I think Mr Fletcher's evidence in this passage reflects the overwhelming likelihood, taking into account the plaintiff's history with Allco, his age and health, his work habits and the challenges and opportunities then clearly perceived to be present by his business associates and senior management of the company into which he had put the best years of his life. The notion that he intended to walk away from it, let alone from full-time business activity, is, to my mind, fanciful.
21 Mrs Alves (whose evidence I accept) also gave evidence supporting that of the plaintiff so far as his future intentions were concerned -
"(772) Q. He resigned as managing director; we know that…what did he tell you, if anything, about why he did that and what his future intention was?
A. He didn't talk about the future, but I knew - he told me that he wanted to try to expand the company and he wanted to study the market in Europe, in London where we went. So, if possible, if he could buy another company to associate with Allco, it was his dream to make the company bigger and bigger - prosperous because it was already on top, but he still has ambition to go on and on."
22 Indeed, Mrs Alves added that she and her husband bought a house in Sydney in 1989 because he intended to be managing director of Babcock Australia which meant, the company's operations being centred in Sydney, that it was necessary to live here.
23 The plaintiff, like many businessmen in his position, worked very long hours. He thought - and this does not seem to have been controversial - that he worked on average fifty-five hours a week. He also needed to travel very often. He led an active and extremely successful business life. Allco Steel was obviously of enormous personal interest to him and he had played a major, if not the major, role in creating, sustaining and expanding its business. There is no reason to doubt his evidence that he saw that business as expanding - and needing to expand - even more. When the plaintiff moved to London after his resignation as managing director, he returned about four times a year during which time he would meet with, amongst others, Mr Turner. As well, there were frequent written communications between them, Mr Turner, in particular, keeping the plaintiff informed of Allco's business between board meetings. The plaintiff made regular monthly reports on particular enquiries concerning the acquisition of technology for Allco. A volume of written material was tendered covering this period. For present purposes, it is sufficient to state that it demonstrates the plaintiff's very significant involvement with Allco's business both strategically and as to technical matters of considerable complexity. It presents a convincing picture of the plaintiff's major role in Allco entirely at odds with the defendant's case that he had, in substance, retired from substantial involvement in its affairs. Even having regard only to the plaintiff's history with and involvement in the company, it is difficult to accept that he would, as it were, and as is essentially submitted by the defendant, not only simply have decided to leave but also to substantially retire from active business life. (His hope that his partners would do so was soon shown to be also unreal.) Such an action would be so eccentric as to be unlikely in the extreme. Accordingly, I consider that the accounts of the circumstances of and the reasons for the plaintiff's departure in February 1987 from formal office given by the plaintiff and Mr Turner are, in substance, true. This conclusion depends not only on my assessment of them as witnesses but also on a common sense view of the logic of events.
24 As I have mentioned, whilst the plaintiff was in London, Babcock Australia, a subsidiary of a major English engineering and fabrication company, became available for purchase. The acquisition appeared advantageous because Babcock Australia offered Allco new design skills for the cement, power and chemical industries, thus permitting expansion of Allco's turnkey business. This, in substance, was a business model in which the company sought to tender for the entire provision of a particular works or installation from design through to final completion. It was the plaintiff's evidence that he intended, when he came back to Australia following the purchase of Babcock, to be chief executive of the conglomerate comprising both Babcock and Allco (the Allco Group), leaving Mr Turner as I understand it, with executive control of Allco. The plaintiff agreed that there had been no written or oral communications between him and any of the other directors about his returning to Australia to take the Group CEO role, even though he returned to Australia for board meetings from time to time. He pointed out, however, that in his negotiations with Babcock's parent company in England he undertook that he would become chief executive of the joint business and that it was this undertaking which (in part) induced that company to take 20% equity in Allco Group in exchange for Babcock Australia - for obvious reasons an advantageous arrangement. Although the plaintiff returned to Australia initially as a consultant, Mr Turner said that it had already been arranged that he would take the position of managing director of Babcock Australia, retaining his position on the board of Allco Limited, which was the controlling company. By virtue of his deputy chairmanship of Allco, Mr Turner thought that he would have overall supervision of the Group but not hands-on control of Allco, which was a mature business that did not need his direction; the plaintiff would, however, have hands-on control of Babcock Australia. Mr Turner expected, together with the plaintiff, that the driving force in the Group so far as business expansion was concerned, would be Babcock Australia. At the time that the plaintiff returned, there was no managing director of Babcock Australia, executive responsibility being with Mr Robert Fletcher who reported to Mr Turner.
25 The plaintiff said that, even before the purchase of Babcock Australia was contemplated, he thought that he needed to return to Australia to take back executive control of Allco from Mr Turner because of an adverse view he had formed of some aspects of Mr Turner's management. Considering the whole of the circumstances as the evidence discloses it to be, I think that this evidence was somewhat overstated. I accept, however, that the plaintiff had indeed contemplated return in the short term and that he intended to resume overall control but whether this meant a restoration of the previous situation when he was managing director is doubtful: more probably, this would have depended on unfolding events. To be fair to Mr Turner, I think I should say that the plaintiff's concern may not have meant much more than a perception that Mr Turner's management style was in some respects significantly different from the plaintiff's. I think that the plaintiff found it difficult to cope with the notion that he was not directly in charge of the company's affairs. Thus, despite the plaintiff's views about this matter, during the course of 1987 it is not necessarily the case that, had the Babcock purchase not intervened, he would have actually sought to replace Mr Turner. The plaintiff's position in the company and the status that he had acquired by virtue of his key involvement in its past success both made it difficult for him to step aside and also gave him good reason to believe that he would ultimately have his way if he wished to resume the reins of executive management. But this is not to accept that the position was quite so simple as the plaintiff described it in evidence. I think it highly likely that his recollection has become adjusted by the process of time. In substance, however, I consider that the probabilities are that the plaintiff did expect to develop significant new business and that he saw himself returning in due course to Australia to take charge, in one form or another, of the larger enterprise.
26 In short, I conclude that the plaintiff, although wanting to "move on" as it were, did not intend to retire in any sense.
27 Having regard to the controversy between the parties as to the plaintiff's situation immediately before his operation, it is, I think, useful to set out Mr Turner's view of the company which it was envisaged (with Mr Turner's evident support) the plaintiff would manage. I have taken this brief summary of the position from Mr Turner's evidence, which I accept. The management team at Allco thought that Babcock Australia was significantly under-performing as a result, to a significant degree, of what was regarded as inadequate management. Babcock Australia had been a very substantial company with annual turnover in the 1970s in excess of $100 million, in today's terms equivalent to a turnover in excess of $600 million. During due diligence, Allco management noticed that Babcock Australia had two extremely good years followed by two very poor years. It was this latter factor which had induced the United Kingdom parent company to sell its subsidiary for a substantial equity position in the new conglomerate, an obvious expression of confidence in the business acumen of Allco management and the plaintiff. Allco management considered that the business was "very good" but very substantial changes in management and business culture were necessary to make a success of it. Mr Turner's view was that the plaintiff was particularly suited to achieve this. As I have mentioned, Babcock Australia had its own capability for designing and engineering, which distinguished its character as a business from that of Allco. That Mr Turner and, I think I am entitled to infer, the other members of the board (with the possible exception of Mr Parisi) thought that the plaintiff was capable of managing this company back into success is a most significant tribute to his talents as a businessman. Mr Turner's cross-examination covered all these matters. However, none of the points made in cross-examination, to my mind, significantly qualify the substance of the evidence which I have summarised above and which I accept.
