Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112

Hammond Worthington v Da Silva [2006] WASCA 180

Kingston v Insurance Commission of Western Australia [2007] WADC 216

M R & R C Smith Pty Ltd T/AS Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110

Nigam v Harm (No 2) [2011] WASCA 221

Nikolaou v Papasavas, Phillips & Co (1988 - [1989] HCA 11; 1989) 166 CLR 394

v Mattacks [2001] WADC 25

Watts v Rake [1960] HCA 58

Wright v Shire of Albany (1993) Aust Torts Reports 81-239

1 CURTHOYS DCJ: On 21 January 1998 Brent Falkingham rode over a jump on his mountain bike. He landed awkwardly, came off his bike and broke his collar bone and injured his back. He consulted a Perth neurosurgeon, Mr Wayne Thomas, about his injured back. Mr Thomas diagnosed a prolapsed disc and carried out a microdiscectomy on 25 February 1998. As a consequence of the operation Mr Falkingham has suffered a permanent disability to his right leg.

2 Mr Falkingham consulted Hoffmans to see whether he could obtain compensation from Mr Thomas. Hoffmans failed to issue a writ before the limitation period expired. Mr Falkingham lost the opportunity to commence proceedings against Mr Thomas.

3 Mr Falkingham sues Hoffmans for negligence for the failure to issue the writ.

4 Mr Falkingham was born on 4 July 1975. He was 22 at the time of the operation. He is now 37.

5 Mr Falkingham completed year 10 at Eastern Hill Senior High School. He left school at 16. He attended Midland TAFE for 12 months, where he electronic engineering (ts 22).

6 Mr Falkingham commenced at Casey's Linen Service after finishing at Midland TAFE. He then worked for a short while at ERG doing electronics assembly. He then worked for a year at Mundaring Motors as a driveway attendant, a trade's assistant to a mechanic and a tyre fitter. He also delivered Boral gas (ts 22).

7 Mr Falkingham then commenced working at the Sons of Gwalia mine site at Bullfinch, 30 km north of Southern Cross. His duties involved operating a mill and crusher, operating machinery, driving loaders and bobcats, and using 'a shovel a fair bit'. He concluded work there in December 1997 (ts 23).

8 The work at Mundaring Motors and Sons of Gwalia was physically demanding.

9 At the time of the operation in early 1998 he was not working.

10 Mr Falkingham described himself as a very active person. He was often out doing physical things like riding mountain bikes, abseiling, rock-climbing, jogging and going to the beach (ts 21).

11 Prior to the operation he had an active social life going out to restaurants, going to the pub and having people around for dinner parties (ts 44). His wife confirmed Mr Falkingham's evidence as to his recreational and social activities (ts 112 - 113).

12 Prior to the operation Mr Falkingham, and his now wife, lived at a rented property in Stoneville. It was a single story house on an 1800 m² block (ts 45).

13 Prior to the operation Mr Falkingham did his share of work around the house including cleaning, gardening and wood chopping. He did the majority of the cooking. He also did the laundry. He also carried out any maintenance required on the house; for example, changing light bulbs, minor repairs and similar tasks (ts 43 - 44).

14 There was a lawn at the front of the house which Mr Falkingham mowed regularly prior to his injury. On average, he spent half an hour a week mowing the lawn. He spent an hour or so cleaning the gutters every few months (ts 45).

15 The only incident of note that Mr Falkingham experienced in relation to his health was a back strain at Christmas 1996. This occurred as a result of lifting his 14-year-old sister.

16 In examination-in-chief Mr Falkingham described the effect of the back strain in 1996 as giving him a bit of discomfort. He said that when he went back to the mine site he had to have a bit of time off because of it. He thought he had had a week off work and had been spent some of his rostered days off resting as well (ts 21).

17 Mr Falkingham's explanation for leaving the mine at Christmas 1997 was that he wanted to work closer to home and did not like the travelling (ts 22).

18 In cross-examination, Mr Falkingham said that following the 1996 incident with his sister he found the drive to the mine at Bullfinch very difficult. He had to stop frequently because of back pain. He was only able to do four hours instead of 12 hours on the first nightshift and he then went back to his room at the camp and rested. He subsequently went into Southern Cross to see a Dr Ward who prescribed painkillers and anti-inflammatories. He spent the whole week resting in bed. He was then rostered off and spent the next five days in bed. He continued to have back pain but it had eased a bit.

19 In February 1997 he was scheduled to start a fire fighting course in Perth. Because of the pain he saw Dr Harrison who prescribed anti-inflammatories. He then went and saw a chiropractor in West Midland. This offered some very short-term relief. He saw the chiropractor about five or seven times over a month. He would see the chiropractor on his rostered days off. He then saw a Bowen therapist on several occasions (ts 75 - 77).

20 Mr Falkingham resigned from the mine on 25 December 1997 for a number of reasons. A major reason was that his back pain was causing him discomfort (ts 77).

21 In contrast to what Mr Falkingham said in cross-examination, in examination-in-chief Mr Falkingham did not state that his back pain was a reason for leaving the mine. Rather, in his examination-in-chief he understated the impact of the back injury. This impacts on his credibility and illustrates how fraught with difficulty credibility cases are.

22 Mrs Falkingham was unaware of the incident where Mr Falkingham hurt his back playing with his sister at Christmas in 1996. She heard about it later (ts 113). She stated that Mr Falkingham seemed fine when he came home from the mine. She was unaware that he had any back problems at any time prior to the injury other than a bit of a niggle. She was aware that he had gone to see a chiropractor every so often but there was nothing that caused him to stop doing any of the things that he was doing. She said that he was still working full-time and he was still doing his mines rescue up at the mine (ts 113 - 114).

23 At the time of the incident with his mountain bike in 1998 Mr Falkingham was unemployed. He did not know what the future held or what he was going to do. Mr Falkingham said that before the injury and operation he was contemplating becoming self employed. He was leaning towards doing a lawn mowing round. He had a couple of days work experience with an operator and he had contacted a person who was selling his round (ts 59).

24 Mr Falkingham explained that he had a bad back prior to the injury and operation and did not know how he would cope with lawn mowing, but he was hoping it would be alright. (ts 77).

25 Mr Falkingham was considering a less physically demanding occupation prior to the injury. It is difficult to know what occupation he would have taken up but for the operation. Lawn mowing was an option he was considering.

26 It is probable that Mr Falkingham would not have continued with work that was as physically demanding as the work on the mine. However, that would still have left him with a wide range of occupations that involved a degree of physical activity.

27 Mr Falkingham and a friend were riding their mountain bikes. They came to a vacant block that had jumps on it. They were riding their bikes over the jumps. On one of the jumps he landed wrongly and went over the handle bars. He landed on his right side and laid there in pain. He had broken his collar bone and injured his back (ts 23 - 24).

28 Following the injury, Mr Thomas was taken to see his general practitioner, Dr Harrison, and from there to hospital by ambulance. His broken collar bone was treated and he was discharged with his arm in a sling (ts 24).

Mr Falkingham's condition after the accident and before the operation

29 Mr Falkingham said that following his discharge from hospital he continued to suffer back pain. As a result, he went to see Dr Harrison again on 16 February (ts 24).

30 He described the back pain as a sharp pain down his leg (ts 102).

31 Mr Falkingham agreed that after the injury and before the operation he would not have had any reasonable prospect of doing any labouring type work and possibly not lawn mowing (ts 78).

32 Mrs Falkingham said that between the injury and the operation Mr Falkingham was fine. Their engagement party was on 7 February 1998 (ts 116). She said that although his arm was in a sling he was dancing and assisted in setting up before, and packing away after, the party. She said there was nothing actually physically wrong other than that he had a broken collar bone (ts 114).

33 James Cregan, Mr Falkingham's father-in-law, gave evidence that prior to January 1999 he was not aware of any physical problems that Mr Falkingham had other than that he had his arm in a sling at the engagement party (ts 120).

34 The pain from Mr Falkingham's back did not resolve and ultimately his general practitioner, Dr Harrison, sent him for a CT scan (exhibit 10). Following the CT scan Mr Falkingham was referred to Mr Thomas.

35 There was no suggestion that the back pain was intolerable or that it required immediate attention.

36 Mr Falkingham, and Mrs Falkingham, first saw Mr Thomas on 17 February 1998.

37 At the time Mrs Falkingham was working with people with disabilities as a social trainer. She wanted to make sure that Mr Falkingham was not going to end up with any permanent damage from the operation (ts 115).

38 Mr Falkingham said that Mr Thomas' diagnosis was a prolapsed disc that was pushing or pinching on his nerves (ts 24). Mrs Falkingham's recollection of the conference with Mr Thomas was that he said there was a protruding disc that was pushing on Mr Falkingham's nerve that needed to be relieved (ts 115).

39 Mr Thomas said that Mr Falkingham could have a cortisone injection which would be temporary or he could have an operation to fix the problem (ts 25, ts 115). Mr Falkingham said that Mrs Falkingham raised the possibility of nerve damage and Mr Thomas told them that it would be very hard to damage nerves and that the nerves actually grow back anyway (ts 25, ts 79, ts 115). Mrs Falkingham said that she asked if there was any possibility of any sort of permanent damage and Mr Thomas said no.

40 Mr Thomas said that surgery would be the way to go because painkillers would not solve the issue. They would just stop the pain. Mr Thomas said that an L4/5 microdiscectomy would be required, which would involve going in between the vertebra to slice off some of the disc that had protruded out (ts 25).

41 Mr Falkingham said that Mr Thomas had not raised anything about the risks of surgery before his wife raised the issue of nerve damage (ts 80). Both Mr and Mrs Falkingham stated that Mr Thomas did not mention that the nerves could be severed and that there could be permanent damage (ts 80).

42 Mr Falkingham gave evidence that Mr Thomas did not outline any of the general risks of any surgery (ts 79 - 80).

43 Mr Falkingham gave evidence that Mr Thomas stated that he would need four to six weeks off and be on light duties, but that after 10 weeks he should be back doing heavy duty heavy lifting (ts 80).

44 Mr Falkingham stated that if he had known there was a risk that he would not be able to use his right leg properly or walk then he would definitely have opted for at least trying the painkillers or taking another opinion from another doctor (ts 30).

46 Mr Thomas carried out a microdiscectomy on 25 February 1998.

47 The procedure for a discectomy is set out in a series of diagrams (exhibit 4). In essence, it involves removing the subcutaneous tissue and fascia and the muscle to reveal a workspace. The bony lamina is partially removed which reveals the ligamentum flavum to give access to the epidural space. A retractor is used to push the thecal sac and nerve root medially out of the way. Using a pituitary rongeur the surgeon grabs onto the herniation and starts tearing it out chunk by chunk. The wound is closed and the surgery is complete.

