Borg v Ramsay Health Care trading as North Shore Private Hospital Pty Limited

Supreme Court of NSW|2014-02-03|Before: Adamson J

Counsel: Counsel: Mr A Lidden SC with Ms MA Campbell for the Plaintiff Mr MJ Fordham SC for the Defendants

Solicitors: Solicitors: Brydens Lawyers for the Plaintiff HWL Ebsworth Lawyers for the First Defendant Avant Law Pty Ltd for the Second Defendant

Chronology of injuries, surgery conducted and symptoms 4The plaintiff was born in December 1963. He was 42 at the time of the fall and 50 at the time of trial. He left school after Year 9 and went to work in various labouring and unskilled jobs. In about 1988, when he was about 24, he was employed by a stonemason as a marble fixer's assistant. While he was working at Botany Cemetery he injured his back, as a result of which he was off work for an extended period and was paid workers compensation. 5He underwent a laminectomy at L4/5 in July 1989 as a result of the injury in 1988. He returned to work afterwards. In October 1991 he suffered a further back injury when a vehicle in which he was travelling hit a dip in the road. A CT of the lumbar spine showed recurrence of the L4/5 disc prolapse with a large disc prolapse at L5/S1 which encroached on his nerve roots. In December 1991 he had further surgery to remove degenerative disc material and relieve compression of nerves at L4/5. 6After this time, he had various jobs, including as a security officer and a truck driver. The periods of employment were sporadic although he worked for the Department of Conservation and Land Management for about two years continuously. By 1992 it had become apparent that Mr Borg would never be able to work again as a labourer or in a position that required him to perform heavy duties. 7Mr Borg married in 1992. His first child, Sarah, was born in 1994 and his son, James, was born in 1998. 8By about 1993 Mr Borg reported that he was depressed as a result of his back condition and its effect on his ability to earn. He gave a history to Dr Metcalf in May 1993 of crankiness, irritability, restless sleep, subjective depression and suicidal ideation. 9In November 1995 Mr Borg was assaulted while working as a security guard. He was struck on the back of the head, knocked to the ground and kicked. He suffered concussion and injured his back. An MRI scan taken in April 1996 showed a posterior protrusion of the L4/5 disc. 10In March 1998 Mr Borg underwent a two-level spinal fusion. Cages were inserted at L4/5 and L5/S1. However he was dissatisfied with the results of the surgery. In November 1998 the cages were removed and a complete laminectomy over the two lowermost discs was performed. According to Mr Borg he was unable to work for about a year. 11Later, in about 1999, he started doing some security work. He worked as a security guard with Image Security at Hill Street Tavern for three shifts a week of between 7-8 hours each. 12Mr Borg's back was still giving him trouble. He consulted a further surgeon who advised him to have another operation, which was to be performed in February 2005. However, on 8 December 2004 he was involved in an altercation in the course of his employment as a security guard as a result of which he injured his right shoulder. An ultrasound scan revealed a full thickness tear involving the mid and posterior aspect of the supraspinatus tendon with tendon retraction of about 1.7 cms. The back operation was deferred. 13In February 2005 Mr Borg had surgery to his right shoulder that included arthroscopic acrominoplasty, rotator cuff repair and an evaluation of the glenohumeral joint. After the surgery he was admitted to the psychiatric unit at Sutherland Hospital for about five days due to the side effects of the medication. 14In about March 2005 he fell in the bathroom at home and tore his right rotator cuff again. 15In May 2005 he had further surgery to the right shoulder to revise the rotator cuff repair. According to Mr Borg neither of these operations was particularly successful. 16A fifth back operation was ultimately performed in December 2005, at which time a solid fixation was performed from L4 to the sacrum. 17According to Mr Borg, this back operation was very successful and assisted him greatly. He gave evidence that he was no longer required to take pain-killing medication for his back although he had, prior to the operation, taken Endone, Oxycontin and liquid morphine. He said that following the operation he required only Panadeine Forte for his shoulder. For reasons given below I do not accept Mr Borg's evidence unless it is corroborated or amounts to a statement against interest. I am satisfied that although his back was improved after the operation it continued to cause him difficulty. 18In any event, he was at that time disabled for work because of his right shoulder. An MRI scan taken in June 2006 demonstrated a complete re-tear of the supraspinous and infraspinatus muscle as well as atrophy. Professor Sonnabend, to whom Mr Borg was referred by Dr Kirsh, described his presentation at the end of August 2006 in the following terms, which I accept: He is a big strong man with a major disability as a result of extensive disruption of his re-repaired right rotator cuff. His strength of forward flexion is scarcely anti-gravity, and his has virtually no active external rotation. This weakness interferes with various activities of daily living, and precludes him from working as a bouncer or a security guard. 19Because the earlier operations on his right shoulder had not achieved the desired result, Mr Borg was to have an arthroscopy on his shoulder on 8 November 2006 with a view to ascertaining whether it could be repaired. Following the arthroscopy, but before any repair was conducted, he fell from the operating table. This fall is the subject of these proceedings. At the time of the fall Mr Borg had not done any paid work for two years. 