28 Mr Fletcher was in executive control of Babcock Australia and thus held a senior position within the Allco Group. His evidence was unequivocal that he expected that, when the plaintiff returned from the United Kingdom, he would be reporting to the plaintiff, although the precise executive position that the plaintiff was to fill was uncertain. I am satisfied that, having regard to the plaintiff's dominating position within the company, not only as a major shareholder with practical control of the company through his close relationship with Mr del Bianco, but also because of his pre-eminent management and marketing skills, the plaintiff would have returned from the United Kingdom to control, in one position or another, the Allco business although I accept that he would focus on the challenges and opportunities presented by the acquisition of Babcock Australia. Mr Fletcher said, that when he saw the plaintiff after he first returned to Australia in April 1988 before his initial surgery, that he was very well and looking forward to his work as chief executive of Babcock Australia. After Babcock Australia was acquired, its offices were refurbished. Amongst other things, it was planned (as I mentioned) to have Mr Fletcher's and the plaintiff's offices adjoining. Initially, their offices were to be on the top floor but, because the plaintiff thought that senior management "needed to be closer to the action and who came in the door" they were moved to the ground floor. This was arranged by communications between London and Australia whilst the plaintiff and Mr Fletcher were still abroad negotiating the purchase. This evidence indicates, not only that the plaintiff was to play a leading role in Babcock Australia, but also that he made decisions even as to such apparently minor matters as where the offices of senior management were to be situated which, it seems, were accepted without demur and made well before his return to Australia. During the brief five week period after the plaintiff's return from the UK and his disastrous operation, there were matters to which he needed to attend in Newcastle before moving to Sydney. His involvement both with Allco and with Babcock Australia was therefore cut short.
29 Although the plaintiff travelled in Europe during the period after his resignation as managing director of Allco until his return to Australia following the purchase of Babcock Australia, he lived in London during that time with his wife. In 1987, the plaintiff returned to Australia for the June and September board meetings and also for the January 1988 Board meeting. He had hitherto been in excellent health. Indeed, he described himself as "a health fanatic". He played golf once or twice a week although, as I understand it, only, or at least, mainly, in summer.
30 It is self evident that, in order to undertake the very considerable responsibilities of managing director of Allco, together with his other activities, the plaintiff must indeed have been fit and well, both physically and mentally. However, during 1987 he developed what he described as a problem in his liver, suffering severe abdominal pain during his visit to Australia for the September 1987 board meeting. He said that he felt better and returned to London. When he again returned to Australia in January 1988 the pain returned somewhat more severely and the plaintiff was unable to work for perhaps up to a week or so. It is undisputed that it was necessary to remove the plaintiff's gall bladder (a cholecystectomy), which was performed on 2 June 1988. This is usually an unremarkable operation but, regrettably, was conducted negligently by the surgeon. I need to refer in due course to the plaintiff's own evidence about the effects of this upon him but a useful starting point is the evidence of Professor Ham into whose care in the gastrointestinal surgical unit at Prince of Wales Hospital, Sydney, the plaintiff was admitted on 18 June 1988, having been referred by Dr David Walker of the Mater Hospital, Newcastle, to which hospital the plaintiff had been transferred following his operation by Dr Patel. Professor Ham notes that the plaintiff had developed abdominal pain and fever following the operation and was referred to the Mater Hospital with signs of peritonitis. Investigations there revealed a large sub-hepatic collection of fluid. A further laparotomy was performed and drains inserted. Later, a further two drains were inserted, continuing to drain large amounts of bile, in the order of a litre a day.
31 On admission to the Prince of Wales Hospital, Professor Ham noted that the plaintiff was mildly jaundiced, did not look well and had lost weight. He also complained of abdominal pain. X-rays showed, amongst other things, that Dr Patel had placed three surgical clips across the common bile duct just above the duodenum, which completely obstructed it. This was confirmed on surgery carried out on 17 June 1988 by Professor Ham. There was also a second injury to the bile ducts which, as it happened, had a profound effect on the plaintiff's subsequent clinical course. Leakage from this region was noted on a cholangiogram carried out after arrival at the Prince of Wales Hospital. This injury above the completely obstructed common bile duct resulted in leakage of large amount of bile into the peritoneal cavity, associated with excruciating pain. Severe peritonitis ensued, including significant inflammation in the region of the bile ducts, which made subsequent repair of the latter much more difficult. In addition, the leakage resulted in the complete decompression of the biliary system above the common bile duct obstruction (that is, the common hepatic duct was collapsed) and its small size also made the repair difficult. It is agreed that the placement by the defendant of the three surgical clips across the common bile duct was negligent and could only be explained by a failure to accurately identify the relevant anatomy, which can sometimes be difficult in operations of this kind. If, however, accurate identification of the anatomy was difficult or impossible, then the procedure should not have been performed and other options should have been chosen. On the other hand, if the anatomy could have been clearly established, then it was negligent to have placed the clips across the common bile duct. The damage to the small bile duct to which I have referred may have had little or no clinical relevance had it not been for the complete obstruction of the common bile duct.
32 It was clear after assessment on the plaintiff's admission to the Prince of Wales Hospital, that a further operation was essential with a view to reconstructing the extra-hepatic biliary tract which had been damaged. The operation would be a difficult one; it was recognised that later admissions would almost certainly be required and further surgery would also be necessary in due course. The reconstruction was necessary to be done in two phases for reasons which it is unnecessary to set out. Part of the reconstruction was the creation of a so-called "roux-en-Y" loop of a little more than 60 centimetres in length going from the bile duct to the small bowel. It is accepted that the procedures performed by Professor Ham were essential to deal with the very serious, indeed life-threatening, condition in which the plaintiff found himself as a result of Dr Patel's operation. However, the repair undertaken by Professor Ham could not (and was not designed to) entirely restore the integrity of the plaintiff's biliary tract. Indeed, the repair itself, though essential, was likely to cause problems of a greater or lesser extent in the future and did so. In the result, the plaintiff never recovered his former good health. Medically speaking, the plaintiff's post-operative course after 20 June 1988 was without significant complications but, as expected, he continued to drain bile from the site of previous leakage. This gradually diminished, the drain was finally removed on 13 July 1988 and he was then discharged home.
33 There is no question but that this whole experience was horrific from the plaintiff's point of view. It is uncontroversial that his pain and distress were almost unbearable. Even now, the plaintiff becomes distraught when being asked to recall his circumstances following the operation and was markedly distressed when giving evidence about it. I have no doubt that this experience has left lasting scars, not only physical but also in the plaintiff's psyche. He still has distressing flashbacks. One of the number of incidents which he recalled with particular pain and, I think, considerable humiliation, was the necessity to submit to the manual evacuation of his bowel by one of the nursing staff to relieve constipation brought about his condition. The plaintiff describes the sense of helplessness and despair preceding the operation performed on 20 June as being "the most demoralising, the most soul destructive experiences..." I have no doubt that this is an accurate description of what he felt at the time and that these experiences have continued their malign influence on his life to the present time although, as I understand it, the worst, in the sense of physical distress, was over after he was discharged on 13 July 1988. The plaintiff then returned to his home in Newcastle accompanied by his wife. He was still, however, suffering from what he described (and I accept) as "terrible pain". His release from hospital was, unfortunately, of short duration. On 17 July 1988, he was readmitted with fever and low abdominal pain and an ultrasound examination demonstrated free peritoneal fluid. He was discharged on 28 July but again readmitted on 5 August with fever, rigors, abdominal and shoulder pain. He was discharged on 10 August. On 26 August the plaintiff was returned to hospital with a history of abdominal pain for 4 to 5 days with associated fever and rigors for a day and constipation. He was discharged on 3 September. On 16 November the plaintiff was readmitted at the Prince of Wales Hospital with a two week history of intermittent fever and rigors and three days of generalised pruritus (itching), together with jaundice, abdominal and shoulder tip pain and constipation; he was discharged on 23 November 1988. Generally speaking, the crises giving rise to these admissions were symptoms of acute cholangitis. It was necessary to treat each episode with antibiotics which proved effective, at least in the short term. The symptoms indicated a partial biliary obstruction. I accept that they were associated with debilitation, considerable pain and discomfort, not to speak of anxiety and frustration.
34 Cholangitis is an infection in the bile ducts, in most situations involving partial or complete obstruction, often resulting in jaundice, itching (which may be severe) and possibly a number of other systemic symptoms including blood stream infection. The itching occurs all over the body as a result of elevated levels in the blood of certain substances which, in a healthy person, are (as I understand it) removed by the liver. I do not doubt that, though it may be described as itching, it was painful and distressing. The plaintiff complained that on a number of occasions he also suffered from rigors, which is the shaking accompanying very high fevers. As the bile is necessary for digestive functions, disturbance of the bile ducts results in digestive problems as well. As well, the plaintiff suffered - and continues to suffer - from flatulence, wind pain, excessive burping, constipation and general abdominal upset.
