Gould v South Western Sydney Local Health District - [2017] NSWDC 67 - NSWDC 2016 case summary — Zoe

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Gould v South Western Sydney Local Health District

[2017] NSWDC 67

District Court of NSW|2016-11-16

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At a glance

Source facts

Court

District Court of NSW

Decision date

2016-11-16

Catchwords

(2011) 243 CLR 588 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Dobler v Halvorsen [2007] NSWCA 335
(2007) 70 NSWLR 151 Glen v Sullivan [2015] NSWCA 191 HG v The Queen [1999] HCA 2
(1952) 85 CLR 352 Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37
(1985) 156 CLR 522 Majkic v Bonnano [2008] NSWCA 253 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

Source

Original judgment source is linked above.

Catchwords

(2011) 243 CLR 588 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Dobler v Halvorsen [2007] NSWCA 335(2007) 70 NSWLR 151 Glen v Sullivan [2015] NSWCA 191 HG v The Queen [1999] HCA 2(1952) 85 CLR 352 Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37(1985) 156 CLR 522 Majkic v Bonnano [2008] NSWCA 253 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305(2001) 52 NSWLR 705 Malec v JC Hutton Pty Ltd [1990] HCA 20(1992) 175 CLR 479 Rosenberg v Percival [2001] HCA 18[2009] 72 NSWLR 419 Strong v Woolworths Ltd [2012] HCA 5, (2012) 246 CLR 182 Vairy v Wyong Shire Council [2005] HCA 62

Judgment (103 paragraphs)

[1]

[2001] HCA 18; (2001) 205 CLR 434 Shaw v Thomas [2010] NSWCA 169 Solomons v Pallier [2015] NSWCA 266 St Clair v Timtalla Pty Ltd and Anor (No 2) [2010] QSC 480 State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536 Strinic v Singh [2009] NSWCA 15; [2009] 72 NSWLR 419 Strong v Woolworths Ltd [2012] HCA 5, (2012) 246 CLR 182 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442 Wallace v Kam [2013] HCA 19, (2013) 250 CLR 375 Texts Cited: Concise Oxford Dictionary, 8th ed (1990) RB Gustilo and JT Anderson, "Prevention of Infection in the Treatment of One Thousand and Twenty-Five Open Fractures of Long Bones : Retrospective and Prospective Analyses", American Journal of Bone and Joint Surgery: 1976 Hull et al, Journal of Bone and Joint Surgery, March 2014 Ibrahim T, et al, "Delayed surgical debridement in paediatric open fractures : systematic review and meta-analysis", Journal of Child Orthopaedics (2014) New Shorter Oxford English Dictionary, 3rd ed (reprinted 1993) Macquarie Dictionary, 6th ed (2013) Skaggs, et al, "The Effect of Surgical Delay on Acute Infection Following 554 Open Fractures in Children", DL Journal of Bone and Joint Surgery: Jan 2005 Therapeutic Guidelines - Antibiotics (2010) Category: Principal judgment Parties: Robert Gould by his tutor Carol Anne Gould (Plaintiff) South Western Sydney Local Health District (Defendant) Representation: Counsel: Dr SC Thornton (Plaintiff) Mr RJA Sergi (Defendant)

[3]

Table of Contents Nature of case [1] Factual background [2] - [21] Photographic images [22] - [24] Classification of antibiotics [25] - [28] Claims by plaintiff [29] - [31] Defence [32] Evidence overview [33] - [37] Expert witnesses [38] - [40] Expert evidence - difficulties for analysis [41] - [48] Medical records [49] - [51] Anomalously dated Hand Clinic note - 30 September 2011 [52] - [66] Credibility and reliability of testimony [67] - [86] Mrs Gould [68] - [75] Mr Gould [76] Plaintiff [77] - [78] Dr Geraghty [79] - [82] Dr Scott [83] - [84] Dr Sathasivam [85] Expert witnesses [86] Relevant legislation [87] - [91] Issues [92] - [97] Factual findings [98] - [240] (1) The plaintiff's circumstances [99] - [101] (2) Injury circumstances [102] - [111] (3) First aid before receiving medical treatment [112] (4) Treatment at Campbelltown Hospital [113] - [118] (5) Chronology of treatment at Campbelltown Hospital [119] (6) Transfer and treatment at Liverpool Hospital [120] - [130] (7) Chronology of medical treatment at Liverpool Hospital [131] - [135] (8) Evidence of Dr Geraghty - plastics/hand surgery registrar [136] - [159] (9) Evidence of Dr Scott - treating hand surgeon [160] - [186] (10) Subsequent injury to left hand on 28 August 2011 [187] - [191] (11) Evidence of Dr Sathasivam - trainee plastic surgeon [192] - [204] (12) Chronology - Hand Clinic on 30 August 2011 [205] (13) Chronology - Campbelltown Hospital 4 September 2011 [206] - [209] (14) Chronology - Hand Clinic after 6 September 2011 [210] - [212] (15) Chronology - 15 September 2011 - thumb amputation [213] (16) Post-amputation Hand Clinic reviews [214] (17) Stump revision surgery [215] - [216] (18) Rehabilitation post-amputation [217] (19) Subsequent medical and allied assessments [218] - [229] (20) Disabilities [230] - [238] (21) Mitigation [239] - [240] Expert opinions on liability issues [241] - [372] First report of Dr Raftos - for plaintiff [242] - [248] First report of Dr Mansour - for plaintiff [249] - [253] First report of Dr Gatus - for defendant [254] - [287] First report of Dr Haertsch - for defendant [288] - [295] Second report of Dr Haertsch [296] - [300] Dr Gatus' comments - Dr Raftos and Dr Mansour [301] - [303] Dr Mansour's comments - Dr Gatus [304] - [310] Dr Raftos' comments - Dr Gatus and Dr Haertsch [311] - [313] Joint report by Dr Raftos and Dr Gatus [314] - [338] Concurrent expert evidence - Dr Raftos and Dr Gatus [339] - [372] Evaluation of expert evidence for reliability [373] - [457] Evaluation of Dr Mansour's reports [375] - [381] Evaluation of Dr Haertsch's reports [382] - [383] Evaluation of evidence by Dr Raftos [384] - [397] Evaluation of evidence by Dr Gatus [398] - [457] Conclusions following evaluation of expert evidence [458] - [467] Issue 1 - Identification of relevant risk of harm [468] - [477] Issue 2 - Duty of care and its scope and content [478] - [488] Duty of care [479] - [480] Scope and content of duty of care [481] - [488] Issue 3 - Breach of duty of care [489] - [579] (1) Initial assessment and treatment plan [494] - [511] (2) Delay until surgical washout [512] - [542] (3) Adequacy of in-patient antibiotic regime [543] - [555] (4) Adequacy of antibiotic regime on discharge [556] - [558] (5) Adequacy of care by Hand Clinic [559] - [579] Issue 4 - Causation [580] - [607] Factual causation : s 5D(1)(a) of CL Act [583] - [600] Scope of liability : s 5D(1)(b), s 5D(4) of CL Act [601] - [606] Conclusions on causation [607] Issue 6 - Defence - s 5O of the Civil Liability Act 2002 [608] - [673] Whether defendant is a person [612] - [614] Peer professional opinion in Australia [615] - [618] Rationality proviso [619] - [672] Conclusion on s 5O Defence [673] Issue 7 - Defence - Novus actus interveniens [674] - [693] Issue 8 - Assessment of damages [694] - [717] Plaintiff's probable life span [695] Plaintiff's most probable circumstances but for injury [696] - [697] Non-economic loss [698] - [702] Future loss of earning capacity [703] - [709] Future treatment [710] - [715] Out of-pocket expenses [716] Summary of damages assessment [717] Disposition [718] Costs [719] Orders [720]

[5]

Factual background

At an unknown time, which was assumed to have been shortly before 17:30 hours on the afternoon of Monday 22 August 2011, the plaintiff, then an 8 year old Year 3 student, was playing outdoors when he sustained a severe complex crushing injury to his left thumb, and an injury to his middle finger. He was initially taken to Campbelltown Hospital emergency department, where an extensive comminuted and acute fracture of the distal portion of his left thumb was identified on x-ray examination. At that hospital, his wounds were temporarily dressed with a saline soaked gauze bandage, he was given pain relief and the antibiotic flucloxacillin, and he was then transferred by ambulance to Liverpool Hospital for further assessment and treatment.
At about 20:05 hours on the same day, the plaintiff arrived at Liverpool Hospital, which was at the time, a tertiary referral trauma centre equipped with 15 operating theatres, where only one such theatre had been allocated as open for emergency use that evening.
After being medically assessed at Liverpool Hospital, the plaintiff was scheduled to undergo emergency surgery as the next patient in line for the operating theatre on that evening. The scheduled procedure was described as being for wound exploration, irrigation, washout, debridement, and possible fixation of his fractures. At the time, general anaesthesia in an operating theatre was the only feasible means to achieve cleaning of the plaintiff's wound: T121.4 - T121.7.
Unfortunately, as events unfolded, it was decided by those caring for the plaintiff that the planned surgery would be postponed due to the later arrival of other emergencies that hospital staff had assessed as having higher priority. In those circumstances, the surgery that had been planned for the plaintiff, ultimately took place later, on the following morning, some 16 hours after he had been transferred into the care of staff at Liverpool Hospital. Had the procedure been carried out on the evening of 22 August 2011, as had been initially planned, this would most probably have occurred within 6 hours of the plaintiff's presentation to that hospital, a matter of some relevance to the issues in contention in this case.
The procedure actually performed on the plaintiff was described as surgery for the exploration of the left thumb wound, and a wound washout, followed by the insertion of K-wires for fracture management, along with a surgical repair of the extensor tendon and the nail bed of the left thumb, and a repair of the nail bed of the left middle finger. The plaintiff also received antibiotic therapy at the hospital. The nature of the prescribed antibiotic regime is the subject of contention in these proceedings.
The plaintiff was discharged from Liverpool Hospital on 24 August 2011, with antibiotic therapy ordered to be continued, as was then prescribed. Just prior to his discharge from hospital, the plaintiff's antibiotic regime of intravenous cephazolin or cefazolin, as variously described, was 500mg 6 hourly (Exhibit "1", Tab 1, p 284). At the time of that discharge, the antibiotic regime was changed to oral Augmentin Duo Forte 500mg BD: Exhibit "1", Tab 1, p 262. The prescribed antibiotic regime was the focus of criticism from experts who evidence was tendered in the plaintiff's case. In contrast, that regime was defended by the defendant's experts.
In the course of these reasons, the various spellings of the antibiotic drug cephazolin or cefazolin, or cephalexin, are used according to the cited context. There is no issue that wherever those references appear, they refer to the same entity, a cephalosporin antibiotic drug.
After the plaintiff was discharged from hospital, he went on to develop infection and gangrene to the tip of his left thumb, which one expert thought was due to ischaemia or blood loss, and which another expert thought was due to osteomyelitis infection. At no time prior to the plaintiff's discharge from hospital was there any contemporaneous notation in the medical records to the effect that circulatory perfusion to the plaintiff's left thumb was considered to have been compromised.
On 28 August 2011, a few days after the plaintiff's discharge from Liverpool Hospital, the plaintiff's grandmother took him to the Emergency Department of Campbelltown Hospital, with a presenting history of having on that day bumped his injured left thumb when he fell from a swing whilst playing with friends: T19.18 - T19.32. At the time of that presentation, the plaintiff's left thumb bandage appeared to Mrs Gould to be "a little bit wet" (T19.28), and when the bandages were unwrapped, it had what was described by her as having "a funny smell": T19.41.
On 28 August 2011, whilst at Campbelltown Hospital the bandage on the plaintiff's left thumb was observed to have what appeared to be water on the outside: T20.9. The thumb had not been bathed between 24 August 2011 and 28 August 2011: T21.34. During an attempt at removal of the bandage on 28 August 2011, it was found to have been stuck to the packing which had been placed around that thumb. The bandage was later removed after soaking. The top part of the plaintiff's left thumb was then observed by Mrs Gould to have "a blackish colour" (T20.38), and it appeared to her perception, to have an unpleasant odour of decay, although the strength of that odour seemed to her to have decreased after the thumb had been washed at the hospital: T20.49 - T21.26.
On that occasion, a Sunday, after the plaintiff's thumb wound was re-bandaged, Mrs Gould was given a letter to take to the Liverpool Hospital Plastic Surgery and Hand Clinic, where the plaintiff was already scheduled to attend for a post-operative review at 13:50 hours on 30 August 2011: T21.33; Exhibit "1", Tab 1, p 23. Accordingly, a further two days passed before the plaintiff was seen at that clinic.
Unusually, Mrs Gould's evidence concerning the plaintiff's 28 August 2011 attendance at Campbelltown Hospital was not reflected by the appearance of any corresponding entries in the tendered copy of the Campbelltown Hospital notes. Mrs Gould's evidence of having taken the plaintiff to that hospital on 28 August 2011 was confirmed by her during cross-examination: T34.8 - T34.16. Mrs Gould's evidence as to that hospital attendance was also confirmed by the evidence of Mr Gould: T45.24 - T45.36. That body of evidence remained unchallenged.
Apart from the fact that the 28 August 2011 visit to Campbelltown Hospital was not reflected by any corresponding entries made in the tendered copy of the hospital notes, there is no reasonable basis upon which to consider that there might be doubt about the accuracy of the evidence of Mr and Mrs Gould in that regard. The unchallenged evidence of those witnesses was not glaringly or inherently improbable.
Given the state of the tendered copies of the hospital notes, I am not prepared to conclude that the above-cited evidence of Mrs Gould and Mr Gould was anything other than truthful and accurate. There were no submissions made to the contrary, and in the course of the defendant's submissions, it seems to have been accepted that the plaintiff was taken to Campbelltown Hospital on 28 August 2011, as described by Mrs Gould: Defendant's primary written submissions, par 27.
Following his discharge from Liverpool Hospital, and during the period between 30 August 2011 and 15 September 2011, the plaintiff was referred to and remained under the care of the Liverpool Hospital Plastics and Hand Clinic. In that time, signs and symptoms emerged of him having developed what was initially described as superficial skin necrosis, and then later, infection and gangrene in his left thumb. In these proceedings, there is a dispute as to the cause of those problems. On 30 August 2011, the registrar at the Hand Clinic recorded in the notes that the plaintiff had superficial skin necrosis to his left thumb. At that time, the wound was washed and a dressing was applied: Exhibit "1", Tab 1, p 9.
The plaintiff was due to revisit the Hand Clinic on either 7 or 8 September 2011. However, in the intervening period, as earlier described, the plaintiff was taken to Campbelltown Hospital on 4 September 2011. This was due to the malodorous condition of the thumb, and because of concerns expressed by Mrs Gould as to post-operative wound infection. At that hospital, after the thumb dressing was removed, the tip of the plaintiff's left thumb was observed to have become black, and his wrist was observed to be red and sore. At that time the plaintiff was in pain, and there was some peeling skin and sloughing of tissue evident in the plaintiff's left thumb. A wound swab was taken, the wound was soaked, dressed again, and it was noted that the plaintiff was due for review at the Hand Clinic on the following Tuesday.
On Tuesday, 6 September 2011, the plaintiff presented at the Hand Clinic earlier than was scheduled. This was because his grandmother was concerned about the condition of his hand. On this occasion, the same registrar who had seen the plaintiff on 30 August 2011, noted that the dorsal distal aspect of the plaintiff's left thumb was necrotic, and made the notation "Dry gangrene": Exhibit "1", Tab 1, p 38. At that time, a repeat x-ray was interpreted as showing "no obvious signs of osteomyelitis", a dressing was applied, and arrangements were made for the plaintiff to return to the clinic on 13 September 2011. At that 6 September 2011 visit, the plaintiff was also then referred for a further opinion to be obtained from a specialist hand surgeon, different to the one who had operated on him on 23 August 2011, concerning the appropriate management for his condition, as it had developed.
The chronological sequence comprising those events will require examination in closer detail in the factual evaluation required in this case. One of the factual matters of significance and requiring evaluation is the recorded observation by the Hand Clinic registrar on 6 September 2011, of the presence of dry gangrene in the plaintiff's thumb, as distinct from wet gangrene. An inherent difficulty with that evaluation is that the registrar who made that note was called to give oral evidence, and the factual correctness or otherwise of that recorded observation was not challenged by cross-examination.
Ultimately, on 15 September 2011, due to the presence of infection and gangrene in the plaintiff's left thumb, it was determined that it had become necessary for him to undergo amputation of the distal phalanx of his left thumb. On 10 July 2012, his amputation stump required further revisionary surgery which resulted in a further shortening of the residual portion of that thumb: Exhibit "B", p 2. Following that surgery, the plaintiff received antibiotics variously described as ciprofloxacin or "cipro", and Flagyl. These antibiotics were of a different kind and action to those which had previously been prescribed.
In the course of these reasons, the chronology of the events that occurred within the circumstances of the above factual outline will require a more detailed analysis in order to identify and clarify the sequence of relevant events, the matters relating to the duty of care owed, whether there were relevant breaches of that duty of care, and whether any such breach or breaches had relevantly caused the successive procedures for the amputation of portions of the plaintiff's left thumb.

[10]

Evidence overview

In the plaintiff's case, oral evidence on factual matters was given by his maternal grandmother, Mrs Carol Gould, who has the day to day care of the plaintiff, and also from the plaintiff's father, Mr Peter Gould. The plaintiff also gave oral evidence.
In the case for the defendant, oral evidence on factual matters was called from the treating hand surgeon, Dr Christopher Scott. The defendant also called oral evidence from Dr Sivapirabu Sathasivam, who was at the time, a trainee doctor in plastics, and who saw the plaintiff at some of his follow-up attendances at the Hand Clinic at Liverpool Hospital.
The defendant tendered an evidentiary statement from Dr Michéal Geraghty, who, at the time of the events, was a hand surgery registrar at Liverpool Hospital. He had undertaken the initial assessment of the plaintiff in the Emergency Department at Liverpool Hospital. He also discussed the plaintiff's treatment plan with Dr Scott on the evening of 22 August 2011, and he ultimately assisted Dr Scott at the initial operative procedure performed on the plaintiff on 23 August 2011: Exhibit "1", Tab 8, pp 501 - 507. The plaintiff did not require Dr Geraghty for cross-examination on the content of his statement: T76.49 - T76.50. His statement of evidence was therefore tendered without challenge: Exhibit "1", Tab 8, pp 501 - 517. That statement nevertheless required evaluation concerning some of the factual matters described therein, in light of other evidence.
The parties each tendered a compendious folder containing copies of medical notes concerning the plaintiff's treatment at both the Campbelltown and Liverpool Hospitals: Exhibit "1" and Exhibit "A". There was overlapping content of those folders comprising the copies of hospital notes. The state of copying of the notes was problematic for analysis, a matter to which I shall shortly return. The folders of exhibits also included reports from the respective experts, and other documents. These will be referred to where it becomes relevant to do so.
The relevant portion of the notes comprising the treatment of the plaintiff at Campbelltown Hospital, appear between pages 301 to 402 of Exhibit "1". The relevant portion of the notes comprising the treatment of the plaintiff at Liverpool Hospital, appear between pages 1 to 300 of Exhibit "1". For consistency, in these reasons, whenever it is possible to do so, references will be made to the content of Exhibit "1" when considering the content of the hospital notes and clinical records.

[12]

Expert evidence - difficulties for analysis

In the present proceedings, as in all such cases, the conflicting views of the experts require a detailed analysis, as key aspects of their differing opinions must be resolved rationally for the purposes of determining the issues calling for decision in the case.
In the present case, the added difficulty impacting upon that analysis, and impacting upon the task of making findings on the balance of probabilities concerning disputed and conflicting matters of fact and opinion, is that for whatever reason, each party selectively chose to decline to explore and test the basis for the opposing opinions through cross-examination of some of those experts, including on focal points within the evidence that could possibly have been determinative of key issues in the proceedings.
Although that approach is permitted in this court by the operation of UCPR r 31.30, it inevitably creates a problem for the court in seeking to justly resolve conflicting medical opinions especially where some of the authors of expert reports were not required to give evidence: Ainsworth v Ainsworth [2002] NSWCA 130, at [71].
As has been previously and repeatedly remarked upon in other cases, such circumstances serve to create a burdensome task for analysis, and where expert evidence is left untested but still in conflict, unless an assiduous analysis is undertaken, this can lead to a seriously deficient process: Cupac v Cannone [2015] NSWCA 114, at [17] - [18], following Manly Municipal Council v Skene [2002] NSWCA 385, at [21] - [22].
In cases such as this, where the expert evidence is left in an incompletely explored state of conflict, and where no rational basis emerges for preferring one expert opinion over another, and where parties have merely tendered medical reports without calling or requiring the authors of expert reports to give explanatory oral evidence, it is well understood that the result is likely to be that the party with the onus of proof on a particular issue may well fail on that matter at issue: Majkic v Bonnano [2008] NSWCA 253, at [26], following Larson v Commissioner of Police [2004] NSWCA 126, at [48].
In resolving such matters, the essential course to be followed is that of undertaking a close examination of the underlying facts to determine what has been satisfactorily proven, and to then examine the detail of the expert evidence in light of those proven facts, and the facts that the experts have assumed. In that process, where expert opinion is sought to be relied upon, such opinions should be capable of being seen to differentiate between the assumed facts upon which the opinions are based, and the opinions in question: HG v The Queen [1999] HCA 2; (1999) 197 CLR 414, at [39].
In the context of an evaluation along those lines, in accordance with both principle, and common sense, the facts the experts have been asked to assume for the purpose of their opinions, must be sufficiently like the facts found to have been proven in evidence to render the expert opinion to be of any guidance value: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9].
The foregoing difficulties and the complexity of the underlying facts requiring consideration are reflected in the length of these reasons.

[14]

Anomalously dated Hand Clinic note - 30 September 2011

In the course of constructing the chronological outlines referred to in the preceding paragraph, an apparently anomalous handwritten entry in the Liverpool Hospital Hand or Plastics Clinic notes was identified, bearing the date 30 September 2011.
The context of considering that note to be an anomaly, was a series of recorded visits by the plaintiff to the Liverpool Hospital Hand Clinic, on 30 August 2011 (Exhibit "1", Tab 1, p 32), 6 September 2011 (Exhibit "1", Tab 1, p 36), 13 September 2011 (Exhibit "1", Tab 1, p 34), and, purportedly, on 30 September 2011: Exhibit "1", Tab 1, p 37.
The reason for identifying that matter at this early point in these reasons is that, on analysis, I reached the tentative conclusion that the entry in the nursing notes dated 30 September 2011 has been incorrectly dated. When this matter was raised with counsel in order to provide the parties with an opportunity to make submissions on that view, counsel did not initially agree with my interpretation of the incorrect nature of the date of that note. In that regard, they each made written submissions to the contrary. After due consideration, for the reasons that immediately follow, I remained unpersuaded by those submissions. When the issue was again ventilated to the parties, counsel for the plaintiff ultimately adopted the view that the note in question was probably erroneous as to its date.
In order to understand the basis for that conclusion, at this point, it is necessary to set out the matters that I consider serve to demonstrate the identified error so that an attempt can be made in due course to reconcile that error with other relevant notes.
On 30 August 2011, the plaintiff was seen by the plastics registrar at the Liverpool Hospital Hand Clinic one week post-operatively. At that time, the registrar noted "significant skin necrosis". That registrar's note identified the further management plan as being to wash and dress the plaintiff's thumb, apply a splint, and to review for follow-up in a further week, which would have been either 7 or 8 September 2011: Exhibit "1", Tab 1, p 32.
Some further notes dated 30 August 2011 also appear in the Hand Clinic records. These may be either medical notes, nursing notes, physiotherapy notes or occupational therapy notes. Whilst it is not entirely clear as to which of those possibilities applies, because the identifying label in the notes did not photocopy well, on balance, it appears the notes were made by a physiotherapist having regard to the notation "PT" appearing next to the signature. That note states: "30/8/11 1640 DOI - 22/8/11 Slipped & fell L) hand crushed by rock. C/town (arrow) bandaged (arrow) LHS. DOS - 23/8/11 exploration + W/O L) thumb + I/O k-wires DP/PP + nail bed + Ext tendon repair & L) MF NBR Ptx : ° prev injury to L) hand SHx : RHD, Yr 3 student. plays AFL/rugby MHx : °reported. O : ° cast insitu L) UL Thumb + mf dressed (symbol for with) cohesive. Rx : Skin cleaned + aired. f/o radial forearm based thumb spica splint (symbol for with) IPJ included (W) [indecipherable symbol] (C) [indecipherable symbol] all care taken. to wear full time. cont… 30/8/11 cont. Physio cont… P " N/V in clinic 1/52 (Signature) (Pauley) PT" [Exhibit "1", Tab 1, pp 32 - 31]
It is plain from the level of detail set out in the notes cited immediately above, that these notes were made at the plaintiff's first post-operative visit to the Hand Clinic, and that afterwards, the plaintiff was also due to revisit that Clinic for review in a further week.
The plaintiff's second recorded visit to the Liverpool Hospital Hand Clinic took place earlier than had been planned, namely on 6 September 2011. This was because the plaintiff had fallen from a swing on 28 August 2011. His visit to Campbelltown Hospital on that same day has already been described at paragraphs [10] to [15] above. The nursing notes made on the occasion of the plaintiff's visit to the Liverpool Hospital Hand Clinic on 6 September 2011 state: "6/9/11 NURSING . 1550hrs. patient attend plastic Clinic with grandmother. patient S/B plastic Reg asked to re-dress patient (L) thumb and (L) middle finger. Patient wound (L) thumb smelly + sloughly, wound clean with N/saline and re-dress with mepitel + guaze (sic) + co-hesive. patient state very painful to touch and patient crying then laughing. Patient (L) middle finger clean with N/saline and re-dress with jelosed (sic) and guaze (sic) and co-hesive wound clean + dry patient state is not painful on this finger. Noted when patient arrive to clinic. Pt did not wear splint spiltn patient grand mother state, patient had dressing change at Campbelltown hospital, and patient did not want to wear the spiltn splint and it at home. Inform physio about patient did not have a splint spiltn on. (Signature)(R)" [Exhibit "1", Tab 1, p 36]
It was plain from the content of the above note, that on 6 September 2011, which was two weeks post-operatively, the Hand Clinic staff at Liverpool Hospital were aware the condition of the plaintiff's left thumb included observations that it was smelly and "sloughly". At that time, other than contused skin, the tissues of the plaintiff's left thumb were not further described in terms of whether or not they were thought to be infected or ischaemic.
The plaintiff's third recorded visit to the Liverpool Hospital Hand Clinic was on 13 September 2011. This took place three weeks post-operatively. The nursing notes made on that occasion state: "13/9/11 NURSING . 1430hrs. patient attend plastic Clinic with father. patient S/B plastic Doctor, Plastic doctor asked to re-dress patient post surgery wound on (L) thumb and (L) middle finger. Wound on (L) middle fngr clean + dry. Re-dress with guaze (sic) + co-hesive. Patient state finger very painful + smelly. Once the dressing come of (sic) (L) thumb, patient state wound look bad and smelly". Patient (L) thumb wound smelly ++, noted. heavy exudate, + reo a black area increased + cavity noted, on (L) thumb. It was not there about 3 week again (sic for ago). Inform Plastic Reg. Plastic Reg stated noticed as well. Informed patient going for surgery on Thursday, The other nurse also call per-op and admissions to find out the time when patient surgery was on. But we could not contact either wards. Inform patient father to contact the ward himself. Number given to patient to call. Patient (L) thumb clean with N/saline re-dress with jelosed (sic) and guaze (sic) and co-hesive and splint back on. Patient left the Clinic. (Signature)(RM)" [Exhibit "1", Tab 1, p 36]
It is plain from the notes of the 13 September 2011 visit to the Hand Clinic that the plaintiff's left thumb was well recognised as being affected by gangrene, and that surgery was being planned for the following Tuesday, which was 15 September 2011. The nature of that gangrene, namely whether it was wet gangrene or dry gangrene, requires analysis later in these reasons.
It is against the background of that series of notes relating to the plaintiff's post-operative Hand Clinic visits that the contentious entry in the nursing notes, purportedly made on 30 September 2011, arises for consideration as to the accuracy of the date which that note bears.
That Hand Clinic nursing note purportedly dated 30 September 2011, states: "30/9/11 NURSING . 1430hrs. patient attend plastic Clinic S/B plastic Doctor. Post surgery on (L) thumb and (L) middle finger. Wound on (L) thumb black, and very painful to touch. Patient screaming and crying while nursing staff trying to wash and change dressing. Father with patient while dressing being change. Patient biting on father hard while we changing dressing Patient (L) thumb wound sloughly ++, smelly, minimum exduate (sic), being (sic), discharge. Patient (L) thumb clean + soaked with N/saline, re-dress with Mepitel, guaze (sic) and co-hesive bangages. (Signature) (R) OPD" [Emphasis added] [Exhibit "1", Tab 1, p 37]
Significantly, the note cited in the immediately preceding paragraph refers to the plaintiff's wound, and it does not refer to an amputation stump. It refers to the plaintiff's thumb being black, smelly and sloughy despite the indisputable fact that the necrotic tissue comprising the tip of the plaintiff's left thumb had been amputated 15 days earlier than the date on which this note was purportedly made, as is plain from the Liverpool Hospital discharge summary: Exhibit "1", Tab 1, p 22.
By reason of those facts, and the fact the plaintiff had no further operation after 15 September 2011 to debride necrotic tissue, I consider the 30 September 2011 entry to be an erroneous entry, which should be read as being referrable to another date which cannot be readily identified. That note clearly relates to a time during which the plaintiff still had the top of his left thumb in situ, most probably being a date some time between 6 September 2011 and 13 September 2011, according to the other contemporaneously documented visits to the Hand Clinic, and the historical details and recorded findings set out in the respective notes.