20Mr Borg was under sedation from the anaesthetic at the time of the fall. The operation record prepared by Professor Sonnabend noted: "Traction removed; changed position from lateral decubitus to "beach chair". Surgical team left theatre to reswab; patient was being prepped when (according to wardsman who was holding arm) patient slipped- first right leg, then body, then head) off right side of table. Sister and wardsman were unable to support him (~ 135 kg) and patient fell to floor. Endotracheal tube pulled out; head hit floor from a [illegible] height of approx 1 foot." 21This record was admitted without objection. In my view, it fulfils the requirements of s 69 of the Evidence Act 1995 (NSW) since it is reasonable to infer that it was prepared by Professor Sonnabend on the basis of information supplied to him from the wardsman and sister, who were both present and involved and who might therefore "reasonably be supposed to have had personal knowledge of the asserted fact". Dr Donnelly's note does not add to the detail of what happened since he was facing in the opposite direction when Mr Borg fell. 22When Mr Borg regained consciousness, he complained of a headache in the right side of his head. Some right-sided weakness was noted in his arm and his leg. He was referred for a CT scan of his head and neck and spine. A MRI of his head and neck was unremarkable. Professor Sonnabend reviewed him the following day, 9 November 2006, and found him to be neurologically grossly intact with some low back and right hip discomfort. The nursing note in ICU made at 5.30 am on 9 November 2006 recorded in part: "Pt very difficult to assess as weakness on R side varies and pt noted to be moving all 4 limbs spontaneously equally when not being assessed. Appears to have weakness and pain on movement when being assessed. Pt's pain level also difficult to assess, c/o headache earlier which he described as 10/10, 10 being worst pain, but then he fell asleep before pain relief given." 23On 15 November 2006, Mr Borg consulted Dr Rosenberg, his treating orthopaedic surgeon for his back. He complained that he had suffered a significant injury to his neck, head and back in the fall and that he was hemiparetic when he regained consciousness. Dr Rosenberg recorded that he had been extensively investigated with angiograms, MRI scans and CT scans which were relevantly clear. No cause for the right hemiparesis was found. At that time the principal complaint was a sore back with significant right-sided pain over the sacro-iliac region with shooting pain into his right leg. There was some soft tissue swelling in the right scalp. 24When Mr Borg saw Professor Sonnabend on 24 November 2006 he reported that he was still sore following the fall. Professor Sonnabend noted that his neck was still uncomfortable when he turned to the right and that the low back pain was slowly resolving. 25Mr Borg saw Dr Kirsh on 25 January 2007 with a view to rescheduling the operation that was to have been performed in November 2006. Dr Kirsh opined that his shoulder had slowly settled down and was neurologically "fine" although his back was stirred up and that he had had a "shake-up" psychologically. He noted that he still had diminished supination (which he had had before) and felt occasional pain in the palm of his hand. 26When Dr Kirsh reviewed him again on 6 March 2007, Mr Borg reported that the right shoulder continued to bother him and that he was comfortable proceeding with reconstruction of the rotator cuff. He also complained of bad right buttock pain. 27Dr Rosenberg reviewed Mr Borg on 9 March 2007. At that time the doctor recorded that he did not seem a great deal better, the spasms had returned and he had increased discomfort and pain from the right lower spine radiating to the right leg. 28Mr Borg's evidence, which I do not accept, is that his back pain and right shoulder pain became much worse after the fall and has remained much worse ever since. This evidence is inconsistent with the contemporaneous complaints of pain made to his treating doctors, some of which are recorded above, which indicate that his principal concern was his back, which appears to have borne his weight in the fall. Although it is common ground that he suffered an aggravation to his right shoulder as a result of the fall, I do not accept that such aggravation was structural, significant, or permanent. There is no suggestion that his weight was borne by the right shoulder (as had occurred when he had previously fallen in the bathroom while conscious and apparently endeavoured to break his fall by sticking out his right arm). Indeed the mechanism of the fall from the operating table would suggest to the contrary. 29Although it appears that his back pain was worse for a period after the fall, it is common ground (notwithstanding the plaintiff's evidence) that the aggravation of the back pain was self-limiting and has ceased. 30Although Mr Borg eventually had surgery to repair his right shoulder on 27 March 2007, he said that it only made a "slight difference". I do not accept his evidence. The film taken in 2010 shows that the range of movement of his right shoulder was considerable and that he was able to move it apparently without pain. This represented a very substantial improvement when compared with the description of the restrictions in his right shoulder he gave to Professor Sonnabend when he saw him in August 2006. 31The plaintiff has not sought to make out a case that his right shoulder would have had a better outcome if the surgery had been done five months earlier, which explains the absence of any evidence to support the proposition. In any event I do not consider there to be any proper basis on which to conclude that the long term condition of his right shoulder would have been better if the operation had been performed in November 2006 rather than March 2007. 