Goran Petrovic v Dr Anthony Johnson

Issues as The Case Was Run The case on liability was run on the following issues: 1. Was the defendant negligent for referring the plaintiff to specialist thoracic surgeon Associate Professor French on the bases of investigations conducted up to 19 July 2012 and his differential diagnoses of lung cancer; rather than cause further investigations identified by Associate Professor Breslin to be performed; 2. Did the defendant fail to advise the plaintiff that his diagnosis of lung cancer was differential only and not certain and that further investigations might be conducted, prior to referring the plaintiff to specialist thoracic surgeon Associate Professor French; 3. In the event that the defendant breached his duty of care to the plaintiff in regard to either a) or b) above; would the plaintiff have undergone the surgery; 4. In the event that the defendant breached his duty of care in relation to a) or b), was the breach or were the breaches causative of loss as claimed; and 5. What, if any, is the loss suffered and compensation for such loss to which the plaintiff is entitled consequent of the surgery.

1. The defendant admits that he owed the plaintiff a duty to exercise reasonable care and skill in the provision of professional service and treatment on and from 10 July 2012 up to and including 19 July 2012. The defendant denies that he owed the plaintiff a duty of care after that date.
2. During discussion in opening, the parties agreed that the relevant risk for the purpose of consideration under s5B Civil Liability Act 2012 (CLA) was: whether by referral of the plaintiff to a specialist cardiothoracic surgeon, the defendant would expose the plaintiff to the risk of unnecessary lower lobectomy and lymph node dissection.
3. The approach of each party to the question of breach of duty of care focused upon the question of the risk of the plaintiff undergoing an unnecessary left lower lobectomy and lymph node dissection against the risk of cancer becoming inoperable by delay in treatment.

Agreed Facts

1. The plaintiff was born on 5 July 1967. He was 45 years of age at the date of surgery, and 49 years of age at the date of hearing.
2. On 19 June 2012, the plaintiff consulted local medical officer, general practitioner, Dr Luigi Genua, at the Edensor Park Medical Centre.
3. Dr Genua referred the plaintiff for a chest x-ray.
4. On the same day, 19 June 2012, the plaintiff underwent chest x-ray and Dr Dominic Collis reported radiological signs of left lower lobe pneumonia. Dr Collis recommended that progress films be obtained to monitor resolution.
5. On 22 June 2012, the plaintiff underwent second chest X-Ray and Dr Collis reported the same day that: 1. the consolidation in the apical segment of the left lower lobe appeared to be unchanged; and 2. new findings of two small nodular densities at the left lateral costophrenic angle.
6. On 29 June 2012, the plaintiff underwent a third chest x-ray and Dr Collis reported the same date that: 1. the inflammatory changes in the left lung had increased since the previous study; 2. the density in the left mid-zone was showing a more rounded configuration, raising the possibility of an underlying mass lesion; and 3. his recommendation was that a computerised tomography scan (CT scan) be conducted.
7. On 9 July 2012, the plaintiff underwent a CT scan of his chest. On the same date, Dr Ross Glasson, reported the findings on CT scanning as: an irregular abnormal mass in the posterior mid-lower lung suggesting a primary lesion.
8. On 10 July 2012, the plaintiff consulted Dr Genua and was referred to the defendant regarding the lung lesion in the plaintiff's left lung. The referral included information that the plaintiff had marking in the plus sign and in the minus sign in the right lung previously, that he was an ex-smoker, having stopped 20 years previously, and that recent pneumonia had responded to antibiotics.
9. The plaintiff attended the defendant on the same date as the referral, 10 July 2012. The defendant that day reported in writing to Dr Genua that: 1. the plaintiff had bronchiectasis, presumably from previous pneumonia; 2. the plaintiff had a left lower lobe mass which the defendant considered was of concern and may be malignant; and 3. the defendant had arranged for the plaintiff to have a fine needle analysis biopsy (FNAB) on 13 July 2012.
10. At the 10 July 2012 consultation, the defendant recorded of the plaintiff's condition as: Left lung lesion, short of breath on exertion, asthma since childhood, cough most days with sputum, no chest pain, recent pneumonia, non-smoker for past 20 years, and previously 25 cigarettes per day commencing age 17 years; worked guillotine operated printer paper manufacturing; not working now; Ventolin as needed, past history - epilepsy since 16 years of age, social history - meds - new antiepileptic druve, asthma puffer, allergies - nil, alcohol - less than daily, wife is well - lives with twin boys age 5 years, family history - nil, CT 9/7/12 bronchiectasis right lower lobe 6cm mass left lobe."
11. On 13 July 2012, the plaintiff underwent FNAB conducted by Dr Vincent Caristo. The aspirated sample was sent to Healthscope Pathology for analysis.
12. On 16 July 2012, Dr Vallapan Thiruvilangam reported that the sample was "suspicious of large cell neoplasm". The defendant received Dr Thiruvilangam's report on the same day, 16 July 2012.
13. During consultation with the plaintiff on 17 July 2012, the defendant recorded: "FNAB suspicious of large cell cancer, for PET scan, for lung function testing and review."
14. On 17 July 2012, the defendant reported to Dr Genua: 1. the fine needle biopsy was suspicious of large cell carcinoma, a type of non small cell lung cancer; 2. the defendant had arranged for the plaintiff to have a PET scan to see if there was any evidence of spread and if there was not, the plaintiff would properly proceed to have the mass resected; and 3. (by separate letter) spirometry testing demonstrated moderate obstruction without reversibility, with results consistent with emphysema.
15. On 18 July 2012, the plaintiff underwent a PET scan at Liverpool Hospital, the results of which were reported that day in writing by Dr Vija Achar and verified by Dr Peter Lin. The report stated: "FDG PET SCAN Thank you for referring this patient for FDG PET Scan to stage his newly diagnosed large cell carcinoma in the left lower lobe of lung. A FDG PET-CT was performed from mid-brain to proximal femora. A low dose non-contrast CT was performed for attenuation correction and localisation. SCAN FINDINGS There was intensely increased FDG uptake (maximum SUV 9.3) in the irregular primary lung tumour in the superior segment of the left lower lobe, with mild extension to the adjacent pleura posterolaterally. There was no significant focal increased FDG uptake seen in the remainder of the lung including correlation to bronchiectasis changes on the CT scan. There were small foci of mildly increased FDG uptake (maximum SUV 2.8) in the left pulmonary hilum, possibly presenting small volume metastases. There was no significant foci increased FDG demonstrated in the mediastinum or right hilar region to suggest metastatic disease. There was also no foci increased tracer uptake to suggest distant metastases including the adrenals, liver, supraclavicular/neck region or bones. CONCLUSION The large primary lung tumour of the left lower lobe is intensely FDG avid. There are possible mildly FDG avid metastasis in the left pulmonary hilum. No other FDG metastatic disease has been determined."
16. At consultation on 19 July 2012, the defendant consulted with the plaintiff for the last time. What was discussed is in issue.
17. On 19 July 2012, following the consultation, the defendant wrote to Dr Genua informing that: 1. the PET scan showed intense uptake in the left lung mass and probably uptake in a left hilar lymph node; 2. "It is Stage II and should be curable with surgery"; 3. the plaintiff would be fit for lobectomy and also a pneumonectomy; and 4. he had referred the plaintiff to Associate Professor French, cardiothoracic surgeon regarding "this".
18. On 19 July 2012, the defendant referred the plaintiff to Associate Professor Bruce French. Relevantly the referral letter stated: "Thank you for seeing this man who I think has Stage II large cell lung cancer regarding resection. He has had asthma since childhood. He smoked 25 cigarettes a day from the age of 17 stopping 20 years ago. He has airflow obstruction on lung function. He takes Ventolin only. He also has a background of epilepsy and some bronchiectasis. His CT from 9/7/12 shows a 6cm mass in the left lower lobe. Fine Needle Biopsy was suspicious for large cell. His PET scan shows uptake in the lesion and probably a small node in the left pulmonary hilum but no distant metastases. Today, I added Seretide to his Ventolin. His lung function was moderately obstructed. His FEV1 was 1.75L or 47% of predicted. Hopefully that will improve with the Seretide but I think he would be fit for a pneumonectomy if he had to but obviously a lobectomy would be preferable from that point of view. Thank you for seeing him.
19. On 25 July 2012, the plaintiff consulted Associate Professor French.
20. On 26 July 2012, Associate Professor French reported to the defendant: "Thank you for asking me to see [the plaintiff]. He is 45 years of age. He has a 10 pack year history of smoking and recently had an abnormality found in his left lower lobe on a chest x-ray when he presented with a chest infection. This has subsequently been found to be a large cell carcinoma. Radiologically he has quite marked but localised bronchiectatic change in the right lower lobe, and a small amount in the right middle lobe. He gives a history of being in hospital with pneumonia for the first 6 months of life in Serbia. In addition to his lung cancer and bronchiectasis pathology, I note [the plaintiff] has an element of asthma for which you have placed him on Seretide, and he is on treatment for epilepsy. I note that the PET scan shows uptake in the tumour in the left lower lobe as well as uptake in the interlobar lymph node. I have recommended to [the plaintiff] that he have a left lower lobectomy and lymph node dissection via a thoracotomy. I have told him that we may have to consider surgical resection of his bronchiectasis at some stage. The surgery will be performed at Liverpool Hospital. Thank you again for asking me to see this man."
21. Between 19 July 2012 and surgery on 4 September 2012 neither the defendant nor, Associate Professor French, arranged a repeat FNAB, bronchoscopy, or a multidisciplinary lung cancer meeting (S.O.C. [32]-[34] Def:[1]).
22. On 4 September 2012, Associate Professor French performed a video-assisted left thoracic resection, conversion to left mini thoracotomy, left lower lobectomy and mediastinal lymph node dissection. Specimens of the left lower level and levels 11, 7 and 5 lymph nodes were sent for histopathological evaluation.
23. Following analysis of the specimens, a histopathology report dated 21 September 2012 prepared by Dr Christopher Chow, reported that: 1. there was no identifiable tumour in the specimen; and 2. there was a bronchiectasis and fibrosis in the left lower lobe.

