Campbell bht Mammoliti v Ritchie

Medium Neutral Citation: Campbell bht Mammoliti v Ritchie [2026] NSWSC 754

Hearing dates: 20-24, 27-31 October 2025, 3-7, 10-14, 17-21, 24-28 November 2025

Date of orders: 30 June 2026

Decision date: 30 June 2026

Jurisdiction: Common Law

Before: Weinstein J

Decision: (1) Verdict and judgment for the defendant.
(2) The plaintiff is to pay the defendant’s costs of the proceedings on the ordinary basis unless a party is able to demonstrate an entitlement for some other costs order.
(3) In the event that a party agitates for some other costs order, they are to contact my Associate within 7 days so that a timetable can be set for submissions and argument if necessary.
(4) The exhibits and subpoenaed material are to be returned forthwith. The exhibits must be retained, intact, by the party or person who produced that material until the expiry of the time to file an appeal or until any appeal has been determined.

Catchwords: NEGLIGENCE — medical negligence — where defendant practiced as a bariatric surgeon — where defendant performed biliopancreatic diversion surgery on plaintiff — where plaintiff alleges negligence in the defendant’s post-operative treatment of him — s 5O Civil Liability Act 2002 (NSW) — where defendant acted in a manner widely accepted by peer professional opinion as competent professional practice
NEGLIGENCE — medical negligence — failure to warn of risks — whether defendant failed to warn the plaintiff about the risks and side effects of the biliopancreatic diversion surgery — where plaintiff was warned
LIMITATION OF ACTIONS — suspension of time — where plaintiff alleges that the limitation period was suspended due to disability — where evidence does not establish any cognitive, mental or psychiatric impairment — where plaintiff was capable of engaging and instructing solicitors during the limitation period — limitation period not suspended
LIMITATION OF ACTION — claim in negligence — where time expired — whether extension of time should be granted — where plaintiff provided no explanation for delay — where defendant suffered both actual and presumptive prejudice — no extension granted

Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5I, 5O, 5P
Evidence Act 1995 (NSW), s 140, Dictionary
Limitation Act 1969 (NSW), ss 11, 18A, s 50A, 50C, 52, 60G, 60I, 62A

Cases Cited: Arthur Robinson (Grafton) Pty Limited v Carter (1968) 122 CLR 649; [1968] HCA 9
Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
Clifton v Lewis [2012] NSWCA 229
Coleman v Barrett [2004] NSWCA 27
Dean v Pope (2022) 110 NSWLR 398; [2022] NSWCA 260
Dedousis v Water Board (1994) 181 CLR 171; [1994] HCA 57
Dell v Dalton (1991) 23 NSWLR 528
Drayton Coal v Drain [1995] NSWCA 131
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369
Hall v State of New South Wales [2014] NSWCA 154
Jones v Royal Hospital for Women [1998] NSWCA 119
Moran v Nominal Defendant [2008] NSWSC 804
Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311
Polsen v Harrison [2024] NSWCA 224
Reece v Reece (1994) 19 MVR 103; [1994] NSWCA 259
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42
South Western Sydney Local Health District v Gould (2019) 97 NSWLR 513; [2018] NSWCA 69
Southgate v Waterford (1990) 21 NSWLR 427
Sparks v Hobson; Gray v Hobson (2018) 361 ALR 115; [2018] NSWCA 29
State Rail Authority of New South Wales v Earthline Constructions Pty Limited (in liq) (1999) 160 ALR 588; [1999] HCA 3
Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5
Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320
Varga v Galea [2011] NSWCA 76

Category: Principal judgment

Parties: Donald Campbell (Plaintiff)
James Ritchie (Defendant)

Representation: Counsel:
V Ho (Solicitor)(Plaintiff)
B Kelleher SC / E Elbourne (Defendant)
Solicitors:
Spinks Elphick Ho (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s): 2020/84904

Publication restriction: Nil.

JUDGMENT

Background

1. This case is a medical negligence claim brought by a patient against a bariatric surgeon. On 9 March 1999 the defendant, Dr James Ritchie, performed a biliopancreatic diversion (“BPD”) surgery on the plaintiff, Donald Campbell. The plaintiff claims that he has suffered physical and psychiatric harm as a result of the procedure performed by the defendant and the defendant’s post-operative management of him. The particulars of the harm allegedly suffered are micronutrient deficiency, vitamin deficiency, cognitive impairment, behavioural disturbances and psychological injury.

2. In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities: s 140 of the Evidence Act 1995 (NSW). The Dictionary of the Evidence Act defines the “case of a party” as the facts in issue in respect of which the party bears the legal onus of proof.

3. Without repeating the many particulars of negligence, in short, the plaintiff asserts in his Statement of Claim that:-

4. The defendant owed the plaintiff a duty to exercise reasonable care and skill in the provision of advice and treatment for his obesity and in his post-BPD management;

5. The defendant failed to warn the plaintiff about the risks involved in the BPD surgery and the availability of alternatives. The plaintiff alleges that he was given insufficient information to have provided informed consent to the BPD surgery;

6. The defendant failed to take precautions against the risk that the plaintiff would experience harm as a result of frequent and malodorous bowel actions caused by the BPD surgery;

7. The defendant was negligent in his post-operative management of the plaintiff and failed to monitor and treat nutritional deficiencies that arose as a consequence of the BPD surgery;

8. Those untreated nutritional deficiencies led to physical and psychiatric injury including (but not limited to) major depressive disorder, impaired memory and impaired language skills; and

9. As a result of the defendant’s negligence, the plaintiff will be incapable of employment for the rest of his life and will require ongoing assistance with daily living activities and funds management.

10. In an Amended Defence, the defendant denied liability on the basis of both breach of duty and causation. On the issue of breach, the defendant submitted that whilst many important contemporaneous records are no longer available due to the time elapsed between the alleged negligence and the filing of the claim, those records which are available establish no want of care by the defendant in his treatment of the plaintiff. The defendant also invoked ss 5O and 5I of the Civil Liability Act 2002 (NSW) (“”).

The Lay Evidence

The Plaintiff

9. The plaintiff relied upon and adopted an Evidentiary Statement dated 17 September 2017 as well as five affidavits affirmed on 1 December 2022 and 1, 13, 17 and 21 October 2025, which were read in the proceedings. The latter four affidavits largely contained additional details and corrections to the Evidentiary Statement. The evidence in chief given by the plaintiff can be summarised as follows.

10. The plaintiff was born in 1963 in Cloncurry, Queensland. He attended school until year 9, at which time he left for Normanton and commenced working. He moved to Sydney in 1989. He had his first child in October 1992, with his then-partner Anselma. At the time, the couple were living in Chipping Norton, Sydney.

11. The plaintiff said that he began to gain weight during 1996 and his weight increased from 90kg to 125kg over approximately two years. In 1998, his general practitioner (“GP”) Dr Wong referred him to the defendant to discuss his weight gain and available treatment options.

12. The plaintiff gave evidence that he worked for a shop-fitting company, PICO International (“PICO”), for approximately 8 years from 1991 to 1999. He reported that he lost his job in early 1999 when PICO stopped trading.

13. The plaintiff said that in March 1999, after further talks with the defendant, he chose to undergo BPD surgery. The defendant performed the BPD surgery on the plaintiff on 9 March 1999 at St Luke’s Hospital in Kings Cross.

14. A few days after the surgery, the plaintiff suffered a pulmonary embolism whilst still in hospital. He was transferred to St Vincent’s Hospital before returning to St Luke’s Hospital a few days later. The plaintiff said that after he was discharged from St Luke’s Hospital, he still was not feeling well. He said that he travelled to Normanton for a few weeks, where he lost a substantial amount of weight over a short period of time.

15. The plaintiff said that after returning to Sydney (at an unspecified time), he began working at South Western Sydney Area Health Service (“SWSAHS”). He described his role as “caring for older people, driving them around to outings on a bus”. He said that during that time he also obtained a second full time job working night shifts as a heavy machine operator at Huhtamaki Ltd (“Huhtamaki”).

16. The plaintiff said that throughout the 6-7 months following his return to work he developed a foul body odour and experienced severe sweating. In his affidavit of 21 October 2025, the plaintiff said: “Before the surgery, I would go to the toilet approximately once every day to a day and a half. Afterwards, I was going eight to ten, and sometimes up to fourteen, times a day”. He said that he found the situation “degrading and humiliating” and that he also had many toileting accidents.

17. The plaintiff said that he became aggressive, depressed and restless for no apparent reason. He said that he was unable to think straight, as he could before the operation. In his affidavit of 21 October 2025, the plaintiff said that he recalled thinking to himself: “I’m doing different things, making wrong decisions. My cognitives aren’t working properly”.

“My emotional state fluctuates. I sometimes break down and cry, and I have had thoughts of suicide. I have received treatment from the Mental Health Unit at Liverpool Hospital, where I was first prescribed Seroquel.

My cognitive issues also fluctuate and can be very bad. I have difficulties with my memory, concentration, and language. I forget things and my attention wanders. For example, I find it impossible to do paperwork, and on one recent occasion, I walked into the kitchen and urinated in the bin, which was very distressing. With language, I struggle to stay on topic and jump from one subject to another.

I believe I have experienced personality changes, including mood swings where I can become ‘very vicious.’

I separated from my wife approximately five months ago, around October 2018. Our relationship had been under strain for many years. We have two daughters, [MC] (aged 14 as at March 2019) and [GC] (aged 13 as at March 2019). [MC] lives with me in NSW Housing accommodation, and [GC] lives with her mother but stays with me two days a week.

My ability to manage domestic tasks depends on my energy levels. I do cleaning, laundry, and cooking, but I find it very draining and have to pace myself.

I am responsible for getting my daughter to school, but this is difficult. If I am not in the right frame of mind or lack the energy to drive her, she does not go.

My only income is the Disability Support Pension. I have significant difficulties managing my financial affairs due to my fluctuating cognitive function. A friend, Mr Kevin Cameron, helps me immensely. He has helped set up direct debits and has arranged limits on my bank accounts. I do not believe I could be trusted to manage a large sum of money on my own.”

45. In the same affidavit, the plaintiff said that he still believed that he was not getting sufficient nutrients from food due to ongoing malabsorption issues, and that he still required injections of vitamins B1, B2, B3, B6 and B12 every two weeks. He said that his thinking became clearer after these injections, and he would have more energy to do things for his children.

46. The plaintiff annexed three letters of advice from Mr Duncan Graham SC to his affidavit of 21 October 2025. The plaintiff said in that affidavit that he could not understand the content of those letters and that “all [he] understood was that Mr Graham finally considered that he found some connection between [his] injuries and what Dr Ritchie had done.” The plaintiff said: “before that date, I was not aware that there was such a connection because all the doctors I saw were telling me that there was no such connection and that I was just out of my mind.”

Cross-Examination of the Plaintiff

47. During the trial, the plaintiff was cross-examined by Mr Kelleher SC over 14 days. The cross-examination was, in a word, devastating. It substantially affected the plaintiff’s credibility, both as to his reliability and his honesty. The great majority of the plaintiff’s evidence in chief, including his history of employment, physical and mental health, relationships and treatment by Dr Ritchie, was demonstrated (with the use of contemporaneous records) to be plainly untrue.

48. Mr Kelleher invited me to make adverse credibility findings with respect to the plaintiff. I set out my determinations below. In making these adverse findings, I acknowledge the “fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom”: State Rail Authority of New South Wales v Earthline Constructions Pty Limited (in liq*)* (1999) 160 ALR 588; [1999] HCA 3 at [88] per Kirby J. I have endeavoured to limit my conclusions, “as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events”: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31] per Gleeson CJ, Gummow and Kirby JJ.

49. As the cross-examination of the plaintiff was so extensive, I record the following merely as examples of the plaintiff’s unbelievability.

50. The crux of the plaintiff’s case, as explained by Ms Ho in her opening, is that the plaintiff was “once a capable and hardworking man… reduced to a state of profound physical and cognitive dysfunction” by the BPD surgery and his subsequent treatment by Dr Ritchie. Indeed, at par 46 of his Evidentiary Statement, the plaintiff said:-

“This original operation has ruined my life since 1999, having lost my first relationship and access to seeing my daughter's growing every day, my careers and I even lost the great Australian dream of owning my own home. This is not forgetting how much it has altered me along the way as a person, a father and a husband in being able to function as a normal person would.”

51. The plaintiff’s evidence in chief had asserted that:-

52. he had been in full-time employment in the decade prior to the BPD surgery;

53. he had no significant physical or mental health issues other than his obesity prior to the BPD surgery;

54. the adverse impact of the effects of the BPD surgery and Dr Ritchie's failure to monitor or manage his symptoms resulted in him experiencing a rapid decline in his health within 12 months of the surgery;

55. he developed light-headedness post-surgery, resulting in a fall in 2001 which caused a back injury;

56. as a result of his symptoms, he had to quit both of his jobs in about 2004 and he has never been able to work again;

57. he has needed assistance from a friend, Kevin Cameron, and his tutors at various times to bring these proceedings; and

58. he requires ongoing assistance with managing both his daily activities and his financial affairs.

59. Each of these assertions was demonstrated to be false during the cross-examination of the plaintiff. I set out some relevant extracts of evidence that arose from cross-examination below. As I have said, this selection is non-exhaustive. It is not possible for me to set out each overwhelming and distinct illustration of the plaintiff’s unbelievability.

The Plaintiff’s History of Employment prior to the BPD Surgery

53. The plaintiff was cross-examined about the assertion in his Evidentiary Statement that he had worked for PICO from 1991 to 1999. He was shown a letter from his employer at PICO dated March 1992. The following exchange occurred (at T366-367):-

“Q. What that letter was a letter you took with you when you left employment with Pico on or about 6 March 1992. That's correct, isn't it?

A. When I left or - yeah - or thereabouts. They closed up about three or four 15 times, this company.

…

Q. The last paragraph reads, ‘It is with regret that we lose Don, and can highly recommend him to any employer. We wish him well for the future’. That is because you were leaving that work, weren't you?

A. I was leaving.

…

Q. But nonetheless, you put in that statement, 17 September 2012, that you worked with Pico for eight to nine years, didn't you? Eight to ten years.

A. Yeah, that's correct, but they closed up several times. I went back with them several times because they were opening and shutting under different names.

Q. If you had looked at this document in the preparation of your statement of 17 September 2017, you would have known, wouldn't you, that it was wrong to suggest that you'd been in full-time employment with Pico from 1990 up until your surgery with Dr Ritchie. That's correct, isn't it?

A. I was with Pico for many years. I don't - I can't recall, but I was with them. I - like I said yes a couple of times the other day, that maybe I seen 1,000/2,000 men come and go. So that just shows you the person I was.”

54. The plaintiff was asked about the demolition company that he was said to have managed between 1992 and mid-1994. The plaintiff accepted that he had run a demolition company during that period but denied that he had to cease doing so because of his weight and headaches. The following exchange occurred (at T189-192):-

“Q. One of the explanations why you sold [one tipper truck] and didn't renew the registration on the other was because by 1994 you weren't working in demolition anymore because of your weight and your headaches. That's correct, isn't it?

A. No, it's not.

Q. You were off work when you saw Dr Ritchie in January 1998. That's correct, isn't it?

A. It could have been off work. Yes. I could have been. Yeah. I could have been. I could have been on compo. I don't know. Yes.

Q. You could have been on, sorry, ‘compo’?

A. I don't know. I don't know. I don't know.

Q. When were you on compo?

A. No, I don't know. I said that--

…

Q. To use your words, were you on compo any time between 1989 and 1999?

A. Can't recall.

…

Q. It'd be a pretty memorable thing if you were receiving payments of compensation for being off work--

A. Correct.

Q. Correct?

A. Correct.

Q. But you say you have no recollection of those things between 1989 and 1999.

A. I don't, and that's the honest answer.

…

Q. You told Dr Ritchie, amongst other things, that you had had back trouble with severe low back problems, ‘his knees and his ankles also causing pain’. Do you remember telling Dr Ritchie that?

A. I recall I had back problems and - yes. I recall I had back problems.

Q. Do you recall telling him that you had back problems? That's Dr Ritchie on 28 January--

A. I recall - I don't recall, but I know I had back problems.

…

Q. That at the time you saw Dr Ritchie, you were on compensation for back problems; is that correct?

A. I know I jumped off a truck and - no, I recall this now because you're making me aware, but this is not something - I told you. I got a mental illness. Cognitive impairment. But I - you're bringing to my attention. I can remember jumping off the back of a truck, unloading something, and I had back problems. Yes.

…

Q. You were still on compensation payments for your back injury by February 1999, about a month before you went into surgery with Dr Ritchie. That's correct, isn't it?

A. I don't - I can't recall it, but whatever's there is there.”

55. The plaintiff was questioned about contemporaneous records which clearly established that the plaintiff experienced a back injury in November 1995 whilst employed through a labour hire company, Catalyst Recruit Systems. Those records showed that the plaintiff made a workers’ compensation claim in 1996 in respect of that back injury, and that he remained on workers’ compensation until the BPD surgery in 1999. I observe that this was not an insignificant omission by the plaintiff, and that it paints a markedly different picture of his employment history and his capacity to work prior to the BPD surgery than that advanced in his evidence in chief.

56. The plaintiff’s evidence in chief also omitted a public liability claim that he had made against Telstra after falling into a pit and injuring his ankle on 6 January 1998. With respect to that injury, the following exchange occurred in cross-examination (at T269-270):-

“Q. The fall you say you suffered on your street at Chipping Norton was on 6 January 1998. Does that record (as said) with your - do you remember that?

A. I remember falling on a Telstra pit. I was walking to get some weight off. Yes. I do recall that.

Q. So very early in 1998 you fell and you hurt your ankle.

A. Yeah.

Q. Did you break your ankle?

A. Twisted it really bad. Yeah.

Q. Was it correct that at that time you were receiving workers’ compensation payments paid for my Catalyst Recruit Systems?

A. Yeah. It was a hire company. Yeah. Work hire company.

Q. When we asked you if there were any - I asked you were there any other employers--

A. Well there was the truck driving. They put you out to different organisations to do driving or work.

Q. Is that who you were working with when you say you jumped off the back of the truck and hurt your back?

A. Yes, yeah. As far as I - yeah, as far as I can recall, yes.

Q. Is it correct that as at 6 January 1998, that's the day you had the fall in the Telstra pit –

A. Yeah, it was at night.

Q. At night.

A. Yeah.

Q. You had been on workers’ compensation payments continuously from November 1995 to 6 January 1998.

A. Yeah.

Q. You had been out of work for the best part of two years by the time you had your fall in the Telstra pit?

A. You could say that, yeah. You've got the evidence in front of you. I didn't deny you the evidence. You've got it in front of you. You can go through it as much as you want.

Q. Do you say, as you sit here today, that you yesterday couldn't remember that you had fallen in a Telstra pit, hurt your ankle and gone to see solicitors and sued Telstra?

A. So you said I said I didn't recall that yesterday?

Q. Yes.

A. That's correct.

Q. You didn't recall that yesterday?

A. No. I told you, I've got a - I've got a brain injury - a mental problem, I've got an impairment. I told you.”

The Plaintiff’s Physical and Mental Health prior to the BPD Surgery

57. The thrust of the plaintiff’s evidence in chief was that he had no significant mental or physical health issues prior to the BPD surgery in 1999. His evidence in chief omitted the significant back injury which he had suffered in 1995, and which had resulted in him receiving workers’ compensation payments between 1996 and 1999. It also omitted a history of chest pain, breathlessness and fatigue, which contemporaneous records establish that he sought treatment for from various medical professionals between 1997 and 1999.