[16]

Mrs Gould

I consider that the factual evidence given by Mrs Gould, a retired juvenile justice worker, was credible and reliable. An aspect of her evidence included the detail of an implied criticism of Liverpool Hospital, in respect of remarks she delivered during a challenging confrontation with Dr Geraghty at that hospital on the evening of 22 August 2011.
The effect of that challenge raised the question as to why the plaintiff's need for surgery on the night of his admission had not been prioritised because of its urgent nature at the time. Given that Mrs Gould was in a position of loco parentis at the time, I do not regard that emotionally charged and pointed aspect of her evidence as being adverse to her credit as a witness, or to be otherwise adverse to the reliability of her evidence: T16.24 - T16.27. She was entitled to stridently hold the opinion she had expressed.
The only matter of significant challenge made to the evidence of Mrs Gould was as to the timing of a post-operative telephone call she had made to Liverpool Hospital to inform a hospital staff member of some further and more accurate historical details of the circumstances of the plaintiff's injury.
In that regard, the defendant's challenge to Mrs Gould's evidence was to the effect that she could possibly have confused the date of that telephone call. The substance of the challenge to her evidence was that, whereas she claimed to have made the call on 24 August 2011, the defendant suggested the call was made "a few days later", on 30 August 2011, an assertion, which she denied: T31.29 - T31.49. The hospital notes contain an after-the-event account of the call being made on 30 August 2011, whereas in contrast Mrs Gould stated she had rung the hospital on the same date as the plaintiff's discharge from hospital, on 24 August 2011: T31.19 - T31.25.
In considering that evidence, it is pertinent to note that the hospital notes which relate to this topic were not made contemporaneously to the telephone call in question. The note in question was made two weeks after the event, at 16:45 hours on 15 September 2011. It was made by a social worker who had earlier received Mrs Gould's call on this subject. That note refers to the conversation in question as actually having occurred several weeks earlier at approximately 17:00 hours on Monday 30 August 2011: Exhibit "1", Tab 1, pp 117 and 167.
A cross-reference to the Liverpool Hospital notes concerning the plaintiff's attendance there on 30 August 2011, reveals that at 16:40 hours on that day the plaintiff was having an extensive physiotherapy attendance at that hospital, at which time his wound was dressed and a spica splint was applied: Exhibit "1", Tab 1, pp 32 - 31, pp 69 - 70. It is improbable that at the age of 8 years, the plaintiff had attended at the hospital as an out-patient without an accompanying adult, but reference to the notes of that date throws no light on this question: Exhibit "1", Tab 1, pp 69 - 70. The evidence does not establish whether or not an adult was present, or whether that adult was Mrs Gould. If she was in attendance, it seems odd that, whilst at the hospital, she would telephone the hospital.
The tender bundles did not contain any contemporaneously recorded note of a 17:00 hours conversation with a Liverpool Hospital Social Worker on 30 August 2011. This may be because the 30 August 2011 notation may be incorrect. Support for such a conclusion comes from another confounding part of the records, in which a social worker is identified as having made a note on 5 September 2011, to the effect that Mrs Gould had rung the hospital on 29 August 2011, to advise that at the time of his injury, the plaintiff had been playing in a storm water drain: Exhibit "1", Tab 1, p 75. The defendant did not put to Mrs Gould any suggestion that she might have made that telephone call on 29 August 2011, as suggested in a note made by another social worker in an apparently separate note: Exhibit "1", Tab 1, p 75.
There could be a number of possible explanations for such date variations, including that the notes in question were made retrospectively, and were made from recollection, whether accurate or not. Furthermore, there may have been more than one call made to the hospital. It is unnecessary to further review and consider the various possibilities. In my view, as nothing of significance turns on that matter, it is not necessary to resolve the question, and the subject matter of those discrepancies in the notes should not be seen to adversely reflect upon Mrs Gould's credit or her reliability as a witness. I considered Mrs Gould to be a credible witness whose evidence could be relied upon in determining factual matters in dispute.

[19]

Dr Geraghty

There was no challenge to the credibility or the reliability of the evidence contained in the statement of Dr Geraghty, which served to not only describe the events, but to also transcribe his handwritten notes, which in parts, were otherwise difficult to decipher.
Dr Geraghty's statement, at paragraph 18, described the plaintiff's hand as having been washed and dressed three times before the initial surgery was carried out: Exhibit "1", Tab 9, p 505. This evidence was relevant to the question of whether or not the plaintiff's wound should have been considered as being either clean or contaminated, and that question was in turn relevant to whether the delay in performing a surgical irrigation washout under general anaesthetic, was justified in the circumstances, according to the expected standard of care.
For reasons that will be set out in the appropriate context, I do not fully accept Dr Geraghty's historical reconstruction of the events that culminated in his conclusion that the plaintiff's hand had been washed and dressed three times before the initial surgery was performed. This is so, notwithstanding that by paragraphs 12 - 16 of the defendant's supplementary submissions forwarded on 21 October 2016, it was suggested that Dr Geraghty's evidence on that point should be accepted as it was admitted without objection, and because it was not challenged. That submitted conclusion does not necessarily apply as that evidence must also be assessed in light of other relevant evidence on the point at issue, and which must be reconciled.
The question of whether the cited aspect of Dr Geraghty's statement was reliable became evident upon analysis. This resulted in the proceedings being relisted on 19 October 2016, 7 and 16 November 2016, to enable submissions to be directed at that and other questions that had arisen on analysis. On those occasions, there was no application by the defendant to re-open its case to seek to clarify the identified factual question so raised. That question therefore remains to be analysed in the appropriate chronological context in these reasons.

[23]

Relevant legislation

The question of whether the defendant was negligent as alleged, and whether such negligence caused the harm suffered by the plaintiff, stands to be determined according to the requirements of Pt 1A, s 5B, s 5C and s 5D of the CL Act.
Section 5B of that Act provides as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm."
Section 5C of that Act provides as follows: "5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.
The issue of causation must be considered according to the requirements of s 5D of the CL Act, which provides as follows: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation" ), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability" ). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."
The defendant seeks to rely on a defence to the plaintiff's claim based on s 5O of the CL Act, which provides as follows: "5O Standard of care for professionals (1) A person practising a profession ("a professional") does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. (2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational. (3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section. (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted."

[24]

Issues identified

On reviewing the pleadings, the evidence and the submissions of the parties, and the factual conclusions that arise from the consideration of the evidence, the issues for determination in these proceedings are conveniently identified to be as follows: Issue 1 - The identification of the relevant risk of harm posed to the plaintiff at the relevant times those health care professionals at Liverpool Hospital who were responsible for treating the plaintiff were planning and implementing the treatment that would be given to him. My consideration of that issue, and the related findings, appears between paragraphs [468] to [477] of my reasons; Issue 2 - The identification of the nature, scope and content of the duty of care the defendant owed to the plaintiff at the various times of relevance in the course of the defendant's management and treatment of the plaintiff's injuries and their sequelae, both as an in-patient and an out-patient. My consideration of that issue, and the related findings, appears between paragraphs [478] to [488] of my reasons; Issue 3 - Whether, in relation to: (a) the period between the plaintiff's admission to Liverpool Hospital and when he was operated upon; (b) the post-operative period until and including at discharge from hospital; and (c) the period during which the plaintiff was under the post-operative care of the Liverpool Hospital Hand Clinic, there was a relevant breach of the duty of care owed to the plaintiff by hospital staff. My consideration of those matters, and the related findings, appears between paragraphs [489] to [579] of my reasons; Issue 4 - Whether, according to the requirements of s 5D of the CL Act, the harm claimed to have been suffered by the plaintiff, was caused by a relevant breach of duty of care owed to the plaintiff. My consideration of that issue, and the related findings, appears between paragraphs [580] to [607] of my reasons; Issue 5 - Whether the defendant has made good its claimed defence that it should not be found liable to the plaintiff for the alleged negligence, because the medical treatment that was provided to him at Liverpool Hospital was in accordance with what was widely accepted in Australia by peer professional opinion as being competent professional practice: s 5O of the CL Act. My consideration of that issue, and the related findings, appears between paragraphs [608] to [673] of my reasons; Issue 6 - Whether the defendant has established its claim that no damages should be awarded to the plaintiff because of a claimed novus actus interveniens, on account of an alleged non-compliance with orders at discharge, for the post-operative care of the plaintiff. My consideration of that issue, and the related findings, appears between paragraphs [674] to [693] of my reasons; Issue 7 - The assessment of the plaintiff's claim for damages. My consideration of that issue, and the related sub-issues and findings, appears between paragraphs [694] to [720] of my reasons.
Relevant to the issues concerning the nature and the content of the duty of care owed, the essential questions, and the related factual matters that arise for consideration are, first, whether Liverpool Hospital had exercised reasonable skill and care in providing the plaintiff with a timely admission to an operating theatre for the planned procedure of wound irrigation, washout and debridement under general anaesthetic, irrespective of whether definitive treatment for reducing and fixing the plaintiff's fractures was required on the evening of 22 August 2011, and secondly, whether, before and after the plaintiff had surgery performed on his injured left thumb, Liverpool Hospital staff had exercised reasonable skill and care concerning choice of the appropriate treatment and antibiotic regime that was considered to be reasonable in the circumstances, and prophylactic against the risk of wound infection.
The factual considerations relevant to the first question identified in paragraph [93] above include: Liverpool Hospital was a major tertiary trauma centre equipped with 15 operating theatres; an alternative procedure comprising wound washout under a local anaesthetic or nerve block was not a reasonable option; an appropriately skilled registrar under the supervision of a consultant hand surgeon was available to undertake the described procedure; the contemporaneous surgical assessment was that there was a low threshold for performing the identified procedure; based on that assessment, the surgical decision had been made for the required procedure to be carried out promptly on the evening of the plaintiff's admission; the subsequent decision to delay carrying out the described procedure on the plaintiff was determined by administrative considerations, and not on the basis of any contemporaneously identified medical or surgical reasoning process that had weighed or considered the implications of a consequential delay in arranging transfer of the plaintiff to an operating theatre, or pursuing other possible treatment alternatives.
The factual considerations relevant to the second question identified in paragraph [93] above include: the plaintiff's young age of 8 years; the seriousness of the presenting injury in terms of the potential risk of harm from inadequate antibiotic prophylaxis when assessed against the possibility of wound contamination and the related risk of infection; the delayed timing of wound treatment, irrigation, washout and debridement when considered from the perspective of the likely historical timing of injury, where the actual time of the injury was not known; the emergent further delay that occurred on the evening of 22 August 2011; the limited background information about the presenting history of the circumstances of the injury, where that information had been assessed as being vague, inconsistent, and was apparently unverifiable by the input of any reliable adult witnesses, and where the presenting history of the underlying injury significantly involved the plaintiff having fallen forward onto wet cement or wet concrete, thereby injuring his hand;
Relevant to the issue of causation, apart from considering the likely effect of timely administration of appropriate antibiotics as was contended on behalf of the plaintiff, the essential underlying question to be determined is whether, on the balance of probabilities, the post-operative black appearance of the distal phalanx of the plaintiff's left thumb, which was identified by Dr Sathasivam at the Hand Clinic visit on 30 August 2011 to be dry gangrene, was due to an infective process involving osteomyelitis, as was analysed by Dr Raftos, or whether it was consequent upon a post-injury ischaemic loss of blood supply to the thumb, thus causing the affected part to become gangrenous, and which was later colonised by infective organisms, as was asserted by Dr Gatus.
Before addressing the identified issues, and the identified consequential questions that arise from those issues, I turn to a consideration of the facts in more detail than as set out in the brief background appearing at paragraphs [2] - [20] above.

[27]

(2) Injury circumstances

The precise time that the plaintiff's injury occurred on the afternoon of 22 August 2011 continues to remain unknown as it has not been identified in the evidence.
On the state of the evidence, the best estimate of the time of the plaintiff's injury occurring was at some time presumed to be shortly before 17:30 hours on 22 August 2011: Exhibit "1", Tab 1, p 75. For the purposes of analysis, Dr Raftos and Dr Gatus were prepared to estimate the timing of the plaintiff's injury as occurring at about 17:00 hours on 22 August 2011: Exhibit "A", p 212; Exhibit "1", Tab 4, p 419. That said, there is no reliable foundation from within the evidence to support such a precise assumption. The assumed timing of the plaintiff's injury therefore remains as unproven speculation.
When the plaintiff was first examined at Campbelltown Hospital at 17:51 hours (Exhibit "1", Tab 1, p 383), it was recorded that he initially gave the account that he had fallen on wet cement, and that he had landed on his hand and injured his left thumb and left middle finger. He gave that initial account to his family, and to the hospital staff. There was not much explanatory detail or description recorded as to the location of the cement, or any other related environmental factors, but the impression gained from the evidence was that it involved a path or walkway of some kind. The clinical notes do not record whether the mechanism or circumstances of the injury were explored in any further detail concerning its state of wetness. The various versions recorded in the notes will be identified in the course of considering the issues.
The Liverpool Hospital notes record that from an early stage, the hospital staff there had entertained some doubt about the vagueness and the correctness of the plaintiff's initial historical account of how he came to be injured. Dr Geraghty described the plaintiff's account as being inconsistent with the type of injury that was found on examination: Exhibit "1", Tab 1, p 123. The Campbelltown Hospital notes were available to staff at Liverpool Hospital when the plaintiff was assessed at Liverpool Hospital.
The hospital notes show that ultimately, the historical inconsistency as to the circumstances of the plaintiff's injury, and a related concern, was satisfactorily investigated from the perspective of the hospital's obligations regarding child protection issues. There were no untoward findings or consequences arising from that investigation. The hospital staff proceeded upon the basis that the plaintiff's presenting history was correct. Accordingly, the liability analysis in these reasons must proceed upon the same basis: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [124].
However, ultimately, the plaintiff's initial account of how he came to be injured was acknowledged by him to have been incorrect. It later emerged that the plaintiff had in fact injured himself when, whilst engaged in throwing large rocks into a stormwater drain, he had slipped, and that a large rock then fell and struck his left hand whilst he was playing near that drain. The explanation for the differing accounts of the events was said to be that, at the time, at the age of 8 years, he was apprehensive that he might find himself in trouble for doing so, as he was not allowed to engage in that activity. From that perspective, given the plaintiff's age at the time, his initially false account of the circumstances was therefore understandable, and I consider that this should not form the basis for an adverse credit finding. In the circumstances, the liability analysis must proceed upon the basis of the assumed truthfulness of the accounts referred to in the contemporaneous hospital records.
After the plaintiff's discharge from hospital, he ultimately gave his grandmother a truthful account of the events, and she in turn then related it to hospital staff: Exhibit "1", Tab 1, pp 75, 167. In my view, nothing of any adverse credit significance turns on these facts in assessing the plaintiff's conduct at the age of 8 years.
An ultimately more precise summary of the actual mechanism and the circumstances of the plaintiff's injury, which was not challenged, conveniently appears in the first expert report of Dr Mansour, as follows: "On 22nd August 2011, when he was 8 years of age he was playing with his friends in a canal drain. He was throwing huge boulders into the water when he slipped on the slime on the rocks and fell backwards. The boulder he had been holding in his hand came down and crushed his left thumb." [Exhibit "A", p 176]
Absent any challenge to the above summary, I take that summary to be a reliably accurate account of the actual mechanism of the plaintiff's injury: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, at [70]; s 60 of the Evidence Act 1995. Whilst that factual summary cannot be taken into account on a prospective analysis concerning alleged breach of duty of care, it is nevertheless relevant in the consideration of a causation analysis: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [127].
In these proceedings, having regard to the divergent expert opinions of Dr Raftos and Dr Gatus, the significance of the difference in the two accounts of the mechanism of injury relates to the questions about the appropriate timing of the need for treatment and surgical washout of the plaintiff's wound, and the appropriateness of the clinical choice of antibiotic regime that was deployed at Liverpool Hospital as part of the treatment for the plaintiff's injuries, and the prospective reasonableness of the clinical actions that were taken in the course of those and the related events.

[29]

(4) Treatment at Campbelltown Hospital

When Mrs Gould first saw the injured condition of the plaintiff's hand she lightly wrapped the hand in a towel and she took him straight to the Campbelltown Hospital Emergency Department: T14.30 - T14.40. The time taken for that journey to the hospital also remains undescribed in the evidence. They arrived at the hospital at about or shortly before 17:51 hours: T14.30 - T14.40; Exhibit "1", Tab 2, p 383. A triage nurse then attended upon the plaintiff in order to assess him almost immediately at 17:54 hours (Exhibit "1", Tab 2, p 385), and the plaintiff then remained at that hospital for a further couple of hours: T14.46; T15.30.
The Campbelltown Hospital notes do not record any account or estimate of the actual time of the occurrence of the plaintiff's injury. There is no evidence as to whether or not that question was explored, either with him, or with any of his family members whilst at that Hospital. Those hospital notes do not record any assumptions or enquiries made in that regard.
At 18:01 hours on 22 August 2011, the x-ray taken of the plaintiff's left hand at Campbelltown Hospital, was reported upon as follows: "There is extensive comminuted fracture through the distal proximal phalanx of the left thumb with separation. Associated soft tissue injury is noted. There is also an acute spiral mildly displaced fracture through the tip of the distal phalanx of the left middle finger. Associated soft tissue swelling is noted." [Exhibit "1", Tab 2, p 353]
At Campbelltown Hospital, Mrs Gould was told by staff that a transfer of the plaintiff to Liverpool Hospital would be required because at that time, Campbelltown Hospital did not have a hand surgeon available: T15.36. That inter-hospital transfer of the plaintiff was achieved by ambulance: T42.48 - T43.7. The Campbelltown Hospital notes do not record the actual time at which the plaintiff was discharged from that hospital: Exhibit "1", Tab 2, p 383.
The Campbelltown Hospital notes record the effect of a telephone consultation between the doctors in the respective Emergency Departments of Campbelltown Hospital and Liverpool Hospital. The records do not indicate the name of the registrar at Liverpool Hospital who took part in that consultation process. In that regard, the registrar from Liverpool Hospital had advised the Campbelltown Hospital staff that intravenous morphine and antibiotics should be administered to the plaintiff, to be then followed by an urgent transfer to Liverpool Hospital for further management. The records show that advice had been followed, and that the plaintiff had been given intravenous flucloxacillin 125mg: Exhibit "1", p 337. The evidence describes that antibiotic (as well as cephazolin and ciprofloxacin), as being generally inactive against infective organisms comprising anaerobic bacteria: Exhibit "1", Tab 5, p 479. At the time flucloxacillin was given, the organisms to which the plaintiff had been exposed were not known.
As a consequence of the difficult to follow state in which the copies of medical records were tendered, and due to the need, for the purposes of this case, to analyse the detail of the unfolding events in a prospective manner, it became necessary to try and achieve a series of timed working chronologies, initially, of the events occurring at Campbelltown Hospital, and then of subsequent events at both Liverpool Hospital and later, at Campbelltown Hospital, to seek to follow the events that occurred concerning the assessment and the treatment of the plaintiff. Those chronologies will aid the analysis of further events and the related arguments advanced by the parties.

[30]

(5) Chronology of treatment at Campbelltown Hospital

The clinical notes concerning the plaintiff's initial admission to Campbelltown Hospital reveal the following 15 identified timed notations, here set out in chronological order, regarding the plaintiff's admission there on 22 August 2011: 1. At 17:51 hours the plaintiff presented to the hospital: Exhibit "1", Tab 2, p 383; 2. At 17:54 hours the plaintiff was triaged: Exhibit "1", Tab 2, p 385; 3. At 18:00 hours the plaintiff was given IV Fentanyl and Painstop: Exhibit "1", Tab 2, p 395; 4. At 18:01 hours the plaintiff's left hand was x-rayed, as cited at paragraph [114] above; 5. At 18:15 hours a paediatric emergency department flowchart protocol was commenced with the recording of the plaintiff's particulars, and very little else: Exhibit "1", Tab 2, p 387; 6. Between 18:15 hours and 19:30 hours on 22 August 2011, the plaintiff's vital signs were recorded by entries in a chart at 18:15, 18:29; 18:40, 18:50 and 19:30 hours: Exhibit "1", Tab 2, p 389; 7. At 18:20 hours, the nursing notes described the plaintiff's injury as having been due to a trip and fall on wet cement, in which he landed on his left hand, with his left thumb and fingers presenting as swollen. After Fentanyl and "pain stop" were given, an x-ray of the plaintiff's injured thumb was planned: Exhibit "1", Tab 2, p 397; 8. At 18:30 hours, the plaintiff was given IV Fentanyl: Exhibit "1", Tab 2, p 395; 9. At 18:30 hours, EMLA (eutectic mixture of local anaesthetics) was applied topically to the plaintiff's wounds: Exhibit "1", Tab 2, p 395; 10. At 18:40 hours a neurovascular observations chart recorded a single timed entry which summarised the plaintiff's left hand condition as being normal in colour, warm, having a strong pulse, showing a capillary refill at less than 3 seconds, having moderate oedema, with evident ooze/blood loss, and with pain being described as severe, rated as being 2 on a scale of 10: Exhibit "1", Tab 2, p 401. Those notes did not record any suggestion of a vascular compromise to the blood supply to the plaintiff's left thumb; 11. At 18:40 hours, the progress notes record EMLA was applied to the "R(sic) hand". At that time, blood collection was awaited, and the plaintiff was refusing to allow staff to touch his injured hand: Exhibit "1", Tab 2, p 397. In my view, this latter notation was of some significance to the assessment of the factual correctness of part of Dr Geraghty's statement of evidence; 12. At 18:50 hours, a further dose of Fentanyl was given, and at that time it was noted that an x-ray had revealed left thumb fractures: Exhibit "1", Tab 2, p 397. 13. At 19:15 hours, the plaintiff was given an intravenous dose of the antibiotic flucloxacillin, 125mg, together with 2mg of morphine: Exhibit "1", p 395. The context of that treatment was a prior discussion with a doctor on the staff at Liverpool Hospital. At the time this antibiotic was given, about one-and-a-quarter hours had passed since the plaintiff's presentation to Campbelltown Hospital, and the time from when he was injured, remained unrecorded; 14. At 19:24 hours, the progress notes recorded that the administration of morphine and flucloxacillin had been attended to as prescribed: Exhibit "1", Tab 2, p 397; 15. At 19:30 hours, the nursing progress notes recorded that the plaintiff was scheduled for a transfer to Liverpool Hospital. At that time, a further 2mg of IV morphine had been given, the wound had been dressed by a nurse with saline soaked gauze "as requested by doctor", and a bandage had been applied: Exhibit "1", Tab 2, p 397. There was no documentary evidence within the Campbelltown Hospital notes to suggest that the wound had either been washed, or washed out, or dressed, or further medically investigated or treated, such as with povidone iodine antiseptic, at any other time whilst the plaintiff was still at that hospital. This too is of some significance to the assessment of the factual correctness of part of Dr Geraghty's statement of evidence in which he suggested the plaintiff had received wound washouts in hospital before surgery had been undertaken on 23 August 2011.

[31]

(6) Transfer and treatment at Liverpool Hospital

The plaintiff arrived at Liverpool Hospital by ambulance at about 20:05 hours on 22 August 2011, which was two hours and 14 minutes after having first presented at Campbelltown Hospital: Exhibit "1", Tab 1, pp 247 and 251. He was triaged at 20:12 hours: Exhibit "1", Tab 1, p 251. Therefore, on analysis, by reference to the Campbelltown Hospital notes, and by reference to the evidence of Mr Gould, by the time the plaintiff was seen at Liverpool Hospital, a period of at least 2.5 hours and probably more, had passed, since the plaintiff's injury had occurred.
The Liverpool Hospital notes make no reference to the time interval from which the plaintiff was injured, or the approximate time at which the plaintiff was injured. Those notes do not contain anything to suggest that an attempt had been made to calculate or to discern an estimated time of injury. There is no evidence of a question ever having being asked along those lines at any stage before the plaintiff was operated upon. It is possible that the issue was considered by hospital staff but not recorded. The state of the evidence does not permit any non-speculative reasoned inferences to be drawn to enable that question to be resolved. Significantly, the position remains, that at all times whilst in hospital, the actual time of the plaintiff's injury remained unknown to those responsible for planning his treatment.
At Liverpool Hospital, Mr Gould was informed that his son was to have an operation later on the evening of his admission: T43.44. Mr Gould signed the consent form for the operation of "Exploration washout/left thumb/middle finger +/- K-wire open reduction internal fixation". The writing space provided on the form to record the timing of that consent was not filled out. Mr Gould was later informed that the foreshadowed operation had been postponed until the next morning. The operation was ultimately carried out on the plaintiff on the next day: T44.8 - T44.20.
At Liverpool Hospital, on the evening in question, Mrs Gould was initially told by the attending doctor in the Emergency Department, Dr Geraghty, that the plaintiff was going to have an operation on his thumb that night: T15.47; T16.2. It appears that operation was scheduled to take place between 11.00pm and 11.30pm that evening, however it did not proceed on that evening because two other trauma cases had come in, and those cases were then assigned a priority, which meant they took precedence over the plaintiff's treatment: T16.10 - T16.27.
In her evidence, Mrs Gould outlined the terms of a challenge about the plaintiff's care, which she had directed to Dr Geraghty at the time of the postponement of the plaintiff's operation. This was in the following terms: "Q. Did anyone come and tell you why the surgery wasn't going to occur at that time? A. It was, it would have been that Dr Geraghty that came and said to me, "Robert won't be having surgery tonight because there's been a trauma come in and they take priority." And I looked at him and said, "What? So an eight year old with a bone sticking out of his thumb, blood coming out of it and him in pain is not a trauma? You're kidding." " [Emphasis added] [T16.21 - T16.27]
Mrs Gould's question, although rhetorical in its nature, was nevertheless a reasonable one requiring consideration. The evidence of Mrs Gould concerning the terms of her cited comment, which was understandable given her stated concern, was not challenged in cross-examination, nor was it contradicted by anything from within the tendered statement of Dr Geraghty, or by other evidence. There is no evidence to suggest that anyone at Liverpool Hospital was at that time addressing the question of how many hours, or how many estimated hours, had passed since the time, or the approximate time, when the plaintiff's injury had occurred.
Mrs Gould was asked whether, during the plaintiff's time at Liverpool Hospital, Dr Geraghty had said something to her about the practical effect of the plaintiff's injury. The specific matter put to her in that regard was in the following terms: "From the point of view of the thumb, it is a significant injury. The bones are in several pieces and it also involves joints. When a fracture like this occurs, the joint function will never be the same again, it doesn't matter what surgery you do, it will not function in the same way." [T17.28 - T17.31]
Mrs Gould's response to the question, which put Dr Geraghty's account of the conversation, was that to her knowledge, this had not been said to her: T17.41.
In considering this question, and the evidence of Mrs Gould as cited in the preceding paragraphs, I find it to be more probable than not, that Dr Geraghty in fact gave Mrs Gould an explanation to that effect. The fact that she did not recall it could be explained by the effect of her emotions which were likely to be at play at the time. However, the statement attributed to Dr Geraghty, as cited in paragraph [126] above, which was based on his usual practice rather than his actual recollection, is of limited utility as an opinion on the issue of causation of the plaintiff's damage, but it is of some relevance to the clinical thinking of the doctors who were responsible for the plaintiff's care and injury management at that time.
This is a matter that will form part of the consideration of whether or not there was a relevant breach of the duty of care owed to the plaintiff. It was a relative statement, and without more, it is of limited utility in assessing the causation consequences of the plaintiff's initial injury.
For the same reasons referred to at paragraph [118] above, the detail of the timing within the chronology of assessment and treatment events concerning the plaintiff whilst at Liverpool Hospital, needs to be set out as an aide to later analysis of the issues calling for decision.