Joint Expert Report on Liability

1. On 2 May 2015, a conclave of expert liability witnesses was convened. The conclave included the highly qualified collective of specialist respiratory/thoracic physicians: Professor Anthony Breslin, Associate Professor David McKenzie, Professor David Bryant, and Associate Professor Christopher Dennis. Dr Peter Corte attended briefly via video link, but did not otherwise contribute to the conclave. His opinions were later added to the conclave. Specialist radiologist, Dr Michael Jones, also participated in the conclave.
2. I summarize the Joint Expert Report of 2 May 2015 as follows: 1. Question 1 Did Dr Johnson undertake the appropriate investigations including imaging and a FNAB biopsy for the plaintiff? If not, what would have been the appropriate or further investigations that should have been undertaken, and why would it have been necessary to do so? Only Professor Breslin answered in the negative. He said: "I certainly do not think that the results of the imaging and the FNAB were enough information to do a lobectomy. My approach would be, and I continue to teach this, that in a case similar to this, a bronchoscopy, sputum cytology, an FNAB, or a core biopsy and discussion at a multi-disciplinary lung cancer meeting should be considered - not necessarily all of these in every patient depending on the results." Associate Professor McKenzie, Professor Bryant, and Associate Professor Dennis agreed that nothing further needed to be done or "should" have been done, and further that even a negative for cancer result from the further investigations proposed by Professor Breslin would not have caused them to refrain from referral of the patient to a specialist cardiothoracic surgeon. As Associate Professor McKenzie put it: "I would have still been suspicious and I wouldn't have been prepared to take a 5% or even a 2% chance that I was missing a cancer." Each of Associate Professor McKenzie and Professor Bryant said they would not have sought bronchoscopy. As Associate Professor Dennis put it: "I think there was enough clinical suspicion that this was a lung cancer. I think there was enough evidence absolutely that existed from the investigations that Dr Johnson did to justify him being so concerned about it that he would recommend definitively treatment in the form of surgery. I think what he did was very reasonable in this particular case. The other issue in my mind is, in terms of these investigations, what could have been done that would have established a diagnosis that was not cancer? I don't think there was anything available to him to do that." Dr Corte also opined that no test would confidently refute the possibility of the mass being cancer, and consequently that he did not believe any further diagnostic tests were appropriate. Dr Jones said that he was not qualified to answer. 1. Question 2 On the basis of the information available to Dr Johnson at his second and third consultations with the plaintiff, what was the more likely diagnosis by an ordinarily skilled respiratory physician of the plaintiff's condition in July 2012 and the reasons for making that diagnosis as at: 1. 17 July 2012; and 2. 19 July 2012 In answer to Question 2, Professor Breslin responded identifying pneumonia for both of the dates. His reasons were that the plaintiff had a pre-existing condition which put him at risk of pneumonia, namely, bronchiectasis, symptoms of pneumonia and a high white cell count, high ESR, toxic granulation in his white cells, and abnormal chest x-ray: He answered: "The picture was of pneumonia". Associate Professor McKenzie, with whom Professor Bryant and Associate Professor Dennis agreed without qualification, said that when dealing with "something" although the question asked for "the more likely diagnosis", that is of a high risk (which I would understand to mean risk of serious or fatal medical consequence), there does not have to be a high probability for the specialist respiratory physician "to take it seriously". He continued: "So high risks with potential serious poor outcomes, even if the risk is only 5%, then you want to try to mitigate that risk. So if I saw this patient and said, 'I think there are three chances out of five that this is just a slow resolving pneumonia, but there is probably one chance in five that it is a cancer', then I think cancer trumps. The small possibility of cancer will trump a more likely diagnosis of something else." In this regard, Associate Professor McKenzie recognised that radiology, then biopsy and finally the positive PET scan, all being "suspicious for cancer" increased the chance that the plaintiff was suffering cancer: "We have three ducks that are consistent and to making us increasingly suspicious that we could be dealing with or that we are probably dealing with a cancer." Dr Corte responded specifically with his opinion against that of Professor Breslin's diagnosis of pneumonia. He said: "It is quite reasonable for someone with bronchiectasis to develop lung cancer. Consequently, it is not a given (as suggested by Professor Breslin) that the mass should be related to bronchiectasis and therefore be considered to be pneumonia." He further noted that the appearance of the lesion as solid and round was more likely to describe it as a mass other than a consolidation such as for pneumonia. He noted that the bronchis leading to the mass was occluded at the junction with the mass which was "very suggestive" that the lesion was "a mass and likely to be a cancer". When also expressing his agreement with the opinion of Associate Professor McKenzie, Dr Corte said: "Having seen the lesion on the CT and his cytology report, I think one would be very brave to conclude that the diagnosis was pneumonia. I agree with Professor McKenzie's assessment indicating that the risk of missing cancer is hugely more important than missing a diagnosis of pneumonia, for obvious reasons." 1. Question 3 On the basis of the information available to Dr Johnson at his second and third consultations with the plaintiff, what was the nature of, and the risk of harm from, any delay from 19 July 2012 in taking precautions to treat the likely harm arising from the diagnosis made for the plaintiff of malignant lung pathology on the basis of his history and investigation, on: 1. 17 July 2012; and 2. 19 July 2012 Dr Jones did not answer. All doctors agreed that if there was malignancy, delay until surgery risked development of widespread malignancy. The rate of metastasising was not identifiable because it depended on the different cell types of the tumour. Dr Corte added that realistically, most cancers do not grow fast enough for there to be a significant risk of metastasis forming in a period of 6 weeks. 1. Question 4 Whether a definitive diagnosis of lung cancer by an ordinary skilled respiratory physician of a patient with the plaintiff's presentation in July 2012 was possible, appropriate or required, prior to referral of such a patient to a cardiothoracic surgeon for surgical treatment? Professor Breslin answered "definitely yes" that it was possible, but followed with the qualification "if he had lung cancer". He thought in the plaintiff's case it was appropriate to "try harder to make a more secure diagnosis". But Professor Breslin conceded "Was it absolutely required before you did the surgery? No, but it was appropriate to try harder". Dr Jones responded that he was not qualified to answer. All other experts agreed that on further investigation a biopsy may come back positive for cancer, but that it was not required nor appropriate to continue investigation. They considered the plaintiff's presentation warranted definitive attention from a surgeon, there being enough evidence to justify sending the patient to a surgeon without a definitive diagnosis. On the information available to Dr Johnson at the time, if the mass was a tumour, it was potentially curable by surgery. That fact was very important. The majority answer to this question was, in my opinion, best expressed by Dr Corte when he wrote: "I think that sufficient information had been obtained for Dr Johnson to refer the patient for a surgical opinion. I would expect the surgeon to assess all the available information and come to his/her own conclusion". 1. Question 5 What was the possibility of a different diagnosis other than that of lung cancer? Relative to that possibility, what, if anything, as at July 2012 should Dr Johnson have advised to the plaintiff? In answer to this question, all doctors agreed that there was a possibility of a different diagnosis other than that of lung cancer. Professor Breslin again maintained that the plaintiff's asthma with bronchiectasis supported his differential diagnosis of allergic bronchopulmonary aspergillosis was available. However, all doctors other than Professor Breslin agreed that with the uncertain diagnosis, the plaintiff should be advised that it was possible that the findings were of something other than cancer. Otherwise their opinion was that the uncertainty of diagnosis would not distract from the treatment direction of surgery. 1. Question 6 Should the plaintiff's case have been referred to a multidisciplinary lung cancer meeting prior to surgery? The doctors answered this inquiry according to the particular protocols of the hospitals at which they practised. Professor Breslin answered in the in the affirmative, saying that every case at Concord, Nepean and Liverpool Hospitals, so far as he was aware, was discussed at a multidisciplinary lung cancer meeting, and that absolutely every case after surgery was discussed. Associate Professor McKenzie answered in the negative, speaking of his own practice of sending patients to a multidisciplinary lung cancer meeting when he was not sure what the first treatment should be in cases, unlike the plaintiff's case, where the diagnosis of cancer "is usually certain", and the question was whether the first treatment should be surgery, radiotherapy or chemotherapy. Associate Professor Dennis, Dr Jones and Professor Bryant all answered in the negative. Professor Bryant said that if he had concerns for the patient's suitability for surgery he would consider sending them to another physician to get their opinion, or send them to a surgeon stating his uncertainties. In relation to this opinion by Professor Bryant, it should be understood that the plaintiff's prior medical history of asthma, epilepsy, bronchiectasis and emphysema were all considered risk factors for surgery. 1. Question 7 On the assumption of a presumptive diagnosis for the plaintiff of Stage II large cell lung cancer on 19 July 2012, would you please provide your opinion as to: 1. any foreseeable and not insignificant risk of harm to the plaintiff's health and survival that an ordinary skilled respiratory physician in 2012 would have identified; and 2. the precautions against that risk of harm that an ordinary skilled respiratory physician would have taken, mindful of the likely seriousness of the harm. The unanimous response to Question 7 was that on a diagnosis of lung cancer, surgery as soon as possible was the appropriate course. Only Professor Breslin qualified his answer. He did so to the degree of saying that if the diagnosis of lung cancer was not definite, he would "observe for 2-3 weeks and reassess". Dr Jones did not answer Question 7. 1. Question 8 On the basis of the information available to Dr Johnson as at the dates of his consultations with the plaintiff (i.e., on a prospective view of events), did Dr Johnson act in a manner that (at the time that this treatment of the plaintiff was provided in 2012) was widely accepted in Australia by peer professional opinion as competent professional practice in his treatment of the plaintiff? In regard to the terms peer professional opinion and competent professional practice, the applicable legislation provides: "- The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions co-existing. - Peer professional opinion does not have to be universally accepted to be considered widely accepted." Only Professor Breslin answered that Dr Johnson did not act in a manner widely accepted by peer professional opinion. Professor Breslin based his negative answer on his opinion that all avenues were not explored to try to establish the diagnosis. All other doctors responded in the affirmative that as a specialist physician Dr Johnson's referral of the plaintiff to a cardiothoracic surgeon was in accordance with widely accepted peer professional opinion in Australia. 1. Question 9 Would an ordinarily skilled cardiothoracic surgeon in 2012 make his or her own diagnosis and treatment plan for a patient with the plaintiff's presentation and history, including whether or not to perform surgery such as a resection or lobectomy of the relevant pathology, or alternatively, rely on the diagnosis of the referring doctor only? Please provide reasons for your opinion. Whilst Dr Jones did not respond, the panel unanimously answered in the affirmative that the cardiothoracic surgeon would make his/her own diagnosis and treatment plan for the patient, and in the negative that he/she would rely on the diagnosis of the referring doctor only. All doctors agreed with the following expressed answer by Professor Breslin: "Yes and no. Yes, the surgeon makes the decision. And no, the surgeon doesn't rely on the physician and doesn't do what the doctor tells him directly. The buck stops with the surgeon, basically. If he is going to operate on a patient doing something that is potentially lethal, then he has to be convinced that it is the right thing to do." Associate Professor McKenzie added only that if a patient is of high risk of dying during surgery, the anaesthetist may require a cardiologist to clear him for surgery.
3. In summary, unless changed during oral evidence given in hot tub, the majority of the panel approved the course of treatment advised by the defendant in this case. Only Professor Breslin dissented. Being a radiologist, Dr Jones did not respond to the first eight questions. Professor Breslin's disagreement was only to the extent that, in his opinion, there should have been a delay limited to 2 to 3 weeks for the undertaking of further investigations of whether or not the mass was cancer or pneumonia. All panel members shared the opinion that appropriate care would have included the defendant informing the plaintiff of the uncertainty of the diagnosis, and that the investigative findings might be consistent with something other than cancer.
4. The particulars of negligence pleaded in the Statement of Claim at [38] include: 1. failing to appreciate or inform the plaintiff of a potential differential diagnosis before recommending that he undergo, and proceeding to, lobectomy; 2. failing to inform the plaintiff that the diagnosis of malignant lung tumour was uncertain; 3. failing to inform the plaintiff of the option to undergo further diagnostic tests before recommending that he undergo the lobectomy and proceeding to the lobectomy; amongst the many particulars.