48 Mr Thomas' operation report dated 25 February 1998 (exhibit 11) states:

With the patient prone a small incision was made at the L4/5 level which had been verified radiologically. The soft tissues were elevated on the right and under the microscope a laminotomy carried out. The L5 nerve root proved to be extremely tight and it was difficult to retract. Anterior to it was a large protrusion of the L4-5 disc which in some respects was typical of a juvenile protrusion in that it was rather tenacious and difficult to remove. Ultimately a good clearance and decompression of the disc protrusion was achieved and the nerve root was then free. The wound was then closed in layers.

49 Mr Thomas' letter to Dr Harrison dated 27 February 1998 (exhibit 7) states:

At surgery on Brent Falkingham on Wednesday 25th February 1998 after carrying out the usual laminotomy the L5 nerve proved difficult to retract because of it's tension and at the completion of the discectomy a small tear in the dural covering of the nerve was noted. CSF did not escape however indicating that the tear involved only the dura not the arachnoid.

50 After the surgery Mr Falkingham woke up with 'a bit of pain around the back area'. He had no bladder control. More significantly, he had numbness in both legs and around the groin area, i.e., bilateral symptoms. (ts 25).

51 Mr Thomas saw Mr Falkingham on the day following the operation. There is no evidence as to when the operation was performed and when Mr Thomas came to see Mr Falkingham. Hence, I am not in a position to determine exactly how long it was between the operation and when Mr Thomas saw him.

52 Mr Falkingham told Mr Thomas about the symptoms. Mr Falkingham subsequently discovered that he was having problems defecating (ts 26).

53 Mr Thomas organised for a physiotherapist to see Mr Falkingham (ts 26). He had difficulty placing his right leg into the correct position and it did not help that his left leg was weak (ts 28).

54 Mr Falkingham was discharged on elbow crutches two days after the surgery (ts 28).

55 Mr Thomas' letter to Dr Harrison dated 27 February 1998 (exhibit 7) states:

Post-operatively Brent had evidence of a marked L5 radiculopathy with profound weakness of plantar flexion, eversion of the right foot and of dorsi flexion and plantar flexion of the toes of the right foot. There is a moderate weakness of knee flexion and moderate weakness of hip abduction. On the sensory side he has noticed fairly intense paraaesthesiae in the leg where he previously had pain. The pain itself is essentially gone. To sensory testing even though he has paraesthesiae he can appreciate the sharpness of pinprick in all areas tested.

56 Mr Falkingham saw Mr Thomas again on 3 March 1998. Mr Thomas' letter to Dr Harrison dated 3 March 1998 (exhibit 8) states:

I saw Brent Falkingham in the Neurosurgery Clinic today some five days post-operatively following his right L4/5 microdiscectomy. He has been faring reasonably well at home and with the elbow crutches is reasonably mobile. He has noticed that there is weakness and numbness in the left leg as well as the right but it is not nearly so severe. Nevertheless he doesn't feel that his left leg can properly take his weight at the present time and he remains quite dependent on the crutches. He has perineal numbness and this is much more marked on the right than the left. He feels there may have been some slight return of movement of the right great toe since leaving hospital a few days ago. He has been able to void reasonably well and has not had any difficulty with bowel function. His pain has not been too troublesome. He does experience some pain in the right hip area and the paraesthesiae are not pleasant but these symptoms are no where near as severe as the pain that he had prior to removal of the disc protrusion.

On examining Brent today straight leg raising could be carried to about 50º on both side before paraesthesiae was induced along the back of the legs. The power of hip flexion was normal bilaterally as was the power of knee extension. There was severe weakness of dorsiflexion of the right foot with virtually no movement of the lateral four toes and only weak dorsiflexion of the great toe. There was profound weakness of plantar flexion and eversion of the right foot. There was moderate weakness of plantar flexion of the left foot. Knee flexion was weak on both sides, more so on the right than the left, and hip abduction was also weak bilaterally, again more so on the right than the left. Sensation to pin-prick was impaired over the back of the right calf and pin-prick sensation was altered in it's character over the dorsum of the right foot, the sole of the right foot, the back of the right thigh and the perianal region on the right. On the left a similar alteration of pin-prick quality with an unusual tingling sensation was noted over the lateral border of the foot and the sole of the foot, and the posterior calf. Sensation to pin-prick was preserved in the left posterior thigh and perianal region.

57 Mr Thomas organised for a right ankle foot orthosis (AFO) to be fitted (ts 28).

58 Following the consultation with Mr Thomas on 3 March 1998, Mr Falkingham had physiotherapy three days a week for about six weeks (ts 28).

59 Mr Falkingham saw Mr Thomas again on 12 March, by which time he had started regaining feeling in his left leg. Apart from that, not much else had changed (ts 29).

60 Mr Falkingham commenced hydrotherapy in Bassendean on 26 March and continued that for about 10 weeks (ts 29).

61 Mr Falkingham saw Mr Thomas again on 1 April, 29 April and 10 June 1998.

62 By 10 June Mr Falkingham had pretty much gained full use of his left leg. There was no change in his right leg (ts 29).

63 Mr Falkingham saw Mr Thomas on 23 September when he was informed by Mr Thomas that the condition of his right leg was permanent (ts 30). Mr Falkingham's evidence of Mr Thomas' explanation for this was that they had to push hard against the nerves to get to the disc, that calipers had been used and that his assistant, who was operating the calipers, had squashed the nerve (ts 82).

64 The only investigation Mr Falkingham has had since the operation is a nerve conduction study conducted by Dr Rick Stell in 2002 (ts 57, ts 88). Apart from seeing doctors for medico-legal review Mr Falkingham has not attended other doctors.

65 Mr Falkingham initially took the pain-killing medication prescribed by his general practitioner. He ceased using prescription pain-killers and now uses one or two 24 tablet packets of Neurofen a month. A packet costs about $9 or $10 (ts 56 - 57).

66 Mr Falkingham was on a disability pension from February to November 1998 (ts 58).

67 Mr Falkingham decided to return to the workforce in late 1998. He obtained work with an electronics company, Romteck in Osborne Park, as an electronic assembler working in the production area (ts 32). In 1999 he decided to attend Midland TAFE to study civil and structural drafting. He did a full year there. During this time he worked at Romteck one day a week and during the TAFE vacations. He did not pass the TAFE course but he was able to use the skills he had learnt in that course in his work at Romteck (ts 32 - 33).

68 Mr Falkingham was promoted at Romteck. He had two people working under him. He had to liaise with supply companies to obtain components for assembly (ts 36).

69 Mr Falkingham finished at Romteck at the start of 2005. He accepted that he could have stayed at Romteck and that it was his decision to leave. He left because he wanted a job that had a greater outdoor component and he found the job a bit boring. He wanted to make more money.

70 Mr Falkingham commenced work as a real estate sales representative earning commission in 2005 (ts 59).

71 Mr Falkingham's tax records from 1994 to June 2005 were exhibit 1.

72 While working at Romteck Mr Falkingham found he had difficulty moving about the workshop with his crutches. He also found that his hands hurt and that it was difficult to carry anything. In 2002, as a result of advice from Dr Harrison, he purchased a wheelchair for about $2,000. He still has that wheelchair (ts 33 - 34).

73 Once he purchased the wheelchair Mr Falkingham used it most of the time at Romteck as it was more convenient. He had his hands free. He continued to use his crutches or a walking stick at home (ts 36).

74 After the purchase of the wheelchair he became involved in wheelchair sports. His involvement in wheelchair sports ceased in 2005, when he started working closer to home, because there were no facilities nearby (ts 34). He tried a number of other sports, such as cycling and rock climbing, but, because of his right foot he was not able to pursue them (ts 35).

75 For three or four years Mr Falkingham wore a Swedish knee cage to prevent his right knee hyper-extending causing his knee joint to ache. The Swedish knee cage stopped his right knee hyper-extending but it caused other issues such as sweating on the bands at the back of the knee, resulting in sweat sores. The frame of the knee cage was quite solid and rubbed on the inside of his right calf. Because he could not feel his right calf, the knee cage dug into his right calf (ts 37 - 38).

76 Once Mr Falkingham left Romteck he commenced work as a real estate representative in Chidlow. Many of the properties in the area around Chidlow are five acre properties. He found it was too difficult to get around properties if he used his wheelchair. Many of the properties have gravel driveways and gumnuts on the ground causing difficulties with traction in the wheelchair. He initially used his crutches for mobility (ts 39 - 40).

77 Mr Falkingham commenced using a walking stick in about March 2005. The walking stick slowed him down but he had one hand free. He needed to be more careful of the terrain and had difficulties with stairs. He was less stable on his feet but a walking stick gave him a little bit more freedom (ts 40).

78 Mr Falkingham's disability meant that his ability to show clients properties was limited (ts 41).

79 In 2008 Mr Falkingham commenced his own business as a real estate photographer. He accepted that if he had stayed as a real estate sales representative he would have earnt more than as a real estate photographer.

80 Prior to the operation Mr Falkingham owned a manual Landcruiser. He sold it following the operation as a result of difficulties in meeting the repayments. He purchased an automatic Ford Falcon. He drove the Ford Falcon with his left leg crossed over his right leg. In 2005 he purchased another Landcruiser, a manual. He found that because he sat up higher in the Landcruiser seat he was able to use his right leg to operate the accelerator and brake (ts 41 - 43).

81 In August 1999 the Falkinghams purchased a single story house in Chidlow, again on an 1800 m² rural block. The property has a slight slope. The house has three bedrooms and one bathroom. There is a 6 m x 6 m shed on the property. There is a garden bed behind the house with steps in the middle leading to a lawn area. Beyond that is a vegetable patch and a chook yard (ts 46). Pictures of the property appeared in Appendix D of exhibit 2.

82 The house has a wood fire heater. This requires wood to be chopped. When asked why he did not buy a house with a gas heater or a small block where he could manage, given his disabilities, Mr Falkingham's response was that gas heaters in the hills are very expensive and that he brought in the hills because that is where he has always lived and he wanted to stay in the hills. He also stated that his wife wanted to stay in the hills. Mr Falkingham accepted that he and his wife bought the Chidlow property notwithstanding that it needed a lot more manual work than the average domestic house to keep it running on a daily basis. Mr Falkingham accepted that he brought it at a time when he was aware of his disability and that it was his choice.

83 The Falkingham's now have two children a daughter born on 20 December 2006 and a son born on 2 October 2009. Mrs Falkingham performs domestic duties and raises the children.

84 Mr Falkingham said that his wife pretty much does everything inside the house, including the laundry and cooking. He does only a small amount of cooking because he finds it difficult to move around, prepare everything and get it ready for cooking. He also has to stop and sit down and rest after about 10 or 15 minutes. He also finds it difficult to access low shelves and he can only use one hand to access things because he needs to use a crutch or a walking stick (ts 48)

85 Mr Falkingham is unable to do housework because he needs to use a walking stick to move about the house. Using a vacuum cleaner or broom and crouching down to use a brush and dustpan is too difficult (ts 65).