32Mr Borg gave evidence that, as a result of his limited use of his right shoulder, he used his left shoulder more and it, too, deteriorated. 33It was contended on Mr Borg's behalf that a causal connection between the condition of the left shoulder and the fall had been established on the following basis: (1)The fall caused the operation to the right shoulder to be deferred for five months. (2)Mr Borg used the left shoulder more to protect the right for that additional five months. (3)The additional use of the left shoulder was what caused the left shoulder to be "overused" and this overuse was what made the left shoulder symptomatic. (4)The left shoulder would not have become symptomatic or required surgery if the operation to the right shoulder had been performed, as scheduled, on 8 November 2006. 34I understood the defendants to accept propositions (1) and (2) above. However, the defendants contended that (3) and (4) had not been established on the balance of probabilities, as required by s 5E of the Civil Liability Act and that, accordingly, the damage to the left shoulder was not compensable in these proceedings. 35The defendants relied on the fact that there is no recorded complaint of pain or other symptoms in the left shoulder until some time after the operation on the right shoulder. Dr Kirsh reported to Dr Moore, Mr Borg's general practitioner, that he would have to remain in an adduction splint for six weeks to allow the repair to heal. The evidence shows that Mr Borg saw Dr Kirsh for review on 4 April 2007, 8 May 2007 and 29 May 2007 without mentioning any difficulties with his left shoulder. I infer from this that he was not suffering pain in the left shoulder during this period. 36The evidence reveals that Mr Borg first complained to Dr Kirsh of left shoulder pain at the review on 17 July 2007, which Dr Kirsh regarded as "no doubt due to overuse". I accept that the pain following overuse was occasioned because of a pre-existing defect in the left rotator cuff which had not previously been symptomatic. 37I accept the defendants' submissions. I am not satisfied that the overuse of the left shoulder that would have been occasioned by the operation had it occurred when scheduled would not have had the same effect as the overuse that occurred when the operation was in fact performed. The plaintiffs have not established to the relevant standard that the five months' delay made any material difference to the onset or extent of symptoms in his left shoulder. 38Mr Borg had an operation on his left shoulder in December 2007 to repair the rotator cuff, which was successful and restored full range of movement. 39Although I accept that Mr Borg has some aversion to hospitals and intense medical treatment as a result of the fall from the operating table, nonetheless he has been prepared to submit to surgical procedures and numerous encounters with medical practitioners since the fall. The defendants do not dispute that he suffers some anxiety as a result of having to undertake these procedures. Nonetheless the anxiety he suffers does not appear to prevent, or otherwise affect, their timely occurrence. 40Mr Borg's right shoulder continued to trouble him because of the lack of active external rotation. On 27 June 2008 Professor Sonnabend reported to Dr Kirsh that Mr Borg had told him that he had difficulty with some minor activities "such as shaving or getting a gun from a holster". The circumstances under which the latter activity was sought to be performed were not explored in the proceedings but it may be related to his former occupation as a security guard. 41On 12 February 2013 Mr Borg had a further operation to his left shoulder that involved arthroscopy, cuff repair and bursectomy. 42In early 2013 Dr Kirsh gave Mr Borg a cortisone injection in his right shoulder for what appears to be the first time. Mr Borg reported that it gave him relief that lasted at least until about May 2013. His right shoulder was reinjected in July 2013 and both shoulders appear to have been injected with cortisone shortly before Christmas. 43Although Mr Borg has had three operations since he fell from the operating table, he gave evidence that it was difficult for him to undertake them because of the stress occasioned by the fall and his resultant fear of doctors and hospitals. He said that he is now scared of heights, apparently because of the fall. 44In his statement (dated 4 February 2013 but signed on 3 October 2013), which he adopted in the witness box, Mr Borg described extreme disability. He instanced a recent attempt to peel potatoes which resulted in pain in his back and shoulders and a shooting pain down his legs, although he had only been standing at the kitchen sink for about 5 to 10 minutes. He said that he tried to mow the nature strip outside his house. He said that it took a long time and he was in severe pain for the next two days. He also said that he had had to attend two doctors' appointments in one day and that he had had to take Endone to help get him through the day and had to lie down in the car between appointments. I do not accept this evidence. 45Mr Borg continues to be paid workers compensation payments as a result of the injuries to his right shoulder and to his back. In the period immediately prior to 20 November 2013, he was paid at the rate of $130.62 under s 37 of the Workers Compensation Act 1987 (NSW). On 19 November 2013, the rate at which he was paid increased to about $940 per week, of which CGU (the insurer responsible for the 2004 right shoulder injury) paid 80% and Allianz (the insurer responsible for the 1988 back injury) paid 20%.

