- Commonwealth v McLean

Supreme Court of NSW|2012-12-21|Before: Campbell J

Judgment 1Mr. Luis Almario is suffering from liver cancer which will be terminal. Dr. Emmanuel Varipatis is a General Practitioner who treated him between 13th August 1997 and 9th February 2011, with some interruptions in the continuity of the relationship. 2The plaintiff says the defendant is legally responsible for the consequences of his pre-existing liver disease progressing to cirrhosis, liver failure and eventually liver cancer. The cause of action relied upon is negligence. A count founded on the tort of deceit was abandoned during the trial. 3In general terms it is said that Dr. Varipatis should have been more proactive in treating Mr. Almario's early stages of liver disease by emphatically addressing the problem of Mr. Almario's morbid obesity. The issues between the parties will need to be canvassed in greater detail to explain the context in which the case has been fought. 4Mr. Almario says that Dr. Varipatis, during the early period of his management of Mr Almario's condition, knew or ought to have known, from the history he received, his findings on examination, and the results of tests that he initiated, or which he received through others, that Mr. Almario had the early stages of liver disease, either non alcoholic fatty liver disease (NAFLD), or, more probably, non alcoholic steato-hepatitis (NASH). By that stage, so it is argued, the disease had not progressed to cirrhosis, making it amenable to treatment which would have reversed, halted, or very materially slowed the further progress of the disease. 5At the time Mr. Almario first consulted Dr. Varipatis on 13th August 1997, he was morbidly obese and suffered from a constellation of other inter-related conditions, all affected by his obesity, including the liver disease. 6Dr. Varipatis, as I have said, is a General Practitioner. Additionally he has a particular interest in what has been referred to as nutritional and environmental medicine. He is a member of professional associations concerned with this topic. As at August 1997, and for some years previously, Mr. Almario was concerned that his general medical condition had been caused by his exposure to toxic chemicals in the workplace. From inquiries he made, he knew that Dr. Varipatis had an interest in the medical consequences of such exposure. 7After the abandonment of the claim in deceit, Mr. Almario maintained as part of his negligence case that Dr. Varipatis (erroneously) represented to him that his health problems, including his liver problems, were caused (at least in substantial part) by exposure to toxic substances in the workplace and that the appropriate treatment was to undergo a series of detoxifications. The representations are said to be negligent in that a reasonable general practitioner in Dr. Varipatis' position ought to have known that the plaintiff's health problems, including his liver problems, were not caused by toxic exposure in the workplace, but were due to the combined effects of his morbid obesity and related conditions. Mr. Almario says that he relied upon Dr. Varipatis' negligent representations to his detriment by forming the belief that conventional modalities of treating obesity, like dieting and exercise, would not assist him.

The issues 8The issues for determination include the following: (1)There is a dispute of primary fact, in as much as the defendant says that for many years prior to the first consultation with him, Mr. Almario knew that he suffered from morbid obesity, poorly controlled diabetes mellitus, and early liver disease, but that the plaintiff was poorly compliant with prescriptive treatment he had received in respect of those matters, including, especially, the absolute necessity for him to lose weight by dieting. Moreover, the plaintiff had persuaded himself for the purpose of prospective litigation against a third-party that his constellation of conditions was due to toxic exposure at work, and he sought out a doctor who was likely to concur in that conclusion and treat Mr. Almario's condition accordingly. (2)Dr. Varipatis denies negligence. Additionally, he raises a defence under s.5(O) Civil Liability Act 2002 (NSW). To put it bluntly, Dr. Varipatis says that as at the time, in the late 1990s, when active intervention by way of bariatric surgery might have made a difference to the progress of Mr. Almario's disease, widely held peer opinion in Australia was that bariatric surgery was not effective as a treatment of progressive liver disease associated with morbid obesity. Indeed, it is put by Dr. Varipatis that rapid weight loss induced by bariatric surgery was at that time considered to be detrimental to the health of a patient such as Mr. Almario. (3)Legal causation is strongly contested by the defendant on a number of grounds. First, it is submitted that the only effective treatment was losing weight and the plaintiff would not have lost weight by dieting. Secondly, the defendant argues that bariatric surgery would never have been offered to Mr Almario for a number of reasons, including: that at the time it was not considered a modality for treating fatty liver disease; because of his past history of failing to maintain a diet for weight loss he would not have been considered a suitable candidate; and that his cognitive impairment and lack of insight into the centrality of his obesity to his health problems made him an unsuitable candidate for consideration for the surgery. Thirdly, it is submitted that by the time the plaintiff first saw Dr. Varipatis he had already developed cirrhosis, which meant that weight loss, by whatever means it might be achieved, would not reverse the disease and the dire complications of liver failure and liver cancer would not be avoided. Fourthly, the defendant submits that bariatric surgery, if offered and undertaken, would be unsuccessful mainly because of the plaintiff's inability to comply with post-surgical lifestyle changes as evidenced by his failure to comply with previous treatments. In this regard, the plaintiff's credit was said to be an important consideration in relation to whether or not, on the balance of probabilities, he would have complied with the lifestyle changes which necessarily accompany bariatric surgery. Fifthly, the defendant argues that bariatric surgery was expensive and not available to public patients, and the plaintiff was (and is) too impecunious to raise the necessary funds to undergo it. (4)The Limitation Act 1969 (NSW) is pleaded in bar. Essentially, it is said that damage must have occurred, and accordingly any cause of action accrued, at the latest, sometime before June 2003 when a biopsy confirmed that Mr. Almario's liver disease had progressed to cirrhosis. (5)In response the plaintiff seeks an extension of time relying upon s.60G Limitation Act.

Factual background 9The plaintiff was born in Colombia on 3rd April 1944. He was 53 years and 4 months when he first consulted Dr. Varipatis; just over 59 years when his liver failure was diagnosed and treated in mid 2003; and 67 years and 5 months when diagnosed with liver cancer in September 2011. 10He attended high school and university in his native Colombia and qualified to work as a journalist. He continued in that profession until his emigration for Australia in 1984. It is clear from his evidence on commission, taken before Mr. A.C. Bridge SC on 11th October 2012 (Exhibit P.5 305 et seq), that he regarded himself as a journalist of a left-wing-revolutionary bent. In his affidavit of 17th August 2012 (Exhibit P5 p. 428), he swore that he was granted political asylum to enter Australia. He said at that time he was of good health and playing some sports. In oral evidence he said his weight then was 80 kilograms. He is not a tall man. In a report of June 1998 Dr Yates, a respiratory physician, said he is 1.54m tall. 11From the time of his arrival in Australia he was variously employed as a cleaner or labourer. His last job was as a cleaner employed by Carrington Constructions Pty Ltd. He commenced this work in about February 1988. He was engaged to work at the Union Carbide site at Rhodes. The evidence before me, which is not disputed in this regard, is that the site was affected by toxic industrial chemicals which Carrington Constructions were involved in cleaning up. Mr. Almario was not directly employed in the cleanup, but as a cleaner he cleaned the toilets and showers used by staff directly involved in the cleanup. He also operated the laundry, cleaning protective clothing worn by other staff working in the cleanup. His exposure (if any) was purely secondary. 12He last worked on 13th October 1992 when he suffered an industrial accident moving furniture. The circumstances were not clear-cut. He seems to have had a "turn". He ended up in Royal Prince Alfred Hospital ("RPA") with a diagnosis of pneumonia made later by Dr Torzilla. 13Mr Almario's services were terminated on 16th December 1992. As I have said, he has not worked since and makes no claim for economic loss in these proceedings. It is necessary to say a little more of the circumstances of his employment, because having made various claims for compensation in respect of different conditions, he came to believe that his myriad symptoms were due to exposure to toxic chemicals at the Union Carbide site, notwithstanding that, on any view of the evidence, as a cleaner, not directly involved in the cleanup, his exposure must have been slight. 14Mr. Almario's weight quite rapidly became a problem for him soon after settling in Australia. Dr. Iyer, a general practitioner, who treated Mr. Almario over a number of years, recorded in his clinical notes for 27th February 1988 that on examination, Mr. Almario was grossly obese++. His weight seems to have ballooned during 1989 from 119 kilograms on 5th May 1989 to 137 kilograms on 23rd October 1989. On 15th June 1990, Dr. Iyer's notes record Mr. Almario's weight as 140 kilograms. 15He married his current wife, Mrs. Elvira Almario, on 14th October 1990. A photograph taken on the wedding day (Exhibit P.5 p. 411) depicts Mr. Almario as a very corpulent man. Mrs. Almario estimated her husband's weight when she first knew him, and at the time of their marriage, at about 120 kilograms (63.25T; 91.20T). I find that she is wrong about this and in fact he was much heavier. As I have said, on 15th June 1990, Dr. Iyer recorded his weight at 140 kilograms and on 21st February 1991 as 131 kilograms. Mr. Almario obviously lost nine kilograms in weight in the meantime, presumably dieting. 16I interpolate that when cross-examined, by reference to the record of her husband's weight contained in Dr. Iyer's notes, which I have just recounted, Mrs. Almario disputed its accuracy. At 65.45T she said: It's like he is only up to 115, 120 [kg]. 17The defendant submits that her evidence is untruthful, however, for my part I think it more probable that she is simply mistaken after the long effluxion of time (67.10T), but all the same, for that reason, it is unreliable.

The plaintiff's health and his experience with dieting prior to seeing the defendant 18The record of Dr. Iyer's practice shows that between 3rd November 1989 and 14th November 1989, Mr. Almario lost nine kilograms using dietary meals. The notes record that he was dieting well. However, he had bounced back to 129 kilograms by 21st November 1989. And, as I have said, he weighed in at 140 on 15th June 1990, but managed to lose another nine kilograms by the following February. 19Dr. Iyer's notes record that Mr. Almario was given dietary and exercise advice in September 1991, but 2 weeks later he had not lost weight still weighing in at 134 kilograms. He told the doctor that he had tried to diet. 20This is a recurrent theme throughout the 1990's up to and beyond the date of Mr. Almario's first consultation with Dr. Varipatis. The details are summarised in MFI 1B, the combined chronology, in which the parties have summarised the relevant documentary evidence. I do not propose to rehearse it here given the necessity for a judgment to be delivered quickly in this matter, which was the subject of an expedited hearing. 21I infer that given Mr. Almario's difficulties with weight loss, he discussed with Dr. Iyer, in early May 1990, the prospect of undergoing liposuction treatment. Dr. Iyer recorded [patient] wants to go for liposuction. The doctor referred Mr. Almario to a Dr. Pennington. 22In his report of 28th May 1990, Dr. Pennington, a plastic and reconstruction surgeon, referred to the medication Durabolin having contributed to Mr. Almario's obesity. However, because Mr. Almario needed to lose in the order of 50 kilograms Dr. Pennington opined that liposuction has nothing whatsoever to offer this chap. Suction can only remove fatty tissue in the order of 500 grams. Dr. Pennington suggested a referral to the Endocrine Clinic at Royal Prince Alfred Hospital with a view to Mr. Almario being treated at the weight reduction clinic. It may be important that Mr. Almario was interested in a surgical solution for his intractable weight problem. It seems that the latter recommendation was not acted upon at that time. 23A Dr. Clarke referred Mr. Almario to the Diabetes Centre at Royal Prince Alfred Hospital in 1992. Its Director, Professor Yue, reported that weight reduction is essential for Mr. Almario. He referred Mr. Almario to RPA Weight Control Clinic which caters for the morbidly obese who need support and motivation. From the contemporaneous documentation it is reasonably clear at that time that Mr. Almario was drinking too much; there are numerous references to this matter in the contemporaneous material. Professor Yue recommended abstinence because of his weight and his poorly controlled non-insulin dependent diabetes mellitus. To add to his woes, Professor Yue was of the view that Mr. Almario had a degree of sleep apnoea. 24The diabetes seems to have been diagnosed in or about 2nd January 1989 when Mr. Almario was admitted to Royal Price Alfred Hospital with symptoms which were related to a drinking binge. The Hospital recorded that he had been drinking heavily for two or three days - champagne - beers - tequila ++, and awoke with a number of symptoms including abdominal pain. His symptoms were put down to recent alcohol binge but other problems identified were his diabetes and his morbid obesity. He was referred to the Diabetes Centre for assessment. 25He was seen at the Diabetes Centre on 6th January 1989 and the diagnosis of non-insulin dependent diabetes mellitus associated with morbid obesity was confirmed. He was seen by a dietician in relation to his weight. At that time he was separated from his previous wife and gave a history that he commenced gaining weight after marrying at 22 years of age. 26Following the alleged incident at work on 13th October 1992, he was admitted to Royal Prince Alfred Hospital. At that time he reported he had not drunk for four months. He was seen by a dietician who recorded that he was not keen to receive any education re. diet. Despite this there was a recommendation that he attend the Weight Loss Clinic on discharge. 27He does not seem to have been seen as a patient at the Weight Loss Clinic until later, in September 1994, when he was commenced on a Modifast diet. Modifast, as I understand it from the evidence, is a low caloric food replacement diet. By February 1995 he had lost 22 kilograms in weight. He seems to have continued with the weight reduction program throughout 1995, but by mid 1996 Dr. Paul Torzillo was writing of the need to try and improve his weight loss again. He said he was going to approach Professor Caterson at RPA in an attempt to get Mr. Almario on a program again. By 25th November 1996 Dr. Torzillo was writing of Mr. Almario having twice previously trying a Modifast diet and it is difficult for me to recommence him on this program at present. From this I infer that by then the gains that had been well made previously were lost. 28When examined by Dr. I. Gardiner on 13th May 1996 he was again 135 kilograms. Dr. Gardiner noted that his ideal weight is 65 kilograms. 29There can be no doubt that quite independently of any advice from Dr. Varipatis, Mr. Almario developed the belief that many, if not all of his problems were related to a past history of industrial exposure to toxins including asbestos. 30In May 1997 the Respiratory Physician, Dr. Peter Collett, weighed Mr. Almario as 128 kilograms, and presumably he had dieted to lose 7 kilograms. He noticed the history of non-insulin dependent diabetes and obstructive sleep apnoea. In a further report of 18th June 1997 following the receipt of x-ray results he excluded exposure to asbestos as the cause of Mr. Almario's symptoms. 31It is against this background that one needs to assess the plaintiff's claim against the defendant. Before turning to that evidence, I wish to say something about the plaintiff's credit.