86 Mrs Falkingham carries out the vacuuming. Up until 2005 she would have vacuumed about 10 minutes a day and an hour a day on weekends. Prior to the operation they would have shared the vacuuming duties (ts 65 - 67).

87 Prior to the operation Mr Falkingham would have spent an hour a week doing the shopping but now he only tags along (ts 49). He is limited in his ability to shop because he has difficulty holding his walking stick. The most he can carry in a shopping basket is 4 to 6 2 litres of milk and a few other small items (ts 60 - 61).

88 Prior to the operation Mr Falkingham did all the laundry himself. Mrs Falkingham now does all the washing and hanging out. On a weekly basis she probably spends about half an hour or so doing the washing. She spends about an hour a week cleaning (ts 69).

89 Since they moved to Chidlow, if Mrs Falkingham is unable to do the house maintenance, then they would usually have Mr Falkingham's father, father-in-law or brother-in-law do the maintenance. Mr Falkingham thought that the maintenance would be about two hours per month. Similarly, his father or father-in-law would help with mowing the lawn, digging holes, gardening and chopping wood, for at least an hour a week (ts 46 - 47). Mrs Falkingham confirmed that her father or her father-in-law now do the outside work.

90 Mr Cregan confirmed that since the operation he has assisted in chores outside, mainly to do with gardening. About four times a year he cuts down weeds with a brush cutter. He spent considerable time fencing the property and erecting sleeper retaining banks with Mr Falkingham. He said that he thought that on average he spent about an hour a week assisting in chores.

The impact of the operation on relations with his wife

91 The effect of the operation has been that Mr Falkingham's sexual relations with his wife are limited to about once every two months (ts 49 - 50). Mrs Falkingham confirmed Mr Falkingham's evidence as to the impact on their sex life. She said that if they have sex Mr Falkingham will suffer pain the next day as a result of difficulties positioning and supporting himself (ts 117).

92 The public transport situation in Chidlow is very limited because public transport is irregular. The nearest bus stop is a fair distance from the Falkingham's house. He would have to drive to get to public transport.

93 Mr Falkingham was unable to drive for about six months after the operation. Someone would have to drive him to doctor's appointments or to go shopping at least once or twice a week (ts 71).

94 Mr Falkingham's condition is essentially unchanged since September 1998.

95 Professor Nade examined Mr Falkingham on 21 January 2003 (exhibit 6, 21 January 2003, page 5). He stated:

His right lower limb showed that the distal part of the foot was slightly cooler than the left. He had decreased appreciation of light touch sensation, and pin prick sensation, in the distribution of the right fifth lumbar and first sacral nerve roots. The second, third and fourth sacral nerve roots had normal appreciation of sensation. Muscle power in his right lower limb was normal for hip flexion and abduction. The extension was normal in power (MRC grade 5), while knee flexion was MRC grade 4. He was able to dorsiflex his right ankle due to action of the tibialis anterior muscle, causing it to invert at the same time. Power was MRC grade 4. Power of ankle flexion was MRC grade 1. The extensors of his greater and lesser toes were MRC grade 0, while the flexors of his greater and lesser toes were MRC grade 1. Foot eversion was MRC grade 0. His knee jerk deep tendon reflex was of normal amplitude, similar to the left leg, while his right ankle jerk was also absent. Plantar reflexes were flexor.

96 In Professor Nade's report dated 1 February 2010, he concluded that Mr Falkingham's condition had stabilised and the whole person impairment was 13% under the 5th edition of the American Medical Association publication 'Guides to the Evaluation of Permanent Impairment' (AMA 5). He concluded that 'it is my opinion that Mr Falkingham will not be able to perform any onerous physical work in the future, but I see no reason why he could not carry out his current occupation for the foreseeable future' (exhibit 6, 1 February 2010, page 3).

97 Mr Falkingham described the numbness in his right leg as going down the whole of his leg to the foot. On his foot the numbness goes down the outer right side of his foot and across the top of his foot. His four smaller toes are all numb. His large right toe and the sole of his right foot are hypersensitive. He is unable to walk around in bare feet (ts 38 - 39).

98 Mr Falkingham now has a carbon fibre AFO. From 1998 - 2005 he had a plastic AFO. A picture of the plastic AFO appeared at Appendix D of exhibit 2. He puts the AFO on first thing in the morning and takes it off last thing at night. He wears a pressure stocking with his AFO. He does this is to prevent what he describes as sweat sores (ts 62). He is unable to walk around without the AFO, even in the house, because he rolls his ankle too easily. He does not have any strength in the ankle (ts 51 - 52).

99 Mr Falkingham has difficulty finding shoes that he can wear. Joggers are the best footwear but the AFO wears them out and he requires a new pair every five months or so. The joggers cost about $100 (ts 63).

100 Mr Falkingham's walking is limited to short distances, to what he can cover in about 10 - 15 minutes (ts 41, ts 50). Beyond 10-15 minutes of walking his right hip and his knee start hurting and he needs to rest (ts 50). His standing tolerance is limited to 10-15 minutes (ts 41). His balance is not very good. If he walks without with a crutch or walking stick he needs to make sure he has something nearby to support him. Even with the walking stick he loses his balance, causing him to stumble or fall over (ts 51). If he attempts to walk for more than 20 or 30 minutes his left hip aches (ts 68).

101 In cross-examination it was put to Mr Falkingham that his back continued to be a source of pain. Mr Falkingham denied that his back still causes him problems post-operatively. He explained that his leg is the source of his pain and any problem that he has with his back is only because of the way he walks because of his leg. He denied that he had relief from his back pain for six months and that his back started bothering him again. He denied that his back hurts in the area where it hurt before surgery (ts 78).

102 Mr Falkingham has difficulties getting in and out of bed. He also finds that he needs to lie on his right side. He does not like the sheets on his right foot because his big toe is hypersensitive (ts 68 - 69).

103 Mr Falkingham has difficulties using the shower. He has to use his walking stick to assist him when getting in and out of the shower. He has slipped down a number of times. He broke the shower screen when he slipped (ts 60).

104 Mr Falkingham has difficulty with steps (ts 63 - 64). He is unable to use ladders or to do any heavy lifting. He cannot carry anything over about 15 kg (ts 60 - 61).

105 Mrs Falkingham said that Mr Falkingham could not assist with raising the children because he cannot do things like changing the nappies, giving them a bath, picking them up and putting them in the cot. He cannot lean over and put them in or lift them out (ts 117).

106 Mrs Falkingham said that there are many activities where Mr Falkingham suffers the next day; for example, family outings. Mr and Mrs Falkingham have to assess the risks of doing something in light of the pain that Mr Falkingham will experience the next day (ts 117).

107 Mr Falkingham has difficulty driving a car (ts 42 - 43).

108 Mr Falkingham described his emotional state between the surgery and up to 2005 as coming in waves. He sometimes gets upset seeing other people do things that he cannot do; for instance, jogging down the road. His leg causes him pain and on occasions he would sit at night crying because of it. In terms of interacting with other people, he keeps to himself because he does not want to explain himself to anyone (ts 57 - 58).

109 It is not in issue that Mr Falkingham's condition is permanent. No further treatment is possible.

110 Paragraph 1(f) of the statement of claim, which is admitted, pleads:

[Mr Falkingham] in 1998 consulted the defendant for legal advice and representation in relation to allegations of negligence in respect of the surgeon's conduct of the operation (hereafter, 'the surgeon's negligence').

111 In Nigam v Harm (No 2) [2011] WASCA 221 [82] Newnes JA (McLure P concurring) stated that the starting point in determining whether a solicitor is negligent is the scope of the solicitor's retainer.

112 There is a dispute about the terms of the retainer on the pleadings although nothing turned on that at trial.

In or about 1998 entered into a contract of retainer with the defendant (hereafter, 'the retainer') for the purpose of obtaining legal advice and representation in an action for recovery of damages in respect of the surgeon's negligence (hereafter, 'the medical negligence action').

The defendant does not admit paragraph 1(g) of the statement of claim, and says the plaintiff retained the defendant to advise on the appropriateness of pursuing the medical negligence action.

115 On 2 December 2003, Hoffmans advised Mr Falkingham to issue a writ because of the impending expiry of the limitation period (exhibit 15, page 123). Mr Falkingham paid the writ fee on 3 December 2003, along with $1,000 to obtain a further medical report (exhibit 15, page 124). In the circumstances the payment of the writ fee amounted to an instruction to issue the writ before the expiry of the limitation period. Therefore, it was a term of the retainer that Hoffmans would issue a writ before the limitation period expired on 24 February 2004.

116 Paragraph 2 of the statement of claim pleads that Hoffmans accepted the retainer as pleaded in par 1(g) and contractually undertook thereby to use reasonable care and skill in advancing the medical negligence action for and on behalf of Mr Falkingham.

117 The content of the duty of care pleaded against Hoffmans is:

2(c) by reason of the relationship of solicitor and client with the plaintiff, owed the plaintiff a duty of care at common law to use reasonable care and skill in advancing the medical negligence action for and on behalf of the plaintiff;

2(d) by reason of the solicitor-client relationship with the plaintiff, owed the plaintiff a fiduciary duty not only to exercise due care and skill in advancing the medical negligence action for and on behalf of the plaintiff, but also to cease acting for the plaintiff should their interests conflict with the professional duty owed to the plaintiff.

118 Save to say that the retainer was pleaded in par 7, the defendant admits each allegation in par 2(c) and (d) of the statement of claim.

119 It was a term of the retainer that Hoffmans would exercise the care and skill to be expected of a qualified and ordinarily competent and careful solicitor in the exercise of his or her profession (Hawkins v Clayton (1988) 164 CLR 539, 580; Nigam v Harm [86]). No issue arises as to the scope of the duty.

120 Hoffmans failed to issue the writ before the expiry of the limitation period on 24 February 2004. Mr Falkingham lost the opportunity to commence proceedings against Mr Thomas for the permanent disability he suffered following the operation.

121 It is not in issue that Hoffmans breached their retainer by failing to issue the writ before the expiration of the limitation period. Hoffmans was negligent.

Did Hoffmans' breach of their retainer cause Mr Falkingham to lose the opportunity to pursue a claim of some value against Mr Thomas?

122 The real issue in this case arises from paragraph 6 of the statement of claim which pleads:

The defendant's failure to commence an action for and on the plaintiff's behalf constituted a breach of the term of the retainer and/or breach of the duty of care it owed to the plaintiff, as a result of which the plaintiff has lost a valuable opportunity to obtain an award of damages in respect of the surgeon's negligence.