Expert Panel Oral Evidence - Hot Tub

1. On Day 3, the Hot Tub was attended by all of the specialist respiratory physicians (Dr Jones, the radiologist gave evidence by videolink commencing at 2.00 p.m. on Day 2). The unanimous opinions of the panel were: 1. The defendant's referral on 19 July 2012 of the plaintiff for treatment by a thoracic surgeon, on the information available to the defendant, was within acceptable practice of Australian peer group respiratory cardiothoracic physicians. Specifically, Dr Breslin agreed. The effect of his evidence was that whilst in July 2012 he would have been confident of the diagnosis of pneumonia; nevertheless, he would have considered lung cancer to be a low chance differential diagnosis. When cross-examined on his report of 20 February 2017 by Senior Counsel for the defendant, he confirmed a chance of about 5%. 2. Whilst Dr Breslin would have managed the plaintiff by conducting further investigations and observing whether or not there was resolution of the mass found on CT, he would expect to have obtained all other available investigations within a week or so. Even had he followed the course of obtaining other investigations, none of them could have definitively dismissed cancer as a differential diagnosis. He agreed that high resolution CT, as had occurred in this case, was the "gold standard" for recognition of a mass by its discernible characteristics, as cancer. 3. Pre and post-surgery lung function testing showed that more probably than not the lobectomy removed tissue was largely non-functional. 4. The plaintiff's pre-existing respiratory conditions of asthma, bronchiectasis and emphysema, on consideration of lung function tests, indicated a pre-surgery reasonable prognosis with diminished life expectancy of perhaps about 5 years. 5. The consequence of the surgery including the possible benefits against future health complications from removal of fibrotic lung tissue and bronchiectasis lung tissue meant that in the opinions of all but Professor Breslin, the plaintiff's life expectancy was not shortened or even varied by the surgery in any measurable degree. When cross-examined by Senior Counsel for the defendant on his report of 20 February 2017, Professor Breslin agreed that potential loss of life expectancy consequent of the surgery would be in a range of up to only some months less than normal.

Professor Breslin's oral clarification of his written opinion

1. Whereas it was recorded in the Joint Expert Report on Liability, in answer to Question number 4, that Professor Breslin answered affirmatively that a definitive diagnosis of lung cancer was possible in July 2012, if the plaintiff had lung cancer; his oral evidence explained why, in the circumstances of the plaintiff's case, it was not necessarily so. Professor Breslin's oral evidence in this regard is consistent with that part of his answer to Question 4 where it was recorded that in the conclave he said that it was not "absolutely required before you did the surgery". I extract the following passage from Professor Breslin's hot tub evidence: HIS HONOUR: If we did all of those things - now, please tolerate the ignorance of the lay person - if you brush the mass, you've brushed the surface of a part - I don't know; you gentleman might, and I'm not asking, a great body of cells in a mass. If you aspirate by a needle, even if you aspirate in something I've read about called a core - as you said before, you aspirate some material, not all material. If you test the sputum, you get, I assume, just the fluid that's run across the surfaces of the air passages. And at the end of all of that, the surgeon has radiologist opinion on a mass. The surgeon has a PET scan, which can indicate either inflammation or cancer. So at the end of all of that, can you definitively say that the man does not have cancer? WITNESS BRESLIN: No. You can't. But if you do two fine needle aspiration biopsies a week apart, the needle is seen to be in the lesion and you get cells, and those cells do not show unequivocally malignant cells, then it's 95% likely that that mass is benign. HIS HONOUR: … So, at best, say very quickly over a couple of weeks, you're able to organise all of those tests and they all came back negative for cancer, when I say "all of those" I mean the ones we have discussed. At the end of it you would be able to say would you not that, "Well, I'm even more concerned that there's a very low risk of cancer, I can't dismiss it." Am I right? WITNESS BRESLIN: Yes. HIS HONOUR: What are you going to do? At the end of that three weeks what are you going to do? WITNESS BRESLIN: I'm going to watch. I'm going to keep him on antibiotics and watch. HIS HONOUR: You are not going to take the precaution you said before, "Well, I always think a referral to a surgeon is an option"? WITNESS BRESLIN: That's an option and I may have done that. … WITNESS BRESLIN: Well, we could get it all done in a week, probably. Then I would be inclined to watch and see what happen to the scan because he has asthma, bronchiectasis and pneumonia, and now I'm introducing a fourth diagnosis, cancer. I don't feel comfortable about that, and I certainly don't feel comfortable about removing a lobe, because that has a mortality. That has a mortality. It's an operation that's not free of risk. HIS HONOUR: Is that not a decision the surgeon makes? WITNESS BRESLIN: Which? HIS HONOUR: Whether or not to remove the lobe? WITNESS BRESLIN: That's the surgeon's decision, yes. HIS HONOUR: But we're here restricting these questions to the specialist respiratory physician, not the surgeon, and in the realm of not entirely consistently exercised between Australian peer group professional specialists respiratory physicians, would it be the case that some would refer to a surgeon when another might think, "I'll wait a week or two with testing and observation"? WITNESS BRESLIN: It's manifestly obvious, your Honour, that there's five people on my right who would do differently from me by the sound of it, as I read it. So, what's the answer? That a peer group wouldn't do it the way I did? HIS HONOUR: No, no, that's not the answer at all. With respect, that was too self demeaning. That's not the answer at all. The answer is the acceptance that it was within the realm of the unidentical collection of exercise of judgment of competent practitioners within a peer group. WITNESS BRESLIN: I would not teach students, and I've been doing that now for probably since before you were born, I've been teaching students for a very long time. I've seen many, many, many hundreds into the thousands of lung cancers. I would not recommend a lobectomy with an iffy fine needle and a positive PET scan. … [Professor Breslin shown Exhibit 1, page 30: defendant letter of referral of plaintiff to Associate Professor French] WITNESS BRESLIN: I don't think any of this is a hanging offence. I just think - I do not think that that letter indicates a hanging offence. HIS HONOUR: It's not what you would have done? WITNESS BRESLIN: No. I think that - it's not what I would have done. No. But I don't think it's so wide of reasonable clinical behaviour, I don't think it's that. I think it's not what I would have done.

Hot Tub evidence on loss of lung function consequent of the surgery

1. The hot tub panel expressed common, if not unanimous, opinion that the lung tissue removed in the surgery was so damaged by the plaintiff's pre-existing medical conditions of bronchiectasis and fibrosis that the consequent loss of breathing function and of life expectancy was minimal and for the future will be minimal. The discussion included respiratory lung function testing in 2009, immediately before the surgery in 2012 and recently in 2016. Part of the evidence of Dr Corte, in regard to which no panel member made contrary comment, was that the fibrous lung tissue, had it not been removed, would have exposed the plaintiff to a higher risk of lung cancer in the future. I extract the following passage of evidence at the conclusion of the hot tub on this question: WITNESS DENNIS: Yes. I agree with what's been said in terms of this man's bronchiectasis being likely to be due to childhood infection rather than advanced emphysema. I think that's true. I think that the evolution of the bronchiectasis during the course of his life would have been and has been progressive. I think the development of emphysema in this patient is linked to his significant cigarette smoking and I think the two processes are separate but both contribute to his symptoms and his reduced lung function. WALSH: This man is now - I think he enjoys his fiftieth birthday next month. So given he ceased actively smoking at twenty‑five, it's probable that this disease has been developing for perhaps over 25 years? WITNESS DENNIS: Yes. Both of the diseases, both emphysema, linked to cigarette smoking or not, and bronchiectasis are progressive diseases. They slowly progress during the patient's lifetime. WALSH: Professor McKenzie, what is the relationship between those progressive diseases and the current lung function test from Professor Glanville showing a diminution of lung function? WITNESS MCKENZIE: So, the current lung function as of June last year shows severe airflow obstruction with a significant improvement after bronchodilator that we have discussed. His blood capacity and lung capacity - his total lung capacity is normal, so - which is interesting seeing he's had a lobectomy. In one of my reports I mention the fact that I thought that the pathology of the lobe had been removed, indicated that most of that lung was probably not a functioning lung because it was badly affected with bronchiectasis. I think the fact that the lung function tests aren't really much different between 2016 and 2012 is indicative of the fact that the lung that was removed was probably not functioning very well. So, what we are left with now is a quite severe airflow limitation which has improved somewhat after bronchodilator, but even post bronchodilator, the FEV1 which is the measure of airway function and ventilator capacity was just under 50% of predicted. So, the question, does this man have COPD or is it just asthma I think is actually difficult to answer because he just doesn't have COPD or asthma but he's also got bronchiectasis. So, the definition of these diseases is bedevilled with a lot of semantics and rules and strictly speaking, according to the rules, we can't call this man COPD because he has a history of asthma and he's got COPD. But in all other criteria, you could call this COPD because he's got airflow obstruction that doesn't reverse completely and it's quite severe, and he does have an impairment of diffusing capacity on this study. Is this going to progress rapidly in the future? Based on the difference between the study performed by Dr Johnson in July 2012, that's a four-year gap, there's very little difference in the spirometry. So, I think that the - that it's probably not likely to progress rapidly in the future. I think if he maintains optimal treatment for his asthma, and the optimal treatment for asthma is very similar to the optimal treatment for COPD. So, in his case he would treat both conditions and you would also have to treat the remaining bronchiectasis which he still has some on the other side, would need to be treated optimally as well. And, clearly, he remains an ex-smoker so I think if all those things fall into place, then I think his prognosis is actually pretty reasonable for a normal life from his lungs. WALSH: Thank you, doctor. HIS HONOUR: Just before we go on, because I haven't been taken to all the things that you have read, doctors - I will be, but I just haven't yet. So, there's a pre-surgery lung function test, is there, and then a 2016 lung function test? WALSH: The pre-surgery lung function test was performed on 17 July 2012 by Dr Johnson and there was an earlier lung function test which is in evidence which was carried out at Dr Johnson's rooms in 2009. HIS HONOUR: In 2009? WALSH: Yes, your Honour. HIS HONOUR: Doctors, anything arising from what Associate Professor McKenzie just said? [The transcript does not record what was the silently displayed agreement of the panel]
2. I asked the doctors to comment on change from normal life expectancy, if any, consequent of the plaintiff's pre-existing respiratory health and whether any further change in his life expectancy would have been caused by the surgery. I extract the following evidence of the doctors in response: WITNESS BRYANT: Well, my first comment would be that this man has got quite severe airways disease. His FEVI reading prior to the surgery was less than half of predicted so in a man with lungs that are as damaged as they were, who's got asthma, who's got bronchiectasis and a tendency to recurrent infections, I think there's a significant chance that this man is not going to - that his life expectancy is going to be shortened as a consequence of his lung disease. I don't believe it's possible to say precisely by how much but it probably would be more than a small amount. My second comment would be that, as the lung tissue that was removed was largely non‑functioning and as his lung function has not changed significantly since the surgery, the fact that surgery took place is probably not going to make a large difference to his life expectancy. WITNESS MCKENZIE: I would add that, having removed an area of severe bronchiectasis from the lung as well as a mass which was going to become a scar, those bits of bad lung may have come back in the future to create problems for Mr Petrovic so, in my opinion, he's actually better off without that lung so I think, if anything, his prognosis may have been improved by the surgery and certainly not reduced. Although I said he had a reasonable prognosis for the future, I do agree with Prof Bryant that his life expectancy would be reduced. If I looked up tables and things it would be of the order of five years, with a life expectancy now of 84. Something like that would be his life expectancy. So that might come down to 79 years. All panel members agreed with the above opinions of Professor Bryant and Associate Professor McKenzie. Professor Breslin added the effect of the surgery on the plaintiff's life expectancy would be "about six to ten months": Transcript Day 3, page 157, line 4.
3. After conclusion of the hot tub, Associate Professor Bryant was asked to remain for further cross-examination. Counsel for the plaintiff took him to his letter to the plaintiff's then solicitors, Paramount Lawyers, dated 9 May 2014 (Exhibit I). He was challenged on the basis of his independence given that in his letter he referred to instructions received from the plaintiff's original solicitors on 9 December 2013, and his inability to provide a report, as requested, because: "… it is clear to me that both of the doctors referred to in this matter are known to me personally and I therefore am of the view that it would be inappropriate for me to provide you with an opinion because of conflict of interests. I apologise for this and hope that you will understand my decision as it is essential that the opinion that you get is unbiased." The other doctor referred to was the plaintiff's treating cardiothoracic surgeon, Associate Professor French.
4. Associate Professor Bryant explained that he did not know the defendant personally but had met him on a number of occasions when they had attended professional meetings. He did not recall having spoken to or met the defendant in 10 years. He said that his letter was in that regard inaccurate, he having used that excuse in order to avoid providing the report because of the workload which he was under at the time, and of the persistence of the plaintiff's solicitor for a report. He explained that when in July 2015 he received the defendant's written request for a report, he had time to consider the matter.
5. In response to the ultimately put suggestion that he had provided a report for the defendant when not free of a bias against the plaintiff, Associate Professor Bryant responded that he considered the question insulting and referred to his provision of several reports per week over many years for parties on each side of litigation. He said that he did not pick and choose.
6. To my observation, Associate Professor Bryant was embarrassed to admit that the reason which he gave to the plaintiff's solicitor by his letter of 9 May 2014, in order to avoid providing a report, caused him significant personal professional humiliation. He impressed as a witness of the highest integrity who at a time when he felt under pressure of other commitments, determined to provide an untruthful explanation in order to avoid the burden of a medico-legal report writing task. I consider the ethics of dealing with acceptance or rejection of a retainer to perform work as different and separate from the professional obligation arising both from his position of high standing as a specialist respiratory physician and according to the Expert Witness Code for independent reporting. The latter undertaking of independent reporting requires an obligation to the Court and that which is written and ultimately in oral evidence said by the expert occurs under the heavy burden of the obligation to the judicial process.
7. I accept that Associate Professor Bryant did not, in relation to the latter obligation, compromise his professional standards, or the independence and objectivity required of him in the provision of a medico-legal report to the hearing pursuant to the Expert Witness Code. In re-examination he said so. I accept that evidence.
8. The patently available further observation is that Associate Professor Bryant's evidence was consistent with that of the conclave panel and hot tub members. The cross-examination did not challenge him on the independence of any opinion expressed by him in the proceedings.

