FALKINGHAM -v- HOFFMANS (A FIRM) [2014] WASCA 140 (1 August 2014)

FALKINGHAM -v- HOFFMANS (A FIRM) [2014] WASCA 140 (1 August 2014) - WASCA 2014 case summary — Zoe

[147]

53 It is true that in the passages referred to in [36] above, the judge has referred three times to the question of whether the appellant would have pursued the action 'to trial'. However, it is to be recalled that this was in the context of a finding that the appellant would have initiated proceedings against the neurosurgeon by issuing a writ. The language may be infelicitous insofar as it omits reference to litigating the matter to earlier resolution by settlement, but the real import of his Honour's finding, when his reasons are read as a whole, is that there was no basis for the inference that the appellant would have pursued the litigation beyond the issue of the writ, ie, either to the point of judgment or to earlier settlement. His Honour's finding that there 'is no basis for me to draw an inference as to what [the appellant] might have done' [235], is to be read in light of the immediately preceding paragraphs. Fairly construed, that finding is to be read as a finding to the effect that there was no basis to draw an inference as to what the appellant might have done next, ie, after the issue of the writ. Moreover, when his Honour came to summarise, under the heading 'Mr Falkingham's claim fails', the effect of his preceding discussion, his Honour said that '[a]ccordingly, based on the evidence before me, I am not persuaded on the balance of probabilities that [the appellant] would have pursued the lost cause of action' [236]. There is no mention, in his Honour's ultimate conclusion on causation, that the reason the appellant's action failed was because he had failed to prove that he would not have pursued the action 'to trial' as opposed to settlement. The way that his Honour expressed the ultimate conclusion corresponds with the formulation of the question which his Honour had earlier set himself in his reasons at [125(b)]. There his Honour said, in effect, that the relevant issue of causation that he was required to determine, on the balance of probabilities, was whether '[the appellant] would otherwise have pursued the lost cause of action'. Again, there was no attempt to raise a distinction between trial and settlement in the formulation of the relevant causation question. As the premise of ground 1 is unfounded, ground 1 should be dismissed.

[153]

59 Next, it is to be noted that his Honour considered that the failure to warn claim had 55% prospects of success. This assessment was made on the assumption that the neurosurgeon's 'likely response' would be to 'say that a warning was given in the terms suggested by Professor Nade and Dr Bleasel' [170]. In a hypothetical advice on prospects and risks before any defence was filed in the hypothetical litigation against the neurosurgeon, that would be a reasonable assumption to make. The judge's ultimate finding that the failure to warn claim had 55% prospects of success cannot automatically be equated with the hypothetical advice on prospects which a prudent solicitor would have given the appellant before he made any decision to abandon the action. That is because the judge's assessment, unlike that of the prudent solicitor advising prospectively, includes the advantage of hearing evidence from the witnesses called by the parties in relation to the merits of the underlying claim. Nevertheless, the two may overlap to the extent that both the judge and the solicitor giving hypothetical advice would take into account the objective facts and circumstances which would be persuasive in a determination of the underlying claim. In this case, it is of some significance that to a considerable extent, the judge approached his assessment by reference to the information which was available to the solicitors as at 24 February 2004. It may be inferred from the judge's reasoning with respect to the loss of chance that, had he addressed the question directly, he would have considered that a prudent solicitor would have advised that the appellant's prospects on the failure to warn claim were reasonable and were likely to be in the order of 50%. Similarly, the judge's reasoning with respect to the post-operative care claim would indicate that the judge would have considered that a prudent solicitor would have advised that, objectively, the appellant's prospects, although less than even, were far from poor.

[504]

CLYNE, MR: So you had two opinions or three, Professor Blum saying no negligence, Mr Bleasel saying no negligence and Dr Blum saying it could have been bleeding and there should have been an MRI scan---Nade.

Mr Nade, yes. That's what you understood at the time---Yes.

And did Mr Connor say to you, well, it would not be wise to go ahead without a second opinion confirming Professor Nade---That's what I understood, yes.

That's what you understood---Yes.

And [he] also said to you, didn't he, that that person, whoever it was, should be someone who had lots of experience in doing micro-discectomies---Yes.