[32]

(7) Chronology of medical treatment at Liverpool Hospital

After the plaintiff's admission to Liverpool Hospital, the following 29 identified timed events were recorded according to the following chronology: 1. At 20:05 hours on 22 August 2011, the plaintiff presented at Liverpool Hospital and he was registered as a patient: Exhibit "1", Tab 1, pp 247 & 251; 2. At 20:12 hours, the plaintiff was triaged: Exhibit "1", Tab 1, p 251; 3. At 20:20 hours, the nursing progress notes of Liverpool Hospital recorded the immediate plan was for analgesia and a plastics review. The medication history from Campbelltown Hospital was noted: Exhibit "1", Tab 1, p 257; 4. At 20:20 hours, a paediatric emergency department flowchart was established: Exhibit "1", Tab 1, pp 297 - 298; 5. At 20:45 hours, the nursing clinical notes recorded that a plastics review of the plaintiff was in progress at that time: Exhibit "1", Tab 1, p 257. That review established that the plaintiff had been fasting since 14:00 hours. The purpose of the note to that effect was obviously to confirm that the contemplated surgery could proceed; 6. At 20:55 hours, it was recorded that the plaintiff had been seen by Dr Geraghty, in his capacity as the hand surgery registrar at Liverpool Hospital, after the plaintiff had been transferred from Campbelltown Hospital: Exhibit "1", Tab 1, pp 253 - 255. At that time, the history was described as being vague, and involving a fall onto wet concrete: Exhibit "1", Tab 1, p 255. On examination the thumb was seen as presenting with volar displacement and a pulp injury to the distal phalanx, a nail bed injury, but normal capillary return. An oblique fracture of the proximal phalanx was noted. The notes of Dr Geraghty are difficult to read: Exhibit "1", Tab 1, pp 255 - 256. Dr Geraghty's statement sets out a transcription of parts of his handwritten notes of his assessment at either 20:45 or 20:55 hours. The handwriting is difficult to interpret: Exhibit "1", Tab 1, p 255; Exhibit "1", Tab 9, pp 501 - 502, par 9; 7. At 21:30 hours, the nursing clinical notes record that the plaintiff's hand had been dressed with crepe bandage as ordered by the medical officer: Exhibit "1", Tab 1, p 257. The plan was for an operation to be performed that night, as the next case for the operating theatre: Exhibit "1", Tab 1, p 253; T15.47; T16.2; T16.10 - T16.27; T88.40. There is no evidence that on this occasion, or on any prior occasion, the plaintiff's left thumb wound had been irrigated or had been washed out. This is also a matter of significance to the assessment of part of the content of Dr Geraghty's statement of evidence in which he suggests that the plaintiff's wound had been washed out before surgery was carried out; 8. At 22:30 hours, Dr Geraghty recorded that on removal of the dressing, capillary return was observed to be present in the affected digit. At that time, a course of observation was prescribed. There was no recorded suggestion of a vascular compromise or process of ischaemia involving the blood supply to the plaintiff's injured thumb. At that time, it was also noted that the operating theatre, or theatres, were busy, and after discussion with Dr Scott, at around that time, it was noted that the operation planned for the plaintiff that night was then re-scheduled, following which it was planned to take place the following day: Exhibit "1", Tab 1, p 257; 9. On the evening of 22 August 2011, between 23:00 and 00:30 hours on the morning of 23 August 2011, the plaintiff's condition was progressively monitored before the re-scheduled surgery: Exhibit "1", Tab 1, pp 258 - 259; 10. At 23:00 hours on 22 August 2011, the plaintiff was "reviewed again by plastics", a dressing was re-applied, and an anti-emetic was given for nausea, pending the planned operation: Exhibit "1", Tab 1, p 258. Although there is evidence the plaintiff's wound was re-dressed, there is no evidence that the plaintiff's wound was irrigated or was washed out at this time, as opposed to being simply inspected and then re-dressed. It is therefore speculative to assert that it was washed or irrigated at this time; 11. At 23:55 hours on 22 August 2011, the plaintiff was given intravenous antibiotic cephazolin 500mg: Exhibit "1", Tab 1, p 284; 12. At 24:00 hours on 22 August 2011, the plaintiff was reviewed, the notes were updated pending the planned operation, and antibiotics were noted to have been given. The management plan involved the plaintiff having clear fluids until 04:00 hours: Exhibit "1", Tab 1, p 258; 13. At 00:15 hours on 23 August 2011, the plaintiff was either admitted to the ward, or at least underwent a paediatric nursing assessment at that time: Exhibit "1", Tab 1, p 247; 14. At 00:30 hours on 23 August 2011, a hand-over nursing note indicated the plaintiff was reviewed. It was again noted that the plaintiff may have clear fluids until 04:00 before the planned transfer to the operating theatre later that morning: Exhibit "1", Tab 1, p 258; 15. At an untimed examination on 23 August 2011, it was noted that the plaintiff was to remain fasted for transfer to the operating theatre that morning: Exhibit "1", Tab 1, p 259; 16. At 08:00 hours on 23 August 2011, the plaintiff was again given intravenous cephazolin 500mg: Exhibit "1", Tab 1, p 284. Up until this time, which was some 12 hours after the plaintiff's presentation to Liverpool Hospital, there is no evidence that the plaintiff's wound had been treated by an application of an antiseptic, such as povidone iodine solution, as was raised by the unchallenged component of the evidence of Dr Raftos: Exhibit "A", p 211, or p 9 of his first report; 17. At 08:35 hours on 23 August 2011, the notes record that the plaintiff was transferred to the operating theatre where Dr Scott carried out the surgical procedure described as an exploration/washout of the left thumb with the insertion of a K-wire: Exhibit "1", p 259. In fact 2 K-wires were inserted: Exhibit "1", Tab 1, p 269. Nothing turns on that mis-description; 18. At 11:30 hours on 23 August 2011, the plaintiff was returned to the ward to recuperate from the performed procedure: Exhibit "1", Tab 1, p 259; 19. At 12:30 hours on 23 August 2011, which was one hour after the plaintiff was returned to the ward post-operatively, Dr Geraghty reviewed the plaintiff and noted "…inconsistency in history and type of injury…": Exhibit "1", Tab 1, p 259; 20. At 14:00 hours on 23 August 2011, the nursing progress notes recorded that the plaintiff had a feeling of pins and needles in his fingers, and had a "small amount of blood on (L) thumb dressing": Exhibit "1", Tab 1, p 260; 21. Between 00:15 hours on 23 August 2011 and 05:00 hours on 24 August 2011, a neurovascular assessment chart recording observations made of the plaintiff's left hand was maintained. Swelling was recorded, along with normal colour, normal warmth, normal movements, good sensation, and no blood loss: Exhibit "1", Tab 1, p 294. At that time, there was no recorded suggestion of a vascular compromise or an ischaemic process having occurred to the blood supply to the plaintiff's injured thumb; 22. At 16:00 hours on 23 August 2011, the plaintiff was again given 500mg of cephazolin: Exhibit "1", Tab 1, p 284; 23. At 23:55 hours on 23 August 2011, the plaintiff was again given 500mg of cephazolin: Exhibit "1", Tab 1, p 284; 24. At 08:00 hours on 24 August 2011, the plaintiff was again given intravenous cephazolin 500mg: Exhibit "1", Tab 1, p 284; 25. At 16:00 hours on 24 August 2011, the plaintiff was again given 500mg of cephazolin: Exhibit "1", Tab 1, p 284; 26. At 16:50 hours on 24 August 2011, the plaintiff was discharged from Liverpool Hospital by an intern, Dr Michelle Smigielski. There is no evidence in the notes to suggest the plaintiff's surgical wound dressing, described at sub-paragraph (20) above as having a small amount of blood on it, was changed before the plaintiff was discharged from Liverpool Hospital. It is not clear as to whom Dr Smigielski's discharge note was addressed, concerning the plaintiff's continuing care. The discharge note stated: "Summary of Progress Thank you for you (sic) ongoing care of Master Robert Gould, a 8 year old boy who presented after a fall onto concrete and had injury to left hand. He was admitted to hospital where he underwent surgery (operative report to follow) He was treated with IV antibiotics and was seen to improve clinically Plan Discharge home Continue elevation if (sic) Lt hand, keep dressings clean and dry Continue oral antibiotics - Augmentin duo forte Pt has been tolerating pain well on QID paracetamol - on dicharge (sic) continue paracetamol as per instructions on packet. Follow up in hand clinic next tuesday" [Exhibit "1", Tab 1, p 21] 1. At 16:50 hours on 24 August 2011, Dr Smigielski printed another discharge referral note, which contained different advice to the one of that same date as cited at sub-paragraph (26) above. This further discharge note, which contained the details of a scheduled appointment for the plaintiff to attend the hospital hand clinic at 01:50 pm (sic) on 30 August 2011, stated: "CONTINUED CARE RECOMMENDATION Discharge to: Home Follow Up: Outpatient Clinic Please follow up in the hand clinic next Tuesday. Please bring your discharge summary to this appointment." [Exhibit "1", Tab 1, p 23] 1. At 16:55 hours on 24 August 2011, after undergoing a number of other interviews, reviews and examinations within the hospital, the plaintiff was discharged into the care of his father, with a prescription, presumably and obviously for antibiotics: Exhibit "1", p 263; 2. On 24 August 2011, discharge from Liverpool Hospital was noted as having occurred at 16:55 hours: Exhibit "1", Tab 1, p 221;
The Liverpool Hospital discharge summary relating to the plaintiff's discharge on 24 August 2011, described the operation the plaintiff underwent as an emergency procedure to clean a wound that was described as "Clean - Contaminated", involving an open fracture of the left thumb and a nail bed repair of the left middle finger. The procedure on the thumb involved an open fracture of the interphalangeal joint with multiple fragments, requiring debridement/washout, and the insertion of 2 K-wires under image intensification guidance to stabilise the phalanx fracture: Exhibit "1", p 277. Splints and bandages were then applied. A significant point of note about the observation "Clean - Contaminated" was that it was either an intra-operative or a post-operative observation. There is no evidence to suggest that it was an observation of the plaintiff's wound that was made in the pre-operative period.
It appears that no operative specimens or microbiological samplings from the plaintiff's thumb wound were sent for pathology or microbiological examination: Exhibit "1", p 278. In his oral evidence, Dr Scott stated that in the circumstances it was not usual practice to send such specimens to pathology: T97.39 - T97.41. As a consequence, it is apparent that those responsible for prescribing post-operative antibiotics for the plaintiff had no empirical guidance as to the likely range of organisms or pathogens against which antibiotic prophylaxis was being provided to the plaintiff.
As the chronology between sub-paragraphs (1) to (28) of paragraph [131] above shows, and the Liverpool Hospital medication chart also shows, the plaintiff was prescribed intravenous cephazolin 500mg to be given 8 hourly on the evening of 22 August 2011, throughout 23 August, and until discharge on 24 August 2011. The last dose of the antibiotic cephazolin was given to the plaintiff at 16:00 hours on 24 August 2011: Exhibit "1", p 284.
Before reviewing and examining the remainder of the clinical evidence and the content of the expert evidence, it is necessary to set out some salient details that emerged from the factual descriptions within the evidence of the various medical personnel who had provided in-patient treatment to the plaintiff at Liverpool Hospital.

[33]

(8) Evidence of Dr Geraghty - plastic and hand surgery registrar

At the time of the plaintiff's admission to Liverpool Hospital, Dr Geraghty was a plastic and hand surgery registrar, and had been working at that hospital for a month. His tendered statement of evidence was in part based on some memory he had of the plaintiff, and on a review of the Liverpool Hospital notes: Exhibit "1", Tab 8, pp 501 - 517.
Dr Geraghty stated that the plaintiff was triaged at 20:12 hours and was examined by him at 20:45 hours. Dr Geraghty set out at length the terms of his usual practice for obtaining consent in such situations: Exhibit "1", Tab 8, pp 502 - 503, par 11. On the issue of alleged unreasonable delay in carrying out the required surgery, his view of the effect of what he said, was as follows: "As this is a tertiary referral centre hospital, sometimes there are a lot of very urgent cases. This means that cases which are not as high priority sometimes don't go to theatre until the urgent cases are dealt with first. People who are involved in car accidents with injuries to their heads or people who are having surgeries to their tummies will go ahead of Robert's case. This is also hospital where babies are delivered and there are times when the baby needs to come out very quickly and they take priority over most other cases. We will try and get him into surgery as soon as possible, but as I said, this is a tertiary referral centre and we are never really sure what is going to come through the door of the emergency department."
At 20:55 hours it appears that steps had been put in place for the plaintiff to be the next patient to be operated upon: Exhibit "1", Tab 1, pp 255 and 253. An hour and-a-half later, that position changed to one of postponement of the operation to the next day: Exhibit "1", Tab 1, p 257.
Paragraph 13 of the statement of Dr Geraghty states: "Following consent, I discussed the matter with Dr Scott who was the on call hand surgeon. The plan was to washout the wound in the operating room that night and then do the formal surgical treatment the following day. Robert's soft tissue envelope was severely injured and there was a chance some of the skin was so severely contused it may not have survived. We would allow this area to demarcate over the night, and it would be surgically removed the following day. I made an entry in the Hospital records as follows (page 253): "d/w Dr Scott - OT tonight for washout +/- K wire +/- ORIF - low threshold for washout tonight and definitive surgical intervention tomorrow - d/w OT/Anaesthetists - next case for operating room Plan: - Fasting from 1400 hours - Consent (grandmother) - IV abs - Elevation - dressing - jello net / cerlix / spica" " The above note appears at page 253 of Exhibit "1". It is unfortunately untimed. On one view, it could be inferred to have been timed at 20:55 hours, which is the notation at page 255 of Exhibit "1". There may be some room for doubt about that because although in pages 253 to 263 of Exhibit "1", comprising the hospital clinical progress notes, have been numbered in the sequence of page numbers 1 to 11, it appears they have been numbered 1 to 11 out of order of occurrence. This is plain when it is recognised that the above note as transcribed by Dr Geraghty, which appears at page 1 of the numbered sequence (Exhibit "1", p 253) when from its content, it should not be read as either the first or the last page in the sequence. This is an example of the challenges the hospital notes posed for analysis.
Paragraph 15 of the statement of Dr Geraghty states: "Shortly before 2230 hours, I had been informed that two category 2 cases had presented to the Hospital for emergency surgery, which meant that they required the operating rooms. A category 2 case was classified as surgery which needed to be performed within the hour. Whilst I did not record Robert's category classification, in my view having regard to my entries in the records and my vague recollection, I would classify his injury as what was known at the time as a category 4, which meant surgery within 24 hours."
At a time when it was known that the plaintiff had been fasting since 14:00 hours, the note cited in paragraph 13 of Dr Geraghty's statement, was to the effect that an operation had been planned for that night, and that the plaintiff was the next case in line for the operating room. At that time the procedure planned for that night was for a wound washout, possibly with, or without, open reduction and internal fixation of the fractures, with the possibility that the latter part, namely fixation, to possibly take place on the following day.
That proposed course could be seen to be inconsistent with Dr Geraghty's note suggesting a course of allowing "the area to demarcate overnight" with a plan for surgical removal the next day. Be that as it may, as Dr Geraghty was not cross-examined on this point, nothing should turn upon that description other than to recognise that his account provides evidence of the seriousness of the plaintiff's thumb injury, and evidence of the need for that injury to be treated promptly and appropriately, given the significant risk of thumb loss in the case of a child.
Based on Dr Geraghty's stated "vague recollection" (Statement, par 15, at Exhibit "1", Tab 8, p 504), and his review of the notes, whilst he did not record a category of urgency for the plaintiff's case, he surmised that it was a category 4, which meant surgery should be performed within 24 hours. Given Dr Geraghty's vague recollection, I consider that hindsight observation should be viewed with caution, and subject to a consideration of the expert evidence concerning the timing required for surgery.
It was only after 22:30 hours on the night in question, that the two later-arriving category 2 cases that were identified in the evidence had presented at the hospital, and it transpired that it was only then, that the decision was made to postpone the plaintiff's operation to the following morning, and this was then discussed between Dr Geraghty and Dr Scott: Exhibit "1", Tab 1, p 257.
It was in those circumstances, in which no other treatment was planned before the operation, that the plaintiff lost the opportunity for a surgical washout of his wound that night, either with or without the insertion of K-wires, with or without open reduction and internal fixation, with definitive surgery to follow on the next day: Exhibit "1", Tab 8, p 504.
In his statement at Exhibit "1", Tab 9, p 505, par 18, Dr Geraghty observed that the plaintiff already had his "wound washed and dressed three times". In my assessment, that statement requires significant qualification, as foreshadowed at paragraphs [80] - [82] and sub-paragraphs (7) and (10) of paragraph [131] above. The question that arises for consideration is whether the wound having been "washed" three times, as referred to by Dr Geraghty, was the same as "washout" in surgery. It seems that the latter procedure would have required anaesthetic, and there is no evidence this occurred pre-operatively.
The evidence discloses that whilst the plaintiff was at Campbelltown Hospital, he could not tolerate having his wounds touched: Exhibit "1", Tab 2, p 397. There is no evidence that the plaintiff was given a local anaesthetic or a nerve block at any stage thereafter so as to change that position. The expert evidence was that such a course was considered to be inappropriate in the plaintiff's situation because of the potential for vasospasm: Exhibit "1", Tab 9, p 505, par 18. In my view, the combination of circumstances described suggests that the plaintiff did not have his wounds washed three times in the sense of a washout of contaminants, contrary to that which was suggested by Dr Geraghty in his statement.
In his statement, Dr Geraghty did not say the plaintiff's wound was not contaminated. He said it "did not look grossly contaminated". That adjectival description is a significant qualification, which suggests, or at least does not exclude, some wound contamination: Exhibit "1", Tab 9, p 505, par 18. That interpretation is consistent with the contemporaneous operation record which refers to "Clean - Contaminated": Exhibit "1", Tab 1, p 277.
Dr Geraghty's statement that the plaintiff "had a number of washouts" in the Emergency Departments of both Campbelltown and Liverpool Hospitals (Exhibit "1", Tab 9, p 505, par 18) is not supported by the contemporaneous clinical notes of those hospitals, which simply record as follows: 1. At 19:30 hours on 22 August 2011, at Campbelltown Hospital, after the plaintiff had been given 2mg of IV morphine, his wound was dressed by a nurse applying a saline soaked gauze and bandage: Exhibit "1", Tab 2, p 397. There is no evidence that a doctor carried out any procedure of any kind at that time. I infer from that description the cited evidence was not a reference to a wound "washout" as was stated by Dr Geraghty; 2. At 21:30 hours on 22 August 2011, at Liverpool Hospital, the plaintiff's hand was dressed with a crepe bandage after a review had been carried out by Dr Geraghty: Exhibit "1", Tab 1, p 257, pp 255 - 256. That review did not contain any reference to a wound washout. Dr Geraghty's notes at pages 255 - 256 of Exhibit "1", as transcribed at pages 501 - 502 of Exhibit "1", make no mention of a "washout" as having taken place at that time; 3. At 22:30 hours on 22 August 2011, it appears that Dr Geraghty removed the plaintiff's dressing and tested capillary return in the affected digit: Exhibit "1", Tab 1, p 257. The wound was then re-dressed at 23:00 hours on 23 August 2011 without any record of any emergency department "washouts" of the wound, as was stated by Dr Geraghty. Although the plaintiff received painkilling medications at Campbelltown Hospital, as was noted in the records and previously referred to, there is no notation in any part of the records of wound washing or washout having occurred. I consider that if such a procedure had occurred, it would have been a matter of significance that would have been minuted or noted in the contemporaneous records.
The evidence comprising the tendered copies of the hospital records suggests that there was no pre-operative washout of the plaintiff's wound on either 22 or 23 August 2011. I have reached that conclusion on the basis of the matters outlined in paragraphs [146] - [149] above, and because there was an already documented plan for such a washout to take place in the operating theatre as the next case, at about 23:00 hours, but at 22:30 hours on 22 August 2011, that procedure was noted as having been cancelled: Exhibit "1", Tab 1, p 257.
Accordingly, notwithstanding Dr Geraghty's cited statement that the plaintiff had his wound washed out a number of times before the operation carried out on 23 August 2011, I find that comment to be unreliable. It is not supported by the contemporaneous evidence comprising the hospital records, and I am therefore not persuaded that those events occurred as were described by Dr Geraghty in his statement.
Dr Geraghty did not claim that he personally saw or participated in those three washouts which he described. I therefore conclude Dr Geraghty has wrongly assumed those washouts occurred, as is evidenced by his statement that it first occurred at Campbelltown Hospital, where he was not present, and where no contemporaneous record exists of any such procedure. In my view, Dr Geraghty's statement concerning the claim that a number of pre-operative washouts took place, is plainly incorrect, and is therefore unreliable.
On the evidence given about procedures of that kind, I consider that such washout procedures, if they had occurred, would most likely have been very painful events for the plaintiff to endure without a general anaesthetic or a nerve block, and had they occurred as claimed by Dr Geraghty, I consider that a contemporaneous record in the clinical notes would have been made of each such event, because of the significance of such interventions, and it is significant that there were no such notations contained in the records tendered. Similarly, there was no note of an antiseptic, or povidone iodine solution having been applied to the plaintiff's wounds pre-operatively.
The effect of the above analysis was drawn to the attention of the parties. No application was made by the defendant to re-open its case in order to call any evidence either from Dr Geraghty, or otherwise, to clarify that point.
As Dr Geraghty observed concerning the surgery performed on the plaintiff on the following day, it was a procedure that was described as a debridement/washout, with fixation by K-wires and sutures.
Dr Geraghty argued that the plaintiff's wound was "not obviously dirty or actively infected", despite the fact he gave it the categorisation of "Clean - Contaminated": Exhibit "1", Tab 9, p 506, par 23. This was the subject of some evidence from Dr Scott, which requires evaluation.
Dr Scott's operation report described the type of operation as being an "Emergency". That report described the plaintiff's wound classification as being "Clean - Contaminated", and the operation description included "Debridement/washout": Exhibit "1", Tab 1, p 277.
I infer from Dr Scott's cited note that the plaintiff's left thumb wound was not clean, but was contaminated to an unidentified degree, and required a surgical washout. The term "Clean - Contaminated" is an aggregation of opposite meanings, which in my assessment of the context, tends not to support the cited statement "not obviously dirty". The adjectival term not "actively infected" also leaves room for doubt, and its basis remains unexplained, especially as there had been no tests carried out to identify the presence of possible pathogens at that time, and the history of injury had been assessed as being vague. The nature and appearance of the plaintiff's thumb wound was clearly the reason why a surgical washout under general anaesthetic was planned and ultimately carried out, albeit with an unfortunately delayed timing.
Dr Geraghty argued that, as the plaintiff had been on IV antibiotics for more than 24 hours at the time of his discharge, he considered it to be an appropriate regime that he be given oral antibiotics such as Augmentin: Exhibit "1", Tab 8, p 507, par 29. Dr Geraghty's clinical thinking concerning the prescription of antibiotics was not further documented at the time. Dr Raftos was critical of that course as described by Dr Geraghty: T119.13 and following. That criticism stands to be evaluated in the course of the consideration of the conflicting expert evidence concerning which particular antibiotics were active against a range of particular potential pathogens.

[34]