35 Professor Ham continued to review the plaintiff, who was suffering from relatively frequent attacks of cholangitis of greater or lesser severity and it became clear that further reconstructive surgery would, indeed, be necessary. The full reconstruction, which was a major procedure, was delayed until the obstruction to the bile duct induced its enlargement. A result of this delay, of course, was the severe pain and discomfort suffered by the patient whilst this dilation developed sufficiently for optimum results.
36 A number of reports from Professor Ham during 1988 indicate a picture of generally improving health with episodic crises. Whilst, in a general way, I accept this as an accurate picture from Professor Ham's point of view, I do think that it very significantly understates the actual suffering affecting the plaintiff during this time. His physical appearance belied his actual state of health, although he had started to put on weight and there was reference to an increased appetite, and I do not think that he was given to complaint at this time. He had developed painful frozen shoulders whilst in hospital, most likely the result of enforced inactivity and this was giving him continuing problems through 1988 in respect of which he received physiotherapy, although with only slight utility it seems. The repeated attacks of cholangitis, especially when they were associated with fever, were extremely painful. I do not doubt the correctness of Professor Ham's description in January 1989 of the plaintiff as being "obviously much better than he was". Given the state he was in but a few months before, this is scarcely a description of radiant good health. Continuing significant digestive and related problems are plainly reflected in the Doctor's somewhat clinical observation that it "is obvious that he has some degree of biliary obstruction". The plaintiff, however, was by no means an invalid, expressing the hope to Professor Ham at this time that he would be able to travel overseas for some weeks late in March of that year. Professor Ham's response was, I think, cautious: "I think he may well be able to do this". Professor Ham reported, following an examination of the plaintiff on 7 March 1989, that the plaintiff had reported intermittent episodes of fever and other abdominal discomfort during the previous two months and that these episodes did not always respond well to antibiotics. He noted that this weight had slightly decreased and also that the plaintiff had itching which was "his most significant symptom". This statement was not so much the opinion that this was the plaintiff's only discomfort but rather it was significant because it indicated that he was developing an obstruction of the anastomosis, which indicated that further corrective surgery may be necessary. Waiting for the bile duct to dilate naturally to permit optimum reconstruction is good practice but from the plaintiff's point of view it was, as Professor Ham described it, "very unpleasant". An ultrasound showed minimal dilatation of the ducts in both lobes of the liver but no evidence of major biliary obstruction. The plaintiff indicated that he had postponed his plans to go to Europe until late April and Professor Ham thought "this is wise". He repeated his advice that a full reconstruction of the plaintiff's biliary anastomosis was necessary but this could not be done at that stage. As is to be expected, this report (as indeed all the reports of Professor Ham) attempts to describe in clinical language both the patient and his history. I am quite satisfied that the phrase "upper abdominal discomfort", whilst perfectly adequate for the Professor's purposes, does not describe the extent of the considerable suffering actually undergone by the plaintiff during these episodes. Professor Ham then saw the plaintiff in early April and noted considerable improvement in his symptoms, a result largely brought about by a change of medication. He noted also that the plaintiff's liver function tests were markedly improved. The plaintiff confirmed that he intended to go abroad at the end of the month for about four or five weeks.
37 Towards the end of June 1989, Dr J A Dickinson, in practice with Dr H Rose who was the plaintiff's usual general practitioner, wrote to Professor Ham that the plaintiff had "really done remarkably well" and noted that during his overseas trip he had "no problems at all" although after his return he suffered an attack of rigors which settled down after only a few hours. As I have pointed out, this is a symptom of high fever and, accordingly, the doctor suggested to the plaintiff that when these episodes occurred and lasted for more than twenty-four hours, he should take antibiotic medication. Dr Dickinson questioned whether the foreshadowed reconstructive surgery was then necessary as the plaintiff "appears to be doing very well" and sought Professor Ham's opinion about the matter. A few weeks after this, the plaintiff was examined by Professor Ham who thought that "he seemed extremely well". However, he was still of the view that a further operation would certainly be necessary in due course. In early December 1989, Professor Ham noted a history that one further attack of cholangitis had occurred since July which was, he said, "obviously quite severe" although he had returned to "normal" as at the date of the examination. However, Professor Ham reported "some tenderness in the right upper quadrant of the abdomen". Two weeks later, Professor Ham reported, on a further attendance by the plaintiff, that "he is certainly worse than he was" with a recent ultrasound demonstrating more duct dilatation. Accordingly, he thought that it was time to undertake the operation which had previously been envisaged and arrangements were made for this to occur in early January of the following year. Accordingly, on 4 January 1990, reconstruction of the anastomosis was performed together with excision of the stricture of the previous hepato-jejunostomy and the plaintiff was discharged a week later and returned home.
38 Professor Ham's report stated, somewhat contrastingly with his previous brief reports to Dr Rose that "in recent months [the plaintiff] had experienced increasing problems with episodes of cholangitis and cholestatic liver function tests". Professor Ham saw him at the end of January for a follow-up examination and noted that the plaintiff "has been pretty well since his discharge, apart from some epigastric (ie in the upper central abdomen) discomfort, together with excessive wind and burping and occasional constipation". Professor Ham noted, on the positive side, that the plaintiff's appetite was good and his weight had started to increase. On examination there was some tenderness in the epigastrium although the wound was soundly healed. Professor Ham thought that the symptoms would subside over the next week or two.
39 So far as doctors' records are concerned, over the period I have been just discussing, the plaintiff was seen for the first time by Dr Rose on 17 October 1988, when he had complained of what was described by the doctor as "a mild recurrent cholangitis" which, however, had given rise to a fever. The plaintiff also complained of a painful right shoulder for which, a few days later, the doctor prescribed Naprosyn, describing the condition as a "shoulder cuff syndrome". I accept the plaintiff's evidence that this had been chronic since his first hospitalisation. About two weeks later, the doctor noted that the plaintiff had a further episode of cholangitis including fever and abdominal discomfort which was then settling. Two days later, however, the plaintiff was still suffering from fever and night sweats with some weight loss being noted. Two weeks later, as I have noted, he was admitted to hospital. Itching had been added to his symptoms, medication was needed for night sedation and antibiotics were continued. On 30 December 1988, the plaintiff complained of further abdominal pain at night, but without fever, and was told to take antibiotics if a fever developed. In mid-February 1989, the plaintiff reported to Dr Rose that his abdominal pain was slowly resolving and he was then putting on weight and starting to exercise more. He expressed a desire to go overseas in April, which the doctor thought would be all right. However, a month later, the plaintiff complained that he had not been well and had suffered continuing fever with itching. It appeared that medication then prescribed had improved his situation and, by the end of April, the plaintiff told Dr Rose that he had put on weight, was active and energetic and felt "very good". However, this did not last long as sometime later (probably a week or so) a home visit was necessary with the plaintiff complaining of episodes of fever for the previous five days and pain in his upper abdomen consistent with cholangitis. Antibiotic and pain relief medication was prescribed. Some time after this, the plaintiff went overseas with no significant symptoms. However, three days after his return, he suffered from fever and sweats with aches and pains. It was agreed that he should take Noroxin for his fever if rigors lasted over twenty-four hours. A little over a week later the plaintiff complained again of fever and abdominal pains and was prescribed antibiotic.
40 The doctor did not need to be called, it appears, for another six months when, in early December, the plaintiff suffered high fever with rigors although with "no real abdominal tenderness". Two weeks later, the doctor noted jaundice and recurrent fever. The plaintiff expressed to Dr Rose his anxiety about his ability to work and the extent to which the illness was interfering with his life. I will return to this matter shortly, but it is obvious that the plaintiff's recurrent, indeed almost chronic, condition with associated anxiety and stress, was adversely affecting other aspects of his life to a significant degree. Two weeks later the doctor noted again the plaintiff suffering a further episode of fever together with severe pain in both thighs on mild exercise. After seeing the plaintiff following his operation in the latter half of January 1990, he did not see him again until early November of that year. The doctor noted, however, that he had been suffering from cholangitis during the year requiring further referral to Professor Ham although it appeared that he had made a full recovery. The doctor noted that the plaintiff was "well now" with increased weight.