CLYNE, MR: Now, that was - sorry, your Honour - - -

CURTHOYS DCJ: It's all right. There's plenty of time.

CLYNE, MR: What page have you got open there just so I can pick it up---104.

Thank you. Yes, that was 8 April '03. Can I take you back to page 1 in that same book and that was another time I think that you attended on Mr Connor on 2 December '03 and again you've read the reports. I'll let you read that for a moment to see if that freshens your memory---Yes.

Do you recall that meeting---I'm pretty sure that was a telephone conversation.

It says you came in the wheelchair, the very top: Today I saw this client. He was in a wheelchair which he says is more convenient for longer walking.---I'm pretty sure the conversation was on the telephone, but I was in later [on] that day to actually pay for the amount asked.

Yes. He said that it would cost about 1,000 to issue the writ---Yes.

And - sorry, 1,000 and another 325---Yes.

And you paid that money---Yes.

CLYNE, MR: But again what you were being told was that Mr Connor was still not happy that he had enough evidence to support your claim, is that right---He was asking that - he was saying that he wanted another neurosurgeon to comment on it.

Did he tell you how risky it was to go ahead with these claims---Well---

Without proper evidence---No. Basically, at this point I think he was saying it didn't hurt to issue a writ.

Right. But did he warn you of the risks and costs of going ahead if you lost---No.

Didn't tell you about risks---No.

What did he tell you about the reason why he needed more evidence---Because he only had Nade's to go on so he wanted more than that.

Because there were two saying there was no negligence---Yes, but---

What did you understand that would mean if a court found there was no negligence---Well, up to that point I had no idea of what total costs were involved and what the amount we would have been aiming for or anything like that, so I had---

Were you not aware of what the costs would be if you lost a trial---No.

You didn't know that at all---No.

If you'd------I - as I know now about, you know - you know, settling an amount and costs to be paid, I didn't know any of that at the time either.

Did Mr Connor tell you it was unwise to go ahead without good evidence---Not at the time he wasn't, no. He was---

He didn't---He was advising that we issue the writ.

But earlier he'd said that - when the first Blum report came back it wasn't favourable, you had two options, either drop the case or get more evidence, is that right---Well, he was - it was - well, he would have been telling me at the time that with the evidence he had to proceed he wanted more evidence.

CLYNE, MR: Why did you understand that to be the case---Because that's what he would have said to me, that's what he said.

Yes, but why do you think he wanted more evidence---Well, like he said, Blum and Bleasel's weren't in favour.

So you might lose---Yes.

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

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

CURTHOYS DCJ: Just on page 1---

CLYNE, MR: Yes.

CURTHOYS DCJ: - - - fourth paragraph on the bottom commencing 'Bleasel'---

CLYNE, MR: Yes, that's wrong. I was going to come to that.

CURTHOYS DCJ: Right.

CLYNE, MR: There clearly has to be - because from the report Bleasel admitted in his letter that he was not greatly familiar. Would that be fair, Mr Nugawela?

NUGAWELA, MR: It is.

CURTHOYS DCJ: Thanks.

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

What your claim was worth---No.

Nothing at that at all---No.

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

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

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

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

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

You had none of that---No.

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

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

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

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

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

To buy more time to be able to try and find some more evidence---Yes (ts 95 - 98).

[511]

NUGAWELA, MR: You told my learned friend that your recollection of this matter so many years after the event is not very good and you'd be guided by a reconstruction of matters by looking at the file. You stand by that---Yes. Yeah, I - it's very helpful to read the file. The - all these things happened a long, long time ago.

All right. You also said to my learned friend that it would be - you told the client that, and I quote, 'That it would be good,' if you got another expert to support Nade, is that right---Yes.

'It would be good'---Yeah.

And in this file note it says: I told the client we thought we should have two doctors - - ----Yes.