Evidence of Dr Jones Specialist Radiologist

1. Dr Michael Jones, Specialist Radiologist, gave evidence from Paris by AVL on the afternoon of Day 2 of the hearing. He explained that CT imaging showing a mass did not possibly permit definitive diagnosis of whether it was pneumonia or cancer. With treatment such as antibiotics, pneumonia would be seen to disappear from follow-up CT scans but cancer would not. Other investigations such as biopsy are available to determine the nature of the cells in the mass.
2. He gave the example of in October last year a patient of similar presentation to the plaintiff but with a mass in his right lung underwent biopsy and pathology, and an assumed diagnosis of inflammation was made. This year, the patient was found to have tumours in his brain. The patient's lung tumour had not changed in size and FNAB this year did not detect tumour. Dr Jones caused to be performed a more extensive core biopsy which obtained a lot more tissue and the pathology confirmed cancer. He said that if cancer had been the assumed diagnosis in 2016, the patient may have been cured with surgery. Now cure is unlikely to be possible according to prognostic statistics.
3. His opinion in the present case is that with the appearance on CT scanning, the intensity of FTG uptake on the PET scan and the suspicious cells on FNAB biopsy, together were consistent with the presumptive diagnosis of lung cancer.
4. He added that the uptake on PET scanning in the hilar lymph nodes in the centre of the lung, where the blood vessels, airways and drainage from the lung centralise, was non-specific, but the plaintiff had the earlier stated three investigations consistent with a presumptive diagnosis of cancer to consider for an explanation of that uptake in the lymph nodes.
5. Dr Jones explained that the lobectomy permitted at the same time for lymph node tissue to be harvested for testing, so that if the diagnosis of cancer was confirmed, the information would assist in the design of the best treatment course.
6. In my opinion, the significant comment by Dr Jones was that in the circumstances of the three investigations, CT scan, PET scan and FNAB showing abnormality which could be due to carcinoma, the presumptive diagnosis of lung cancer compelled the clinical approach, as he put it; that a treating physician would require reasons justifying proceeding with treatment other than in accordance with the presumption of cancer. In his view, acceptable medical practice required the defendant to proceed as if there was cancer.
7. Whilst conceding it was outside of his specialist field of practice, when invited to comment during cross-examination by plaintiff counsel, Dr Jones said that based on his experience; a cardiothoracic surgeon would consider and make his independent treatment recommendations, as a general proposition. He would do so taking all information into consideration including any prior expressed opinion by the treating specialist respiratory thoracic physician.

The Narrowed Plaintiff Case

1. In light of the overwhelming opinion evidence being against finding that the defendant's referral of the plaintiff to cardiothoracic surgeon was negligent; the essence of the plaintiff's case of breach pursuant to s 5B CLA is limited to the question of whether or not the defendant, against the risk of the plaintiff undergoing an unnecessary lobectomy, failed to inform the plaintiff of the uncertainty of his diagnosis of lung cancer. This because there appears to be no dispute that the risk was foreseeable, not insignificant, and that a specialist respiratory physician in the defendant's position, would have taken the precaution of so advising the plaintiff.

Evidence of the Defendant's advice to the Plaintiff

1. The defendant did not give evidence and it is to the oral evidence of the plaintiff and documentary evidence that this enquiry is directed.
2. Following the plaintiff's final consultation with the defendant on 19 July 2012, the defendant reported to the plaintiff's general practitioner Dr Genua and wrote a referral letter to Associate Professor French. Those documents contain the defendant's expression of opinion concerning the plaintiff's medical condition, contemporaneous with his referral of the plaintiff to Associate Professor French. The documents are not direct evidence of what the defendant said to the plaintiff by way of advice associated with the referral. They are evidence of the defendant's medical opinion expressed in the context of his writing to those doctors in the course of ongoing provision of medical services. The letters are therefore evidence to be evaluated with other evidence to determine whether they support a positive inference implying negligence as an affirmative conclusion from the circumstances proved in the evidence and one which they establish to the reasonable satisfaction of a judicial mind; Jones v Dunkel (1959) 101 CLR 298 per Dixon CJ at 304.
3. Dr Genua referred the plaintiff to the defendant for review and specialist treatment of a left lung mass. The plaintiff's first consultation with the defendant was on 10 July 2012 after which the defendant reported to Dr Genua that the plaintiff "may have a neoplasm", "that he suffered from quite severe airflow obstruction", and bronchiectasis "presumably from previous pneumonia". The defendant reported following CT on 9 July 2012, that he had referred the plaintiff for fine needle biopsy and that his observation was; "He has a left lower lobe mass which is of concern and may be malignant".
4. Following further CT scan and fine needle biopsy and a second consultation with the plaintiff on 17 July 2012, the defendant reported to Dr Genua (the same day) that the biopsy "is suspicious for large cell carcinoma, a type of non-small cell lung cancer. Clinically that would fit with the appearances on the CT". He referred the plaintiff for PET scan "to see if there is any evidence of spread. If there is not, he will have the mass resected".
5. The conclusion of the report of the PET scan dated 18 July 2012, received by the defendant, read: "The large primary lung tumour of the left lower lobe is intensely FDG avid. There are possible mildly FDG avid metastases in the left pulmonary hilum. No other FDG avid metastatic disease has been demonstrated".
6. It was in the context of this clinical history that the defendant wrote to Dr Genua following the plaintiff's final consultation with him on 19 July 2012 as follows: "His PET scan shows intense uptake in the left lung mass and probably uptake in the left hilar lymph node. It is therefore Stage II and should be curable with surgery. …. He would be fit for lobectomy and also a pneumonectomy if needed for lung cancer. However, he would be more short of breath after the surgery if he had to have a pneumonectomy. I have referred him to Dr Bruce French, Cardiothoracic Surgeon in Liverpool regarding this. I have asked to see him in six weeks time". The context of this writing included 10 July and 17 July reports referring to investigations including the biopsy described by the defendant to Dr Genua in his 17 July 2012 letter, as "suspicious". Given the unanimous opinion of the several specialist respiratory thoracic physicians that the investigation results which were suspicious of cancer supported at least a low probability differential diagnosis of lung cancer, which required a treatment course of referral to a thoracic surgeon; nothing in this correspondence between the defendant and the plaintiff's treating general practitioner describes advice of more than following that treatment course. The expression "It is therefore Stage II" advanced between medical practitioners, in my view is to be read in that way. In my opinion it would be speculative to suggest that because the defendant wrote to Dr Genua in those terms, he had advised the plaintiff that the diagnosis of cancer was definite, or that he had concluded that cancer was the certain and only diagnosis.
7. The defendant's referral letter dated 19 July 2012 to Associate Professor French stated: "Thank you for seeing this man who I think has Stage II large cell lung cancer regarding resection." (emphasis added). Thereafter the letter identified in brief fashion, clinically relevant history and recent investigations.
8. The indefinite expression "I think" identifies the defendant's opinion to be less than certain of lung cancer. In my opinion, that the defendant offered his diagnostic opinion with "I think" is consistent with his deferring ultimate determination of whether the plaintiff was suffering cancer to Associate Professor French in his determination whether or not to operate. That is, cancer was a differential diagnosis, not the only or certain diagnosis.
9. In my opinion, the defendant's letters to Dr Genua and Associate Professor French (all of which are contained in Exhibit 1) confirm the uncontested fact that the defendant considered the mass within the plaintiff's left lower lung lobe to have a significant likelihood of being cancer. The chance of the mass being cancer justified, in the defendant's opinion, referral for assessment and determination of whether surgical treatment was required by a specialist cardiothoracic surgeon.
10. Most significantly, in my opinion the letters do not alone prove that it was more probable than not that the defendant omitted to inform the plaintiff of a potential differential diagnosis, that the diagnosis of malignancy was uncertain or that the plaintiff had the option to undergo further diagnostic tests before proceeding to lobectomy (as pleaded in the Statement of Claim paragraph [29] to [33]). As will be seen, concessions made by the plaintiff in oral evidence did not support my case.
11. The plaintiff's closing written submissions at [1.5] put that the defendant gave a history to the radiologist who performed the PET scan of a "newly diagnosed large cell carcinoma". The plaintiff does not rely on a record of the defendant for this submission. The plaintiff relies on the radiologist's report (Exhibit 1, page 27) which in the first sentence provided: "Thank you for referring this patient for FDG PET scan to stage his newly diagnosed large cell carcinoma…" The scan was performed on 18 July 2012 and that report by the radiologist Dr Lin was faxed on 19 July 2012. At the time of the defendant's referral of the plaintiff for the scan on 17 July 2012, he wrote to Dr Genua in the terms quoted above of suspicion of large cell carcinoma, not of a definite diagnosis. In my opinion, Dr Lin's report should be read as referring to the newness and urgency of a differential diagnosis of carcinoma only. In my opinion, it is not evidence rising to the submission put by the plaintiff that the defendant's only diagnosis of the mass was cancer. Neither as a discrete piece of evidence, nor in combination with the defendant's correspondence to Dr Genua and Associate Professor French between 10 and 19 July 2012, is it evidence of what the defendant advised the plaintiff in regard to diagnoses or differential diagnoses and reason for referral to specialist cardiothoracic surgeon Associate Professor French.
12. Fundamentally, the defendant's opinion of diagnosis is a fact from which it might be inferred what the defendant was likely to have advised the plaintiff; however, unless the defendant diagnosed the mass to be definitely malignant, the evidence does not infer that he would have advised the plaintiff, that cancer was a certain diagnosis and there were no other potential differential diagnoses. The defendant's reports and referrals between 10 July and 19 July 2012 are addressing the treatment course for the purposes of doctors participating in that treatment. The differential diagnosis of cancer, as the common expert respiratory physician liability evidence shows, would lead the treatment as if there was cancer.