41 I accept (and it does not seem to be seriously disputed) that attacks of cholangitis are extremely painful and debilitating. There is some (I consider insignificant) dispute between Professor Ham on the one hand called by the plaintiff and Dr Yeo on the other called by the defendant as to the precise character of a diagnosis of cholangitis. It is unnecessary, however, for me to resolve this. The defendant did not submit that I ought not rely on Professor Ham and it seems to me, especially in light of the fact that the plaintiff has continued to be his patient since the initial operation in the Prince of Wales Hospital, that I should give considerable weight to his evidence. Professor Ham considered that the plaintiff suffered from episodes of cholangitis over the whole of the period between his initial operation and the present time. Following the operation on 4 January 1990, he thought that, although the attacks could last hours or days and sometimes even as long as a week, they were not as severe as the attacks suffered before that procedure and responded fairly rapidly to antibiotics although not all attacks required antibiotics. I readily accept that, considered as a whole, the attacks of cholangitis suffered by the plaintiff after January 1990 were not quite so intensely painful nor so serious as those that had occurred before but I have no doubt that they were, nevertheless, very painful, debilitating and distressing. Professor Ham explained that, as occurred here, where a section of the bowel is taken to be used as a loop to connect with the biliary system, symptoms such as those described by the plaintiff are recognised sequelae of the procedure. A significant minority of patients who have reconstructive surgery such as that undergone by the plaintiff suffer from such attacks. It is believed that a likely explanation is that the loop, or piece of bowel, does not empty properly. This, together with the colonisation of bacteria, causes inflammation, pain, fever and infection. Other factors (which I do not think need to be stated here) may also contribute to this dysfunction. The combination of these factors might well result in abdominal symptoms varying from a mere feeling of discomfort or nausea up to very severe pain and fevers. The plaintiff complained also of pain elsewhere in his body during severe attacks. Whatever might be the explanation for the episodes of severe bowel symptoms (to use a neutral description) after January 1990, there is no doubt that, up to the operation which then occurred, the plaintiff had suffered severe cholangitis. I will need to deal with the post-January 1990 situation in a little detail later, but I regard it as significant that the plaintiff himself considered, as did Professor Ham, that the similar symptoms suffered by him after January 1990 - though perhaps less intensely - were likely to have arisen from essentially the same cause, namely the insult to his biliary system. Although it is true that Professor Ham did not say, in terms, that this was more probably than not the case, I have no doubt that this was the thrust of his evidence and is the best explanation for the plaintiff's symptomatology. Dr Yeo would not, it appears, diagnose cholangitis in the absence of jaundice; however, he accepted that the retention of food and build up of bacteria in the roux loop might well cause symptoms though, in the absence of nausea or jaundice he would not describe them as cholangitis. Subject to these qualifications, which I do not think it important for present purposes, Dr Yeo agreed with Professor Ham's evidence. Dr Yeo raised the possibility, perhaps even the likelihood, that some of the plaintiff's attacks were urinary tract infections or caused by some other condition than the biliary problem but he was careful to qualify these general observations by pointing out that he had not examined the plaintiff on the occasions of these attacks and it is clear that he deferred to Professor Ham as the treating doctor. In the result, I am satisfied that, more probably than not, although from time to time a urinary tract infection may have caused problems for the plaintiff, the disabling attacks which he described were the result of the injury to his biliary system caused by the defendant's negligent operation.
42 It is now necessary to deal with the other evidence as to the plaintiff's situation in this period, namely between June 1988 and the early part of 1990. The business problems that occurred at this time and the plaintiff's practical inability to contribute to their resolution (whether or not he could have effectively done so had he been healthy) was a significant factor in his presentation in this period and subsequently, in at least two respects. The first is that I think he was so anxious to get back to work and return to good health and his pre-surgery level of effectiveness that he tended on the one hand to discount the extent of his problems and minimise his difficulties and, on the other hand, to exaggerate the extent of good health when his symptoms receded - until resurgence of symptoms and events themselves ruthlessly forced him to accept his true situation. To paraphrase Dr Johnson's well-known epigram (Boswell's Life of Johnson, vol ii, p126, 1770), the triumph of his hopes over his experience, though hard won and (more or less convincingly) surviving for some years, was to prove temporary. The second is that, when this happened, he suffered a serious blow to his self-confidence; despair and depression became endemic though mostly controlled. Inappropriate anger, fuelled by frustration, caused a crisis in his marriage and surfaced in his business dealings. He was not helpless, however, and, no doubt, from time to time, his strength of will, together with his accumulated experience, enabled him to function with apparent effectiveness but I am persuaded that this was little more than shadow boxing or the repetition of old routines, no doubt sound as far as they went but only striking the target by happenstance. I am convinced that the plaintiff never in this period or since even approximately approached the level of his pre-surgery business drive and acumen, quite apart from resolving continuing psychological and physical health problems.
43 I have mentioned Mr Fletcher's evidence as to his understanding of what role the plaintiff was to play in the affairs of Babcock Australia after his return from England in April 1988. In Mr Turner's view, the plaintiff's management of Babcock Australia, in the context of Allco's business as a whole was critical to its success. It is clear that this involved a major challenge and that management and entrepeneurial expertise of a very high order was essential to the success of the venture. In his opinion, Allco did not have the requisite management strength in the absence of the plaintiff to undertake this task. By any standards, this was a job that required not only skills and experience but physical and mental vitality of the very highest order. It is clear from the evidence of both Mr Fletcher and Mr Turner (whose opinion as to this matter I accept) that the plaintiff was well able to undertake this task before his operation but that, after it, he could not. According to Mr Fletcher, the plaintiff occasionally came into the office and would work on a tender but would rarely come in for a full day. He described him as very much a changed man. He was not well and this showed, Mr Fletcher thought, in the way he did his business -
"He didn't have the persistence. Again, if we were [considering] a large tender, he was always a very challenging man as far as far as, 'Have we looked at this? Have we thought of that?' A lot of that was gone. The innovations that he used to come up with weren't there. He was not a well man, and I think it showed in the way he did his business … it made him less valuable to us because of that."
44 By the time of trial, in March 2001, Mr Fletcher did not recall any specific occasion in which he had seen the plaintiff at all in 1990 but, although his evidence is unclear, I think that he did see him from time to time. I have no doubt that Mr Fletcher's description of the plaintiff's markedly changed character was evident to him from the first occasion (whenever it was) that he saw him after mid-1988 and that it never altered. Although there is no doubt a psychological element in this change in the plaintiff (and I will deal with the evidence of this in due course) I do not think it is beyond the ordinary experience of a lay person (such as myself in this context) to understand that the plaintiff had been through a terrifying and massively painful experience which had commenced, as it were, explosively on 2 June 1988 in Newcastle Hospital and which had carried him along in a horrifying sequence of events, the shockwaves of which in terms of pain and debilitation continued on with only occasional remission until the operation of 4 January 1990, a period of eighteen months. I do not find it difficult to accept the plaintiff's evidence of the effect on his psyche of these events and that his ability to concentrate and that the energy both of body and mind was seriously affected, although it was not for some time that he obtained the insight that his abilities had been seriously compromised.
45 Mr Turner saw the plaintiff frequently after the operation and before the reconstructive surgery at the beginning of 1990, both at work and at his home in Newcastle. He said that, before his surgery, the plaintiff had "an extremely good memory" with an ability "to get across all aspects of the business and also retain a great deal of information and detail", describing this as "quite legendary". However, after the surgery, he thought the plaintiff had "lost the plot". Mr Turner said that the plaintiff had become erratic with a generally heightened irritability, being irrationally suspicious, "almost paranoid" about the motives and behaviour of one of his co-shareholders and generally more distrustful. His ability to deal with complexity was adversely affected. He lacked decisiveness and "on a number of the dimensions that he was outstanding, he became less than ordinary" although from time to time "there were flashes of what was the vision before". At board meetings he contributed much less than earlier and he became rather backward than forward looking. Mr Turner recalled that the plaintiff's physical presentation was also very different. He said that he had clearly lost weight and was obviously suffering and frequently tired.