The defendant denies paragraph 6 of the statement of claim and says that as the plaintiff would not have recovered any damages if proceedings were issued, there was no opportunity lost by the plaintiff as a consequence of proceedings not being issued.

124 In Hammond Worthington v Da Silva [2006] WASCA 180 [118] Buss JA (McLure P concurring) stated (see also Nigam v Harm [87]):

In my opinion, the plaintiff must prove, on the balance of probabilities, that he or she has lost something of value as a result of the solicitor's negligence; that is, the cause of action which became statute-barred had some value. See Sellars at 355; Feletti v Kontoulas [2000] NSWCA 59 per Mason P (with whom Sheller JA and Rolfe AJA agreed) at [34]; Radosavljevic v Radin [2003] NSWCA 217 per Mason P (with whom Handley and McColl JJA agreed) at [52]. The plaintiff must also prove on the balance of probabilities that, but for the solicitor's negligence, he or she would have pursued the lost cause of action.

125 Accordingly the questions that arise, to be determined on the balance of probabilities, are whether:

(a) Hoffmans' negligence caused Mr Falkingham to lose the opportunity to pursue a claim of some value against Mr Thomas; and

(b) Mr Falkingham would otherwise have pursued the lost cause of action.

Assessing the loss of Mr Falkingham's chance in the lost proceedings

126 In Nikolaou v Papasavas, Phillips & Co (1988 - [1989] HCA 11; 1989) 166 CLR 394, 404 Dawson, Toohey and Gaudron JJ said:

He should have assessed damages by reference to the loss at [the date at which the claim became statute-barred] of the right to claim damages. That loss would ordinarily be quantified by the trial judge taking a broad brush approach to the several matters that in a particular case may require to be resolved - the likely date when in the absence of the negligence of the solicitor the action would have come to trial, the evidence that would or should have been available to the plaintiff at that time, the relevant principles of law then governing the assessment of damages, the question of contributory negligence, and ... the prospects of any judgment given in favour of the plaintiff being satisfied.

127 In Hammond Worthington v Da Silva Buss JA (McLure P concurring) stated:

1. ... the value of the plaintiff's lost opportunity to enforce the cause of action by issuing and pursuing proceedings to settlement and judgment is to be determined by reference to degrees of probabilities and possibilities ...
2. In Phillips v Bisley, unreported; CA SCt of NSW; 18 March 1997, Mason P (with whom Meagher JA and Dunford AJA agreed) considered how to distinguish between the 'nuisance value' of a lost cause of action, on the one hand, and a lost cause of action which had sufficient 'prospects' for a court to conclude that the plaintiff would have been likely to have received a valuable offer of settlement, on the other. His Honour said, at 8 - 9:

The critical issue, not clearly addressed in the cases, is how to distinguish between the derisory or 'nuisance value' offer which Lord Evershed MR in Kitchen would disregard, and the situation where a case has sufficient 'prospects' for the court trying the negligence claim to be able to say that the plaintiff would have been likely to have attracted a valuable offer of settlement (even if worth considerably less than 100% of the plaintiff's actual loss): cf Yeoman's Executrix v Ferries (1967) SLT 332.

Difficult and elusive though the distinction may be, the court trying the issue of the lawyer's negligence must proceed on the evidence before it. This involves considering the factors mentioned in the passage quoted from Nikolaou, including 'the evidence that would or should have been available to the plaintiff at that time' (emphasis added). It also involves looking at the likely response of the other party or parties in the lost proceedings (ie those which would, but for the lawyer's negligence, have been prosecuted in a timely way). Among other things this requires the court trying the negligence claim to make due allowance for the fact that a less than well informed or overly cautious lawyer for the defendant faced with a claim in the lost proceedings might have made a valuable settlement offer. But what the trial judge cannot do, in my opinion, is shut his or her eyes to the evidence showing the information that was known to or was reasonably obtainable by all litigants in the lost proceedings pointing towards an objective assessment of the plaintiff's prospects of success in the lost action.

128 I am required to assess damages by reference to the loss at the date at which the claim became statute-barred. This inevitably involves degrees of probabilities and possibilities

129 Mr Thomas did not give evidence in this case. If it were a trial of the alleged negligence of Mr Thomas then his failure to give evidence would enable an adverse inference to be drawn against him. That is not the case in this trial. The case is not a medical negligence case. The trial involves an assessment of the evidence that would or should have been available to Mr Falkingham when the limitation period expired. It also involves looking at the likely response of the other party or parties in the lost proceedings.

130 In making that assessment I am required to place myself in the position of counsel briefed to advise upon the likelihood of the action succeeding, which is not the same thing as whether it should succeed or not. (Instant Nominees Pty Ltd v Redman [1987] WAR 218, 231).

131 Professor Nade's reports, together with the letters of instruction from the solicitors, were contained in exhibit 6. His curriculum vitae was exhibit 5. The dates of his reports are 21 January 2003, 25 March 2003, 30 June 2003, 26 November 2009 and 1 February 2010.

132 The evidence referred to by Professor Nade comprised a clinical examination of Mr Falkingham on 21 January 2003, a history from Mr Falkingham, a CT scan of the lumbar spine dated 16 February 1998 (exhibit 9), Mr Thomas' operation report (exhibit 11), a letter from Mr Thomas to the referring doctor Dr Harrison dated 27 February 1998 (exhibit 7), a further letter to Dr Harrison from Mr Thomas dated 3 March 1998 (exhibit 8) and a muscle grading diagram completed by the physiotherapist who treated Mr Falkingham after the operation (exhibit 10).

133 Dr Beasel's reports, together with his curriculum vitae and the letters of instruction from the solicitors, were contained in exhibit 12. The dates of his reports are 28 January 2003 and 25 March 2003.

134 The evidence referred to by Dr Bleasel comprised a clinical examination of Mr Falkingham on 22 January 2003, a history from Mr Falkingham, the hospital notes (which were not in evidence), a report and EMG study from Dr Stell (which was not in evidence), a letter from Mr Thomas to Dr Harrison dated 17 February (which was not in evidence), the CT scan (exhibit 9) and a letter to Dr Harrison dated 27 February 1998 (exhibit 7).

135 Dr Blum's reports, together with his curriculum vitae and the letters of instruction from the solicitors, are contained in exhibit 13. The date of his report is 7 May 2001.

136 The evidence referred to by Dr Blum comprised a telephone conversation with Mr Falkingham in early 2001 (ts 253), the history contained in the letters of instruction, Dr Harrison's notes (which were not in evidence), Mr Thomas' notes (which were not in evidence), the CT Scan (exhibit 9) and the muscle grading diagram (exhibit 10).

137 In each instance the letters of instructions were admitted to place the reports in context but not as to the truth of their contents.

138 Professor Nade is a very experienced orthopaedic surgeon. In particular, he has carried out many micro-discectomies. He is also a prolific author and a very senior and learned professor, as disclosed by his curriculum vitae. His reports are far more detailed and analytical that those of Dr Bleasel and Dr Blum.

139 Dr Bleasel is an experienced neurosurgeon but although he has experience in performing discectomies he does not have experience in performing microdiscectomies. He does not have Professor Nade's academic and research experience.

140 Dr Blum is an experienced neurosurgeon. However, the extent of his experience in performing microdiscectomies is unclear and he does not have Professor Nade's academic experience.

141 Overall I find that Professor Nade is better qualified to give evidence on microdiscectomies and where opinions differ it is likely that a notional court would have preferred the evidence of Professor Nade.

Could a notional court have found that Mr Thomas failed to warn Mr Falkingham adequately - the pleadings

142 The relevant particulars of par 6(a) plead that Mr Thomas was negligent in that he:

(x) ... failed to adequately provide advice and information in relation to other safer operative techniques available to the plaintiff in advance of the operation which would have exposed the plaintiff to lesser risk of injury or permanent damage to his spinal cord (such as but not limited to a normal or open discectomy procedure), particularly having regard to the plaintiff's congenitally-narrow spinal canal shown on the pre-operative CT scan. Had such advice and information been provided to the plaintiff prior to the operation, there was a significant chance if not likelihood that the plaintiff would have chosen those alternative techniques over the microdiscectomy or chosen not to undergo any operative techniques but opted for conservative measures (such as cortisone injections into the spine); and

(xi) failed to warn or adequately warn the plaintiff of the risks associated with the microdiscectomy procedure such as paralysis, sensory loss or permanent nerve damage, particularly having regard to the plaintiff's congenitally-narrow spinal canal shown on the pre-operative CT scan. Had such advice and information been provided to the plaintiff prior to the operation, there was a significant chance if not likelihood that the plaintiff would have chosen those alternative techniques over the microdiscectomy or chosen not to undergo any operative techniques but opted for conservative measures or cortisone injections into the spine.

143 The particulars refer to a narrowed spinal canal but at trial this was not pursued.

144 The defence denies that there was a failure to warn.

145 Professor Nade stated (exhibit 6, 21 January 2003, page 8, see also ts 147 - 149):

All surgery carries risks. Those include the general risk of anaesthesia, including death, infection at the site of surgery, lung infection, urinary infection, bleeding and thrombo-embolic phenomena. The specific risks associated with (micro)discectomoy include failure to relieve the symptoms for which the surgery was performed, bleeding in the spinal canal, laceration of the meninges overlying the cauda equine, infection involving the intervertebral disc, cauda equine syndrome, division of a nerve root, formation of adhesions within the spinal canal, persisting back pain soon after, or at a distant time from the surgical procedure, anterior perforation of the intervertebral disc with vascular compromise.

146 It should be noted that a haematoma in the spinal canal as a result of such surgery is extremely rare. Professor Nade states (exhibit 6, 21 January 2003, page 9):

Subdural haemorrhage following microdiscectomy is rare ... An epidural haematoma is probably more frequent, although uncommon.

147 The disability that Mr Falkingham suffered was 'a pretty rare complication' (ts 173).

149 In Professor Nade's opinion (exhibit 6, 21 January 2003, page 7 - 8) the principal alternative treatments were to perform a standard discectomy, to give cortisone injections or to not perform surgery and to monitor the outcome of the symptoms over time. The principle indication for surgery is the severity of symptoms.

150 Professor Nade stated that a cortisone injection carries considerably less risk compared to a microdiscectomy (ts 150). Without any treatment an intervertebral disc may shrink over time reducing the symptoms (ts 150 - 151).

The experts' opinion as to what warnings Mr Thomas should have given to Mr Falkingham

151 In Professor Nade's opinion (exhibit 6, 21 January 2003, pages 8 - 9):

... a patient in whom (micro) discectomy is contemplated should be advised of the above risks (see [146]), their relative incidents, the potential benefits of the surgery, the nature of the surgery, and the post operation course to be expected, the alternative of not performing surgery does not carry any of the above risks apart from failure for symptoms to resolve, although they may with the passage of time. (emphasis added)

152 In Dr Bleasel's opinion (exhibit 12, 28 January 2003, page 5) it is customary to warn a patient of the risk of paralysis or sensory loss following such an operation even though such a complication is exceedingly rare.