58. The plaintiff was asked in cross-examination about his mental health and whether he had ever been prescribed antidepressant medication prior to the BPD surgery. The plaintiff denied continuous use of antidepressants or any history of “major depression”. The following exchange occurred in cross-examination (at T212):-

“Q. You weren't taking any depression-related medication in 1998, Mr Campbell?

A. They might have tried me on it but I've never had major depression, mate. Never had major - depression I could dust off.

Q. You say, ‘might have tried you on it’, what do you mean by that?

A. No, I don't know. I don't recall it.”

59. Records from Liverpool Hospital tendered during cross-examination establish that the plaintiff was admitted to the hospital in 1997, complaining of chest pain. The records indicate that at the time he was admitted, the plaintiff was taking 40mg of Aropax (an antidepressant) once daily. Other medical records and referrals between 1997 and 1999 record that the plaintiff had a history of depression and anxiety and was taking antidepressants. The following exchange occurred in cross-examination (at T317):-

“Q. When Dr Wong referred you to Dr Ritchie at the end of 1997, he provided a history that you had anxiety and depression; correct?

A. (no verbal reply)

Q. That was something you knew about yourself at the end of 1997; correct?

A. I don't recall.

…

Q. And you saw Dr Hauser, that's your endocrinologist you saw from time to time?

A. I remember seeing Dr Hauser.

Q. At the end of 1998, and your Honour, this note is found at page 78, your Honour. You saw Dr Hauser and he's recorded a note that you told him you were on Endep?

A. I recall Endep, but I don't--

Q. And Endep was an antidepressant medication, wasn't it?

A. I don't know, I think Endep's also used for sleep, they're used for different - some of these medications are used for different - different things, sleep.

Q. So you understood the difference between Aropax that might be prescribed for your depression, and Endep that might be prescribed for your sleeplessness; correct?

A. I take Endep even today for sleep - going to sleep.

Q. And some three weeks before your surgery, you told Dr Newman you were still on Endep; correct?

A. I don't recall, but--

Q. See, you'd had a long history of depression leading up to surgery, hadn't you?

A. Depression comes and goes, it doesn't stay with you.

Q. You'd been taking 40 milligrams of Aropax daily for a long time; correct?

A. I don't recall, mate.”

60. Contemporaneous records establish that the plaintiff had been suffering from depression for at least two years prior to the BPD surgery, and that he had been taking antidepressants throughout that time. This, again, paints a very different picture than that painted by the plaintiff in his evidence in chief.

The Plaintiff’s Health and Employment after the BPD Surgery

61. The plaintiff gave the following evidence about his health and employment following the BPD surgery:-

62. About 6 to 7 months after the surgery (that is, between September and October 1999), the plaintiff experienced a dramatic decline in his cognitive function, and began to experience extremely foul body odour and frequent odorous bowel movements up to 8 times a day. The plaintiff said that he also began drinking up to 6 alcoholic drinks a day, which he had never done prior to the BPD surgery.

63. The plaintiff began working full time for SWSAHS as a bus driver soon after the surgery. Contemporaneous records establish that the plaintiff commenced this role on 6 April 2000 and ceased it on 20 August 2004.

64. Soon after commencing his full time role at SWSAHS the plaintiff began a second full time job working nights as a heavy machine operator at Huhtamaki. Contemporaneous records establish that the plaintiff commenced this role some time between late 2000 and 2001 and ceased it, at the earliest, in November 2004.

65. The plaintiff gave evidence that he ceased both roles in 2004 “as a result of [his] poor mental and physical health”. The effect of the plaintiff’s evidence was that he has been unable to work since that time.

66. Over the course of the plaintiff’s employment at both SWSAHS and Huhtamaki, no complaint is recorded of the symptoms that the plaintiff was allegedly experiencing from late 1999. Indeed, for much of the period between April 2001 and November 2004, the plaintiff was working up to 16 hours a day. This is itself inconsistent with the plaintiff’s report of his health at that time.

67. The plaintiff was cross-examined about his evidence that he injured his back during his work at SWSAHS in 2001, while assisting a patient to the toilet. In his Evidentiary Statement, the plaintiff said that he put this fall “down to [his] light headiness that [he] also suffered post operation”.

68. Contemporaneous documents, including the handwritten notes of GP Dr Khan (who examined the plaintiff on the day of the injury), the “Early Notification of Injury Report” and the employee compensation claim forms record that the plaintiff’s fall had occurred when a patient attempted to get up from the toilet and the plaintiff had attempted to break the patient’s fall. There is no mention of light-headedness in any of the contemporaneous documents relating to that injury. The following exchange occurred when the plaintiff was cross-examined on those documents (at T373-374):-

“Q. This was your chance, Mr Campbell, to tell your employer how your injury at work happened; correct?

A. Like all this says - like I said to youse, I can't stop anyone from writing whatever, but they would've probably wrote it in their terms.

Q. This was your wife writing it for you, wasn't it?

A. Well, someone's - yeah, it's my wife or someone's written it.

Q. Do you say it's not true that you were assisting a client with toileting, and that whilst you were trying to help that client, your legs gave way a couple of times?

A. No, I disagree.

…

Q. Do you say that the version in this document signed by you on 31 August 2001 that says your injury happened while you were assisting a client in toileting, that you were unable to support that client's weight, and your legs gave out several times, causing a back injury, was not true.

A. No, that's true.

Q. Do you agree with me that in your description written for you on what you told the person, there is nothing said about your injury being caused by you being dizzy? Correct?

A. Like I said to you, I can't stop people writing whatever they just write, and then - that's what happened to me. I got dizzy. There was a lot of problems - a lot of problems. Lack of nutrients. There were so many problems.”

65. The plaintiff agreed in cross-examination (at T381-382) that he had an x-ray and CT scans of his back following this injury and that on 24 August 2001, Dr Khan told the plaintiff that those scans revealed a wedge fracture at T11 and a disc prolapse at L4-L5 and at L5 and S1. These were the pre-existing injuries sustained by the plaintiff in 1995, for which he had received workers’ compensation prior to the BPD surgery. The following exchange occurred (at T382-383):-

“Q. Dr Khan reported to you that the CT scan showed a disc prolapse at L4, five, and L5-S1. Remember him telling you that?

A. Yeah, I know - I had problems, yeah.

Q. Do you remember Dr Khan telling you some four days after your fall at work that the CT scan you'd undergone had shown a disc prolapse at L4-L5, and at L5 and S1.

A. I remember L4-L5, but I don't remember anything else.

Q. Did you tell Dr Khan not to worry about those, those were old injuries you'd suffered back in 1995?

A. No, I don't recall.

Q. Dr Khan also has told you you had a wedge fracture at T11.

A. Yeah, I'm not - don't--

Q. Did you tell Dr Khan, ‘Don't worry about that. That's, again, an old injury’?

A. No, I don't recall, mate.

Q. It would've been important to tell Dr Khan each of those were longstanding injuries; correct?

A. That'd be correct, but when you've got a chemical imbalance in the brain, you could say anything.

Q. Or, Mr Campbell, you wanted to make a workers’ compensation claim and didn't want to tell your employer that you'd had previous injuries to your back; correct?

A. No. That's not correct.”

66. This cross-examination revealed, first, that it was not true that the plaintiff’s fall was related to any adverse symptom of the BPD surgery and second, that the plaintiff had omitted information that would have been unfavourable to his workers’ compensation claim.

67. The plaintiff was also cross-examined about his assertion that he ceased his employment due to his “poor mental and physical health”. This evidence was inconsistent with the plaintiff’s reports (contained in the contemporaneous records at the time he ceased employment with SWSAHS) that he left SWSAHS due to alleged bullying and harassment. The plaintiff brought a further workers’ compensation claim for stress, depression and anxiety caused by this alleged bullying and harassment. Contemporaneous records suggest that this claim was denied by SWSAHS.

68. Further, contrary to the plaintiff’s evidence that he had ceased all work after 2004, contemporaneous records establish that from March 2005 to November 2005, the plaintiff was employed full-time (first as a trainee and then as a leading hand) at the Zinifex Port in Karumba, Queensland. His job was to oversee and participate in the loading and maintenance of an ore barge at that port. This was not an insignificant omission by the plaintiff and is fundamentally inconsistent with his assertion that from 2004 he had become too sick to work as a result of the BPD surgery.

69. A feature of the plaintiff’s personal history that was entirely omitted from his evidence in chief was his many claims for workers’ compensation, total and permanent disability, National Disability Insurance Scheme (“NDIS”) supports and superannuation. In addition to the workers’ compensation claim against Catalyst Recruitment Systems in 1996, the public liability claim against Telstra in 1998 and the multiple workers’ compensation claims against Liverpool Hospital between 2001-2004, contemporaneous records suggest that the plaintiff made the following claims:-

70. A disability support pension from Centrelink in 2004, which was granted. The plaintiff was cross-examined on whether he had alerted Centrelink that he was receiving income while working in Karumba in 2005. The following exchange occurred (at T981-982):-

“Q. You started receiving payments for a disability support pension straightaway, didn't you?

A. Yeah.

Q. You kept receiving those pension payments while you were working up in Queensland, didn't you?

A. No, I didn't.

Q. You didn't? Did you tell Centrelink that you were working up in Queensland?

A. Centrelink knew all about me, mate. Don't--

Q. How--

A. Don't tell me--

Q. How did they know that?

A. Come on. Don't sit there and try and picture me as some cheat. I don't - I disagree on that.

Q. When do you say you told Centrelink about your job up in--

A. Centrelink knew everything about me. Even now, my daughter pays for rent in the house. My daughter lives with me. I've always told Centrelink and Housing Commission. Don't give me--

Q. When in--

A. Don't make out that--

Q. --2005 did you tell Centrelink you were working in Queensland full time, earning around about $2,000 a fortnight?

A. Centrelink knew everything.

Q. When did you tell them?

A. Whenever's there, mate. Whatever--

Q. When did you tell them?

A. I don't recall, but Centrelink knows everything, mate. Don't get out and try and make a little picture and - bullshit.”

2. A claim of total and permanent disability with First State Super in 2006 in respect of his employment at SWSAHS, claiming that he was unable to work due to major depression and a reading disorder. In the First State Super report on the plaintiff’s incapacity, the “date employment ceased” is recorded as August 2004.
3. A claim of total and permanent disability with MLC insurance in 2017 in respect of his employment at Huhtamaki. A letter from the plaintiff’s solicitor, Firths Lawyers, indicates that the claim was successful and that the plaintiff was to receive $90,989.27. On the MLC claim form, the “date employment ceased” is recorded as May 2005. The plaintiff was cross-examined on the difference between the dates given to the two different insurers. The plaintiff was given a certificate pursuant to s 128 of the Evidence Act with respect to his evidence on this issue. The following exchange occurred in cross-examination (at T906-905):-

“Q. You knew, as at the time you signed the claim form with MLC in August 2017, that to say you couldn't work since 2004 to one insurer being First State Super since 2004, and to another insurer, being MLC, that you had to stop work in 2005 because of an injury to a different job, that those two positions couldn't be reconciled; correct?

A. Yeah, I'm not comprehending.

Q. One of them says, ‘I stopped working in 2004 because I could no longer work’; correct?

A. Yep.

Q. That's what you were telling FSS. The other one says, ‘I had to stop working in 2005 because something different happened to me at a different job’; correct?

A. No - that's what's there, yeah.

Q. For the second one to be true, that is, ‘I was able to work in 2005’, the first one that, ‘I was unable to work in 2004’, has to be a lie, doesn't it?

A. I disagree. I couldn't work. I tried to work. That's the truth. I tried to work. I tried to get help and there was no help. I didn't know what was going on completely. I didn't know what was going on. Why would I take my wife from Holsworthy and give birth in Liverpool hospital to Cairns in a Red Cross unit? That's why I was making wrong decisions and that's the honest truth. Why would someone live in Sydney go all the way to the Gulf of Carpentaria two months later and his wife gives birth in a Red Cross unit in Cairns?

Q. Firstly, there's a number of reasons you might have done that. One is you didn't want anyone to know you were working, so you moved as far as way to a place you could get a job that no one would know where you are; correct?

A. Incorrect.

Q. That, as you told Dr Newlyn, you had a lot of debts in Sydney and you needed to get away from people you owed money. That'd be another reason to move to Queensland, wouldn't it?

A. Incorrect.

Q. Thirdly, it would have been in your financial benefit to lie to MLC so you could make two claims for total and permanent disablement instead of one; correct?

A. Incorrect.

Q. That's what you did, isn't it? You knew that you could get a financial advantage out of making two claims for TPD by saying to different insurers, ‘I stopped working at different dates’?

A. Incorrect.

Q. You did it consciously, you did it yourself?

A. Incorrect.

Q. You didn't rely upon the solicitors. You knew yourself you were doing it?

A. Incorrect.

Q. Because you were keenly aware of your rights at all times, weren't you, Mr Campbell?

A. Incorrect.”

I note that in her closing submissions, Ms Ho submitted that these total and permanent disability claims were corrected to reflect the plaintiff’s actual date of cessation of employment, being November 2005. She said:-

“And the date of cessation of employment, which was November 2005, that has been informed. All of this application was informed that the cessation of employment was November 2005. Initially, there were different date put on, but they were corrected. We don't know the roots in detail, how do we correct it, why do we correct it, but they were corrected by the solicitor, by the lawyer, by the doctor, whatever.”

There was no evidence that a “correct” date was provided to the insurers and it was unclear from Ms Ho’s submissions how, when, or indeed if, these corrections ever occurred.

4. A claim of total and permanent disability with SunSuper in 2018, with respect to the plaintiff’s employment in Karumba, Queensland. A letter from Firths Lawyers to the plaintiff, dated 4 August 2020 (which was in evidence), indicated that this claim was successful and that the plaintiff was to receive $35,771.87 less fees.
5. A request to access the NDIS in March 2020. Contemporaneous records indicate that the plaintiff’s NDIS plan was approved and that he began to receive NDIS funding from May 2022. At the time that he first received NDIS funding, the plaintiff’s plan provided for total funded supports of $45,093.38. Contemporaneous records indicate that the plaintiff’s NDIS funding was increased as follows:-

(a) On 2 November 2022, the amount of total funded supports was increased to $159,477.96. (b) On 4 October 2023, the amount of total funded supports was increased to $405,807.39. (c) On 28 June 2024, the amount of total funded supports was increased to $415,426.80.

The plaintiff denied that these increases were a result of him requesting more funding from the NDIS. Rather, and extraordinarily, the plaintiff claimed that these increases were a result of NDIS coordinators and support workers “rorting the system”. One example of these assertions occurred in cross-examination (at T1052):-

“Q. On 28 June 2024, or some time shortly beforehand, you made a request to vary your NDIS plan. About a year ago, you put in an application for review of your NDIS plan. Do you remember that?

A. No. That's incorrect. I never put in a - the workers would come down and say, ‘We're going to put in something for you’, or something, and they'd get you to sign a paper. I'm dyslexic, so I wouldn't have read it, mate.

…

Q. It wasn't varied downwards, was it, Mr Campbell?

A. I don't know what they did, mate. I know I signed - I never filled any forms, but I signed a couple of applications or something for some lady who'd come to my place.

Q. Do you again suggest to his Honour, like you did with the 2023 plan, that some document was simply put in front of you by someone associated with the NDIS, they said, ‘Can you sign this?’ and you just did, without understanding what it was?

A. That's correct.

Q. That's just a lie, isn't it, Mr Campbell?

A. It's not.

Q. Are you in the habit of just signing things that you haven't read and don't understand?

A. That is probably yes. Correct. I just sign things because I - people don't understand my impairment.

Q. Do you say that this person was one of these rorters who you thought infested the NDIS system?

A. Yeah, you could say that. Yes.”

6. The plaintiff’s current plan, which provides total funded supports of $415,426.80, is set to continue until 30 April 2027. It includes, among other things, funding for “Assistance with daily life”, “Assistance with Social, Economic and Community Participation” and “Recurring transport”. The plaintiff was cross-examined on bank records which suggested a level of activity and capacity that was inconsistent with his NDIS funding. The plaintiff’s response to this cross-examination was to continuously assert that he had tried to reduce his NDIS supports. The following exchange occurred in cross-examination (at T946):-

“Q. It doesn't marry up, does it, Mr Campbell, that you're a person you can go out nearly every single day to do what you want, to do what you like and spend as you see fit, but on the other hand to say, ‘I forget and I'm so unmotivated. I can't clean my house’, like you've told the occupational therapists in this case. That's right, isn't it?

A. No, that's incorrect.

Q. You present yourself to the occupational therapists in one way, which is a person who's not able to look after themselves properly; that's right, isn't it?

A. No, incorrect.

Q. Then during the day when you think no one's watching, you're out there going to clubs, pubs, restaurants and shopping for yourself; that's right, isn't it?

A. I'm not denying that.

…

Q. You don't need anyone to take you out into the community, do you, Mr Campbell? You don't, do you?

A. No, no.

HIS HONOUR

Q. You don't?

A. Your Honour--

Q. Yes or no?

A. Not really, your Honour. I had to pull up NDIS, your Honour. Some of them are - they provide good service. NDIS is a great organisation, but I had to pull them up a little bit. They were just - they were just milking the system, your Honour, and I said--

KELLEHER

Q. How were they milking the system, Mr Campbell?

A. Well, they were there every day, you know, and I didn't want them there, your Honour. I can - I want to live on my own. I'm grateful what NDIS do with the cleaning and the few things they do for me. Psychologists, things like that, and I'm very grateful. But I had to slow them up a bit, your Honour. And NDIS rang me and I said, ‘Look, you need to slow them up’, that's the truth.”

70. It is not necessary to detail further the omissions and inconsistencies in the plaintiff’s evidence that arose during the course of this lengthy cross-examination. To the extent that they are relevant, they have informed the facts I have found below. I have summarised this cross-examination largely by way of background to my findings concerning credibility, to which see below.

Mark Camilleri

71. An affidavit of Mark Camilleri sworn on 7 December 2022 was read. He was cross-examined by Mr Kelleher.

72. Mr Camilleri first met the plaintiff in about 2006 or 2007 when the plaintiff moved into the property next door to him. Mr Camilleri stated that for the first few years, the plaintiff “kept to himself most of the time”. He said that the neighbours in the cul-de-sac would chat during the evenings, but that the plaintiff did not participate.

73. Mr Camilleri said that he noticed the plaintiff behaving oddly, such as mowing his lawn until he reduced the grass to dirt. Mr Camilleri remarked that the plaintiff struggled to hold a simple conversation and regularly forgot what he was saying mid-sentence.

74. Mr Camilleri said that in 2008 he noticed that the plaintiff’s health and wellbeing seemed to improve “a great deal”. He said that the plaintiff would engage in longer conversations with him and that he seemed to have significantly less difficulty remembering the questions asked of him and less delay in responding to them. In his affidavit of 7 December 2022, Mr Camilleri stated:-

“Since Donald's health improved, on his ‘good’ days he engaged in activities in and around the house to maintain the property and yard. I was surprised to see how knowledgeable Donald was regarding his tools and his use of them. Donald would also complete household chores and provide care for his children which included walking his youngest daughter to school.”

75. Mr Camilleri was cross-examined by Mr Kelleher on these observations. Mr Camilleri confirmed that he observed that when the plaintiff was applying himself to his trade duties, he was able to apply himself in a logical, coherent manner to achieve the task he set out to perform.