(9) Evidence of Dr Scott - treating hand surgeon

Dr Scott explained that at the time Dr Geraghty had spoken to him about the plaintiff on the evening of 22 August 2011, the emergency operating list at Liverpool Hospital for that evening had not yet been booked out, and that therefore, at that time, there was still a capacity within the hospital to operate upon the plaintiff relatively quickly, and in that regard, Dr Scott stated that it would have been reasonable to perform an operation on the plaintiff on that night: T88.40.
That evidence is entirely consistent with the notes which Dr Geraghty started making at 20:55 hours on 22 August 2011 (Exhibit "1", Tab 1, p 255), where he recorded that he had a discussion with the operating theatre anaesthetist, who at around that time, had apparently confirmed that the plaintiff was to be the next case scheduled for the operating room before he was bumped off the list: Exhibit "1", Tab 1, p 253. That interpretation is confirmed by the transcription of Dr Geraghty's notes, which appears in paragraph 13 of his statement: Exhibit "1", Tab 9, p 506.
In Dr Scott's oral evidence, notwithstanding that the ultimate operation note had described the plaintiff's procedure as an emergency, he said he did not necessarily adopt that classification of the plaintiff's need for surgery on the night in question. He stated that he would classify that surgery as being urgent, but not necessarily an emergency in terms of hand surgery, although the aim was to try to attend to most open wounds as quickly as possible, depending upon what else is going on in the emergency theatre by way of priority: T88.45 - T88.50. That evidence requires evaluation in terms of whether the duty of care the defendant owed to the plaintiff had been appropriately discharged on the night in question.
In evaluating that evidence, in conjunction with the other evidence on this topic, I read that portion of Dr Scott's evidence to indicate that he was addressing the bony repair component of the hand surgery proposed for the plaintiff as something that could have waited, and he was not necessarily addressing the specific need to washout and to irrigate the wound, the latter component being a procedure for which, on the night in question, had been assigned a low threshold by Dr Geraghty, in consultation with Dr Scott: Exhibit "1", Tab 1, p 253. I take that evidence to mean that the doctors providing care to the plaintiff on the evening of 22 August 2011 had well understood that there was a recognised and pressing need for a surgical wound washout and irrigation to be performed on the plaintiff's injured hand, under general anaesthetic, in the operating room, on that evening, as soon as was practicable, subject to considerations of patient safety and wellbeing, in accordance with the duty of care owed to the plaintiff.
Dr Scott explained that the contemporaneous notes made by Dr Geraghty at 22:30 hours on 22 August 2011, were to the effect that there were two late arriving Category 2 cases that had been assigned as having a more urgent priority than the plaintiff's case, as they involved life-threatening emergencies, which by their nature, and having regard to the likely time required to deal with them, would have had the effect of delaying the plaintiff's surgery for at least 4 to 6 hours, with the result that the plaintiff's surgery would be postponed to the next day: T89.30 - T89.47. Those circumstances require further analysis in the consideration of whether or not there has been a breach of the duty of care owed.
Dr Scott explained that, based on the notes which recorded the plaintiff's anaesthetic as having started at 08:30 hours on 23 August 2011, this meant the plaintiff's operation was carried out as the first one that was performed on the emergency operating list on that morning: T92.32.
The Liverpool Hospital contemporaneous operation notes clearly described the procedure performed on the plaintiff as being an emergency: T92.42; Exhibit "1", Tab 1, p 277. In his oral evidence, Dr Scott sought to reconcile the differences in the contextual descriptors of "Emergency", as recorded in those notes at the place cited, and "urgent", on his analysis (T88.45 - T88.50), as "poorly defined", so that all non-elective bookings that went onto a waiting list would be listed as emergency cases when in reality, they may not have been true emergencies according to the prevailing classification criteria: T93.1 - T93.12.
On evaluating that evidence, I find Dr Scott's cited after-the-event collateral explanation difficult to accept, and unconvincing. This is because the contemporaneous descriptor of the operation type as an "Emergency" in the operation report was, on the evidence, including the expert evidence of Dr Raftos, and on a common sense analysis, plainly apt to the plaintiff's circumstances. In the context of the plaintiff's need for surgery, when viewed from the perspective of the risk of harm he faced if surgery was to be delayed, I prefer the explanation of the term emergency as embodied within the plain, ordinary and natural meaning of the term emergency, which connotes a need for a response involving relative immediacy.
Dr Scott described his refreshed recollection of his operative findings concerning the plaintiff's injury as follows: "… A. From my recollection of what happened afterwards and from reading the operation report and the X-ray comment by Dr Geraghty earlier, what we found was a very complex crush fracture injury around the distal joint of the thumb. There were fractures on either side of the joint, and the joint was open and exposed and, with fractures on either side, essentially the entire joint was detached from the rest of the digit, and the overlying skin, as I recall, was heavily contused and crushed. HIS HONOUR Q. Would not the bony aspects of that injury have been evident on X ray before the operation? A. No, they don't always look as bad on X-ray. If the thumb is sort of held relatively straight on the X-ray, you can tell where the breaks are, but you can't necessarily tell - well, you certainly can't tell what the overlying tissue looks like. So, yes, we would have known that there were breaks on either side of it and that's why in fact it was - I don't want to lead you all over the file again, but the original comment from Dr Geraghty was "Low threshold for wash out in theatres tonight and definitive surgical treatment tomorrow"; ie, knowing that it was a complex fracture, that we might not undertake fixation of that fracture that night." [T93.47 - T94.17]
In considering the context and meaning of that last cited answer by Dr Scott, it is clear that the procedure for a wound washout and irrigation in the operating theatre under general anaesthetic was the urgent component of the planned surgery, including an exploratory component. In addition, there was scope for a separate procedure comprising fracture fixation to be performed, or to occur at a later time, if during the exploratory component, that latter procedure was considered to be postponable.
Dr Scott referred to 2 K-wires as having been used to stabilise the plaintiff's fractures: T94.49; Exhibit "1", Tab 1, p 277. Dr Scott explained that the fact K-wires, or pins, were used to stabilise the fractures, including with sutures, was an indication of how severe the injury was, and how the injury was not suitable or optimal for rehabilitation, as later, it would take a longer time to post-operatively mobilise the tissues in order to seek to avoid scarring and stiffness: T95.20 - T95.39.
That latter opinion evidence from Dr Scott, was not the subject of a served evidentiary expert report as would ordinarily be required, absent exceptional circumstances, as contemplated by UCPR r 31.28(4)(a); UCPR R 31.27(1)(c) and UCPR Sch 7, cl 5(1)(c). The purpose of those rules is to place the party potentially affected by opinion evidence, on notice of its content: UCPR r 31.21, r 31.27, r 31.28. The consideration of whether the plaintiff would have ended up with a stiff and malfunctioning thumb in any event, cannot be definitively resolved by a process of reasoning in this judgment. This is because of the advent of the intervening thumb amputation. However, it must be acknowledged that as a consequence of the injury to the thumb, there was certainly a risk of residual thumb stiffness occurring as a complication of the original injury even if the contended treatment had been provided to the plaintiff. This is because the injury was undoubtedly severe, and because of the related repair surgery that was needed in response to that injury.
Dr Scott described the surgery that he performed on the plaintiff as "a salvage procedure" where the viability of the plaintiff's severely crushed digit was in doubt: T95.46 - T96.6. In my view, that opinion was not developed with sufficient supporting explanatory reasons that would otherwise have made it a reliable foundation for a definitive causation opinion: UCPR r 31.27(1)(c); UCPR Sch 7, cl 5(1)(c). This is particularly apparent since, at the hearing, the defendant confirmed that Dr Scott was only being called on factual matters, and he was not being called to provide opinion evidence: T78.25; T79.16; T84.34 - T85.5.
Dr Scott confirmed, from the notes, that following the initial operation, the prescription was for the plaintiff to continue to receive the antibiotic cephazolin: T97.10 - T97.30. The medication chart in the Liverpool Hospital notes showed that the last dose of cephazolin was given to the plaintiff at 16:00 hours on 24 August 2011 by intravenous catheter ("IVC"); Exhibit "1", p 284. This occurred shortly before his discharge from hospital.
The 16:40 hours entry made in the progress notes by Dr Smigielski on 24 August 2011, as I read her note, stated that, in accordance with Dr Geraghty's orders, the plaintiff was discharged from hospital on analgesia, and with a prescription for the post-operative antibiotic Augmentin, pending subsequent follow-up in the Hand Clinic. The dose of Augmentin was identified as being 22.5mg/kg BD to a maximum of 500mg BD, the plaintiff then weighing 32kgs: Exhibit "1", Tab 1, p 262.
The 16.55 hours hospital nursing discharge note for 24 August 2011 referred to the plaintiff as having been given a "script" after his IVC was removed, but there was no specific mention of a prescription for Augmentin: Exhibit "1", Tab 1, p 263. Nevertheless, the compelling inference from the notes when read as a whole is that the prescription was for the Augmentin that had been described earlier in these reasons.
A reference back to Dr Geraghty's last post-operative review of the plaintiff made no mention of a specific prescription for any antibiotics: Exhibit "1", Tab 1, p 261. The only post-operative antibiotic prescription issued by Dr Geraghty was for intravenous antibiotics on 23 August 2011: Exhibit "1", Tab 1, p 259. To understand that prescription, reference must be made to the medication chart within the hospital notes. This shows that cephazolin was prescribed, until it was ceased at 16:00 hours on 24 August 2011: Exhibit "1", Tab 1, p 284.
Dr Geraghty's notes made on 24 August 2011 (Exhibit "1", Tab 1, p 261) gave rise to a possible ambiguity within his notes due to possible handwriting issues. On one reading, the notes appear to state "Cont … obs". However, at paragraph 22 of Dr Geraghty's statement, he resolved that apparent ambiguity by interpreting the note to state "Cont … abs" as meaning continuing antibiotics, without identifying the particular antibiotic he had in mind: Exhibit "1", Tab 9, p 500.
The evidence given by Dr Scott at T97.10 - T97.30 related to page 278 of Exhibit "1", where he was led to a section dealing with "post-operative orders" and interpreted this as "To continue the antibiotics, the same antibiotics": T97.17. The antibiotics mentioned at page 278 refer to intravenous antibiotics which were ceased at 16:00 hours on 24 August 2011: Exhibit "1", Tab 1, p 284. The context of Dr Scott's order to continue intravenous antibiotics was for as long as the plaintiff was admitted to the ward, but not subsequent to the time of discharge from hospital because by then, the intravenous catheter route for such antibiotics would no longer be in situ and available: Exhibit "1", Tab 1, p 278. Therefore, the antibiotics that were ordered to "continue" on discharge, were not the same antibiotics as the plaintiff was being given as an in-patient.
Dr Scott was asked about the post-operative orders, and in particular the order for wound dressing. That evidence was as follows: "Q. What is meant by the expression "gauze wet/dry", because obviously they're opposites. A. Number 1, that's not something I would so, so I don't know why it's in there. "Gauze wet/dry" means applying moist dressings to the wound in such a way that when they dry out they absorb exudate from the wound. So they're dressings that go from wet to dry. Q. I see. Can you help me with the next entry, "Specimen sent to pathology, no." Is that standard procedure? A. Yes. We would not routinely take swabs from a traumatic wound." [Emphasis added] [T97.32 - T97.41]
The highlighted portion of the evidence cited in the preceding paragraph, to the effect that the dressing used was not one that Dr Scott would use, takes on some significance when it comes to the evaluation of the evidence given by Dr Gatus on the question of the appearance of the plaintiff's post-operative bandage dressing. The inference is that Dr Scott did not apply that dressing, and it was not applied under his direct supervision.
It appears from the question and answer cited in paragraph [133] above, that what Dr Scott had in mind when referring to a pathology specimen, was a swab, and not a tissue sample. Accordingly, no pathological analysis was available to those prescribing the plaintiff with post-operative antibiotics.
In Dr Scott's oral evidence, some doubt emerged as to the plaintiff's wound having been classified as "Dirty": T98.33. Dr Scott gave some evidence which explained what he described as his "hit and miss" system of wound classification, as follows: "Q. So what's the difference between "contaminated" and "dirty"? A. I'll have to be honest with you. It's a bit hit and miss what is applied. My usual approach now when I do my op reports, which I do now, is any wound that's open for more than six hours I classify as "dirty", but the official - there's not actually any official guidelines on how to classify them. "Clean/contaminated" historically is used for like abdominal wounds where a piece of bowel has been opened but wasn't full, for example, with faeces. So it's contaminated but not grossly infected. Even technically a wound that is infected doesn't necessarily fit into this classification system, because there's not a classification that says you're infected. So "dirty" - we might say something that has got foreign material in it: dirt, grass, wood, whatever. Q. It sounds like people with clinical knowledge ought to be on the team of statisticians designing the descriptors. A. And the people that write the op reports should be taught what to do. It's very hit and miss. I've got to be honest. The reason that I write "dirty" is to try and implement changes in the hospitals to allow us to operate quicker, but I haven't seen it happen." [T99.1 - T99.18]
It appears from the first answer cited above, Dr Scott was making a distinction between what his classification practice is "now" compared to the time when the notes were made. Assuming there was no relevant difference, on the cited "hit and miss" formulation as explained by Dr Scott, and assuming for the purposes of analysis that the plaintiff's injury occurred at 17:30 hours on 22 August 2011, although it obviously occurred earlier, then at 23:30 hours, being the time the plaintiff's operation was being initially planned, the classification of the plaintiff's wound ought to have been considered to be a "dirty" wound because it was a wound that had been open for more than 6 hours: T99.4. In practical terms, I consider that at the time, this must therefore have meant the plaintiff's need for wound washout, irrigation and debridement, was somewhat urgent, and was becoming increasingly more so as time passed, in the context of a consideration of potential wound infection issues.
Dr Scott explained that in the case of surgery (which I interpolate to relate to urgent surgery that was postponed), it was not the practice to perhaps suggest a transfer of the patient to another hospital for more urgent attention, and that course was "almost never practised": T99.39 - T99.47. However, there is no evidence that such a course was even being considered for the plaintiff that night. This is a matter that bears further analysis in the context of the consideration of whether there had been a breach of the duty of care owed, and the analysis of the claimed defence that the defendant seeks to invoke pursuant to s 5O of the CL Act.
In the course of the cross-examination of Dr Scott, a discussion ensued as to the prevailing Liverpool Hospital facilities for managing emergencies, in terms of staffing, and in relation to a possible out-of-hours need for urgent surgery. In that regard, Dr Scott gave evidence as follows: "Q. Just one other thing, doctor. Liverpool Hospital is a very large hospital. Do you know approximately how many operating theatres are in the hospital? A. At that time I think there were about 15. Q. So at that time of the evening, if these two urgent cases came in and Robert was bumped down the list because of the priority, why would not he have been operated on in another one of the theatres? A. Because there were no staff to man them. Out of hours there will be essentially one scrub team on site, so they have enough to run one theatre. They will sometimes call in staff for something like an emergency caesar, which is again life threatening, but there's usually only one operating theatre running through the night. HIS HONOUR Q. As I understand it, there's quite an administrative task to open a theatre after hours. It requires A. Yes. As I said, there's always one open, but to try and get another one open is - that is the only situation where we have tried to send patients down, and there have been times when there's been, for example - can I give an example? I had a patient come in with a finger amputated, and there was a four hour laparotomy going. And I rang Sydney Hospital, the largest hand unit in Sydney, and asked them to accept the patient, because I knew that it wasn't going to get to theatre in time, and they refused it. In fact, because I was still working at that hospital at the time, I took the patient myself and operated on them at Sydney Hospital. That's what we find. If we try and send a patient somewhere else - every hospital is the same - they will almost never accept it. They will certainly not accept it in the middle of the night, and even the next day they will usually say, "You have to go through the bed manager," and you wind up waiting two or three days to get a transfer. So sending patients between hospitals is almost unheard of. Q. That must be surely according to a scale of severity of injury. A. Like I said, an amputated finger is about as severe as it gets. There's been a few occasions now where we haven't been able to transfer them out. For example, when patients arrive and we have two patients at the same time with amputations, and then we are trying to raise a theatre for one of them and racing around trying to get the other one transferred out, it's exceedingly difficult. Q. Just picking up another example, if a patient had what's colloquially described as presentation with a spaghetti hand, would that be refused transfer? A. Yep. The current way we work, a spaghetti hand would be maybe washed out in emergency, although not necessarily. They would be dressed; they would be sent home from emergency; they would come back the following day. We'd review them. We might be able to get them to theatre that day or maybe the next day, and that's actually an improvement. That's better than it was two or three years ago." [Emphasis added] [T99.49 - T100.48]
That evidence concerning the possibility of after-hours opening of operating theatres bears closer analysis in the context of a consideration of whether or not there was a breach of the duty of care owed to the plaintiff. The reference to the usual position whereby more than one operating theatre was not running at night suggests that there were circumstances where more than one operating theatre was running at night.

[35]

(10) Subsequent injury to left hand on 28 August 2011

On 28 August 2011, which was 5 days post-operatively, and 4 days post-hospital discharge, the plaintiff injured his left thumb by bumping it whilst he was playing on a swing at a friend's house. Whilst on the swing, he apparently fell and hurt his thumb: T19.16 - T19.20. When Mrs Gould became aware of this, she then took him to Campbelltown Hospital to be assessed shortly afterwards. Mr Gould arrived there a little later: T45.24 - T45.36. As already observed at paragraphs [13] - [15] above, although the tendered copies of the Campbelltown Hospital notes do not record any details of that visit, the evidence of Mr Gould and Mrs Gould was not challenged with regard to that attendance.
The defendant based a causation and damages argument of novus actus interveniens on the plaintiff having bumped his left thumb on 28 August 2011. That question will be examined in greater detail in connection with the consideration of that issue.
In that latter regard, on 28 August 2011, Mrs Gould made an observation that part of the plaintiff's bandage appeared to have been "a bit wet" on presentation to Campbelltown Hospital on 28 August 2011: T19.28, T20.9. The wetness was not clarified as to whether it related to exposure to water, or whether it comprised exudate from the thumb wound, or a combination of both. In my view, the "a bit wet" comment must be read in light of Dr Scott's evidence at T97.35 as cited at paragraph [179] above, where he identified the fact that the "gauze/wet/dry" dressing applied to the plaintiff's wound on 24 August 2011, did not accord with what he would have done. The connection between those matters, and the significance of that evidence, was not further explored during the trial.
The evidence of Mrs Gould as cited at paragraphs [10] - [11] above, to the effect that on 28 August 2011 the plaintiff's thumb bandage appeared "a little bit wet" and when unwrapped had "a funny smell" of decay that was unpleasant, and the appearance of the top of the plaintiff's left thumb appeared to be "a blackish colour", was not challenged. It is instructive to compare that evidence with the assumption the defendant's solicitor provided to its experts, namely that after the plaintiff had returned home from the fall "his grandmother noticed the bandage on his left hand was covered in blood and pus": Exhibit "1", Tab 4, p 465, par 13.
In my view, there is a significant dissimilarity between the presenting clinical signs that the defendant's solicitor had asked the defendant's experts to assume as cited in the preceding paragraph, when compared to the content of Mrs Gould's actual and unchallenged evidence. This is a matter that requires analysis on the acceptability of the expert opinions put forward by the experts retained on behalf of the defendant where they relied upon the assumptions provided to them: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9]. She did not describe the plaintiff's bandage in those terms. When the plaintiff was discharged from hospital on 24 August 2011 it appears that a "wet/dry" bandage was applied which was not approved by Dr Scott: T97.34. At the time of discharge, a small amount of blood was noted to have been present on the thumb dressing: Exhibit "1", Tab 1, p 260. There were no dressing changes between 24 August 2011 and the plaintiff's attendance at Campbelltown Hospital on 28 August 2011. Although Mrs Gould described the bandage as "a little wet" and a smell of decay, there was no evidence of the more gross appearance of pus, or the bandage being covered in blood, as the defendant's experts had been asked to assume. As a result, the defendant's experts were asked to form their opinions based on assumed factual material that contained a significant and material inaccuracy.

[36]

(11) Evidence of Dr Sathasivam - trainee plastic surgeon

Dr Sathasivam was the trainee plastic surgeon who saw the plaintiff in the Hand Clinic a Liverpool Hospital on 30 August 2011 and again on 8 September 2011: T104.32 - T105.41. He said, and I accept, that he could not recall the plaintiff, but he remembered the plaintiff's case because it was a very nasty injury that had been described to him in the context that the plaintiff may have ended up losing this thumb: T104.47; T105.48. The foreseeability of that potential result from the plaintiff's injury was not in question in the proceedings. The real question is whether in the exercise of reasonable skill and care, reasonable precautions could have been taken against the risk of the materialisation of such an adverse outcome.
Dr Sathasivam interchangeably used the descriptive terms "significant", "complex" and "severe", to describe the plaintiff's injury: T111.45.
Dr Sathasivam had his attention directed to his consultation notes at the Hand Clinic on 30 August 2011: T106.50; T107.1 - T107.37; Exhibit "1", p 69. There, Dr Sathasivam, made a note stating "superficial skin necrosis": T107.13. The meaning of that evidence was explored with him, as follows: "Q. Just stopping you there for a moment, you've told us that you don't have any independent recollection of this particular review of Robert. Typically as at August 2011 in your practice, when you wrote "superficial skin necrosis" what did it signify? A. It means that the visible skin on the outside of the thumb on examination is not viable, so it's dead. So it's ischaemic and it's dead. HIS HONOUR Q. So do I understand superficial skin necrosis to mean not full thickness necrosis? A. No, you can't say at that stage whether it was full thickness or just superficial. Q. So what was intended to be conveyed by the word "superficial" if not something other than full thickness? A. It was meant to convey that on examination all I could assess was that the superficial skin was necrotic. Q. You mean the visible surface of the skin? A. Visible surface of the skin was necrotic." [Emphasis added] [T107.17 - T107.37]
It seems from the above-cited extract of evidence, that Dr Sathasivam's comment concerning superficial skin necrosis was not intended to be definitive of the depth or the extent of the necrosis, as it involved an inherently uncertain assumption involving the superficial appearance, and not the deeper structures of the skin. In that regard, the scope for uncertainty was because the observation only related to the visible surface of the skin, and no further diagnostic tests were described as having been undertaken.
Dr Sathasivam confirmed that on 30 August 2011, after a non-stick silicone dressing had been applied to the plaintiff's left thumb in the Hand Clinic, the plan was to see the plaintiff again for a further follow-up review at that out-patient clinic in another week: T107.45. It seems that the treatment given to the plaintiff on 30 August 2011 was that his thumb was cleaned and aired, without other treatment being given at that time: T108.9 - T108.20.
In between the plaintiff's Hand Clinic visits on 30 August 2011 and 6 September 2011, the plaintiff was seen at the Campbelltown Hospital on 4 September 2011, at which time Dr Sathasivam was consulted by telephone, and at that time, he advised soaking the thumb, obtaining a swab, redressing it, continuing the antibiotics, and attending the scheduled review at the Hand Clinic in a further two days' time: Exhibit "1", Tab 2, p 341. Dr Sathasivam was not asked any questions about the discussion during which he gave those orders or that advice to the doctors at Campbelltown Hospital.
Dr Sathasivam saw the plaintiff again in the Hand Clinic on 6 September 2011: Exhibit "1", p 38. Dr Sathasivam had no independent recollection of that consultation. For an explanation of what had occurred on that occasion, he relied upon what was written in the notes: T108.34. He confirmed that his contemporaneous notes made 2 weeks post-operatively, indicated that the plaintiff had necrotic tissue on the back of his thumb, indicating the tissue was "necrotic or dead, black" comprising dry gangrene without evidence of wet gangrene: T108.40 - T108.42. That evidence by Dr Sathasivam requires further consideration as to the wet or dry nature of the gangrenous state of the plaintiff's left thumb on 6 September 2011, and subsequently.
Dr Sathasivam distinguished that described appearance from wet gangrene, stating that the latter had a distinctive smell to it, which was not noted by him: T108.48 - T109.7. Although that portion of Dr Sathasivam's evidence was not challenged, it nevertheless requires a factual evaluation and reconciliation in conjunction with other portions of the clinical notes where mention is made of the plaintiff's left thumb being described as smelly on that occasion, as well as the unchallenged evidence to that effect from Mrs Gould, and aspects of the expert evidence. Those matters require reconciliation.
Dr Sathasivam confirmed that after discussion of the plaintiff's presenting circumstances with Dr Scott, the plan was to arrange for a repeat x-ray of the thumb: T109.12. Dr Sathasivam believes that at the time he would have reviewed the x-ray films himself, based upon his usual practice. He explained that the reported term "no obvious osteomyelitis" in the x-ray report was a relative description, in that he said that such a condition only appears on x-ray when it was already well-advanced: T109.19 - T109.40; T110.7. Clearly, in ordering an x-ray at that time to consider the possibility of the presence of osteomyelitis, Dr Sathasivam was considering either or not an infection was present. Dr Sathasivam could not recall actually reviewing the plaintiff's x-rays: T112.15. In that regard, Dr Mansour was critical of the use of x-rays for diagnosis, rather than employing a diagnostic bone scan or MRI in those circumstances.
At the consultation with Dr Sathasivam on 6 September 2011, dressings were applied to the plaintiff's left thumb, along with a splint. A further booking was then made for the plaintiff to attend the Hand Clinic in the following week, for another opinion to be obtained from Dr Rider, a more senior consultant hand surgeon, and at that time, a provisional booking was also made for surgery, because experience at the time showed, that trauma operating lists filled quickly: T110.15 - T110.44.
The planned surgery was for debridement of the thumb to debride or remove all of the non-viable tissue and arrange for any resulting defect to be covered, presumably by skin grafting, or by some other means: T111.1 - T111.11. As a result, on 15 September 2011, the plaintiff proceeded to have an amputation of the distal phalanx of his left thumb: T111.14. This was performed by Dr Scott.
Dr Sathasivam was shown Exhibits "D" and "F". He agreed those copy photographs showed the distal end of the plaintiff's thumb to be black, signifying that it was ischaemic, comprising dead tissue, although in giving that evidence, he said, fairly, that he still could not recall the plaintiff: T112.36; T113.9. That evidence needs to be compared with the evidence of Dr Raftos, who stated the appearance in the photographs, particularly Exhibit "F", indicated the whole thumb was swollen and red, and the tip was black, and the exudate from the wound indicated it was infected: T134.44. His observation was consistent with the observation made in the Campbelltown Hospital notes on 4 September 2011, to the effect the wound was "very-offensive" with redness and swelling noted to the wrist: Exhibit "1", Tab 2, p 261.
As Dr Sathasivam was not asked any questions about the advice he had given to the staff at the Campbelltown Hospital Emergency Department at the various times he had been consulted by that department in relation to the care of the plaintiff, and because those matters were not raised as issues in the proceedings, they therefore do not require any further analysis.

[38]

(13) Chronology at Campbelltown Hospital on 4 September 2011

On 4 September 2011, the Campbelltown Hospital record of the plaintiff's attendance at that hospital reveals the following chronology of post-operative events that were noted there: 1. Between 16:46 and 19:04 hours on 4 September 2011, which was 10 days post-operatively, the plaintiff was seen at Campbelltown Hospital where he remained for a little over 2 hours: Exhibit "1", Tab 2, p 327. The purpose and effect of the visit to Campbelltown Hospital on 4 September 2011 was stated as being: "Post operative wound infection - superficial" : Exhibit "1", Tab 2, p 313; 2. At 17:19 hours on 4 September 2011, the Campbelltown Hospital Emergency Department triage assessment comment stated: "CHILD HAS WIRES IN LEFT THUMB HAS DISCHARGE ON DRESSING - ODOUR GO TO HAND CLINIC AT LIVERPOOL OA CHILD IS BRIGHT AND ALERT - HAS SUPPORT ON AND IS ON OABS" : Exhibit "1", Tab 2, p 319; 3. At 18:52 hours on 4 September 2011, arrangements were being made to discharge the plaintiff from the Emergency Department at Campbelltown Hospital: Exhibit "1", Tab 2, p 327; 4. At 19:00 hours on 4 September 2011, which appears to be an after the event summary notation, the Campbelltown Hospital progress notes state: "8yr old boy presents to DEM with - discharge and odour on dressing. - open # to thumb 2/52 ago requiring surgery at Liverpool Hospital. S/B Hand Clinic at Liverpool for review. - Dressing to thumb taken down. Tip of thumb black, skin peeling, some sloughing noted. Wound very - offensive. Redness and swelling noted to wrist. Pt states thumb very - sore. Will not actively move thumb SIB ED MO. Given Painstop. Wound swab taken of thumb and sent to pathology. Thumb currently soaking in warm water. Await dressing. For review in hand clinic on Tuesday. (Signature) - CNS G. GREENWOOD" [Emphasis added] [Exhibit "1", Tab 2, p 361] 1. At 19:01 hours on 4 September 2011, the plaintiff's wound was noted as having been reviewed: Exhibit "1", Tab 2, p 309. At that same time, the plaintiff was noted to have been discharged from Campbelltown Hospital Emergency Department: Exhibit "1", Tab 2, p 315. The stated timing of discharge seems to be at slight variance with the 19:04 notation at another place in the notes, but nothing turns on that time difference: Exhibit "1", Tab 2, p 327; 2. The 4 September 2011 Campbelltown Hospital discharge note states: "ADMISSION SUMMARY Postoperative wound infection-superficial (Discharge) Summary of Progress Brought in to ED by grandmother with discharge from L thumb. Dressing soaked with offensive smelling discharge since yesterday. Pt underwent ORIF L thumb IPJ comminuted, open #, nail bed repair, EPL repair by Dr Scott on 22/8 @ Liverpool Hosp. Also had L MF nailbed repair. Seen in Hand Clinic last Tuesday, Plastics team happy with progress. Taking Augmentin 500mg bd. No fevers, feels well otherwise. O/E afebrile. Dressing, soaked with purulent fluid taken down, revealing slough skin to dorsum of thumb, distal thumb black/necrotic from base of nail incl pulp. Malodorous ++. Imp-? L thumb wound infection, ? nonviable thumbtip/necrotic. Discussed with Dr Siva, Plastics reg, advised soaking thumb, swab for MCS, redress with Bactigras, continue oral antibiotics, review (i)n Hand clinic in 2/7 as planned." [Emphasis added] [Exhibit "1", Tab 2, p 341] 1. At 20:05 hours on 4 September 2011, which seems to be a post-discharge note, the Campbelltown Hospital progress notes state: "Wound cleaned with N/Saline soaked - gauze. Some of the peeling skin debrided. Dressed with Bactigras and mefix, secure with crepe. - Splint replaced. D/C from DEM. (Signature) CNS" [Exhibit "1", Tab 2, p 361] 1. At 12:15 hours on 8 September 2011, which was 4 days after the plaintiff's discharge from Campbelltown Hospital, pathology swab number 00000MB20110239126 was identified, the sample for which appears to have been taken on 4 September 2011, and was reported as showing "Aeromonas hydrophila + coliform + mixed anaerobic flora and + mixed skin flora": Exhibit "1", Tab 2, p 311;
The description of the plaintiff's post-operative wound infection as being "superficial" in nature does not sit well with the highlighted portion of the text of sub-paragraphs (4) and (6) of the preceding paragraph.
It is plain from the above summary of the progress notes, that the advice given to the plaintiff at Campbelltown Hospital, after that Hospital spoke with Dr Sathasivam from Liverpool Hospital by telephone, was that a wound swab should be taken and studied for any micro-organisms that might be cultured from that swab, and that the plaintiff should be reviewed in the Liverpool Hand Clinic in 2 weeks' time, as was previously planned.
The Campbelltown Hospital notes do not contain any evidence or information to suggest that the microbiology culture results from the swab of the plaintiff's wound taken on 4 September 2011, as summarised in sub-paragraph (8) of paragraph [206] above, were either forwarded to Liverpool Hospital Hand Clinic, or to any doctor or health care professional with responsibility for treating the plaintiff, or whether the relevant staff at Liverpool Hospital had access to those results. On the state of the evidence, no positive inferences can be drawn concerning those matters.

[39]

(14) Chronology Hand Clinic reviews from 6 September 2011

As explained at paragraphs [65] - [66] above, a record of a Hand Clinic visit, ostensibly dated 30 September 2011, but probably referring to a date between 6 September 2011 and 13 September 2011, or before 15 September 2011, stated that at 14:30 hours on whatever the correct date was, but clearly not on 30 September 2011, whilst the plaintiff was at the plastics clinic, the nursing note stated he had been seen by the plastics doctors, and that the plaintiff's left thumb was observed to be black, with exudate present, and very painful to touch.
Accordingly, I consider the recorded date to be an erroneous reference because by 30 September 2011, the plaintiff's thumb had already been amputated 15 days earlier, and therefore the description of it as being black on 30 September 2011, must involve a date error. The notes for that occasion record that the plaintiff was screaming and biting on his father's hand at that time because of the pain that arose in the course of a dressing change. The notes went on to record that the plaintiff's left thumb wound was "sloughly ++, smelly, minimum exudate being discharge(d)". The thumb was cleaned, soaked in normal saline, re-dressed with mepitel, gauze, and cohesive bandages: Exhibit "1", Tab 1, p 37. I am persuaded by the content of the notes that I have reviewed, that the 30 September 2011 date reference in the notes was an error because, as already explained, those were obvious pre-amputation clinical findings;
Between 6 and 13 September 2011, the plaintiff's attendances at the Hand Clinic were according to the following chronology: 1. On 6 September 2011, Dr Sathasivam saw the plaintiff 2 weeks post-surgery, and noted the presence of the necrotic tissue on the dorsal distal aspect of the plaintiff's left thumb, and he noted the records to state "Dry gangrene". His plan was noted to involve having a discussion with Dr Scott, and to do a repeat x-ray. That x-ray was noted to show that the reduction of the fractures was maintained, and it was further interpreted as showing there was no obvious osteomyelitis. The plan was to apply a dressing, keep the thumb clean, for the plaintiff to wear a splint all the time, and for the plaintiff to be followed-up on the following Tuesday, at Dr Rider's specialist clinic for another opinion, and that in the meantime, a provisional booking was made for surgery to take place in the course of the following Thursday's trauma list: Exhibit "1", Tab 1, p 38; 2. On 6 September 2011, at an unstated time, Dr Sathasivam prepared a consent form for the plaintiff to have a procedure described as a "debridement +/- flap repair of left thumb defect", the consent for which was signed by either Mr or Mrs Gould: Exhibit "1", Tab 1, pp 143, 144; 3. At 15:06 hours on 6 September 2011, a nursing note carefully recorded that the plaintiff had attended the plastics clinic with his grandmother. The note records that the plastics registrar (Dr Sathasivam) had been asked to re-assess the plaintiff's left thumb and middle finger. The left thumb wound was noted to be smelly and sloughly. The wound was cleaned with normal saline and re-dressed with gauze and cohesive. The plaintiff was recorded as stating that the wound was very painful to touch, and was at times, variously crying and laughing. The plaintiff's grandmother explained that the splint was not worn at that time because there had been a dressing change at Campbelltown, and the plaintiff did not want to wear it in the interim: Exhibit "1", Tab 1, p 36; 9 September 2011 - Pre-operative clinic visit 1. At 10:40 hours on 9 September 2011, the plaintiff presented to a pre-operative clinic at which the operation for debridement and flap covering of the left thumb "defect" was planned for Dr Rider's trauma list, at the referral of Dr Sathasivam or Dr Scott: Exhibit "1", Tab 1, p 139. The "defect" referred to in that note was not further described; 2. On 9 September 2011, when the 15 September 2011 procedure was booked, the only medication noted to have been taken by the plaintiff at that time was Augmentin: Exhibit "1", Tab 1, p 183; 12 September 2011 - Examination at Dr Rider's Clinic 1. On 12 September 2011, the plaintiff was seen by the specialist hand surgeon, Dr Rider, who ordered the booking of debridement surgery for the plaintiff's left thumb, to take place in the course of the following Thursday trauma list: Exhibit "1", Tab 1, p 38; 2. On 12 September 2011, consequent upon Dr Rider's examination of the plaintiff, Dr Geraghty prepared a clinical priority request form for the plaintiff to undergo a debridement of the necrosis of his left thumb to be carried out on 15 September 2011 by Dr Rider: Exhibit "1", Tab 1, p 151. On the same date, Dr Geraghty obtained the consent of the plaintiff's grandmother for "debridement of left thumb +/- reconstruction": Exhibit "1", Tab 1, pp 155, 156; 13 September 2011 - Attendance at Plastics Clinic 1. On 13 September 2011, the plaintiff's father filled out a hospital admission form: Exhibit "1", Tab 1, p 161; 2. At 14:30 hours on 13 September 2011, a plastics clinic nursing note states that the plaintiff attended that clinic with his father and they were seen by the plastics registrar who asked for the left thumb and middle finger wounds to be re-dressed with gauze "and cohesive". At that time it was recorded that the plaintiff had complained the "finger was very painful and smelly". I take the reference to "finger" in that note to refer to the plaintiff's left thumb. The nurse in attendance at that time wrote that once the dressing came off the thumb, the plaintiff had stated that the "wound look(ed) bad and smelly". The nurse noted "smelly ++" with "heavy exudate", and "black area increased + cavity noted on L thumb" that "was not there about 3 weeks again (sic)". The nurse informed the plastics registrar (whom I infer from the notes and the shorthand version of his name, to have been Dr Sathasivam), whom she said had noticed this as well. In the course of his oral evidence, Dr Sathasivam was not asked questions about those events. At that time, the note confirmed that the plaintiff was informed that further surgery on the thumb was planned for the following Thursday which was 2 days hence. At that time, it was recorded that the clinic nurses could not make contact with the ward to ascertain the time for that surgery, and that the plaintiff's father was told to follow this up himself. The plaintiff left the clinic after his wounds had been re-dressed, and at that time, he was wearing a splint: Exhibit "1", Tab 1, p 34;

