the lay witnesses, I indicate from the outset that I found them to be honest and credible in their observations of Mr Zambo’s right ankle. In relation to the evidence of Mr Zambo, I also accept that he was honest and credible in his description of his symptoms. The issue in the case is whether or not Mr Zambo is correct in the conclusions he draws and the submissions he makes as to his diagnosis and the cause of his symptoms.
With regard to the quantum of any damages, both parties were agreeable to me first making a decision on liability, and then in the event of Mr Zambo being successful, to then have a hearing on the issue of quantum of damages.
The accident
At about 3.00pm on 6 April 1993, Mr Zambo attempted to move a bed settee from the back of a truck in the course of his employment as a truck driver. Mr Zambo was then approximately 43 years of age. He is now 57. Mr Zambo gave evidence which I accept, that he was a fit man at the time of the accident and that he had never had trouble with his right ankle before.
As he was walking backwards out of the truck he put his right foot on the edge of a drain which was uneven. He twisted his right ankle and fell to the ground and the settee landed on his chest. Mr Peter Day, who was with him at the time of the accident, provided a statement (Exhibit P2). Mr Peter Day in his statement says that he called for an ambulance, that Mr Zambo was in severe pain, and that his right ankle was “inverted inward”. Mr Zambo was taken to the FMC approximately 40 minutes later.
The ambulance report was tendered (Exhibit P8). An ambulance officer noted that the right side of Mr Zambo’s right ankle was swollen and it was “partially misaligned”. There was pain at the site, on touch, or movement, but there was circulation in all toes.
Mr Zambo said that he experienced a severe throbbing pain and he felt as though his foot “was no longer part of him”. He described the swelling as enormous and said that it was “out like a tennis ball”. He further stated that his achilles heel and the whole of his right foot was inverted inwards. He describes April 1993 as “the last day [he] walked on this earth”.
He was taken to the Accident and Emergency Department at the FMC and was seen by Dr Sally Downes. The progress notes of Dr Downes were an exhibit (Exhibit P14). According to the notes, Mr Zambo was seen at 4.35pm. The notes reveal that on examination Mr Zambo had a swollen and tender ankle. He was sent for an x-ray which indicated no bone abnormality. Dr Downes diagnosed “a right ankle sprain”. She gave Mr Zambo a Workers Compensation Certificate to be off work from 6 April 1993 until 9 April 1993 and indicated that he would require a further review. She advised Mr Zambo to have physiotherapy. His ankle was bandaged and he was given a set of crutches. He was then discharged from the hospital.
When Mr Zambo was asked in cross-examination whether he recalled being told to keep his ankle elevated, he could not recall it. However, he did remember elevating his leg in bed that evening because he said he could not put any weight on the leg due to the pain.
Mr Zambo is highly critical of being sent home simply with his ankle bandaged and with crutches, when he said he had told Dr Downes that he could not feel or move his foot any more and demonstrated that he could no longer reach the ground with his right leg. He said he told Dr Downes “You cannot leave [the foot] like this” several times. I am unable to be satisfied whether or not Mr Zambo did in fact express those views at that time or whether this is his retrospective belief given the fact that his right ankle has never recovered. In any event, even if such a conversation did take place, it does not alter the appropriateness of the treatment, for reasons which I will later canvass.
Treatment and progress
Mr Zambo indicated that when he woke up the next morning his foot felt cold, and he still had the same pain as before. A number of witnesses called by Mr Zambo gave evidence of the state of his ankle. Mr Young saw his ankle on Wednesday, 7 April 1993. It was still in dressings and he noted that the ankle was pointed downwards and inwards. Mr Stuckey also saw him on that date and indicated that the foot was on an angle so that the bottom of the foot was turned inwards. Similarly Mr Grant said that Mr Zambo’s ankle was badly inverted and that it had bandages on it. Mr Pinos also saw Mr Zambo during that week and said that his ankle was bandaged and facing inwards.
Mr Zambo gave evidence that he saw a physiotherapist, Mr Craig Mitchell on 8 April 2007. Mr Mitchell was not called, but a series of reports were tendered in a compendium (Exhibit P7). In these reports, Mr Mitchell indicated that when Mr Zambo first saw him on 7 April 1993 he complained that his ankle was very sore and swollen, particularly on the lateral aspect of the ankle. He said he rated Mr Zambo’s pain almost a nine out of ten on the severity scale. He indicated that Mr Zambo was non-weight bearing and was using crutches. Mr Mitchell issued him with a “Sweedo Brace” and gave him local treatment consisting of graduated anti-inflammatory physio therapeutic modalities. He regarded the ankle as too sore for more active treatment in a report dated 14 April 1993.