The plaintiff's credit 32The defendant has made a very strong submission that I should make a finding adverse to Mr. Almario in relation to his credit-worthiness as a witness, particularly in regard to his truthfulness. 33As I have said, the transcript of the examination of Mr. Almario was tendered as part of Ex. P5 and the defendant provided three DVDs providing an audiovisual recording of the examination. I have marked those DVDs Ex. D6. 34I have carefully read the transcript. I have not viewed all of the DVDs, but I have viewed portions of each of them. It is clear from this material that the account given by Mr. Almario is significantly at variance with the contemporaneous evidence I have summarised above. 35It is necessary to set out some of the detail of the evidence. Mr. Almario denied that he'd ever been told that Dr. Torzillo could not do a lung biopsy unless he lost weight. His denial is inconsistent with the records of Dr. Iyer. He denied seeing dieticians in 1994 and that he had been successful to a degree in losing weight. He said the first time he had been referred to a dietician was when he went to Westmead Hospital, but that was when he had been diagnosed with his liver cancer in 2011. 36He seemed to obfuscate about how much alcohol he had drunk in the past. He said only on special occasions a glass of wine or a beer. That grew somewhat to one or two, three beers, maximum, and then to six. The reason he did not drink was because he was a fan of political activism. He described himself as a revolutionary and the revolutionary doesn't drink. We take Lenin and Marx; we don't have alcohol. He initially said that he had been advised to lose weight because of his back, his chest and his breathing. Later in the examination he said: There is no relation between my chest condition and my losing weight. 37He said he did not remember any doctor telling him that he had to lose weight because of his diabetes, let alone Dr. Varipatis. He asserted that Dr. Varipatis had told him that losing weight wouldn't solve his health problems. He asserted no one advised me about losing weight. When asked if anyone had advised him to lose weight and whether he could have done it, he answered: Maybe, maybe. I could have done it, but as no one mentioned that the problem of overweight [sic] has to do with my condition, I didn't do it. He repeated that he didn't remember any doctor telling him that he had to lose weight to solve his health problems. He wanted to make it clear that no one had ever sent him to a dietician until after he was diagnosed with cancer. All that had happened at RPA was that he had been sent for a program of hydrotherapy because of his back condition. (Other evidence establishes that at one point he was referred to the pain clinic at RPA under Dr. John Button). When challenged about this topic he said: I'd like to see a single paper written by a doctor saying that, "I recommend this patient have a special diet". He said more than once that Westmead Hospital was the only place that he had been advised to diet and this was after his liver failure. 38Mr. Almario gave evidence on 5th November 2002 before her Honour Judge Balla in the District Court on his application for the extension of time under s.151D Workers' Compensation Act 1987 (NSW) to bring a common law claim against his employer, in respect of his exposure to toxic chemicals at the Union Carbide site. In the course of his cross-examination on 6th November 2002, the following evidence was given: Q. [Dr. Marsh] told you that you were extremely obese, didn't he? A. Probably, yes. Q. He told you that you should lose weight as it may cause you problems. A. Well, for me, the weight, I was - before working for Carrington, I worked in other construction places and I always worked with plywood and everything, and we were all strong men like me. Q. He told you that he would send the results of his medical examination to your local medical officer because he was concerned about your obesity, wasn't he? A. Yes, always doctors, when they see you are fat, they always ask you to get thin ... Q. [Dr. Iyer] describes you as "grossly obese++" in February 1989. Was that true? A. The doctors have always told me that I'm fat. It is said with some justification that this evidence is directly inconsistent with the evidence Mr. Almario gave on his examination for the purpose of the present case. 39To jump ahead, in June 1998 Dr. Varipatis referred Mr. Almario to Dr. Deborah Yates, a Consultant Respiratory Physician. Dr. Yates observed in her report to Dr. Varipatis that she calculated Mr. Almario's body mass index at 47. She said his weight was greater than my scales! She measured him at 1.54 metres tall. She advised Dr. Varipatis that Mr Almario was morbidly obese and should be referred to Professor Caterson's clinic at Royal Prince Alfred Hospital. 40After receiving Dr. Yates' report, Dr. Varipatis (on 30th July 1998) saw Mr. Almario. He weighed him at that time at 135 kilograms. In summary, Dr. Varipatis recorded in his notes, that Dr. Yates felt that obesity treatment would be the only useful respiratory treatment and that she had recommended the Obesity Unit at RPAH. Mr. Almario told the doctor that five years ago he had undertaken the treatment and went from 140 kilograms to 110 kilograms with no [positive] result on chest problem. Dr. Varipatis then ruled off on that entry (Exhibit P.3A 146) and by way of annotation, I infer, commented so [patient] declining this regime. I will return to this, but having regard to Dr. Varipatis' evidence I infer that the comment was not a contemporaneous record of something Mr. Almario had said. 41Once again, this incident is directly inconsistent with the plaintiff's evidence. 42I should point out that the examination extended for nearly 5 hours with a shortened lunch break. Mr. Almario is a person for whom English is not his first language (he had the benefit of an interpreter), and who is terminally ill. The events he was questioned about go back more than 20 years. Even so, the evidence I have summarised is extraordinary in the light of the contemporaneous material. 43From the portions of the DVDs I have viewed, I could not say that I derived any advantage from seeing those recordings. The two-dimensional image focuses largely on the plaintiff in close-up. One did not enjoy the advantage sometimes apparent in court of, as it were, the three-dimensional exchange between counsel and witness, and the live-feel of the trial. 44I have directed myself in accordance with Fox v. Percy [2003] HCA 22; 214 CLR 118 at 129 [31]: ... in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges ... to tell truth from falsehood accurately on the basis of ... appearances. Considerations such as these have encouraged judges ... to limit their reliance on the appearances of witnesses and to reason their conclusions, so far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those incidents are seen as critical. In my judgment, the contemporary materials, objectively established facts and the apparent logic of events satisfy me that the account given by Mr. Almario of his past medical history, the advice given about losing weight and his mixed success in that regard should be rejected. But they should be rejected not because I am convinced that his evidence is a concoction of deliberate falsehoods, but rather because of the subjective factors to which I have referred he is no longer able, for one reason or another, to provide a reliable account. Either way, his evidence should be put to one side, except to the extent to which it may be supported by contemporary materials, objectively established facts and the apparent logic of events.

The nature of the relationship between Mr. Almario and Dr. Varipatis 45The nature of the relationship between Mr. Almario and Dr. Varipatis was a little out of the usual run of the doctor/patient relationship because it seems clear to me that, as I have said more than once, Mr. Almario sought Dr. Varipatis out because he'd read about him in the newspaper as being a general practitioner who had a particular interest in, amongst other things, environmental medicine extending to disease arising from toxic exposures. At the time of that first consultation on 13th August 1997, it is clear to me, whatever is made of the evidence of Mr. Almario and Mrs. Almario about this, that Mr. Almario suffered from a number of significant medical conditions including his morbid obesity, his poorly controlled diabetes, and abnormal liver function being a manifestation of fatty liver disease whether at that stage it was NAFLD or NASH. This is leaving aside entirely the question of alcohol related liver dysfunction suggested by some of the evidence relied upon by Dr. Varipatis. It is also clear to me that on the evidence, Mr. Almario had been and was then consulting doctors other than Dr. Varipatis for what might be referred to as these general medical conditions. Moreover, he continued to consult other medical practitioners after the initial consultation with Dr. Varipatis. It could not be said then that this was a case of a patient changing his practitioner for a new one who is to become then responsible for his entire medical management. Rather, Mr. Almario as I have already said, sought Dr. Varipatis out to seek validation of his then established belief that his constellation of conditions had a relationship to his exposure to toxic chemicals working at the Union Carbide site. This established belief was partly founded in a sense of entitlement to compensation that Mr. Almario had developed. He'd received some compensation for an injury to his knee or knees, he had already consulted some solicitors about his toxic injury, and it is apparent that investigations were underway as to whether he had contracted an asbestos related dust disease. 46Mr. and Mrs. Almario had married in 1990, but Mr. Almario had gone off work with his various injuries in 1992. They had a young family and I think there was some point in the cross-examination of each of them by Mr. Higgs to suggest that the availability of compensation was an important issue for them both and in particular for Mr. Almario. I do not mean to infer that he was motivated by greed, but rather the question of how to provide for his family when his ill health had forced him out of the workforce loomed large in his thinking. 47Dr. Varipatis told me that he didn't like doing medico-legal stuff (146.31T) (unlike some of his colleagues (146.35T)) but was prepared to accept Mr Almario's "brief". 48However that might be there can be no doubt that Dr. Varipatis did not see himself simply as a doctor who had been qualified to give evidence as an expert in litigation. Indeed, from the very first time he saw Mr. Almario he instituted a regime of treatment by way of nutritional supplements to address Mr. Almario's toxin induced condition. 49And not withstanding the continuing involvement of other clinicians in Mr. Almario's treatment, Dr. Varipatis soon became enmeshed in his general management. 50At paragraph 68 of his evidential statement the defendant acknowledged that from October 1997, he considered himself to be one of a number of the plaintiff's treating practitioners, focusing mainly on the toxicology, liver function and helicobacter issues. 51In this regard it is important to note that when first consulted by Mr. Almario, Dr. Varipatis took a full history of all of his then medical conditions and the symptoms resulting. He carried out a general, if non-specific physical examination. At that time, it is worth noting that Mr. Almario's weight was 127.8 kilograms, a little less than it had been when he saw Dr. Gardiner in the middle of 1996. 52In October 1997 Dr. Varipatis gave Mr. Almario advice about his diabetes which was then poorly managed, and he referred him to Professor Thomas Borody in relation to gastro-oesophageal reflux and helicobacter pylori infection. Dr Varipatis said (At 141.30T): Q. On 9 October 1997 you embarked upon further investigations, didn't you? A. Yes. Q. And those investigations were ordered to assist you in determining what may be wrong with this gentleman? A. Correct. Q. You hadn't reached a diagnosis for his many problems other than the ones he presented with, had you, at that time? A. Correct. Q. And so you ordered those further tests and he came back to review on 16 October, that's so isn't it? A. Yes. Q. And one of the tests you ordered were the liver function tests, that's so? A. Yes. Q. And those liver function tests were abnormal, weren't they? A. Yes. Q. As at 16 October 1997 you were in a situation of knowing that Mr Almario had had liver function abnormalities that had been present for at least five years? A. Yes. Q. And that was a matter of concern to you, wasn't it? A. I think the -- Q. Was it a matter of concern to you? A. Along with the others, yes. Q. Along with the other results that came back on that day? A. Correct. Q. Were they of concern to you in combination or was each one of them of concern? A. May I explain? Q. Can you answer my question first? A. Both. Q. At that time when the results came back you had an elevated insulin level suggesting insulin resistance, didn't you? A. Yes. Q. You were concerned that he had the metabolic syndrome as you were concerned on 13 August 1997, correct? A. Yes. Q. You were concerned that he had poorly treated diabetes, correct? A. Yes. Q. You were concerned that he had abnormal liver function tests that had been persistently abnormal for five years, weren't you? A. Yes. Q. And all of those features were matters of concern that this man may have NASH, isn't that so? A. That is not the thought that occurred to me at the time. Q. But you should have thought of it, shouldn't you? A. (No answer). HIS HONOUR Q. That's a question doctor? A. I think my response was that given the helicobacter infection I was sending him off to a gastroenterologist and he was going to be assessed that way. GRAHAM Q. I asked you it was a diagnosis that you should have considered, shouldn't you? A. Yes. 53By way of further example only, in January 1998 Dr. Varipatis received a discharge letter from Mt. Druitt Hospital, which informed him that the plaintiff's liver function tests were (as before) elevated with a suspicion of gallstones. The plaintiff underwent a CT scan of his abdomen which demonstrated cholelithiasis. Dr Varipatis re-referred Mr Almario to Dr. Gardiner in February 1998. Dr. Varipatis also referred, as already noted, Mr. Almario to Dr. Yates. The letter of referral noted his various conditions including chronic high [liver function test]. In February 1999 there was a re-referral to Professor Borody for gastroscopy. A further referral occurred in April 1999. From 25th May 1999 Dr Varipatis undertook management of the plaintiff's condition relating to a testicular mass shown on an ultrasound he had ordered and he continued to look into whether the plaintiff's liver difficulties were cholestatic. 54In May 1999 Dr Varipatis's concern about the plaintiff's overall condition was such that he referred him to RPA for the investigation of various conditions, not including chemically induced conditions. Dr. Varipatis referred the plaintiff to RPA for treatment by an urologist as a public patient, and Mr. Almario underwent orchidectomy in June 1999. 55Throughout 1999 the defendant continued to treat the plaintiff's general medical condition and in January 2000 re-referred him to Professor Borody to be assessed for surgery in relation to his gallstone. 56The point of this for present purposes, and it has other significances, is that the defendant undertook what might be referred to as the general care of the plaintiff's medical conditions. To my mind his role in this regard is not diminished by the fact that the plaintiff intercurrently consulted other general practitioners from time to time. As Dr. Kelly pointed out in his oral evidence, once the therapeutic role is assumed, the general practitioner has the general obligation in relation to the patient's treatment. 57I am satisfied that although the initial contact between Mr. Almario and Dr. Varipatis related to Mr Almario's concern about his exposure to toxic chemicals at work, the relationship soon developed into the ordinary relationship of the general practitioner and patient.