76. Mr Camilleri said in cross-examination that over the past 10 years, he would have a meal with the plaintiff at a restaurant approximately once a month. He said that they would generally go to an Asian restaurant in Liverpool, and that the plaintiff would order soup with noodles and beef. Mr Camilleri said that, although he had observed the plaintiff vomit “a couple of times” after eating this meal, generally he would not vomit. Mr Camilleri said that on one occasion, they went for fish and chips.

77. Mr Camilleri confirmed that in the middle of 2020, he and the plaintiff visited Birkenhead Point with Mr Camilleri’s mother. Mr Camilleri said that on this occasion he drove. They did not park in the paid parking area. They parked on the nearby streets.

78. Mr Camilleri was also cross-examined about the plaintiff’s assertion that Dr Lisa Thompson Brown (a psychiatrist who gave evidence on behalf of the defendant) had refused to allow Mr Camilleri to accompany the plaintiff to an appointment in Greenwich in 2021. Mr Camilleri said that he did not recall that happening.

Kevin Cameron

79. An affidavit of Kevin Cameron sworn on 1 December 2022 was read. He was cross-examined by Mr Kelleher.

80. Mr Cameron said that he first met the plaintiff in about 2010, when their daughters commenced school together. He said that the plaintiff was “stand-offish, kept to himself and didn’t really talk to anyone”. Mr Cameron said that when they eventually did start talking, he noticed that the plaintiff’s conversational skills were very basic. The plaintiff would have difficulty finding the right words and would often pause for a long period of time.

81. Mr Cameron said that over the years, he and the plaintiff became close friends. He said that the plaintiff had told him of his health issues and brain injury which the plaintiff said was the result of an operation that he had in 1999. The plaintiff also told Mr Cameron that the operation had led to his first wife leaving him, the loss of his two jobs and ultimately the loss of his house as he could no longer afford the mortgage.

82. In about 2017, Mr Cameron suggested to the plaintiff that he should make a disability claim through his superannuation. He said that he helped the plaintiff make the application for a total and permanent disability through Firths Lawyers. He said that he helped the plaintiff find a lawyer, attended all appointments with him, filled out questionnaires and forms on his behalf, spoke for him and took time to explain things to him.

83. In cross-examination, Mr Cameron accepted that the plaintiff would have had communications with Firths Lawyers by himself, and that the plaintiff never asked him to make phone calls to Firths Lawyers on his behalf. Questions were posed to Mr Cameron with respect to his refusal to act as a tutor for the plaintiff. The following exchange occurred (at T1234):-

“Q. So as at 2013, someone had told you enough about how Don presented himself that you could be a person who could be his legal representative in his case against Dr Ritchie, correct?

A. I don't believe I'm a legal representative or just a friend helping.

Q. But did anyone explain to you what the role of a tutor was?

A. It was to be the mouthpiece, basically, and obviously, and my understanding is, responsible for costs.

Q. So to be the mouthpiece. Is that because there was some suggestion that Don was incapable himself of communicating what he needed to communicate to lawyers?

A. The day I met Viola, and again, it was before I knew Don, she told me that Don couldn't put two words together.

Q. But you knew Don could put more that two words together. That's right, isn't it?

A. Yes.”

84. It was put to Mr Cameron that, as he only met the plaintiff after he had the BPD reversal surgery, there was in fact nothing wrong with the plaintiff’s ability to communicate at the time that Mr Cameron met him, which Mr Cameron denied.

85. Mr Cameron was asked about the plaintiff’s capacity to diagnose a problem with his car, and his ability to purchase a spare part and install it in his car. Mr Cameron said that he had showed the plaintiff how to search YouTube for instructional videos. He said that he knew that the plaintiff had a transmission cable that was slipping. He said that “[the plaintiff] googled it. He went out and got the part, come back and fixed it”. Mr Cameron also said that the plaintiff was able to fix the brake pads on his car on at least one occasion.

86. Mr Cameron stated that he had been an ongoing support person for the plaintiff, particularly in administrative matters and in organising the total and permanent disability claims. He kept a number of documents (or copies of documents) relating to the plaintiff’s finances and claims. He also loaned the plaintiff between $7000-$8000 to pay for legal expenses related to this case.

87. Mr Cameron said that after the plaintiff had received his total and permanent disability payouts, he assisted the plaintiff to put a limit on his St George Bank account to “safeguard” the plaintiff. Mr Cameron said that he had access to the plaintiff’s account through internet banking. He stated that between one to six months after putting on the “safeguard”, he checked the account and noted that “thousands and thousands” of dollars had been spent. He asked for an explanation from the bank, who informed him that the plaintiff had been taking out money over the counter.

88. In cross-examination, Mr Cameron said that the plaintiff could do his own shopping and drive himself around Sydney at will, and that he recalled an occasion when the plaintiff drove to Jindabyne with his daughters, slept overnight in the car and drove back the next day. He estimated that this occurred in about 2014.

Maryann Campbell

89. Affidavits of Maryann Campbell affirmed on 1 December 2022, 2 October 2025 and 13 October 2025 were read. She was cross-examined by Mr Kelleher.

90. In her affidavit affirmed on 1 December 2022, Ms Campbell said that after she and the plaintiff married in July 2003, the plaintiff “became a different person”. He would become angry for no apparent reason and was getting depressed. She said that he eventually told her that he suffered bad body odour and malodorous and uncontrollable bowel movements as a result of an operation that he had in 1999.

91. By the end of 2003, Ms Campbell said that the plaintiff’s situation had deteriorated. By the end of 2004, the plaintiff was “an absolute mess”. The plaintiff was engaged in a dispute with his ex-wife over child support payments, and Ms Campbell helped him approach a law firm to reduce the child support payments. She said that this dispute with the Child Support Agency continued for a number of years.

92. Ms Campbell said that the plaintiff eventually lost his jobs and the couple moved to Queensland so that Ms Campbell could get some help caring for their kids. They moved back to Sydney in about early 2006. Ms Campbell said when the plaintiff got sick, she had to do all of their housework and take care of their kids. She said that she would have to force him to take showers and to get out of bed.

93. In her affidavit affirmed on 2 October 2025, Ms Campbell stated that she wished to make some corrections to the plaintiff’s Evidentiary Statement of 2017. As the plaintiff stated in his affidavit of 1 October 2025, Ms Campbell said that she had also subsequently remembered that the plaintiff attended the initial appointment with Spinks Elphick Ho in 2009 by himself. She said that it was only after his BPD reversal surgery that she began to assist the plaintiff with lawyers and agreed to be his tutor, which was in about mid-2010.

94. Ms Campbell stated that in about 2011, she became overwhelmed with the situation and nearly had a nervous breakdown. Ms Campbell said that the plaintiff’s physical stamina had improved, but that she noticed little improvement in his mental ability. She called Ms Ho and informed her that she no longer wished to act as the plaintiff’s tutor, and she terminated the costs agreement between them. Ms Campbell said that she was not present for the plaintiff’s meetings with Ms Ho in 2013, but that she understood that he attended with his friend Kevin Cameron and a person from the Brain Injury Association.

95. In her affidavit of 2 October 2025, Ms Campbell said that in 2016 the situation improved between her and the plaintiff, and she agreed to act as his tutor again. She said that, because of this, Ms Ho was able to retain counsel to act for the plaintiff in these proceedings. Ms Campbell said that, as time went on, she found it too difficult to live with the plaintiff. The couple separated “peacefully” and Ms Campbell ceased her role as tutor in 2018. Ms Campbell and the plaintiff divorced in 2019.

“Q. Just looking at your affidavit of 1 December 2022 at page 38, given the answers you've just given to his Honour, does that affidavit at all reflect your memory of events or does it represent what someone else has written for you and that you have simply signed?

A. Someone else's input.

Q. You were prepared, were you, Ms Campbell, to swear an affidavit that had been written up for you without checking whether it was true or correct?

A. Yes.

…

Q. I'll break it down. Seeing as you didn't read it very much before signing it, correct? Didn't read it before signing it, correct?

A. Yes.

Q. That it was prepared by someone else for you, it can't represent your memory, can it?

A. Yes.

Q. It doesn't represent your memory at all, does it?

A. Yes, it doesn't.

Q. Yes, it doesn't. This is just a document that had been prepared for you that you were prepared to sign without any further concern, correct?

A. Correct.

Q. Who prepared it? Do you know?

A. Maybe the solicitors.”

98. Ms Campbell gave further evidence in the course of cross-examination. This evidence relevantly included that:-

99. The plaintiff did not start presenting with problems to Ms Campbell until about the middle of 2004 and he had no difficulties with speaking up to that time (T1323);

100. Whilst she knew that the plaintiff would gamble on horses, Ms Campbell did not think the plaintiff was making very big bets (T1313-1314);

101. In 2006, the plaintiff was looking after their two daughters at home approximately two days a week (T1315); and

102. Ms Campbell was unaware that the plaintiff had retained lawyers in 2005 (T1327-1328).

103. Ms Campbell said that when she and the plaintiff separated, no financial settlement took place because he told her that he had no money. Ms Campbell was required to pay child support to the plaintiff because she was employed. The following exchange occurred in cross-examination (at T1333-1334):-

“Q. Did you think about getting child support from Don?

A. No because he has no work.

Q. He has no work and he told you he had no money. That's right?

A. Yes.

Q. But didn't tell you that he'd got possibly as much as $170,000 out of three payouts?

A. No, I didn't know that one.

Q. Did that shock you to find out that he hid that from you?

A. It's shocking me now.

Q. Because you needed help and assistance, didn't you?

A. Yes.

Q. That fits with your understanding of Don, doesn't it, that he's not a very honest person?

A. He is not from the beginning. He should have told me everything. But this one I just read now so I'm a bit of a shock here. I'm the one paying child support because he took my kids.

Q. You're paying child support for Don to look after--

A. For [MC]. Because he kept [MC] and I got [GC] so I have to pay child support for [MC].

Q. How long have you been paying child support for?

A. Until she turned 18.

Q. When did you start paying it?

A. We separated in 2018 so from 2018, sometime. Until she turned 18.

Q. When was that?

A. She turned 18 in - she was born 2004.

Q. So 2023?

A. Yes, something like that. And then when [MC] finished with child support, he gave me [MC] and he took [GC] so I can pay child support for [GC].”

100. Ms Campbell was also cross-examined about her evidence in relation to her role as the plaintiff’s tutor. It was put to Ms Campbell that she had almost no contact with the plaintiff’s solicitors in 2010-2011 or in 2016-2018 and that it was in fact the plaintiff who was instructing the solicitors throughout the proceedings. This was accepted by Ms Campbell. Ms Campbell agreed that she had never had any actual involvement in the case.

101. Ms Campbell was re-examined by Ms Ho. This re-examination concerned only the circumstances in which she had signed the affidavits (that is, whether she had signed them in person or electronically). There were no questions concerning Ms Campbell’s relationship with the plaintiff or her role as tutor in these proceedings.

Dr James Ritchie

102. The defendant adopted his Evidentiary Statement dated 1 August 2025 and was cross-examined by Ms Ho.

103. The defendant retired from bariatric surgical practice in 2013. Prior to retirement, the defendant had rooms at Macquarie Street in Sydney and in Eastwood, and had visiting rights at hospitals including St Luke’s, Prince of Wales, Strathfield and Sydney Private Hospital. It was his usual practice to consult two days a week and operate two days a week.

104. The defendant said that he had no independent recollection of his treatment of the plaintiff. His evidence was therefore based on his usual practice and the contemporaneous records which were available to him. The defendant said that the records which were available were not a complete copy of his records for the plaintiff. He said that it was his usual practice to dictate letters following consultations, which would be typed by his secretary and retained on the computer. However, the rest of his records were generally only kept in hard copy form, and his hard copy records were destroyed after his retirement from practice in about 2013. At that time, his practice (including his records) was taken over by Dr Clement Tsang who, in 2021, destroyed the records of all patients who had not attended the practice in over 8 years. Dr Tsang retained only six pages of correspondence relating to the plaintiff. Other documents which were relied upon by the defendant were produced pursuant to notices and subpoena’s served upon the plaintiff and others. I observe that in about 2011 or thereabouts, Spinks Elphick Ho had requested the defendant’s complete file with respect to the plaintiff, which he provided to that firm expeditiously. In about 2013, Spinks Elphick Ho provided the plaintiff with that complete file when he terminated his retainer with them. It is not in dispute in these proceedings that, for whatever reason, the plaintiff has failed to provide the defendant with the full copy of the file that was produced to his lawyers in about 2011.

105. The defendant said that he commenced performing bariatric surgery in about 1980 and first commenced performing BPD surgeries in 1989. He said that BPD surgery was different to Roux-en-Y Gastric Bypass (“RYGB”) surgery in that BPD surgery relies on the malabsorption of fats to help with weight reduction, whereas RYGB surgery is a more restrictive operation which uses gastric restriction to reduce eating. The defendant said that BPD surgery was the more commonly performed procedure at that time.

106. The defendant explained in oral evidence that BPD surgery causes weight-loss by diverting bile and pancreatic juices from the main food stream. When the bile and pancreatic juices are diverted, food only has a limited time to be digested and less fats and starches are absorbed.

107. The defendant said that the nature of BPD surgery, which aims to cause malabsorption of fats, means that it is very important that patients adhere to a strictly low-fat diet after surgery. Otherwise, they would have frequent bowel motions that would be malodorous because of the undigested food. The defendant said that it was his usual practice to explain to a patient what a low-fat diet entails, which was the reason that he had dieticians in his practice.

First Consultation on 18 January 1998

110. The defendant said that the plaintiff first consulted him on 18 January 1998. The plaintiff was referred by his GP Dr Mark Wong. The referral stated:-

111. The plaintiff’s weight was in excess of 140kg and had been fluctuating over the previous two years;

112. The plaintiff had a history of lower back pain, gastroesophageal reflux, helicobacter infection, depression and anxiety and Non-Insulin Dependent Diabetes Mellitus (“NIDDM”); and

113. The plaintiff had seen another surgeon in Liverpool who advised gastric stapling, and Dr Wong asked the defendant’s opinion in relation to gastric banding.

114. The defendant said that when the plaintiff booked this first consultation, he would have been directed to the defendant’s website which contained information regarding BPD and gastric banding surgeries. The plaintiff would have been asked to review that information prior to attending the first consultation.

115. The defendant said that prior to the first consultation, the plaintiff had completed a questionnaire form (which was in evidence). The defendant said during the first consultation he examined the plaintiff who measured 148kg in weight and 178cm in height. The defendant also obtained a history from the plaintiff. The plaintiff told him that:-

116. His general health was good, but that he was developing borderline diabetes.

117. He had severe lower back problems and pain in his ankles and knees. He reported that at the time of the consultation he was receiving workers’ compensation for his back problems.

118. He had gastro-oesophageal reflux and was taking Losec, but had no history of ulcerative oesophagitis.

119. He did not smoke or drink, but was eating large meals and snacking voraciously, particularly during the evening. On questioning, he denied having a sweet tooth but said that he was eating large amounts of chips, sandwiches, hamburgers, biscuits and cakes. He reported that he ate more when under stress but was never bulimic.

120. He had a family history of gross obesity in his grandparents and members of his immediate family were overweight but not grossly so.

121. The defendant said that he did not believe that the plaintiff mentioned suffering from anxiety or depression at the first consultation. However, even if he had done so, the defendant said that it would not have affected his recommendation for surgery, given the evidence that weight reduction improves depression.

122. The defendant said that he had a discussion with the plaintiff regarding gastric banding, including the technique for the surgery and the possible intra-operative and post-operative complications. He explained to the plaintiff that if he chose to undergo gastric banding surgery, it would cause a massive change to his lifestyle and that he must be prepared to eat small amounts of food which must be chewed thoroughly. The defendant informed the plaintiff that he would have to avoid sweet foods at all times and that continuing to eat sweets after the operation would result in a failure to lose weight.

Second Consultation on 26 October 1998

115. The plaintiff was referred to the defendant again in September 1998, as he was suffering from reflux oesophagitis for which he was taking 20mg of Losec twice daily as treatment. During their second consultation on 26 October 1998, the defendant and the plaintiff discussed the plaintiff’s significant reflux and the gastric banding procedure.

116. The defendant said that during this discussion he:-

117. explained to the plaintiff that in his experience, significant reflux can cause serious problems after a gastric banding procedure and the aggravation of reflux requires removal of the band;

118. informed the plaintiff that most international experts in this area do not consider that banding is an appropriate procedure for patients who have a reflux problem severe enough to require treatment with Losec; and

119. advised the plaintiff that a BPD procedure would be a better option for him in the circumstances.

120. The defendant said that he had a detailed discussion with the plaintiff about the BPD procedure in which he:-

121. explained that the BPD procedure is recognised internationally as being the most successful operation for weight control as it produces sustained weight reduction due to malabsorption of fats and starches;

122. informed the plaintiff that the procedure frequently cures reflux problems and would also be anticipated to reduce his cholesterol to normal levels and assist with his borderline diabetes;

123. explained how a BPD surgery compares to gastric banding surgery (the latter being the more commonly performed procedure than RYBG surgery at that time). He told him that BPD surgery is a form of RYGB surgery that does not rely on gastric restriction and achieves weight control by malabsorption;

124. explained the technique of the BPD procedure, its potential complications and side effects, and advised him of the need to adhere to a high-protein, low-fat diet post-surgery;

125. explained that the BPD procedure does not reduce eating and has the advantage that one can still eat normally. The defendant explained that the BPD procedure works by preventing the absorption of fats and starches, however this can lead to protein malabsorption if a strict diet is not followed;

126. advised the plaintiff of the need to continue long-term vitamin supplements, and that fat soluble vitamins including vitamins A, D, E and K were the most affected by the procedure. The defendant explained that it was essential to continue to take these vitamin supplements on a regular basis;

127. explained the potential side effects of the procedure including malodourous stools, steatorrhea or diarrhoea, frequent stools, flatulence, and the potential for severe malabsorption with consequential micronutrient, protein and vitamin deficiencies and malnutrition if food passes through the digestive system too rapidly to be absorbed. The defendant also explained that one possible side effect of BDP surgery is low protein which can lead to fluid retention and possible liver problems; and

BPD Procedure on 9 March 1999

123. The defendant stated that prior to the BPD procedure, he performed a gastroscopy on the plaintiff on 26 February 1999, which confirmed the presence of marked ulcerative oesophagitis. This confirmed that BPD surgery rather than gastric banding was the appropriate surgery for the plaintiff, as BPD can cure reflux oesophagitis.

124. The defendant performed the BPD surgery on the plaintiff on 9 March 1999. The defendant described how the procedure was performed and stated that it was routine. He said that the plaintiff had a pulmonary embolism on day 5 after the surgery, which was treated. The plaintiff made a good recovery. The plaintiff was discharged from hospital on 22 March 1999. The defendant said that it was his usual practice for his secretary to book a follow-up consultation for his patients one month after surgery.

Post-Operative Consultations and Treatment

125. The plaintiff attended upon the defendant on 8 April 1999 for a routine one-month post-operative review. The defendant said that at this consultation the plaintiff informed him that whenever he swallowed, he experienced intense discomfort and was forced to vomit whatever he was eating.

126. The defendant said that he considered that this was not a usual complication following BPD surgery. He suspected that the vomiting and discomfort was caused by the plaintiff overeating or by a flare-up of his oesophagitis. In response to the plaintiff’s complaints, the defendant provided the plaintiff with Zoton samples to take once per day in place of Losec and arranged for the plaintiff to have a barium meal to establish whether food and fluids were passing normally through his stoma. Following the consultation, the defendant sent a letter to the plaintiff’s GP Dr Wong, informing him of the plaintiff’s complaint and the treatment recommended by him. That letter was also exhibited to the defendant’s Evidentiary Statement.