46 At the end of October 1989, sixty percent of the equity in Allco was sold to EPT, a subsidiary of ASEA Brown Boveri Limited, in substance, to alleviate working capital concerns that had resulted from a very substantial increase in growth, which put great pressure on Allco's working capital. This crisis in the affairs of the Allco Group was not caused by or contributed to (as the case was litigated before me) by the plaintiff's inability to involve himself effectively in the Group's affairs but arose out of matters beyond his control. His need to acquire other work did not result from his ill-health and the impact of Allco's problems on his future employment must therefore be distinguished from the consequences of ill-health. Mr Turner's evidence was that, by this time, it was clear that the plaintiff was neither mentally nor physically capable of undertaking the responsibilities of being managing director of a substantial company, let alone Allco or Babcock Australia.
47 When EPT acquired the remaining forty percent of shares in Allco in May 1990, the plaintiff's final link with Allco was cut, although there was still, as I understand the evidence, some further consulting work. Precisely what the plaintiff's role in terms of direct responsibility was in this respect is uncertain. However, it appears that he could still do some useful work of a limited kind.
48 Taking the period between the June operation and that of January 1990, I am satisfied, in general terms, that the plaintiff made genuine attempts to return to his active role in the affairs of Allco, in particular being involved in re-developing Babcock Australia, attending board meetings and at Babcock Australia's offices. However, I am satisfied that this was at a level of competence much below that which he had previously demonstrated. I also accept that he perceived a change in attitude towards him, especially on the part of his co-shareholders, Mr del Bianco and Mr Parisi. The plaintiff said, and I accept, that he did not appreciate the extent to which he had been adversely affected by his illness. He undertook consulting work during this period, indeed, well into 1990 but I the level of his actual performance was very much reduced and very likely reflected only his erstwhile dominant position; the company was not getting value for money.
49 Since the sale of Allco to EPT, completed in May 1990, the plaintiff has attempted a variety of investments and work. Of course, these activities occurred in the context of his state of health at the time. The defendant's case is, in substance, that although the plaintiff's health had been to some extent compromised, he has exaggerated its adverse effects and that, overall, he has been able to undertake significant business activity, accompanied by a real degree of success. It was also suggested by the defendant that the plaintiff's somewhat idiosyncratic business style may have impacted negatively on his chances of obtaining senior or chief executive positions where he was not an owner or significant shareholder of the employing company, even had he been well. This, together with the continuation of the desire for semi-retirement (if not full retirement) said to be evidenced by the plaintiff's resignation from Allco in early 1987 and his move to London, rather than health problems, was submitted to be the explanation for the plaintiff's failure to find employment at a level equivalent to that which he had with Allco. This submission should not be accepted, especially having regard to Mr Turner's and Mr Fletcher's detailed evidence of the plaintiff's capacities.
50 It was also submitted that Allco was not a profitable business by reference to return on capital and that this would also hinder the plaintiff in seeking alternative employment. I accept Mr Turner's evidence, however, that Allco's profit was acceptable especially in light of the need, not so much to maximise profits, but to expand the business. He said that not only was Allco's profitability within its industry quite acceptable but that the acquisition of Babcock Australia had added "immense value to the business". This also puts in context, I think, the importance of the plaintiff's intended role on his return from the United Kingdom.
51 On the other hand, the plaintiff's case is that he has had continuing problems with his health, varying in intensity from time to time but, overall, causing mental and physical debility, which has significantly affected his ability to earn an income. Certainly, the plaintiff has involved himself in significant business activity over this period and it will be necessary for me to deal with this aspect of the case in due course. I intend, however, to firstly state my findings concerning his health.
52 Before dealing with the plaintiff's evidence and that of his family about his health issues, it is convenient to summarise the evidence of his general practitioner, Dr Rose, who gave evidence and whose clinical notes were tendered. I thought Dr Rose was a thoughtful and candid witness. As it happened, he made a most perceptive observation at the outset of his evidence which, I think, summed up in two sentences the plaintiff's situation. Speaking of the plaintiff when he first saw him in late 1989, and referring to his anxiety which, in retrospect, may well have been pathological depression, noting that he had been very sick and had required multiple surgery, Dr Rose commented: "He survived a lot of what he described as very severe pain. So he certainly had a lot of scars both in his abdomen and his soul, I'd say". I have mentioned Dr Rose's retrospective view about the plaintiff that he may well have had pathological depression at this time. It seems clear that Dr Rose, as the occasion for viewing his patient's history as a whole arose (out of the litigation) felt that he had underestimated the psychological impact of the plaintiff's physical condition. He made the following observation -
"Manuel presents himself very well. He's a tall man, a handsome man, with obviously a strong sense of pride and he takes care of his appearance, so that he is somewhat deceiving in trying to assess his emotional state. I don't know if its ethnic or not, but he probably doesn't present his feelings as readily as many of my patients would. I suppose in many ways he's a good deal socially superior to many of the patients I have, so perhaps that might in some ways colour one's judgment and interfere with one's ability to assess how he was feeling at the time."
53 When the plaintiff gave evidence about his health since the operation, he was often and obviously upset. This marked contrast with Dr Rose's description is, I think, cogent evidence of the powerful and destructive effects of long-term chronic illness. Dr Rose's view was, in substance, that the plaintiff tended to significantly understate the extent of his symptoms, a realisation that only came to the doctor relatively late in the piece. In this context it is, I think, relevant to note that the doctor has a significant practice in palliative care. The doctor said that the plaintiff was probably "a deal more ill than I imagined". Dr Rose summed up the plaintiff as not being a patient who volunteered information very readily and needed to be "specifically interrogated about matters". My own impression of the plaintiff was that, in some way, he felt quite humiliated by the fact that he was not well and not functioning well and that this exhibited itself not only in frustration and anger but also in reticence. Dr Rose expressed the same view, stating in a letter to Professor Ham that he thought the plaintiff had a classical depressive illness with associated hypochondriasis which he was satisfied had exhibited itself quite early but which he had not perceived because he was focused on treating particular symptoms. Dr Rose reported in October 2000 that he thought it very likely the plaintiff would suffer from permanent residual disability related to his biliary tract and upper gastro-intestinal changes and the surgery that was necessary for a resolution. In the same report, the doctor said that the plaintiff had "coped very well with what has been quite a distressing illness but I believe that I could not find significant cognitive or memory difficulties on my examinations". The doctor pointed out in his evidence, however, that "significant" (as used in this particular context) was misleading. The doctor's practice comprised care of many demented people. This meant, as he put it, "my judgment of significant dementia is fairly extreme" and that a "significant" difficulty was of the kind that he had seen in these patients. He had not undertaken any formal assessment of the plaintiff's cognitive abilities or memory and thought, indeed, that he had overlooked this aspect of the plaintiff's presentation. In more recent times, as Dr Rose saw the plaintiff more often, he began to recognise that the plaintiff was more ill than the doctor had earlier appreciated. Dr Rose added that his report of October 2000 concerning the absence of "significant cognitive or memory difficulties" was a prognosis for the plaintiff's living skills in the near future (considering that they were satisfactory) and was not intended as an opinion about his cognitive ability compared to what it was in the past. This distinction is important in respect of the task I face in assessing the plaintiff's work capacity following the surgery by comparison to what it was before the surgery.
54 A general survey of Dr Rose's notes shows three attendances in 1991 of which only the last, in November, seems to have been connected with his abdominal surgery, in that the plaintiff complained of intermittent bladder pain and dysuria with nocturnal frequency, apparently dating the condition since his operation of January 1990. The following year the plaintiff saw Dr Rose only once, in May, complaining of episodic fever and right hypochondrium pain lasting some minutes and recovering with weakness for the rest of the day. Dr Rose also noted nocturia and dysuria.
55 The plaintiff saw Dr Rose twice in 1993, in January and July. On the first occasion he reported being well and active with an increase in weight although in July he was reporting occasional bi-monthly transient episodes of colicky pain and wind lasting "minutes" (which I take to be as distinct from hours, not necessarily being very brief).
56 The plaintiff saw Dr Rose only once in 1994, reporting some weight increase and an episode of central chest pain which lasted some days but which appears unrelated to his cholecystectomy. In March 1995, some ten months later, the plaintiff attended once more on Dr Rose, complaining of intermittent epigastric pain over two days with some relief after belching and a low-grade temperature although he had no jaundice. This was likely to have resulted from his biliary problems. It appears that the unpleasant and, indeed, painful symptoms continued for another month or so, with the plaintiff reporting to Dr Rose that although there had been some pain relief on taking the medication prescribed he still had wind and abdominal pain and on 4 May reported a fever with rigors which cleared up over night.