Duty of care 58The relationship between a medical practitioner and his or her patient is an established category of relationship that the law of negligence recognises as giving rise to a duty of care: Rogers v. Whittaker (1992) 175 CLR 479. In general terms the content of the duty is to exercise reasonable care in the treatment of the patient. The standard of care is that of the ordinary skilled person exercising or professing to have that professional skill: Rogers at 487. None of these questions were controversial in the present case. Although s.5(O) Civil Liability Act is pleaded and opened on, it was not a defence that figured in the defendant's submissions either orally or in writing. I should say, however, that questions of the contemporary state of medical understanding are relevant to certain hypothetical questions which arise in relation to the question of causation to which I will return at the appropriate time. 59In Tai v. Hatzistavrou [1999] NSWCA 306 at [101] - [102] Powell JA said: It seems to me that, in a case such as this was, in which a patient consults a doctor concerning what appears to be a persisting health problem, the doctor is, as a consequence of his being consulted, and with a view to restoring the patient's health, called upon to examine the patient; to carry out, or have carried out, such tests or procedures as might be thought necessary, or desirable, to be carried out to enable or to assist in, diagnosis; to diagnose the cause of the patient's problem; to determine what treatment is called for; to prescribe that treatment, or to set in train steps for that treatment to be given; and to advise the patient in relation to the condition diagnosed and the treatment prescribed or proposed. If this be the scope of a doctor's duty to his patient in such a case, then, as it seems to me, if the doctor, without reasonable cause, fails to carry out, or to have carried out, such of the steps to which I have referred as, in the circumstances, were necessary or desirable, or, although carrying them out, does so without due care and skill, he has failed in the performance of his duty to his patient.

The question of breach of duty 60It is, of course, trite to say that the question of breach of duty of care first, must be determined prospectively and, and secondly, must be analysed pursuant to the provisions of s.5B and 5C Civil Liability Act. 61The prospective approach to questions of breach requires the Court to look forward from a time before the occurrence of the injury giving rise to the claim: Vairy v. Wyong Shire Council [2005] HCA 62; 223 CLR 422 at 456 [105]. At p. 461 [126] in Vairy Hayne J said: When a plaintiff sues for damages alleging personal injury has been caused by the defendant's negligence, the inquiry about breach of duty must attempt to identify the reasonable person's response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury. (Emphasis in original) 62As fundamental as it is to approach the breach inquiry in this prospective way, it should be borne in mind that in this case, we are dealing with the obligations of the defendant to the plaintiff in a manner which does not give rise to the complexities of consideration which arise in a case of a local council who is the manager of all public lands within a large geographical area, or of a roads authority responsible for roads and bridges throughout the State. 63Moreover, it is also important to bear in mind that questions of causation, when they arise, in contradistinction to questions of breach, must be viewed retrospectively. The focus of that inquiry is to ascertain what happened and why for the purpose of the attribution of legal responsibility, if breach is established, within a confined area of legal discourse, namely the law of negligence. 64Moreover, s.5B, which supplants, but largely reflects the Wyong Shire Council v Shirt (1980) 146 CLR 40 at [47] - [48] analysis, establishes the conditions applicable before negligence consisting of the failure to take precautions against the risk of harm is established. 65Before the analysis required by paras. (a) - (c) of s.5B (1) can be undertaken, it is necessary to identify the relevant precaution said to be called for and the risk of harm. The relevant risk of harm in the present case is the risk of personal injury; it might be said, consisting of the risk of the deterioration in the plaintiff's general medical condition. 66The plaintiff says that Dr. Varipatis' negligence consists of failing to take precautions against the serious deterioration of the plaintiff's medical condition into life threatening illness including complications of his liver disease, one of his co-morbidities. The case was put with a degree of complexity and sophistication. But simply put, the plaintiff needed to tackle his central problem of morbid obesity. That could be achieved either by referring the patient (again) to the RPA Weight Clinic, or a similar institution, or by initiating a referral either directly to a surgeon, or through an endocrinologist or a hepatologist, for assessment for suitability for bariatric surgery. 67The expert panel of endocrinologists, Professor Michael Hooper and Professor John Carter, agreed that obesity can be regarded as either a chronic disorder or a disease. 68When he first saw Mr Almario, Dr. Varipatis knew that he was morbidly obese and that the morbidly obese have additional complications such as diabetes and hypertension. Mr. Almario was hypertensive at the time of the first examination by Dr. Varipatis on 13th August 1997. From the information that he obtained at that time in relation to his blood pressure, from the results of blood tests he saw, he knew that Mr. Almario had fatty liver disease and diabetes. From these things he agreed that he probably had the metabolic syndrome and that such patients were at great risk of having [non-alcoholic fatty liver disease], and a percentage of them progressed to non alcoholic [steato-hepatitis]. 69As at August 1997, Dr. Varipatis regarded NASH as a serious condition because it could progress to cirrhosis, which in turn could pose a not insignificant risk of liver cancer. In the joint report of the hepatologists, Ex P9 (question 6), Associate Professor Strasser said: ... cirrhosis is the pathological end point of injury which can then lead to clinical complications, and I believe these complications are more likely if the underlying cause of the cirrhosis is ongoing. In the case of poorly controlled diabetes and severe obesity, that progression is more likely to have clinical consequences, however, if those causes and factors are addressed, then clinical progression may be less. (Emphasis added). Importantly, she pointed out: ... the only treatment that we know at this time that is effective for the treatment of NASH, is the treatment of obesity and diabetes, and particularly obesity, and there is no specific treatment at this time, or in the time period relevant to this case, for NASH, that is separate to the treatment of obesity and diabetes. (Emphasis added). 70It is also important at this stage to understand that all of the hepatologists (Associate Professor Weltman, Associate Professor Strasser and Dr. Vickers) agreed with the following statement from Dr. Weltman: Once you have cirrhosis, you have it. It involves the whole of the liver. It cannot become more widespread by definition. If they are saying that the cirrhosis and liver disease become more severe with time, as a consequence of Mr. Almario remaining morbidly obese and diabetic, this is more likely than not to have been the case. 71In general terms, as a general practitioner, Dr. Varipatis knew these things. He knew that fatty liver disease progressed and that the inflammatory process known as NASH was associated with morbid obesity and diabetes ... and insulin resistance (118.35T). When he first saw Mr. Almario he knew that he had abnormal liver tests going back five years. He was also aware of Mr. Almario's obstructive sleep apnoea. 72Dr. Varipatis also knew that NASH was reversible if the patient lost enough weight. 73Without putting too fine a point on it, or paradoxically oversimplifying the matter, weight loss was the treatment of choice for patients with Mr. Almario's collection of co-morbidities. It is also fair to say that other than the conversation with Mr. Almario to which I have earlier referred, following the receipt of Dr. Yates report, there is no record in the notes of Dr. Varipatis of him directly addressing the health problem constituted by Mr. Almario's obesity. Dr. Varipatis, in his statement, at page 6, paragraph 35, says he discussed Mr. Almario's morbid obesity with him on 25th September 1997. There is no record of this discussion in his notes nor is any particular course recommended to Mr. Almario to assist in losing weight. He also said that there was an in depth discussion... [about] his diabetes and the need to lose weight on 16th October 1997. Dr. Varipatis said he explained to the patient that his co-morbidities were likely to produce deteriorating health. This deteriorating health included complications with respect to his liver. Dr. Varipatis explained that all of his health problems were ... best addressed through weight loss. 74I interpolate that it is submitted I should not accept Dr. Varipatis' evidence about this as there is no record in his notes for the 16th of October 1997 recording that advice. The only notation that could possibly be relevant to this topic, which I will amplify from its abbreviated form, is: Discussion re. treatment/prognosis. 75Dr. Varipatis referred Mr. Almario, as has been stated already, to Professor Thomas Borody for investigations. 76Dr. Varipatis gave evidence that it was his practice to record the advice he had given to patients in his notes and there is no explicit record of this discussion. It was submitted that I should make adverse credit findings against Dr. Varipatis on this subject. 77It is true that the evidential statement is a document carefully prepared by Dr. Varipatis' lawyers in consultation with him, as is the modern fashion. It is not a spontaneous account of what happened. Moreover, when being cross-examined Dr. Varipatis was at times a little defensive, to the point of combativeness, and sometimes his answers were preceded by what I regarded as overly long pauses. 78It seems to me that it is natural when a professional person is facing a negligence claim, and his or her reputation is accordingly at stake, that he or she will be under a great deal of stress. It is a natural thing for the professional person to want to defend and justify his or her actions. This may well lead in some cases to a degree of undue reconstruction. 79On the whole, I thought Dr. Varipatis was doing his best to give an accurate account and to answer the questions asked of him by the cross-examiner. Even if the answers were not always spontaneous and direct, I am not convinced that he was lying about these matters. He made many "concessions" about his knowledge and about the course of treatment that could have been recommended for someone in Mr. Almario's position. In addition to this, Mr. Almario's morbid obesity and related conditions must have been obvious to any medical practitioner examining him. Most of those from who I have received reports seemed to have raised the question of his obesity with him. And I accept that Dr. Varipatis would likewise have done so. However, it is likely that the evidence contained in his statement is affected by reconstruction for the purpose of the case and it may be that all of the details are not entirely accurate. However, in my view Dr. Varipatis was an honest witness doing his best after a long period of time to give an accurate account. 80I earlier made reference to the fact that by then Mr. Almario's weight had gone up again to 135 kilograms. That note records that Mr. Almario told Dr. Varipatis that he had already been to the obesity unit at RPA five years ago. Despite losing weight he obtained no positive result on chest problems. Dr. Varipatis underlined, or I infer ruled off on, this entry. Below the line is what I have referred to already as an annotation. I am unsure when the annotation was made, but the comment so patient declining this regime, in my judgment is not a record of something Mr. Almario said. Rather, it is an interpretation made by Dr. Varipatis either then or subsequently and in my view is a reconstruction of no evidential value in the case. 81There is much more evidence on these topics, but what I have recounted in my judgment is sufficient to persuade me on the balance of probabilities of the following: (i)For the purpose of s.5B (1)(a) the risk of Mr. Almario's health deteriorating significantly to constitute personal injury was foreseeable. It was foreseeable because Dr. Varipatis actually knew of it, and I am satisfied on the whole of the evidence that a reasonable general practitioner in his position ought to have known of that risk; and (ii)For the purpose of s.5B(1)(b) the risk was not insignificant. 82It is important to point out, looking forward from the period 16th October 1997 to 30th April 1998, the foreseeable not insignificant risk of personal injury included, but was not limited to, the progression of his liver disease to cirrhosis with the added risk of either liver failure or liver cancer, or both. In making this last finding, I have accepted the evidence of Associate Professor Strasser from Exhibit P.9 (question 3): Once a patient has developed cirrhosis they may get no further complications, or, they may develop liver failure, or they may develop liver cancer, or they develop both, but the sequence is not from cirrhosis to liver failure, to cancer, it is usually from cirrhosis to liver failure or cirrhosis to cancer. One does not need to have both complications.