127. The plaintiff contacted the defendant again on 23 April 1999 and told him that he was having difficulty keeping down food and felt that there was something sticking to his stomach. As the barium meal had not shown any obstruction and his symptoms had settled whilst taking one tablet of Zoton twice per day, the defendant formed the view that the plaintiff was experiencing a flare-up of his ulcerative oesophagitis. The defendant said that the plaintiff reported that he was settling down well and had lost 20kg of weight. The plaintiff said that he felt vastly improved and that the procedure had made a big impact on his wellbeing. The defendant placed the plaintiff on Zoton long-term and asked him to return in three months for a further review. The defendant included all of these details in a letter to Dr Wong dated 23 April 1999, which was also exhibited to the defendant’s Evidentiary Statement.

128. The plaintiff had blood tests performed on 29 April 1999 which were reviewed by the defendant. The defendant said that the vitamins A, D, E and K were not measured because it was too soon after the BPD procedure. The defendant said that the plaintiff’s results were close to normal, and that he did not consider that further action was required. The results of these blood tests were also in evidence.

129. On 3 May 1999, the defendant performed a gastroscopy on the plaintiff to further investigate the complaint made on 23 April 1999. The defendant said that he did not observe any cause for the symptoms reported by the plaintiff. He formed the view that the plaintiff was probably attempting to eat too much at once. The defendant informed the plaintiff that he should eat five small meals per day for the time being, and that he should contact the defendant’s rooms if he had any issues recalling what the defendant had advised.

130. The plaintiff presented for a consultation with the defendant on 20 July 1999. The defendant said that during this consultation, the plaintiff reported that:-

The HCCC Complaint in 2008

145. The defendant said that in 2008, he received a notice from the HCCC informing him that the plaintiff had made a complaint against him with respect to the BPD procedure and his associated care and management. At a conciliation with the plaintiff on 14 April 2009, the defendant undertook to contact two of the plaintiff’s medical practitioners regarding statements that the plaintiff had made during the conciliation meeting.

146. The defendant said that he called Dr Talbot regarding concerning comments the plaintiff had made to the effect that Dr Talbot had assured him that if he underwent conversion of his surgery to a gastric bypass, he would be able to cease the medications Seroquel and Zoloft. Dr Talbot informed the defendant that he had not said that to the plaintiff.

147. The defendant also called Dr Day, the plaintiff’s cardiologist, because of the plaintiff’s claims that Dr Day had assessed him as being completely depleted of Vitamin A and that Dr Day had prescribed a high-dose vitamin A medication to counteract this depletion. Dr Day consulted his notes and told the defendant that he had no knowledge of this claim. Dr Day informed the defendant that he had a record that the plaintiff’s vitamin A levels were, in fact, within the normal range and that he was not at all concerned about the plaintiff’s vitamin A levels. The defendant said that Dr Day informed him that he would not ever prescribe high-dose vitamin A medication as this would be toxic.

148. The defendant said that the Health Conciliation Registry told him that the plaintiff was able to use the conciliation to “clarify his concerns” and thanked him for participating in the conciliation meeting. The conciliator did not recommend that the complaint be referred to the HCCC for investigation.

The Defendant’s Reply to the Plaintiff’s Evidence

149. The defendant responded in oral evidence to the plaintiff’s assertion that the BPD surgery left him with about 20 to 25% of his intestines. The defendant reiterated his evidence that no part of the plaintiff’s intestine was removed during the BPD procedure, which I accept.

150. In response to the plaintiff’s suggestion that he had informed the defendant that he was having seven to eight malodorous bowel motions a day, but that the defendant had only recorded three to four, the defendant said that he would never have deliberately understated a plaintiff’s history in their records which, as I have said, I accept.

151. In response to the plaintiff’s assertion that the defendant had recommended vitamin B12 injections to him following the BPD surgery, the defendant said that he would not have recommended these because vitamin B12 was not affected by the BPD procedure. The defendant said that, because vitamin B12 is a water soluble vitamin, patients should be able to maintain normal vitamin B12 levels with a normal diet. I accept this evidence.

152. The defendant was asked what his usual practice was if a patient presented with the symptoms that the plaintiff said he had experienced in the six months after surgery; that he became aggressive, depressed and restless for no apparent reason, that he could not seem to function or think straight, that he had extremely foul body odour and up to eight malodorous stools per day and that he began drinking alcohol frequently. The defendant said that some of those symptoms would not normally relate to a BPD operation, but that he would have stressed to the plaintiff the need to avoid alcohol and to adhere to a low-fat diet. The defendant said that to the best of his recollection, in the time period of 1999-2007, no patient had ever presented to him with that constellation of symptoms. The defendant said that he would have been surprised if someone complained of cognitive problems, because he could see no explanation for that occurring. I accept Dr Ritchie’s evidence.

153. The defendant was cross-examined by the plaintiff’s solicitor Ms Ho. A significant portion of this cross-examination was dedicated to interrogating the exact mechanisms of the BPD procedure and how that procedure causes weight-loss in patients. The defendant’s evidence on this point was entirely consistent with his evidence in chief.

154. Ms Ho also cross-examined the defendant about the documents that he said would have been similar to those provided to the plaintiff at the time of the surgery (such as the “Biliopancreatic Diversion” document which explained the risks of the procedure and possible complications). Ms Ho sought to point to sentences or paragraphs in those documents which demonstrated that those exact documents could not have been provided to the plaintiff in 1999, such as references to the defendant’s experience as at February 2004. This was not at all inconsistent with the defendant’s evidence, which did no more than assert that a similar document would have been provided to the plaintiff.

“Q. This form sets out the ‘Number of serious complications, refer to my experience of close to 239 cases as at February 2004’

…so in 1999, or in fact that was late 1998, would you agree that everything under the line that I just read

HIS HONOUR: Which line?

HO:

Q. ‘The numbers of serious complications refers to my experience of close to 239 cases as at February 2004’. Number 1) at the time of surgery, 2) post operatively, 3) in the long term. All of those dot points couldn't be in the form that Mr Campbell had signed, would it?

A. Well, it probably was the, this was at a different time, this, but there would have been a similar document.”

Credibility

The Plaintiff

The Parties’ Submissions

156. Mr Kelleher submitted that the plaintiff was a deliberately dishonest witness who displayed a “pattern of persistent deceit” throughout his evidence. He submitted that the plaintiff’s presentation in court was greatly at odds with the descriptions of his function provided to the medico-legal experts in the case. He submitted that the plaintiff deployed claims of fatigue, memory impairment and “brain fog” as tactics to avoid responding to questions that he perceived did not assist his case, but he was able to readily recall matters which he perceived would assist him. In his closing submissions, Mr Kelleher referenced the following exchange (concerning the plaintiff’s gambling) which occurred during the plaintiff’s cross-examination on day 12 of the trial (at T959-960):-

“Q. At a time when you're in a job, one earning $20,000 a year, the other earning about $55,000 a year, making about $67 - $77,000 gross per year, $1,000 in one night is a big gamble, isn't it?

A. No, it's not, and you just said a false allegation to your Honour. You said to me one job was $20,000. You said that. I didn't say it.

…That's it to your Honour one was $20,000 and one was 55. The other day, if you recall, if you listen to the tape, the other day you said there was two figures chucked up. One $20,000, one $35,000. I recall this. The job you said one - was $20,000 actually was - also on top is a salary sacrifice, so that brings that back, and I told yous this the other day. That was a government scheme. This is not my scheme. This is the government provides for health workers and that. That figure would have been up around $32, $34,000.”

157. The interaction that the plaintiff was referring to (during which Mr Kelleher apparently misstated his earnings) occurred six days prior to that exchange at T482-483. Mr Kelleher used this example, amongst many others, to suggest that the plaintiff’s complaint about memory impairment was fabricated (or at least, extremely exaggerated) to assist his prospects in this case and to permit him to evade difficult questions.

158. In written and oral submissions, Mr Kelleher provided a list of some 27 significant facts which the plaintiff had omitted from his evidence and from the history provided to the expert witnesses and described much of the plaintiff’s evidence as “bald faced lies”. One such “bald faced lie” was the plaintiff’s account of his time in Queensland in 2005. The plaintiff had suggested that his family had moved to Queensland because they were unable to afford their mortgage repayments after the plaintiff had been forced to stop work due to his crippling health issues. This evidence omitted the 8 months during which the plaintiff worked full time on an oil barge in Karumba.

159. Ms Ho, who appeared for the plaintiff, characterised the defendant’s attack on the plaintiff’s credibility as “misguided and irrelevant”, and “immaterial to the core issues”. She submitted that any inconsistency in the plaintiff’s evidence was a product of his unreliable memory and the fluctuating nature of his psychiatric condition.

Conclusions

160. I accept and adopt the defendant’s characterisation of the plaintiff as a dishonest witness. While I am generally reluctant to find that a witness has been deliberately dishonest, no other conclusion is open to me in this case given the wealth of contemporaneous documents which demonstrate the falsity of much of the plaintiff’s evidence, and in the face of which he made many complaints and no concessions. I also had the opportunity to observe the plaintiff as he gave evidence over 14 days. He was evasive, argumentative and disingenuous, particularly when asked questions that he apparently perceived were adverse to his case.

161. I take into account and agree with the examples provided by Mr Kelleher which clearly demonstrate that the plaintiff’s evidence was plainly untrue or inconsistent with demonstrable facts. Some of those examples are outlined in my summary of the plaintiff’s cross-examination, above.

162. I do not accept Ms Ho’s submission that the inconsistencies in the plaintiff’s evidence were the product of his unreliable memory or the “fluctuating nature of his condition”. One of the inherent difficulties in the plaintiff’s case is that his claim of neurological and cognitive injury is itself dependent on whether he can be accepted as a truthful witness. That is, in order to accept that both the plaintiff’s inconsistent evidence and his presentation as a witness were the product of his “condition”, I would first need to accept that the plaintiff was truthful about his experience of his alleged condition and its effect on his cognition and memory. I do not accept the plaintiff’s evidence on this issue.

163. The example referred to by Mr Kelleher (in which the plaintiff demonstrates remarkable recollection of the specific sum mentioned by Mr Kelleher some six days prior) provides a useful contrast to his constant reports of cognitive impairment and memory loss (both in court and to expert witnesses). On the second day of cross-examination, Mr Kelleher asked the plaintiff questions about his Evidentiary Statement and affidavits. One of these affidavits had been affirmed on 1 October 2025, 21 days prior to the questioning. The following exchange occurred in relation to that document (at T103):-

“Q. The only thing missing from [the Evidentiary Statement of 2017] when you came to be told of its contents again on 1 October 2025 was that paragraph 12 was missing; is that correct?

A. Can't recall.

Q. You can't recall from a couple of weeks ago that you understood that there was something missing from your statement about your work at Pico of 17 September 2017.

A. As you're aware, I've got a cognitive impairment, brain injury. I struggle every day of my life, and you're asking me questions. I'm here to answer if I recall. If I can't recall, I can't answer it.

Q. It's clearly the case, isn't it, on or about 1 October this year, you could remember that you had worked for Pico‑‑

A. Yeah, well, I worked‑‑

Q. ‑‑up until early 1999; correct?

A. Yes.

Q. But you can't remember that today.

A. No. I just ‑ I struggle day to day. It's a chemical imbalance. I only got 20, 25% intestines in my body. If I drink something wrong, it stops the nutrients going in. Acid reflux. Doesn't ‑ there's a lot of problems. There's a lot of problems.”

164. Mr Kelleher continued to ask the plaintiff about the circumstances in which he had signed his various affidavits, and the documents that he had with him at the time they were signed. The plaintiff would often say that he was unable to recall these details. Most extraordinarily, the plaintiff was unable to remember the circumstances in which he had affirmed his affidavit of 21 October 2025, which was the previous day:-

“Q. Was [the affidavit of 21 October] it read to you before you swore it?

A. At Bond Street, yes.

Q. Where?

A. At Bond Street. I come in last week. I think it was on Friday, I think. Friday last week or something. Come in and yes.

Q. Were you presented with an affidavit that had already been typed up for you and read to you?

A. I don't recall, mate.”

165. Throughout his cross-examination, the plaintiff would consistently claim that he could not recall his answers to questions which had been asked that morning or the previous day. This was completely at odds with his capacity to correct Mr Kelleher on the numbers that he had referred to six days prior (to which see above). It was also at odds with the plaintiff’s consistent ability to recall other events in remarkable detail that had occurred in the distant past. One such example occurred in cross-examination (at T579), where the plaintiff recounted at length what had occurred during a conciliation meeting regarding child support in June 2005:-

“No, I didn't - I didn't come back in May. This is a false statement. I never come back in May. My wife did give birth and I spent time with my wife and I had to work. Why would I just start work and then have to come back to Sydney. I wouldn't have done that. I promised her 12 months and I stayed up there for months. I come back to see child support once. That's it. My wife give birth, and about two months later I recall I had a conciliation with child support in the city somewhere, and I said the wife was important at the meeting, we both have to come back, and my wife just give birth. So it was two months old. I come back and I had a conciliation with child support, and I said to the conciliation - there were a lot of people there that flew in from Canberra - I said, ‘Look yous realise I've come all the way from Gulf of Carpentaria which is 2,500 ks for this meeting’. I said, ‘Why could yous just come to Cairns or somewhere like that?’, cause I drove back and I recall having a baby in the car and all that. So you can see I was under duress stress.

And in the meeting - when the meeting finished - if you can get his evidence - they asked me not to sue them. They said, ‘Could you sign on a dotted line not to sue us?’, and I just told them, ‘Get stuffed’, and walked out. And they said, ‘You can't say that’, and I said it again and told them - and, you know, I was fiery. I drove 2,500 miles. Cost me fuel money, cost me everything, just to come back and have a conversation like that. There was a lot of them. There was just me and my wife and the baby, and I just told them that. I just was straight to them. I said, ‘Yous can get stuffed’, and they said, ‘You can't say that’, so I said it again, and I walked out and took my family, and then we drove all the way back to Queensland. They said, ‘We would have’ – ‘If we knew you lived in the Gulf of Carpentaria we would have flew to Cairns’. I said, ‘Come on, yous know where I went’. And that's the honest truth, your Honour.”

166. I accept the defendant’s submission that the plaintiff’s presentation in court was greatly at odds with his descriptions of his cognitive function and memory. I also accept that the plaintiff’s claims of memory loss and brain fog were largely an attempt to evade questions in the face of a very strong case for the defendant, rather than an honest reflection of his cognitive capacity. My assessment of the plaintiff’s credibility is such that I am unable to accept any of the plaintiff’s evidence except where it is corroborated by contemporaneous records. There is little, if anything, of substance in the contemporaneous records that advances the plaintiff’s case.

The Defendant

167. Ms Ho did not make any submissions about the defendant’s credibility, other than to point to what she considered to be an inconsistency in a rather minor point made by the defendant in his evidence in chief.

168. Mr Kelleher submitted that the defendant was a cogent and careful witness, who presented with a compelling explanation of his usual practice in the pre-operative, operative and post-operative stages of his role as a bariatric surgeon in monitoring, reviewing and advising a patient after BPD surgery. His evidence was supported by contemporaneous records, to the extent that they were available.

169. I accept Mr Kelleher’s submission. Although the defendant (quite understandably) had no independent recollection of the plaintiff, he gave careful evidence which was wholly consistent with contemporaneous records. I find that he was an honest and credible witness. I observe that he was modest and respectful to Ms Ho when being cross-examined. I accept the defendant’s evidence in every respect and whenever it conflicts with the evidence of the plaintiff.

Lay Witnesses

170. I find that Mr Camilleri was an honest witness. However, as he only met the plaintiff in 2006 (approximately 7 years after the BPD surgery), his evidence is of limited utility.

171. Similarly, Mr Cameron met the plaintiff in 2010, and thus his account of the plaintiff’s health and functioning prior to the BPD surgery was based entirely on what the plaintiff had told him. While I do not find Mr Cameron to be a dishonest witness, he had been involved for some time in the plaintiff’s daily affairs and had been acting as an advocate for him with solicitors in pursuit of financial goals. This causes me to be circumspect about his evidence, which in any event is likewise of limited utility.

172. I afford the affidavit evidence of Maryann Campbell no weight, as she readily admitted in cross-examination that she had no real input into the statements contained therein and that they did not reflect her true memory of events. However, I found her oral evidence to be credible, particularly her evidence that she had had no knowledge of the various payouts received by the plaintiff. I also accept Ms Campbell’s oral evidence concerning her former role as a tutor in these proceedings. I accept that she had very limited involvement with the plaintiff’s solicitors during her time as the plaintiff’s tutor, and that at all times her then-husband directed and made all decisions about the proposed proceedings.

Factual Findings

173. Before turning to the expert evidence, it is necessary to set out my findings of fact. This is because the experts’ reports were based on the history provided to them by the plaintiff. I have found the history provided by the plaintiff and his reports of his cognitive impairment to be inaccurate and, in some respects, dishonest. I therefore set out the history that I find proved on the balance of probabilities, so that the expert evidence can be assessed against that history.

174. In relation to the plaintiff’s personal circumstances and history prior to the BPD surgery, I find the following facts:-

175. The plaintiff worked for PICO between 1989 and 1992, performing various manual labouring jobs. Between 1992 and about the middle of 1994, the plaintiff ran his own demolition business.

176. The plaintiff suffered a significant back injury on 23 November 1995, when he jumped off the back of a truck whilst performing truck driving duties through a labour hire company. The plaintiff sustained injuries to his thoracic and lumbar spine, with evidence of disc injuries at L4/5 and L5/S1. The plaintiff made a workers’ compensation claim with respect to that injury and remained off work until the BPD surgery in 1999.

177. The plaintiff has a long history of depression and has been treated with antidepressant medication since at least 1997. He commenced treatment for problems with obesity in 1995.

178. In late 1997, the plaintiff was referred to the defendant with a history of low back pain, reflux, depression, anxiety and NIDDM.

179. With respect to the plaintiff’s clinical history with the defendant, I accept the defendant’s account of that history in its entirety. I find that the defendant’s evidence and contemporaneous documentary records establish the following facts:-

180. The plaintiff was referred to the defendant by his GP, Dr Mark Wong, on 24 December 1997.

181. When the plaintiff made an appointment at the defendant’s rooms, he was directed to the defendant’s website which contained extensive information regarding the procedures the defendant performed, including BPD surgery and gastric banding. The plaintiff was asked to review this information prior to attending his first consultation.

182. The plaintiff had two consultations with the defendant prior to the BPD surgery on 9 March 1999. During these consultations, the defendant:-

(a) explained the difference between a BPD surgery and a gastric banding procedure and informed the plaintiff that the BPD procedure was a better option for him due to his history of severe reflux; (b) explained the technique of the BPD surgery, its potential complications and side effects, and the need to adhere to a high-protein, low-fat diet post-surgery; (c) explained that the BPD surgery works by preventing the absorption of fats and starches, which can lead to protein malabsorption if a strict diet is not followed; (d) explained the potential side effects of the BPD procedure including malodourous stools, steatorrhea or diarrhoea, frequent stools, flatulence, and the potential for severe malabsorption with consequential micronutrient, protein and vitamin deficiencies and malnutrition if food passes through the digestive system too rapidly to be absorbed; and (e) strongly advised the plaintiff that he required blood tests every six months to monitor for any nutrient deficiencies, including vitamins A, D, E, K, folate and B12, calcium and PTH, Fe and TIBC, as well as lipids, fasting blood sugars, liver function tests and a full blood count.