- - - preferably a report from a neurosurgeon who had a lot of experience with microdiscectomies. And at that stage you were aware that Mr Bleasel had no experience at all in microdiscectomies---He said he had not performed a microdiscectomy. I assume that he had performed discectomies and other type of procedures but he did say that he hadn't performed a micro which meant that you wonder. Well, I think that - - -

What do you wonder? That you think he did perform a microdiscectomy despite what he said---No. I - - -

So at that stage you were aware that Mr Bleasel had no experience whatsoever in performing a microdiscectomy, correct---He - he said in his report that he had not performed one.

All right. So the answer to my question is 'yes'---Yes.

All right. Were you aware or not and did you make any inquires in relation to whether Professor Nade had conducted any microdiscectomies---No, I didn't make any inquiries of - of Dr Nade or Professor Nade.

So why did you doubt whether he'd performed many either---?---Well, I wasn't - I wasn't sure and I didn't know. I did know from my previous dealings with Professor Nade that he did do, you know, a joint surgery and a lot of knee surgery and other procedures so, you know, I - I - well, I didn't know one way or the other really. But what I was sort of recommending was, well, one - well, he says he didn't and I wasn't sure whether Nade had done a lot - - -

NUGAWELA, MR: Who said he didn't? Bleasel said---Yes.

Yes---Yeah, yeah. That's what Bleasel told me. You know, I mean, I wasn't sure whether or not - I mean, and I assumed that Bleasel had done plenty of the more major procedures but he had not done the micro procedure which is perhaps the lesser one. So we needed a little bit more evidence therefore and I was recommending that we get that from somebody who had done a lot of microdiscectomies, and put what Nade had said to him, and see whether he would agree with it.

All right---And then that would be what we wanted. Then we would have two doctors who said 'Yes, this is what happened on that day, and this is what Dr Thomas should have done', et cetera.

[Why] stop at two? Why not get three, or four? Why two---Well, I think that two is - is probably enough. Certain of these cases I've got three, of these medical negligence cases, but I was - I would be happy if somebody agreed with - with Dr Nade about the - about the extradural haematoma, and that being the cause of this chap's problems. Then Nade is not by himself, he's not out on a limb. The other - the other thing too is that I'd already got two medical opinions which were adverse, so from that I assume that the - the - Wayne Thomas and his legal team, if his proceedings would - were going to be commenced, would probably have no difficulty in getting similar opinion to that, and they would get it. And therefore I thought in order to take this one further, you need two doctors saying more or less the same thing, that the cause of this man's problem was the haematoma, and that Wayne Smith was negligent in not performing the MRI scan, and then decompressing the haematoma afterwards. You needed two.

Can I come back to - - ----Yep.

- - - something in there, where you've said that - - ----Sure.

- - - you'd dealt with Professor Nade before---Yep.

NUGAWELA, MR: And if you were not sure whether he had done any, and if so how many microdiscectomies, why didn't you pick up the phone and ask---Well, I mean, I guess I could have, but that wasn't the real point. The real point was not so much how many had - he had done, but we needed two. If we could get somebody else to agree with Nade, then I thought that we had it, we had a good case. If it was just calling one witness on one of these type of things, and we'd already seen that there were witnesses around who would - would give evidence saying that's - just that's clearly wrong, we needed two.

And of the witnesses around, you're aware that Mr Bleasel had, as you said, not done any microdiscectomy---Well, as he said in his - as he said in his report.

And Mr Blum essentially said he didn't know what the cause was one way or another because he could not account for what were the cauda equina syndrome symptoms. He just didn't know an answer, correct---Yes.

All right---That's right, you know (ts 217 - 219).

[590]

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

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

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

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

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

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

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

[The appellant's wife] was unaware of the incident where [the appellant] hurt his back playing with his sister at Christmas in 1996. She heard about it later (ts 113). She stated that [the appellant] seemed fine when he came home from the mine. She was unaware that he had any back problems at any time prior to the injury other than a bit of a niggle. She was aware that he had gone to see a chiropractor every so often but there was nothing that caused him to stop doing any of the things that he was doing. She said that he was still working full-time and he was still doing his mines rescue up at the mine (ts 113 - 114) [15] - [22]. (emphasis added)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (675 paragraphs)

FALKINGHAM -v- HOFFMANS (A FIRM) [2014] WASCA 140 (1 August 2014)

Legislation Cited (5)

Cases Cited (26)