S.5B(1)(c) - Would a reasonable doctor in Dr. Varipatis' position have taken those precautions? 83I reiterate that the precautions relate to weight loss. Mr. Almario's morbid obesity and related conditions were a disease or diseases which were life threatening quite apart from the prospect of his liver condition developing into cirrhosis and undergoing complications. As I have said, looking forward, and not backwards, it is important to remember that the progression of his liver disease was not the only or even the most serious of the risks to which he was exposed. The expert endocrinologists were in agreement that the risk of cardio-vascular complications was significant. Obviously the progression of his diabetes may have led to serious peripheral vascular compromise. What the collection of foreseeable and not insignificant risks had in common is that all and each of them could be effectively addressed by significant weight loss. Professor Carter said in his evidence that so far as the liver condition was concerned, a loss of 7 per cent of body weight would make a difference. 84On the evidence before me, the available modalities of treating morbid obesity (and its co-morbidities) consisted of either referral to a multi-disciplinary clinic like the RPA Obesity Centre, or bariatric surgery. It is well known that obese people need help to lose weight, and, perhaps more importantly, to keep it off. 85The question is whether a reasonable doctor in Dr. Varipatis' position would have taken either of those precautions. Before answering that question, I should record that I accept the argument put on behalf of Mr. Almario that it is incumbent upon a medical practitioner to do more than merely point out the risks and counsel weight loss. I accept that Dr. Varipatis had the conversation, or one like it, that he says he had with Mr. Almario in October 1997. I accept he had the conversation with Mr. Almario on 30th July 1998 following the receipt of Dr. Yates' report, but I accept the submission that more was required. 86Dr. Varipatis and the four general practitioners who gave evidence concurrently before me were aware of bariatric surgery being performed in the period 1997 to 2003. Mr. Almario concedes that there is no evidence from which I could infer that a reasonable general practitioner in the position of the defendant knew that a patient with fatty liver disease should be referred to a bariatric surgeon for treatment of that condition as a discreet entity. In any event this is not the question given the prospective nature of the inquiry. What is clear is that bariatric surgery was available for patients like Mr. Almario with significant co-morbidities. The defendant's evidence is at 162.33 to 164.15T. One of the general Practioners, Dr. James Stephen Jeong said at 388.35T: An important thing that you said was he actually lost weight from 140 to 110 kilograms. Now, I wasn't aware of this part until just now, and that he felt that he didn't feel any better and that's one of the reasons why he didn't want to go back. There's many reasons why he does not feel better because he has got so many other co-morbidities which don't immediately respond to loss of 140 to 110 and possibly at 110 he has not achieved significant weight loss to get the benefits flowing on to his other co-morbidities, so I think that needed to be explained as well and I think certainly, I must admit I don't know what the indications for further treatment for obesity were back in 1997, 1998, what it was but I know currently that for a diabetic, a BMI of 35 would be considered a candidate for further interventional management, meaning bariatric surgery.. Professor Allen, a GP with, like the defendant, an interest in environmental and nutritional medicine, thought that bariatric surgery wasn't really there as a treatment back in 1997 to 2003 (390.20T). Dr. Donohoe, a GP also with similar interests, thought that bariatric surgery in the late 90's had far higher risks associated with malabsorption than the current state of the art bariatric surgery (390.4T). Dr. Kelly did not really address the option of bariatric surgery in his oral evidence when questioned by me. He spoke of counselling and clinics and so on, which if Dr. Varipatis had explained all that to the patient and the patient had refused, he could go no further (388.5T). 87Mr Graham SC explored this topic further in his examination of the experts (410.5-413.5T). Dr Jeong clarified his views. He said that in the period 1997 to 2003 a GP would consider a referral for bariatric surgery where having exhausted conservative means of losing weight unsuccessfully and the patient was at risk of developing other illnesses from morbid obesity then you would refer a patient for an opinion to see whether this patient as a whole would benefit from invasive procedure or interventional procedure. I took this as a reference to bariatric surgery. 88Dr Kelly said at 411.15T: A number of risk factors existed in this patient because of his obesity. Risk factors for the cardiovascular, the respiratory system, the liver function test and the diabetes, all of which would have been improved if a bariatric surgeon considered that that was an approach that he would be prepared to take. Dr Kelly was aware of bariatric surgery being carried out for these purposes in 1997. 89Dr Donohoe was aware that bariatric surgery was available. He said it was applicable to people with a BMI greater than 40, which was 4% of the Australian population. He said it was carried out on 2,000 people of the 780,000 who might be eligible. He regarded it as an uncommon procedure. Prof. Allen was aware of it at the time but regarded it as prone to complication for diabetic patients because the liquid meal substitutes were high GI which messed with their diabetes (412.15T). 90I should point out that Dr. Varipatis, at the relevant time, did not regard bariatric surgery as a treatment specifically for liver disease. However under cross-examination he agreed it was available for patients who were morbidly obese and who had significant co-morbidities from their obesity: 162.35-50T. He regarded it as a new procedure, not fully tested. It was relatively uncommon and wasn't a standard procedure for a GP: 162.5T. 91From this body of evidence, I am satisfied on the balance of probabilities, that a reasonable general practitioner in the position of Dr. Varipatis would refer a patient like Mr. Almario with his co-morbidities, and his history of failed attempts to lose weight permanently by conservative means, directly to a bariatric surgeon for consideration for surgery. 92The evidence of Dr. Jeong impressed me. While initially he said was unsure of the position in 1997 I consider his evidence was clarified by Mr Graham. 93Having regard to this evidence and to the considerations set out in s.5B(2), including the probability that personal injury would occur by reason of the onset of serious illness or disease - not just the complications of liver disease - arising as a development of Mr Almario's co-morbidities if care were not taken, the likely seriousness of the personal injury, and the slight burden to Dr. Varipatis of taking precautions to avoid the risk of personal injury by referring the patient to a surgeon for consideration of his suitability for bariatric surgery, I am satisfied that given Mr. Almario's previous failed attempts to lose weight by conservative means, a more dramatic or robust intervention was required, especially because of the knowledge of Dr. Varipatis about bariatric surgery. And I find that it was negligent for Dr Varipatis not to have made this referral by about the middle of 1998. 94Dr. Jeong gave evidence which I also accept about the central role of the general practitioner in managing obesity (404.35T). He advocated a multidisciplinary approach. 95The effect of Dr Jeong's evidence was that it wasn't sufficient to provide the patient with advice, rather the general practitioner needed to stay involved in the management of the treatment. Dr. Donohoe agreed with the need to motivate a patient, but was not in favour of multi-disciplinary teams: 406.25T. In his view there was no evidence to establish that they were any more effective than the work that can be done by a GP in motivating a patient. He did concede that he occasionally referred patients to the RPA clinic because it was the best in his experience at obtaining results. 96I fully accept the force of Dr. Donohoe's comments in his report, and in evidence, that patients are ultimately entitled to make their own decisions about treatment. I also accept Professor Allen's comments about personal responsibility (more a matter for the Court than the expert) in this context. However, it was not sufficient simply to make the option known to Mr. Almario, for what its worth, and then leave him to take it or leave it, which I find Dr. Varipatis did. More pro-active involvement was required. 97Following Dr. Jeong's suggested prescription, in my judgment Dr. Varipatis as at that time ought to have referred Mr. Almario to a specialist in obesity management and even assisted in making the appointment for him to attend. 98Alternatively to my finding at [91], therefore, in my judgment, on the basis of Dr. Jeong's evidence, a reasonable general practitioner in the position of Dr. Varipatis should have taken active steps to have referred Mr. Almario to a specialist in obesity management by 30th July 1998 to investigate all of the options of Mr. Almario successfully treating his disease of morbid obesity. I find Dr Varipatis was negligent in this omission. 99Although this matter is more relevant to causation than breach, one ought to bear in mind that when the advice of Dr. Yates was relayed directly to Mr. Almario, by Dr. Varipatis, it was simply in the context of "chest problems". Mr Almario certainly had respiratory problems but they were part only of a more complex picture. It may well be that Mr. Almario in fact had no improvement in his chest condition by losing weight previously, but that was not the point. The real question was about addressing his co-morbidities and I am not satisfied that this matter was discussed with Mr. Almario in that detail on 30th April 1998.