4. I find that the defendant also provided the plaintiff with the following documents prior to the BPD surgery:-

(a) A document explaining the technique of the BPD surgery, its possible side effects and complications. (b) The names of some patients who had undergone the defendant’s BPD procedure so that the plaintiff could contact them to discuss their satisfaction with the procedure and their experience of side effects. (c) A document containing information relating to conduct post-BPD surgery, including the importance of adhering strictly to a high-protein, low-fat diet, a vitamin and mineral supplement regime following the procedure and the need for blood tests every six months. (d) A form acknowledging these risks and complications, which the defendant used to explain every potential complication of the BPD surgery and which the plaintiff understood and subsequently signed.

5. The defendant provided the plaintiff with six vouchers for consultations with a dietician and stressed the need for the plaintiff to attend upon the dietician.

6. The plaintiff attended a dietician consultation with Anna Niec prior to the BPD surgery on 23 February 1999, and after the BPD surgery on 6 April 1999. Ms Niec practiced out of the defendant’s rooms. The plaintiff consulted dietician Estela Gimenez on 14 May 1999. On each occasion the plaintiff used a voucher given to him by the defendant.

7. The defendant performed a gastroscopy on the plaintiff on 26 February 1999 which confirmed the presence of marked ulcerative oesophagitis. This confirmed the defendant’s view that BPD surgery, rather than gastric banding, was the appropriate surgery for the plaintiff.

8. On 9 March 1999, the defendant performed BPD surgery on the plaintiff for which the plaintiff provided informed consent.

9. On 8 April 1999, the plaintiff attended upon the defendant for his one-month post operative review. In response to the plaintiff’s complaints of vomiting and discomfort, the defendant provided the plaintiff with Zoton samples and arranged for the plaintiff to have a barium meal to establish whether food and fluids were passing normally through his stoma.

10. On 23 April 1999, the plaintiff told the defendant that he was having difficulty keeping down food and felt that there was something sticking to his stomach. The defendant formed the view that the plaintiff was having a flare up of his ulcerative oesophagitis. The defendant placed the plaintiff on Zoton long-term and asked him to return in three months’ time for a further review. At this consultation, the plaintiff also said that he felt vastly improved and that the procedure had made a big impact on his wellbeing.

11. On 29 April 1999, the plaintiff had blood tests taken. The results were close to the normal range and were of no concern.

12. On 3 May 1999, the defendant performed a gastroscopy on the plaintiff to further investigate the complaint made on 23 April 1999. The defendant did not observe any cause for the symptoms that the plaintiff was reporting. He informed the plaintiff that he should continue to eat five small meals per day, and that he should contact the defendant’s rooms if he had any issues recalling what the defendant had advised.

13. On 20 July 1999, at a follow-up consultation with the defendant, the plaintiff reported that he was doing extremely well, his reflux had resolved, his bowels were opening two to three times per day, and his energy levels were excellent. The defendant arranged to review the plaintiff again in three to four months and arranged for the plaintiff to undergo blood tests.

14. On 9 December 1999, at a follow-up consultation with the defendant, the plaintiff reported that his weight was stable at around 85kg. The defendant advised the plaintiff to take extra supplements of vitamins A and D, as his blood tests indicated lower levels of those vitamins, and he requested that the plaintiff return for review in six months’ time.

The Expert Evidence

Bariatric Surgeons

177. The bariatric surgery experts who gave evidence were Dr Phillip Game (briefed by the plaintiff) and Dr Leon Cohen (briefed by the defendant).

178. Dr Game was the principal bariatric surgeon at the Royal Adelaide Hospital from 1988 to 2018. Dr Game provided reports dated 18 October 2020 and 26 September 2022. Dr Cohen is a bariatric surgeon who commenced practice in 1999. Dr Cohen provided a report dated 5 August 2021. Both experts participated in a joint conference on 24 September 2025 and produced a joint report. They gave concurrent evidence in court on 19 November 2025.

179. In concurrent evidence, both experts agreed that as at 1999:-

180. it was appropriate to recommend BPD surgery (as opposed to a gastric banding procedure) in light of the plaintiff’s severe reflux;

181. the explanation and material which I have found was provided to the plaintiff by the defendant was sufficient to enable the plaintiff to understand the risks that were involved in the BPD surgery and the need for post-operative management;

182. steatorrhea is an inherent risk of the BPD surgery. Some patients experience it more severely than others, and it is impossible to predict which patients will experience severe symptoms of steatorrhea;

183. the defendant’s responses to the plaintiff’s reports of his health and symptoms in the post-operative consultations were in accordance with what was expected of a bariatric surgeon at that time;

184. the regime of monitoring provided to the plaintiff by the defendant was entirely appropriate for BPD surgery;

185. the regime of supplements and the program of blood tests recommended to the plaintiff by the defendant were appropriate for a patient post-BPD surgery;

186. in the absence of a complaint of severe steatorrhea that was affecting the plaintiff’s social and psychological wellbeing, a reasonable bariatric surgeon would first attempt to address steatorrhea by other means (such as dietary changes and intestinal deodorants), rather than proceeding immediately to reversal surgery;

187. a reversal surgery (which would cause the reversal of weight-loss and other health benefits of the BPD surgery) would only be considered in the event that all other attempts at addressing a patient’s side effects had failed; and

188. Dr Ritchie’s approach of writing to his patients to remind them of the need to adhere to their dietary regime and the need for blood tests every six months was appropriate, comprehensive, and showed a great deal of care for his patients. Both experts agreed that a bariatric surgeon cannot compel their patients to take supplements, do blood tests and return for follow up, and the defendant’s approach represented the most a bariatric surgeon can do to encourage recalcitrant patients.

Endocrinologists

180. The endocrinologists who gave evidence were Professor Gary Wittert (briefed by the plaintiff) and Professor Steven Boyages (briefed by the defendant).

181. Professor Wittert is a practising senior consultant endocrinologist at the Royal Adelaide Hospital and a Professor of Medicine at the University of Adelaide. He has over 20 of years experience providing clinical services to patients referred for the management of obesity. He provided an initial report dated 29 December 2017, and three further reports dated 26 November 2018, 29 July 2022 and 18 August 2022.

182. Professor Boyages is a practicing endocrinologist with extensive experience in general endocrinology. From 1990 to 1999, he was the Director of the Department of Diabetes and Endocrinology at Westmead Hospital. Between 2005 and 2010, he was the Chief Executive of the Sydney West Area Health Service. Professor Boyages provided a report dated 16 August 2021 and a further supplementary report dated 13 September 2024. Both experts participated in a joint conference on 18 September 2025 and produced a joint report on that day. They gave concurrent evidence on 17 November 2025.

183. In his first report, Professor Wittert said that the BPD surgery had likely caused the plaintiff to sustain a brain injury and a psychiatric disorder due to nutritional deficiencies. He said that “most of the damage initially occurred in the first year to 18 months following surgery”.

184. In his first report, Professor Boyages said that the available records demonstrate only minor micronutrient deficiencies in the plaintiff following surgery. He noted that on a few occasions, the plaintiff’s ferritin levels were “low normal” (with no associated anaemia) and calcium levels were “borderline low” (which was easily corrected by vitamin D supplementation). There was never any documented deficiency in Vitamin B12, Vitamin A or folate.

185. During concurrent evidence, Professor Wittert agreed that his opinions relied, at least in part, on the plaintiff’s report of his symptoms and the timing of their onset. Professor Wittert accepted that if the plaintiff did not report depressive symptoms to his GP until 2003 and was working up to 16 hours a day in the period following surgery, that would represent a different history from the one he was provided.

186. At the conclusion of the concurrent evidence, the following exchange occurred:-

“KELLEHER: Firstly let me ask you this, Professor Boyages. Given I think the agreement that there is a real paucity of evidence of micronutrient deficiency, from your perspective as an endocrinologist, is the better explanation for Mr Campbell's presentation as he brings himself to this Court something other than an endocrinological cause?

WITNESS BOYAGES: I would agree with that.

KELLEHER: Professor Wittert.

WITNESS WITTERT: I don't think one can exclude micronutrient deficiencies because I don't think the recommended frequency of testing was done early on.

KELLEHER: But given the constellation of symptoms that Mr Campbell presented with on the assumptions you were asked to make, you would agree, wouldn't you, that one would expect to see much more significant markers of micronutrient deficiency to justify the very florid presentation you were asked to assume about him in 1999. Correct?

WITNESS WITTERT: Yeah. In terms of the florid presentation that I documented and that you read out to me, the answer will be yes.”

187. Professor Boyages was of the view that vitamin deficiencies did not play any role in causing any neuropsychiatric symptoms in the plaintiff. Professor Wittert maintained the view that it was possible for a “constellation of minor deficiencies” to cause neuropsychiatric symptoms, but said that he could not point to specific deficiencies that could produce these symptoms in the plaintiff. Professor Wittert agreed that one would expect much greater vitamin deficiencies to explain the plaintiff’s symptoms as he described them.

188. In the end, both Professor Wittert and Professor Boyages were not satisfied that the plaintiff’s reported symptoms were explicable on the basis of micronutrient deficiency.

Neurologists

189. The neurologists who gave evidence were Professor Bruce Brew (briefed by the plaintiff) and Professor John Watson (briefed by the defendant).

190. Professor Brew holds a Doctorate of Medical Science and a Doctorate of Science. He has been a practicing neurologist since 1986 and is currently a Professor of Neurology at the University of New South Wales (“UNSW”). Professor Watson holds degrees in both medicine and science, as well as a research PhD in Neurophysiology. He has been an Emeritus Professor in the Faculty of Medicine at UNSW since 2020, and the Director of the Faculty of Medicine at UNSW since 2022. Professor Brew provided a report dated 9 February 2019. Professor Watson provided a report dated 28 May 2022. Both experts participated in joint conferences on 10 and 18 September 2025 and produced joint reports on both of those dates. They gave concurrent evidence on 17 November 2025.

191. Professor Brew agreed that the plaintiff’s history of interaction with Dr Ritchie and his history of employment were entirely inconsistent with the information that was provided when writing his report. Professor Brew stated that, based on the plaintiff’s history (as I have found it to be), there is a “very low likelihood” that any micronutrient deficiency contributed to the plaintiff’s reported symptoms.

192. In concurrent evidence, and with the benefit of the reports that had been provided by Dr Hepner and Dr Sabaz (to which see below), both experts agreed the following:-

193. There was no evidence of the plaintiff having significant nutrient deficiencies based on the records that they reviewed.

194. The plaintiff’s reports to Dr Ritchie and his employment history immediately after the surgery (as I have found above) mean that there is a very low likelihood of any micronutrient deficiency contributing to his reported symptoms.

195. There is no evidence that the plaintiff suffered macrocytic anaemia or peripheral neuropathies associated with B12 deficiency in the period from 1999 to 2007.

196. Wernickes encephalopathy (a syndrome associated with Vitamin B1 deficiency which effects cognition and memory) is an acute syndrome of rapid onset which would have been readily apparent to Dr Ritchie.

197. There was nothing in the plaintiff’s reflexes to suggest any link to micronutrient deficiency.

198. Performance validity testing (a clinical neuropsychological assessment) is relevant to a neurologist’s assessment.

199. If permanent cognitive damage is occasioned from micronutrient deficiency, it is most likely to be caused by deficiencies in either vitamin B1 or B12. Deficiencies in vitamins A, C, D, E, K are not capable of causing permanent neurological damage and do not cause cognitive impairment.

200. Deficiency in B12 over a long period is capable of causing permanent cognitive damage. However, both experts agreed that if the plaintiff was capable of instructing solicitors, caring for young children and working on a conveyor belt loading ore onto a ship during the period following the surgery, that would be determinedly against the existence of any neurological damage from B12 deficiency.

Neuropsychologists

194. The neuropsychologists who gave evidence were Dr Mark Sabaz (briefed by the plaintiff) and Dr Ilana Hepner (briefed by the defendant).

195. Dr Mark Sabaz is a registered psychologist with the Psychology Board of Australia and holds a PhD in neuropsychology. He has been designated as a Senior Clinical Neuropsychologist within NSW Health since 2009. Dr Sabaz provided a report dated 19 April 2019. Dr Ilana Hepner is a registered psychologist with the Psychology Board of Australia and holds a PhD in neuropsychology. She is a fellow of the Australian Psychological Society’s College of Clinical Neuropsychologists. Dr Hepner provided a report dated 21 July 2021. Both experts participated in a joint conference on 10 September 2025 and produced a joint report. They gave concurrent evidence on 20 November 2025.

196. In their joint report, Dr Sabaz and Dr Hepner both said that they could not form an opinion on the plaintiff’s cognitive function because the plaintiff had performed poorly on multiple performance validity tests. During the joint conference on 10 September 2025, Dr Sabaz and Dr Hepner said the following:-

“Dr Sabaz: I could not form an opinion of Mr Campbell’s cognitive function due to his invalid engagement with substantive cognitive tests I administered as part of my assessment. He scored overwhelmingly very poorly on substantive cognitive tests, but these results cannot be relied on. His results on memory testing and engagement with memory tests was incongruent with what I observed of his function generally during the assessment. He benefitted from questions or instructions being repeated when he did not process them upon first hearing them, but he did benefit when they were repeated. On memory testing, he did not benefit from repetition of material when it was being formally evaluated and this pattern on testing is completely incongruent with how he presented just generally during the process of instructions and ability to benefit from repetition of those instructions.

Dr Hepner: I would agree that the cognitive test results were not valid because he performed poorly on multiple tests of performance validity and there were inconsistencies noted in how he presented compared with how he performed.”

197. During concurrent evidence, Dr Sabaz and Dr Hepner agreed that the fact that the plaintiff had performed poorly on performance validity testing during two neuropsychological assessments reduced the likelihood that the plaintiff’s failure to perform on these tests was due to some random event or spontaneous lack of engagement. Both experts further agreed that it was extremely unlikely that the plaintiff’s poor performance on these tests was due to his documented major depressive disorder.

198. In response to a question by Ms Ho, both experts agreed that invalid results on performance validity testing do not rule out the existence of a cognitive impairment. Rather, this means that the person’s cognitive function cannot be measured objectively.

199. Mr Kelleher provided a long set of assumptions to the experts which related to the plaintiff’s personal and medical history. These assumptions were consistent with the facts I have found above. The following exchange occurred in the context of those assumptions (at T1891-1892):-

“KELLEHER:…That's the picture I'd ask you to assume, which is a very different one to that you were provided with, Dr Sabaz. If you accept that history as correct, it's more likely than not, isn't it, that if there was any presentation with a depressive illness in that period, it was caused by factors utterly unassociated with Dr Ritchie's surgery; correct?

WITNESS SABAZ: Yes, I would agree.

KELLEHER: Would you agree with that Dr Hepner?

WITNESS HEPNER: I agree.

KELLEHER: And if those symptoms have persisted despite the reversal of the surgery by Dr Ritchie that happened in 2009, with continued complaints of cognitive dysfunction, of memory problems, of concentration problems, of urinating in bins, of forgetfulness, of inability to manage finances, and I want you to assume that there is no neurological basis for his complaints and that there is no endocrinal basis. There are two possible explanations, am I correct in saying, that it is either the continuing result of whatever psychiatric illness was caused by the circumstances at work in 2004? That's one possibility. Do you agree with that, Dr Sabaz?

WITNESS SABAZ: Yes.

KELLEHER: Do you agree with that, Dr Hepner?

WITNESS HEPNER: Yes.

KELLEHER: But if this man is a man who has regularly told lies about matters involved in this litigation, is it also a greater likelihood that Mr Campbell has falsely attributed to Dr Ritchie the symptoms and complaints of his ordinary life since the surgery that are unassociated with it because he's a person who gets fixated on ideas and believes he's entitled to compensation for them? Would that be a more likely possibility, Dr Sabaz?

WITNESS SABAZ: I think that's a possibility.

KELLEHER: Would you agree with that, Dr Hepner?

WITNESS HEPNER: Yes.”

200. Both experts agreed that they could not rule out deliberate exaggeration on the part of the plaintiff, but that such a determination was a matter for the Court. I have made that finding.

Psychiatrists

201. The psychiatrists who gave evidence were Professor Perminder Sachdev (briefed by the plaintiff) and Dr Lisa Thompson Brown (briefed by the defendant).

202. Professor Sachdev holds a Bachelor of Medical Science and Surgery, a Doctor of Medicine in Psychiatry and a PhD in Psychiatry. He is a Scientia Professor of neuropsychiatry at UNSW and the Clinical Director of the Neuropsychiatric Institute at the Prince of Wales Hospital, Sydney. Professor Sachdev provided a report dated 24 September 2019. Dr Lisa Thompson Brown obtained a Bachelor of Medicine and Surgery degree in 1984 and holds further post-graduate qualifications. She is a Fellow of the Royal Australian and New Zealand College of Psychiatrists. She conducts a private psychiatric practice and is a Clinical Lecturer at the University of Sydney. Dr Thompson Brown provided a report dated 18 January 2022. Both experts participated in a joint conference on 10 September and 18 September 2025 and produced joint reports on those days. They gave concurrent evidence on 20 November 2025.

203. In his report of 24 September 2019, Professor Sachdev outlined the history provided to him by the plaintiff. He was of the view that the plaintiff developed Major Depressive Disorder following the surgery and that it was possible that the BPD surgery directly resulted in the plaintiff’s neuropsychiatric symptoms, as the plaintiff did not have a history of psychiatric disorder prior to the surgery (which as I have found, is incorrect).

204. In her report of 18 January 2022, Dr Thompson Brown expressed the view that the plaintiff has not developed a recognisable psychiatric disorder relating to surgically-related nutrient malabsorption. Dr Thompson Brown was of the opinion that the plaintiff has instead experienced a continuation of pre-existing depression which has been exacerbated at times by other life stressors.

205. In concurrent evidence, Professor Sachdev agreed that the facts (as I have found above) were very different to the history he was provided with by the plaintiff when writing his report. He accepted that the quality of his opinion had been seriously weakened by the absence of the premorbid history and agreed with Dr Thompson Brown that those facts suggest that the plaintiff already had significant physical and mental health problems before the surgery. Professor Sachdev further agreed that those facts suggest that any mental illness of the plaintiff was caused by factors which are not associated with the surgery. He said that an acceptance of those facts means that no direct causal relationship can be established between the surgery and the plaintiff’s condition.

206. Both experts agreed that if the neurologists had concluded that the deficiencies identified by the endocrinologists were not sufficient to explain the plaintiff’s presentation, the only two remaining possibilities were that the plaintiff’s presentation was either psychiatric or facetious.

Occupational Therapists

210. The occupational therapists who gave evidence were Ms Jennifer Angus (briefed by the plaintiff) and Mr Spiro Katzakis (briefed by the defendant).

211. Ms Angus holds a Bachelor of Applied Science (Occupational Therapy) and is a member of OT Australia. She has been practising in rehabilitation for the past 21 years. Mr Katzakis holds a Bachelor of Applied Science (Occupational Therapy) and a Graduate Diploma of Applied Science (Ergonomics). He is a registered occupational therapist with AHPRA.