Should the operation have taken place when it did?

153 In Professor Nade's opinion (exhibit 6, 28 January 2003, page 9) disc excision surgery should not be performed unless there is clear clinical evidence of dysfunction of a nerve root. In Dr Bleasel's opinion (exhibit 12, 28 January 2003, page 5) the operation was warranted according to the history. A notional court was likely to find that Dr Bleasel did not have sufficient history to form a view as to whether the operation should have proceeded. It is likely that a notional court would have preferred Professor Nade's opinion.

154 I find that it was open to a notional court to find that there was no pressing need to perform surgery and that other treatments, including simply waiting, were available and should have been preferred.

155 The law relating to a failure to warn is set out in the judgment of Newnes JA (McLure P concurring) in Nigam v Harm [No 2]:

1. Whether or not to undergo any particular form of surgery is, in the end, a matter for the patient, properly advised. It has been recognised that in determining what is an appropriate standard of medical care a court must take into account 'the paramount consideration that a person is entitled to make his own decisions about his life': Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, 487. Where a person has consented to a surgical procedure, the question is not whether the surgery was medically essential, but whether the doctor discharged his or her duty to provide the patient beforehand with relevant information and advice, including as to the material risks involved in the surgery, and performed the surgery with reasonable care and skill.
2. It is well-established that the obligation of a doctor to warn is an obligation to warn of material risks, being risks that a reasonable person in the patient's position would be likely to attach significance to or risks which the doctor is, or should reasonably be, aware the particular patient would be likely to attach significance to: Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 [75] - [81]. On whether there is a duty to warn in any particular case the views of experts will be significant but not decisive: Rogers v Whittaker (487), Rosenberg v Percival [7].
3. ... Whilst the test is a subjective one, in the sense that the question is not what a reasonable patient would have done but what the particular patient would have done if warned (Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 [32], [93]; McCarthy v Kidd [2001] NSWCA 304 [66]), any evidence of the respondent that she would have declined to undergo the appendectomy by Pfannenstiel incision would inevitably fall to be tested against the relevant objective evidence: see Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, 560, 581; Rosenberg v Percival (463).

156 The fact that the risk of a subdural or epidural haematoma is rare does not absolve a doctor of the duty to give a warning. The general risk of paralysis and sensory loss is sufficient to require a warning (Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112.

157 The risks of division of a nerve root and the risk of paralysis or sensory loss following the operation was real and foreseeable, even if it was extremely unlikely to occur. While the risk was low the extent or severity of the potential injury was high, particularly when reasonably available and satisfactory alternatives treatment, cortisone or simply waiting for the symptoms to resolve, could be tried and there was no urgency to conduct the operation.

158 There is evidence upon which a notional court could find that Mr Thomas' warning was inadequate in that he failed to warn Mr Falkingham in accordance with Professor Nade's and Dr Bleasel's opinion. In particular, a court could find that Mr Thomas failed to warn of the risk of division of a nerve root and the risk of paralysis or sensory loss following the operation. There is evidence that while Mr Thomas warned of the possibility of nerve damage he stated that the nerves actually grow back which negated any risk of permanent damage. If that was the warning, it was not only inadequate, it was misleading.

159 Professor Thomas and Dr Bleasel are both of the opinion that there was a duty to warn Mr Falkingham.

160 There is evidence upon which a notional court could find that Mr Thomas failed to discharge his duty to provide the Mr Falkingham with relevant information and advice as to the material risks of permanent damage. The risk of a divided nerve root and the risk of paralysis and sensory loss was a risk that a reasonable person in Mr Falkingham's position would be likely to attach significance to. Mr Thomas was aware Mr Falkingham would be likely to attach significance to it. The need to warn of these risks was all the more important given Mrs Falkingham's expressed concern about permanent damage.

161 There is evidence upon which a notional court could find that if Mr Falkingham had known that there was a risk of permanent damage, that he would not be able to use his right leg properly or be able to walk properly then he would have opted for at least taking painkillers, delaying the operation to see if the symptoms resolved or taken another opinion from another doctor.

162 Mr Falkingham's evidence is objectively credible. Mrs Falkingham was concerned about the consequences of permanent damage as a result of her work as a social trainer. It is inevitable that they would have discussed the operation and had reservations about it. Further the accident happened on 25 January, Mr Falkingham had been able to dance and help pack up at the engagement party on 7 February. The operation was on 25 February. The level of pain was not such that there was any urgency to resolve it.

163 It was open to a notional court to find that Mr Falkingham would have declined the surgery at that point and opted for conservative treatment. Had he done that he would have avoided the harm suffered.

164 It was open to a notional court to find that Mr Falkingham would not have undergone the operation on 25 February. Even had conservative treatment failed and had he undergone the treatment at a later date the likelihood of the damage to the nerve root was low. It follows Mr Thomas' failure to warn caused the injury to the nerve root that resulted in permanent damage.

165 This does not amount to a finding against Mr Thomas that he failed to give a sufficient warning.

Assessing the value of the lost opportunity of a failure to warn

166 In his closing submissions counsel for Mr Falkingham submitted that this cause of action was a 'certainty'. It is the case that there is evidence that the operation should have been the subject of an appropriate warning. However, it does not follow that the case was a certainty.

167 The evidence that was available to Mr Falkingham as at 24 February 2004 was clearly sufficient to found a case of a failure to warn. However, the case would succeed only if the Falkinghams' evidence of the conversation was accepted.

168 The legal responsibility on medical practitioners to warn had been established by the High Court by the late eighties and it is likely that Dr Thomas would have been well aware of it.

169 It is difficult to accept that a neurosurgeon would have stated that a divided or served nerve root would 'grow back anyway'.

170 The likely response of Dr Thomas in the lost proceedings would be to deny that the warning was given in the Falkinghams' terms and to say that a warning was given in the terms suggested by Professor Nade and Dr Bleasel. Dr Bleasel stated that such warnings were customary.

171 In essence, Mr Falkingham's case was heavily reliant on a credibility finding in his favour.

172 A reasonably competent solicitor would have been aware of the risks that any plaintiff faces in a trial that is heavily dependant on credibility.

173 On a broad brush assessment Mr Falkingham's lost chance was 55%. My reasons for reaching a figure of 55% are:

(a) it is a credibility case which starts at a 50% 50% position;

(b) the Falkinghams' largely corroborate each other but a judge might well conclude that that the corroboration is a result of discussing the meeting with each other over many years;

(c) the Falkinghams had concerns about the operation as a result of Mrs Falkingham's occupation and this objectively supports a finding that they would have paid close attention to such warnings;

(d) the subsequent decision to have the operation when there was no urgency is consistent with a failure to warn;

(e) Mr Falkingham's evidence about his previous back injury illustrates potential concerns with his credibility;

(f) (d) and (e) raise the probability of a failure to warn above 50% but not overwhelming so.

Therefore the 50% chance, should be raised by 5% to 55%.

Was there a subdural or epidural haematoma which could and should have been detected - the pleadings

174 The relevant particulars of par 6(a) plead that Mr Thomas:

(v) failed to detect and evacuate a sub-dural or epidural haematoma which developed during the peri-operative or post-operative period;

(vi) failed to diagnose the sub-dural or epidural haematoma within a reasonable time after the operation;

(vii) failed to require, obtain or consult adequate radiological test results after conducting the operation in order to determine the cause of the plaintiff's post-operative symptom.

175 The defence denies that Mr Thomas was negligent.

176 Professor Nade's opinion is that Mr Falkingham's disability is the result of a blood clot (haematoma) in the spinal canal that damaged the nerve roots. Dr Bleasel's opinion is that the disability is a result of the instrument used to retract the muscle and the nerves damaging the nerve roots. Dr Blum is unable to explain the cause of the disability.

177 Professor Nade's evidence was that (exhibit 6, 30 June 2003, page 1):

the cauda equine is the distribution of discrete nerve roots that emerge from the lower end of the spinal cord ... A cauda equine syndrome is the name given to the clinical state where there is evidence of dysfunction of some or all of the nerve roots in the cauda equina, on both sides, manifest by signs affecting the lower limbs and the perineum including urological and rectal dysfunction ... in simple terms the syndrome occurs when those nerve roots are either divided, compressed, deprived of their blood supply and, or lose their ability to conduct impulses due to an alteration in the structure of the nerves.

178 Mr Falkingham's symptoms after the operation were consistent with cauda equine syndrome. Professor Nade (exhibit 6, 30 June 2003, page 1), Dr Bleasel (exhibit 12, 25 March 2003, page 2) and Dr Blum (exhibit 13, 7 May 2001, page 1) all concluded that Mr Falkingham had causa equina syndrome immediately after the operation.

179 Where the experts diverge is in relation to what led to the cauda equina syndrome and whether that caused Mr Falkingham's residual disabilities.

A haematoma in the subdural or epidural space - Professor Nade

180 Professor Nade stated (exhibit 6, 21 January 2003, page 9):

In my opinion Mr Falkingham had a cauda equina syndrome following his surgery. The partial recovery as detailed above indicated that the most likely cause was haemorrhage within the spinal canal during or following surgery. Such bleeding could have been into either the epidural space or subdural space. Subsequent resolution of the haemorrhage by normal physiological processes would account for the partial recovery in his left lower limb, and in respect of micturition and defecation. I think it unlikely that a nerve root was negligently damaged by his treating surgeon.

181 Professor Nade further amplified his opinion on 30 June 2003 (exhibit 6, 30 June 2003, page 2):

1. The acute onset of Mr Falkingham's cauda equina syndrome, which produced symptoms and signs that were not present prior to the surgery performed on 25 February 1998, indicated that the most likely cause was either pressure on the nerve roots within the spinal canal by a retracting instrument during the course of the operative procedure, or bleeding into the subdural or epidural space in the spinal canal in the region of where surgery was performed causing accumulation of blood in the form of a haematoma, which caused a pressure effect on the nerve roots of the cauda equine hence causing their dysfunction.
2. In my opinion the most likely cause of Mr Falkingham's cauda equina syndrome was a subdural or epidural haematoma because of the distribution of symptoms and signs present immediately following the surgery and the partial recovery that occurred, being almost complete in his left lower limb, over a period of some months as the haematoma was resorbed as part of a normal patho-physiological process. (A haematoma is a bruise. The process of resorption within the spinal canal is similar, if not identical, to that which happens in a bruise in the skin, subcutaneous tissue, or muscle and can be easily visualised in those sites). Although nerve dysfunction due to pressure on a nerve may also recover spontaneously it appears to be a less likely occurrence in nerve roots than peripheral nerves.