[40]

(15) Chronology 15 September 2011 - thumb amputation

By 15 September 2011, the plaintiff's treating hand surgeon had determined that due to the presence of infection and gangrene, the distal phalanx of the plaintiff's left thumb could not be salvaged, and it was therefore surgically amputated, or terminalised. The following chronology identifies the 14 related events as contemporaneously recorded in the hospital notes, as follows: 1. At 10:35 hours on 15 September 2011, the plaintiff presented to Liverpool Hospital, accompanied by his grandmother and his father, for the planned operation of amputation of "L big thumb (sic)" : Exhibit "1", Tab 1, pp 164 - 165; 2. On 15 September 2011, the procedure for terminalisation of the left thumb was performed, and it took 30 minutes: Exhibit "1", Tab 1, p 181; 3. Following the amputation surgery on 15 September 2011, the plaintiff was given intravenous antibiotics. The plan was for discharge once his cellulitis had resolved, with oral antibiotics to be given after discharge: Exhibit "1", Tab 1, pp 83, 117 and 167; 4. A medication chart for the period of the plaintiff's hospitalisation between 15 September 2011 and 21 September 2011 was maintained, showing that the antibiotics prescribed for the plaintiff comprised cephazolin, flagyl and ciprofloxacin: Exhibit "1", Tab 1, p 191; 5. Between 16 September 2011 and 19 September 2011, there were numerous post-amputation medical and allied reviews, which need not be further detailed in these reasons, other than as appears in the following sub-paragraphs: Exhibit "1", Tab 1, pp 86, 120 and 122; 6. On 19 September 2011, as observed at sub-paragraph (4) above, it was noted the plaintiff was on cephaloxin and "Ciproxi'n/Flagyl" combination: Exhibit "1", Tab 1, p 175; 7. On 19 September 2011, a note was made, apparently reporting on microbiology results from the "infected K-wire", identifying some indecipherably described organisms, but including Aeromonas hydrophila, and a staph species, amongst other things which were not pursued or explained in the evidence concerning this particular aspect of the notes: Exhibit "1", Tab 1, p 122; 8. At 12:50 hours on 19 September 2011, the post-operative follow-up support notes described how when the plaintiff was shown his thumb stump he was "very shocked" at how much of his thumb had been removed: Exhibit "1", Tab 1, p 122; 9. On 20 September 2011, as observed at sub-paragraph (4) above, a discussion took place with the hospital's infectious diseases department, following which advice was given for "ciprn + flagyl for now" and for the dose for "cipro" to be awaited from that department: Exhibit "1", Tab 1, p 176; 10. On 20 September 2011, the advice of the Liverpool Hospital infectious diseases doctor was noted, namely appropriateness of the provision of ciprofloxacin for 3 - 4 weeks as clinically indicated, namely 500mg mane, 250mg nocte as stated, Flagyl as directed, to be continued for another 3 - 4 weeks, with a repeat thumb x-ray to be done before the plaintiff was to be discharged from hospital: Exhibit "1", Tab 1, p 177; 11. At 11:05 hours on 20 September 2011, the nursing notes recorded that, as had been requested, Mrs Gould brought in a sample of water from the drain where the plaintiff had been playing when he was injured, and the sample was taken by a hospital staff member for follow-up with the plastics team: Exhibit "1", Tab 1, p 176. The result of any follow-up tests in relation to that sample, is not known; 12. At 14:05 hours on 21 September 2011, Dr Mellissa Halling printed a discharge referral relating to the operation on 15 September 2011. The content of that note described how, at the amputation operation, a "pathological process was found in surgery", and the "Entire dorsum of the thumb dead, including nailbed, dorsum of IPJ, extensor tendon. Entire distal phalanx dead. Ulnar half of proximal phalanx necrotic, including head of phalanx ? cellulitis of thumb stump". This resulted in the debridement of the necrotic proximal phalanx back to healthy bone, with the plan being to admit to hospital for IV antibiotic therapy, and for subsequent discharge once the detected cellulitis had resolved, with the need for antibiotics to be given for probable osteomyelitis: Exhibit "1", Tab 1, p 22. I consider that the content of that note at Exhibit "1", Tab 1, p 22, comprises satisfactory and reliable evidence that enables the conclusion that, at the time of his operation on 15 September 2011, on the balance of probabilities, the plaintiff's thumb was affected by cellulitis and a significant extensive infection, although not specifically there described as osteomyelitis, but clearly referring to an infection of the bone, which was elsewhere described and defined as osteomyelitis; 13. At 15:15 hours on 21 September 2011, the clinical notes record that the plaintiff had been discharged from hospital: Exhibit "1", Tab 1, pp 131 and 166; 14. At 15:30 hours on 21 September 2011, the notes state that the plaintiff was prepared for discharge from hospital, with paperwork, medications, for follow-up by family doctor, hand clinic and infectious diseases department: Exhibit "1", Tab 1, p 178; 15. One of the last two notes obviously contains an erroneous time reference.

[41]

(16) Post-amputation Hand Clinic reviews

Between 27 September 2011 and 24 January 2012, the plaintiff had numerous follow-up contacts with the Hand Clinic, according to the following chronology: 27 September 2011 - Hand Clinic review 1. On 27 September 2011, the plaintiff was seen at the hand clinic, at which time it was noted that he had not come in with his splint. A follow-up appointment in Dr Scott's clinic was arranged for 4 October 2011: Exhibit "1", Tab 1, pp 5, 30 and 71; 2. The 27 September 2011 hand clinic notation recorded that the wound culture from the plaintiff's thumb had recorded a pseudomonas organism, for which "cipro + Flagyl" was given. The plan was for follow-up the following Tuesday with Dr Scott, and for hand therapy to be given to the plaintiff: Exhibit "1", Tab 1, pp 31 and 70. It is not clear whether that note was made contemporaneously with a consultation, or whether it was simply an after-the-event entry made in the notes at some later time; 3. At 16:45 hours on 27 September 2011, a hand therapist had noted that the plaintiff had not remained at the clinic to wait for a scheduled review that afternoon. The time of his appointment was not stated in that note, nor was it stated how long, if at all, he had waited before leaving, or being taken away. It was also noted that the therapist telephoned Mr Gould to inform him of a further appointment with Dr Scott's clinic for 4 October 2011: Exhibit "1", Tab 1, p 31, p 70; 30 September 2011 - erroneously recorded Hand Clinic review date 1. Although the records show a 30 September 2011 nursing note which the defendant submits refers to a hand clinic visit, for the reasons stated paragraphs [52] to [66] above, that entry is in my view, an erroneous reference to some other and unknown date, most probably in the range 6 to 13 September 2011; 4 October 2011 - Hand Clinic review 1. On 4 October 2011, the plaintiff attended for hand therapy. The plan on that occasion was for a further physiotherapy review in 1 week's time: Exhibit "1", Tab 1, p 29; 2. At an unstated time on 4 October 2011, probably at 14:50 hours, the plaintiff was seen by an unnamed plastics registrar at the hand clinic, at which time a plan was then made for physiotherapy in a further week's time: Exhibit "1", Tab 1, pp 5, 6 and 71; 12 October 2011 - Hand Clinic review 1. At 10:20 hours on 12 October 2011, the plaintiff attended the hand clinic for hand therapy 4 weeks post-operatively, and at that time a plan was made for a further review to take place in 4 weeks' time: Exhibit "1", Tab 1, p 11; 2. At 12:30 hours on 12 October 2011, the plaintiff was registered as a non-inpatient, for physiotherapy: Exhibit "1", Tab 1, p 3; 13 October 2011 - Examination by hospital Infectious Diseases consultant 1. On 13 October 2011, the infectious diseases consultant at Liverpool Hospital, Dr Hofmeyr examined the plaintiff, and at that time it was noted there was cellulitis in the thumb stump and that the plaintiff was receiving intravenous antibiotics followed by ciprofloxacillin plus metronidazole for 4 weeks: Exhibit "1", Tab 1, p 43; November / December 2011 - Missed appointments at Hand Clinic 1. On 1 November 2011, the plaintiff missed an appointment at the plastics clinic: Exhibit "1", Tab 1, p 45; 2. On 3 November 2011, there was a notation the plaintiff did not attend an appointment at the hand clinic: Exhibit "1", Tab 1, p 11; 3. On 28 November 2011, there was a notation the plaintiff did not attend an appointment at the hand clinic: Exhibit "1", Tab 1, p 11; 4. On 8 December 2011, the plaintiff missed an appointment at the infectious diseases consulting clinic: Exhibit "1", Tab 1, p 49; 5. On 13 December 2011, the plaintiff missed an appointment at the infectious diseases consulting clinic: Exhibit "1", Tab 1, p 47; 13 December 2011 - Hand Clinic review 1. At 10:30 hours on 13 December 2011, the plaintiff was seen by a hand therapist. This took place 12.5 weeks post-operatively. At that time, he was pursuing treatment comprising exercise and scar massage: Exhibit "1", Tab 1, p 12; 2. On 19 December 2011, the hospital medico-legal notes recorded that "pathology printed" from first admission, to date, for compliance with a subpoena: Exhibit "1", Tab 1, p 127. It is not clear from the evidence as to what was contained in those documents; Reviews in 2012 - pre-stump revision surgery 1. On 24 January 2012, the plaintiff was reviewed by a doctor from the plastic team, who at that time recommended the plaintiff have hand therapy: Exhibit "1", Tab 1, p 72; 2. At 15:00 hours on 24 January 2012, the plaintiff attended for hand therapy. At that time, it was noted that he was discharged from further attendance unless it was thought necessary that he attend again: Exhibit "1", Tab 1, p 28.

[44]

(19) Subsequent medical and allied assessments

Before considering the expert evidence, I set out a summary of my review the reports of the medical and allied examinations of the plaintiff.
On 24 February 2014, at the request of his solicitor, the plaintiff was assessed by Dr Thomas Newlyn, a consultant family and child psychiatrist. Dr Newlyn's report of that assessment is dated the same date as the consultation. Dr Newlyn recorded the plaintiff's past injury history of being unable to do things with his friends, of being sad at being unable to do certain things, and because he gets teased. Dr Newlyn obtained a history of the plaintiff's father's observations of the plaintiff at times being "down" and feeling left out, and the fact that he "hides" his thumb, and is reticent when meeting new people.
Dr Newlyn elicited a history of the plaintiff having difficulty obtaining a grip on his shoelaces, being unable to catch balls, use recreational playground equipment or make full use of his bicycle like other children. Significantly, the plaintiff has difficulties sending text messages and playing videogames due to his left thumb deformity.
Dr Newlyn did not identify any clinical psychiatric disorder or diagnosis. He did not consider the plaintiff would need psychiatric or psychological treatment or have any psychiatric disorder affecting his earning capacity.
On 6 May 2014, the plaintiff was examined by Dr Albert Mansour, a specialist paediatrician and team leader at Westmead Children's Hospital. Dr Mansour was critical of the management of the plaintiff's injuries, a matter to which I shall return in the consideration of whether there has been a breach of the duty of care owed to the plaintiff.
With regard to the functional assessment of the condition of the plaintiff, Dr Mansour noted him to be rather stoic to pain. He noted the plaintiff did not have a pincer function to grasp objects in his left hand due to the remnant stump of his left thumb. As a matter of some practical significance to the plaintiff's impaired manual dexterity, he noted the plaintiff had difficulty in unscrewing jars and opening cars, as well as managing shoelaces and buttons.
Whilst Dr Mansour noted the plaintiff seemed well adjusted to his amputated left thumb, he noted that the plaintiff experienced occasional throbbing at the site. Dr Mansour characterised the cosmetic appearance and the loss of pincer function in the left hand as a major handicap, and foreshadowed possible restriction in future employment for manual tasks. He also noted a distinct possibility the plaintiff will in the future, develop pain or arthritis in the remnant thumb.
On 13 April 2014, the plaintiff's treating hand surgeon, Dr Scott, provided a report which indicated the plaintiff would accommodate to his hand injury without major limitation in hand function. He identified the possibility of a toe to hand transfer procedure which would be free in the public system, but would cost between $25,000 to $30,000 if performed privately. That said, he considered that the plaintiff was not a good candidate for that procedure, but this could change as he grew older. It is not apparent from the face of Dr Scott's report, or from his oral evidence, as to when he had last examined the plaintiff in order to base that view.
On 11 May 2015, at the request of his solicitor, the plaintiff underwent a vocational assessment by Mr Steven Buddle, a rehabilitation counsellor. Mr Buddle noted the plaintiff experiences some frustration at school due to teasing over his left hand abnormality. Mr Buddle noted the plaintiff would have difficulties with manual vocations, and with using hand tools in the future. He predicted the plaintiff would be unable to pursue many future employment options, involving the manipulation of objects.
Mr Buddle concluded the plaintiff's earning capacity has been reduced because of his hand injury. This is a matter that requires further consideration in the assessment of the plaintiff's entitlement to damages.
On 18 November 2014, Dr Mansour provided a supplementary report, in which he stated that he did not see any need for the plaintiff to have further surgical intervention, but he considered the plaintiff would benefit from obtaining occupational therapy assistance to help him more effectively utilise his left hand. He reiterated the characterisation of the absence of a pincer action of the left hand as being a major handicap. He considered the plaintiff could quite possibly experience a phantom thumb sensation associated with pain and discomfort, which together with more self-consciousness with age, would justify recommending referral to a psychologist and an occupational therapist to address the psychological impact of the thumb amputation on the plaintiff's self-esteem and confidence.
There were no reports tendered by the defendant based on any medical or allied examination of the plaintiff. The only reports tendered by the defendant related solely to the liability issues.

[45]

(20) Disabilities

The plaintiff's difficulties with his impaired manual dexterity at school, leisure and with sporting activities, have already been described at paragraphs [99] - [101] above. The copy photograph showing the appearance of his amputation stump has been incorporated at paragraph [24] above.
On the occasions when the plaintiff experiences inadvertent contact with the stump of his left thumb, it gives him a distracting stinging sensation that lasts for a minute or so: T68.35 - T68.46. He finds he gets teased by people who don't know him, and this makes him feel angry and upset, which has caused him to push those persons, and at school, this has caused him some disciplinary "strife".
The plaintiff tends to hide his hand in his pocket because he does not want people to see it: T69.31 - T69.36. He gets upset when people joke around on the subject: T69.39. He is upset and embarrassed at the appearance of his hand because it does not look normal: T70.6 - T70.31. At times he gets frustrated by his thumb: T60.45. He has been teased with the pejorative term "Stumpy", which makes him upset: T69.13.
Mr Gould gave evidence of the plaintiff's continued upset over the state of his thumb: T46.42. He described the plaintiff's feelings of being "a bit left out", and being excluded from some school activities such as ball games, guitar, woodwork and metalwork, which causes the plaintiff some upset: T46.46 - T47.13; T53.1 - T53.6. Mr Gould recounted the plaintiff's ongoing history of feeling tenderness at the amputation site of his left thumb: T55.7.
Before his injury, the plaintiff had some early thoughts of wanting to pursue work as a mechanic, a sound engineer or a policeman: T70.35 - T70.40. He feels that now he could not do the work required of a mechanic and he is concerned that he would not be accepted as a policeman due to his absent thumb: T70.43 - T71.7.
The plaintiff has difficulty manipulating a fork at meal times, and he can't pour anything using his left hand. He finds that he drops things from his left hand due to his poor grip: T71.28 - T71.47. He described his difficulties in manipulating buttons on shirts, and with zippers on his trousers when dressing. He finds that because he cannot use the zipper to close the pocket on his trousers he loses money when it falls from that pocket. He finds that he cannot do up his shoelaces and needs help with that task: T72.19 - T73.1. On one occasion his shoelaces were in an undone state and they became caught up in an escalator, which then had to be shut down as a result: T73.10. This obviously exposed the plaintiff to the risk of further injury.
Mr Gould notices that at meal times the plaintiff cannot hold and use a fork properly, and needs help to cut up food such as steak or sausages, and that he also has difficulties opening some packaged and bottled goods: T47.21 - T47.27. Mr Gould also described the plaintiff's difficulties in managing buttons and zippers on his clothing, and with shoelaces, and when texting on his mobile device using one finger: T47.31 - T47.43. Mr Gould also described the plaintiff's shyness and reserve in meeting new people, at which times, out of self-consciousness, he has been observed to place his left hand behind his back or in his pocket to conceal his left thumb: T47.49 - T48.2.
The plaintiff experiences difficulties applying the manual brakes on his BMX bicycle. It appears that this may have been in some way causative of him sustaining a broken wrist in a bicycling accident. This was because he could not properly or effectively pull on the brake lever due to his absent left thumb, and this resulted in him crashing his bicycle: T73.28 - T74.21. That wrist injury does not form part of the assessment of damages in this case.
The plaintiff is musically inclined, and he hopes to have a career involving sound engineering: T75.4; T76.23.

[48]

First report of Dr Raftos - Plaintiff's expert emergency physician

Dr Raftos, a senior and eminently qualified emergency specialist, provided the solicitor for the plaintiff with two reports, which are respectively dated 10 April 2013 (Exhibit "A", pp 203 - 216) and 10 August 2015: Exhibit "A", pp 223 - 225. His opinions were directed at the liability and causation issues. Although he did not examine the plaintiff or interview him, it was not suggested that it was necessary for him to have done so for the purpose of preparing his reports.
In his first report, Dr Raftos analysed the medical records of Campbelltown Hospital and Liverpool Hospital relating to the plaintiff's treatment for his left thumb injury. In that report, he identified the standard of care required in the plaintiff's presenting circumstances, and the reasoning for that standard of care, to be as follows: "Open fractures are fractures in which there is communication between the fractured bone and the external environment through a skin laceration. Open fractures are prone to infection because bacteria from the skin and from the environment have direct access to the bone. Once osteomyelitis (bone infection) develops in an open fracture, the likelihood of amputation or permanent disability is significantly increased. The immediate medical management of open fractures is aimed at minimising the risk of infection. Standard care for open fractures should always include prompt intravenous antibiotics, appropriate to the nature of the potential contamination of the wound, and wound lavage (washout) and debridement by an orthopaedic/plastic/hand surgeon in the operating theatre within six hours of arrival at hospital. If surgical lavage within six hours is not feasible, then the wound should be meticulously cleaned and bathed in antiseptic solution (usually a povidone iodine solution) pending formal surgical lavage. Failure to provide appropriate intravenous antibiotic therapy and/or urgent wound cleaning within a reasonable time from presentation to hospital of an open fracture would expose the patient to an unnecessarily increased risk of developing osteomyelitis as a result of untreated bacterial contamination of the wound. … Hospitals have an obligation to provide timely and appropriate treatment. Liverpool Hospital ought to provide appropriate operating theatre resources to ensure that time-critical surgical treatment can be provided to all patients. Surgical lavage of Robert's open fracture should have been performed by midnight on 22 August 2011. The hospital's failure to provide adequate operating theatre resources to enable this represents a departure from what would have been widely accepted by peer professional opinion in Australia in 2011 to be competent professional practice and led to Robert developing the osteomyelitis that necessitated amputation of his thumb. … Appropriate treatment of an open fracture is to clean the wound and provide appropriate intravenous antibiotics. Wound cleaning should be performed under general anaesthesia in the operating theatre as soon as possible after the injury, preferably within six hours of presentation." [Exhibit "A", pp 211 - 213]
In his first report, Dr Raftos expressed the following criticisms of the care which the plaintiff received at Liverpool Hospital: 1. He considered that there was an unacceptable delay in cleaning the wound. The first surgical cleaning occurred at about 09:00 hours on 23 August 2011, some 16 hours after the injury occurred. The procedure commenced at 08:35 hours on that day. By inference from his stated reasoning, Dr Raftos has therefore assumed the injury occurred at 17:00 hours on the previous day. He stated that if the wound had been cleaned within 6 hours of presentation to hospital, that is, at about midnight on 22 August 2011, on the balance of probabilities, the open fracture of the thumb would have healed without developing osteomyelitis, and without the need for amputation: Exhibit "A", p 212. 2. He considered that when the more urgent cases arrived at the hospital, causing the plaintiff's planned surgery for wound lavage or washout to be delayed, there was a failure to make any alternative plans for wound washout to be achieved before midnight, or, as I interpolate, given the terms of the criticisms in sub-paragraph (1) above, shortly afterwards: Exhibit "A", p 212. 3. He considered that the Hospital's failure to provide adequate operating theatre resources to enable time critical treatment to be given to the plaintiff represents a departure from what would have been widely accepted by peer professional opinion in Australia in 2011 as being competent professional practice. His opinion was that this led to the plaintiff developing the osteomyelitis that necessitated the partial amputation of his thumb. 4. He considered that in the context of the history which was then available, of the plaintiff having fallen onto a wet cement floor (which, given the history then provided, I interpret as including contact with a walking surface such as a pathway), the advice to give flucloxacillin, alone, was inappropriate, as the regime should have included a second generation antibiotic cephalosporin, plus gentamycin. He considered that flucloxacillin was an inadequate choice of antibiotic for treatment of an open fracture caused by falling on wet concrete. He said that, had the treatment which he described been given, the likelihood of the plaintiff developing osteomyelitis and requiring amputation of the thumb would have been substantially reduced. He expressed the view that the failure of the hospital to provide adequate antibiotic cover substantially contributed to the plaintiff developing the osteomyelitis that led to the amputation: Exhibit "A", pp 213, 214, 215. 5. He considered that surgical wound cleaning was unnecessarily delayed by about 9 hours from midnight on 22 August 2011 to 09:00 hours on 23 August 2011, and this had substantially contributed to the plaintiff developing osteomyelitis that led to the surgery for thumb amputation: Exhibit "A", p 215.
In his first report, Dr Raftos summed up his opinion as follows: "Opinion The cleaning of Robert's open left thumb fracture was unnecessarily delayed and he was prescribed an inadequate antibiotic regime. If surgical lavage and debridement had been provided before midnight on 22 August 2011 along with an appropriate antibiotic regimen, then Robert would not, on the balance of probabilities, have developed the osteomyelitis that necessitated amputation of his thumb." [Exhibit "A", p 216]
At this point in the analysis, it is relevant to observe that no rebuttal evidence was called from any other emergency physician to contradict the cited opinions of Dr Raftos, which were appropriately reasoned as required by UCPR r 31.27(1)(c): UCPR Sch 7, cl 5(1)(c).
I consider that the absence of such contradictory evidence from another emergency physician with the equivalent qualifications and clinical experience to that of Dr Raftos to be of some significance because, as an emergency physician, Dr Raftos was well placed and qualified to provide the opinions he expressed. The obvious function of the hospital Emergency Department, and its doctors, was to ensure patients were directed to the required treatment procedures in a timely manner if the problem under initial care in the Emergency Department was not capable of being managed there without additional specialist resources from outside the confines of the discipline and skill set of emergency medicine. There was no suggestion that Dr Raftos did not have the clinical expertise required to express his stated opinions.
Before proceeding to the analysis of the reports of the defendant's experts, the joint report of Dr Raftos and Dr Gatus, and the concurrent expert evidence of those experts, it is necessary to review the opinions of Dr Mansour.

[49]

First report of Dr Mansour - Plaintiff's expert hospital paediatrician

In essence, Dr Mansour's opinions were essentially similar to those of Dr Raftos with respect to the unacceptability of the care the plaintiff received, although they were expressed in slightly different terms.
Dr Mansour reviewed the clinical notes of Campbelltown Hospital and Liverpool Hospital. Although he had the advantage of the opportunity of questioning the plaintiff in a consultation to ascertain the correct mechanism of injury, an advantage not available to the emergency doctors at Campbelltown and Liverpool Hospitals, in my view, nothing of significance turns on the differences in those circumstances as an analysis by an expert in the position of Dr Mansour can proceed based on assumptions. That said, some of the assumptions stated in the report by Dr Mansour require careful evaluation to ascertain whether or not they were sufficiently like the facts proven in the evidence. Following his examination of the plaintiff, and following his consideration of the hospital records, Dr Mansour provided reports dated 6 April 2014 (Exhibit "A", pp 176 - 179) and 18 November 2014 (Exhibit "A", pp 195 - 196) to the solicitor for the plaintiff.
Although Dr Mansour expressed the criticism that at Campbelltown Hospital the plaintiff's wound should have been irrigated, and that broad spectrum intravenous antibiotics should have been commenced after taking wound swabs following that procedure, that latter expressed criticism concerning wound swabs does not need to be further analysed. That is because this stated criticism does not form part of the plaintiff's particularised case: T2.4.
In his first report, Dr Mansour expressed the following criticisms of the treatment the plaintiff received at Liverpool Hospital: 1. He considered that on 22 August 2011, there was an unacceptable delay in managing the plaintiff's compound thumb fractures by keeping the plaintiff in the Emergency Department overnight, without irrigating and cleansing the wound: Exhibit "A", p 177; 2. He considered that on 22 August 2011, inadequate antibiotic cover was given to the plaintiff, by simply commencing intravenous flucloxacillin which was given to the plaintiff on the advice of a registrar from Liverpool Hospital when contacted by the emergency department at Campbelltown Hospital: Exhibit "A", p 177; 3. He considered that on 23 August 2011, there was an unreasonable delay in taking the plaintiff to the operating theatre for wound exploration and washout, this having ultimately occurred about 16 hours post-injury: Exhibit "A", p 177; 4. He considered that on 24 August 2011, when the plaintiff was discharged home on Augmentin Duo 500mg BD, this was considered to have been inadequate antibiotic cover: Exhibit "A", p 177; 5. He considered that on 28 August 2011, at the Campbelltown Hospital (wrongly described in Dr Mansour's first report as the Liverpool Hospital Hand Clinic review), when the plaintiff presented after falling from a swing, there was a failure to trigger active intervention as there was evidence of superficial skin necrosis. Dr Mansour stated that the comment apparently attributed to the hospital doctor to the effect that this wound was "okay" was not appropriate in light of the presenting evidence of discharge of blood and pus: Exhibit "A", p 177. That aspect of Dr Mansour's recitation of the history did not quite accord with Mrs Gould's unchallenged evidence on this point, as outlined at paragraphs [10] and [11] above, which I accept, namely that the outside of the plaintiff's thumb bandage appeared wet, there was a "funny smell" of decay, and a "blackish" appearance of the top of the thumb: T19.18 - T19.32, T20.38, T20.49 - T21.26. Whilst it is possible that the additional history of the presence of blood and pus under the dressing, as was recorded by Dr Mansour in his first report, might have come from a more focussed line of clinical questioning of Mrs Gould as to her observations at the time, this is not certain, and it would be unsafe to assume so, as it was not a matter explored in the evidence of Mrs Gould. However, those matters relating to events that took place at Campbelltown Hospital do not relate to the plaintiff's presentation to the Hand Clinic at Liverpool Hospital on 30 August 2011, the latter of which requires a closer analysis; 6. He considered that on 6 September 2011, at the Liverpool Hospital Hand Clinic review, which was two days after the 4 September 2011 presentation to Campbelltown Hospital Emergency Department as summarised at paragraph [206] above, there was an evident malodour, and the appearance of tissue slough from the thumb. In reviewing the out-patient note to the effect that dry gangrene had set in, he said that by that time, this was now an emergency situation which had been ignored, and at that time, although an x-ray showed no obvious osteomyelitis, a diagnostic bone scan or an MRI was needed at that time in order to exclude osteomyelitis: Exhibit "A", p 177; 7. He considered that on 6 September 2011, the plaintiff should have been re-admitted to hospital for daily dressing changes, and instead, the dressing was changed just once, on the day of attendance, and not afterwards, and instead, arrangements were made for follow-up at the clinic, 6 days later, on 12 September 2011: Exhibit "A", pp 177 - 178; 8. He considered that on 13 September 2011, when the plaintiff was seen at the Plastics or Hand Clinic at Liverpool Hospital where his wound was cleansed, the dressing changed, and oral antibiotics were continued, in that regime, the delay of surgical intervention, and the lack of intensive intravenous antibiotic treatment, was not acceptable: Exhibit "A", p 178; 9. Dr Mansour concluded that the surgical amputation of the plaintiff's left thumb could have been prevented if the appropriate action, as described, had been initiated at the initial presentation at Liverpool Hospital: Exhibit "A", p 178.
I now turn to a review of the defendant's expert opinions, given that those opinions were prepared in response to those of Dr Raftos and Dr Mansour.