An additional ground of negligence 100As has been recounted, the plaintiff had a variety of conditions which affected him in May 1999. He had a perianal abscess and a hard left testicular mass, which Dr. Varipatis was concerned might be malignant. Liver function tests indicated elevated liver enzymes with a cholestatic pattern. This, in Dr. Varipatis' view, may have been related either to biliar obstruction or a side effect of the drugs prescribed by Professor Borody. An ultrasound taken at this time identified a gallstone and early fatty change of the liver. Dr. Varipatis referred the plaintiff to RPA for further investigation with respect to: (a)Possible cholestatic hepatitis; (b)Perianal abscess; (c)Testicular mass. 101Mr. Almario attended the emergency department at RPA on 27th May 1999. Note was made of the elevated liver function results, despite them being somewhat improved in comparison to his previous results. One of the emergency department doctors advised Dr. Varipatis in writing that the liver function test results should be "monitored". Dr. Varipatis accepted that he neglected to do so. Despite consultations every other month for the rest of 1999, no further tests were ordered until January 2000. This was unfortunate because Dr. Varipatis accepted that the tests were of concern because they showed worsening results including decreased serum albumin which Associate-Professor Weltman said may be a sign of the onset of cirrhosis. 102Dr. Varipatis was concerned that the testicular mass was malignant and the worsening LFTs evinced secondaries in the liver. This dire possibility was negated by the pathology results following the orchidectomy Mr Almario underwent on 22nd July 1999. Dr Varipatis agreed that one of a number of discrete, serious pathologies could have accounted for the deteriorated liver function including NASH, or even cirrhosis: 346.10T. But he did nothing to investigate further to exclude or confirm them, instead working on the assumption that the problem emanated from the biliary system. 103What is significant is that from mid 1999 onwards, the condition of Mr Almario's liver had emerged as an area of concern in its own right as a separate discrete problem amongst the interrelated co-morbidities arising from his obesity. But no step was taken to look into it, such as referring Mr Almario to a hepatologist. I find referral should have occurred after the patient recovered from his surgery by spring 1999. It was foreseeable that a serious liver disease was underway and the risk of deterioration was not insignificant 104When further LFT's were carried out in January 2000 they were highly elevated. An abdominal ultrasound and CT scan each demonstrated a fatty liver and cholelithiasis. Dr Varipatis re-referred Mr Almario to Prof. Borody. When asked whether the patient needed to be referred to a specialist with expertise in liver problems Dr Varipitis said I assumed I had already done that: 353.15T. I understood this to be a reference to Prof. Borody. But he was a gastro-enterologist, specialising in the lumen. He did not hold himself out as an expert in liver disease. I infer that this is something that Dr Varipatis could have found out. 105In any event Prof. Borody considered that the abdominal pain and big liver were due to gallstones and he referred the patient on to a surgeon, Dr Falk. Professor Borody regarded the liver function test as highly elevated and consistent with a cholestatic hepatitis. He thought the surgeon should remove the gallbladder and at the same time do a liver biopsy and a cholangiogram. The latter is a standard procedure when performing a cholecystectomy. Professor Borody said you can see if there is an obstruction inside of the liver, say, from the nodules of cirrhosis. A biopsy may have shown the state of Mr Amario's liver and whether it was cirrhotic at 2000. 106Dr Falk was not prepared to operate because of what he regarded as the high surgical risk, unless Mr Amario lost significant weight. The plaintiff was referred again to a dietician but was unsuccessful in achieving his targets and Dr Falk declined to operate. 107A new surgeon, Dr Moot, was engaged. By June 2000 Dr Moot reported the patient had lost weight and he proposed to operate. The surgery was carried out on 25th August, 2000. The biopsy seems to have been overlooked. The cholangiogram was performed and was said to be normal (EX D - Experts Vol 4, p2195). No liver functions tests were taken between January and August. 108Dr Moot did not make any surgical findings consistent with cirrhosis. Taken with the normal cholangiogram this may be very significant, as the defendant's bariatric surgeon Assoc. Prof. Brown (Ex D1, p 37) said cirrhosis would have been apparent at the time of the surgery. In Ex P9, at page 4, Assoc. Prof. Strasser accepted that the liver did not look grossly cirrhotic at surgery but said that does not exclude the presence of cirrhosis. 109After the surgery the liver function tests remained elevated, and indeed despite the removal of the gallbladder the LFT results were worse: 352.15T. Dr Varipatis agreed that the results, with which he was uncomfortable, showed a man that could have very serious pathology affecting his liver: 352.42T. Notwithstanding this, Dr Varipatis did not refer Mr Almario to a hepatologist. Dr Varipatis said he thought Prof. Borody was taking care of that. This evidence reflected poorly on Dr Varipatis. Prof. Borody last saw Mr Almario on 27th February 2000, and the defendant knew that he was under the care of no one with expertise in liver pathology: 353.15-50T. There is no doubt in my mind that a cholestatic cause of Mr Almario's liver function problems having been excluded, reasonable care on the part of a general practitioner in the position of the defendant required referral to a physician, preferably a hepatologist, for further investigation of his liver condition. Given the inter-current medical conditions, including the testicular cancer scare, the gallstones, and the difficulty in getting Mr Almario in shape for surgery, it was probably reasonable not to initiate that referral before September 2000, but from then such a referral in my judgment was required as a matter of some urgency even if in the first instance the referral was back to Prof. Borody for his further advice. Had that occurred, Prof. Borody, I infer, would have referred the patient on to a suitably qualified expert, probably a hepatologist. 110In fact, further specialist referral did not occur until 22nd May, 2003 when Dr Varipatis referred Mr Almario to the gastroenterologist, Dr Antony Wettstein. By then a CT scan demonstrated intra-abdominal ascites because of liver failure. This, as I have already described, is a complication of cirrhosis. This is two and half years after a reasonable general practitioner in Dr Varipatis' position would have excluded a cholestatic explanation for the abnormal LFT's. 111In the terms of s.5B Dr Varipatis knew or ought to have known that the elevated LFT's may have been due to serious pathology, including NASH as a real possibility, and that given Mr Almario's co-morbidities the condition was likely to progress. The development of cirrhosis and its complications were both foreseeable and not insignificant. 112A reasonable general practitioner in his position would have taken the precaution of referring Mr Almario to an appropriately qualified physician no later than end of September 2000. It was highly probable that he could develop cirrhosis. The advent of complications of liver failure and liver cancer were much less likely (305.30-45T), but if they eventuated the harm was likely to be very serious indeed. The burden of Dr Varipatis making the referral to an appropriate specialist was slight in the extreme. The social utility of medicine does not provide a justification for not taking the precaution, quite the contrary. Summary of findings about negligence 113I find Dr Varipatis negligent in the following respects: aFailing to refer Mr Almario to a bariatric surgeon for consideration of his suitability for surgery of that type by 30 July, 1998; bIn the alternative to (a), failing to take the appropriate steps I have described to re-refer Mr Almario to an obesity clinic; cFailing to refer Mr Almario to a hepatologist, or similarly qualified physician, by the end of September 2000 for the specific investigation and treatment of his liver condition. Some further observations on liability issues 114The plaintiff advanced his case on negligence on a wider front than set out in my reasons so far. For instance much was made of Dr Varipatis giving credence to the plaintiff's concerns that his poor health was due to exposure to chemicals at work. This was said to have reinforced and entrenched an attitude in the plaintiff which hindered his appreciation of the need to take action to address his co-morbidities by losing weight. The evidence supported the need for clear lines of communication in the therapeutic relationship. And one can accept the confounding effect of the advice about toxins. On the other hand Dr Varipatis, Prof. Allen and Dr Donohoe thought toxins had something to do with Mr Almario's overall malaise, including the condition of his liver. Dr Donohoe had some particular first hand knowledge of conditions at the Union Carbide site. This body of opinion, but to some extent only, validates Dr Varipatis' approach on this score. 115On the evidence I have heard, were it necessary for me to decide the question, I would not have been persuaded that Mr Almario's rather minimal exposure could be sufficient to justify any available diagnosis. Moreover, I accept the strongly expressed views of Assoc. Prof. Strasser that liver disease due to toxic chemicals in the workplace is not a recognised cause of liver disease. As a specialist hepatologist she is in the position of expertise superior to the nutritional and environmental general practitioners. Causation 116Mr Almario carries the onus of proof on all questions relevant to causation: S.5E Civil Liability Act. 117S.5D(1)(a), as is now well recognised, is a statutory statement of the but- for test for causation : Strong v Woolworths Limited [2012] HCA 5; 86 ALJR 267 at [18]. The plurality judgment in Strong points out a particular difficulty that may arise where a plaintiff is required to prove on the balance of probabilities that negligence constituted by an omission is a necessary condition of the particular harm suffered by the plaintiff. Here, on each finding of negligence I have made, I have found that Dr Varipatis failed to take a precaution a reasonable general practitioner in his position ought to have taken. At [32] the plurality said: Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred. A further complication is that the present case falls into that class of case where there is more than one sufficient condition of the plaintiff's harm. First, there is the defendant's negligence, and secondly, there is the ordinary untreated course of the progression of his underlying disease. 118Moreover, an additional difficulty is that establishment of the probable course of events had the omission not occurred requires consideration on a hypothetical basis of what a third person i.e. the specialist to whom Mr Almario ought to have been referred (each finding of negligence relates to a failure to refer to a specialist) would have done. 119At [20] of Strong the majority said: Under the statute, factual causation requires proof that the defendant's negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant's negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within S.5D(1)(a). In such a case, the defendant's conduct may be described as contributing to the occurrence of the harm. (See also Idameneo (No.123) Pty Ltd v Gross [2012] NSWCA 423 at [63]-[76] per Hoeben JA.) 120Two final contextual points need to be made. First, to succeed on the causation issue the plaintiff needs to establish on the balance of probabilities that positive intervention by the defendant would have arrested, indeed reversed, the ordinary course of his disease. Secondly, each ground of negligence I have found depends in part on the compliance by the plaintiff with a prescribed course of treatment. On the one hand, if offered bariatric surgery he would still need to change his lifestyle to achieve the necessary weight loss. Manifestly, achieving the same goal by conservative means requires even greater changes in lifestyle, and the plaintiff's track record has been of failure of the conservative approach. 121The hypothetical question about what Mr Almario would have done had Dr Varipatis not been negligent is to be determined subjectively in the light of all the circumstances, but excluding what Mr Almario himself would wish to say about his state of mind or what he would have done in the absence of the defendant's negligence. 122It needs to be borne in mind that all questions of causation are asked for the purpose of attributing legal responsibility for harm. S.5D(1)(b) and S.5D(4) address this consideration. 123However, the but for test is normatively neutral: Tabet v Gett [2010] HCA 12; 240 CLR 537 at 586 [140] per Kiefel J. 124In a medical negligence case the damage said to be caused by the negligence of the defendant will be demonstrated by showing that a difference has been brought about and that the defendant's negligence in the provision of medical treatment was a cause of the difference: The comparison invoked by reference to "difference" is between the relevant state of affairs as they existed after the negligent act or omission, and the state of affairs that would have existed had the negligent act or omission not occurred [original emphasis]: Tabet at 564 [66] per Hayne & Bell JJ The loss of a chance of a better medical outcome is not damage for which a plaintiff may recover. 125The first ground of negligence found by me is failure to refer Mr Almario directly to a bariatric surgeon for the treatment of his general condition, not his liver condition specifically, by 30th July 1998. Bearing in mind that all questions of causation must be determined retrospectively, as I have previously said, the point of the inquiry is what happened and why. I am satisfied by reference to the joint report of the surgeons (Ex P8) that Mr Almario would have been considered for surgery, probably laparoscopic adjustable gastric banding. All the surgeons agreed that he would have been considered. 126It may be a different question whether the surgery would have been offered and this depended upon a number of considerations. 127I stress that the question here is being asked and answered in the context of his morbid obesity and co-morbidities. The evidence before me is that the benefits of bariatric surgery as a treatment specific to NASH had not been recognised until 2003 when the available body of research was brought together in the Clinical Practice Guidelines for the Management of Overweight and Obesity in Adults, endorsed by National Health and Medical Research Council of Australia in September 2003. Or perhaps from 2002 when hepatologists understood that NASH results from insulin resistance. There is a direct relationship connecting obesity, diabetes, and NASH: Ex P9, the Joint Report of the Hepatologists, Q1. 128To some extent this is surprising as the point of bariatric surgery is weight loss, and weight loss has always been the treatment for NASH as well as obesity: see for example, 461.25-40T per Assoc. Prof. Strasser. 129All of the hepatologists seemed to agree that the American experience was somewhat different in that the benefits of bariatric surgery were recognised there earlier than here. Assoc. Prof. Strasser said that there was a lot of interest in bariatric surgery locally. She said: ...for the reasons of diabetes and other complications of severe obesity, not for liver disease, but the consequences in terms of the liver were not recognised...(463.30T) Assoc. Prof. Weltman said of the American experience that there were no controlled clinical trials. Rather, if someone failed medical treatment you would give them permission to consider a surgical option but the best advice is to lose weight medically, and if you cannot control things medically then you can think about other options, and one of those other options would be a type of surgery because there is no other option (463.5T). Even so, he said he didn't refer anyone for bariatric surgery in the period 1997-2002 (465.5T). It wasn't until 2004 that research was published that showed that bariatric surgery could improve liver outcomes at least to one year after the surgery (465.25T). 