Plaintiff Evidence of Advice Received

1. The plaintiff's written closing submission that the defendant did not advise the plaintiff "of the uncertainty of the diagnosis of cancer and of a possibility of further diagnostic tests" (see paragraphs [1.2], [1.4], [1.8] and [1.13]) is not the evidence given by the plaintiff. The plaintiff conceded in oral evidence that he did not have a recollection of what was said during consultations with the defendant and in other oral evidence agreed that the defendant did advise him of the uncertainty of the diagnosis. His evidence showed such poor recollection and confusion as to these matters that it is unreliable.
2. The plaintiff's case was opened as follows: (Transcript day 4, lines 8-19) "At that consultation the defendant informed the plaintiff that he had lung cancer. He told the plaintiff that he would need an operation to cut the cancer out and gave him some forms to complete and return to Liverpool Hospital. On the same day the plaintiff completed the forms and attended Liverpool Hospital. The attendant who accepted the forms on the day or shortly thereafter advised him that he needed to attend on 4 September 2012 for the purpose of his operation. In the interim he had a consultation with the second defendant, Doctor French. On 4 September the plaintiff attended hospital and on the same date Doctor French, assisted by Doctor Benjamin Robinson performed a lower left lobectomy."
3. The plaintiff ran the case on the basis that whilst it was agreed that a specialist cardiothoracic surgeon exercises his or her own professional judgment whether or not to proceed with the surgery (transcript day 1 page 21 line 4 to line 14); that action by Associate Profession French, specialist cardiothoracic surgeon, was not a real and substantial cause (not a "novus interveniens") of the plaintiff undergoing surgery because, the defendant having provided the Liverpool Hospital Admissions documentation to the plaintiff, the plaintiff was already directed to surgery (Transcript day 1, page 21 lines 15 to 26 and closing written submissions at [1.18.27] and [1.18.3]). In closing written submissions at [1.18.2], the plaintiff put: "It is not a question of whether a referral to [Associate] Professor French for the purpose of further considering the appropriate diagnosis by way of a second opinion would be appropriate. That was not the purpose of the referral. [The defendant] did not refer the Plaintiff to [Associate] Professor French for opinion as to whether or not the Plaintiff had cancer. It does not matter that a surgeon might or might not, if he or she forms that opinion, respond to the referring physician that there is insufficient evidence of cancer".
4. In chief the plaintiff's evidence of what the defendant advised was as given in the following passage of evidence: (Transcript day 1, page 31, lines 11 - 14) Q. And do you recall what he said? A. Yep, he said to me straight away, "You got - you got lung cancer. Here's your application form, go to Liverpool Hospital." And that was it. At page 31, line 30 to page 32 line 26: Q. And do you recall Dr Johnson discussing the test with you? A. Yes, he said to me that I had lung cancer. Q. And did he say that straight away or did he say that on the first consultation or‑‑ A. Yeah, it was a first consultation, yes. Q. And did he discuss with you that you've had other conditions as well? A. No, just that. Q. And so he said to you that you had lung cancer? A. That's right. Q. And what happened after that? A. He just - he just gave me the application form as I said to you before. And I went to Liverpool Hospital to sign me - some - sign me self into the surgery and that was‑‑ Q. Do you recall at about what time from that consultation to you went to the hospital? A. It was basically just one consultation, it was just one visit and that was it. Q. So what you're saying to us is that you went to see Dr Johnson‑‑ A. That's right. Q. at a consultation. A. That's right. Q. And then he gave you some forms. A. That's right. Q. And then what happened? A. I filled out the forms and handed it into the - into the hospital. And that's when they made me - time and date to have the surgery. Q. And did you see a Professor French? A. Only once or twice..(not transcribable).. Q. And that was before the surgery? A. Yes. Q. And do you recall if anything what Professor French might have said to you? A. Not as far as - no, not - not very clear, no. Q. And you attended the hospital for the surgery? A. That's right.
5. In cross-examination, after being taken to the Admission and Request for Procedure documentation of Liverpool Hospital (Exhibit 5), the plaintiff conceded (and to my observation appropriately so as an honest witness) that his recollection of the defendant providing advice to him in regard to surgery and providing him with the Liverpool Hospital documents for surgical treatment was wrong. When shown those documents he conceded that it was Associate Professor French and not the defendant who had organised the surgery for him. The plaintiff gave the following answers: (Transcript Day 2, page 96, lines 2 to 48) Q. Up until today, you've always thought Dr Johnson gave you these forms, didn't you? A. That's right, sir. Q. That was incorrect, wasn't it? A. That's right, sir. Q. The truth is that your consultation with Dr French had been arranged by Dr Johnson. A. Mm. Q That's true, isn't it? A. Yeah. Q. The truth is that Dr Johnson had advised you to see Dr French for him to assess the lesion in your lung. That's true, isn't it? A. Yes, right. Q. The truth is that Dr Johnson had told you he wasn't certain, but from your results he thought you probably had cancer. A. That's right. Q. That's true. A. That's right. Q. And Dr Johnson told you that it was urgent to have it assessed by Dr French, didn't he? A. Right. Q. That's correct, isn't it? A. That's right, sir. That's right, sir. Q. You don't deny that, do you? A. No. Q. And he also told you it would be for Dr French to decide whether or not to perform surgery to remove the lesion. A. Mm-hmm. Q. That's true, isn't it? A. That's right, yes. Q. And as you give evidence today you can't remember how many consultations you had with Dr Johnson, can you? A. No, not - not - no, it's been a while, sir, no. and at Transcript Day 2, page 97, lines 5 to 28: Q. Your best recollection in your evidence to his Honour is that you can remember one consultation with Dr Johnson. A. That's it, sir. Q. But you're aware that you had three consultations with Dr Johnson, aren't you? A. Not really, no, sir. I just know the one. That was it. That's - that's all I can recall, sir. Q. And you certainly can't recall when any consultations occurred- A. No. Q. --with Dr Johnson? A. No. Q. Or what was said by Dr Johnson to you at those consultations? A. No, I can't cause it's like I said it's been a while so I can't now remember that much, no. The only time-- Q. You'd agree from looking at those documents that it's more likely those documents are accurate compared to your recollection of events, wouldn't you? A. Well, it's in black and white. I can't say no. In the above quoted passages of evidence it can be seen that the plaintiff openly and honestly conceded the inaccuracy of his case in chief, that; 1. The defendant advised that the diagnosis of cancer was certain; 2. The defendant directly referred the plaintiff to Liverpool Hospital for surgery; and 3. The defendant did not refer the plaintiff to Associate Professor French for Associate Professor French to decide whether or not surgery to remove the mass was to occur.
6. Indeed the plaintiff frankly conceded that he could not recall what the defendant had said and advised him in consultation.
7. The uncertainty in the plaintiff's evidence particularly in regard to what was done by the defendant and what was done by Associate Professor French caused me such concern as to raise it with counsel (see transcript day 3, pages 177 to 181 and separate interlocutory judgment 14 June 2017).
8. On day 4 (Transcript page 210, lines 5 to 10) the plaintiff repeated his impressionistic recollection that the defendant told him definitely he had lung cancer, provided the admission application forms and directed him to go to Liverpool Hospital where he would undergo surgery on a date to be set. Once again, however, the plaintiff during cross examination admitted his confusion. The effect of his evidence on day 4 matched the concessions made out above. In addition, he agreed that the defendant told him that the lesion could be pneumonia or it could be an infection or it could be cancer: (Transcript day 4, page 207 lines 33 - 35).
9. At best the plaintiff's evidence is confused. I observed him to be an honest witness and, as is apparent from the above quoted passages of evidence, a witness willing to make admissions against self-interest.
10. The cross examination proceeded fairly and carefully. Senior Counsel for the defendant was at no point aggressive. During the cross examination the plaintiff conceded that documents to which he was referred refreshed his memory. It was obvious that this led to above his concessions of fact.
11. There is no evidence contrary to the fact that Associate Professor French advised the plaintiff to undergo the surgery. The expert panel's unanimous opinion was that for Associate Professor French to provide that advice would be the normal course. This fact is also consistent with the plaintiff's oral evidence, allowing for his confused memory of treatment received from the defendant and from Associate Professor French.
12. When seeing Dr Tomasevic on 5 November 2012, only two months after the surgery the plaintiff informed Dr Tomasevic that he was angry that he had been operated on and wanted a second opinion. He said that his anger was with Associate Professor French: Transcript Day 3, page 167, line 20).
13. Further evidence given by the plaintiff in cross examination was also consistent with it being the advice of Associate Professor French and not of the defendant which caused him to go to surgery: (Day 4, transcript page 223, line 43, to page 224 line 29): Q. If you accept you saw those doctors for those five appointments with Dr Genua, three appointments for Dr Johnson, and then on 25 July, Associate Professor French. So in total that's nine appointments in just over a month. A. Yeah. Q. The doctors were taking your condition pretty seriously, weren't they? A. Of course they would've. Q. Because both Dr Genua and Dr Johnson were concerned that your legion might be cancer, weren't they? A. Yeah. Q. It's for the reason that Dr Johnson thought that it might be cancer, that he sent you to Associate Professor French. A. French. Q. Of course you have very little recollection of what was discussed in your consultation with Dr Johnson on any of those three occasions? A. That's right. Q. In as far as you say that your recollection is he said you had lung cancer, that was only a very small part of the conversation you had with him, wasn't it? A. Yeah. Q. The proposition that I must put to you is that you have no actual recollection of what he said - what Dr Johnson said to you, and that that is a confusion that has arisen in your mind from what Dr French said to you? A. Right. Q. Do you agree? A. Yes. HIS HONOUR Q. You agree you're confused? A. Yes, I agree, I am, yes.
14. I find that it was Associate Professor French and not the defendant who advised the plaintiff to undergo the surgery on 4 September 2012 including lobectomy removing left lung tissue (to avoid doubt the whole of the surgical procedure the subject of the plaintiff's case).
15. The plaintiff did not give evidence that he was not advised by the defendant of his opportunity to undergo further diagnostic investigations including further biopsy and bronchosocopy. The plaintiff in closing written submission (at [1.13, 1.14 and 1.15]) argued that the "only inference is" that he would have agreed to a second biopsy and bronchoscopy is not made out. There is simply was no evidence supporting that inference. As the above analysis of the plaintiff's oral evidence shows, the plaintiff conceded that he was unable to recall what he was advised by the defendant.