[50]

First report of Dr Gatus - Defendant's expert microbiologist

It is instructive to identify the issues that Dr Gatus was initially asked to address. In his first report, Dr Gatus was asked by the solicitor for the defendant to address the following question: "Please consider the attached material and provide your opinion as to whether the hospital and nursing staff of Liverpool Hospital acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. In doing so please refer specifically to the allegations of negligence contained at paragraphs 21 (a) to (f) inclusive of the Statement of Claim. Please note that peer professional opinion does not have to be universally accepted to be considered widely accepted." [Exhibit "1", Tab 4, p 414]
It is noteworthy that in the described circumstances of his brief, Dr Gatus was not asked to address the specific question or issue of causation. Nevertheless, he subsequently offered opinions which evolved to extend to that topic.
Dr Gatus' first report contained an appendix which identified the materials that he had been given for his review, as follows: 1. The letter of instruction from the defendant's solicitor, which set out a summary of the factual background which he treated as assumptions: Exhibit "1", Tab 4, pp 463 - 468; 2. The Expert Witness Code; 3. The plaintiff's statement of claim and the related statement of particulars; 4. The Campbelltown Hospital records; 5. The Liverpool Hospital records. [Exhibit "1", Tab 4, p 422]
It is apparent from the above list, that Dr Gatus did not have available to him for his initial consideration, the copies of the photographs Exhibits "C", "F" and "G", that were tendered in evidence, and which showed something of the evolution of the plaintiff's thumb problems, starting from the acute presenting crush injury before surgical treatment, through to the development of the gangrenous appearance of the thumb just before the amputation procedure was performed, and then the amputation revision of the residual stump.
Dr Gatus stated that his assumptions and his opinions were based on the identified materials he had considered, and upon his "past experience in medicine": Exhibit "1", Tab 4, p 422. The precise aspects of that past experience upon which he had drawn were not specifically identified in his report, but can reasonably be assumed to be the general experience that was stated within his CV, including his longstanding specialty of medical microbiology, including his role in advising clinicians on the management of infections in adults and children: Exhibit "1", Tab 4, pp 447 - 462, at p 451.
After Dr Gatus reviewed some literature he had identified concerning the management of open fractures, and after considering the use of prophylactic antibiotics for open fractures, and the debridement of open fractures (at Exhibit "1", Tab 4, pp 415 - 418), in his first report, he went on to a review of the Emergency Department notes of the Campbelltown Hospital (at Exhibit "1", Tab 4, pp 418 - 419), and the admission notes of Liverpool Hospital between 22 and 23 August 2011 (at Exhibit "1", Tab 4, p 419).
Dr Gatus then provided his initial commentary as follows: "The Plaintiff sustained compound (open) fractures to the distal proximal phalanx of the left thumb and the distal phalanx of the left middle finger at a time which was not stated. For the purposes of argument, I presume the injury occurred around 17-00 hours on 22-8-11. The Plaintiff attended the Emergency Department at Campbelltown Hospital at 17-54 hours. The fractures were either Gustilo Type I or Type II fractures but I cannot distinguish between them because the lengths of the lacerations were not described in the medical records. Flucloxacillin was administered at 19-15 hours at Campbelltown Hospital and cefazolin was administered at 23-55 hours at Liverpool Hospital. The latter antibiotic was continued TDS for an appropriate period of time. The first administration of an appropriate antibiotic (flucloxacillin) was approximately two hours and fifteen minutes after the fractures occurred and this was in keeping with competent medical practice. The hand was not operated upon until around 09-00 hours on 23-8-11 and this was around 16 hours after the injury had occurred." [Emphasis added] [Exhibit "1", Tab 4, pp 419 - 420]
There was no challenge to the reasonableness of Dr Gatus' assumption that the plaintiff's injury occurred at about 17:00 hours on 22 August 2011. However, although that assumption remains necessarily imprecise, even though it very roughly fits within the evidence given by Mr Gould, and with the evidence of the timing of the plaintiff's first presentation to Campbelltown Hospital. Dr Gatus' assumption as to the time of injury nevertheless remains an unproven assumption as there is no reliable foundation upon which to reasonably infer the correctness of that assumption: HG v The Queen [1999] HCA 2; (1999) 197 CLR 414, at [39].
Dr Gatus then proceeded to address the particulars of negligence as was requested of him by the defendant's solicitor. He then summarised those particulars as raising three major issues, namely: 1. Whether gentamycin should have been added to the antibiotic regime of cefazolin. That formulation must be co-related to Dr Raftos' formulation of an argued need for a different regime which included a second generation cephalosporin antibiotic, plus gentamycin; 2. Whether there had been a failure to carry out debridement (which I interpret to mean surgical irrigation, washout or lavage) in (an) operating theatre within 6 hours of arrival at the Hospital; 3. Whether there was a failure to arrange for an orthopaedic/plastic/hand surgeon to carry out debridement in (an) operating theatre within 6 hours of arrival at the Hospital.
Whilst those three questions provide a convenient distillation of the focus for a consideration of the duty of care owed, and the consideration of whether there was a relevant breach of duty of care, the first proposition was stated in over-simplistic terms, as the antibiotic regime needs to be analysed in respect of particular aspects of the pre-operative and the post-operative phases of the care provided to the plaintiff.
In his analysis in relation to the first issue identified in paragraph [262] above, Dr Gatus stated that in 2011, the antibiotic drug gentamycin did not appear in the recommendations found in the Therapeutic Guidelines - Antibiotic (2012) for prophylaxis of compound (open) fractures. He also stated that the administration of flucloxacillin, followed by cefazolin, was in keeping with the recommendations found in those Guidelines. He also said its use was commensurate with the nature of the injury and the clinical findings. His opinion in that regard did not at that time consider the likely nature of the pathogens to which the plaintiff's thumb injury had been exposed. He held a similar guidelines-based view that an antibiotic regime, which included the contention for a second generation cephalosporin antibiotic plus gentamycin was not in keeping with the recommendations in the Guidelines in 2011. He therefore did not support the assertion that the regime contended for on behalf of the plaintiff, namely the addition of gentamycin, should have been followed: Exhibit "1", Tab 4, pp 420 - 421. This is the first point of disagreement between Dr Raftos and Dr Gatus.
In relation to the second identified issue identified in paragraph [262] above, Dr Gatus stated there was no necessity for operating on the plaintiff's hand earlier than when the operation (actually) took place: Exhibit "1", Tab 4, p 421. That view must be assessed in light of his qualifications, experience, and the concessions he made elsewhere in his evidence. This is the second point of disagreement between Dr Raftos and Dr Gatus.
In relation to the third identified issue identified in paragraph [262] above, Dr Gatus considered that the plaintiff was appropriately referred to a hand surgeon, and therefore he rejected the applicability of the allegation that surgical debridement should have been arranged in an operating theatre within 6 hours of arrival at the Hospital. That view must also be assessed in light of his qualifications, experience and concessions he made elsewhere in his evidence. This was the third point of disagreement between Dr Raftos and Dr Gatus.
On the basis of his analysis, Dr Gatus therefore stated the following conclusion which was in contention in the proceedings as follows: "Conclusion In my opinion, the hospital and nursing staff of Liverpool Hospital acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice." [Exhibit "1", Tab 4, p 421]
Dr Gatus' first report contained a reference to an annexed article published in a journal: Prevention of Infection in the Treatment of One Thousand and Twenty-Five Open Fractures of Long Bones : Retrospective and Prospective Analyses; by RB Gustilo and JT Anderson, in the American Journal of Bone and Joint Surgery: 1976; 58: 453 - 458: Exhibit "1", Tab 4, pp 423 - 429, (the "Gustilo article").
The Gustilo article cited by Dr Gatus concluded as follows: "Conclusions 1 Open fractures require emergency treatment, including adequate debridement and copious irrigation. 2 Primary closure is indicated for Type I and II open fractures, but delayed primary closure, including split-thickness skin grafts or appropriate flaps, should be used for Type III open fractures. 3 Internal fixation by plates or intramedullary nails should not be used. External skeletal fixation by skeletal traction, pins above and below the fracture site incorporated in a plaster cast, or such devices as the Roger Anderson or Muller apparatus is recommended. 4 Open fractures associated with arterial injury requiring repair should be treated in skeletal traction whenever possible instead of by primary internal fixation. 5 Antibiotics should be administered before and during surgery, the antibiotics of choice currently being the cephalosporins in therapeutic doses. If the wound is closed primarily, the antibiotics are stopped on the third postoperative day. If the wound is closed secondarily, the antibiotics are continued for another three days after this procedure." [Emphasis added]
The above stated conclusions from within the Gustilo article need to be considered and correlated to the plaintiff's presenting circumstances at Liverpool Hospital.
Also attached to Dr Gatus' first report was a copy of an extract from Therapeutic Guidelines, Antibiotic, 2010, Version 14, published by Therapeutic Guidelines Ltd, Melbourne, (the "Guidelines"): Exhibit "1", Tab 4, pp 431 - 434. Within the text of that extract, and specifically applicable to compound fractures, the following text appears: "Management of compound (open) fractures requires urgent orthopaedic consultation. Irrigation is a key component in preventing infection after an open fracture, as it serves to decrease bacterial load and remove foreign bodies." [Emphasis added] [Exhibit "1", Tab 4, p 433]
The Guidelines cited by Dr Gatus make an apparent distinction in paediatric cases in instances of wound soiling or severe tissue damage, "and/or" where devitalised tissue is present, in those different circumstances different antibiotic regimes are suggested for use: Exhibit "1", Tab 4, p 434.
I use the expression "apparent distinction" in paediatric cases because, somewhat confusingly, the Guidelines contain an expression that has been elsewhere authoritatively described as the "bastard conjunction" identified as "and/or", the use of which obscures clarity of meaning, and creates scope for confusion: St Clair v Timtalla Pty Ltd and Anor (No 2) [2010] QSC 480, at [11]; following Bonitto v Fuerst Bros & Co Ltd [1944] AC 75, at p 82. On the basis of that consideration of the meaning of the expression "and/or", in this context, the use of that conjunction provides some significant scope for misleading the reader of the Guidelines into incorrectly assuming that it involves completeness when, all the language used achieves, is obscurity of meaning: Moage Ltd (in liq) v Jagelman [1998] 153 ALR 711, at p 716.
The cited Guidelines use a number of antibiotic descriptions which were not defined in the evidence. The salient point here is that the effect of the expert evidence is that none of the antibiotics there referred to, comprised the antibiotic drug gentamycin.
Also attached to Dr Gatus' first report was a copy of an article entitled "The Effect of Surgical Delay on Acute Infection Following 554 Open Fractures in Children", by DL Skaggs, et al. Journal of Bone and Joint Surgery: Jan 2005; 87: Exhibit "1", Tab 4, pp 435 - 439, (the "Skaggs article").
The Skaggs article, which was identified as being Level III evidence in terms of evidence-based medicine, concluded that the results of the study undertaken by the authors suggested that, in the circumstances of children who received early antibiotic therapy following an open fracture, surgical debridement within 6 hours after injury offers little benefit over debridement within 24 hours after injury with regard to the prevention of acute infection: Exhibit "1", Tab 4, p 435. The status, significance, clinical or epidemiological utility of Level III evidence, or what constitutes "acute infection", was not explained in the evidence.
The evidence of the experts did not analyse the coherence, plausibility, power or specific applicability of the cited Skaggs article to the plaintiff's circumstances. Therefore drawing definitive conclusions from that article becomes problematic without such explanatory expert evidence. In that regard, it must be recognised that contested issue in cases of this kind are not determined by an aggregation of journal articles, but by cogent expert evidence that explains and deals with the issues in dispute.
Table II incorporated within the cited Skaggs article identified the distribution of the fractures studied according to their location. Of the 554 fractures studied, 54 instances related to "Hand/metacarpals" and 1 instance was described as "Other". None of the instances cited in the article were specifically identified as relating to a distal phalanx of a thumb. It is not known whether such thumb fractures fall into a special category as distinct from meta-carpal fractures, and if so, why this might be so. The discussion portion of the Skaggs article stated that the results identified by the authors did not support the first conclusion in the Gustilo article, as cited at paragraph [269] above.
An inherent problem in analysing the cited Skaggs article for specific application to the present case, is the following extract taken from the concluding statement from that article, which significantly identifies a size limitation of the cited study: "… A prospective randomized trial involving surgical delay in the care of children with open fractures would be unethical and impractical. The present study is not of sufficient size for us to conclude that there is no difference in the infection rates between fractures that are treated within six hours after the injury and those that are treated seven hours or more after the injury. Similarly, because of the limited numbers of patients in the present study, no factors other than time, infection and Gustilo and Anderson classification were evaluated." [Emphasis added] [Exhibit "1", Tab 4, p 438]
Also attached to the first report of Dr Gatus was a Level III Evidence article entitled "Delayed surgical debridement in paediatric open fractures : systematic review and meta-analysis" by Ibrahim T, et al, in the Journal of Child Orthopaedics (2014) 8 : 135 - 141, (the "Ibrahim article"): Exhibit "1", Tab 4, pp 440 - 446.
Significantly, there were a number of self-identified limitations or qualifications to the conclusions stated within the Ibrahim article as to its relative power and specificity to the plaintiff's presenting circumstances: Exhibit "1", Tab 4, p 445. For present purposes, it is sufficient to quote from the prominently stated cautionary note from within the conclusion extracted from the Abstract of the article, as follows: "Conclusions : The cumulative evidence does not, at present, indicate an association between late surgical debridement and higher infection rates in pediatric open fractures. However, initial expedient surgical debridement of open fractures in children should always remain the rule. Thus, multi-center randomized controlled trials or prospective cohort studies will be able to answer this question with more certainty and a higher level of evidence." [Emphasis added] [Exhibit "1", Tab 4, p 440]
It would appear to follow from that latter cited conclusion, that the author of the Ibrahim study considered that study to comprise a relatively low level of evidence, and consequently, I infer, reliability.
A fundamental problem in seeking to apply the Ibrahim article to the facts of this case, as is sought by the defendant, is that it appears to have post-dated the events comprising the plaintiff's treatment under present review, namely 2014, as opposed to the events that occurred in 2011. I therefore consider that the subject article cannot be used for the purpose of a prospective legal analysis on the question of whether or not there was a relevant breach of the duty of care that was owed in the circumstances, in 2011. In this context, a hindsight analysis is an illegitimate one: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [124].
Whilst the Ibrahim article concluded with the general statement that there was "no harm in delaying surgical debridement from 7 to 24 h following injury", that generalised statement must be qualified by what was then stated to also follow, namely: "… but initial expedient surgical debridement of open fractures in children should always remain the rule. The results of our meta-analysis are based on observational studies, and further attention should be directed toward studies of good methodological quality with adequate follow-up": Exhibit "1", Tab 4, p 446. The cited "no harm" comment did not specifically relate to the circumstances of the plaintiff's presentation. I consider that "no harm" comment to be problematic in terms of a causation analysis, a matter to which I shall return in the consideration of Issue 4.
Before leaving the analysis of Dr Gatus' first report, it is relevant to note that in his first report, he did not address questions as to the cause of the plaintiff having developed gangrene in his left thumb, presumably because he was not asked to address or consider such questions at that time.
The issues that arise from the analyses adopted by Dr Raftos and Dr Gatus will be addressed in the consideration of whether there has been a breach of the duty of care owed, and whether the defendant is able to sustain its claimed statutory defence based on the provisions s 5O of the CL Act.
Attention to that exercise must first await a review of the remaining expert evidence, including the opinions of Dr Haertsch, and the further commentaries by the respective experts, being not only the commentaries they made on each other's reports, but also in their joint report, and in their evidence that was given concurrently.

[51]

First report of Dr Haertsch - Defendant's expert plastic and hand surgeon

On 16 September 2014 and 9 December 2014, at the request of the solicitor for the defendant, Dr Haertsch issued two brief reports, each comprising about a page and a half of text. In Dr Haertsch's first report, he addressed the particulars of negligence that were relied upon by the plaintiff.
In his report dated 16 September 2014, Dr Haertsch stated: "1. The medical file in relation to Robert Gould has been sent to me by your good selves for the purposes of a medicolegal opinion. 2. I have read the Statement of Claim. 3. I have perused the Statement setting out the Plaintiff's alleged injuries and disabilities and I have viewed the records of Campbelltown Hospital and Liverpool Hospital. At no time have I found that the hospital and nursing staff of Liverpool Hospital in particular, that the time the service was provided, they acted in a manner other than that which is accepted as competent professional medical practice. In dealing with the specific allegations, para. 21(a) to (f) I state the following: a) I have not detected any failure to act with due skill, care and diligence. b) The patient notes from Liverpool in fact, in relation to antibiotic treatment, state that prior to going to surgery he was given Flucloxacillin intravenously on the 22 August at 7.21pm. I believe that his categorization was in fact truly a Cat 5, in other words to be done within 24 hours. I note that at the time of surgery he was given a stat dose of Cephalosporin. He was subsequently discharged on Augmentin 500mg b.d. c) Whilst attempts were made to get him to the operating theatre earlier than he subsequently did, which was some 14 hours after the injury, the reason for not getting him in earlier was because he was "bumped" by a more urgent category, however it is my opinion that this was a Cat 5 situation, that being to be done within 24 hours. I do not believe that there was a failure in this regard. d) I do not see any evidence that there was a failure to heed the manner in which he was injured. Given the nature of the injury I suspect that it was more blunt trauma, rather than a fall, however irrespective, he was given appropriate antibiotic therapy, given that he had a compound injury. e) There is no evidence to suggest that he was given other than an appropriate antibiotic regime, in fact at one stage he was also given Flagyl. I do not believe that Gentamycin was indicated, particularly in such a young child. f) There is no evidence that he was unnecessarily exposed to the risk of developing an osteomyelitis as a result of an untreated bacterial contamination of the wound. Whilst it is evident that he developed necrosis (gangrene) of the overlying skin, it was dry, suggesting an ischaemic event as opposed to an infective cause as an infective cause would have caused a wet gangrene." [Emphasis added] [Exhibit "1", Tab 6, pp 486 - 487]
Dr Haertsch was not given any material that would have reliably served to identify the time of the plaintiff's injury. Therefore, his statement that surgery took place "some 14 hours after the injury" must be seen to be inaccurate and unreliable. Dr Haertsch's analysis, which argued that the provided antibiotic regime was appropriate appears to have contained within it a misleading consideration, namely "… in fact at one stage [the plaintiff] was also given Flagyl". Relevant to that aspect of Dr Haertsch's opinion, the evidence in the clinical records reveals that Flagyl (and ciprofloxacin) had only given to the plaintiff after the surgery for thumb amputation on 15 September 2011, as summarised at sub-paragraphs (4) and (6) of paragraphs [213] and sub-paragraph (9) of paragraph [213] above. Therefore, on analysis, I consider that Dr Haertsch's opinion has been conflated by that confounding consideration, and in my opinion, that confounding factor is not capable of severance from his opinion generally.
The persuasive power of the emphasised portion of Dr Haertsch's cited opinion at paragraph [289] above concerning the provision of what he referred to as competent professional medical practice must be seen as being significantly limited, if not undermined, by reason of the oracular nature of his comment to that effect, especially where it remains unsupported by cogent reasons: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [59], [87]: UCPR r 31.27(1)(c); UCPR Sch 7 cl 5(1)(c).
Dr Haertsch's comment that the dry gangrenous nature of the plaintiff's thumb was suggestive of an ischaemic event rather than an infective one, was not reconciled with Dr Scott's clinical observation, made during surgery, that the plaintiff did not have "a devascularised finger", referring to the thumb injury: T91.43. In that regard, I prefer Dr Raftos' evidence in which, with reasons, he explained that the plaintiff's thumb was infected.
It is pertinent to here note, that Dr Haertsch's suggestion of an ischaemic event was not supported by any note or statement to that effect in the treatment records, or by any doctor who had actually examined the plaintiff during the course of his assessment and treatment.
Dr Haertsch's description of the plaintiff's presentation as "in fact truly a Cat 5" was at variance with the clinical assessment by Dr Geraghty that it was category 4: Exhibit "1", Tab 8, p 504, par 15. In his oral evidence Dr Scott characterised the injury as "a severe crush injury but not a devascularised finger": T91.40 - T91.43.
In light of Dr Raftos' evidence that grading of an injury is determined by a visual inspection and not x-rays (T120.24), and given that Dr Haertsch was not shown the photograph of the plaintiff's injury as it presented at hospital (Exhibit "C"), absent him exposing his reasoning process for evaluation, it is difficult to see how Dr Haertsch could reliably describe the grading of the injury, and then reliably assign to it a priority classification for the purposes of a liability analysis as demanded by this case.

[52]

Second report of Dr Haertsch

In Dr Haertsch's second report, dated 9 December 2014, which was provided as a commentary upon the first reports of Dr Raftos and Dr Mansour, he took issue with a number of matters arising from those reports.
In that regard, Dr Haertsch challenged the experience of those specialists by critically commenting on their respective specialisations of emergency medicine and paediatrics. In that regard, he argued, somewhat speculatively, without evidence, that "… they would not be involved at the coal face, and therefore not be directly involved and responsible for the treatment of this type of injury": Exhibit "1", Tab 7, p 495.
I reject Dr Haertsch's "coal face" criticism of Dr Raftos and Dr Mansour because Dr Haertsch's cited statement does not necessarily follow as a matter of course with regard to the specialties of emergency medicine and hospital paediatrics, and his "coal face" comment was not reflected by any commensurate challenges made by the defendant to the evidence of Dr Raftos or Dr Mansour. Neither of these experts, had their qualifications challenged by the defendant. Significantly, Dr Haertsch's cited "coal face" criticism did not form any part of the defendant's submissions in the proceedings.
In my view, Dr Haertsch's second report addressed the analysis put forward by Dr Raftos and by Dr Mansour in relatively superficial explanatory terms, as the following examples demonstrate: 1. In addressing Dr Mansour's opinion to the effect that the plaintiff's wound should have been cleaned and irrigated, with a concomitant need for broad spectrum antibiotics to be given intravenously after taking swabs, Dr Haertsch's view of whether or not the wound required irrigation, was based on the absence of any mention or consideration of the wound being contaminated. At section (d) of his report, he did not mention or consider the environmental factor of the plaintiff's hand injury that was said to have come into contact with wet cement or a wet concrete surface. His apparent dismissal of the need to pay particular heed to the circumstances of the injury seems out of keeping with the analytical approach of the other experts who considered the fact of contact with water to be a relevant matter worthy of comment. He did not address the fact that the plaintiff's injury remained at the unexplored presentation stage pre-surgery. According to the clinical records, this of itself, warranted cleansing, as was recognised by Dr Geraghty and Dr Scott on the evening in question. Dr Haertsch did not address the issue of a need to reduce the bacterial load in the wound by washout, as was explained in other expert evidence: Exhibit "1", Tab 7, p 495. Nor did he address the fact that a swab had not been taken at that hospital presentation; 2. On the evidence, in my view, it would seem difficult for Dr Haertsch to reliably conclude that a compound fracture with associated soft tissue damage of the kind apparently evident in Exhibit "C" (which he did not have available to him for his consideration) was unlikely to be a contaminated wound, especially where there had been traumatic contact between that wound and a wet cement surface. In the plaintiff's presenting circumstances, those responsible for treating the plaintiff on the night in question had unequivocally made the clinical decision that the precautionary treatment measure of wound cleaning, irrigation and debridement, should occur as a matter of immediacy, albeit that this did not proceed with immediacy only because the hospital could not provide an operating theatre at the time when it was needed on the night in question: Exhibit "1", Tab 7, p 495. In my view, Dr Haertsch's opinion on this issue should be discounted in the light of the evidence of the clinical decisions made by the treating clinicians for the plaintiff to have urgent surgery; 3. Dr Haertsch only superficially dealt with the antibiotics that were administered at Liverpool Hospital, without mention of the particular antibiotic dosages and the times they were given. That information was available as stated on the hospital medication chart: Exhibit "1", Tab 1, p 284. He did not make reference to that medication chart. Therefore, his reasoning process on the issue of antibiotics is not readily amenable to analysis: UCPR Sch 7, cl 5(1)(c) and UCPR r 31.27(1)(c); 4. In critically identifying that "it is all very well to say the delay [in providing surgical treatment] was not acceptable with a compound fracture, the reality is that it does occur in that delays arise in contemporary practice", the basis of his opinion that the care was acceptable was according to his experience, that opinion was oracular and argumentative in its nature, and it was stated without adequate or satisfactory supporting reasons, as is required by UCPR Sch 7, cl 5(1)(c) and UCPR r 31.27(1)(c): Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [59], [87]; 5. Dr Haertsch's rejection of the claim of inadequate antibiotic cover by saying, sweepingly, and without further analysis, that "there is absolutely no evidence to suggest any veracity" to the argument to the contrary of his opinion so expressed, should not be accepted because of its oracular nature, where it was expressed without adequately reasoned explanation, as is required of expert evidence: UCPR r 31.27(1)(c) and UCPR Sch 7, cl 5(1)(c); 6. Dr Haertsch's rejection of the need for a bone scan or an MRI scan as being unnecessary to investigate for osteomyelitis, where he argued that "under normal circumstances" one would expect an x-ray to show evidence of that condition, was at odds with the contrary evidence of Dr Sathasivam and Dr Scott on that point. Furthermore, his view of what, for the purposes of his opinion, comprised "normal circumstances", was not defined and therefore, his opinion could not be reliably analysed; 7. On the question of how Liverpool Hospital managed the plaintiff's treatment where the plaintiff had evidence of "superficial skin necrosis", Dr Haertsch stated: "Contemporary practice would say that when you have skin necrosis (dry gangrene), this constitutes an emergency situation. Whilst that may well be true for wet gangrene contemporary practice, particularly with respect to dry gangrene affecting the digits is in fact to be conservative, watch it and let the situation declare itself by way of separation." [Exhibit "1", Tab 7, p 496] 1. In defending the treatment given to the plaintiff in terms of "contemporary practice" for addressing dry gangrene, Dr Haertsch introduced an apparent and unexplained, or at least unresolved, contradiction in the cited portion of his report. Whilst stating that dry gangrene constitutes an emergency situation, by implication, he was also saying that it did not constitute an emergency, in that conservative practice was to "let the situation declare itself by way of separation". This vague comment by Dr Haertsch was not specifically advanced as representing the prevailing standard of reasonable care that was expected in the circumstances, where what was at stake for the plaintiff, was the potential for him to lose a substantial part of his thumb, if not the increase, spreading or the exacerbation of pathological processes, whether by infection or dry gangrene, as was identified in the notes of the plaintiff's Hand Clinic visit on 13 September 2011, where the observation was compared to earlier findings: Exhibit "1", Tab 1, p 34. Dr Haertsch did not engage with the detail of Dr Raftos' argument that a more aggressive antibiotic regime was required.
For the above reasons, I consider the opinions expressed by Dr Haertsch to be unreliable for the purposes of the consideration required for the purposes of resolving the issues calling for decision in this case. I therefore consider that his opinions should be given little if any weight.