57 In 1996 the plaintiff attended in February, complaining of flatulence and abdominal discomfort with wind and associated pain with occasional febrile episodes of short duration although his health was generally good. He also complained at this time of nocturia but whether this was caused by an incipient prostate problem or was a sequelae of his abdominal surgery is uncertain. Two months later, the plaintiff reported a recurrence of fever, successfully treated with antibiotics. In August and November 1996, further complains were made by the plaintiff to Dr Rose concerning frequency and urgency of micturition. I will return to this problem in due course.
58 During 1997 and 1998, there were further attendances, the focus of which appears to be a bladder problem but the doctor also noted that the plaintiff needed to take Normacol (to assist with bowel motions) continuously and reported episodic severe but transient abdominal pain in the morning if, on morning exercise, he did not burp a lot. In May and August 1998 the plaintiff complained of severe headaches. To exclude possible neurological significance, Dr Rose took a history in which, for the first time, the plaintiff mentioned that his memory was poor. This is the first note of such a complaint in the medical records, but both the plaintiff and other witnesses attest to his difficulties of memory and concentration since the operation. I think that this evidence was reliable, despite the fact that Dr Rose made no note of such a complaint until August 1998. A CT scan conducted shortly after was normal and Dr Rose ascribed the headaches to tension and prescribed medication. I think that it reasonable to infer that the tension suffered by the plaintiff was a result of his ill-health.
59 In January 1999, the plaintiff complained of continuing problems with motility, disturbance of his gastro-intestinal tract with resulting flatulence and wind and episodic right epigastric pain relieved by burping and wind release. It is clear that diet changes were necessary and had, indeed, been made. He was still suffering from fever, although he did not take medication for it unless it persisted for more than twenty-four hours. I infer from the terms of the doctor's clinical note that the plaintiff had conveyed the information that these problems had been long standing with both severe discomfort and debilitative effect but had not always or, indeed, usually resulted in an attendance on the doctor. This inference is supported by the doctor's own evidence about the plaintiff's tendency to minimise his complaints. In April 1999, the plaintiff suffered acute anaphylaxis after taking Ibilex (antibiotic) capsules for fever and it became clear that it was essential he should avoid not only Ibilex but also related antibiotics. These were necessary for continuing attacks described, perhaps loosely, as cholangitis but I am satisfied resulted from the operative procedures of 1988 and 1990. The defendant submitted that the anaphylactic attack was not caused by the plaintiff's biliary problems. In one sense that is true, but his need for and taking of Ibilex did arise from those problems and provides a sufficient causal link to render the defendant liable for the resulting condition, requiring hospitalisation.
60 In January 2000, Dr Rose noted that the plaintiff was depressed and it is clear this occurred in the context of his continuing physical and mental problems. In August 2000, Dr Rose noted a long session with the plaintiff concerning a recent episode of uncontrolled fever. Although its cause was thought by the Doctor to be a probable upper respiratory tract infection, it is notable that it appears that the plaintiff did not attend on Dr Rose for treatment. Notes made in October 2000 refer to continuing gastro-intestinal disturbance, headaches and depression. Similar symptoms were reported in February 2001.
61 Speaking generally of the plaintiff's history, Professor Ham considered that he had a number of episodes of cholangitis between the June 1988 and January 1990 operations with a number of other episodes over the ensuing period until the present time. These latter episodes, as Professor Ham, gathered from the plaintiff, lasted hours or days, sometimes even as long as a week but they did not seem to be as severe as the attacks that he suffered before the January 1990 operation and responded well for the most part to antibiotics, although not all required this medication. Whether or not these later attacks are, strictly speaking, cholangitis is uncertain but to my mind this question does not need to be explored. The crucial matter is whether, accepting the attacks described by the plaintiff occurred, they resulted from the operative procedures to which his biliary and digestive organs were subjected, arising out of the damage caused in the first instance by the defendant's negligence. The plaintiff describes these subsequent attacks as cholangitis and Professor Ham has described them as "mild cholangitis" (which, having regard to the plaintiff's own description of the pain and discomfort suffered during them, which I substantially accept, should be regarded, not so much as a description minimising their seriousness but, rather, showing how extreme is cholangitis strictly so called - from which the plaintiff certainly suffered from time to time). Whilst mindful of the possible diagnostic solecism that I may be committing, I refer to the constellation of symptoms involving epigastric and right upper quadrant pain together with excessive wind associated from time to time with fever as cholangitis. The more severe attacks are associated, according to the plaintiff (which evidence I accept) with widespread pain, fever, headaches, aching and enervation often lasting for a day and sometimes as long as a week or so. Professor Ham said that the reason for these episodes is not absolutely clear, but a significant minority of patients who have undergone bowel reconstruction similar to the plaintiff's do suffer such attacks and thought that they might be caused because the reconstructed loop does not empty properly. Certainly, in the plaintiff's case, delayed emptying from the reconstructed piece of bowel was demonstrated. Moreover, these loops are almost always colonised by bacteria, which might cross the wall of the bowel into the bloodstream and produce episodes of fever which is a typical response to inflammation or infection of one kind or another. Because the reconstructed loop is out of the food stream, the defence mechanisms available to the undamaged bowel may be weakened, although this latter explanation is hypothetical rather than established, as distinct from motility disturbance and bacterial colonisation.
62 In general terms, symptoms such as excessive wind and burping, in Professor Ham's view, are related to the surgery and perhaps also to a pre-existing disorder (such as irritable bowel syndrome) which may be made worse by a cholecystectomy and aggravated or perhaps caused by the corrective surgery. Professor Ham described the sequence of events commencing with the immediate aftermath of the cholecystectomy performed by the defendant and then his (Professor Ham's) initial corrective surgery as "horrific", a description which seems to me to be entirely apt.
63 In considering the reliability of the plaintiff's account - as with any witness in a similar situation - it is of course, important to contrast that evidence with contemporaneous material, in this case, histories taken by the consulting doctors. In a number of significant respects, Dr Ham's notes differed from the accounts given by the plaintiff. Moreover, the plaintiff deposed as to specific incidents involving Professor Ham, which he said he could not recollect but, in substance, I think denied. A great deal of cross-examination of the plaintiff was devoted to confronting him (in effect) with the notes made by Professor Ham and Professor Ham was himself questioned extensively on the reliability of his notes. I do not propose to set out these matters in any detail though, of course, I have considered them for the purposes of this judgment. Professor Ham did say that open- ended questions and lengthy discussions were less common in follow-up visits than in initial visits so that questions would be more focused, in part because of time constraints. Professor Ham pointed out that the major purpose of his follow-up consultations was to pick up early narrowing of the anastomosis - a stricture - because that was the most crucial risk to the plaintiff. At the same time, the plaintiff asserted that he wished to bring matters to Professor Ham's attention and was told by Professor Ham that he was not interested in such things and he wished merely to discuss the surgery. Professor Ham denied ever putting the plaintiff off in this way and I accept without hesitation his evidence in this regard. At the same time, I am willing to accept that the plaintiff may have felt from time to time that Professor Ham was concerned with particular aspects of his case and not with others and hence misread or misunderstood the point of particular questions which were being put to him by the doctor in the course of an examination or consultation. I also think it likely that the plaintiff would have been somewhat overly sensitive to language which might have been perceived by him as not being entirely sympathetic. Time has no doubt worked its distortions on memory over the period since these consultations. Whatever the reason for the contradictions between the plaintiff and Professor Ham, I am satisfied that the plaintiff's evidence was the truth as he recollected it and he was not intending to mislead me. There also may have been some confusion in his mind as to the sequence of events. Accordingly, although I accept Professor Ham's evidence without hesitation this does not lead me to doubt the essential truthfulness of the plaintiff's evidence, although questions arise as to its reliability in certain respects. Overall, I am satisfied that the plaintiff has given an account of his illness which, by and large, is reliable although to some degree he has overstated its seriousness; however, I think this overstatement is a reflection of his actual feelings, which have become more coloured as the years passed. Moreover, Professor Ham's clinical notes and reports used terms which (not unreasonably) were rather imprecise, such as "remained pretty well", "no significant plain", "some discomfort" "and minimal abdominal pain". It is important to bear in mind, when evaluating this kind of language, the base or starting point, as it were, from which these descriptions developed, namely, excruciating pain suffered for an extended period of time which, I have mentioned, had (as one would expect) a massive effect on the plaintiff's psyche. "Discomfort" is a notorious weasel word. Professor Ham said that he would write "discomfort" rather than "pain" if it were mild and not worrying to the patient and phrases such as "pretty well" and "no real problem" indicate some symptoms but neither dramatic nor raising issues from his point of view as a surgeon. Professor Ham used the term "major episode of cholangitis" to refer to life-threatening attacks requiring hospitalisation with intravenous drips and the like. Thus a "mild" attack covered an episode where the patient needed to stay in bed for a few days and take some antibiotics with abdominal symptoms and even quite high fevers sufficient to produce severe shivering.