130Assoc. Professors Strasser and Weltman agreed that the co-morbidities to which Mr Almario was subject required obesity management but reference for bariatric surgery in the period 1997-2002 was not the standard practice from a hepatologist (Ex P.9, Q15, p10). Dr Vickers agreed that Mr Almario was suffering from a severe multi-systemic disease. He said if medical help fails there is bariatric surgery. In his oral evidence, he emphasised that you should not look at NASH in isolation; you need to consider the whole complex. He repeated that if medical treatment fails you had to think what else was available as a doctor to try and help that patient with his weight reduction. The what else is bariatric surgery. And subsequent controlled studies have justified its past practice when required (469.50-470.15T). 131But at this level of enquiry the views of the hepatologists are probably not to the point. The question relates to direct referral to a bariatric surgeon. 132The surgeons agreed that rapid weight loss may be contra-indicated in the case of a patient with compromised liver function. All the surgeons also agreed however that adjustable gastric banding was a form of surgery that leads to gradual, not rapid, weight loss. All also agreed that that procedure was available in the period 1997-2003. What was made clear was that bariatric surgery was reserved for patients who had tried to lose weight by conservative (medical) means and had demonstrably failed. On his history as I have recounted it, this seems to eminently qualify Mr Almario for consideration. 133A question arose about what was said by Mr Almario to Dr Varipatis on 30th April 1998 about obtaining no positive result concerning his chest problems after reducing his weight from 140kg to 110kg. With respect, that matter was put somewhat inaccurately by senior counsel in examination of Dr Ritchie. The question was put on the basis that Mr Almario hadn't felt weight loss was of any beneficial use to him because he didn't feel any better. On this basis Dr Ritchie said if he was to put that proposition to me, then I would begin to wonder whether he was a suitable candidate for surgery (494.25-45T). As I have said that is not what Mr Almario said and I think this evidence of Dr Ritchie can be put to one side. 134The effect of Dr Ritchie's evidence taken as a whole was that if the patient had lost weight in the past and then regained it, and was therefore seriously obese with co-morbidities, he would be offered surgery (494.20T). It is my understanding of the evidence of Prof. Morris and Assoc. Prof. Brown that they agreed with that approach. 135The surgeons were in agreement that had Mr Almario successfully undergone bariatric surgery before he had cirrhosis it was more likely than not he would have avoided progression to cirrhosis, liver failure and liver cancer (Ex P8, Q9, p7). The latter two conditions being separate complications of cirrhosis. 136All of the surgeons agreed that the rate of success in terms of permanent weight loss, and adaptation to changes in lifestyle, is greater than fifty percent. This success rate applies to adjustable gastric banding. 137A concern of the surgeons was the degree of cognitive impairment displayed by tests commissioned by Dr Teo. The concern in that regard relates to the patient's ability to learn new information to comply with the requirements of lifestyle change following surgery. But all the surgeons agreed that the relevance of that consideration depends upon the severity of the impairment and whether or not the type of impairment suffered affects in a significant way executive functions relating to the acquisition of new information. On my understanding of it, the evidence in this case does not suggest to me that Mr Almario's cognitive impairment is of that type. 138Bearing in mind that bariatric surgery is offered to obese people, the surgical risks tied up with obesity are not a barrier to its performance. Moreover, it should be borne firmly in mind that Mr Almario was able to be prepared for his orchidectomy and cholecystectomy. He came through both surgical procedures without reported complication. I am persuaded that this factor would not have been a barrier to him undergoing bariatric surgery in or about 1998. 139Assoc. Prof. Strasser pointed out that since she has become familiar with bariatric surgery as a treatment for liver disease, in her experience it is never offered to patients with cirrhosis or known liver complications (461.15T). 140The question of whether the evidence shows that Mr Almario had developed cirrhosis by 1998 is an important one on this question of whether bariatric surgery could have been undertaken. Assoc. Prof. Weltman thought Mr Almario may have had cirrhosis (without complications) from as early as 1992 because of a low serum albumin count at that time. However there were no consistently low readings as early as that. Although Assoc. Prof. Strasser generally agreed, her opinion was somewhat qualified. She explained there might be many explanations for a low serum albumin count. I have already recounted that at the cholecystectomy in 2000 Mr Almario's liver did not look cirrhotic. But more importantly the cholangiogram was normal. And Prof. Borody explained that obstruction caused by cirrhosis would have been evident on that test had it existed. 141Moreover, although cirrhosis may be insidious its extent and rate of progress varies from individual to individual affected. Importantly, Assoc. Prof. Strasser said that in general terms there is thought to be a ten year interval from the development of cirrhosis to the development of liver cancer (Ex. P9, Q10, p5). It is not disputed that Mr Almario developed liver cancer in 2011. This fact ties in with the evidence that there was a low platelet count in June 2001 (Ex. P3A, p30) 142This ties in also with Assoc. Prof. Strasser's view expressed in Ex. P9, Q9, p4, that: Cirrhosis can be present without any outward manifestations and it is not until that one starts to develop what is called portal hypertension or increased size of the spleen that the platelet count starts to drop so certainly that is the clinical marker of concern for cirrhosis but it does not mean that cirrhosis was not present previously. 143Dealing with the matter on the balance of probabilities I find that cirrhosis did not develop in Mr Almario's case until June 2001. Accordingly that condition was not a barrier to him undergoing bariatric surgery in or about the latter part of 1998. 144A very significant factor to be determined relating to causation is whether I am satisfied that Mr Almario could make the necessary lifestyle adjustments to make bariatric surgery a success. His previous failed attempts to lose weight might be considered to be predictive of failure even following surgery. Past experience in a mature person may provide some guide to future expectations of the type that need to be considered in this hypothetical question. On the other hand, his past history does bespeak success at losing weight on a number of occasions. Although his experience might be a difficulty relating to causation issues on the alternative basis of negligence, given that bariatric surgery is a treatment which has worked successfully in patients like Mr Almario with a history of past failure, I find on the balance of probabilities that he would have been able to comply with the lifestyle changes necessary to succeed in overcoming his obesity following bariatric surgery. 145A subsidiary issue relates to Mr. Almario's means. He has not worked since 1992 and he and his wife live on social security in a housing commission house. The evidence is that bariatric surgery in the late 1990's would have cost around $15,000. Simply put, they didn't have it. Mr. Almario says that his family in Colombia - his father was a senator and other members of the family are in business - are wealthy and would have leant him the money if necessary. He has also called evidence from a Mr. Ward, a long time personal friend who said that had he been asked to lend Mr. Almario the money he was in a position to raise it and he would have done so willingly. Likewise, his sister-in-law, Mrs. Almario's sister, has given evidence that she and her husband are comfortably off and would have been happy to lend the money if they had been asked so that Mr. Almario could have had the surgery. Mrs. Szarek emphasised that she and her husband would have been content to allow her sister and brother-in-law to repay the money in small amounts over a long period of time. 146Both of these witnesses were cross-examined by Mr. Higgs SC on a series of assumptions about Mr. Almario's past inability to lose weight and the need to change his lifestyle in any event after bariatric surgery. The thrust of the cross-examination was that if properly informed that it seemed unlikely that Mr. Almario could sufficiently comply with the post-operative, rigorous requirements of lifestyle change, they would not have decided to lend the money. Effectively, the implication of the cross-examination was, regardless of strong bonds of friendship or family neither Mr. Ward nor Mrs. Szarek would have been persuaded to waste their money by funding an expensive procedure that would have no effect because Mr. Almario wouldn't comply. As I understand the evidence of each of them, both rejected the propositions so skilfully put by the cross-examiner. 147An affidavit was also read from a Mr Vriduar Vega. Mr Vega set out his means and assets and swore that because of his close friendship with Mr Almario he would have given him the cost of surgery without hesitation. He was not cross-examined. 148The evidence before me establishes that Mr Almario was unable to afford to pay for the detoxification treatment prescribed by Dr Varipatis. It also establishes that in the late 1990s bariatric surgery was not available to public patients. It is but rarely available to public patients now. In this context, this issue was properly raised by the defendant. However I accept the evidence that friends and family would have been prepared to help. 149On balance, I am satisfied that had bariatric surgery been offered to Mr. Almario in the late 1990's he would have been able to raise the necessary money to pay for the procedure from family or friends, and would have done so. 150I am satisfied on the balance of probabilities that had Mr Almario been referred by Dr Varipatis to a bariatric surgeon by or on 30th July 1998, surgery would have been offered and undertaken; it would have been successful; and Mr Almario would have complied with the necessary lifestyle changes; more than likely his NASH would not have progressed to cirrhosis, and the complications of cirrhosis which he has suffered, including liver failure and liver cancer, would not have developed. 151Accordingly, I am satisfied that the negligence of Dr Varipatis in omitting to refer Mr Almario to a bariatric surgeon was a necessary condition of the progression of his liver disease to cirrhosis, which occurred in June 2001, and liver failure and finally liver cancer. 152I turn now to the alternative finding that Dr Varipatis was negligent in not referring Mr Almario to an obesity clinic or endocrinologist. Two eminent experts, Prof. Michael Hooper and Prof. John Carter, gave the evidence on this topic. Their joint report is Ex P7. I think it necessary to set out a portion of that report. 2. How was obesity treated in Australia the period [sic] August 1997 to June 2003? Who would carry out such treatment? Did it on occasions include bariatric surgery and, if so, in what circumstances? RESPONSE: Joint response Obesity was treated between August 1997 and June 2003 in Australia with lifestyle changes ie reduced energy intake, exercise, and medications, of which there were four on the market at that time. Professor Carter opines that bariatric surgery was rarely offered. Both Professors Hooper and Carter opine that bariatric surgery was offered in certain circumstances to people with severe obesity and associated with co-morbidities after careful evaluation by a multi-disciplinary team. The evidence base is summarised in the 'Clinical Practice Guidelines for the Management of Overweight and Obesity in Adults' published by the NH&MRC on 18 September 2003. 3. What was the role of dieticians and diabetes clinics in the period in relation to the treatment of obesity and diabetes? RESPONSE: Joint response Dieticians played a paramount role in the treatment of diabetes and obesity. Diabetes was treated either by a GP, diabetic clinics, or diabetes specialists in private practice. Between 1997 and 2003 there were a smaller number of obesity clinics, and on occasions, severely obese subjects were referred to such clinics for advice. 153In oral evidence Prof. Carter made it clear that he had personally never referred a patient to a bariatric surgeon until after the 2003 publication and he became convinced of the skill and expertise of the surgeons involved. Prof. Hooper made it clear that he, whilst in practice in Adelaide, had very frequently referred patients to bariatric surgeons during the 1980s. However since returning to practice in Sydney, Prof. Hooper has not been involved so much in the management of obesity. His interest now is in metabolic bone disease. Most of his patients with morbid obesity are now referred on to an obesity clinic. He did say suitability for bariatric surgery requires a very careful evaluation. 154In view of Mr Almario's history of inability to maintain weight loss in the past, I think it unlikely that a further reference to an endocrinologist or even a specialised obesity clinic would have produced a long-term favourable result. As Mr Higgs pointed out in argument, even when Mr Almario experienced liver failure in 2003, despite initially impressive success at losing weight, he was unable to achieve the target required of him by Dr Wettstein. Accordingly, in my view, unless an obesity specialist referred him for assessment by a bariatric surgeon, medical treatment of his obesity was likely to be unsuccessful and he would not have avoided developing cirrhosis and the complications which have since befallen him. 155I turn now to the third finding of negligence consisting of the failure to refer Mr Almario to a hepatologist or other gastroenterologist for the specific treatment of his liver disease by the end of September 2000. I have set out the evidence of the hepatologists. It is unlikely that a hepatologist would have undertaken much by way of treatment himself or herself; rather the patient would have been referred on for treatment of his obesity. Even on Dr Vickers' approach, as at the year 2000 it would have been necessary for a hepatologist to be satisfied of a repeated failure to lose significant weight by conservative means before bariatric surgery would have been considered, on the ad-hoc basis he discussed. It is important to refer to some evidence of Prof. Borody. In the period 1997-2003, he had referred obese patients to bariatric surgeons for weight loss. One needs to bear in mind that he did not treat liver disease and he did not treat obesity, but he did say (at 273.15-20T): So if someone had a co-morbidity and they asked about it, if diet had failed, you referred them to someone who might operate. But, in those days, gastric banding was all that was available and there were more complications than good results. 156What the evidence of the hepatologists and Prof. Borody emphasises is that medical treatment was preferred to surgery. But I think I can infer from this evidence that surgery was an option that would have been considered for a patient with Mr Almario's history, but not by a hepatologist himself or herself as at September 2000. Someone else would consider the option after the patient had been referred on by the hepatologist. 157Once again, I am of the view that conservative treatment, referred to as medical treatment by the hepatologists, would have failed. And unless Mr Almario was referred to a bariatric surgeon he would not have avoided the progress of his condition to cirrhosis and its complications because he would have been unable to lose sufficient weight by conservative means. 158In summary, the plaintiff succeeds on causation on one ground only.