[53]

Dr Gatus' comments on reports from Dr Raftos and Dr Mansour

Dr Gatus was asked to prepare a further report, which was dated 1 February 2015, by which he provided his comments in reply to the initial reports from Dr Raftos and Dr Mansour: Exhibit "1", Tab 5, pp 470 - 485. This second report by Dr Gatus raised the following commentaries on the points that had been made by Dr Raftos and by Dr Mansour: 1. Dr Gatus considered that the administration of flucloxacillin as antimicrobial prophylaxis (at Campbelltown Hospital and which was administered on the advice from Liverpool Hospital) was appropriate as there was no need to administer ciprofloxacin because there was "no significant fresh or salt water exposure": Exhibit "1", Tab 5, p 471. Dr Gatus' view of what was "significant" in this context, was vague, and requires a closer evaluation to determine whether that was a reasonable prospective view of the circumstances; 2. Dr Gatus considered that antibiotics (being six doses of cefazolin between 22 August 2011 and 24 August 2011) were appropriately administered at Liverpool Hospital until the time of the plaintiff's discharge from hospital on 24 August 2011, where there was stated to have been no apparent problems with the thumb at that time: Exhibit "1", Tab 5, p 472; 3. Dr Gatus did not appear to have considered the events and observations of the plaintiff's presentation to Campbelltown Hospital on 4 September 2011. He only referred to the results of swabs taken on that date. Those results were dated 8 September 2011; 4. Dr Gatus considered that on 6 September 2011, which was 14 days after injury, if an uncontrolled infection caused by Aeromonas hydrophila, coliform and mixed anaerobic organisms was present, then there should have been more clinical signs of infection than just "Necrotic dorsal distal aspect of thumb". That opinion needs to be evaluated in the light of the contemporaneously recorded clinical signs and the other available descriptions, which, included swelling, redness and the presence of exudate from the wound. Dr Gatus then speculated that there was "the distinct possibility the thumb could have been exposed to environmental organisms" after the plaintiff left hospital. The basis for the comment of possible exposure to environmental organisms appears to have been the recorded observation that on 6 September 2011, the plaintiff was not wearing a splint on that occasion which did not give fuel to the theory of exposure to environmental organisms: Exhibit "1", Tab 5, p 474; 5. Dr Gatus considered that the cause of the necrosis of the plaintiff's thumb was dry gangrene, and that the organisms which were isolated from it, were only colonising the dead tissue: Exhibit "1", Tab 5, p 475. The basis of that view requires evaluation against the content of the other expert evidence; 6. Dr Gatus argued that the necrosis seen in the plaintiff's thumb was dry gangrene caused by loss of blood supply, and not wet gangrene, which, if present, would have been due to infection: Exhibit "1", Tab 5, p 478. The basis of that view also requires evaluation against the facts and against the content of the other expert evidence; 7. Dr Gatus considered that the organisms grown from the plaintiff's thumb when a swab was taken at Campbelltown Hospital on 4 September 2011, were colonising organisms that took hold after avascular necrosis had already occurred. He considered that those organisms were not the cause of the necrosis. The basis of that view depends on whether there was avascular necrosis, rather than infection; 8. Dr Gatus stated that as all the organisms found in the cultures grown from the swab taken on 4 September 2011 can be found as normal commensals on the skin, their presence, without other clinical signs and symptoms of infection, did not mean that infection was present. The concept of commensality was not explained per se in the evidence of Dr Gatus. A reference to the Concise Oxford Dictionary, 8th Ed, 1990, defines commensalism as an association between two organisms in which one benefits and the other derives no benefit, as distinct from symbiosis, where there is a mutual benefit: pp 227; 1235. In connection with Dr Gatus' commensals argument, he used examples of situations where the organisms Aeromonas hydrophila, coliform and mixed anaerobes could be found. Those examples must be considered in the course of the evaluation of his evidence: Exhibit "1", Tab 5, pp 478 - 479; 9. Dr Gatus conceded that the three identified classes of organisms that were identified "might have" contaminated the wound when the injury occurred (Exhibit "1", Tab 5, p 479) but that view was expressed to be contingent upon there being no exposure to environmental organisms when the plaintiff went home after discharge from hospital on 24 August 2011: Exhibit "1", Tab 5, p 479. That analysis involved some considerable and unfounded conjectural speculation on the part of Dr Gatus, given that the plaintiff's wound was kept bandaged and dressed at all times the plaintiff was outside of the hospital environment, as is evident from Mrs Gould's evidence of the event of 28 August 2011, and the evidence in the hospital notes for 30 August 2011, 4 September 2011, and the subsequent dates that preceded the amputation of the tip of the plaintiff's thumb. There was no non-conjectural, non-speculative and reliable evidence to suggest the plaintiff's wound had been exposed to environmental organisms after he was discharged from Liverpool Hospital; 10. Dr Gatus acknowledged and explained that: 1. Ciprofloxacin was usually active against Aeromonas hydrophila, but that flucloxacillin, cefazolin and Augmentin Duo Forte had no activity against that organism: Exhibit "1", Tab 5, p 479; 2. Ciprofloxacin was usually active against a wide variety of "coliform" like organisms, whereas Augmentin Duo Forte and cefazolin are active against some, but not all species of "coliform" organisms, and flucloxacillin was inactive against coliform organisms: Exhibit "1", Tab 5, p 479; 3. In the case of mixed anaerobic bacteria, in general, ciprofloxacin, flucloxacillin and cefazolin are inactive against such bacteria, and in general Augmentin Duo Forte is active against such bacteria: Exhibit "1", Tab 5, p 479; 1. Dr Gatus explained that flucloxacillin was recommended for antimicrobial prophylaxis for open fractures as it is active against the most common pathogen likely to cause infection in such fractures, namely, staphylococcus aureus. He added that the initial administration of flucloxacillin in the present case, was appropriate, and in accordance with the Guidelines: Exhibit "1", Tab 5, p 479. This seems to be a matter of interpretation; 2. Dr Gatus also explained that the reason ciprofloxacin is recommended as an alternative prophylaxis for open fractures is if there was "significant fresh or salt water exposure" because the Aeromonas species and Vibrio species of bacteria might be found in fresh or salt water, and therefore "might" be a risk of infection occurring in these organisms: Exhibit "1", Tab 5, p 480; 3. Dr Gatus' opinions on the need for other antibiotics of the kind argued in the plaintiff's case seems to hinge on his particular interpretation of the phrase in the Guidelines: "significant fresh or salt water exposure" as implying immersion in water: Exhibit "1", Tab 5, p 480. On the evidence, I consider that view requires critical evaluation.
Dr Gatus therefore summarised his views as being that: 1. The antibiotics administered in the course of treatment of the plaintiff, namely, flucloxacillin, followed by cefazolin for six doses, then followed by Augmentin Duo Forte was appropriate: Exhibit "1", Tab 5, p 480; 2. Records of the respective examinations of the plaintiff at the Hand Clinic on post-operative days 14 and 21 days respectively, did not show signs of "extensive" infection, and no antibiotics with activity against Aeromonas hydrophila had been administered: Exhibit "1", Tab 5, pp 480 - 481. The adjectival descriptor of "extensive" infection was not further explained, and Dr Gatus' comment needs to be evaluated in conjunction with the content of the Hand Clinic notes and the evaluation of that content over the timespan he has identified; 3. If Aeromonas hydrophila was a "significant" pathogen in the present case then it would be expected a "major" infection should have been present, and, he argued, it was not based on the symptoms and signs: Exhibit "1", Tab 5, p 481. That conclusion seems to have involved a matter of interpretation and timing; 4. If Aeromonas hydrophila was the cause of cellulitis, then infection "usually" manifests itself within 48 to 72 hours: Exhibit "1", Tab 5, pp 480 - 481. The reference to what "usually" happens was not made in an exclusionary context. The fact that something may "unusually" occur does not exclude foreseeability; 5. It was possible that the organisms grown from the thumb swab taken from the plaintiff on 4 September 2011 came from the environment after hospital discharge on 24 August 2011, or alternatively, the mixed anaerobic bacteria could have come from the plaintiff's own skin, and the Aeromonas hydrophila and coliform may not have been on the plaintiff's skin after the accident on 22 August 2011: Exhibit "1", Tab 5, p 481. It appears that those views involved considerable and unfounded speculation on the part of Dr Gatus.
It is apparent that there are a number of elements of Dr Gatus' opinion evidence which were based upon conjectural or speculative matters of assumption. The evidentiary value of those elements requires evaluation to determine the reliability of his opinions which were based upon those matters.

[54]

Dr Mansour's comments on reports of Dr Gatus

On 18 October 2014, Dr Mansour provided a supplementary report which appears to have been requested by the solicitor for the plaintiff in response to the opinions of Dr Gatus, although those reports were not mentioned by name in that supplementary report: Exhibit "A", pp 195 to 196. In that second report, Dr Mansour reiterated his earlier opinions to the effect that: 1. He considered that the overall management of the plaintiff's injury at Campbelltown and Liverpool Hospitals was totally unacceptable. The criticisms of the events at Campbelltown Hospital were that the wound should have been cleaned, irrigated, pain relief and broad spectrum antibiotics should have been given, the wound should have been swabbed, and the bone x-rayed: Exhibit "A", p 195. In my analysis, these criticisms by Dr Mansour of the care at Campbelltown Hospital are for noting only, because they do not form part of the plaintiff's case against the defendant in these proceedings: T2.4; 2. He considered that at Liverpool Hospital it was unacceptable to keep a child with a compound fracture (sic) of his thumb in Emergency overnight with the wound just covered with a dressing instead of it being irrigated and cleansed: Exhibit "A", p 195; 3. He considered that at Liverpool Hospital the antibiotic cover, when commenced, was inadequate, and a much broader spectrum of antibiotic cover should have been given. That opinion appears to have been based on the assumption that the plaintiff had been playing in a canal drain, a factor that was not known when the emergency treatment under present review was provided at Liverpool Hospital. The question which arises for consideration in this context is whether the treatment would have been materially different if the correct history had been provided before the advent of the course of treatment that is now sought to be impugned, was implemented. This is a matter that will require analysis in connection with the identification of the content of the duty of care that was owed: Exhibit "A", p 195; 4. He considered that at Liverpool Hospital, the delay of 16 hours after injury, before any wound exploration and washout was undertaken, was unacceptable: Exhibit "A", p 195; 5. He considered that at the time of the plaintiff's discharge from Liverpool Hospital, the prescription of the oral antibiotic Augmentin Duo (Forte) appeared to be inadequate cover for the injury that the plaintiff had sustained: Exhibit "A", p 195.
Dr Mansour criticised the lack of active treatment intervention on 28 August 2011 when the plaintiff presented "to Liverpool (sic) Hospital" with blood and purulent discharge being evident. He stated that the lack of immediate attention in those circumstances was unacceptable: Exhibit "A", p 196. It is plain from the evidence of Mr Gould and Mrs Gould, as cited at paragraphs [10] and [11] above, that this cited criticism was in reality related to the events at Campbelltown Hospital, and not Liverpool Hospital. Therefore, this aspect of Dr Mansour's criticism requires no further analysis as it cannot be applied to the in-patient events which occurred at Liverpool Hospital. The evidence does not reveal how Dr Mansour was led to assume the particular events of 28 August 2011 occurred at Liverpool Hospital rather than at Campbelltown Hospital.
However, in my view, Dr Mansour's comments, as cited in the preceding paragraphs, are capable of being read as being applicable to the events at the Hand Clinic at Liverpool Hospital on 30 August 2011. Whether they should carry the same force as to those events two days after his focus on the events of 28 August 2011, is a matter to be evaluated in the causation analysis that is required in this case.
Dr Mansour directed his attention to the events of the plaintiff's presentation at the Liverpool Hospital Hand Clinic on 6 September 2011, by which time dry gangrene had set in, and no immediate action had been taken by hospital staff to address that problem. He described that clinical situation as one in which an emergency intervention should have taken place: Exhibit "A", p 196. That view was very different to those of Dr Haertsch as cited at sub-paragraphs (7) and (8) of paragraph [299] above.
In focussing his remarks as cited in the preceding paragraph, Dr Mansour made no comment on the plaintiff's 4 September 2011 presentation at Campbelltown Hospital Emergency Department for post-operative infection: Exhibit "1", Tab 2, p 313. Nothing turns on this, as the plaintiff makes no criticism of the events at Campbelltown Hospital: T2.4.
Dr Mansour concluded that the thumb amputation that the plaintiff subsequently required "could have possibly been avoided if earlier intervention had taken place", and he believed "that the delay in surgical and lack of intense antibiotic IV treatment were contributory to the end result": Exhibit "A", p 196.
The defendant submitted that Dr Mansour's evidence could be easily dismissed: Defendant's submissions, par 56. In my view, that dismissive approach was overly simplistic.

[55]

Dr Raftos' comments on reports of Dr Gatus and Dr Haertsch

On 10 August 2015, Dr Raftos provided a supplementary report in light of the already cited opinions set out within the reports of Dr Gatus and Dr Haertsch: Exhibit "A", pp 223 - 225.
In his second, or supplementary report, dated 10 August 2015, Dr Raftos addressed Dr Gatus' commentaries as follows: 1. Dr Raftos referred to the content of the Guidelines for antibiotic prophylaxis in patients with open fractures as being cephazolin 2g (50mg/kg up to 2g in a child), IV, 8 hourly, or clindamycin where there is a penicillin hypersensitivity: Exhibit "A", pp 223 - 224; 2. Dr Raftos referred to the fact that the plaintiff was initially treated with flucloxacillin, which is not recommended by the Guidelines, predominantly because it is too narrow a spectrum for use in the case of contaminated wounds: Exhibit "A", p 224; 3. Dr Raftos stated that in those circumstances, the appropriate prophylactic treatment for the plaintiff's open fractures was cephazolin or alternatively, clindamycin intravenously. He said that the failure to provide appropriate antibiotic treatment for the plaintiff's open wound represented a departure from what would have been widely accepted peer professional opinion in Australia as competent professional practice: Exhibit "A", p 224; 4. Dr Raftos stated that if the plaintiff had been provided with the antibiotic prophylaxis he described, the likelihood was that the development of osteomyelitis requiring amputation would have been substantially reduced: Exhibit "A", p 224; 5. Dr Raftos identified the fact that the articles provided by Dr Gatus all stressed the importance of appropriate intravenous antibiotic prophylaxis for the prevention of infection in open fractures, and in that context, it was his view that flucloxacillin was not the appropriate prophylaxis for such fractures: Exhibit "A", p 224; 6. Dr Raftos critically commented that, significantly, the articles presented by Dr Gatus suggesting that the timing of surgical wound cleaning was not important: he said those articles, did not represent the current standard of care: Exhibit "A", p 224; 7. In making the point identified in sub-paragraph (6) above, Dr Raftos cited an article by Hull et al, in the Journal of Bone and Joint Surgery, March 2014 (no further citation provided), (the "Hull article") stating "Delayed debridement of severe open fractures is associated with a higher rate of deep infection". Dr Raftos' statement in that regard was not controverted in the Joint Expert report, nor when the experts gave their evidence concurrently. Location of the sites of the fractures which were the subject of that study was not clearly identified in the cited portion of that article: Exhibit "A", p 224. Although that article was dated 2014, it is relevant in a causation analysis; 8. Dr Gatus explained, without contradiction from Dr Raftos, that osteomyelitis is the infection of bone. He further explained that infection of bone occurs when organisms enter bone at the time of injury resulting in multiplication of organisms, and consequential necrosis of bone, and eventually pus emerges from a hole as pressure builds up: T134.49 - T135.6; 9. Dr Gatus expressed the view, without contradiction from Dr Raftos, that the location, type and size of the affected bone can have an influence on the development of osteomyelitis following a fracture, and this in turn influences the amenability of the condition to cure by surgical cleansing in combination with antibiotics: T135.7 - T135.44. That matter was not further explored in the evidence by reference to a fracture of a distal phalanx of a thumb; 10. The Hull article cited in sub-paragraph (7) above, was the source of Dr Raftos' opinion that there was a linear increase of infection of 3 per cent per hour of delay in achieving wound debridement with no distinct cut-off times identified, suggesting that delayed debridement will have a clinically significant detrimental effect on more severe open factures: Exhibit "A", p 224; 11. Dr Raftos observed that the plaintiff's thumb fractures, being classified as either Gustilo Grade II or III, were in a group or type of open fractures for which delays to operative treatment significantly increase the risk of infection: Exhibit "A", p 225; 12. Dr Raftos rejected Dr Gatus' assertion that delays in the surgical treatment of Gustilo Grade II and III open fractures post 6 hours are acceptable, and he also rejected the assertion that such delays do not lead to increased rates of infection. The stated basis of his rejection of those assertions was that they are not supported by the literature, and they do not represent the current standard of care: Exhibit "A", p 225; 13. In considering the standard for treatment of open fractures involving surgical irrigation lavage and debridement within 6 hours, the treatment the plaintiff received to that effect, was at a time of 16 hours post-presentation to hospital, and Dr Raftos considered that this was an inadequate response: Exhibit "A", p 225; 14. Dr Raftos stated that, on the balance of probabilities, if there had been no unnecessary delay in cleaning the plaintiff's wound, and adequate antibiotics had been provided, with debridement having been achieved before midnight on 22 August 2011, the plaintiff would not have developed osteomyelitis that necessitated amputation of his thumb: Exhibit "A", p 225.
I now turn to a consideration of the joint report prepared by Dr Raftos and Dr Gatus following their meeting to seek areas of agreement and better define the basis for any remaining areas of disagreement.

[56]

Joint report prepared by Dr Raftos and Dr Gatus

On 27 January 2016, an expert conclave took place between Dr Gatus and Dr Raftos. The joint report of meeting identified questions on which the experts agreed and disagreed: Exhibit "1", Tab 3, pp 403 - 413.
At their meeting, the two experts agreed that the decision made at Liverpool Hospital to order intravenous cephazolin 500mg three times per day was appropriate, following the initial administration of flucloxacillin: Exhibit "1", Tab 3, pp 405 - 406.
The uncontested view of Dr Raftos was that at Liverpool Hospital, the optimal treatment in the plaintiff's circumstances would have been irrigation of the injured thumb under a general anaesthetic, but if that option was unavailable, a local anaesthetic nerve block should have been used to achieve that: Exhibit "1", Tab 3, p 406. That view must be read as being qualified by the concession made by Dr Raftos in his oral evidence on the possible adverse effects of a local anaesthetic on blood supply to the injured part: T119.14; T120.47 - T120.48.
On the question of whether gentamycin should have been given to the plaintiff, Dr Gatus considered that antibiotic was for use in the case of fractures occurring in a marine environment, whereas Dr Raftos considered that antibiotic was for use in severely contaminated wounds: Exhibit "1", Tab 3, p 407.
Both experts agreed that at the time of the plaintiff's discharge from Liverpool Hospital, the prescription for Augmentin Duo Forte was appropriate, or unobjectionable: Exhibit "1", Tab 3, pp 407 - 408.
Both experts agreed that the various classifications of the plaintiff's wound as being, "clean-contaminated" and "contaminated" and "Dirty", was only of administrative significance, which I interpret to mean that an assessment was made according to some kind of hospital criteria for descriptions of wound type. The views of the experts on this point must be read in conjunction with the evidence of Dr Scott on that subject: Exhibit "1", Tab 3, p 408. In that regard, Dr Scott's classification was self-described as being of a "hit and miss" nature: T99.2, T99.16.
It was unfortunate that Dr Scott was not asked to clarify his views, as an expert surgeon, as to what view or opinion he might have been able to glean from the photograph comprising Exhibit "C", on the question of wound contamination or whether that wound, as seen by an expert, from the photograph, should be considered to be either clean or dirty.
Both experts agreed that dry gangrene is caused by the loss of blood supply. However, Dr Gatus went further, and considered that in this case, the loss of blood supply was due to the crush injury to the plaintiff's left thumb: Exhibit "1", Tab 3, p 408. There was no contemporaneous clinical support from within the medical records for that diagnostic view.
The experts agreed that if an infective process had been present in the plaintiff's situation, the clinical signs and symptoms for this would be heat, redness, swelling and pain: Exhibit "1", Tab 3, p 409. It would seem that the availability of such observations would depend upon the stage of the infective process, in juxtaposition to the timing and the extent of an examination that might serve to detect such signs and subjective matters of observation.
The experts agreed, Dr Raftos deferring to Dr Gatus, that cellulitis resulting from a pathological process caused by the combined organisms Aeromonas hydrophila, coliforms and mixed anaerobes, would be quite severe, and infection by Aeromonas hydrophila can cause horrific rapid spreading cellulitis and wound infections: T132.44. As I read his opinion, Dr Gatus doubted there was severe infection in its combined form: Exhibit "1", Tab 3, pp 409 - 410. That view requires consideration for its basis.
The experts disagreed as to the significance of the presence of the organisms Aeromonas hydrophila, coliforms, and mixed anaerobes (as revealed in the microbiology results of 8 September 2011), so as to indicate the presence of infection of the plaintiff's left thumb on 4 September 2011.
In that regard Dr Raftos considered it was significant that the doctors who were treating the plaintiff at the time of the amputation had considered the loss of the tip of his thumb was likely to be, or probably was, osteomyelitis. That conclusion was a contemporaneous clinical judgment made by the treating doctors at the time, and the evidence for this is the administration of first intravenous, and then oral, antibiotics, which indicated the condition being treated was osteomyelitis. Those treating doctors who gave evidence were not challenged as to that probable diagnosis, as recorded in the Liverpool Hospital discharge summary. Furthermore, as Dr Raftos explained, without contradiction, the cultures taken from the plaintiff's left thumb wound grew Aeromonas, which was an organism that is not found on clean skin, the point presumably being that the plaintiff's skin would have been cleaned at the time of surgery.
Dr Gatus' reasons for disagreeing with Dr Raftos' cited views are, in my view, unconvincing, because of his view that the presence of the identified organisms did not "indicate infection per se". In my view that statement of qualification is a significant one. The reasoning for that view seems to be that there were no other symptoms or signs of the kind as described in paragraph [322] above, to indicate that cellulitis infection was present, indicated to him, that the presence of those organisms "were merely colonising the dry gangrenous thumb": Exhibit "1", Tab 3, p 410.
The experts also disagreed as to the cause of the dry gangrene that was reported as a clinical finding made by Dr Sathasivam on 6 September 2011.
In that regard, Dr Gatus considered that the necrosis and dry gangrene was caused by the crushing injury to the thumb, which had led to a lack of blood supply: Exhibit "1", Tab 3, p 411.
In contrast, on this question, Dr Raftos held the opposite opinion. This was because he took the view there was a stated diagnosis of osteomyelitis on the discharge summary. That diagnosis was not contradicted as being incorrect or improbable according to other evidence, and the growth of the Aeromonas organism, which was treated with the appropriate antibiotics, was a matter that was persuasive to him: Exhibit "1", Tab 3, p 411.
Both Dr Raftos and Dr Gatus agreed that the triage classification of category 4 assigned to the plaintiff whilst in the emergency department, was probably correct, as the plaintiff's condition was not a life threatening injury, but nevertheless, it required medical assessment within an hour: Exhibit "1", Tab 3, p 411.
The experts were asked to address the question of whether, in all the circumstances, the commencement of surgery on the plaintiff's left thumb a little under 13 hours following the plaintiff's presentation to Liverpool Hospital (which was at 20:05 hours on 22 August 2011), occurred in an appropriate time frame.
Dr Gatus' view on that matter was that the described time frame was acceptable: Exhibit "1", Tab 3, p 412. That view was based on the publications he had previously cited, which dealt with the time after injury that debridement of open fractures took place.
In contrast, Dr Raftos reiterated his view that the indication for an earlier operation on the plaintiff's thumb was the severity of the plaintiff's injury, and the likelihood of infection increasing, if the initial operation for surgical irrigation and washout, was delayed past 6 hours: Exhibit "1", Tab 3, p 412.
The experts did not offer any view on whether the plaintiff would have had permanent impairment of the thumb in any event, if an amputation had not been required. In that regard, they considered that question to be one to be answered by the surgeons: Exhibit "1", Tab 3, p 412. There was no acceptable expert evidence to guide a reasoned conclusion on that possibility.
The experts held differing views on the question of whether, if the plaintiff's wound had been cleaned within 6 hours of his presentation to hospital, that is by about midnight on 22 August 2011, on the balance of probabilities, would the fractures have healed without developing osteomyelitis, thereby obviating the need for amputation.
Dr Gatus' position on that question was that the "unbeknown" crush injury led to avascular necrosis of the tip of the thumb so that surgery would have been required: Exhibit "1", Tab 3, p 413.
In my view, a flaw in that view, as expressed by Dr Gatus, was that it was in fact known to the hospital staff that the plaintiff had a crush injury that was severe. It is therefore not correct to say that "unbeknown at the time, there was a crush injury": Exhibit "1", Tab 3, p 413. Dr Gatus' stated view on this question appears to have overlooked the fact that clinically, the crushing injury to the thumb had already been recognised by the staff who had assessed and treated the plaintiff at hospital. In my view, if the known crush injury had caused vascular damage, a diagnostic conclusion, even if only tentative, would most likely have been noted in the clinical records as a matter of significance.
On that question, Dr Raftos reiterated his view that as the loss of the tip of the thumb was due to osteomyelitis, the likelihood of this occurring would have been reduced if surgical cleaning had been performed within 6 hours of the occurrence of the injury: Exhibit "1", Tab 3, p 412.

[57]