64 It is important to note, also, that the events in question occurred over a period of twelve years or so during which, and not infrequently, there were episodes of considerable physical suffering and mental anguish. Accurate autobiography is not to be expected in these circumstances, especially where the matter being considered is that very debilitation of mind and body associated with frustration, anger and anxiety and, indeed, confusion of memory. Moreover, I am satisfied that, at least until relatively recently, the plaintiff was extremely anxious to believe that his condition would improve and that he would return to a semblance of his former life. This, I think, is reflected in the work that he sought or undertook since the 1990 reconstructive procedure and to which I will come in due course. In short, I think that he was from time to time, as the argot has it, "in denial". Denial is greatly underrated but it does not enhance accurate history. In part, I also rely on my own impression of the plaintiff as he gave evidence. As I have said, I think that he was very significantly humiliated by his illness and the resulting recognition of significant limitations on his ability to perform at any level of competence that he regarded as remotely adequate, let alone at his previous level of excellence. I have no doubt that, from time to time, his expressions of wellness were optimistic rather than objective and reflected a powerful anxiety to return to his previous good health and high level of functioning. Of course, I do not express these opinions in any sense as an expert. Rather, they are my commonsense impressions of the plaintiff, having regard to the whole of the evidence in the case. In this context, Professor Ham noted the tendency that "on occasions patients will protect their surgeons or their doctors and they won't tell them things that are happening because, I guess, they are grateful for what's happened and they don't wish to make it seem like it isn't as good as the surgeon might think it is" and he agreed that patients also may not want to think that the outcome is not as good as the surgeon thinks it is. These behaviours are part of the ordinary human condition and recognition of them depends upon experience, judgment and insight rather than any particular medical or psychiatric expertise. One way or another, such feelings are common to us all.
65 Professor Ham commented that he was not sure that his records reflected all of the history of complaints given him by the plaintiff and I infer that he meant that he noted matters of particular importance to him as a surgeon, a role very different from that of a treating physician concerned with the patient's overall health. He said that he was not really concerned to get a very detailed history, since the broad outlines were sufficient for him to assess what was happening, in particular, during 1989 when it became evident that a further operation needed to be done and the crucial issue was the extent of bile duct dilation. Certainly, delayed emptying from the Roux loop might be expected to produce discomfort of greater or lesser severity and Professor Ham observed that this was consistently demonstrated on ultrasound scan. The consequences could vary from mere feelings of discomfort or nausea associated with some pain up to a high level of pain associated with serious fever. Indeed, Professor Ham said that even a note of "no fevers" would not exclude a history of mild fever as distinct from a fever of a significant kind which required antibiotic intervention. The plaintiff complained to Professor Ham that there were times when he had pains which he thought would precede a fever but this did not in fact develop. These accounts are not reflected in the clinical notes.
66 The plaintiff gave evidence over six hearing days. Especially when attempting to describe the period between June 1988 and January 1990, he became extremely distressed but even when generally describing his health history after that date he became upset. When distressed, he tended to become somewhat confused and recollection failed. It is clear that he suffers significant problems with concentration and memory. I have no doubt that the intensity of his feelings about his health has also impacted on the objective reliability of his recollection and the history which he recounted to me. Indeed, psychiatric symptoms, largely depression, were demonstrated during much of this period. This is a matter to which I will return in due course. Much was made of this by the defendant. But it is, I think, less significant than is argued in Mr Sullivan QC's thorough and helpful submissions since the general picture that has emerged, discounting for the inconsistencies exposed in the evidence, demonstrates quite clearly that the plaintiff has suffered major injury to all those aspects of his health and personality that made him a success. Tragically, the very force of character that imparted the overweaning drive which, with his other attributes, led to past success, also misled him for some time into believing, despite his experience, that recovery might yet be his. Insight was gradual and painful in coming. It was associated with social isolation, anger and, eventually depression. These elements are still both present and obvious. In these circumstances, the measurement of residual capacity is indeed difficult and the "success" pointed to by the defendant in this regard - namely, his Portuguese investment - may be (and I think is) quite misleading, though the profits were real enough.
67 Taking first, briefly, the position between June 1988 and March 1990, as I have said, the plaintiff was able to do some work. I have already mentioned what Mr Fletcher and Mr Turner thought of his capacity at this time. The plaintiff, also, was conscious of his problems in this area (at least in a general way) and, not surprisingly, was sensitive to the no doubt sympathetic way in which he was treated. The poignancy of his position at this time is clear from the following question and answer -
"Q. …Between 1988, when you had your first operation and then 1990, when you had your last operation - in that time, did you do any work?
A. I tried very hard. I visited my job and everybody sort of paid their respects. It was a company I formed so everybody was very patient and kind to me; listened to the silly things I was telling them. It was very difficult. But I really took this - I took these things. But it really didn't do for me, unfortunately. I don't know if I answered your question."
68 So far as his contribution at Board meetings was concerned, the plaintiff added -
"My recommendations were generally commented on as irrelevant for I was sick and could not understand the full implication of the matters being discussed and in many instances [my recommendations to the Board] were not even minuted."
69 The plaintiff said that, at the time, he thought that this treatment was unjustified but in retrospect, he now sees that he was in fact acting somewhat erratically. His appreciation of this matter took some time. Indeed, he said that he first noticed his memory impairment (and, I think, an associated loss of concentration) some time in 1992 or 1993. As I have already pointed out, however, his business associates perceived this problem almost immediately. The effects have intruded into his private life and he finds that notes are now required to remember, as I understand it, even ordinary domestic affairs. Not surprisingly, the combination of the plaintiff's physical problems and the decline in his mental powers, which significantly affected him from the time of his operation, had adversely affected his self-confidence, which, of course, is a significant personal attribute necessary to success in business. No doubt, the adverse affect varied from time to time and for perhaps extended periods the plaintiff was relatively optimistic and feeling capable. But I am satisfied that he was never restored to his pre-operation effectiveness and that his capacity for sustained work was practically destroyed. As I have mentioned, the plaintiff only realised these matters later, saying that, at the time, "I was reluctant to accept the facts of life as they were attacking me".
70 The plaintiff said that he became easily emotional and found it difficult to compose himself. Apart from the difficulty that this created in the working environment, he found that these occasions also affected his memory or concentration for some period afterwards. Generally, he complained that when under stress he felt unable to focus on the work in hand. As mentioned above, this was demonstrated when the plaintiff gave evidence. I accept that events such as this have occurred with varying frequency over the years since the operation, with greater intensity in the early years but never completely absent. It is obvious that behaviour of this kind would markedly affect his ability to carry on even ordinary business affairs. In addition, the debilitating effects of the "cholangitis" attacks further reduced his capacity for business affairs. The plaintiff said that there was no real pattern to these episodes and his recollection of their frequency was, perhaps not surprisingly, vague. As best as I understand it (accepting the plaintiff as an honest, if not entirely reliable historian) for the period after the corrective anastomosis of January 1990 up to 1993 or perhaps 1994, he thought they occurred about four or five times a year, they then became less frequent, perhaps only twice or three times a year but at Easter in 1999 (following the extreme allergic reaction to an antibiotic) they came about every month for perhaps a year although in the twelve months or so prior to February 2001 he seems to have had only two or perhaps three attacks.