Mr Zambo recalled that before Mr Mitchell treated him, he had referred him to Dr Ridings, and it was only after Dr Ridings had given the “okay”, that he returned to Mr Mitchell. Nothing turns on whether it was on 7 April or later that Mr Zambo first received treatment from Mr Mitchell.
Mr Zambo’s recollection is that he first saw Dr Ridings on 8 April 1993, although Dr Ridings thought that he first saw Mr Zambo on 16 April 1993. Again nothing turns on this difference in dates.
Dr Ridings described Mr Zambo’s ankle as being distorted. The foot was inverted by about 45 degrees, the ankle was unstable and the shin and lower leg were swollen. He indicated that the ligaments of the outer part of the ankle were so seriously torn that the foot could have adopted any position from a normal position to an inversion of 45 degrees. He recalled that Mr Zambo said he had no feeling in the foot. Dr Ridings gave evidence that this lack of feeling was probably due to the fact that the nerves surrounding the ankle had been torn and that Mr Zambo probably would not have felt any movement of his ankle at that time.
On the first occasion Dr Ridings saw Mr Zambo, it was without the benefit of subsequent x-rays. At that stage Dr Ridings formed the view that Mr Zambo had suffered a serious dislocation of the right ankle involving a major tearing of the lateral ligaments of the ankle with subsequent soft tissue injury and damage to the blood supply and nerve supply to the foot and the lower leg. Dr Ridings sent Mr Zambo off for x-rays. The doctor’s notes as well as his evidence is that the x-rays were done on 16 April 1993. The x-ray report results are recorded in a report of Dr Ridings as follows:
Right Ankle
There is a little soft swelling tissue over the fibula. No fracture. No other abnormality.
Dr Ridings gave evidence that he indicated to Mr Zambo on 4 May 1993 that there was no underlying bony injury but that he had residual pain and swelling as a result of considerable ligamentous damage.
Mr Zambo gave evidence that Dr Ridings told him about the x-ray results but that Dr Ridings also added that the x-ray showed a chip. Dr Ridings also confirmed this reference to a “chip” and said that this was consistent with the tearing of ligaments of the ankle.
In the meantime, Mr Mitchell sent a letter to Dr Ridings indicating:
Zoltan is still complaining of considerable discomfort, and considerable swelling at the ankle.
…
The swelling has been particularly difficult to control, and it appears that something is not completely satisfactory at the ankle. This has been coupled with considerable discomfort, despite Zoltan being still non-weight bearing on crutches, with a little partial weight bearing from time to time.
[At] this stage, the time frame has become unacceptable for Zoltan’s condition. That is, progress has been very slow and he is still unable to wean himself from the crutches. This has been despite excellent local treatment, and a very co-operative patient.
Mr Zambo described some treatment given by Mr Mitchell being “electric shock treatment”. There is no reference to such treatment in the reports of Mr Mitchell but that is not to say that that treatment was not received. In any event that is not relevant to the ultimate issues in this case.

On 19 May 1993, Dr Ridings noted that the oedema of the foot and lower shin of the right leg had extended up to the knee and that his skin was mottled and turgid. Dr Ridings considered the possibility that he may have suffered a deep vein thrombosis and referred Mr Zambo to Mr Justin Miller, a vascular surgeon.
Mr Miller examined Mr Zambo on or about 20 May 1993. Mr Miller indicated in a report dated 20 May 1993 (Exhibit P6) that Mr Zambo appeared genuine and at the time when he saw him, indicated he was unable to walk or even extend or flex the foot. Mr Zambo told him that the swelling receded by morning, but not entirely so, and that the ankle swelled as soon as he got on his feet to go to the toilet. He has not been able to walk other than by crutches. Mr Zambo reported to Mr Miller that over the last few days the swelling had worsened and the foot had become progressively colder. Mr Miller noted clinically that there was a restricted cold foot and ankle with a lack of movement of the ankle. He noted that the arteries were audible with the doppler but naturally no pulses could be felt through the oedema. His veins were examined with a duplex ultra-sound and there was no evidence of thrombosis. A diagnosis of RSD was suggested. Mr Miller concluded:
… there has been gross disruption of the ankle joint, and possible damage of the articular cartilage. Synovial fluid escapes to the tissues the moment he gets in the erect position. This sympathetic dystrophy is consequent upon the vicious circle of lack of movement and loss of muscle tone, and is more likely to be corrected by improving the function of the joint rather than sympathectomy.
Mr Miller arranged for Mr Zambo to be seen by Mr Roger Paterson.
Mr Paterson, who gave oral evidence, first saw Mr Zambo on 24 May 1993 and diagnosed that he was suffering from RSD as well as a “fairly severe ankle sprain”.