212. Ms Angus assessed the plaintiff in his home on 12 October 2021, and provided a report dated 17 December 2021. Mr Katzakis assessed the plaintiff in his home on 30 November 2021, and provided a report dated 4 February 2022. Both occupational therapists participated in a joint conference on 19 September 2025 and produced a joint report on that day. They gave concurrent evidence on 21 November 2025.

213. In their initial reports, Ms Angus and Mr Katzakis provided very different assessments of the past and future assistance required by the plaintiff. As for past assistance, Ms Angus was of the view that the plaintiff had required 20 hours of assistance per week in the two week period after the initial BPD surgery, and again in the two week period following the reversal surgery. Apart from those four weeks, Ms Angus considered that the plaintiff had required 6 hours of assistance per week in the past. As for future care, Ms Angus recommended a total of 7 hours per week.

214. Mr Katzakis was of the view that the plaintiff had required a total of 7 hours of past assistance with personal care, and $600 worth of cleaning assistance in the past. As for future care, Mr Katzakis recommended a total of 1.73 hours per week.

215. During the course of concurrent evidence, Mr Kelleher asked the experts to assume that, at the time of their assessments of the plaintiff, the plaintiff was able to regularly shop for himself, drive long distances, purchase takeaway from restaurants, attend the gym, meet friends at the TAB and attend medical appointments. The following exchange then occurred (at T1993-1994):-

“KELLEHER: Bearing all that in mind, and you've assumed on the history provided to you a need for some assistance with laundry and some assistance with cleaning, would you adhere to that opinion in the face of that level of daily activity by Mr Campbell?

WITNESS KATZAKIS: That's a description of someone higher functioning than what he described. And from that, just from what you've just told me, I would then say that he most probably was able to clean his house and launder his own clothes to be ready to go out all that often.

KELLEHER: Thank you, Mr Katsakis. Would you agree with that, Ms Angus?

WITNESS ANGUS: It's a vastly different presentation to what I assessed.

KELLEHER: That, would I take it, also radically affect the future prescription you have made in respect to firstly his need for prompting in the morning or someone to come around and check he'd brushed his teeth?

WITNESS ANGUS: I assume that if I had reassessed him with that information, my future care needs would have been different.

KELLEHER: And the cleaning of the house; correct?

WITNESS ANGUS: Correct.

KELLEHER: The doing of the yards?

WITNESS ANGUS: I think my entire assessment would have changed based on new presentation.

KELLEHER: I take it one of the things that would have not just changed but been completely different to the effect of no need, would have been his assistance travelling about in the community; correct?

WITNESS ANGUS: Yes, with that new information - I wasn't aware of that.

KELLEHER: Without that information, you couldn't tell his Honour on any reliable basis what the care needs of Mr Campbell were?

WITNESS ANGUS: Not with that new information. I would have to do a reassessment.”

216. Both occupational therapists agreed that the facts as I have found them paint a very different picture to the facts provided to them by the plaintiff at the time of their assessments. Indeed, Ms Angus was of the view that she would have to undertake a fresh assessment of the plaintiff in order to ascertain what his true care needs were.

Limitation

217. The plaintiff commenced these proceedings on 17 March 2020. In his Amended Defence filed on 20 January 2022, the defendant pleaded that the plaintiff’s claim is statute barred pursuant to s 18A of the Limitation Act 1969 (NSW) or, in the alternative, s 50C of the Limitation Act*.*

218. The plaintiff filed an Amended Notice of Motion on 21 October 2025 seeking a declaration that at all material times the plaintiff was under a disability for the purposes of s 52 of the Limitation Act. The plaintiff sought an order pursuant to s 52 of the Limitation Act that the limitation period was suspended during the period of the plaintiff’s disability.

219. Further, or in the alternative, the plaintiff sought an order that the time for having commenced proceedings be extended pursuant to ss 50C, 60G and/or 62A of the Limitation Act to 17 March 2020.

Applicable Regime

220. Pursuant to s 18A of the Limitation Act*,* the plaintiff’s claim is not maintainable if brought after the expiration of a limitation period of 3 years running from the date on which the cause of action first accrued to the plaintiff. The cause of action first accrues to the plaintiff at the time at which the plaintiff suffers loss or damage.

221. The plaintiff alleges that his injuries were caused by multiple acts of the defendant, being the pre-surgery consultations in 1998, the BPD surgery itself in 1999, and the post-operative management and review of the plaintiff between 1999 to 2007.

222. There are effectively two parts to the plaintiff’s claim. The first is a “failure to warn” case (i.e. that the plaintiff was never given sufficient information to have provided informed consent to the BPD surgery). In respect of the failure to warn case, his cause of action accrues at the time that the plaintiff underwent the BPD surgery on 9 March 1999. Given that the failure to warn case crystallised in 1999, this part of the plaintiff’s claim is governed by the limitation regime in force prior to 6 December 2002: s 50A(2) of the Limitation Act.

223. The second part of the plaintiff’s case is that the defendant was negligent in his post-operative treatment of the plaintiff. There was some dispute as to the latest possible date of accrual with respect to the “post-operative treatment” case. In her opening, Ms Ho submitted that the latest possible date of accrual was November 2007: the time of the plaintiff’s last consultation with the defendant. The defendant agreed that this was also the latest possible date of accrual. However, at the conclusion of the trial, Ms Ho’s written submissions framed the last possible date of accrual as October 2008, being the time at which the defendant received correspondence from Dr Talbot (and which was said to mark the defendant’s final involvement with the plaintiff). The latter submission was entirely inconsistent with the manner in which the plaintiff had run and argued his case. In my opinion, the last possible date that the plaintiff’s cause of action accrued is 15 November 2007, being the defendant’s last consultation with the plaintiff. Those consultations which occurred after 6 December 2002 are governed by the current limitation regime in Part 2, Division 6 of the Limitation Act: s 50A(2).

Disability

224. The plaintiff submitted that the limitation period for his causes of action had not commenced because he was under a disability for the period from 1999 until 2020 and that the limitation period was suspended for the duration of the disability.

225. Section 52 of the Limitation Act provides:-

52 Disability

(1) Subject to subsections (2) and (3) and subject to section 53, where—

(a) a person has a cause of action,

(b) the limitation period fixed by this Act for the cause of action has commenced to run, and

(c) the person is under a disability,

in that case—

(d) the running of the limitation period is suspended for the duration of the disability, and

(e) if, but for this paragraph, the limitation period would expire before the lapse of three years after—

(i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability, or

(ii) the date of the person’s death,

(whichever date is the earlier), the limitation period is extended so as to expire three years after the earlier of those dates.

(2) This section applies whenever a person is under a disability, whether or not the person is under the same or another disability at any time during the limitation period.

(3) This section does not apply to a cause of action to recover a penalty or forfeiture or sum by way of penalty or forfeiture, except where the person having the cause of action is an aggrieved party.

226. “Disability” is defined in s 11(3) of the Limitation Act as follows:-

(3) For the purposes of this Act a person is under a disability—

(a) while the person is under the age of eighteen years, or

(b) while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of—

(i) any disease or any impairment of his or her physical or mental condition,

…

227. It is for the plaintiff to prove that he was under a disability on the balance of probabilities. Ms Ho did not address s 52 of the Limitation Act in her closing submissions. Her argument concerning disability was only briefly addressed in written submissions as follows:-

“a) Real-Time Demonstration of Impaired Management while plaintiff was being cross examined.

b) The Disability was Continuous and Medically Supported

i) The Plaintiff’s primary position is that s 52 applied from 1999 until 2020 based on direct medical opinion on incapacity:

○ Professor Sachdev provides the most definitive opinion, stating in his 27 May 2023 report that Mr. Campbell was ‘substantially impeded in the management of his affairs from 1999 until at least 2020.’ He attributes this directly to the injury, leaving him in ‘no mental state to understand the complexities of launching a lawsuit.’

○ Dr. Sabaz (Neuropsychologist) strongly recommended the appointment of a tutor due to the Plaintiff’s ‘observed communication difficulties’ and dyslexia, making it ‘very hard for him to understand legal documents and correspondence on his own.’ (Dr. Sabaz Report).

○ The informal management of his affairs by himself and friends, as noted by Maryanne Campbell (Transcript, 11 Nov 2025), is consistent with being ‘substantially impeded’ rather than capable.”

228. In both oral and written submissions, the defendant submitted that the evidence in this case is not capable of demonstrating that the plaintiff suffered from a relevant legal incapacity in the period of 1999 to 2020. It was submitted that the plaintiff had not proved that he was ever incapable of, or substantially impeded in the legal sense, in managing his affairs in relation to the causes of action the subject of these proceedings. The defendant placed particular emphasis on the evidence of the plaintiff independently instructing multiple solicitors during the period between 1999 to 2007 in respect of personal injury actions, cohabitation agreements, his dispute with Child Support Australia, his dispute with his employer SWSAHS, his claims for total and permanent disability and the repossession of his house by a mortgage lender. The defendant also pointed to Maryann Campbell’s oral evidence that, despite her being named as tutor, it was the plaintiff who was in charge of his litigation in the years 2010-2011 and 2015-2018.

229. In considering whether the plaintiff was under a disability for the purposes of the Limitation Act, the relevant question is whether the plaintiff was able to do the various things required if the cause of action was to be dealt with. This includes seeking advice about whether a civil remedy exists for some perceived wrong, seeking advice about the difficulties, risks, cost and effort involved in pursuing any such remedy and the likely returns, comprehending and evaluating that advice and, if the decision to commence proceedings is taken, thereafter engaging in the continuing process of co-operation, interaction and decision-making that exists between a lawyer and client in the running of any civil action: see the discussion of “management of affairs” by Campbell JA in Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 at [132]-[161].

230. I accept the defendant’s submission that the evidence establishes that the plaintiff was capable of performing all of the tasks required for the cause of action to be dealt with during the entirety of the period of 1999 to 2020. The plaintiff had extensive personal involvement with solicitors over the course of that period, most notably in 2011, during which I have found that the plaintiff was able to independently communicate with Spinks Elphick Ho, discuss tactics which might benefit his claims, receive advice from his solicitor, understand that advice, and give instructions based on that advice. The plaintiff also independently retained the services of Firths Lawyers to advise him in respect of his total and permanent disability claims and had regular contact with his solicitors when he provided instructions, received advice and acted upon that advice.

231. I reject the plaintiff’s submission that his disability was “continuous and medically supported”. At the conclusion of this case, I find that there is no evidence capable of establishing that the plaintiff has in fact suffered any cognitive, mental or psychiatric impairment as a result of the BPD surgery — or otherwise. I accept that there is evidence of the plaintiff suffering from a Major Depressive Disorder at various points from the mid-1990s to the present date. However, as I have said, there is a wealth of evidence that establishes that during that same period the plaintiff was capable of engaging and seeking advice from various solicitors, providing instructions and actively participating with those solicitors in the management of his various legal disputes and claims. It is therefore clear that his depression (however described) did not place him under an impediment or incapacity in the relevant sense. If the plaintiff had seriously sought to establish a “disability”, I would have expected evidence of his incapacity from his treating doctors, of which there was none.

Extension of Time Pursuant to ss 60G and 60I of the Limitation Act

234. So far as the cause of action upon which the plaintiff relies that arose prior to 2002, the plaintiff submitted that he is entitled to an extension of time under ss 60G and 60I of the Limitation Act because he only became aware of the connection between his cognitive injury and the defendant’s acts or omissions in December 2017, and his claim was brought within three years of that date.

235. Sections 60G and 60I of the Limitation Act provide as follows:-

60G Ordinary action (including surviving action)

(1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.

60I Matters to be considered by court

(1) A court may not make an order under section 60G or 60H unless it is satisfied that—

(a) the plaintiff—

(i) did not know that personal injury had been suffered, or

(ii) was unaware of the nature or extent of personal injury suffered, or

(iii) was unaware of the connection between the personal injury and the defendant’s act or omission,

at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and

(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)–(iii).

(2) Subsections (2), (3) and (4) of section 60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision.

236. Before considering whether an order for an extension of time should be made under s 60G, it is first necessary to determine the time at which the plaintiff became aware of all three matters in s 60I(1)(b). It then becomes necessary to consider whether it is “just and reasonable” for an extension of time to be granted.

Plaintiff’s Submissions

237. The plaintiff provided written submissions with respect to ss 60G and 60I. As these submissions were very brief, they may be set out in full as follows:-

“In relation to the pre-December 2002 acts (including the 1999 surgery), the Plaintiff seeks an extension pursuant to ss 60G and 60I, on the basis that the material fact of a connection between his cognitive and psychiatric injury and the Defendant's act or omission was not discoverable until December 2017.

a) The Plaintiff's Subjective Belief & The Crystallising Event (s 60I(1)(a))

i) The Plaintiff’s evidence demonstrates an incomplete, generalised belief. In his 2008 HCCC complaint, he stated he knew his problems were ‘more than just mental illness’ and believed the surgery was the cause, ‘starving [him] of nutrients.’ (Transcript, 31 Oct 2025).

ii) However, this belief was not a settled understanding. Under re-examination, he testified: ‘I didn't know... I didn't know from doctors and who was right – who was wrong... I did not know.’ (Transcript, 6 Nov 2025). This shows a state of confusion, not discovery.

iii) The material fact of a causally relevant connection to his cognitive and psychiatric impairment was not ascertainable until he received the medical report from Professor Wittert in December 2017. This report provided the necessary expert link. The proceedings commenced in March 2020, within the 3-year window prescribed by s 60G(2).

iv) The complex, multifactorial nature of a BPD injury, as explained by Dr. Game, demonstrates why a layperson's belief was insufficient. Dr. Game links BPD to ‘nutritional deficiencies’ that cause neurological and psychiatric symptoms, noting that the impact on mental health was ‘well-appreciated’ in 1999. (Dr. Game Report, 26 Sep 2022). Discerning this specific link required specialised medical knowledge.

b) The Objective Test of Reasonable Diligence (s 60I(1)(b))

i) A reasonable person in the Plaintiff’s position, suffering from his significant cognitive impairments, could not have discovered this fact earlier.

ii) The Plaintiff’s cross-examination provides powerful evidence of this incapacity which is corroborated by Lay Witnesses:

○ Kevin Cameron gave evidence that from around 2010, the Plaintiff had significant difficulties with ‘conversation, finding words, forming sentences.’ (Transcript, 10 Nov 2025).

○ Mark Camilleri testified that when he first met the Plaintiff (2006/07), he was a ‘recluse’ with ‘delayed conversation.’ (Transcript, 6 Nov 2025). This provides external validation of the Plaintiff's substantial impediment.”

238. Ms Ho did not specifically address the limitation period in her oral address at the conclusion of the case, but it appeared to me that the following segment of her address set out the plaintiff’s argument concerning ss 60G and 60I:-

“I would say this. Let's say if you just had a newborn, and maybe a toddler now, every time after dinner, she vomits. Then you wonder why, you go to see different doctors. One doctor says this, that doctor says that, you try many different things, it didn't work. Oh finally, somebody says, ‘Hey, maybe it is the cashew nuts, you know?’ 100% you were trying to find out whether or not that's the case. So what the plaintiff did was reasonable, is a reasonable response to the suffering that he has suffered.

One couldn't blame him for trying to go all out to find out whether or not that's true. Previously, he may have thought of something else because he just linked that way, he just thought that way, he may be wrong, he may be right, but he couldn't be criticised of pursuing that manner of redress. So you know, all we know, it is the outside perception of what the Court thinks the plaintiff was suffering at that relevant time. We say the plaintiff has a firm basis for it because medically it has firm basis for it because that's just what this surgery is supposed to do.”

(at T2270)

239. The core of the plaintiff’s argument seems to be that, while he may have had a certain degree of knowledge of the causal connection between his alleged injury and the defendant’s acts or omissions at the time of his complaint to the HCCC in 2008, he was still “unaware” of that connection within the meaning of s 60I(1)(a)(iii) until the time at which he received the report of Professor Gary Wittert in December 2017. The HCCC complaint was therefore merely a “manner of redress” that the plaintiff pursued during his efforts to discern whether or not there was in fact a relevant connection between the defendant’s acts and his injury.

Defendant’s Submissions

240. The defendant submitted that all three matters in s 60I of the Limitation Act were known to the plaintiff at the time that he made his complaint about the defendant to the HCCC in 2008. The defendant referenced the following exchanges, among others, that occurred in cross-examination:-

“Q. Mr Campbell, looking at that complaint that you put together in 2008, you'd agree with me that as at the time you completed that complaint in that two-page statement--

A. It was completed for me, yes, in her words.

Q. --you knew that you'd suffered some injury to yourself because of Dr Ritchie's surgery.

A. Yeah. 100%.

Q. You knew, in your own mind, that you considered that your depression or your inability to work and cope at work, in your own mind, you thought that was caused by Dr Ritchie’s surgery; correct?

A. Yes.

…

Q. In this document you had prepared for you, you say that you believed you were running low on nutrients; correct?

A. Yep. Correct.

Q. That that was because of Dr Ritchie's operation; correct?

A. Yes. Correct.”

241. Following that exchange, the plaintiff confirmed what was contained in pars 39-41 of his Evidentiary Statement; that after he had received a response from the HCCC, he immediately spoke to someone at Legal Services. He said that he told Legal Services: “I’ve got a brain injury… Can you send me a solicitor who deals with brain injury and cognitive impairment”. The plaintiff said that after he received a list of solicitors, he chose and attended upon Spinks Elphick Ho in 2009.

242. The defendant submitted that it is immaterial whether, in 2008, the plaintiff had reached a legal conclusion as to the relationship between the defendant’s acts and his injury. The defendant relied on Drayton Coal v Drain [1995] NSWCA 131 where Gleeson CJ said, at 3-4:-

“2. The requirement, in s 60I(1)(a)(iii), that the plaintiff was, at a specified time, unaware of the connection between the plaintiffs personal injury and the defendant's act or omission, is not identical to a requirement (of a kind which might be inferred from s 60F) that the plaintiff was unaware of the cause of the injury. (The decision in Dedousis turned upon that difference).

3. Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions. The legal complexion which may be put upon a set of facts or circumstances (eg actionable negligence), and the plaintiff's awareness of that legal complexion, is not what matters for the purpose of s 60I(1).

4. The acts or omissions referred to in s 60I(1)(a)(iii) are the acts or omissions on which the plaintiff relies to found the cause of action referred to in s 60G. Those acts or omissions, in a case such as the present (as in Dedousis) will be found in the plaintiff's particulars of negligence.”

243. The defendant accepted that being unaware of a material act or omission which constitutes a substantial ground for a cause of action is sufficient to satisfy s 60I: Dedousis v Water Board (1994) 181 CLR 171; [1994] HCA 57. However, it was submitted that the fact that the plaintiff can identify an act or omission by the defendant of which he was not aware (being the consultations subsequent to the BPD surgery) does not mean that the requirements in s 60I are satisfied. The defendant submitted that the plaintiff’s evidence makes clear that at the time of the HCCC complaint in 2008, the plaintiff was aware of the possible connection between his micronutrient deficiency and cognitive injury and the defendant’s acts or omissions, and therefore was not “unaware” of the connection within the meaning of s 60I(1)(a)(iii). I entirely agree with this submission.

244. The defendant submitted that even if the Court was to find that the plaintiff did not have the requisite knowledge at the time of the HCCC complaint in 2008, an extension should not be granted under s 60G because it would not be “just and reasonable” to do so.