71 In support of the submission that the plaintiff has in hindsight exaggerated the extent of his incapacity the defendant relies on substantial efforts made by the plaintiff, within a relatively short time of the sale (or, more accurately, transfer) of the final tranche of shares in Allco to EPT in May 1990, to investigate business opportunities which would, it is submitted, have required considerable capacity to undertake. An example of such an enquiry was the apparently leading role played by the plaintiff in attempting to put together a proposal to take over a well-known and prestigious Newcastle shipbuilding firm known as Carrington Slipways, which had been taken over by a mortgagee following default. The business proposal, signed by the plaintiff, was very substantial indeed involving shipbuilding supported by steel fabrication, maintenance and refurbishing facilities. It was proposed that the shipyard should establish a market niche for vessels between 1,200 and 10,000 tonnes, but also attempt to supply a "volume market" of smaller vessels. A project worth approximately $40 million over a period of two years was already under active consideration with design being well advanced. A number of tenders for other large contracts were also proposed. It is obvious that undertaking responsibility for the management of such a substantial enterprise, especially one which had failed, was an enormous task. Yet the plaintiff had either put himself forward or allowed himself to be put forward as managing director of the new venture. The proposal had been put together by a number of interested parties and it is, I think, likely that the plaintiff was not its instigator. There is good reason for inferring that his involvement was a reflection, not of his actual capacities at the time, but rather of his very substantial business reputation, especially in the Newcastle region. When questioned about this matter, the following evidence was given by the plaintiff -
"Q. As at this date you had no problem, did you, committing yourself to a potential investor as taking on the position of a full time managing director of what was a large corporation?
A. Yes. It does - it does ring terrible for my particular self-judgment. I did not know at this time in my life if I was coming or going. I was being blinded by the need to raise my self-esteem, my self-respect, to conquer, once again, my inclusion in the community which I left and from which I had been a member. I do know from later experiences, most unfortunately, that I did not know exactly what the hell I was doing…"
72 Having regard to the whole of the evidence in the case, including my impression of the plaintiff as a witness, I have no hesitation in accepting this answer as truthful and correct.
73 The plaintiff pointed out that, in a number of respects, the Carrington Slipways' proposal was somewhat unusual. First, the company was in Newcastle and the persons with whom he was to be working were well known to him; and secondly, he intended to take a substantial interest in the company which would permit a somewhat less rigorous relationship with the board of directors than might otherwise have been the case and who might otherwise require from him a commitment in terms of detailed control which he felt he would not be able to undertake. However, as he acknowledged, he realised in hindsight that undertaking even this level of responsibility was unreal. As it happened, the proposal was never put to the test since it foundered, as it seems to me, on business realities, one of which may well have been the realisation of other potential investors that the plaintiff's capacities had become significantly qualified. The submission of the defendant, however, that it is difficult to accept that at this time the plaintiff subjectively felt physically unable to undertake a serious work schedule is a reasonable one, especially as it appears to be broadly consistent with the (optimistic) evaluations of his position as described in the contemporaneous medical reports, even making allowance for the episodic character of the more serious symptoms. However, taking into account the whole of the evidence, I think it more probable than not that the plaintiff was indeed at this time physically (and, for that matter, mentally and emotionally) unfit to undertake fulltime responsibility for any substantial commercial undertaking, let alone one like Carrington Slipways. The collapse of Carrington Slipways was a major local disaster. A large number of people, including leading local politicians such as the mayor, were keen to see a rescue operation mounted. Not surprisingly, it appears their hopes at some stage or other (I rather think at an early stage) focused on the plaintiff. Considering his state of mind at the time, resistance to these blandishments would not have been easy and all the more readily may have led him into unjustified optimism.
74 Mr Alan Morris, the longstanding Member for Newcastle in the House of Representatives has known the plaintiff for many years. (It will be recalled that Allco's operations were centred in Newcastle.) He regarded the plaintiff as one of the most impressive businessmen that he knew and, of course, he knew many in the Newcastle area, which was a major centre of engineering and steel manufacturing in this country. Mr Morris said that he had not seen the plaintiff when he went overseas in the late 1980s (after he had resigned as managing director). When Carrington Slipways collapsed it was, as Mr Morris said, a calamity for Newcastle. He became deeply involved in attempts to resuscitate the company and a consortium was put together, including the plaintiff, for this purpose. It was then that he met the plaintiff once more. He described him in this way -
"…He was terrible. I mean, he was actually, I thought - I mean, I had assumed when I heard he was still ill that he actually had cancer. I guess some of your friends end up with cancer and that's the thing that you don't talk about. Heart attacks you talk about. People have bypasses or a stroke, people talk about it. People have cancer; you don't talk about it - or nowadays HIV. He was part of the consortium trying to put together…a recovery package for Carrington Slipways. I didn't deal with him much at all about it…but Manuel had lost three or four stone in my view. He had fallen away to nothing. Manuel had a very big presence. He was very dynamic…with a very strong presence as a person, ideas and energy. Manuel in '91 was a very ill man. I thought he still had the cancer. I wasn't sure whether he was in remission. I wasn't sure whether he had recovered. But he was - I had known this man. I had got a lot of benefit out of Manuel Alves, and I felt very embarrassed about it. I couldn't talk to him about it. I didn't know what was wrong with him. That wasn't going to work.
Q. What do you mean 'That wasn't going to work'?
A. The consortium."
75 Over the early 1990s the plaintiff engaged several different business consultants to explore acquisition of businesses but with little success. In October 1992, the plaintiff was considering the purchase of part of a company then in liquidation, which manufactured and sold a mobile heavy vehicle-testing unit. The investment required was in the order of $500,000 with positive cash flow anticipated after something over a year. At this time the plaintiff was in Portugal. The defendant pointed to the submission made to the provisional liquidator on the plaintiff's behalf which commended his experience and business capacity, summarised in the following statement -
"Mr Alves is now seeking a new challenge and his experience in building Allco into a viable business coupled with the financial resources developed through his involvement and sale of Allco make him well qualified to make a success of the Truckalyser Division…Through his twenty-five years involvement in Australian industry he has developed wide industry contacts which would enable him to quickly put together a capable team."
76 In his evidence, the plaintiff described this encomium as "a commercial statement" -
"The philosophy normally followed by any commercial company producing an advert, embellishing the characteristics of the product they want to sell, embellishing the product to such a way it can be readily accepted and all those - that's commonly used in marketing."
77 With this qualification, however, the plaintiff agreed that he believed at the time he was capable, with astute delegation, of so organising matters that the company would be a successful venture. As with a number of other proposals at the time, this matter did not get very much further than an initial enquiry.
78 The plaintiff became a member of the Board of TUNRA (The University of Newcastle Research Associates Limited) in December 1989 and remained a director until late 1992. The minutes show that the plaintiff attended eleven board meetings in all during this period. He resigned from the TUNRA board on 3 December 1992 but remained an honorary member.
79 In the latter half of 1991 the plaintiff explored the possibility of establishing a plant in Portugal or elsewhere in the EEC to manufacture tapered steel poles and employed a consultant for the purpose of doing so. At the same time, the plaintiff was exploring business opportunities in Portugal although, at this stage, tentative enquiries led nowhere. The light pole proposal did not go ahead when it became clear that the capital investment required was beyond the plaintiff's resources. Nevertheless, it is clear that the plaintiff invested a very substantial sum, as I understand it in excess of $50,000, in exploring the viability of the proposal, which is strong support for the inference that the plaintiff had a fairly high degree of confidence that, if the evaluation supported the initial perception of potential, the he thought he would be able to undertake the work necessary both to finance the business and manage it successfully. The defendant reasonably submits, therefore, that the plaintiff's investment in investigations of this kind implies a significantly greater optimism about his capacity, both mental and physical, than he now describes. The plaintiff said, however, that at this time, namely in the latter half of 1991, he started to appreciate that his abilities and personal communication were significantly affected by inappropriate irritability and, furthermore, that as he tried to identify business opportunities and follow them up he found this and other problems with memory and concentration became evident to him. At one point in his evidence, the plaintiff described it in this way, apropos a memorandum of 20 February 1989 in which the plaintiff expressed his displeasure about matters raised at a previous Allco board meeting, describing his language as inappropriately forceful -
"I seem to be hammering away and hammering away without offering solutions and when I used to call myself, on some occasions, Mr Solutions, this is not Mr Solutions talking to anyone. It is Mr Troublemaker talking to someone."