Section 5O Civil Liability Act 2002 159As I have stated, the defendant opened on a defence under s5O Civil Liability Act, that is to say that Dr Varipatis was not liable because he had established that he acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. That matter however was not raised in Dr Varipatis's written or oral submissions. Dr Varipatis had done nothing to manage Mr Almario's obesity except counsel him about it, without taking any proactive step to assist him with his weight. And, other than referring him to Prof. Borody, Dr Varipatis had done nothing to treat separately Mr Almario's liver condition when he became concerned about it in the second half of 1999 and early 2000. There was no evidence before me from which I could infer that s5O was properly engaged. It is one thing to say that the benefits of bariatric surgery were not widely appreciated in the period 1997-2003 and another to say it was widely accepted by peer professional opinion as competent professional practice that bariatric surgery should not be considered as treatment for obesity or liver disease. 160The defendant, if he has not abandoned this defence, has not discharged the onus of making it good.

Contributory negligence 161The defendant says that if liable, the plaintiff is guilty of contributory negligence in as much as his conduct in the past constitutes an obdurate refusal to diet, and he has failed to avoid alcohol even after his cirrhosis and liver failure were diagnosed. 162The defendant carries the onus of making good this partial defence and by dint of s5R the standard of care required by the person suffering harm is the standard of a reasonable person in his position. The general principles established by s5B apply to contributory negligence. 163There is no doubt that as a matter of law lifestyle choices by an injured plaintiff may form a factual basis for a finding of contributory negligence. The Commonwealth v McLean (1996) 41 NSWLR 389 was a case in which a plaintiff alleged that throat cancer was caused by the defendant's negligence. Part of the chain of causation was drinking alcohol and smoking to alleviate the stress he suffered as a result of a collision between the HMAS Melbourne and HMAS Voyager. The defendant sought leave to amend its defence to rely upon those lifestyle choices made by the plaintiff as contributing to the throat cancer. The Court of Appeal held that there was no legal objection to the proposed defence. 164To my mind, it is open to Dr Varipatis to argue that the plaintiff's failure to accept advice to manage his obesity by dieting and exercising over the decade or more before preceding his liver cancer constitutes contributory negligence. 165Although the defendant carries the onus, the plaintiff's position in regard to the matter is not improved by his inability to explain himself because of his denial that he had received appropriate advice and his related failure to provide an explanation of his inability to follow it. Anyone can appreciate the difficulty of dieting on a long-term basis. Also, it is conceptually difficult to postulate a reasonable man as a person in the position of the plaintiff, with his morbid obesity and significant health issues. 166Moreover, a question arises about the correct identification of the relevant risk of harm against which the plaintiff had to protect himself. There is no evidence that anyone gave him any specific advice about the relationship between his obesity and the risk of progressive liver disease having the dire consequences he has now suffered. It seems improbable that any such advice was given to him, given that the interrelationship of obesity, diabetes and liver disease was not clearly understood until 2002. On the other hand, one must infer that as every doctor told him to get thin, some explanation must have been given of some of the specific health risks to which his obesity subjected him. 167Considering the matter in terms of s5B, the best that can be said is that there was a foreseeable and not insignificant risk of serious illness unless he reduced his weight to a healthier level. This is the same risk of harm in general terms that I have identified in relation to the ground of negligence in respect of which the plaintiff has succeeded on the issue of causation. 168It seems to me that a reasonable person in the position of the plaintiff would have taken the precaution of dieting given there was a relatively high degree of probability that serious illness would overtake him unless his obesity was overcome and that that harm could well be grave. One should not however underestimate the burden of overcoming a weight problem especially one as large as Mr Almario's. 169As I have found already, obesity is a medical condition, and is susceptible to medical treatment. Although I am satisfied that in not adhering to the opportunities he has been given in the past to diet, the plaintiff has been guilty of contributory negligence, in terms of the apportionment of responsibility between him and Dr Varipatis, I am of the view that the failure to provide reasonable medical treatment by way of referral for bariatric surgery is more significant in terms of the degree of departure from the standard of the reasonable man, and of causative potency in bringing about the specific injuries which have occurred. Medical science understands the enormity of the task confronting the obese. It seems to me that as between the defendant and the plaintiff, responsibility should be apportioned at eighty percent to Dr Varipatis and twenty percent to Mr Almario.

Limitation of action 170The proceedings were commenced by Statement of Claim filed in the Registry on the 29th of March 2012. The Defendant has pleaded that the proceedings are barred by s.18A Limitation Act which provides that an action on a cause of action for damages for personal injury is not maintainable if brought after the expiration of a limitation period of 3 years running from the date on which the cause of action first accrues to the plaintiff. 171In argument, Dr. Varipatis referred to the provisions of Division 6 and in particular ss50C and 50D. However, I accept Mr. Almario's argument that that division applies only to causes of action where the act or omission alleged to have resulted in the injury or death with which the claim is concerned occurs on or after the commencement of the Division. The Division was "inserted" by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) which commenced on 6th December 2002. Accordingly, Division 6 is not applicable. 172Mr. Almario seeks an extension of time to bring the proceedings to the extent to which his cause of action is taken to have accrued more than three years prior to the commencement of the action. I have expressed myself this way because express reliance is placed on s60G of the Limitation Act, which permits an extension beyond the time allowed under s60C, (an additional five years) where the conditions fixed by s60I are satisfied. 173Mr. Almario has argued that there are separate injuries in this case constituted by each of the complications of cirrhosis that he has suffered. He says the first injury is the occurrence of liver failure in or about May 2003. And the second injury is the occurrence of liver cancer which occurred in September 2011. If this argument is correct, so the submission runs, no extension is required in respect of the second injury constituted by the liver cancer. No authority is cited in support of this argument. With respect, the approach contended for by Mr. Almario is not correct. 174In my judgment, the personal injury in this case is the "difference" between Mr. Almario's medical condition as it existed after the negligent act or omission, and his medical condition that would have existed had the negligent act or omission not occurred. Tabet at 564 [66] per Hayne and Bell JJ. 175In particular, I am of the view that the relevant difference here is evidenced by the progression of his liver disease from NASH to cirrhosis, as I have previously found, in June 2001 and that the liver failure, and subsequent liver cancer, are consequences of that original personal injury rather than separate injuries giving rise to new causes of action. I find that the plaintiff's cause of action accrued no later than 19th June 2001 when the liver function test showed a low platelet count. Accordingly, the plaintiff's claim is in all respects statute barred unless he persuades me to exercise my discretion under s60G to extend time for bringing the action. Before the exercise of my discretion may be considered, it is necessary for Mr. Almario to satisfy me about the conditions imposed by s60I. S60I is in the following terms: (1) A court may not make an order under section 60G or 60H unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered, or (ii) was unaware of the nature or extent of personal injury suffered, or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and (b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)-(iii). (2) Subsections (2), (3) and (4) of section 60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision. 176The plaintiff would not have known that personal injury had been suffered on the 19th of June 2001, but he would have known that personal injury had been suffered at the time of his liver failure in May 2003. 177By May 2003, Mr. Almario would have been aware, and a reasonable person in his position would have been aware, that his injury was serious in as much as it had given rise to the significant complication of liver failure which required constant ongoing medical and hospital treatment. But at that stage he would have been unaware of the full extent of his injury. At that stage he would have been unaware of the occurrence of liver cancer because it's development was still some way off and competent medical advice at that time would have been to the effect that the development of liver cancer was certainly not inevitable. As the evidence I have previously set out establishes, liver failure and liver cancer are separate unconnected complications of cirrhosis. Only a very small proportion of patients would be unlucky enough to suffer both. 178The concept of unawareness imports a subjective test for the purpose of the requirements of subsection (1) of s60G. Actual personal knowledge of the plaintiff is the relevant requirement and it does not depend upon concepts of reasonableness or constructive knowledge: Harris v. Commercial Minerals Ltd [1996] HCA 49; 186 CLR 1 at p. 10. In Harris, in a unanimous judgment (p. 13), the High Court of Australia said: ...an applicant may have been aware of the extent of his or her injury even though he or she does not expect all it's precise consequences, for it is not necessary that the applicant should foresee the exact course of the disease or be aware of all it's pathological and physiological incidents. If the applicant was aware that the injury would deteriorate, he or she may be aware of the extent of the injury for the purpose of s60I (1)(a)(ii) even though the injury developed particular consequences that the applicant did not precisely foresee. As long as the consequences are of a kind that an applicant expected to occur, the applicant will be aware of the extent of the injury. The nature or extent of the injury is not synonymous with the precise pathology or consequences of the injury. 179Although the liver cancer is but a separate consequence or complication of the cirrhosis which I have, in effect, found constitutes the injury in the present case, I am of the view that as at May 2003, Mr. Almario was not aware of the nature and extent of his injury. He certainly knew he had cirrhosis because Dr. Wettstein had told him so (Exhibit P5 p. 432 [30] - [32]). He did not know and could not know that he would develop liver cancer. Liver failure is very serious. It is not the policy of the law, however, that persons should sue whenever they have an opportunity of doing so, assuming for present purposes, knowledge of the nature and the extent of the injury is the only consideration: Royal North Shore Hospital v. Henderson (1986) 7 NSWLR 283 at 287B. The development of liver cancer was such a serious complication and large increment in the overall injury that notwithstanding the significance of liver failure, I am of the view that the plaintiff was not aware of the nature and extent of his injury until he received the diagnosis of liver cancer in 2011. 180In the event that I am wrong about that matter, I am of the view that Mr. Almario was unaware of the connection between his personal injury and the defendant's act or omission until he received advice from his current solicitor, Ms. Sally Gleeson, in March 2012: Exhibit P.5 p. 440 [66] - [67]. 181Ms. Gleeson's firm received instructions from the plaintiff in July 2010. They related to him seeking to re-ventilate his case in respect of toxic exposure whilst employed by Carrington Constructions which he had settled in or about July 2008. Ms. Gleeson has said in her affidavit of 20th September 2012 without objection (Exhibit P4 p. 180): It was apparent to me that until at least March 2012, the plaintiff was unaware of the connection between his illness and the Defendant's conduct, and indeed was unaware of the true nature of his illness. It was further apparent to me that he had never previously been advised in relation to [this medical negligence claim] by Keddies or anyone else. 182I received experts' reports from Dr. Christopher Vickers, a Consultant Gastroenterologist and Hepatologist and Dr. Bernard Kelly, a General Practitioner, both of whom gave evidence before me, dated March 2012. From his affidavit it is clear that the plaintiff was unaware that perhaps some type of bariatric surgery would have assisted with [his] obesity until Ms. Gleeson advised him of the contents of the experts reports. I find that the plaintiff was unaware of the connection between his personal injury and the defendant's act or omission until March 2012. 183I am empowered to make an order extending time under s.60G if the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i) - (iii) of s.60I(1). 184Although the plaintiff had previous experience of the legal system and actual knowledge that the claims for personal injury may be subject to limitation statutes, in my judgment that, although relevant, cannot be decisive. I acknowledge that in respect of his claim against his previous employer, he had taken proceedings in the District Court and had given evidence before her Honour Judge Balla on an application to extend time under s151D Workers Compensation Act 1987. Whilst this matter may have some relevance in relation to my general discretion under s60G, it is, of course, entirely irrelevant to the question of whether the preconditions imposed by s60I are satisfied. In my view, a reasonable person in the plaintiff's position would not have become aware of all three matters listed in paragraph (a) of subsection 1 any sooner than the plaintiff obtained personal knowledge of them. 185I turn then to the general discretionary considerations which inform the exercise of the s60G discretion. I am satisfied that it is just and reasonable to order the limitation period for Mr. Almario's cause of action be extended to the date of the filing of his Statement of Claim on 29th March 2012. On the basis of the findings I have already made, Mr. Almario, at least in one respect, has a good cause of action. The injuries he has suffered are serious and not trivial. It is apparent from the defence that has been run before me that the defendant at all times has been in a position to have fair trial. Dr. Varipatis still has his treatment notes. He was able to supplement them from his own recollection and by reference to his usual practise. An evidentiary statement of 27 pages and 180 paragraphs setting out his version of events in great detail was able to be prepared on his behalf. Moreover, no document or any relevant material of any other kind was lost. He was able to marshal a very impressive supportive expert case. 186The defendant argues that no satisfactory explanation has been given for the delay in issuing proceedings. I find that the explanation consists in the late development of the serious complication of liver cancer. I have accepted that the plaintiff was ignorant of his rights against the defendant until he received advice from his current solicitor in March of this year. After that advice was received the proceedings were commenced with great celerity. Although he has sought out opinions of a variety of doctors within and outside the hospital system for over 20 years, and more particularly during the last 14 since the occurrence of the relevant omission of Dr. Varipatis, which I have found constitutes the cause of action, there is no evidence before me to suggest that prior to March 2012 he had any reason to suppose or suspect that some act, omission or other conduct on the part of Dr. Varipatis had caused him injury, whatever the legal complexion of that matter. I accept that the passage of time has made it more difficult for the defendant to piece together evidence that might otherwise have been available. However, as I have already said, the defendant has been in a position to mount a strong case both from his own recollection and other resources and with the assistance of reputable, indeed eminent experts. I am satisfied that the plaintiff has discharged the onus of proving that the defendant has not suffered any relevant forensic prejudice. In due course I will make an order under s.60G.