Consideration of Liability

1. In my opinion the documentary evidence and the plaintiff's oral evidence, analysed above, does not support a finding that the defendant either advised the plaintiff that lung cancer was a certain diagnosis or advised him to have surgery. Indeed, the plaintiff's concessions during cross examination, consistent, with the documentary evidence and in particular the Liverpool Hospital admission forms, establish that the defendant arrived at a differential diagnoses of cancer, discussed possible diagnosis of pneumonia and infection with him, and referred the plaintiff to cardiothoracic surgeon, Associate Professor French, for diagnostic opinion and determination of whether surgery was the appropriate treatment course. The unanimous opinion of the expert liability witnesses, they being specialist respiratory thoracic physicians and a specialist radiologist, was that the defendant's referral of the plaintiff to Associate Professor French on the basis of the results of investigations obtained to 19 July 2012 was an act in a manner that at the time the service was provided, was widely accepted in Australia by peer professional opinion as competent professional practice (I adopt the wording of s.5O(1) CLA).
2. I have found that the plaintiff was confused in regard to the advice received by him which caused him to go to surgery. In summary, that confusion was so gross as to include whether it was the defendant or Associate Professor French who provided that advice. In fact, the plaintiff did not have a reliable recollection, if any recollection at all, of what he was advised by the defendant.
3. Accordingly, the plaintiff has failed to prove on the balance of probabilities that the defendant advised him to go to surgery and that any advice given by the defendant was causative of him going to surgery.
4. There is no reliable evidence that the defendant did not advise the plaintiff that he could wait and undergo further investigations discussed above including a further biopsy and bronchoscopy. Even if there had been such evidence, the plaintiff did not give evidence that he would have undergone those further procedures. Importantly, the evidence did not even approach what would be expected to be a major consideration if such evidence had been given; that being, what confidence of diagnosis of cancer told to him would have been the threshold at which he would have chosen the standard treatment of surgery rather than wait to see if he was suffering resolving pneumonia only. In this regard, I consider it significant that the unanimous expert liability evidence was that no test would have definitely excluded the risk of cancer and that the rapid metastatic rate of lung cancer was such that even a 5% (or Dr Corte 2%) chance of that differential diagnosis on peer professional opinion, indicated surgical treatment. A likely consequence of delayed treatment, assuming the mass to be malignant, was death.
5. The question of whether the defendant breached his duty of care to the plaintiff is governed by s.5B CLA. The section reflects the common law as to the standard of care. On the evidence I make the following findings: 1. The risk, agreed between the parties to be the subject risk, of unnecessary surgery in the event that the mass in the plaintiff's left lung lobe was not cancer; was foreseeable to the defendant s5B(1)(a). 2. The defendant's correspondence to Associate Professor French referring to pneumonectomy and the plaintiff's history of asthma and bronchiectasis lead inevitably to the conclusion that the risk included a significant risk of mortality for the plaintiff. The risk of unnecessary surgery causing loss of part of a lung and the risk of mortality were each significant and in combination plainly so; s5B(1)(b).
6. In this case, the question of breach is overwhelmingly answered in the negative for the reasons that: 1. a reasonable person, in this instance a specialist respiratory thoracic physician, would, on the information known on 19 July 2012, have taken the precaution of advising the plaintiff to consult a cardiothoracic surgeon in relation to surgery and have recommended a treatment course contemplating surgery on the basis of the differential diagnosis that the mass in the plaintiff's left lower lung lobe was malignant: s5B(1)(c); and 2. the probability of harm, the harm being untreatable lung cancer if the defendant did not take the precaution which he did do of referring the plaintiff to Associate Professor French is overwhelmingly supported by the evidence s5B(2)
7. For those reasons, the defendant was not negligent and did not breach his duty under the general principles of s.5B CLA.
8. As a professional, specialist respiratory thoracic physician, the unanimous opinion of the experts on liability clearly makes out that the defendant did not incur a liability in negligence arising from his treatment pursuant to s.5O CLA. In fairness to the defendant, the overwhelming expert opinion evidence in this case is that he did the right thing and provided sensibly precautionary medical care in accordance with that widely accepted in Australia by his peers as competent practice.

Causation

1. In my opinion, it follows that the plaintiff has failed to prove that negligence of the defendant factually caused unnecessary surgery: s5D CLA
2. Contrary to plaintiff closing written submissions ([69] above); even had the defendant advised the plaintiff that the diagnosis of lung cancer was certain, that the plaintiff subsequently obtained the opinion of Associate Professor French is a fact breaking any chain of causation of effect of such negligence. The unanimous expert liability opinion was that the cardiothoracic surgeon's diagnosis of cancer and determination to proceed to surgery were solely within the realm of activity of Associate Professor French. Associate Professor French's letter of 25 July 2012 and the Liverpool Hospital admission notes are consistent with that normal course having occurred in this case. The plaintiff's evidence is not to the contrary.
3. It was necessary for the plaintiff to prove, on the balance of probabilities, that there was a substantial prospect that the plaintiff would have achieved the beneficial outcome of avoiding surgery if he had been given the opportunity of certain advice by the defendant upon the basis of which he would have elected not to proceed to consultation with a cardiothoracic surgeon (Badenach v Calvert [2016] HCA 18 per French CJ, Keiffel and Keene JJ at [40] to [41]; s5D(3) and s5E CLA). As stated above, these things were not proved on the evidence. Nor was there evidence of the quality and quantity of the advice concerning the risk of delay of treatment upon which the plaintiff would have elected not to proceed to consult with Associate Professor French.
4. The question whether the referral to Associate Professor French was appropriate, was fundamental to the plaintiff's case. The plaintiff submission ([69] above) presumes a purpose for the defendant referring the plaintiff to Associate Professor French, which purposes is neither identified in the submission nor in the evidence. Plainly the evidence infers that had Associate Professor French determined there was insufficient evidence of cancer for him to proceed with treatment by surgery; then, the surgery would not have occurred at all. The plaintiff sues for the consequences of the surgery. It was the plaintiff's onus to prove the contrary proposition; s5E CLA. It failed to do so.
5. At plaintiff written submission [1.21] the plaintiff misapplied the decision of the High Court in Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522. Because the surgery resulted only from the diagnostic opinion of Associate Professor French and his opinion to proceed with the surgery, the chain of causation was broken by a novus actus interveniens. There is, in this case, no evidence nor any submission put that diagnosis of Associate Professor French or his determination to proceed to surgery were tortious: Mahony v J Kruschich (supra) at [6]. That part of the submission which reads: "…. at the very least, it must be said that the opinion of [the Defendant] must have influenced [Associate Professor French's] decision to proceed to surgery" is opposite the only evidence on the point which is the unanimous expert liability opinion evidence of normal practice.

Conclusion on Liability

1. For the above reasons I find that the defendant was not negligent and that the negligence alleged, had it occurred, would not have been causative of the loss claimed. I order: 1. Judgment for the defendant against the plaintiff; and 2. Plaintiff to pay defendant's costs.