245. The defendant submitted that the plaintiff had made no real attempt to explain the length and reason for the delay in bringing proceedings other than his assertion of incapacity during that time period. No attempt was made to explain the delay between the HCCC complaint in 2008 and formally retaining Spinks Elphick Ho in 2010. There was no explanation for the period of inactivity between 2011 and 2015 when no solicitor was retained and during which the plaintiff had in his possession the defendant’s file which he had obtained from his solicitors in 2013. There was similarly no explanation for the delay between the time that his solicitors were re-engaged in 2015 and obtaining counsel’s advice in 2016. There was likewise no explanation why, having received counsel’s advice, Professor Wittert’s report was not obtained until late 2017. All of this occurred, the defendant submitted, when the plaintiff was capable of progressing the litigation had he chosen to do so.

246. The defendant also pointed to an absence of evidence from the plaintiff’s solicitor which might explain these delays. It was submitted that the Court would expect, as a bare minimum, a chronology from the plaintiff’s solicitor explaining what had occurred from the time of their initial retainer to the time of the commencement of proceedings. There was no such evidence tendered in the proceedings.

247. The defendant submitted that a further factor weighing against an extension of time is the significant prejudice to the defendant arising out of the delay in bringing proceedings. He submitted that this prejudice goes beyond the presumptive prejudice discussed in the well-known case of Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 (“Brisbane South”). The defendant submitted that vital documentation has been lost over time, including GP records which may have provided evidence of the defendant ordering blood tests which he is criticised for not having ordered and parts of the defendant’s file which was taken by the plaintiff from his solicitors. Further, the defendant submitted that the delay has caused the defendant to rely on his usual practice rather than any recollection of his interactions with the plaintiff.

Determination

248. The plaintiff did not contend in his submissions that he was unaware of the matters in ss 60I(a)(i) or 60I(1)(a)(ii) at the expiration of the limitation period. Therefore, the real issue to be determined is the time at which the plaintiff became aware of the connection between his injury and the defendant’s act or omission: s 60I(1)(a)(iii).

249. In my view, the plaintiff’s own evidence clearly establishes that he was aware of a possible connection between his injury and the defendant’s acts or omissions at the time that he signed the HCCC complaint form on 27 November 2008. In his Evidentiary Statement of 2017, the plaintiff said:-

“In 2009 I made a medical negligence complaint to the Health Conciliation Registry regarding the lack of treatment and follow up treatment I received from Dr Ritchie and also Dr Khan over the years, since my initial operation in 1999…

Later in 2009 having spoken to Legal Services and advising them of what had happened, they sent me a list of several Solicitors that could assist me in taking further action…”

250. This evidence alone demonstrates the plaintiff’s awareness of the relevant connection. Indeed, the plaintiff himself characterised this complaint as a “medical negligence complaint” and referred not only to the surgery, but also to the defendant’s subsequent treatment of him. This evidence, taken together with the plaintiff’s evidence in cross-examination, overwhelming points to the plaintiff having had the requisite awareness at the time that he signed the HCCC complaint form in 2008.

251. I find that the plaintiff had knowledge of all three matters in s 60I(1)(a) of the Limitation Act by 27 November 2008. His application to extend the limitation period for these proceedings was therefore required to be made by 27 November 2011: s 60I(1)(b). A Statement of Claim was not filed until 17 March 2020, leaving to one side that the plaintiff’s application pursuant to s 60G was not filed until 14 October 2022**.** The plaintiff has therefore failed to meet the requirements in s 60I of the Limitation Act and his application for an extension under s 60G must fail on that basis.

252. I observe that, even if the plaintiff had overcome the hurdle in s 60I, I would still have declined to make an order under s 60G on the basis that an extension of time would not be just and reasonable in the circumstances.

253. It is well established that in an application under s 60G, the applicant has a positive burden of demonstrating that it would be just and reasonable for an extension of time to be granted in the circumstances of the particular case: Brisbane South at 547, 554.

254. In my view, the plaintiff has wholly failed to discharge this burden. Other than his various assertions of incapacity, no evidence has been given by the plaintiff to explain the length and reasons for the delay in bringing these proceedings. No evidence whatsoever has been provided by the plaintiff’s solicitors with respect to delay. The plaintiff’s solicitors first became involved in the matter in 2009, and no other solicitors have apparently advised the plaintiff on the merits of these proceedings.

255. On the other hand, there is evidence from the defendant establishing actual prejudice occasioned to him by reason of the delay. The affidavits of Ms Beyers (the defendant’s solicitor) and Dr Tsang (who took over Dr Ritchie’s practice and files after his retirement) demonstrate that vital documentation has been lost over time, including the defendant’s full file and the plaintiff’s GP records, which I do not doubt would have contained important evidence for the defence case.

256. In Jones v Royal Hospital for Women [1998] NSWCA 119 at [12], in summarising the principles relevant to an exercise of discretion under s 60G, Mason P said the following:-

“(4) It is not appropriate to balance the prejudice to each of the parties - Taylor at 549-550; McLean at 3.

(5) The proper question to ask is whether ‘the delay has made the chances of a fair trial unlikely’ - Taylor at 550 per Toohey and Gummow JJ; or whether the commencement of an action beyond the limitation period would result in prejudice of a significant kind to the prospective defendant - Taylor at 544 per Dawson J, 555 per McHugh J. Cf Zegarac at 198-9.

(6) The court is required to have regard to ‘every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period’ (per McHugh J in Taylor at 554) including the rationales for the existence of limitation periods - Taylor, per McHugh J at 551-553 and Kirby J at 563-564. Accordingly, evidence of presumptive and actual prejudice to a prospective defendant will be a most relevant consideration, if not determinative in the vast majority of cases - see Taylor at 548, 555 and George at 64,647-64,648.

However, in exceptional cases other considerations may prove decisive, such as inordinate delay on the part of the applicant considering the extent of awareness of relevant issues under s 60I”.

257. This is a case in which there has been inordinate delay on the part of the plaintiff, and there has been little explanation for that delay. The defendant has suffered both presumptive and actual prejudice by reason of that delay, which has made the trial unfair. In all the circumstances, in my opinion, an extension of time would be neither just nor reasonable. Thus, if the discretion under s 60G had been enlivened by the satisfaction of one of the criteria in s 60I(1)(a), I would have nonetheless declined to exercise that discretion.

12 Year Long-Stop Limitation Period: ss 50C and 62A of the Limitation Act

258. The plaintiff submitted that the long-stop limitation period in s 50C of the Limitation Act had not expired with respect to the defendant’s acts or omissions occurring after December 2002. If the Court was to find that the long-stop limitation period expired prior to March 2020, the plaintiff then sought an extension of the long-stop limitation period under s 62A.

259. Sections 50C and 62A of the Limitation Act provide as follows:-

50C Limitation period for personal injury actions

(1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire—

(a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,

(b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.

…

62A Extension of 12 year long-stop limitation period

(1) A person claiming to have a cause of action to which Division 6 of Part 2 applies may apply to a court for the extension of the 12 year long-stop limitation period applicable to the cause of action under that Division.

(2) The court is to hear such of the persons likely to be affected by the application as it sees fit and may, if it decides that it is just and reasonable to do so, order the extension of the 12 year long-stop limitation period applicable to the cause of action for such period as the court determines, but not so as to extend that period beyond the period of 3 years after the date on which the cause of action is discoverable (within the meaning of Division 6 of Part 2) by the plaintiff.

(3) If a court orders the extension of the 12 year long-stop limitation period for a cause of action under this section, that limitation period is accordingly extended for the purposes of—

(a) an action brought by the applicant in that court on the cause of action that the applicant claims to have, and

(b) section 26 (1) (b) in relation to any associated action for contribution under section 5 (1) of the Law Reform (Miscellaneous Provisions) Act 1946 brought by the person against whom that cause of action lies.

…

260. The totality of the plaintiff’s submissions on this point are set out below:-

“Cause of Action Arose Post-6 December 2002 (s 50C)

10. The Plaintiff’s case is based on post-operative breaches after 2002.

a) Failure to Vigorously Follow-Up (2003-2007)

b) Failure to Offer Reversal or Gastric Bypass (2003 onwards)

11. The Period Under s 50C(1) Has Not Expired

a) For these post-2002 breaches:

i) s 50C(1)(a) - The 3-Year Discoverability Period: The cause of action was not discoverable until the Plaintiff received the report from Professor Wittert in December 2017. Proceedings commenced in March 2020 are within this 3-year window.

ii) s 50C(1)(b) - The 12-Year Long-Stop Period: Taking the last relevant act/omission as Dr. Ritchie’s final involvement in October 2008 until he received correspondence from Dr. Talbot in relation to the proposed Reversal/Gastric Bypass surgery on the plaintiff, the 12-year long-stop period would expire in October 2020. March 2020 is within this period.

12. Application for Extension Under Section 62A (If Required)

a) If the Court finds the long-stop period expired just prior to March 2020, the Plaintiff seeks an extension under s 62A. The s 62B factors support this:

b) s 62B(1)(a) - Length of and reasons for delay: Any delay is short and explained by the Plaintiff’s impediments and the complexity of finalising expert evidence.

c) s 62B(1)(b) - Prejudice to defendant: There is no substantive prejudice. Dr. Ritchie had notice of a potential claim as early as in 2009 of the HCCC claim and there was ample evidence being produced in this matter.

d) s 62B(1)(c) & (e) - Extent of plaintiff’s injury & steps to obtain advice: The injuries are "catastrophic" (Prof. Sachdev). The Plaintiff actively sought advice from the HCCC (2008), engaged solicitors (~2009/10), and obtained the crucial Wittert report (2017).

e) s 62B(1)(f) - Time discoverable: As above, from December 2017 when Prof Wittert was received.”

261. The defendant submitted that s 50C requires the plaintiff to establish that the act or omission relied on occurred within the 12-year period prior to the commencement of these proceedings on 17 March 2020; that is, 17 March 2008. The defendant said there is no relevantly identified act or omission by the defendant after this date, pleaded or otherwise. This is consistent with my finding above that the last relevant act of the defendant occurred on 15 November 2007.

262. With respect to the plaintiff’s application for an extension of time under s 62A, the defendant submitted that the plaintiff would need to rely on a date of discoverability of December 2017 (when the plaintiff received Professor Wittert’s report). The latest that the long-stop limitation period could be extended would therefore be December 2020: s 62A(2) of the Limitation Act.

263. In oral submissions, Mr Kelleher said that even if the date of discoverability could be “kicked down the road”, that would merely bring the Court to the exercise of its discretion under s 62A(2), which again requires consideration of whether an extension is “just and reasonable” along with the other matters contained in s 62B. Mr Kelleher submitted that I would decline to exercise the discretion under s 62A for the same reasons that I would decline to exercise the discretion under s 60G.

Determination

264. The matters that I must consider when deciding whether to grant an extension of the long-stop limitation period are contained in s 62B of the Limitation Act. That section provides as follows:-

62B Matters to be considered in determining application for extension of 12 year long-stop limitation period

(1) In exercising the powers conferred on it by section 62A, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following—

(a) the length of and reasons for the delay,

(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available,

(c) the nature and extent of the plaintiff’s injury or loss,

(d) any conduct of the defendant that induced the plaintiff to delay bringing the action,

(e) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received,

(f) the time when the cause of action was discoverable (within the meaning of Division 6 of Part 2) by the plaintiff.

265. As I have found above, the plaintiff’s delay was significant and no cogent reasons for that delay have been offered by the plaintiff. Further, the defendant has suffered actual prejudice by reason of the delay because there is evidence which is no longer available to him. I do not find that the plaintiff has proved on the balance of probabilities that he has, in fact, suffered any injury or loss as a result of the defendant’s conduct.

266. Furthermore, no conduct on the part of the defendant has induced the plaintiff to delay bringing the action. As for the steps taken by the plaintiff to obtain advice, I have found that the plaintiff first sought the advice of Spinks Elphick Ho in 2009 with a view to bringing a medical negligence claim against the defendant. Why it took an additional 7 years for the plaintiff to obtain advice from counsel, a further year to obtain Professor Wittert’s report, and more than two years after that for a Statement of Claim to be filed, is unexplained. There is no evidence about what advice was given to the plaintiff by Spinks Elphick Ho, and no evidence as to whether the delay in bringing these proceedings was due to the plaintiff or his solicitors.

267. Even if I was to find that the cause of action was not discoverable until December 2017, I would nonetheless decline to grant an extension of the limitation period. The length of the delay, the absence of any attempt to explain that delay and the prejudice occasioned to the defendant as a result of the delay are such that it would be neither just nor reasonable for me to extend the long-stop limitation period under s 62A of the Limitation Act.

Conclusions

268. The plaintiff’s cause of action first accrued on 9 March 1999 when he underwent the BPD surgery. The last possible date that the plaintiff’s cause of action could have accrued was 15 November 2007, being the plaintiff’s last consultation with the defendant. In my view, the plaintiff was therefore required to bring any cause of action in respect of the defendant’s conduct by 15 November 2019. The plaintiff did not commence proceedings until 17 March 2020.

269. I have found that the plaintiff did not suffer from a disability within the meaning of s 52 of the Limitation Act, and therefore the limitation period was not suspended at any point during the period from 1999 to 2020. The plaintiff’s applications for an extension under s 60G or s 62A both fail for the reasons outlined above.

270. I find that the defendant’s limitation defence is made out. The plaintiff’s claim is therefore not maintainable pursuant to ss 18A and 50C of the Limitation Act.

271. The remainder of this judgment is prepared against the possibility that my conclusions as to the limitation issues are wrong.

Liability

Risk of Harm

272. The CLA makes liability for negligence dependent upon the identification of the risk of harm against which the defendant is said to have failed to exercise reasonable care and skill: Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 at [102]-[103] per Leeming JA, citing Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [59] per Gummow J (Heydon J agreeing). I accept the defendant’s formulation of the relevant risks of harm as follows:-

273. The risk of harm that persistent and severe steatorrhea may cause a recognised psychiatric injury or may cause psychiatric injury. The distinction is said to be in whether there is any evidence of a physical injury causing psychiatric sequelae or whether any injury is purely psychiatric;

274. The risk of harm that a micronutrient deficiency may cause neurological damage;

275. The risk of harm that, in failing to warn and advise of the significant intended physical consequences of the procedure and the need for ongoing medical monitoring, micronutrient supplementation and dietary strictures, the patient would undergo a surgical procedure which they did not understand; and

276. The risk that, if inadequate information or inadequate explanation is given to the patient, they would not be in a position to understand and cope with the intended consequences of the surgery.

Section 5O of the CLA

273. Part 1A of the CLA contains the provisions applicable to actions in negligence. Division 6 of Part 1A is titled “Professional Negligence”. It contains ss 5O and 5P of the CLA, which provide as follows:-

5O Standard of care for professionals

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

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

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

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

5P Division does not apply to duty to warn of risk

This Division does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in respect of the risk of death of or injury to a person associated with the provision by a professional of a professional service.

274. Section 5O does not provide a defence but rather sets the standard of care, and does not apply to an alleged failure to warn or give advice or information (to which see below). It qualifies the operation of s 5B of the CLA by determining the standard of care: South Western Sydney Local Health District v Gould (2019) 97 NSWLR 513; [2018] NSWCA 69 (“Gould”) per Leeming JA. Once invoked, s 5O provides the applicable standard of care against which breach of duty is assessed (subject to irrationality) and ought to be considered prior to breach and causation: Dean v Pope (2022) 110 NSWLR 398; [2022] NSWCA 260 at [258], [260] and [273]-[274].

275. The defendant bears the onus of establishing the two preconditions in s 5O — namely that the defendant was “practising a profession” and was doing so “in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice”: Gould at [123]. There is no dispute in this case that the defendant was practising a profession.

276. As there can only be one standard against which the defendant’s conduct is to be assessed, it is unnecessary for the Court to determine whether the defendant has breached his duty of care before moving to consider whether the defendant nonetheless escapes liability on the basis that his conduct amounted to “competent professional practice”: Gould at [127]-[129]; Sparks v Hobson; Gray v Hobson (2018) 361 ALR 115; [2018] NSWCA 29 (“Sparks”) at [17] and [24].

277. In Sparks, Simpson JA said at [329]:-

“[Section] 5O, like s 5I, provides a complete answer to a claim under Pt 1 A of the CLA. It is in that sense that the section operates as a defence. For that reason, when it is pleaded, it is convenient to deal with it first.”

278. See also Polsen v Harrison [2024] NSWCA 224.

279. The defendant raised s 5O in answer to the failures of the defendant alleged in the Statement of Claim which could not be characterised as failures to warn. I will deal with s 5O before turning to ss 5I, 5B and 5C.

Submissions

280. The plaintiff submitted that the defendant’s reliance on s 5O should fail for two reasons. Those reasons were outlined in the plaintiff’s written submissions as follows:-

“a) The Defendant’s Own Admissions and Systemic Failures Demonstrate Incompetent Practice: The ‘peer professional opinion’ defence cannot shield a practitioner whose own admitted practices fell below the standard he knew was required. The Defendant himself conceded his follow-up system was inadequate, stating ‘the patients are unreliable in their return for follow-up’ and that this unreliability led him to cease performing the procedure. [Transcript, D20. 1645/lines 5 to 6. 14 Nov 2025]. His mass letter warning of ‘life-threatening’ risks is a stark admission that his standard system was failing. [Exhibit 23, p. 93]. A system known by its practitioner to be incapable of managing the lifelong, life-threatening risks of a procedure cannot be characterised as ‘competent professional practice.’ The peer opinion must support the conduct actually carried out by the defendant, not an idealised version of it. (Dobler v Halverson (2007) 70 NSWLR 151 at [70]).

…

b) The Defendant's Reliance on Written Materials for a Vulnerable Patient Was Irrational: Section 5O(2) explicitly states that peer professional opinion cannot be relied upon if the court considers it ‘irrational.’ The Defendant's purported practice of relying on complex written warnings for a patient with known literacy challenges—evidenced by the Defendant himself completing the consent form—is fundamentally irrational. [D20. Transcript, 14 Nov 2025, p. 1631, lines 24-44 - see further submission below ] No reasonable body of surgical opinion would support obtaining informed consent through a method demonstrably unsuitable for the specific patient.”

281. The plaintiff did not address the expert evidence of the bariatric surgeons in his written submissions.

282. The defendant, in his written submissions, outlined the state of the law with respect to s 5O by reference to many of the cases which I have cited above. The defendant submitted that he has satisfied s 5O in respect of the advice given to the plaintiff pre- and post-operatively, and in his choice of the BPD surgery when gastric banding was no longer a viable option due to the plaintiff’s severe oesophagitis, given the answers of Dr Game and Dr Cohen in concurrent evidence, set out at [179] above.

Determination

283. The plaintiff’s two submissions with respect to s 5O are based on an erroneous understanding of the section and its operation, and a mischaracterisation of the evidence. The first submission, that 5O “cannot shield a practitioner whose own admitted practices fell below the standard he knew was required” suggests that the defendant conceded in evidence that his practices were inadequate. That is plainly incorrect. The defendant’s evidence was to the effect that, despite his best efforts to contact his patients and remind them to return for follow-up appointments, many patients would not return. The defendant said, fairly, that apart from sending reminders and calling his patients, he could not do anything if they nonetheless chose not to attend for follow-up care. To the extent that it was relevant, the defendant believed that he had provided the plaintiff with reasonable care.

284. The plaintiff’s second submission condemns the defendant’s practice of relying on written information to warn of the risks of BPD surgery as “irrational”.