Quantum 187Because of the complexity of the issues concerning liability, the expedited hearing, limitation of time before the commencement of long vacation, and the obviousness of the seriousness of the plaintiff's medical condition, very little time was spent during the hearing or in argument ventilating issues relating to quantum. Given the constraints of time imposed by the necessity to deliver judgment urgently, I propose to adopt a similarly summary approach in dealing with this issue. 188As I have already found, Mr Almario's personal injury consists of the development of his liver disease into cirrhosis and the occurrence of separate complications of that disease of liver failure and liver cancer. 189I am satisfied that but for the negligence of the defendant, the liver disease would not have progressed to cirrhosis and one could have expected a great improvement in his health generally, had bariatric surgery been successful, and a healthful weight been achieved by Mr. Almario following surgery. But bariatric surgery has a failure rate of about 20 per cent. In those cases where it does not fail for technical reasons, the success rate of the treatment was somewhat over 50 percent. I infer this is due to the variability of patient compliance with lifestyle changes even after the successful performance of surgery. It seems to me that these findings bring into play the principle discussed in Seltsam Pty Ltd v. Ghaleb [2005] NSWCA 208; 3DDCR 1 24 [101] to 26 [107]. 190I have found that, but for the negligence of Dr. Varipatis, the plaintiff on the balance of probabilities would not have achieved therapeutic weight loss by conservative or medical measures only. Accordingly, his case depends upon the outcome of bariatric surgery assessed on a hypothetical basis. It seems to me I must make an allowance for the contingency of failure, over and above other considerations which may come into play. In Ghaleb Ipp JA said at 26 [107]: Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant's negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation. 191It is worth bearing in mind, however, that not all contingencies are negative. Had bariatric surgery been successfully carried out and had Mr. Almario been able to achieve the necessary lifestyle changes, not only would cirrhosis not have arisen (on the probabilities), but also in all probability his obstructive sleep apnoea, diabetes, and cardiovascular issues would have been successfully treated. 192Bearing these things in mind, in my judgment the proper approach is to assess the damages and then to make an appropriate discount in accordance with the principles established by Malec v. JC Hutton Pty Ltd (No. 2) (1990) 169 CLR 638, as discussed by Ipp JA in Ghaleb. 193Moreover, apart from the complications of his liver disease, the plaintiff suffered a stroke in late 2011. Although I expressed doubts during oral argument about the connection of this complication with the negligence of the defendant, I accept the opinion expressed by Dr. Sophia Lahz (Exhibit P1A, pp 267 - 268) that his diabetic state and morbid obesity predisposed him to cerebro-vascular accident. And the significant symptom of swallow dysfunction may be a consequence of either the stroke, on the one hand, or central pontine myelinolysis resulting from the process of removing large amounts of ascitic fluid, due to his liver failure, on the other. 194Mr. Almario, to put it mildly, is in a very bad way. He has a short time to live and according to Professor Jacob George (Exhibit P1A, p 375) is subject to the following: It is very very difficult to estimate his life expectancy. Mr. Almario has several problems. He has diabetes and recently had a small stroke. This could affect his long term outcomes, especially if he has a stroke or heart attack or a another complication relating to his diabetes. He is having tube feeding and any day could get an infection or other complication from this. He has end stage liver disease and this could cause liver failure and death. The median survival from his liver disease is 50% at 2 years. Mr. Almario also has liver cancer and this could also shorten his life. 195Mr. Almario is severely, totally and permanently disabled. He is almost entirely dependent upon others for the ordinary activities of daily life. All of his food is pureed, and he is fed via a naso-gastric tube. He can barely walk as far as the kitchen. He is on medications which are administered to him via the tube. He is reduced to doing little apart from sitting in the lounge watching television or sitting in his bedroom on the computer. Mercifully there is no abdominal pain (Dr. Lahz Exhibit P1A, p 264). According to Dr. Westmore he has, understandably, an adjustment disorder. 196His wife administers his care, but she would appreciate paid assistance should that become available and especially if Mr. Almario's mobility became further reduced. 197It is likely that his relative pain free state will vanish as his cancer progresses. One can expect extreme pain towards the end of his life. 198He has, of course, suffered a severe loss of expectation of life. 199The plaintiff and the defendant have provided me with a "Scott Schedule" which narrows the issues to be decided. The primary issue is life expectancy. The plaintiff has put to me that Professor George's evidence should be understood as being that from March 2012 there was probably a life expectancy of 1.5 years. In dealing with future probabilities, it is not necessary that I make a finding on the balance of probabilities. Life expectancy is at best an estimate and a person may do better or worse than expected. However, given that learned Senior Counsel has put to me that I should allow nine months, I am prepared to act on the basis of that submission. I prefer the plaintiff's submission because it seems to be better based upon an appreciation of Dr. George's view, rather than on hearsay factors advanced by the defendant. I find that Mr. Almario has a life expectancy of 40 weeks and that this takes into account the uncertainty of the actual position. 200The difference between the plaintiff and the defendant in relation to non-economic loss is 75 per cent of a most extreme case plays 50 per cent. For the reasons I have rehearsed, the case is obviously a serious one and despite his short life expectancy, having regard to the length of time he has been suffering, and suffering greatly, Mr. Almario's non-economic loss should be assessed as greater than 50 per cent. In my judgment, the appropriate figure is 65 per cent and I allow $347,967. 201In terms of past out of pocket expenses, a claim is made in respect of the medicare charge. The defendant says 80 per cent only should be allowed. As I am proposing to make a discount on the Ghaleb principle, I will for the purpose of calculation, allow the whole amount of $16,723. 202For future liver clinic consultations, the plaintiff claims $1248 calculated in accordance with the written submission. The defendant counters that the plaintiff will receive this treatment as a public patient. This gives rise to a question of principle of the kind discussed by Allsop P in Jackson v. Lithgow City Council [2008] NSWCA 312 at [89] - [95]. As his Honour there pointed out at [91]: No submissions were made as to the possible effect of the Health Insurance Act 1973 (Cth), s 18 which would appear to disentitle a person from the receipt of medicare payments if a right to receive compensation has been made out: see Luntz [H Assessment of Damages for Personal Injury and Death (4th Ed.)] at 278-284 [4.4.1]-[4.4.6] and 432 [8.2.3]. Although the onus is upon the plaintiff to prove his losses, the defendant carries an evidential onus to put before the Court material which justifies his position (see Jackson at [92]). In the circumstances I allow the sum of $1,248. 203An amount of $544 is claimed in respect of a diabetes educator. The defendant says that diabetes was a pre-existing condition and the amount should not be allowed. Had the surgery been successfully undertaken, the evidence before me satisfies me that the diabetes would have been reversed or at least brought under control. I propose to allow the sum of $544. 204The dispute about general practitioner consultations again revolves around whether medicare will pick up the tab. For the reasons I have given, I am not satisfied that that is so where a plaintiff is entitled to damages, and I therefore allow the sum of $2,242. 205An amount of $348 is claimed as the cost of future medications. Again, the defendant says that these matters relate to pre-existing conditions. It seems to me that some medication is called for in his present condition and I am prepared to allow the sum of $348. 206A claim is made for the cost of special foods necessary for the plaintiff's condition because of his need to be fed by tube. The defendant says two things. First, that the stroke is not related. And secondly, that some discount should be made for the savings made from the household budget because the plaintiff is not eating normal food. 207So far as the first point is concerned, it is the persistent dysphagia that creates the need. As I have said, that could result from either the stroke or the treatment undertaken to remove ascitic fluid. Either way, on the basis of Dr. Lahz's opinion, I propose to allow the claim bearing in mind I am making a discount in accordance with Ghaleb. 208I acknowledge the force of the defendant's argument that some savings might be made because the plaintiff is not spending money on ordinary food. But the evidence does not clearly show that this is correct. Further, and in any event, as I have found there is a connection between the need to be fed by a tube and the negligence of the defendant, the cost of the special foods is but a measure of the loss represented by that need. I propose to allow the whole amount claimed. Past food costs $4,432. Future food costs $3,854. 209There is no dispute about future aids and equipment. I allow the sum of $11,000. 210An amount of $2,400 is claimed for psychological treatment in respect of the adjustment disorder diagnosed by Dr. Westmore. I agree with the defendant's submissions that it is exceedingly unlikely that this treatment will be availed of. I reject the plaintiff's claim. 211The parties agree that some allowance should be made for past and future care. They are in dispute about the appropriate amount. Past care has all been voluntary. The plaintiff's claim runs from 27th March 1998. In my judgment the claim does not arise until liver failure occurred in May 2003. Doubtless, the need has increased as time has gone on. I acknowledge that the plaintiff's claim is calculated in accordance with the report of the occupational therapist, Joanne Carter. This evidence is clearly relevant, however, doing the best I can to assess the need, I find that at the commencement of that period, care was provided at the rate of 6 hours per week rising to an amount in excess of the statutory maximum of 40 hours per week at the present time. 212I propose to allow six hours per week from 22nd May 2003 to 30th November 2011. In November 2011, the diagnosis of cancer was made. This is a total of 3,616 hours. I will allow a rate of $23.36 per hour. The sum allowed is $84,446.40 in respect of that period. From 1st December 2011 to 21st December 2012, I allow the statutory maximum of 40 hours per week. This is a total of 2,200 hours at a rate of $26.36 per hour. The total amount for this period is $57,992. I allow for past care: $142,438.40. 213So far as future care is concerned, it is very hard to conjure, on the basis of the evidence, an accurate picture of what Mr. Almario's most likely short future will hold for him. Doubtless some of it will be spent in palliative care. I also expect that if funds are available, professionals, rather than Mrs. Almario, will render some of the care. I accept that Mr. Almario would wish to stay in his home for as long as he can. It seems to me that the most likely future circumstances are a roughly equal mix of voluntary care by Mrs. Almario and some professional care. Doing the best I can with the materials I have, I assess his future needs at 10 hours a day or 70 hours a week for 8 months, working on the basis that a month or so of his last 9 months will be spent in hospital or a hospice. I have averaged the commercial rate of $48.05 an hour with the statutory rate of $26.36 to produce a weighted rate of $37.20 per hour. The weekly rate for 70 hours is, therefore, $2,604. Adapting the approach suggested by the plaintiff, I will allow two-thirds of the 5 per cent multiplier for 1 year to produce a figure which I will round up to the nearest dollar to allow for uncertainties (the multiplier is 34). I allow $38,536 for future care. 214In conclusion, to allow for the application of the Ghaleb principle, I will reduce my total figure by 20 per cent. I will further reduce the final figure by 20 per cent to allow for contributory negligence. 215My final calculations are: Undiscounted damages $569,332.00 Less 20 per cent $113,866.4

Subtotal $455,465.60 Less 20 per cent $91,093.12

Judgment $364,372.48 216My orders are:

Pursuant to s.60G Limitation Act 1969 extend the time for bringing the proceedings to 29th March 2012.
Judgment for the plaintiff against the defendant in the sum of $364,372.48
The defendant to pay the plaintiff's costs on the ordinary basis after they have been agreed or assessed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 January 2013

Liability Act 2002(NSW)

Liability Amendment (Personal Responsibility) Act 2002(NSW)

Compensation Act 1987(NSW)

Workers' Compensation Act 1987(NSW)

Civil Liability Amendment (Personal Responsibility) Act 2002(NSW)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (14 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (14)

Cited By (2)