Mr Borg's credibility and the video evidence 46The defendants arranged for video surveillance of the plaintiff. Film was shown in the courtroom in the course of Mr Borg's cross-examination. Mr Borg had seen the film in the week before the proceedings although it had been disclosed to his solicitors and the experts last year. The time of its disclosure undermined the utility of the film to test Mr Borg's credibility although it had the advantage that medical practitioners could view it prior to the hearing. I respectfully adopt Wilcox J's acceptance of the following submission in Australian Postal Commission v Hayes [1989] FCA 176; (1989) 23 FCR 320 at 326-327: In a case where there is a dispute as to the existence of a physical disability, being a disability whose existence or otherwise cannot be established by independent objective evidence and in relation to which the acceptance or rejection of the claimant's account of his or her symptoms is likely to be critical, counsel contend that the right to cross-examine effectively must include the right to test the credit of the claimant. One way of testing the credit of such a claimant, counsel say, is to ask questions which require the claimant to commit himself or herself in relation to the extent of the disability - the actions which he or she can, and cannot, perform - before confronting the claimant with a film depicting his or her actions. If it should happen, in such a case, that the film shows the claimant performing actions which have been said to be impossible, doubt may be cast upon the claimant's credit, causing the tribunal of fact to be cautious about relying on the claimant's evidence in relation to matters incapable of objective demonstration. If, in such a case, a claimant has seen the film before he or she has become committed to an account of the disabilities, the claimant may tailor his or her evidence so as to accommodate the film, leaving false evidence unexposed and uncontradicted. 47Although Mr Borg gave his evidence in chief after seeing the video, there are several medical reports in evidence in which the plaintiff gave descriptions of his disabilities which are inconsistent with his capacities as depicted on the video. In my view, the plaintiff has tailored his evidence so as to accommodate the film. I have formed an adverse view of his credibility. I do not accept that his use of Endone is as extensive as he described. Nor do I accept that it or the cortisone injections had the effect of allowing him to appear as he did on the video. 48Film was taken on four separate occasions. On the first, Saturday 26 June 2010, Mr Borg was a spectator at a schoolboys' football match in which his son was playing. He was seen standing on the sidelines for about 40 minutes. He raised his right arm above shoulder level from time to time to cheer or to shield his face from the sun. He raised his left arm above shoulder height to cheer or look at his watch. He raised both arms to applaud. He turned his neck to the left and right. He engaged in conversation with the other fathers who were watching the game. His gait did not differ in any material way from theirs. There was no discernible disability or restriction. 49I note that the film was taken about three months after he was assessed by a rehabilitation provider, Re-start Consulting, to determine his fitness for work. He reported to the provider that he could not stand for more than 10 minutes as a result of back pain and that he had difficulty lifting his arms above shoulder level and that when he attempted to do so they would fall automatically as he had no strength to hold them up. His reporting of his limitations is inconsistent with his capacity as depicted on the film. 50Film was also taken on Wednesday 31 July 2013. Mr Borg drove his Holden sedan to a shopping centre at about 10.40am. He was filmed purchasing several plastic bags of what appeared to be bread. He reached for the items, carried them, operated the touch-screen at the automated checkout and drove out of the car park. There was no discernible disability. 51Film was taken on the following day, Thursday 1 August 2013, in the late morning at a shopping centre. Mr Borg got out of his car and lit a cigarette, which he smoked in the car park before walking around the shopping centre. He met someone for lunch and was then seen going to the newsagent and a butcher's shop. Almost two hours later he was seen to return to his car. He placed his right hand on the roof of the car through the open window and adjusted his position in the seat before backing out of the car park and driving away. When asked about this manoeuvre, Mr Borg explained that he had taken some of his weight (at that time 135 kgs) on his left hand, which he positioned on the console inside the car and also pushed up with his legs. It is possible that this action is consistent with back pain. However it also demonstrated considerable strength in the right arm and shoulder. 52Film was also taken on Saturday 3 August 2013 from the street outside Mr and Mrs Borg's two-storey home at Kareela. The film showed Mr Borg and his wife and dog in the front garden. From time to time Mr Borg bent down to pick up a stick to throw for the dog to fetch. He picked up the dog and, at times, foxed with the dog by pretending to move in one direction but moving in another. His wife throughout was picking up garden debris from the lawn and putting it in a large wheelie bin. Mr Borg used a stick on several occasions to compress the refuse so that more could be accommodated in the bin. He was also seen to wheel the wheelie bin and rake the grass, using both hands, and either hand. He pointed out something high up to his wife, which required him to demonstrate what appeared to be an unrestricted shoulder movement. There was no discernible evidence of disability on the film. 53In summary, the film depicted Mr Borg engaging in orthodox daily activities without apparent restriction. There was no indication that he was capable of heavy lifting or repeated bending since neither of these activities was attempted. It is, in any event, common ground that such activities would be contraindicated because of the substantial pathology in Mr Borg's shoulders and back, which pre-dated the fall. 54In re-examination Mr Borg was asked about the actions he was seen to perform on the film. He said that he was able to perform those actions by having cortisone injections in his shoulders and taking a substantial amount of pain-killing medication. The evidence established that the first cortisone injection he had in either of his shoulders was administered in 2013. Accordingly, its effects cannot explain Mr Borg's presentation in 2010. 55The medical reports contain reported instances of apparently involuntary grunting by Mr Borg in the course of consultations and medicolegal assessments. I did not observe any such behaviour when the plaintiff was in the witness box or, for that matter, on the film although as the film was silent it would have been difficult to assess.