285. In Gould at [95]-[96], Leeming JA the following with respect to irrationality:-

“It is not entirely clear to me how Hucks v Cole was intended to illustrate the mischief to which s 5O(2) was directed, save that Sachs LJ’s reference to ‘very weighty matter’ tends to confirm that the occasions for its use will be rare. In any event, while the discussion in the Ipp Report and the English decisions to which it refers assist in confirming the meaning to be given to ‘irrational’ in s 5O(2), they should not be used as a substitute for or a gloss upon the statutory text. The question in Australia is now the application of statute, namely, does the court consider the peer professional opinion to be irrational?

Text, context and purpose all support the conclusion that it is a seriously pejorative and exceptional thing to find that a professional person has expressed an opinion that is ‘irrational’, and even more exceptional if the opinion be widely held. To consider a body of opinion to be ‘irrational’ is a stronger conclusion than merely disagreeing with it, or preferring a competing body of peer professional opinion.”

286. Section 5O is concerned with whether the peer professional opinion relied upon by the defendant is irrational, not whether the professional acted in a manner that was irrational. In any event, I have found that the defendant did not merely rely on written documents but explained the BPD surgery, along with its risks and side effects, to the plaintiff during their two consultations prior to the BPD surgery.

287. In my opinion, 5O has been made out by the defendant. During concurrent evidence, the bariatric surgeons (who were the defendant’s “peers” for the purposes of s 5O) were in resounding agreement that the defendant had acted in a manner which, in 1999, was widely accepted by peer professional opinion as competent professional practice. Both experts agreed that it was appropriate to recommend the BPD procedure to the plaintiff, that the defendant had provided appropriate explanation and material to enable the plaintiff to understand the risks involved in the procedure, and that the defendant’s regime of monitoring and his response to the plaintiff’s complaints were in accordance with what was expected of a bariatric surgeon at that time.

288. Section 5O provides a complete answer to the plaintiff’s claim, save for the plaintiff’s “failure to warn” case as pleaded in pars 80(a)-(c) of the Statement of Claim: s 5P of the CLA.

Section 5I of the CLA

289. In his Amended Defence, the defendant also relied on s 5I of the CLA which provides:-

5I No liability for materialisation of inherent risk

(1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.

(2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.

(3) This section does not operate to exclude liability in connection with a duty to warn of a risk.

290. In Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 (“Paul v Cooke”) at [52], Leeming JA observed that if a case can be decided under s 5I it should be resolved under that section. Once s 5I is engaged, there can be no liability for a failure to exercise reasonable care and skill.

291. Paragraph 73A of the Amended Defence pleads s 5I as follows:-

“73A. In answer to the whole of the Statement of Claim, the defendant relies on section 5I of the Civil Liability Act 2002 (NSW) and says that any harm suffered by the plaintiff (which is not admitted), including but not limited to the development of malodorous stools, gas, steatorrhea or diarrhoea, malabsorption with consequential micronutrient and vitamin deficiencies and malnutrition, constituted an inherent risk of the biliopancreatic diversion procedure.”

292. I have set out the defendant’s evidence about the plaintiff’s presentation after the BPD surgery at length. I have not accepted the plaintiff’s evidence about the same events. I accept that the plaintiff complained about episodic malodorous stools, gas, steatorrhea and diarrhoea in the several years following the surgery (which largely resolved), which were inherent risks of the BPD surgery and about which he was warned by the defendant prior to undertaking the surgery. Whilst the plaintiff’s vitamin levels were occasionally borderline, I do not accept that he ever experienced malabsorption with consequential micronutrient and vitamin deficiencies and malnutrition at any time. Against the possibility that I am wrong, l would have found that those were also inherent risks of the BPD surgery about which he was warned.

Sections 5B and 5C of the CLA

293. With respect to the plaintiff’s failure to warn case (set out at pars 80(a)-(c) of the Statement of Claim), I must consider whether the plaintiff has succeeded in establishing that the defendant was negligent pursuant to ss 5B and 5C of the CLA. Those sections provide as follows:-

5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

5C Other principles

In proceedings relating to liability for negligence—

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

294. The plaintiff’s failure to warn case was pleaded as follows:-

“Particulars of Negligence

80(a). Failing to provide the plaintiff with adequate advice and education about the risk of malnutrition following BPD and the consequences of BPD.

80(b). Failing to inform the plaintiff about the advantages and disadvantages of BPD in comparison with other forms of bariatric surgery for the treatment of obesity, including RYGB.

80(c). Failing to inform the plaintiff about the risks associated with BPD for the treatment of obesity, including foul malodorous stools, gas, steatorrhoea or diarrhoea, severe malabsorption with consequential micronutrient and vitamin deficiencies and malnutrition, together with cognitive, behavioural and psychological injury, osteoporosis and fractures.”

Determination

295. I pause here to note that I have found, as a matter of fact, that the plaintiff was provided with adequate advice and education about the risk of malnutrition (from malabsorption) following the BPD surgery and the consequences of the BPD surgery. I have found, as a matter of fact, that the defendant informed the plaintiff about the advantages and disadvantages of BPD surgery, compared with other available bariatric surgery options in 1999, including RYGB surgery. I have also found that Dr Ritchie warned the plaintiff both orally and in writing, and in language that the plaintiff understood, about the risks associated with BPD surgery, which included malodorous stools, gas, steatorrhea and diarrhoea, and the possibility of micronutrient and vitamin deficiency as a result of malabsorption. The defendant did not fail to take precautions against the risks of harm set out at [272(3)-(4)] above, largely particularised in pars 80(a)-(c) of the Statement of Claim.

296. To the extent that Dr Ritchie did not warn the plaintiff about the risk that he might suffer osteoporosis and fractures, those allegations in paragraph 80(c) did not form part of the evidence in this case, and I put them to one side.

297. As to the defendant failing to warn the plaintiff about the risk that a micronutrient deficiency may cause neurological damage, in my opinion, such a risk was so remote (in the circumstances of Dr Ritchie’s care and management of the plaintiff) that it did not require a warning. In any event, I have found that the plaintiff never suffered a micronutrient deficiency, let alone a deficiency of sufficient severity to cause neurological damage, either transient or permanent.

298. So far as a risk of cognitive impairment and psychiatric injury is concerned, the expert bariatric surgeons’ evidence did not suggest that the plaintiff ought to have been warned about those matters, as they are not considered to be risks of the BPD surgery. In any event, I have found that the plaintiff has not proved on the balance of probabilities that he has a cognitive impairment or that he has suffered a recognised psychiatric injury as a consequence of the BPD surgery.

299. I reiterate that I have found it proven on the balance of probabilities that the defendant explained to the plaintiff the difference between BPD surgery and other bariatric surgeries available in 1998 and 1999, that he explained the potential complications and side effects of BPD surgery including malodourous stools, steatorrhea or diarrhoea, frequent stools, flatulence, and severe malabsorption with consequential micronutrient, protein and vitamin deficiencies, undernutrition and malnutrition, that he advised the plaintiff that he required blood tests every six months to monitor for any nutrient deficiencies and that he provided a number of documents to the plaintiff explaining the BPD surgery, post-surgery requirements and the risks and complications of surgery. I find that the plaintiff understood the warnings, advice and information given to him, as there is ample evidence that he acted upon them.

Section 5D — Causation

301. Section 5D(1) of the CLA is a statutory restatement of the “but for” test of causation: Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 at [18]. The determination of factual causation requires the plaintiff to prove that he would not have suffered the particular harm he alleges, but for the defendant’s negligence.

302. Sections 5D and 5E of the CLA provide:-

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

5E Onus of proof

In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

Determination

303. To the extent that it is necessary to address s 5D, considering I have found that the plaintiff’s case has failed on s 5O, s 5I and breach of duty, I observe that the plaintiff’s case also fails on causation. The plaintiff has failed to prove on the balance of probabilities that one or more of the defendant’s alleged breaches have caused him harm. I have summarised the expert evidence at length, above. The evidence speaks for itself. However, for completeness I note the following:-

304. At its highest, the evidence of the plaintiff’s endocrinologist Professor Wittert (prior to concurrent evidence being given, and prior to being provided with the assumptions which I found to be proved) is that it was possible for a “constellation of minor deficiencies” to cause neuropsychiatric symptoms. However, he could not point to any specific deficiencies in the plaintiff’s vitamin levels that might be responsible for such symptoms.

305. The neurologists agreed that deficiencies in vitamins A, C, D, E, K cannot cause permanent neurological damage, and that the plaintiff’s capabilities and history following the surgery tell decidedly against any neurological damage from B 12 deficiency. The evidence of the neurologists was that there was no neurological basis for the plaintiff’s complaints.

306. The neuropsychologists agreed that the plaintiff’s cognitive function could not be measured due to his poor performance on multiple performance validity tests, which indicated that the plaintiff was not putting adequate effort into the tests. On that basis, I conclude that the plaintiff does not have impaired cognitive function.

307. At its highest, the evidence of the plaintiff’s psychiatrist Professor Sachdev (prior to concurrent evidence being given and prior to being provided with the assumptions which I found to be proved) was that, although it was possible that the plaintiff’s apparent vulnerabilities and psychosocial stressors were sufficient to explain the plaintiff’s presentation, the contribution of micronutrient deficiencies remained a “question mark” in Professor Sachdev’s mind.

308. The expert evidence falls far short of establishing on the balance of probabilities that the plaintiff suffered any harm as a result of the alleged negligence by the defendant. The plaintiff’s case therefore also fails on causation.

309. Thus, the plaintiff’s case fails on liability.

Damages

306. Against the possibility I am wrong about liability, I turn to a brief assessment of damages, had the plaintiff succeeded. I make the following assessment on the assumption that the plaintiff had proved that the defendant’s alleged negligence caused some harm, that is, that he suffered some minor nutritional deficiency and some exacerbation of a pre-existing psychiatric injury (likely from 2004) as a result of the defendant’s negligence.

307. The plaintiff relied on a Statement of Particulars filed on 22 November 2022.

308. It is trite law to say that if a plaintiff can prove that harm has been caused by a tortfeasor, he is entitled to damages reflecting his reasonable, as opposed to optimal needs. In this case, there were some significant disputes about causation of harm and about the plaintiff’s reasonable needs, assuming causation was made out.

309. As to the plaintiff’s reasonable needs, I observe that in Arthur Robinson (Grafton) Pty Limited v Carter (1968) 122 CLR 649; [1968] HCA 9, the High Court considered the method for the assessment of damages in a motor vehicle case involving a plaintiff who was rendered quadriplegic. In that case, Barwick CJ said, at 661, that “the question is not what are the ideal requirements, but what are the reasonable requirements of the plaintiff”, and at 662 that “the sum to be awarded in compensation is not calculable by any mathematical process. At best it is and must remain a matter of judgment”. In arriving at judgment on those issues, a court “must hearken to all of the evidence including the opinions of medical practitioners but, having done so, to come to its own conclusion on the question, not being bound to any opinion, however expert or apparently expert any witness expressing it may be”: see Moran v Nominal Defendant [2008] NSWSC 804 at [38] (where the principles were briefly collated by Hislop J).

Non-Economic Loss

310. The principles with respect to awarding damages for non-economic loss are well-known.

311. What, then, is the extent of Mr Campbell’s non-economic loss? An award of non-economic loss is an evaluative judgment: Clifton v Lewis [2012] NSWCA 229 at 33 per Beazley JA. Section 16 of the CLA speaks of the court determining "a most extreme case". The interpretation of those words in the decisions of Dell v Dalton (1991) 23 NSWLR 528 and Southgate v Waterford (1990) 21 NSWLR 427 (“Southgate”) (considering the like provision of s 79 of the Motor Accidents Act 1988 (NSW)) is therefore relevant.

312. In Southgate, the Court of Appeal held that the amount to be recovered as damages for non-economic loss is not to be calculated in accordance with common law principles up to the statutory maximum. The Court suggested the following three-stage process by which it would be appropriate for a trial judge to approach the question of apportionment of non-economic loss:-

313. Consider and make findings on the elements in the evidence which are relevant to non-economic loss, being those relevant to an award of general damages;

314. Conceive a (not the) most extreme case (which the court noted would certainly include quadriplegia); and

315. award damages between nil and the statutory maximum in the ratio which the judge determines, keeping in mind that the maximum is retained for “a most extreme case”.

316. In Coleman v Barrett [2004] NSWCA 27, Gzell J said at 63:-

“Non-economic loss is defined in the Civil Liability Act 2002, s 3 as pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. Section 16(3) is like the Motor Accidents Act 1988, s 79A. It requires a judge, if the severity of the non-economic loss is equal to or greater than 15% of a most extreme case, to determine the severity of the non-economic loss as a proportion of the non-economic loss of a most extreme case. It has been said that the task under such legislation involves reaching a point where further reasoning is impossible and it is necessary to make a determination which is insusceptible to entirely logical exposition (Southgate v Waterford (1990) 21 NSWLR 427 at 442) and that the assessment of general damages is an evaluative process in respect of which minds may reasonably differ (Woolworths Ltd v Lawlor [2004] NSWCA 209 at [14]). Nonetheless, the statute requires a comparison to be made of the non-economic loss suffered by a plaintiff against the non-economic loss in a most extreme case. The statute does not require the comparison to be made against the most extreme case imaginable. In Kurrie v Azouri (1998) 28 MVR 406 at 413, Sheppard AJA said: ‘The expression “a most extreme case” requires some discussion. It enables one to provide oneself with a yardstick as to what the legislature had in mind. A court considering the question will need to contemplate what in practical terms is embraced by “a most extreme case”. Immediately one considers such a case, one thinks of cases of quadriplegia, perhaps some serious cases of paraplegia, cases of serious brain damage and, perhaps, some cases of extremely serious scarring and disfigurement caused, especially to young children, by scalding or burning. No doubt there are others.’”

314. See also Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [5] and generally Hall v State of New South Wales [2014] NSWCA 154 per Leeming JA.

315. The plaintiff is currently 63 years of age. He has a life expectancy of approximately 86 years of age**.** He therefore has approximately 23 years ahead of him (multiplier 721.2 on the 5% tables). Whilst the plaintiff’s age is relevant to the assessment of non-economic loss, it is only one of many factors: Reece v Reece (1994) 19 MVR 103; [1994] NSWCA 259; Varga v Galea [2011] NSWCA 76 at [73].

316. I take into account that the plaintiff has a significant pre-existing psychiatric condition (which he did not concede) and his evidence that he has no requirement for his NDIS funding as he is able to everything in the community without assistance. For instance, he swims for exercise, gets groceries and takes care of his children, and has for many years.

317. The plaintiff claims non-economic loss at 100% of a most extreme case, or $804,000. The defendant submitted that the appropriate allowance for non-economic loss would be in the range of 30% to 35% of a most extreme case. As I have found that the plaintiff has suffered no harm at all, I notionally find that the plaintiff would be entitled to 33% of a most extreme case.

318. I would therefore allow $265,500.

Past Out-of-Pocket Expenses

319. The plaintiff claimed $47,547.12 in past out-of-pocket expenses, being $21,118 set out in a Medicare Notice of Charge dated 2 February 2021 and $26,429.12 set out in a Medibank Claims History dated 27 July 2020. No attempt was made to separate those expenses which were clearly unrelated to the plaintiff’s claim, for example a vasectomy. There is also no evidence from any medical practitioner to suggest that the reversal of the BPD surgery was necessary, or indeed related to anything done by Dr Ritchie.

320. The defendant accepted the mathematical calculation of $47,547.12 based on the two documents noted above but denied that these expenses were causally connected to Dr Ritchie’s alleged negligence.

321. Like anything else, out-of-pocket expenses which cannot be agreed must be proved on the balance of probabilities. The plaintiff has failed to prove on the balance of probabilities that the sum he claims to have expended was caused by the infirmities he alleges are the result of the defendant’s negligence.

322. As a buffer, I would allow only a small sum for testing and occasional GP review, being $3000.

Future Out-of-Pocket Expenses

323. In his Statement of Particulars, the plaintiff claims future expenses including ongoing review with a GP, a dietician, an exercise physiologist, an occupational therapist, a physiotherapist and a psychologist or psychiatrist. It is claimed (without supporting evidence as to cost) at $150 per week for the remainder of his life.

324. The evidence suggests that the plaintiff has no need for GP, dietician, exercise physiologist, occupational therapist or physiotherapist review. I would only allow some buffer to allow him to consult with a psychologist or a psychiatrist, which would be to his benefit. No costings have been provided.

325. I would allow $5000.

Economic Loss

326. Assuming a retirement age of 67 years, the plaintiff has 4 years of his working life ahead of him, which yields a multiplier of 189.6. Dr Ritchie’s operation took place approximately 1430 weeks in the past.

327. As to economic loss in the past, I observe that it cannot be in dispute that the plaintiff was able to work in the several years following the BPD surgery. The plaintiff ceased employment for reasons entirely unrelated to that surgery. He eventually had a BPD reversal surgery in about 2010. It is unclear on the evidence why the plaintiff never returned to work.

328. On the state of the evidence, I am unable to make any precise calculation with respect to the plaintiff’s alleged past economic loss, which he calculates at $1,900,38.98 less 15% vicissitudes (adverse over favourable), being $1,615,323.83.

329. Taking into account the evidence, I would allow only a small buffer of $25,000 for periods (say a loss of $500 over 52 weeks) when the plaintiff was unable to work on account of some nutritional deficiency or an exacerbation of his pre-existing psychiatric injury.

330. So far as the future is concerned, I would allow $10,000, assuming a loss of $500 over 20 weeks.

331. I allow nothing for past and future loss of superannuation, as I consider that I have included those losses in the buffers.

Past and Future Assistance

332. With respect to past gratuitous assistance, the plaintiff claims 6 hours per week for the period from 9 March 1999 to date (being $167,400). It is fair to say that the plaintiff’s claim was entirely unexplored in the evidence. Like all else, it was for the plaintiff to prove on the balance of probabilities both the need for, and the actual provision of, assistance. He has failed to do so, and I allow nothing for past gratuitous assistance.

333. With respect to future care, the plaintiff’s occupational therapist allowed $450,018.17 for personal care, domestic assistance, gardening and handyman assistance and transport assistance. The plaintiff’s own evidence was that he was able to perform all of these functions without assistance. His occupational therapist, Ms Angus, agreed that she would need to perform a fresh assessment of the plaintiff’s need in light of this evidence. The plaintiff has therefore failed to prove any need for future care of any kind, and I allow nothing under this head of damage.

Funds Management

334. The cost of funds management was to be determined at a later date in the event of the plaintiff’s success. He has not been successful. In any event, he has not proved that he is incapable of managing his funds. Indeed, the evidence discloses that he is able to manage the funds that he has.

335. Had the plaintiff been successful, I would have assessed the plaintiff’s damages as follows:-

Non- economic loss: $ 265,500

Past out-of-pocket expenses: $ 3000

Future out-of-pocket expenses: $ 5000

Past economic loss: $ 25,000

Future economic loss: $ 10,000

Past gratuitous care: $ 0

Future care: $ 0

TOTAL: $ 308,500

Disposition

336. I make the following orders:-

337. Verdict and judgment for the defendant.

338. The plaintiff is to pay the defendant’s costs of the proceedings on the ordinary basis unless a party is able to demonstrate an entitlement for some other costs order.

339. In the event that a party agitates for some other costs order, they are to contact my Associate within 7 days so that a timetable can be set for submissions and argument if necessary.

340. The exhibits and subpoenaed material are to be returned forthwith. The exhibits must be retained, intact, by the party or person who produced that material until the expiry of the time to file an appeal or until any appeal has been determined.

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Amendments

30 June 2026

Amendment to "Representation" in coversheet.

01 July 2026

Typographical correction in [47].