182 Dr Bleasel expressed the opinion that 'there is no indication whatever, that bleeding into the epidural, or subdural space was the cause of the condition' (exhibit 12, 25 March 2003, page 2). Dr Bleasel's basis for this is that a subsequent MRI scan that did not pick up any blood (ts 237, ts 251). Dr Bleasel's explanation for the initial bilateral symptoms is that the cauda equine syndrome was not the result of the retraction, but the result of the posturing and flexion of the spine (ts 240 - 241).

183 Dr Bleasel's explanation emerged in oral evidence and no notice was given under O36A. Nevertheless it demonstrates that alternative possibilities were open. Matters such as this would have been actively pursued by Mr Thomas' solicitors in the lost proceedings.

Retraction of the nerve roots in the course of the operation

184 Dr Bleasel's opinion is that the disc was difficult to access and that the retraction of the nerve root was the most likely cause of the damage to the nerve root (exhibit 12, 25 March 2003, page 2).

185 Professor Nade excluded the retraction of the nerve roots as a cause. He stated (exhibit 6, 30 June 2003 page 2):

1. It is my opinion that the limited surgical exposure of the spinal canal during the performance of a micro-discectomy does not permit the insertion of an instrument sufficiently large to compress all of the cauda equina, and if instrumental compression did occur it would be more likely to affect one, or at the most two, nerve roots on the side of the exposure (being the right side in Mr Falkingham's case) and not have a bilateral effect.

186 Professor Nade further expanded on his reasons for excluding excessive retraction of a nerve or damage by a surgical instrument (exhibit 6, 25 March 2003, pages 1 - 2). Professor Nade referred to Mr Thomas' operation report dated 25 February 1998 (exhibit 11) and to his letter to Dr Harrison dated 27 February 1998 (exhibit 7). Professor Nade excluded retraction of the nerve roots as a cause on the basis of the neurological deficits noted in the immediate post operative period involved the fourth lumbar, fifth lumbar, first, second and third sacral nerve roots on each side, and the fifth lumbar and first sacral nerve roots on the left side.

187 While Professor Nade maintained his opinion that the most likely cause of Mr Falkingham's symptoms following the operation was bleeding, he did not completely exclude the possibility of damage as a result of a surgical instrument. (exhibit 6, 25 March 2003, page 2).

However, it would not be possible to completely exclude the possibility of the effects of a surgical instrument in a discussion of potential causes.

188 Dr Bleasel's explanation for the existence of symptoms, other than at the site of the microdiscectomy, was that because the S1 nerve root, is adjacent to and travels past the L5, the S1 nerve root could have been damaged in the course of the operation (ts 242).

189 Dr Blum was unable offer any explanation for the post-operative symptoms (exhibit 13, 7 May 2001, page 2). He concluded that Mr Thomas was not negligent.

190 Professor Nade's explanation is that the nerve root was permanently damaged as a result of an untreated haematoma that resulted from bleeding in the subdural or epidural space as a consequence of the operation. Professor Nade's explanation accounts for all of the symptoms immediately following the operation and the residual symptoms.

191 Dr Bleasel's explanation is that the nerve was permanently damaged as a result of the retraction of the nerve roots in the course of the operation. Dr Bleasel's explanation does not account for the all the symptoms immediately following the operation.

192 On the evidence as it stood at this trial, on the basis of Professor Nade's more complete explanation and his greater clinical and academic experience I conclude that Professor Nade's opinion was likely to be preferred by a notional court and that the probable cause of the residual symptoms is that the nerve root was permanently damaged as a result of an untreated haematoma that resulted from bleeding in the subdural or epidural space as a consequence of the operation.

193 However, that is not the end of the matter because that looks at the matter only from the point of view of Mr Falkingham. It does not factor in the evidence that would probably have been led by Mr Thomas' defence.

What should have been done once the symptoms emerged

194 It is important to realise that at trial no-one suggested that the bleeding and the formation of the haematoma was the result of any negligence on the part of Mr Thomas. No-one suggested that if the disability was caused by a surgical instrument there was any negligence. Therefore, Mr Falkingham's case comes down to what should have been done once the symptoms emerged. Even more importantly, it comes down to whether it would have been possible to establish at a notional trial that a haematoma existed and what steps could have been taken to reduce or eliminate the hematoma, that, on Mr Falkingham's case, caused the disability.

195 Professor Nade's opinion is that, once the symptoms of bilateral weakness and difficulties in micturation and defecation emerged immediately following the operation, Mr Thomas should have carried out an MRI to investigate the cause of those symptoms.

196 Professor Nade's report of 21 January 2003 (exhibit 6, 21 January 2003, page 9 - 10) states:

Subdural haemorrhage following microdiscectomy is rare ... An epidural haematoma is probably more frequent, although uncommon.

In my opinion that it would have been appropriate to subject Mr Falkingham to magnetic resonance imaging in the immediate post operative period, once the change in his clinical symptoms and signs became manifest ...

197 Professor Nade's report of 30 June 2003 (exhibit 6, 30 June 2003, page 2) states:

1. I confirm that it is my opinion that the symptoms and signs manifest by Mr Falkingham following surgery on 25 February 1998 should have alerted the surgeon, Mr Thomas, to the diagnose of cauda equina syndrome for which subdural or epidural haematoma as a cause should have been considered.

198 Since Dr Bleasel did not accept the presence of a haematoma he did not express an opinion.

199 Professor Nade's report of 21 January 2003 (exhibit 6, 21 January 2003, page 9 - 10) states:

[an MRI should have been carried out] in order to determine whether or not there was a collection of blood in the subdural or epidural space at that time.

200 Professor Nade's report of 30 June 2003 (exhibit 6, 30 June 2003, page 2) states:

I am also of the opinion that had magnetic resonance imaging been ordered, then a subdural or epidural haematoma, if present, would have been diagnosed.

What steps might have been taken and what might the consequences have been

201 Professor Nade's report of 21 January 2003 (exhibit 6, 21 January 2003, page 9 - 10) states:

Had [a collection of blood in the subdural or epidural space] been found to be present, re-exploration of his operated site, with evacuation of blood causing a pressure effect on nerve roots of the cauda equina, might have prevented his current state.

202 Professor Nade's report of 30 June 2003 (exhibit 6, 30 June 2003, page 2) states:

Had that been the case, and had the haematoma been surgically evacuated, and haemostasis obtained, then, on the balance of probabilities, the risk of permanent damage to the function of nerve roots would have been avoided, or markedly reduced. Decompression within 48 hours probably results in a significantly better recovery than surgery after 48 hours.

203 Professor Nade concluded that collection of blood in the subdural or epidural space was likely to have been found following the MRI and it was probable that if the site was re-explored, then the symptoms would have been avoided or markedly reduced.

204 I find that a notional court could have accepted Professor Nade's conclusion that if an MRI had been carried out then a collection of blood in the subdural or epidural space was likely to have been found and it was probable that if the site was re-explored then the symptoms would have been avoided or markedly reduced.

205 I find that it was open to a notional court to find that Mr Thomas:

1. failed to detect and evacuate a sub-dural or epidural haematoma which developed during the peri-operative or post-operative period;
2. failed to diagnose the sub-dural or epidural haematoma within a reasonable time after the operation; and

1. failed to require, obtain or consult adequate radiological test results after conducting the operation in order to determine the cause of the plaintiff's post-operative symptom.

206 I emphasise that this does not amount to a finding that Mr Thomas was negligent.

207 However, even accepting that such a finding would be open to a court, that needs to be balanced against the vulnerabilities in Professor Nade's evidence.

208 In Professor Nade's examination-in-chief the following exchange took place (ts 173 - 174):

... but underlying all of that, having analysed the potential causes of why this might have happened, and come to the consideration that it may be due to a collection of blood, that can be found by non-invasive technique, magnetic resonance imaging. And if it had been done, and if it had been shown to be a collection of blood there, then there may have been some remedial action taken, re-exploration, removal of the haematoma, decompression to a larger extent of the nerve roots in the lumbar canal, and therefore the outcome may have been different to what it was.

Mm?--- My concern about this was that nothing was done.

NUGAWELA, MR:

So in a situation where the patient is clinically complaining post-surgery of problems micturating, problems with the bowel, and all the other complex of neurological symptoms, and where the surgeon knowingly perforated the dura during the operation, you say an MRI at least should have been done?

PROFESSOR NADE:

I'm saying an MRI should have been done in order to try and determine what was going on postoperatively.

It may have been - it may have shown - it may not have shown that there was a collection of blood, but then that would have eliminated one of the possibilities as to why this syndrome arose. Normally, a cauda equina syndrome is treated as a surgical emergency.

I think somewhere it says 'Best operated', in one of your reports, 'within 48 hours to evacuate the blood clot'?---That's - again, looking at the literature, it seems to get a better outcome if the surgery is done sooner rather than later.

209 Professor Nade's answer raises a number of steps in the chain of causation:

(a) the cause may have been due to a collection of blood;

(c) there may have been some remedial action taken, re-exploration, removal of the haematoma, decompression to a larger extent of the nerve roots in the lumbar canal; and

(d) the outcome may have been different to what it was.

210 Each of those steps was vulnerable to challenge. The defence cross-examination of Professor Nade emphasised the potential uncertainties in his reasoning. In particular, I note the following (ts 179 - 180):

CLYNE, MR:

Can it be that the permanent disability which is now limited to an area on the right was caused by instrument damage?

PROFESSOR NADE:

I don't know.

CLYNE, MR:

Is it possible

PROFESSOR NADE:

I don't know so I believe it also has to be possible.

CLYNE, MR:

Is it possible that all of the other damage which is now resolved, which was more widespread, was caused by bleeding and that that has, in the ordinary course, now resolved?

PROFESSOR NADE:

Well, that's what the natural history seems to suggest, the rate of change was that there was - makes that possibility more likely in my mind. However, it was never proven. And the point I was trying to make earlier is that had there been bleeding and had it been detected by magnetic resonance imaging and the next step most likely would have been to take remedial action by re-exploring the area, removing the blood clot, decompressing the nerves, the end result might have been less severe than it is at present, because prior to the surgery there was no abnormal neurological signs.

CLYNE, MR:

But couldn't it be that the problem that was there from the bleeding has now totally resolved and therefore an MRI has not had any impact at all on permanent disability - the failure to use an MRI---?

PROFESSOR NADE:

Well, as I suggested to you, had an MRI been done, and there was found to be blood in the spinal canal, and a remedial surgical operation been done, then it would have been quite clear there would have no longer been any pressure on any of the nerve roots in the spinal canal.

CLYNE, MR:

But there's been significant resolution, hasn't there, of his symptomology?