Mrs Borg's evidence 56Mrs Borg gave evidence about her husband's capacity and how he had been affected by injuries and medical treatment over the years. I found her to be an unsatisfactory witness in that the description in her statement, which she adopted in the witness box, was at odds with the tenor of the film and with the objective facts. 57For example, she gave evidence that Mr Borg was very happy with the results of the back operation in December 2005 and told her "that he had not felt so good with his back in as many years as he could remember". However, since his shoulder was "not completely fixed" he agreed to have further surgery in November 2006. Mr Borg's positive feeling about his back was not, however, reflected in any return to work. As referred to above, as at November 2006, he had not undertaken any work for two years. The statements made to doctors following the back operation were not consistent with the glowing picture painted by Mrs Borg. 58I did not form that view that Mrs Borg was deliberately misstating Mr Borg's situation. It has undoubtedly been difficult for her to live with a man who has been on workers compensation and not working for a substantial part of their relationship while she has been, for the most part, working full-time. However, I do not consider her to be a reliable witness. Her evidence was affected by motive, as his was.

Effect of credibility findings on causation 59The effect of the credit findings I have made above is that I am not satisfied of the causal effect of the fall in November 2006 by reference to the evidence of Mr and Mrs Borg since neither is a reliable witness. Each is affected by motive and hindsight. In particular I do not accept their evidence about Mr Borg's capacity to do household tasks after the back operation in 2004 and before the fall in 2006 or their evidence as to his incapacity to do such tasks after the fall in 2006.

Causation 60The issue of causation is, to some extent, affected by the expert evidence. However, the starting point for such a determination is the evidence of Mr Borg and his wife as to the immediate effect of the fall and as to a comparison between his capacity immediately before the fall as compared with his capacity thereafter. Because of the unreliability of their evidence, the starting point and the comparison cannot be determined from that source alone. 61Furthermore, as Mr Borg did not commence the proceedings until 6 November 2009, three years after his fall, the experts retained by the defendants were dependent on a history given and examinations undertaken well after the event. This, of itself, would not be significant if Mr Borg were otherwise credible.

The expert evidence 62Mr Borg has been examined by medical practitioners over decades, both before and after the fall. To some extent their findings are important and germane to the issues of causation and disability. However, they are, to a large extent, dependent on the history given by Mr Borg. Because I do not consider him to be either a reliable or honest historian, the expert opinions are undermined by the histories given. This is particularly the case with respect to the physical effects of the fall from the operating table.

Neurological experts 63The two neurologists met in conclave: Dr Lorentz who was retained on behalf of Mr Borg, and Dr Stening, who was retained on behalf of the defendants. They confined their attention to the plaintiff's back and neck since their expertise did not extend to his shoulders or right knee. 64They agreed that Mr Borg had suffered an aggravation of a pre-existing back condition in the fall but that the aggravation had passed. He may require treatment or possible surgery as a result of the natural deterioration of a pre-existing condition to his back. 65They considered that the plaintiff injured his neck in the fall. Dr Stening considered the injury to have affected the soft tissue and muscles only and was a natural deterioration of a degenerative condition whereas Dr Lorentz considered that it aggravated a previously asymptomatic condition. 66They agreed that Mr Borg was wholly incapacitated for work prior to his fall and that therefore the fall had no effect on his capacity for work. He may require treatment in the future for his neck. In so far as he requires treatment for his back the need has not been increased by the fall. 67Neither Dr Lorentz nor Dr Stening had seen the film before the conclave. Dr Stening saw the film after the conclave report was prepared. Neither was required for cross-examination.