After that diagnosis was made, Mr Paterson referred Mr Zambo to Dr Sydney Aidinis, an anaesthetist, for treatment of his pain. A number of medical reports from Dr Sydney Aidinis were tendered (Exhibit P5). These reports confirmed the opinion of Dr Aidinis that Mr Zambo was suffering from RSD. His treatment was sympatholytic blockade which he received on a number of occasions. In addition he was referred for physiotherapy to improve his range of movement and also the application of TENS. It was noted in a report of Dr Aidinis of 14 June 1994, that these therapeutic modalities had reduced the swelling of his foot/ankle and restored the foot to a normal colour. They had significantly reduced his ankle pain and improved the range of movement of his right ankle. However, he noted that there was “moderate disuse atrophy” of his right calf and to a lesser extent of his right thigh. He noted that Mr Zambo complained of a deep constant ache of his ankle/heel region and occasional coldness, swelling and discolouration when his leg was in a dependant condition. It was also noted that plain x-rays taken on 27 August 1993 and 22 September 1993 revealed osteoporotic changes in the calcaneum and small bones consistent with the RSD syndrome (Report 14 June 1994, Exhibit P5).
A triple phase bone scan arranged by Mr Paterson on 22 September 1993 revealed an increased uptake internally around the region of the ankle and joint, and decreased perfusion. Mr Paterson gave evidence that this scan essentially ruled out joint damage but supported the clinical pathology of RSD.
I am satisfied that the circumstances of the accident and the treatment which I have set out in paragraphs 26-48, are proved on the balance of probabilities.
I find that Mr Zambo suffers from RSD. Mr Paterson performed four procedures on Mr Zambo. Two arthroscopies on 11 July and 2 August 1994 and two operations involving manipulation of the foot and the use of plaster on 16 and 30 September 1994. The objective of these procedures was to increase Mr Zambo’s range of movements. Although Mr Paterson initially thought it was a theoretical possibility that Mr Zambo may recover from RSD spontaneously at some time in the future, he now believes that this is very unlikely.
Medical Opinion on RSD
Mr Zambo was therefore diagnosed with RSD approximately six weeks after his initial injury. In Mr Paterson’s view this was a reasonable timeframe within which to make the diagnosis. Mr Paterson gave evidence that he would not have expected the FMC to have diagnosed Mr Zambo with RSD on the day of his injury. He indicated that RSD was not preventable prior to the onset of symptoms which later led to its diagnosis. Mr Paterson gave evidence that there was nothing which the FMC could have done to prevent the onset of RSD at the time when Mr Zambo was examined. He also said that irrespective of whether there was a dislocation or there was a sprain, the severity of the original injury had nothing to do with the onset of RSD. It was simply the injury itself which triggered the condition.
Mr Paterson was asked to review the FMC notes and x-rays, and he made the following findings, as indicated in a report of 18 February 2004 (Exhibit P15). He noted that the x-rays revealed no bony injury and no malalignment. He also noted no subluxation or dislocation of the ankle or other joints. He said that this was entirely consistent with Mr Zambo’s history of having sustained an inversion injury and subsequent lateral swelling. He also said that although the ankle joint may have “subluxed” at the time of the injury, it was certainly in its normal anatomical position at the time of the x-rays at the FMC. He also said that he could find absolutely no fault in the advice and management provided to Mr Zambo at the FMC.
Dr Ridings indicated in his evidence that he had a general knowledge about RSD but that he would defer for treatment and diagnosis to specialist opinion. In any event, his evidence was that RSD did not manifest itself until some time after injury and that it was “definitely not straight away”. Dr Ridings accepted the opinions of the medical experts, namely that Mr Zambo had suffered RSD, and that it would not have been manifest at the time when Mr Zambo went to the FMC.
Mr Zambo also called Dr Marko Zuvela, a general practitioner. Dr Zuvela has been managing Mr Zambo’s symptoms in relation to his right leg since first seeing him on 20 December 1999. Mr Zambo was first seen by Dr Zuvela at the Royal Adelaide Hospital. At that time Dr Zuvela noted a deformed and swollen right ankle, foot and leg. Dr Zuvela was given a detailed history, including that Mr Zambo had suffered several episodes of cellulitis involving the leg. It is to be noted that Dr Zuvela saw Mr Zambo more than six years after the initial injury. Dr Zuvela gave evidence that he did not recognise RSD when he first saw Mr Zambo, but that later he became aware of this diagnosis probably through having read the specialist’s reports. Dr Zuvela mainly saw him with regard to increasing pain in his right foot which was diagnosed as right foot cellulitis with complications. He was treated with antibiotics.