PROFESSOR NADE

Yes. Of course, that's the natural history of what happens to a collection of blood - it's resorbed.

CLYNE, MR:

That's right. And it could be therefore that what is now remaining with his left-sided foot drop - right-sided, I apologise - right-sided foot drop could have been a consequence of an injury by the instrument, which was the proposition put forward by Mr Thomas, to this man?

PROFESSOR NADE:

I can't disagree with you. It's a possibility. Nobody knows the answer.

CLYNE, MR:

And so in terms of permanent disability we're really speculating on whether bleeding has caused any problems at all on a permanent basis?

PROFESSOR NADE:

That's correct. I agree with you there. What I've said to you is that had remedial action been taken within 48 hours or thereabouts of the initial surgery and the area re-explored, then that may have altered the outcome.

211 In re-examination (ts 181) the following exchange took place:

You were saying that it's less likely that removing, or the dissolution, of the haematoma would result in spontaneous recovery? ---Well there was - spontaneous recovery occurred on the left side apart from the absent left ankle jerk, on the basis of my two examinations. But we're looking at outcome in relation to what happened in February 1998. I'm speculating on what might have occurred on the basis of my clinical experience. (emphasis added)

212 The defence argues that because of the use of words such as 'might', 'may', 'possible' and Professor Nade's statement in his answer in cross-examination that he was speculating, his conclusions amounted to no more than speculation and were short of conclusions based on the balance of probabilities.

213 Professor Nade was giving his answers in the context of his reports which expressed a view on the balance of probability. An MRI was not carried out immediately after the surgery. In using the words he did Professor Nade was simply acknowledging that in the absence of an MRI no definitive answer could be given. His answers were inevitably speculative - but speculation based on his clinical experience.

214 I have drawn attention to these extracts from the transcript simply to emphasise the vulnerabilities in Professor Nade's evidence. Although Professor Nade's reasons was not speculative in the sense put forward by the defendant it does emphasise that Mr Falkingham would have been required to establish a long chain of causation that was difficult at a number of points.

215 In particular, a critical issue in the chain of causation is whether remedial action would have altered the outcome.

Assessing the value of the lost opportunity of a negligent peri-operative/post-operative care

216 The evidence that was available to the plaintiff as at 24 February 2004 was sufficient to found a case of a negligent post-operative care if Professor Nade's opinion was accepted.

217 The likely response of Mr Thomas' solicitors in the lost proceedings would be to engage experts to investigate:

(a) the cause of the permanent disability, and in particular whether it was caused by a surgical instrument;

(c) whether the cauda equina could have caused the permanent disability;

(d) what remedial action could have been taken, i.e. re-exploration, removal of the haematoma, decompression to a larger extent of the nerve roots in the lumbar canal; and

(e) whether it was possible to establish that even had the cauda equine been diagnosed promptly by an MRI it was then too late to have made any difference to Mr Falkingham's condition and the outcome may have been different to what it was.

218 There may well have been other explanations for the cause of the disability. In cross-examination, Dr Bleasel drew attention to an alternative explanation for the cauda equina syndrome; namely, operating on the patient in the prone position (ts 239 - 240) (see [183]).

219 Subsequent MRIs may have revealed something about whether or not there had been blood in the spinal canal. For example, when Dr Bleasel was examined the following exchange took place:

You say in paragraph number 3: There is no indication whatever that bleeding into the epidural or subdural space was the cause of the condition. What did you base that on---Well, he did at a later stage, have an MRI scan and that would have picked up blood no matter how old it was and that was negative.

220 I note these two matters simply to illustrate what investigations by defence solicitors might have revealed.

221 In the circumstances counsel would have been aware that he had at least Dr Bleasel's reasoned opinion that conflicted with Professor Nade's and that Dr Blum's opinion, although short on reasoning, also conflicted with Professor Nade's.

222 The three doctors' differing opinions make it clear that Hoffmans had difficulties in obtaining an opinion that supported an allegation of negligence against Mr Thomas.

223 Counsel could properly have concluded that there were difficult questions of fact arising from causation upon which different conclusions based on clinical experience could fairly be open. Counsel would have sought an opinion supporting Professor Nade before advising Mr Falkingham to proceed further.

224 Because an MRI was not carried out at the time there is an inevitable element of reconstruction, based on clinical experience, involved in determining what an MRI might have disclosed. Different doctors may well have reached different conclusions based on their clinical experience.

225 On a broad brush assessment Mr Falkingham's lost chance was 40%. My reasons for reaching a figure of 40% are:

(a) the vulnerabilities in Professor Nade's chain of causation as set out above;

(b) the fact that the findings are based on clinical experience as to which different specialists may differ; and

(c) even without Mr Thomas having responded to a claim, two of the three doctors briefed on behalf of Mr Falkingham did not think that there was negligence.

226 Although the pre-existing back condition was explored in the evidence there was no medical evidence to suggest that it would have had a significant impact on Mr Falkingham in the absence of the injury to the nerve root. In any event, the defendant carries the burden of disentanglement with a reasonable degree of precision (Watts v Rake [1960] HCA 58 [2]). No attempt at disentanglement was made.

227 The tear in the dura was explored in examination but there is no evidence that it was relevant to the disability.

Would Mr Falkingham have pursued the lost cause of action?

228 Mr Falkingham did not give evidence as to whether he would have pursued the action to trial. I am therefore left to infer from the evidence that was provided whether he would have pursued the action to trial.

229 In cross-examination the following exchange took place (ts 97 - 98):

CLYNE, MR: So you might lose? - - - Yes.

Well, what do you think would happen if you lost?---I don't know, I've never been in a - this - I've never been involved in a court thing before.

So you had no idea of how much money you could lose if you went ahead and lost?---No, because we never - we had never discussed any momentary terms.

...

CLYNE, MR: So at that stage you had no idea about how court proceedings happened, about negotiations?---No.

What your claim was worth?---No.

Nothing at that at all?---No.

And had you known that you could be exposed to significant costs, would that have had an impact on you? Significant costs if you lost?---Possibly.

Well, if you were told, for example, you might have been out of pocket $20,000 - - - ?---Yes.

- - - if you lost your, would that then have had an impact on you?---I - I wasn't told how much I was going for, so if I knew what - what - what opportunity I had compared to what I could lose - - -

Right?--- - - - I might have weighed the two up.

Right. So your - you say you didn't know what your claim was worth, what it might cost you to go ahead, what it'd cost you if you lost?---No.

You had none of that?---No.

All you knew, you say, was that there were two doctors against you and one for you, correct?---Yes.

And Mr Connor wasn't happy with that situation?---Yes.

And he wanted to get another witness? - - - Yes.

Did he tell you - he said you told him to issue a writ and at that stage you still didn't have that extra evidence, did you?---Well, he - he suggested issuing a writ - - -

Yes?--- - - - to buy more time to be able then - - -

To buy more time to be able to try and find some more evidence?---Yes.

230 Mr Falkingham accepted that in December 2003 he did not know what his claim was worth, what it might cost to go ahead and what it would cost if he lost. He accepted that there were two doctors against him and one for him. He accepted that Mr Connor of Hoffmans was not happy with the situation and the writ was to be issued to buy more time to try and find some more evidence (ts 97 - 98).

231 Mr Connor, of Hoffmans, gave evidence that on 8 April 2003 he told Mr Falkingham that at the present time he would not be prepared to litigate a claim against Mr Thomas (ts 204). Mr Connor also drew attention to the fact that at that point Hoffmans' costs were about $5,000 plus disbursements (ts 204).

232 On 3 December 2003 Mr Falkingham responded quickly to Hoffmans request for funds to issue the writ and to obtain a further medical report (ts 95). I am satisfied that as at 24 February 2004 Mr Falkingham would have pursued the claim to the point of reviewing the position after a further report was obtained.

233 Mr Falkingham had not undertaken the exercise of comparing the opportunity of what he might have gained compared to what he could lose if he proceeded. If the report had been unfavourable would he have proceeded? I simply do not know. Similarly, I simply do not know whether faced with the costs of an action compared to the potential award of damages and the risks he faced he would have proceeded to take the matter to trial.

234 I do not know whether Mr Falkingham could have funded the action. In the face of the evidence gathered by Hoffmans it is difficult to conclude that they would have proceeded on a speculative basis.

235 There is no basis for me to draw an inference as to what Mr Falkingham might have done.

236 Accordingly, based on the evidence before me, I am not persuaded on the balance of probabilities that Mr Falkingham would have pursued the lost cause of action. Therefore, Mr Falkingham's claim fails and the action must be dismissed.

237 In case I am wrong in this conclusion I will proceed to make provisional findings in relation to the quantum.

238 The plaintiff's loss of a chance is to be assessed when the cause of action is lost by the expiry of the limitation period (Nikolaou v Papasavas, Phillips & Co, 404). The damages are to be assessed when the action would have gone to trial.

239 Mr Falkingham argued that the action would have gone to trial in mid-2005. Had the District Court Rules been exactly complied with then the action may have gone to trial at the end of June 2005 on the basis that the writ would have been issued and served by late January 2004. However, the practical reality is that it took Mr Falkingham's solicitors from 1999 to 2003 to gather medical evidence. For good reason they were still unsatisfied with the state of the evidence as at December 2003. It is unlikely that they would have served the writ by January 2004 because they were still seeking a further report. The further report was never obtained because of the termination of the retainer. Mr Thomas' solicitors would have engaged and briefed medical experts and had them examine Mr Falkingham. It is more likely that the matter would have gone to trial in mid-2006, at best.

240 In M R & R C Smith Pty Ltd T/AS Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 [128] Pullin JA stated:

General damages are ordinarily awarded to compensate for pain and suffering and other non-pecuniary loss: Teubner v Humble [1963] HCA 11; (1963) 108 CLR 491, 507. Minds may differ about the appropriate level of damages to be awarded in a particular case, but, in order to treat plaintiffs fairly, like cases must be treated alike: Faulkner v Keffalinos (1971) 45 ALJR 80, 82; James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729, 732. The age of the injured person will be relevant because if the pain and suffering or loss of amenities will be borne for a relatively short time, then the award will be less than the award for a person who has to bear the pain and suffering and loss of amenities over a longer period of time. The existence of a tariff involving a range of sums for different injuries has been recognised in England (Wright v British Railways Board (1983) 2 AC 773), but in Australia this approach was, until statutory intervention, forbidden as a result of the High Court's decision in Planet Fisheries Pty Ltd v La Rosa.