Orthopaedic/ surgical experts 68Three orthopaedic surgeon experts met in conclave: Dr Dalton, who was retained on behalf of the defendants and Drs Bodel and Conrad, who were retained on behalf of the plaintiff. These experts were provided with relevant documents and copies of the films referred to above. 69Dr Conrad was out of the jurisdiction during the hearing and therefore could not be cross-examined, although he was required to attend for that purpose. I granted leave to the plaintiff to rely on his reports and his contribution to the conclave report. His views were, in some respects, at odds with those of Drs Dalton and Bodel and in other respects were not entirely clear. I do not, however, consider that anything turned on his not being cross-examined since the extent of agreement was largely apparent from the report. Neither Dr Dalton nor Dr Bodel was required for cross-examination. 70There was some agreement between the experts. The three experts agreed that any back injury sustained by the fall was not a new injury. Drs Dalton and Bodel considered that any aggravation of the back condition caused by the fall had probably ceased and that any ongoing disability was the result of, or principally caused by, the natural deterioration of the pre-existing condition. This was, in my view correctly, conceded on behalf of Mr Borg. 71The three experts agreed that there was no pre-existing symptomatic neck condition. Drs Bodel and Conrad considered that there was a new injury to the neck. Dr Conrad considered, on the basis of Mr Borg's complaints of continuing neck symptoms, that Mr Borg had ongoing permanent impairment to his neck. However, it was, in my view correctly, conceded on behalf of Mr Borg that the neck condition had resolved. 72The three experts agreed that, as to Mr Borg's right leg, the fall caused neither a new injury nor an aggravation to a pre-existing condition. 73As to the right shoulder, Dr Dalton considered that any aggravation caused by the fall had passed, that Mr Borg underwent the surgery he would have undergone and that the resulting impairment and disability would have ensued irrespective of any such aggravation. 74Dr Bodel considered that, on the balance of probabilities, any aggravation was continuing. His opinion as expressed in the conclave report was: "I have indicated that it is somewhat difficult to be absolutely certain as the change in the appearance of the pathology is not known. I am in agreement with the rest of the conclave that there was possibly some additional change in the appearance of the shoulder and that may have contributed to the need for the ongoing surgery which was done five months later. To be absolutely certain, only the operating surgeon (Professor Sonnabend) could help clarify this issue. Mr Borg was going to have the surgery in any case, but I believe that accepting that there was a possible aggravation, means that that would be ongoing at the time the surgery was done." 75Dr Conrad's view was that: ". . . on the balance of probabilities, the aggravation continues and again on the balance of probabilities, the reason for this aggravation was the fact that the surgery on the right shoulder was postponed by some five months during which the mobility of the shoulder may have been compromised." 76Despite the apparent disagreement between the experts it appears that they agree that what happened to the right shoulder in the five months between the scheduled operation and the deferred operation was both significant and unknown. Dr Conrad refers to the possibility that the mobility of the shoulder was compromised in that period, as does Dr Bodel. There is no recorded disagreement with Dr Bodel's view that Professor Sonnabend would be in the best position to elucidate the matter since he actually saw the right shoulder in November 2008 since the exploratory investigation had been conducted before the fall. 77Professor Sonnabend was not called. I accept the defendants' submissions that no Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference arises against them since he was a surgeon treating the plaintiff at the relevant time and is not a party to the proceedings. There is no explanation for the plaintiff's not calling Professor Sonnabend. However, as I read the evidence, the basis for Dr Conrad's supposition that the aggravation to the right shoulder is continuing is that the delay in surgery, of itself, occasioned permanent harm. Although he uses the term "on the balance of probabilities", his use of the word "may" is apt to mean a possibility rather than a probability. There is no sufficient explanation for Dr Conrad's view that the delay caused permanent harm. Nor is there any analysis in the conclave report or in his reports that explains how such a conclusion could be drawn in light of the chronology of shoulder symptoms referred to above or the film. 78I am not satisfied that any aggravation of the right shoulder occasioned by the fall was permanent. 79As to the left shoulder, the three experts agreed that no new injury to the left shoulder was suffered in the fall but that Mr Borg's left shoulder probably became symptomatic because he used it in preference to the right shoulder. The experts also opined on whether these symptoms were relevantly "caused" by the fall. I regard this as a question for my determination rather than a question germane to their expertise, since they have opined on the primary question: namely, the cause of the left shoulder symptoms. For the reasons given in more detail above I am not satisfied that the plaintiff has proved that the difficulties he experienced with his left shoulder were caused by the fall. 80The three experts agreed, and it is common ground, that due to Mr Borg's pre-existing disability he was not capable of working as a security guard or bouncer. 81There was disagreement between the experts as to the extent to which Mr Borg's current working capacity has been further restricted, if at all, by the injuries sustained in the fall. Dr Dalton considered that his working capacity has not been significantly further restricted as a consequence of the fall. Dr Bodel considered that there has probably been a marginal increase in Mr Borg's incapacity for work but that he would need a formal work capacity assessment to determine whether he has any other capacities other than those of a bouncer or security guard. Dr Conrad considered that, prior to the fall, Mr Borg was capable of doing very light work for about 12 hours per week in a very sedentary capacity not involving standing, walking, bending or lifting more than 5 kgs and no overhead work with his right arm. However, he considered Mr Borg to be unemployable since the fall. 82I do not accept Dr Conrad's view that Mr Borg would not now be capable of doing the limited, restricted work as described, of which Dr Conrad opined he was capable prior to the fall. This is not to say that Mr Borg has any realistic earning capacity since the prospects of his obtaining such employment may be non-existent. However, I am not persuaded to the requisite standard that there has been any diminution in his earning capacity as a result of the fall. 83The experts agreed that Mr Borg does not require any physical treatment. 84As to domestic care requirements, this was not addressed in the conclave report but was addressed in the individual reports. Dr Conrad considered, as at 3 April 2012, that Mr Borg might need 6 hours of domestic assistance per week. I am not persuaded that this is the case or that, if such assistance were required, the need was created by the fall.