Dr Zuvela does not dispute the diagnosis of RSD. He indicated that RSD can complicate an injury as early as six to seven weeks after injury, but as late as 12 months or so after initial injury. However, he said he would defer to specialist opinion on this topic. There was no evidence given by Dr Zuvela which in any way detracted from the previous diagnosis of RSD.
Finally, medical evidence was given by Professor Edwards, an Orthopaedic Trauma Surgeon based at the Alfred Hospital Road Trauma Centre in Melbourne. He was asked to review the FMC notes and x-rays and also give evidence on RSD. A report dated 21 August 2006 was tendered (Exhibit D17). After reviewing all of the notes, he formed the view that Mr Zambo had suffered “a sprain type injury” to his right ankle on 6 April 1993 and that he subsequently rapidly developed a severe case of progressive and unremitting RSD. He noted that the initial x-rays from the FMC, taken on the day of the injury, did not demonstrate any fracture, dislocation or subluxation of any bone or joint. He noted that the initial management was of a conservative nature, and considered it to be appropriate for the injury. He also indicated that the subsequent identification and management of RSD occurred in “a most satisfactory manner”. He noted that not only was the diagnosis made early, which was unusual but the appropriate referrals and treatment modalities had been instituted early. He said that despite this management, the outcome was remarkably poor.
Professor Edwards concluded that Mr Zambo:
… has clearly suffered a devastating complication of the soft tissue injury. This pattern of complication involving RSD of a severe nature following a minor injury is well recognised but infrequent. He does not fall outside the range of outcomes seen, extremely infrequently, following an ankle injury.
When giving oral evidence, Professor Edwards indicated that RSD was a condition manifested by a number of critical symptoms, including severe and unremitting pain, discolouration of the skin, and swelling. He stated that the condition generally follows a traumatic event, but does not relate to the magnitude of the trauma. He also testified that RSD can occur in a wide spectrum of ages; it occurs in children as well as in geriatrics. He said that it was “never evident on the day of the injury and is virtually never seen under about two weeks”.
When cross-examined by Mr Zambo, Professor Edwards indicated that RSD could not have caused Mr Zambo to be unable to feel his foot at the time of the accident. He also indicated that RSD can cause a foot to be inverted inwards, but this does not occur in a split second. He said that deformity of the affected joint was common in RSD. He was also cross-examined as to the appropriateness of the treatment at the FMC, and confirmed that the reference to physiotherapy, the bandaging, the use of crutches and the recommended review by his general practitioner were entirely appropriate in the circumstances.
In conclusion
In my view the evidence overwhelmingly is that Mr Zambo, who was previously in good health and fit, suffered a very painful and severe injury to his right ankle. Whether this was a strain to his right ankle or a dislocation of his right ankle, this injury later developed by virtue of an idiosyncratic reaction to his ankle injury into RSD. This condition could not have been diagnosed on the date of his admission to the FMC and there was nothing inappropriate about the treatment given by the FMC. I consider that the injury suffered by him was, on the balance of probabilities a strain of his right ankle and not a dislocation. I consider that it is possible, as Mr Paterson indicates, that his joint could have “subluxed” at the time of his injury but that was not a dislocation of his foot. In any event, this diagnosis is irrelevant because whether it was a dislocation, or a strain, he developed RSD for reasons unconnected with any alleged inappropriate treatment or failure to give appropriate treatment by the FMC.
Using the words of Professor Edwards, this was a case of “dreadful bad luck”. Mr Paterson said, “This is the worst case of this sort” he had ever seen and he had “no dispute with Mr Zambo about the severity of his disability or the fact that it came on, effectively, immediately from his point of view. So everything that he says only arouses my sympathy on my part without changing what I said”.
Unfortunately, it was apparent to me at trial that despite the views of several medical practitioners, Mr Zambo believes and is convinced that the FMC caused his condition. Although many have tried to explain that this is incorrect, he still rejects their opinions and says it was “a conspiracy” and they were trying to shield the FMC from liability for negligence. This is most unfortunate. I can understand that he is very angry about what he perceived to be a lack of concern by the FMC. In his view, simply being sent home with a bandage around his ankle, crutches, a medical certificate and a recommendation for physiotherapy was an inadequate response. This view is not shared by any of the medical practitioners, including the doctors called by him. Mr Zambo has understandably been highly concerned, not only with the lack of movement of his ankle, but also the worsening of his condition. There is no-one to blame for his situation – it is his own body’s reaction to the injury.
I hope after this hearing and having heard all of the evidence, Mr Zambo may now be able to accept that no-one disbelieves him as to the severity of his symptoms but it is nobody’s legal fault.
For all these reasons, Mr Zambo’s claim is dismissed