241 In Smith v Ultra Tune [114] Pullin JA summarised the plaintiff's injuries:

... in 2003 the respondent was a 40-year-old motor mechanic who was physically active and enjoyed playing weekend cricket as the captain of his team. He anticipated that he would have a healthy, active life with his partner who he married in September 2003. As a result of the injuries sustained, the respondent needed six surgical procedures with the likelihood of further surgical intervention in the future. He is very restricted in his movement and needs crutches in order to move. He suffers psychological depression and has lost his independence. He is no longer able to play cricket and nor can he keep physically fit, thus restricting any activities he could engage in with his young children and with his wife. He is unable to drive for long periods and requires the assistance of a driver.

242 Mr Falkingham was an outgoing and physically active person who has now suffered a significant physical disability resulting in a 13% whole of body impairment (Professor Nade, exhibit 6, 1 February 2010, page 2, ts 169). He suffered the disability as a young man and the disability is permanent.

243 Mr Falkingham's right leg disability means that he is numb from his waist down his right leg to the top and outside of his foot and the four outer toes. The sole of his foot and his big toe is hypersensitive to touch. He does not know where his right foot is placed (ts 38).

244 Because Mr Falkingham does not know where his right leg is placed he stumbles and falls on a daily basis (ts 35, 37). His normal walking and recreational activities have been severely limited. He cannot participate in sports, other than wheelchair sports. Access to wheelchair sports is limited. He cannot walk for more than 10 minutes (ts 50, 80). He cannot run or ride a bike.

245 The disability has impacted on his relations and interaction with his wife (ts 48, 117) and with his children.

246 Mr Falkingham's disability has impacted on him emotionally (ts 57).

247 Mr Falkingham will have to wear an artho-orthosis for the rest of his life. He will have to use a walking stick which, amongst other things, impacts his ability to lift and carry.

248 Wearing the orthosis causes him discomfort, particularly sweat sores, especially in summer (ts 52-56). The Swedish knee cage, which he wore for three to four years, caused him discomfort (ts 37 - 38).

249 The plaintiff's disabilities in Smith v Ultra Tune are comparable in their effect to Mr Falkingham's. The major differences are that Mr Falkingham is significantly younger and that he has not suffered from major depression.

250 Both parties cited cases in support of the assessment. Mr Falkingham relied on Kingston v Insurance Commission of Western Australia [2007] WADC 216 and Glossop v Mattacks [2001] WADC 25 [22]. Both those awards were under the Motor Vehicle (Third Party Insurance) Act 1943 and the maximum amount that could be awarded was limited by the extreme case. The defendant relied on Smith v Ultra Tune.

251 In Smith v Ultra Tune [132] Pullin JA stated:

... that general damages awarded for knee injuries in this State in the last 10 years have been between $25,000 and $120,000. The $120,000 award in Grimes v Grimes was a provisional assessment because, in that case, the claim was dismissed. Without taking account of that case, the general damages awards were of amounts between $25,000 and $75,000. Naturally, the age and particular circumstances of each case varied. The highest award of $75,000 was to a plaintiff who was aged 49 at the time of the accident, and 55 at the time of the decision.

252 In Smith v Ultra Tune [133] Pullin JA stated:

The award of damages in the present case was $170,000. An award of that amount would only be justified in circumstances where the nature of the injury and the subsequent pain and suffering was much greater. So, for example, in Nairn v The Board of Management of Warren District Hospital [2006] WADC 97, the 30-year-old plaintiff had a leg amputated and she was awarded $120,000 in general damages.

253 Pullin JA assessed general damage in Smith v Ultra Tune [134] at $75,000.

254 Although Mr Falkingham has not suffered from the major depression that Mr Smith suffered he is significantly younger. I assess general damages at $80,000.

255 Mr. Falkingham claimed damages for past economic loss of $109,200 and for future economic loss of $222,015.

256 The evidence (exhibit 1) established that Mr Falkingham's earnings were:

257 For the year ended 30 June 2006 Mr Falkingham earnt $48,500 gross (ts 87).

258 On the evidence contained in exhibit 1 Mr Falkingham has suffered a loss of $7.61 per week. That calculation does not take into account his earnings in 2006. If they were taken into account he would not have suffered a loss.

259 Mr Falkingham's counsel said that a figure of $300 per week was appropriate on the basis of the growth of award rates over time and a consideration of the AWOTE for Western Australia (see submissions [6] - [9]).

260 Mr Falkingham's counsel sought to argue that by reason of increases in wages between 1999 - 2005 compared to 1994 - 1998 a calculation of the latter rates, does not provide an accurate basis because 'it would be comparing 1994 - 1998 currency with 1999 - 2005 currency.'

261 I do not accept that there is a basis for calculating Mr Falkingham's loss on the basis of $300 per week. The fact is that his earnings were substantially the same and significantly better if the income to 30 June 2006 is taken into account.

262 Evidence was called from Robert Robinson, the chief operating officer for VIP Home Services Australia. The services include lawn and garden maintenance (ts 128). A document was tendered as exhibit 3 that listed 18 of the 35 franchise holders in the Perth metropolitan area. There was no evidence as to the nature of each of the listed franchisees, for example the actual area and the number of staff. Evidence of the costs was disallowed. Even had that evidence been admitted there would have been insufficient evidence to draw any conclusions as to the possible net income.

263 Mr Falkingham's counsel relied on Wright v Shire of Albany (1993) Aust Torts Reports 81-239 as a basis for calculating a claim for loss of capacity. The facts of that case are very different to this case. In Wright the injured plaintiff was employed as a truck driver by the Shire. Besides driving a truck, the plaintiff's duties consisted 'of a number of labouring activities including constructing roads, drains and head walls, pruning tees, concrete work and changing wheels' (62,476). The trial judge found that the plaintiff was kept on only because of the compassionate and generous attitude of his employer (62,476). As a consequence of the accident he had lost his pre-accident earning capacity and was only fit for light duties, had suffered a severe restriction in the number of suitable jobs available to him and if for any reason he were to lose his employment with the shire would be at a considerable disadvantage on the open labour market (62,473). The Full Court awarded $140,000 for loss of earning capacity.

264 Unlike the facts in Wright, Mr Falkingham was unemployed by choice at the time of the incident leading to the operation. Following the operation he had to go out and find work which he did successfully. There is no evidence that his disability had more than a marginal impact on his earnings.

265 Mr Falkingham has suffered a loss of perimeter in his earning capacity. I assess that loss at $80,000 for past and future economic loss, including interest, and the period when he was on disability benefits between February and November 1998 after surgery.

266 Mr Falkingham's claim for gratuitous services essentially relates to the domestic tasks that he would have undertaken but for the disability. The calculation of these damages was not disputed by the defendant but rather the underlying principles. The defendant argued that Mr Falkingham was not entitled to compensation for the normal chores of family life.

267 As explained by Pullin JA (Newnes JA concurring) in M R & R C Smith v Wyatt (No 2) [142]:

As to the contention by the appellant that what was done after the accident was no more than an adjustment of the chores involved in family life, counsel for the respondent referred to Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, 344. It was there explained that while domestic services can be part of the give and take of marriage, the qualification was that such services will be taken out of the area of the ordinary give and take of marriage to the extent that the injury precludes the provision of countervailing services. To that extent, the continuing gratuitous services provided by a spouse assume a different character and they are therefore compensable.

268 The reality is that Mr Falkingham is permanently disabled. He would not be able to make an ordinary contribution to family duties.

269 Mr Falkingham was cross-examined on the basis that it was his choice to purchase a house in the hills with a wood fire despite the fact that he was aware that he would have difficulties managing as a result of his disability. I do not accept that this is a matter that is relevant to a claim for gratuitous services. Mr Falkingham is only obliged to take reasonable steps to mitigate his losses. That obligation does not extend to giving up living in an area that he likes (ts 83). Nor is he obliged to live closer to a place of work in order to mitigate his damage (ts 86).

270 Pre-operatively, Mr Falkingham spent an hour a day cooking, two hours a week doing the laundry, one hour every three months cleaning the gutters, 30 minutes every week lawn mowing (in summer) and 30 minutes every month lawn mowing (in winter), one hour per week gardening (ts 44 - 46). He did his share of the work both inside and outside the house and cooked everyday (ts 43, 118) and did all the laundry by himself (ts 43). One would have to say, conservatively, that he would have done at least 60% of the household workload, if not more.

271 After his disability, Mr Falkingham relied almost exclusively on his wife and father-in-law to carry his share of the burden. They would spend two hours per week maintaining the house (ts 46 - 47), one hour per week gardening and outdoors (ts 47, 121), doing all the laundry for at least 30 minutes per week (ts 48, 70), vacuuming for one hour per week (ts 67) and additional 10 minutes daily vacuuming because he brings in more dirt due to the AFO (ts 65 - 66). He cannot do grocery shopping on his own but just tags along for one hour per week (ts 49 - 50, 61). He cannot clean the toilets or bathroom and Mrs Falkingham does this for 30 minutes a week (ts 71 - 72). She also does the mopping and sweeping for one hour per week (ts 72) and changing the linen for 10 minutes per week (ts 72).

272 In the first six months postoperatively, Mr Falkingham relied on someone to drive him twice a week (ts 71).

273 The calculation of Mr Falkingham's claim for gratuitous services is contained in Ms Jodrell's report (exhibit 2, on page 105 in vol 3, ts 55, 60 - 70, 118). Mr Falkingham's evidence provided the factual foundation for that opinion. An allowance in accordance with Appendix C, Table 1 (on page 125, Vol 3) of Ms Jodrell's report, which I accept, is:

(b) between September to August 1999 - 442 hours; and

(c) between September 1999 to say March 2005 (estimated time of trial) = 9 hours per week x 5.5 - 2,574 hours.

Subtotal - 3,464 hours x 60% = 2,078.4 hours x $20 per hour = $41,568

274 Mr Falkingham's life expectancy at the time of trial in 2005 would have been approximately 50 years. The 6% multiplier for 50 years is 846.9. Future needs can be (based on Appendix C, Table 2 + 60% of Table 3):

(2.5 hours + 1.2 hours) per week x $31.36 nett per hour x 846.9 x 95% (5% usual discount) = $93,354.

275 These are important in their own right, but also because the gratuitous services needs were built on the assumption that suitable aids and appliances were provided.

276 Amortising these into weekly costs results in a figure of $34.26 per week. Future needs can therefore be:

277 Additionally, once-off global allowances should be made for bathroom screen repair and modifications (see Appendix B, items 19 and 20), say $6,000

278 Neurofen at $20 per month, plus say two doctors visits a year at $100 per year = $6.60 per week:

Provisional assessment of the chance by the quantum

279 The chance of 55% by the quantum of $ 332,500 is $182,875.

280 I therefore provisionally award Mr Falkingham $182,875 together with interest from at 6% per annum, being the interest rate on judgments, from 30 December 2006 until October 2012.

281 Mr Falkingham's claim is dismissed. Mr Falkingham should pay the defendant's costs of the action to be taxed.