Damages

1. As is required, I now give brief reasons assessing the plaintiff's claim for damages.
2. At the time of the subject surgery performed by Associate Professor French, the plaintiff was 45 years of age, and continued to live with medical conditions impairing his opportunity to live a normal and full life which had long pre-existed the surgery.
3. The plaintiff had suffered asthma from birth and epilepsy seizures from 16 years of age. He suffered anxiety and depression subsequent to the failure of his marriage from 2008. In relation to these conditions, he received medical treatment. Due to them, he commenced on the Disability Pension and received full-time care pursuant to a Centrelink Carer allowance for at least two years prior to the surgery.
4. At the time of the surgery, his stepson Mr Pupovac provided services as full-time live-in carer, and the plaintiff was living with his second wife, his step-son Mr Pupovac and his twin 5 year old children.
5. Prior to receiving the Disability Pension, the plaintiff's work included driving of a forklift. His epilepsy, which included him suffering unpredictable on-set of periods which he described as "going into my own little world" made him unsuitable for that work.
6. He described the triggers for his epilepsy as stress or anger.
7. He described the pre-injury course of his asthma as triggered by physical exertion such as lifting things and by summer humidity. He gave a pre-surgery example of respiratory impairment as being restricted in breathing when on occasion on a weekend he would play soccer in the local park with friends.
8. The plaintiff gave the following before and after surgery account of his claimed impairment: 1. Before surgery, in regard to personal grooming, before surgery, he was assisted by Pupovac, who would observe him when showering in case he suffered a seizure and would fall. 2. For about 6 months after the surgery the pain in his left side at about mid-thoracic height, being the result of the surgery, made it difficult for him to raise his left arm. Because of that, Mr Pupovac would help him wash his hair in the shower. Mr Pupovac would have been monitoring the plaintiff showering in the course of his provision of care relating to the plaintiff's epilepsy, in any event. Accordingly, whilst washing the plaintiff's hair for some period was an added activity, it did not incur extra time of Mr Pupovac. The plaintiff said that Mr Pupovac would give him a quick wash with a sponge when he was in the shower. He could not do because of the pain in his left side. He said that presently (and I assume from 6 months post-surgery) Mr Pupovac gives him a quick sponge down in the shower about 3 times a week, but not on the occasions of his other showers. He said that Mr Pupovac stood outside the shower and if the plaintiff got the pain in his left side, Mr Pupovac assisted. Again, on the evidence, Mr Pupovac would have attended the plaintiff whilst he showered in any event because of his epilepsy. 3. Before surgery, the plaintiff would shop with his wife and they would walk the 20 minutes to and from the Westfield Shopping Centre. For 6 months post-surgery, he said that he basically laid on a couch and required assistance to sit up even for puffing Ventolin, when required. He needed to be upright in order to perform that task. 4. In regard to grooming, the plaintiff said that before the surgery Mr Pupovac provided assistance (possibly 3 times a week) to help him put on socks. For the 6 months after surgery, Mr Pupovac helped the plaintiff put on his socks because he could not bend down as he used to do. He described his inability to bend as: (Transcript Day 1, page 38, lines 11 to 46) Q. We spoke about your grooming before the surgery; and did Milorad help you after the surgery in respect of your grooming? A. That's right, yes. Q What did he do? A Shower me, like I said; pass me the towels. Gives me the - puts on my socks, because I can't bend down as much as I used to be able to. Q. How often would he do that? A. He does it most of the time, really. Q. Can you do those things now, independently? A. Sometimes I can, sometimes I can't. Depends on the days. On some days, I'm feeling like it's fine, some days, tend to lock onto a position that I have to, sort of, like, go, stretch out, to, like, re-lock it, sort of thing. Q. Re-lock what? A. The - once..(not transcribable)..from the operation, sometimes, when I'm bending down, sometime, it seem to, like‑‑ Q. Your joints lock‑‑ A. Yeah. Q. Is that what you're trying to saying? A. Yeah, yeah. Not all the time. 1. The plaintiff described Mr Pupovac's assistance of him in relation to putting on his socks as the same before and after the surgery. 2. The plaintiff said that he continues to see his regular local medical officer GP Dr Tomasevic for his asthma and epilepsy and in regard to his general health with the same frequency as he did before the surgery: (Transcript Day 1, page 38, line 49 to page 39, line 15) Q. And post-surgery, did you continue to see Dr Tomasevic? A. Tomasevic, yes. Q. Would you say - so, more frequently, or the same, or less frequently? A. Just about the same. Q. And you would see him for your epilepsy? A. That's right. Q. And your asthma? A. That's right. Q. And‑‑ A. (not transcribable) … Q. Anything else? A. No. Just, mostly, if I'm sick or something, I go and see him, cause he's my closest GP there. 1. In relation to cleaning, the plaintiff, his wife and two young children live in a two bedroom unit. The children are now 9 and 6 years of age respectively. He said that before the surgery he would take out the garbage and assist with cleaning. If the children made a mess by dropping chips, he would clean it up with the "Duster Buster". His wife then did the bulk of the cleaning work. He said that for 6 months post-surgery he could do very little, and could not do the "Duster Buster". I understood the "Duster Buster" to be some form of portable vacuum cleaner. He said that he remains unable to assist in cleaning because of the pain in his side when he puts pressure on it. 2. Specifically in relation to the children and his impairment of movement, the plaintiff said that before the surgery he would put out the school uniforms for the children, help them get ready and make their lunch and recess play snack. He would walk them to school every day. He was able to play with the children and was able to take them across the road to the park with swings. In the 6 months after surgery, he said he could not make their formula, could not play with his children and when they were at the park, he could just watch them. He could walk to the park because it was across the road. He said that at the commencement of the new school year, the youngest children started in public school. He could not walk the children to and from school. Mr Pupovac and his wife did it. The walk to school which he says he could not do was a 5 minute walk across the highway from their home. For about 2 years post-surgery, after doctors gave him a tube to blow into in order to exercise his lungs, he resumed walking his children to school. 3. He also recommenced taking the children to the park, but he complained that pain at the mid-thoracic side stops him from doing the things he did with them before surgery. He said that in the 6 months post-surgery period, the pain was so severe that he would take a pillow on his left side to the park and when he would walk to the doctor. He said that he does not need the pillow now. 4. With the exception of the complaints of right side thoracic pain, the plaintiff's restrictions in all activities and about which he complained, with perhaps the exceptions of bending down to put on his socks and being sponged down in the shower by Mr Pupovac, as I understand his evidence, are caused by his epilepsy and restricted breathing. 5. The plaintiff said that before the surgery he was calmer of mood and that since the surgery he has been more angry and hot-tempered. He said that he takes his frustration out on his children. He says that sometimes he has to step outside onto the veranda to calm down to stop himself from doing "something stupid". 6. In relation to the post-surgical pain, he said that his symptoms are affected by the weather. His evidence was: Q. Mr Petrovic, you mentioned that you were in a lot of pain after the surgery. A. Yes, that's right sir. Q. Are you in the same amount of pain now? A. No, I'm a little bit better than - than actual - it depends on the weather changes, like if it's cold I do feel it a little bit of a - from hot to cold or cold to hot, I feel the pain a bit. Not - not - you know, I'm - really bad that - that I can't put up with it, put it that way. Q. Did you take any - at the time - supposed to be taking medication for your pain? A. Just Panadol and things like - Nurofen just to ease the pain, sort of. Immediately post-surgery, the plaintiff was in hospital for 7 days. The plaintiff said that now he suffers on-set of shortness of breath quicker than he did before surgery. He said that in the 6 months post-surgery, he was breathing a bit harder and used Ventolin a lot, more than prior to surgery. He said that he continues to use Ventolin more than he did prior to surgery.
9. The plaintiff's description of his before and after surgery scenario above, was in my view affected by his personal, subjective view, that a portion of his significant level of disability can be blamed on the removal of a portion of his lung. It is not difficult to understand that a person who has suffered throughout his life compromised breathing would be emotionally vulnerable and anxious of his breathing capacity in consequence of partial lung loss. During his evidence he agreed that he felt anger that a portion of his lung had been removed.
10. In evaluating appropriate compensation by damages, in the event that the plaintiff had been successful on the question of liability, it is important to discern the real level, if any, of disability resulting from the surgery. In this regard, assistance is achieved by the following observations: 1. The oral evidence of the plaintiff's full-time carer and stepson Mr Pupovac. 2. The above referred to, unanimous opinion, of the expert liability panel, composed of specialist respiratory thoracic physicians, that the lung tissue removed was so badly damaged by the plaintiff's pre-existing diseases that it was of poor function and the plaintiff suffered minimal diminution of breathing capacity and of life-span in consequence of the surgery; 3. The opinion expressed in the report of Professor Breslin dated 20 February 2017 (Exhibit G) including his assessment of the plaintiff's needs following consideration of the report of Ms Williams, occupation therapist, dated 17 February 2017 (Exhibit J); 4. The expert opinion report of Dr Pacey, rehabilitation and pain medicine specialist, dated 7 April 2017 (Exhibit 20), in particular Dr Pacey's identification of resulting disability.
11. It is necessary only to go to a few points of Mr Pupovac's evidence but in my view, his evidence was accurately given and it held in check the evidence which the plaintiff gave. As a general observation of the plaintiff's evidence; again I found him to be not an untruthful witness. Most tellingly, he conceded that he had exaggerated his complaints to Dr Pacey when she assessed him for the purposes of this litigation.
12. Mr Pupovac confirmed that from approximately two years before the surgery he had been the full-time carer of the plaintiff, receiving the Disability Carer Support Pension. He lived with the plaintiff, the plaintiff's wife (Mr Pupovac's mother) and the plaintiff's two children.
13. Mr Pupovac confirmed that full-time meant seven days per week and ever present monitoring of the plaintiff. His carers role was initiated to monitor the plaintiff's taking of his medication for epilepsy. On occasion the plaintiff had suffered seizures because of his failure to take his medication. For example, when the plaintiff showered, Mr Pupovac would not remain the whole of the time in the bathroom but would wait in his bedroom where he could hear the plaintiff in the shower. As an ever present carer from 2010, Mr Pupovac always assisted the plaintiff with the activities of his life in which his capacity was diminished because of his breathing difficulty.
14. Mr Pupovac said that the plaintiff's wife did the housework and all of the cooking, even though she worked full-time and outside of work attended TAFE to study English. From before the surgery Mr Pupovac had shopped for food, usually of the take-away type, approximately every second day. Every second or third day he had assisted the plaintiff with washing his feet in the shower. He walked the plaintiff's young twin children to and from the nearby school, when the plaintiff did not and he assisted with general household shopping.
15. Mr Pupovac confirmed the plaintiff's evidence that for approximately six months after the surgery, the plaintiff spent his time on the couch and was very immobile. During this period Mr Pupovac went out to buy take-away meals for himself and the plaintiff approximately every day. This took about thirty minutes on each occasion. He would clean around the plaintiff to which activity the evidence did not attribute a time. He helped the plaintiff walk to the bathroom on occasion. He helped the plaintiff wash his back in the shower about three times per week which took about twenty minutes on each occasion. He picked up the plaintiff's dirty clothes and brought him clean clothes when the plaintiff was washing and changing. He walked the children to and from their kindergarten each day which took about twenty minutes.
16. Plainly, the services identified by Mr Pupovac in that period of six months following the surgery amount to a total of only about two to three hours over a full seven day week. As a full-time carer Mr Pupovac was in paid attendance for the plaintiff for the whole of that time, in any event. Taking the plaintiff's evidence and Mr Pupovac's evidence in combination, in the six months following the surgery, the plaintiff having a full-time attendant to respond to his requests, only identified those activities. The circumstances of having Mr Pupovac in attendance, must have permitted the plaintiff, on occasion, to remain laying on the couch. As I understood the plaintiff's evidence, it was his complaint of pain in the side of his chest at about the site of the surgery which caused him to ask Mr Pupovac for more help with his washing whilst in the shower and with putting on socks during that six month period, than he had required beforehand. There is no independent evidence identifying a medical need for the plaintiff to have remained on the couch for six months following the surgery. Plainly it was an opportunity more available to him because of the attendance of Mr Pupovac, than it would have otherwise been.
17. Mr Pupovac described what he did about the house as "In truth, just helping out Mum whilst she was studying". Mr Pupovac's activities are to be assessed not just as performance of his duty as a paid full-time carer, but also according to his role as an adult stepson living within his family home.
18. Mr Pupovac, for instance, said that he did not clean the house because his mother did it but that maybe the plaintiff could clean the house but for his problems with breathing and walking.
19. The plaintiff closing submission at [2.5] claims domestic assistance calculated in the report of Ms Williams, occupation therapist. Ms Williams report was tendered by the plaintiff (Exhibit J)
20. The medical opinion evidence, including the report of Ms Williams is relevant not just to the plaintiff's claim for domestic assistance but also to his claim for non-economic loss. That opinion evidence describes the quantity and quality of impairments which have resulted from the surgery, differentiating the plaintiff's post surgery state from that which pre-existed.
21. The plaintiff's submission must be rejected out of hand because Ms Williams in cross examination agreed the plaintiff's impairments as described in her report were greatly exaggerated. In summary, exaggeration was not of her making but rather that she had been provided an exaggerated factual statement of the plaintiff's pre and post surgery impairment and abilities.
22. The plaintiff's concessions made during cross-examination on the factual content contained in the report of Dr Pacey, point to acceptance of Dr Pacey's report as providing an accurate portrayal of his condition. Ms Williams agreed that she was given an exaggerated history by comparison to Dr Pacey's report. In addition, Ms Williams had not, prior to giving oral evidence, had the opportunity of considering the 20 February 2017 report of Associate Professor Breslin, which reviewed her report.
23. When writing her report, Ms Williams assumed that prior to the surgery the plaintiff was independent in personal care and activities of daily living and managed his own medications, performed light tasks around the home including preparing snacks and drinks, wiped down the bathroom, sink and toilet, wiped down the kitchen sink and countertop, hand washed dishes, hung out clothes, took out the rubbish, pulled up bedsheets to make the bed each morning, vacuumed, swept the small areas, assisted in grocery shopping including packing and pushing the trolley and light domestic chores including changing light bulbs. The evidence of Mr Pupovac proved that account to be greatly exaggerated.
24. Indeed, Mr Pupovac even changed the light bulbs. The plaintiff did not perform cleaning activities around the house, make beds or do the other domestic tasks.
25. Ms Williams was cross examined broadly on the inaccuracy of the factual assumption she had been instructed throughout her report. Ultimately she agreed that Dr Pacey was best placed to relate the plaintiff's impairments and needs to his conditions of respiratory impairment and to the surgery as well as assessing the plaintiff's domestic needs. Ms Williams agreed that as an occupational therapist she had worked with specialist rehabilitation and pain medicine practitioners such as Dr Pacey. She was therefore familiar with the areas of specialist knowledge and practice of a person of Dr Pacey's qualifications. In particular, Ms Williams had been given an exaggerated version of pain suffered by the plaintiff. Ms Williams had not examined the plaintiff's chest for pain as had Dr Pacey.
26. In the end, on the objective material provided to her during cross examination, particularly the information obtained by Dr Pacey and on the basis of Dr Pacey's opinion, Ms Williams agreed that the plaintiff remains able to do all activities of daily living and of taking his children to school, to walk around the house and to walk upstairs, if he did so at his own pace and within his limitations of breathlessness. In relation to household cleaning, for instance, Ms Williams had not been informed that, prior to surgery, the plaintiff, because of his asthma, could not tolerate the dust disturbed by vacuuming.
27. When referred to the opinion evidence of Associate Professor Breslin, Ms Williams made the following concessions which made her report of little or no assistance to the plaintiff in his claim for damages (Day 5, transcript page 315 line 16 - 49: Q. Is he saying this - whereas your report has in the areas which he has identified, listed assessment and implications on activities on daily living, including gratuitous past assistance and personal care, domestic gratuitous care again, current and future assistance recommendations - they are (1) diagnostically related to epilepsy, and (2) - and this might go beyond diagnosis - his epileptic condition finds a need for them, but surgery does not? A. That's what I've read that he has written. Q. That's what he's saying. A. Yes. Q. Isn't it? A. Yes. WALSH Q. And out of fairness - and just following on from your answer to his Honour - turning the page, in exhibit G, in the first paragraph the Professor states, "These costs," referring to the costs as detailed in your report, in those categories, "relate to his epilepsy, asthma and anxiety, and I do not think any of them can be justified in relation to the effect of the thoracic surgery on his lung function." A. That's what I'm reading, yes. Q. And you agree with - you would defer and agree with the Professor's opinion on that? A. As a - yes, Professor, yes. Q. On page 9 of your report, which is exhibit J, paragraph 6.6, you mention, "Referral to a psychologist for assessment is recommended." You see that? A. Yes. Q. Properly, you recognise that that's an area outside your expertise, isn't it? A. Yes, I'm not a psychologist, yes. And at Day 5, transcript page 316, line 19 - 26: Q. In light of what you've heard and asked to accept as assumptions today, as to different versions of facts that the plaintiff appears to have provided to you, Dr Pacey and the matters stated by Professor Breslin, that would cause you to agree, through no fault of your own, but due to the uncertainty of the information provided to you at the in depth interview, and your observations of Mr Petrovic that day, that the court is likely to be better assisted by the expert opinions of Dr Pacey and Professor Breslin, wouldn't you? A. Yes.
28. Dr Pacey's report, on the evidence, I accept as accurate as to fact. In terms of the plaintiff's impairments and needs, there is no contrary opinion evidence, given the concessions by Ms Williams.
29. Dr Pacey reported the plaintiff having always had difficulty with house dust and humidity requiring him to wear a mask when his wife was using the vacuum cleaner. Contrary to the history given to Ms Williams, she recorded that the plaintiff had never been able to change the sheets on the bed because to do so aggravated his asthma. She recorded the plaintiff had told her that prior to the surgery Mr Pupovac did all the heavy lifting, shopping and picked up the children from school in hot and humid weather. The plaintiff informed her that he was independent with his activities of daily living and that he required someone with him all the time in case of seizure.
30. The plaintiff conceded the accuracy of Dr Pacey's observation made during post surgery examination, that the plaintiff was able to walk two flights of stairs up to the examination room and sit comfortably through the examination. The plaintiff said that it caused him shortness of breath to do so. The plaintiff also conceded that on examination the surgical scarring along the lower margin of his ribs was non-tender and that pressure applied by Dr Pacey over the chest did not produce pain.
31. Dr Pacey, having had the opportunity to consider Ms Williams' report (Exhibit J) gave the following opinion regarding the plaintiff's need for domestic assistance and personal care consequent of the surgery: "it is my opinion that Mr Petrovic is fit to wipe down the kitchen sink and counter top, to hand wash dishes, to wipe down the sink and toilet and to hang out clothes. He denied that he does vacuuming because of his long standing difficulty with house dust and I do not believe that there is an increased need for help with vacuuming or sweeping. It is likely that due to shortness of breath and some left-sided pain that pushing a shopping trolley is difficult for him, but the minor handyman tasks required of living in his unit are within his capabilities."
32. In answer to the question of whether the plaintiff would have required the same level of assistance and care, regardless of the surgery, due to his pre-existing conditions, Dr Pacey commented: "Mr Petrovic is very limited in all activities due to his pre-existing conditions and for this reason apart from pushing the shopping trolley, I do not believe that any of the recommendations are reasonable apart from the bed blocks." Dr Pacey was referring to recommendations made by Ms Williams. I note that on the evidence, Mr Pupovac as the plaintiff's full-time carer performed any heavy work for him and that would include pushing the shopping trolley.
33. The opinion of Dr Breslin, responding to Ms Williams' report and to which opinion Ms Williams deferred was as follows: "in essence, I do not agree with the occupational therapy report detailing this man's need for assistance and various costs. He certainly needs assistance from the point of view of his epilepsy but essentially all the assistance listed in items 6 and 7 (pages 9, 10 and 11) and item 8 (page 12) and item 9 (page 13 and 14) relate to epilepsy. Essentially all these items do not relate to the effect of the surgery on his lung function. He certainly has been left a little more dyspnoeic because of the surgery but it is absolutely not justified on clinical grounds for virtually all the costs as detailed in the occupational therapists' report to be assessed as due to his chest surgery. These costs relate to his epilepsy and asthma and anxiety and I do not think any of them can be justified in relation to the effect of the thoracic surgery on his lung function."
34. I find that with the benefit of the concessions made by the plaintiff during cross examination directing her to the content of the report of Dr Pacey and of the above quoted opinion of Associate Professor Breslin; the common expert opinion is to the effect that outside of intermittent pain to the side of his thoracic region being the site of the surgery; any increase in the plaintiff's physical impairments over the limitations in life with which he struggled pre-surgery are minimal indeed. The evidence amounts to not more than during six months following surgery the plaintiff received some increased activity from his full time carer Mr Pupovac.
35. Weighing against attributing compensation to the plaintiff is Mr Pupovac's evidence that he would have been there to assist the plaintiff in any way the plaintiff required, at that time, in any event. Further, that the provision of his services to the plaintiff and generally within the house was in accordance with his paid full time carer role which had commenced several years before the surgery and in addition, was provided by him in order to assist his mother in the home and the plaintiff as his stepfather.
36. Had the plaintiff been successful in these proceedings his entitlement to compensation for care provided to him would be identified after disentangling that provision from the care which he would otherwise have received in the ordinary course through support available to him from his family and from his full time care provision from Mr Pupovac: White v Benjamin [2015] NSWCA 75 at [61]-[70] and [76].
37. Provision of gratuitous care has not been shown to come anywhere near satisfying the threshold of 6 hours per week provided for by s15(3). The evidence does not support gratuitous care needs satisfying that threshold for the future. Given the plaintiff's Statement of Particulars does not claim future paid care. This is not surprising given he will continue to receive full-time paid care on account of his pre-existing health issues.
38. Expert opinion that the surgery did not result in any need for carer assistance except for the provision of bed blocks.