Psychiatric experts 85Dr Wilcox (who was retained on behalf of the defendants) and Dr Klug (who was retained on behalf of the plaintiff) agreed that the plaintiff's pre-existing depressive symptoms were at least intermittently exacerbated as a result of the fall in November 2006. The psychiatrists identified as underlying conditions chronic major depressive disorder and alcohol abuse dependence. 86As to the effect of this increase in symptoms, Dr Wilcox considered that there was only a minimal change in his earning capacity as a result. As Dr Wilcox had obtained a history from Mr Borg that he did most of the domestic tasks, although it caused him pain, she did not consider that his domestic capacity was adversely affected by the fall. Dr Klug considered that the psychiatric symptoms caused "a mild but significant further negative impact on both his earning capacity and domestic capacity". 87The psychiatrists agreed that, if Mr Borg were to undergo further surgery, it would be reasonable for him to have between 6 and 12 sessions of cognitive therapy for each operation but that uninterrupted treatment from a psychologist was unnecessary and unlikely to be beneficial.

Summary of findings on causation 88The extent of any incapacity for work prior to the fall is difficult to determine. The fact is that Mr Borg was not working and had not worked for at least two years at the time of the fall. His back surgery had improved his back but his right shoulder condition was debilitating prior to the fall. 89Although Mr Borg was injured in the fall, I am not satisfied that the effect of such injuries was more than transient. But for the fall, I am not satisfied that he would have returned to work in any event. In my view his most likely future circumstances, but for the fall, are that he would not have returned to work at any time up to the present and that it is unlikely that he will ever return to work. 90The film does not suggest any present incapacity for domestic tasks, although strenuous tasks were not attempted. I am not satisfied that any domestic tasks that are required to be performed at the plaintiff's home require heavy lifting or repeated lifting or cannot be performed in such a way as not to require such movements. Accordingly there is no reasonable need for assistance for general domestic tasks. In any event, I am not satisfied that the need for any services that involve heavy physical work has arisen solely as a result of the fall; indeed it has, in my view, been established that the need for assistance to be given with heavy tasks arises from the pre-existing back and shoulder condition. 91Mr Lidden SC, on behalf of the plaintiff, submitted that the plaintiff was entitled to "all of his damages" subsequent to the fall since the defendants have not discharged the so-called Watts v Rake [1960] HCA 58; 108 CLR 158 onus. I do not accept this submission. The plaintiff has not established a prima facie causal connection between the injuries he sustained in the fall and his continuing incapacity since he was already significantly incapacitated by reason of his back condition and right shoulder condition at the time of the fall. Furthermore, if the defendants have any onus to untangle the effects of the fall from the effects of the various underlying conditions, I consider that they have done so in the present case through the expert opinion evidence and the conclave reports, when considered with the plaintiff's evidence in light of the film.

Assessment of damages 92It is common ground that the defendants are entitled to a deduction for amounts paid and payable to the plaintiff by the workers compensation insurers to avoid double compensation: Maguire v McGroder [2001] NSWSC 122 at [57]-[63] (Dunford J); Hood Constructions Pty Limited v Nicholas (1987) 9 NSWLR 60.