Conclusion as to damages

1. The plaintiff is a courageous individual in that he has lived his life within the limitations of very disabling breathlessness resulting from his asthma and bronchiectasis and from the age of 16 years with epilepsy which eventually caused him to have to surrender his employment and require full time care. He remains angry that a part of his lung was removed. At a subjective level, the plaintiff's emotional sensitivity to physical removal of part of his lung is understandably distressing. Contrary to his view of allocation of responsibility for his disability, the expert opinion expressed in accordance with the facts proved in the case is that he lost minimal, if any, capacity to breathe and function as a result of the surgery. Indeed, whilst it may be hard for him to accept, the expert medical opinion is that the tissue removed was not only poorly functioning material but was so damaged by fibrosis and his bronchiectasis; that he may suffer less health complications into his future life consequent of its removal.
2. The plaintiff's pre-existing health conditions required him to be medicated in regard to his illnesses causing breathlessness and for his epilepsy. Into the future he will not require more medical supervision nor medical services than his pre-existing condition already dictated.
3. Taking account of the plaintiff's pre-existing condition, allowing for the pain and discomfort of surgery and his ongoing, intermittent thoracic region side pain at the site of the surgery; my opinion, the plaintiff does meet the 15% threshold for an award of non-economic loss damages pursuant to section 16 CLA. I assess 17%. I would award damages for non-economic loss in the sum of $12,000.
4. Past out of pocket expenses were agreed at $2,000. The cost of bed blocks is estimated at $27 (Exhibit J, page 78).
5. For the reasons given, the plaintiff is not entitled to damages compensating him for gratuitous assistance as claimed.
6. In conclusion, had the plaintiff been successful on the question of breach of duty of care; I would have assessed damages in the total sum of $14,078.

Amendments 18 August 2017 - General amendments made 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: 18 August 2017