Non-economic loss 93In the course of the fall, Mr Borg suffered injuries to his back, neck and right side, including his head. The defendants accepted that he suffered an injury to his right shoulder, which aggravated a pre-existing condition. The aggravation to his back and right shoulder and the injury to his head were limited in time. For the reasons given above, I am not satisfied that the subsequent symptoms in his left shoulder were the result of the fall. 94He also suffered anxiety and continues to suffer anxiety whenever he has to submit to a surgical procedure, or whenever he has intensive contact with the medical profession. I am satisfied that the anxiety he experiences in such circumstances will probably be lifelong. However, it is not debilitating and there is no particular indication that it prevents his undergoing such procedures or consulting medical practitioners when required. 95The evidence establishes that it is likely that he will have surgery at some time in the future, although not necessarily associated with either his back or his shoulders. There is a suggestion that he will require a knee replacement in the future, since he has had long standing difficulties with his right knee. It may be that these could not reasonably be performed unless he was able to lose a substantial amount of weight. The underlying instability in each of his shoulders may well lead to further rotator cuff tears which will need to be repaired by surgery. 96I am satisfied that Mr Borg meets the threshold imposed by s 16 of the Civil Liability Act. I assess the severity of his non-economic loss as 20% of the most extreme case. He is entitled to an award of $19,500. 97From this amount there needs to be deducted any relevant amount which is likely to be paid to Mr Borg under the Workers Compensation Act for whole person impairment. The defendants did not contend that the plaintiff would receive a lump sum payment for permanent impairment under s 66 of the Workers Compensation Act. Accordingly no deduction from this figure is required to be made.

Loss of earnings: past and future 98It is common ground that, by reason of his earlier back injuries, Mr Borg is unfit for any work that requires either heavy or repeated bending or lifting. I am not persuaded that, but for the fall from the operating table, Mr Borg would have any greater earning capacity than he has now or that, in that event, he would have been able to return to work at any time prior to the hearing. 99Accordingly I make no award under this head. 100The defendants tendered a report of Mr Best, a barrister who specialises in workers compensation claims, with a view to his elucidating the scheme that applied before amendments that were made by the Workers Compensation Amendment Act 2012 (NSW), and the effect of the amendments. The admissibility of such a report is questionable since it largely summarises legislation. However, as no objection was taken, I admitted the report and allowed the cross-examination. Because of my findings that the fall did not have a material effect on Mr Borg's earning capacity, it is not necessary to address the matters raised in Mr Best's report.

Domestic assistance 101I am not satisfied that Mr Borg's capacity to do household tasks has been compromised to any material extent by the fall from the operating table. To the extent to which, if at all, some garden maintenance tasks are beyond him because they require heavy lifting or repeated bending, they are beyond his capacity because of his pre-existing back and shoulder condition. His susceptibility to anxiety when required to undertake medical or surgical procedures does not affect his capacity to perform household tasks. 102Accordingly I make no award under this head.

Out of pocket expenses: past 103It is accepted that the workers compensation insurers have paid all out of pocket expenses incurred by or on behalf of Mr Borg and that such sums are not recoverable. It is common ground that, in these circumstances, it is not necessary for me to assess the extent to which, if at all, these amounts would have been recoverable as part of Mr Borg's damages. Accordingly I make no award under this head.

Out-of-pocket expenses: future 104The orthopaedic experts agree that no further treatment is required for Mr Borg's back or the shoulders. There is some suggestion that a further operation may be required, although I accept Dr Dalton's opinion that it ought be an option of last resort, once all other measures, including substantial weight loss, have been exhausted. The need for the surgery does not arise from the fall. 105It was submitted on behalf of the plaintiff that substantial out of pocket expenses had been incurred in the past and that, as the plaintiff's workers compensation entitlement for the future was uncertain, I should make an allowance of $50,000 under that head for the future. I do not accept that submission. The need for most, if not all, of the past out of pocket expenses arose from causes other than the fall. The need for future out of pocket expenses similarly arises from other causes. In my view the only lasting consequence of the fall is that the plaintiff tends to suffer additional anxiety as a result of medical and surgical procedures. 106It is reasonable to allow, in accordance with the expert evidence of the psychiatrists, an amount for cognitive therapy in the event that Mr Borg has to undergo surgery, for whatever reason, in the future. He has had numerous operations in the past. There is some prospect that he will have another one, or more, in the future, although the timing of any such surgery has not been established. 107Rather than endeavour to assess the potential number of operations and the chance of the plaintiff's undergoing them and applying the appropriate discount, I propose to allow for six sessions of cognitive therapy with a psychologist at their present cost of $200 per session, without discount. I allow an amount of $1,200. 108Although there is some prospect that CGU, the workers compensation insurer in respect of the injury to Mr Borg's right shoulder, will pay for such counselling as it has done in the past, I am by no means satisfied that this will be the case. Accordingly I consider it reasonable to make such an allowance in the plaintiff's damages.

Costs 109As I have not heard the parties on costs, I propose to reserve the question of costs, but to make the usual order if no other application is made.

Orders 110I make the following orders: (1)Judgment for the plaintiff in the sum of $20,700. (2)Subject to (3) below, reserve the question of costs. (3)If no application is made in writing to my Associate for a different order within seven days, order the defendants to pay the plaintiff's costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 February 2014

Workers Compensation Amendment Act 2012(NSW)

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