Concurrent expert evidence by Dr Raftos and Dr Gatus after conclave

The concurrent expert evidence revealed that Dr Gatus and Dr Raftos approached the antibiotic questions from the different perspectives of their respective specialty disciplines.
Dr Raftos agreed that whether or not gentamycin should be considered as a treatment option by the treating clinician, there is a view open as to whether or not to give that antibiotic, depending on the circumstances: T117.1 - T117.5. That must necessarily mean the circumstances require analysis for the purpose of reaching a clinically reasoned conclusion.
Dr Raftos described optimal treatment in the plaintiff's injury circumstances as involving irrigating and cleaning of the thumb as soon as possible, preferably in the operating theatre under general anaesthetic. This was because administering local anaesthetic would be too painful an option, and not as good an option in the circumstances where the wound could not otherwise be properly cleaned: T119.6 - T119.14.
Dr Raftos reiterated his earlier expressed view that in the case of the plaintiff's injury, such lavage should preferably be carried out within 6 hours of the injury: T119.22. He stated that with the plaintiff's type of injury, research data was to the effect that delaying cleaning of the wound beyond 6 hours, incrementally increased the risk of infection: T119.29 - T119.36.
Dr Raftos stated that for the patient, in the case of an injury of the kind suffered by the plaintiff, if infection developed, the occurrence of delay in such treatment risked the development of what I take to be untoward complications, such as an ultimately stiff joint, or partial loss of tissue, or more tissue loss, and the prolongation of medical treatment, including possible operative treatment, and a prolonged course of antibiotics: T119.40 - T119.45.
Dr Raftos added that after 6 hours, there was a 3 per cent increase per hour in the risk of infection: T120.3. Dr Raftos emphasised that the additive effects of delay in wound debridement increased the rate of infection because of a clinically significant detrimental effect on more severe open fractures of the kind sustained by the plaintiff: T120.1 - T120.8; Exhibit "A", pp 224 - 225 (incorrectly referred to in the transcript as a report dated 10 May 2015 instead of 10 August 2015).
Dr Raftos identified the concern that would accompany an escalating time delay. If there was a 10 hour delay in operative lavage, he said this attracted an unnecessary cumulative risk of 30 per cent of getting an infection: T121.9 - T121.25. Dr Gatus identified the incremental risk after a delay of 12 hours as being 60 per cent: T138.27 - T138.32. In my view, the described increased infection risks associated with such delays are highly significant matters.
In assessing the differing views of Dr Raftos and Dr Gatus on the timing of surgical wound cleaning, I consider that it is of some determinative importance that Dr Raftos' comment on the articles presented by Dr Gatus (to support his view that the timing of surgical wound cleaning was not important), was that those articles did not represent the current standard of care for treatment and management of open fractures because of the need for such wounds to be cleaned as soon as possible, since delays incrementally increased the likelihood of infection: Exhibit "A", p 224.
Dr Raftos agreed that if a local anaesthetic was administered for the purpose of carrying out irrigation, absent the availability of surgical irrigation, in the case of an injury such as the plaintiff's, there could be further compromise of the blood supply, which was also a relevant consideration, and where a local anaesthetic was relatively contraindicated, this leads the clinical thinking more towards treatment under general anaesthetic: T120.26 - T120.48. He added that in the plaintiff's case, with a Gustilo Grade 3 fracture, a general anaesthetic was the only feasible means of cleaning the wound: T121.4 - T121.7.
Dr Raftos was taken to Dr Scott's oral evidence on the description of the plaintiff's thumb fracture as being complex. In that context, he fairly conceded that he would defer to a hand surgeon in relation to what procedure might be best employed in a particular case: T122.23. In that context, I do not read that general concession to exclude the utility or the validity of Dr Raftos' opinions as an emergency physician, where the function of his specialty involves proper management and ensuring appropriate treatment in trauma cases.
Dr Raftos agreed that crush injuries could cause swelling that reduces the blood supply and this could cause gangrene: T121.39. The photograph Exhibit "C" is difficult to interpret, but it appears to show a split in the skin of the plaintiff's left thumb, exposing bone, consistent with the medical descriptions of that injury. Without expert interpretation, it is difficult to draw any further definitive conclusions from that photograph: Blacktown City Council v Hocking [2008] NSWCA 144, at [6], [157] - [158], [167], [169], [172]. However, Dr Raftos gave that expert interpretation, and said the photographs self-evidently showed that the thumb was infected: T134.44.
The hospital notes contain only limited evidence describing the extent of the crushing injury. Dr Geraghty's transcribed notes refer to the interphalangeal joint being on view, with volar displacement of pulp on the distal phalanx, and a nail bed injury, but with apparently normal capillary return. The x-ray report refers to dorsal displacement of the open fracture: Exhibit "1", p 502. Those descriptions bespeak the existence of a crush injury.
Dr Raftos agreed that Dr Scott's description of the plaintiff's thumb fracture was a severe crush injury, and whilst he agreed this involved compromised vascularity, he did not adopt the proposition that there was a severe compromise of blood supply: T122.36. He explained the process as follows: "HIS HONOUR: Does "compromised" mean that it won't heal? WITNESS RAFTOS: No. When you get a crush injury like that, the body's - firstly blood vessels are broken and tissue is broken down so fluid leaks out, and then the body's response to the injury is to send more healing fluid there, and all of that has to be contained within the confines of the skin, so that increases the pressure of the tissues. When you consider that the small arteries that supply the tissues operate at a mean arterial pressure of between five and 15 millimetres of mercury, it may be that the pressure caused by the swelling in the tissue might increase above that and therefore compromise the blood supply. So it's the pressure and the damage to the blood - blood vessels that - that compromises the blood supply." [Emphasis added] [T122.38 - T122.49]
In cross-examination, Dr Raftos was asked whether, in a trauma hospital, when patients were assessed as having a more urgent need for surgery, those patients would take precedence or priority over other patients who were assessed as having a lesser degree of precedence or urgency: T123.11 - T123.17. However, in agreeing with that proposition, Dr Raftos added a significant qualification: "WITNESS RAFTOS: Clearly if someone is dying they need to go to the operating theatre more urgently than someone who's not. Yet at the same time, if you - if you're operating as a trauma centre, which is a prestigious situation, then you need to ensure that the resources are there so that everyone gets appropriate treatment." [Emphasis added] [T123.19 - T124.23]
At this point, it is significant to note that the defendant did not seek to establish a defence invoking Pt 5 of the CL Act, based on arguments concerning limited or unavailable resources, whether involving manpower considerations, physical resources, or cost, that would have prevented it from opening an operating theatre in order to treat the plaintiff as an emergency once he was displaced as the next case on the trauma operating list, and where he otherwise lost the opportunity for the initially planned surgery to take place in the only available operating theatre on the night in question.
Dr Raftos was questioned about the reduced likelihood of the loss of the tip of the plaintiff's left thumb if surgical cleaning had been performed within 6 hours of presentation to hospital: T124.23 - T124.31. Dr Raftos' response was as follows: "WITNESS RAFTOS: I can't say that it would have been 55% improved or 45% improved because there are no data to inform that. I can say that the likelihood that he would have developed an infection, an osteomyelitis, would have been reduced by, say, 20 to 50% if the wound had been cleaned within six hours. SERGI: Can I take it, professor, that that assessment of 20 to 50% is based on your opinion that in fact Robert had osteomyelitis and that the osteomyelitis was the cause of an infection? Is that right? The cause of the loss of the digit. WITNESS RAFTOS: I mean the surgeon said that he had osteomyelitis. That was the doctors who were treating him said that he had osteomyelitis, with good reason I think, and I'm just echoing that opinion. SERGI: It's your opinion, is it, that the osteomyelitis that you've just referred to was caused by an infection. Is that right? WITNESS RAFTOS: Yes." [T124.33 - T124.50]
Dr Raftos had considered the appearance of the plaintiff's wound as shown in the copy photographs that comprised Exhibit "D" and Exhibit "F": T126.10 - T126.13. In the context of the plaintiff having been assessed by Dr Sathasivam as having dry gangrene on clinical review on 30 August 2011 and 6 September 2011, Dr Raftos agreed that if the plaintiff had wet gangrene, there may have been some redness, possibly some discharge from the wound, possibly some tenderness, and maybe, but not necessarily, some evident softness, and the plaintiff may have had a temperature, depending on the extent of the infective process: T125.26 - T125.48.
Dr Raftos and Dr Gatus took different views of how the photograph comprising Exhibit "F" should be interpreted. Dr Raftos stated the redness of the thumb, the black tip, and the fact that exudate was coming from the area of the wound indicated there was infection present: T134.41 - T134.44. I found that evidence compelling for the conclusion that the thumb was infected.
Dr Gatus did not comment on the specific components of the evidence by Dr Raftos in that latter regard. However, in a qualified way, as I read his evidence, he sought to dismiss the significance of photograph Exhibit "F" by stating that the appearance shown in that photograph "was not due to infection": T132.50. When that stated opinion is read in the context of Dr Gatus' discussion on the relationship between the horrific infections due to Aeromonas hydrophila and related marine organisms, and gangrene, his view seemed to have been qualified by the adjectival statement that the appearance shown in Exhibit "F" was "not due to Aeromonas causing a rampant infection": T132.50.
Dr Gatus' evidence in that regard arose in the context of a discussion of whether the plaintiff's history of having come into contact with wet cement (as variously described) was a sufficient circumstance to justify the ordering of either gentamycin or ciprofloxacin. That evidence was as follows: "WITNESS GATUS: I disagree. I disagree with Dr Raftos's assumption, which is in hindsight. When that child came to Campbelltown, the history given was that he slipped over on wet cement. There was nothing to say a boulder was involved, there was nothing to say a drain or moss covered rocks were involved. That was the history given. Now, there are two issues about this. Number 1, falling over on wet cement does not imply it's a marine environment, and the implication of a marine environment is we find aeromonas in marine environments. We find them in ponds and swamps in the Hawkesbury River. That's where they exist naturally. Now, if he fell over on wet cement - and every day when it rains in Sydney people have motorbike accidents in the rain, they have car accidents in the rain, they end up with fractures. When they go to hospital, although it's wet, they are not given extra prophylaxis above flucloxacillin or cefazolin because it's wet. You don't do that. So they won't be given through samples. Ciprofloxacin, which would be an alternative to gentamicin, right, and is in recommendations in therapeutic guidelines to give in addition to flucloxacillin if you have fractures in a marine environment, and I've seen probably six people who've been in the Hawkesbury River, they've had severe open fractures, speed boat propellers, jet skis go into them, they've ended up with horrendous infections. Absolutely horrific infections due to aeromonas hydrophila and to some other marine..(not transcribable)..it follows that if we are saying that this gangrenous thumb, the gangrene was caused by aeromonas hydrophila and the boy was not given proper prophylactic antibiotic, ie ciprofloxacin on admission, then if that is the case and I said that this can cause horrendous infections, I've seen them, if that's the case, then the dates these photographs were taken, that is not due to infection. It is not due to aeromonas causing a rampant infection. THORNTON: Which photograph are you referring to, professor? WITNESS GATUS: Either, the two ones which show the gangrene. THORNTON: Exhibits D and F, your Honour. WITNESS GATUS: And I just make a very simple analogy and really make a strong point here. This boy has a crush injury. He has an aeschemic thumb. It's going to die. It will turn black, there is no doubt, and that's called gangrene, and it's dry gangrene. He has a smell emanating from that thumb. Some of us have smells coming from our socks and yet there's nothing wrong with our feet. We don't have infection there. And the reason why we have those smells is that organisms which live on our skin normally are happily multiplying down there, they're giving off these chemicals, and we can smell them. Just because you have a smell doesn't mean to say you have an infection, it's just a natural environment of organisms. So this gangrenous necrotic thumb here where we grew aeromonas, coliforms and anaerobic streptococci, together those three groups of organisms, if they were causing an infection, and it's three weeks or so down the track from injury, I would have expected a severe infection to have been present outside of the confines of that gangrene. HIS HONOUR: Is that in any way qualified by the nature of the vascular injury? WITNESS GATUS: Vascular injury, all that means is that the blood supply is cut off, end of story. It will die. You don't need infection for it to die. HIS HONOUR: Yes, I understand that, but when you say I would have expected a severe infection, do you need to qualify that statement by the nature of the vascular injury? WITNESS GATUS: I'm not sure what you mean. HIS HONOUR: My question is answered by your answer. SERGI: With respect, your Honour, I think that needs clarification. HIS HONOUR: No, I asked a question which was self evident. The answer was no. SERGI: I'm not sure what you mean. HIS HONOUR: The question will either stand to be understood or afflicted by lack of clarity. I don't propose to ask another question along that line but counsel is at liberty to clarify anything that's been asked. THORNTON: Professor Raftos, your Honour, would like to comment on that answer. HIS HONOUR: Yes, certainly. WITNESS RAFTOS: Could I make a couple of comments? There have been a number of cases of deaths from hepatic failure from flucloxacillin in Australia, well documented. Dry gangrene doesn't smell. A child in hospital is bathed every day. They don't smell. These pictures show that the tip of the thumb is black but there's redness, exudate, and evidence of infection in the thumb proximal to the gangrenous tip. Dry gangrene doesn't smell. HIS HONOUR: Do you accept that, Professor Gatus? WITNESS GATUS: No, I don't. HIS HONOUR: Why do you not accept it? WITNESS GATUS: Dry gangrene per se doesn't smell but once you have organisms which - like your socks, when you wash your socks they don't smell; after you've worn them for a day they can smell. It's the same principle here. Dry gangrene is death of tissue. Organisms can colonise that dead tissue. They can colonise it and there's a difference between colonisation and infection which HIS HONOUR: Yes, I understand it. Professor Raftos' comment was a simple statement: dry gangrene does not smell. When I asked whether you agreed with that statement you said no, but then you reiterated that dry gangrene doesn't smell, so I'm just wanting to understand your specific answer to that specific question. WITNESS GATUS: It's in case it's misinterpreted, the whole question gets twisted around. Dry gangrene doesn't smell because it's death of tissue, but dry gangrene can be colonised with organisms, and you will get smell emanating from that area, but what it doesn't mean, it doesn't mean infection is present, and that's what I have to make sure that people understand because in turn what the implication of that is is that Professor Raftos is saying infection was the cause of this black thumb, I'm saying it was not the cause. Colonisation of organisms was secondary to death of tissue, which is dry gangrene, because of compromisation of blood supply. WITNESS RAFTOS: I think the second two photos are self evident. The whole of the thumb is red and the tip is black. The whole of the thumb is swollen and the tip is black and there's exudate coming from the area of the wound indicating that it's infected." [T132.22 - T134.44]
I gained the impression that the general focus of Dr Gatus' oral evidence concerned the organisms that were relevant to the care of the patient rather than the burdens involved in the process of clinical decision making: T124.12. In contrast, the tenor of his first report, as summarised at paragraphs [254] to [287] above, was to focus on the decision making over the timing of surgery.
Dr Gatus took a very different view to Dr Raftos on the status of the Guidelines for antibiotic use in the case of open fractures.
Dr Gatus referred to his citation in his reports, of the Australian publication entitled Therapeutic Guidelines Antibiotics, as "a de facto standard for the prescribing of antibiotics in this country for a host of infectious conditions", including the recommendation for the prophylactic use of flucloxacillin in the case of open fractures. In referring to those Guidelines he reiterated there was no mention of the use of gentamycin for such fractures, and he identified the complication of vestibular toxicity as a possible consequence of the use of that antibiotic: T126.39 - T127.1.
His evidence in that regard went on to state: "There is no mention in the guidelines about the use of gentamicin, and there are two reasons for that. Number 1, it is not efficacious for an open fracture, and number 2, it can be a very nasty antibiotic, and it can give you irreversible vestibular toxicity, where you can't walk for the rest of your life. As I reiterate, it does not appear in those guidelines. The reason for flucloxacillin being recommended is that the organism we fear is an organism called staphylococcus aureus, and it's a thing which lives on the skin of maybe 40% of people on the earth. We know from experience that when you have an open fracture this organism residing on your skin can enter that fracture and cause an infection, hence flucloxacillin is the antibiotic of choice. If you're allergic to flucloxacillin you are given an alternative, and the alternative is cefazolin, and cefazolin has activity against staphylococcus aureus. I disagree with Professor Raftos, who said that cefazolin is a broad spectrum antibiotic and is given to cover other organisms which flucloxacillin does not. In therapeutic guidelines, the recommendations for the use of cefazolin is to patients who are allergic to penicillin and therefore flucloxacillin. So both these antibiotics are given for the same reason, and I reiterate, to prevent infection with staphylococcus aureus. That's point 1. Point 2, the - the premise that the wound was not irrigated or debridement within six hours is completely irrelevant, and the reason why that question is irrelevant is because number 1, flucloxacillin followed by cefazolin was given as prophylaxis. That was completely appropriate and in accord with the recommendations. Secondly, staphylococcus aureus was never isolated from the wound." [T126.48 - T127.22]
However, and significantly, Dr Gatus later qualified his evidence about vestibular toxicity during cross-examination, where he conceded that the incidence of vestibular toxicity was low: T129.41. That description was later further clarified as being extremely low, or rare, but he noted that when it occurred, it was irreversible, and at its worst, it could interfere with the ability to walk: T129.43 - T129.47.
There appears to be a contradictory aspect of Dr Gatus' evidence in which he expressed disagreement with Dr Raftos on the question of the timing of wound debridement within 6 hours of injury. In that regard, Dr Gatus gave the following evidence: "HIS HONOUR: I need to understand that last point, because you said rather adamantly that the question was irrelevant, but I want to make sure my understanding is clear. Are the antibiotics of which you are now speaking administered intravenously? WITNESS GATUS: Yes. HIS HONOUR: Therefore dependent upon circulation being intact to reach their targets? WITNESS GATUS: Yes. HIS HONOUR: So if there's a crush wound where circulation is to whatever degree, possibly unknown, (un)compromised [Incorporation of transcript correction from 'uncompromised' to compromised] WITNESS GATUS: Yes. HIS HONOUR: wouldn't the sensible thing to do be to ensure lavage to clean the wound and stop or arrest the infective process in part or whole? WITNESS GATUS: No. It's - two answers to the question. Firstly, we know that the administration of a prophylactic antibiotic is essentially mandatory for open fractures. We're - that's established. Secondly - and I disagree with Professor Raftos - is the necessity to debride a wound within six hours of injury. Modern medicine, we try and practise it according to evidence, and the contemporary evidence is that - and I submitted two publications regarding this - that there is really no increase risk of infection if you delay debridement of the wound greater than six hours provided a prophylactic antibiotic has been administered. So that's my answer to the question. Again, I say it's not relevant that this would needed debridement. My view is that - and this came out in the history, it didn't come out originally when the boy presented to hospital, because the history given was not the correct history. It transpires a rock, we believe, crushed this boy's thumb. That injury is severe, it is a crush injury, and in hindsight in all probability there is death of tissue, and there was death of tissue. And the death of tissue which is described as dry gangrene is a result of that crush injury. It is not the result of infection of a wound, because when infection of a wound occurs and you get gangrene, the gangrene is described as wet gangrene. This was dry gangrene, and dry gangrene is typical of loss of blood supply to an area as a consequence of, in this case, a crush injury." [Emphasis added] [T127.28 - T128.18]
The cited portion of Dr Gatus' reasoning, as emphasised above, must be reconciled with the clinical observation that was made by Dr Scott, to the effect that the severe crush injury referred to did not result in a devascularised digit: T91.43.
The apparent contradiction arose in Dr Gatus' evidence because the annexure to his report of 11 August 2014, comprising the previously cited Gustilo article, concluded that open fractures require emergency treatment, including adequate debridement and copious irrigation: Exhibit "1", Tab 9, p 429. Dr Gatus' evidence, as cited above, does not appear to take into account the need for emergency treatment of the kind referred to, as was stated in the first point in the conclusion to the article he cited as an annexure to his report, the terms of which are set out at paragraph [269] above.
I therefore do not accept as reasonable, Dr Gatus' rejection of Dr Raftos' opinion that prompt wound irrigation was required. I do not accept Dr Gatus' opinion that it is unnecessary for wound debridement to occur within 6 hours. Dr Gatus' disagreement with Dr Raftos on that point appears to be at odds with the stated conclusion in the primary article upon which Dr Gatus himself relied in his report dated 11 August 2014.
When Dr Raftos was given the opportunity to comment upon Dr Gatus' evidence, he identified the contemporary standard practice to have been as follows: "HIS HONOUR: Professor Raftos, do you want to comment on what's been said? WITNESS RAFTOS: I accept that Professor Gatus has published papers suggesting that there is no time imperative in the cleaning of open fractures, but there's a body of evidence, part of which I've produced, that suggests that that's not the case for serious injuries. Standard practice at the time in the hospitals in which I worked was to use cefazolin as the - as the primary antibiotic for open fractures for the reason that - and to consider the use of gentamicin, and that's I think standard practice pretty much around the world, for the reason that certainly staphylococcus causes a large proportion of wound infections and osteomyelitis in open fractures, but it's not the only cause. I think when you look at these injuries you need to consider the context. This injury occurred in dirty water. Considering that, there are different bacteria - it's not only the bacteria that live on your skin that can cause the infection. It's bacteria that can be introduced from the environment as well, and I think you need to consider that, and we always would consider that when considering which antibiotics we use for prophylaxis. HIS HONOUR: I think the dirty water assumption came a bit belatedly, but I want to go back a step. When it was assumed that it was a rock that caused the injury, the fractures, when a patient in that situation presents to emergency is the assumption from that history that this occurred on clean skin? That is, an eight year old child playing with a rock. WITNESS RAFTOS: If - what's a common circumstance? If an older person was walking along, rolled their ankle, broke their ankle and part of the bone protruded through the skin, then - and they were walking down the street, then it would be reasonable to assume that the - the - the - the pathogens that might cause an infection in that wound would be skin - skin bacteria, because it's not in contact with anything else. Whereas if an open fracture occurs in the dirt, or with a rock which is - you know, contains bacteria, then - or in - in the water, then you have to make the assumption that it's possible that certainly skin bacteria might cause the infection, but also bacteria from the environment may as well, and certainly standard practice in the hospitals in which I work would be to treat those patients with a slightly different antibiotic regimen than that which you would use for a person who had an open fracture in an uncontaminated sort of environment." [Emphasis added] [T128.20 - T129.9]
In explaining the opinions of Dr Gatus on the antibiotic issue, it emerged from the evidence of Dr Raftos that, in the clinical setting, the use of the Guidelines for the use of antibiotics was not a resource that was universally used by clinicians, especially where senior clinicians instead used their experience, and their evidence-based learning, to inform their choices, as the following extract of the evidence of Dr Raftos explains: "HIS HONOUR: I understand from what Professor Gatus has said by reference to the guidelines for use of antibiotics that these are considered in clinical practice. I just want to be sure, or have a better understanding of their clinical status. Are they protocols which are adhered to slavishly, as in a box ticking exercise, or are they matters that require interpretation on a case by case basis in the clinical setting by those treating the patient? WITNESS RAFTOS: Very junior doctors may consult the therapeutic guidelines. Senior doctors tend not to use them, tend to use experience. They are recommendations from a group of people. HIS HONOUR: Mention has been made of considerations of evidence based medicine. I understand that that to be an epidemiological process. How is that managed or considered in the clinical setting? WITNESS RAFTOS: I think that we all read extensively. I certainly read in my area of practice on a daily basis, and what we - what I tend to read is - is randomised control studies, and I look at those studies to see if there's anything in those studies that might change my practice, and that happens reasonably frequently. I - I will take evidence from a randomised control study, discuss it with colleagues and incorporate it into my practice. So I think that's how it works." [T129.11 - T129.32]
That extract from the evidence highlighted the differing approaches of the two experts, namely, the practical clinical approach of the emergency physician in the emergency setting, and the more theoretical analysis of the medical microbiologist, a matter that also needs to be reconciled in the required analysis.
In contrast to the opinion of Dr Raftos on the use of antibiotics, Dr Gatus' views on the appropriate antibiotic to be given in the plaintiff's circumstances seemed to have been based on Guidelines, rather than the exercise of clinical judgment of what was appropriate according to the prevailing circumstances, as appears from the following extract of his evidence: "WITNESS GATUS: Couldn't tell you, because we don't know - in the world there are - must be - I don't know, millions and millions of doses of gentamicin given. I don't know what the incidence of vestibular toxicity would be. Halmagyi from Royal Prince Alfred, he's published a series of cases. He's pointed out it's rare, but the main thing is if it happens to you it is irreversible. You cannot walk again. And as I say, we have alternatives which we use. But - but I must reiterate therapeutic guidelines - gentamicin does not appear in the recommendations for the prophylaxis of open fractures. So the question is a non starter to begin with, because it is not there on evidence, and that's why we don't use it." [T130.2 - T130.11]
Dr Gatus' last cited answer must be read as being significantly qualified. This is because he was not able to throw light upon the actual incidence of the complication of vestibular toxicity. However, it was plain from the evidence that the risk of such a complication occurring appeared to me to have been over-emphasised in his evidence, especially given the evidence that its occurrence involved an extremely low or rare incidence: T129.41 - T129.47.

[59]

Evaluation of Dr Mansour's reports

In its submissions, the defendant sought to dismiss entirely the significance of Dr Mansour's opinions on the basis of the assumptions which based his opinions. The defendant also suggested that because other practitioners who had provided reports were more relevantly qualified, it was suggested, their opinions should therefore be preferred to those provided by Dr Mansour: Defendant's written submissions, par 56, par 82 - par 83.
For the reasons that immediately follow, I reject the defendant's submissions which questioned Dr Mansour's qualifications for expressing the opinions he has set out in his reports. My review and summary of his reports appears at paragraphs [249] to [252] and [301] to [310] above. My conclusions on Dr Mansour's evidence draw upon that summary.
The defendant did not raise any qualification-based objection or challenge to the admissibility of Dr Mansour's reports when they were tendered in the course of the hearing. The defendant did not seek a voire dire examination of Dr Mansour in respect of his qualifications. I consider that Dr Mansour's position and experience as a senior hospital paediatrician at a major hospital which deals with trauma cases, adequately qualifies him to express opinions on the medical matters that are in issue in the proceedings. I consider that the unchallenged content of Dr Mansour's curriculum vitae, demonstrates him to have ample professional qualifications, accreditations, practise, skill and experience, including his teaching positions, lectureships, and his authorship of relevant professional publications, satisfactorily indicates that he is a suitably qualified expert to comment on the medical issues raised in this case: Exhibit "A", pp 180 - 194.
That said, there were a number of assumptions identified within Dr Mansour's reports which were clearly not precisely matched with sufficiently similar or like evidence given in the proceedings: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9]. That disparity, where it appeared, rendered those aspects of his reports unreliable where the basis for the assumptions he made or was asked to make, was not reflected in the evidence. The plaintiff's solicitor's letters of instruction on matters to be assumed by Dr Mansour for the purposes of forming his opinion, were not tendered by either party. This made it difficult to evaluate the basis upon which he had formed some of his opinions.
On reviewing Dr Mansour's reports for the purposes of an evaluation of their reliability, I have concluded that: 1. Dr Mansour's opinions should be viewed with caution, but not dismissed outright, as was submitted by the defendant. This is so especially where aspects of his opinions remained unchallenged and rationally accorded with common sense, or where such aspects were supported by other rational and unchallenged expert evidence; 2. Before acceptance, the opinions expressed by Dr Mansour that were based on evidence assumptions sufficiently like the evidence that was called and accepted in these proceedings, should be considered in light of the preponderance of the expert evidence, to identify points of commonality with other opinions that were based on accepted evidence. 3. The components of Dr Mansour's opinions which should be given no weight in the consideration are identified as follows: 1. Dr Mansour's criticism of Campbelltown Hospital for not promptly irrigating the plaintiff's wound and giving him a broad spectrum antibiotic, as outlined at paragraph [251] above, should be discounted. The reasons for discounting that evidence is, not because it was irrational or wrong, far from it, but simply because it did not relate to an issue in the proceedings, as the plaintiff no longer seeks to make a case against Campbelltown Hospital: T2.4. 2. Dr Mansour's criticism of the clinical events at Campbelltown Hospital on 28 August 2011, wrongly assumed to have taken place at Liverpool Hospital, therefore that opinion should be disregarded. As explained at sub-paragraph (6) of paragraph [252] above, those events do not form part of the plaintiff's case, as they relate to Campbelltown Hospital, and do not relate to Liverpool Hospital; 3. Dr Mansour's specific criticism of the antibiotic treatments given to the plaintiff, namely, the initial administration of flucloxacillin at Campbelltown Hospital, and the prescription of Augmentin Duo 500mg at discharge from Liverpool Hospital, as identified at sub-paragraphs (2) and (4) of paragraph [252], above needs to be discounted. This is so because, first, the dose of flucloxacillin at Campbelltown, although given on the advice of the Liverpool Hospital registrar, was not part of the plaintiff's case against the defendant. Secondly, the criticisms of the prescription for Augmentin at the time of the plaintiff's discharge from hospital, must be read in light of the joint and the concurrent expert evidence in the circumstances where, for whatever reason, Dr Mansour was not asked to participate in that process. Clearly, he should have been invited to be a part of that process as he had expressed a relevant opinion on the subject of the appropriateness of the antibiotics administered to and prescribed for the plaintiff. The absence of Dr Mansour from the concurrent evidence process should not be read as a criticism of him.
Following on from that analysis, it nevertheless remains clear that Dr Mansour's opinions on a number of matters where he was critical of the care provided by the defendant, remain open and available for acceptance, subject to a consideration of the content and detail of the other expert opinions. Those areas of dispute where his opinions remain relevant for consideration are: 1. His criticism of an unacceptable delay after injury, in the management of the plaintiff's compound fracture by keeping him in the Emergency Department overnight, without first achieving an irrigation and cleaning of the wound, which, by implication from the other unchallenged medical evidence, could only be feasibly achieved under a general anaesthetic in an operating theatre; 2. His criticism of the failure at the Liverpool Hospital Hand Clinic on 6 September 2011, to appropriately react to the presenting necrotic appearance and condition of the plaintiff's thumb, (presumed at the time to be dry gangrene) and ignoring the emergency nature of that presentation, and the related failure to arrange a bone scan, or an MRI, to exclude osteomyelitis, and the related failure to admit the plaintiff for daily dressing changes, and instead, allowing the next follow-up review to be put off until a further week had passed; 3. His criticism that at the presentation of the plaintiff at the Hand Clinic on 13 September 2011, there was an unacceptable failure to institute a more aggressive regime of intravenous antibiotics, and instead, the oral antibiotic Augmentin Duo 500mg was continued.
The defendant's failure to challenge those aspects of Dr Mansour's opinions leaves those opinions open for acceptance. This is so because they accord with common sense and because they are in accordance with the general tenor of other acceptable expert evidence. Absent cross-examination of Dr Mansour on those aspects of his opinions, they cannot be sweepingly dismissed, as was submitted on behalf of the defendant.

[60]

Evaluation of Dr Haertsch's reports

Dr Haertsch's reports in this case have already been critically evaluated in detail, as outlined at paragraphs [288] to [300] in these reasons. In summary: 1. In defending the antibiotic regime given to the plaintiff, Dr Haertsch appears to have confused, or has not adequately differentiated, the timing of the various antibiotic regimes that were variously provided to the plaintiff before and after the thumb amputation surgery. As explained at paragraph [290] above, his comments in defence of the antibiotic regime given to the plaintiff "at one stage", referring to Flagyl and ciprofloxacin, related to those antibiotics being given in the post-amputation period. That was an irrelevant consideration because at that time a different stage of the plaintiff's condition was being treated compared to the initial presenting condition. Accordingly, I consider that his opinion on that matter lacked the required degree of rational clarity for it to constitute reliable expert evidence as it drew upon irrelevant considerations: UCPR r 31.27(1)(c); UCPR Sch 7 cl 5(1)(c); 2. Dr Haertsch's statement that the defendant and its staff had acted in a manner which was accepted as competent professional medical practice, was an unacceptably oracular sweeping statement, which was inadequately reasoned, including his analysis that it was an ischaemic event rather than an infective process that was the cause of the plaintiff's gangrenous thumb tip: UCPR r 31.27(1)(c); UCPR Sch 7 cl 5(1)(c); Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [59], [87]; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, at [91]. This factor also served to undermine the reliability of his opinions; 3. Dr Haertsch's "coal face" argument, by which he sought to dismiss the utility of the opinions of Dr Raftos and Dr Mansour, involved an unfounded argumentative comment, and his reports did not adequately and rationally engage with the detail of the expert evidence that was contrary to his own views, and he did not adequately expose for examination the factual basis for his expressed opinions. This was a matter that could have been explored in the process of concurrent expert evidence but the parties did not arrange for Dr Haertsch's inclusion in that process.
On the basis of the foregoing evaluation, I consider that in this case, very little, if any, weight should be placed upon the opinions of Dr Haertsch, where his views are seen to be in conflict with the other experts who have provided reasoned reports, where those experts have provided evidence that was explanatory of the views expressed in their reports, as is required by the rules: UCPR r 31.270(1)(c); UCPR Sch 7 cl 5(1)(c). I consider that Dr Haertsch's hyperbolic "coal face" argument should carry no weight at all as it did not form the basis of challenge to Dr Raftos or Dr Mansour, and it was not supported by a process of adequate reasoning to enable such a view to be entertained.

[61]

Evaluation of evidence by Dr Raftos

The reports, commentaries, joint report commentary, and the oral evidence of Dr Raftos, has been respectively reviewed in these reasons at paragraphs [242] - [247], [311] - [312], [314] - [338] and [339] - [372], the latter section of which included the concurrent evidence of both Dr Raftos and Dr Gatus.
In my view, there was nothing arising from Dr Raftos' written opinions as set out in his two reports and in his joint report with Dr Gatus, that raised doubts about the reliability of his expert opinions. His reports were compliant with the requirements of UCPR r 31.27(1)(c) and Sch 7 cl 5(1)(c). I have reached the same conclusion concerning the reliability of his expert opinions contained within his oral evidence. In his oral evidence, without argument, Dr Raftos made appropriate concessions at the points where it was reasonable for him to have done so: T116.29; T117.5; T120.34; T121.33; T122.36; T124.21; T125.24; T126.19.
In the course of submissions, the defendant took a position that was critical of Dr Raftos because, in citing the Hull article, as outlined at sub-paragraph (7) of paragraph [312] above, and as appears in Dr Raftos' oral evidence, his views on the appropriate standards of care seemed to relate to the present time, or 2014, and not to the events of 2011. Having given that submission close consideration, I have concluded the defendant's submission in that regard should be rejected as flawed for a number of reasons.
First, the defendant's submission relies upon an artificially narrow view of the content, context and focus of Dr Raftos' evidence, whereas I consider that a fair reading of Dr Raftos' reports and evidence as a whole, indicates his opinions related to the time of the treatment of which the plaintiff complains, namely 2011.
Secondly, Dr Raftos' view was clearly stated as being referable to the manner in which the plaintiff was treated in 2011. This view is confirmed on reviewing pages 11 and 13 of Dr Raftos' first report, dated 10 April 2013, where he stated that the hospital's treatment of the plaintiff represented a departure from what would have been widely accepted peer professional opinion in Australia in 2011: Exhibit "A", pp 213 and 215.
Thirdly, in criticising the antibiotic regime which Liverpool Hospital had administered to the plaintiff, a fair reading of Dr Raftos' first report, at page 11, indicates that his criticisms were framed as being contemporaneous to the treatment, and did not represent hindsight views as implied by the defendant's submissions: Exhibit "A", p 213. It is evident from his chronologically-based commentary, that Dr Raftos' analysis proceeded upon the proper analytical pathway of a prospective and not a retrospective consideration.
Fourthly, and significantly, in cross-examining Dr Raftos on the occasion that concurrent expert evidence was given by him and by Dr Gatus, counsel for the defendant had an unfettered opportunity to fairly put the assertion of hindsight analysis to Dr Raftos for his comment. Procedural fairness required such a course to be pursued if this argument was to be raised. Counsel for the defendant did not do so, and now, as a consequence of that failure, the defendant cannot reasonably or acceptably argue in submissions that Dr Raftos' analysis on this point is flawed on account of the time frame from which his opinions were given: Browne v Dunn (1894) 6 R 67. When that issue was exposed in argument, the defendant made no application to re-open its case for that purpose.
In my view, Dr Raftos' commentaries were all appropriately prospectively reasoned, and were based on matters that were sufficiently grounded in the factual evidence to make them reliable.
In submissions, the defendant has focussed on the comment by Dr Raftos, raising the abstract from the 2014 Hull article, which he extracted on page 2 of his second report, which was dated 10 August 2015 (Exhibit "A", pp 224 - 225), arguing it was irrelevant. On a fair reading of Dr Raftos' evidence, it is plain that he only cited the Hull article in response to the articles produced by Dr Gatus so as to demonstrate a mixed duty of care and causation point on the escalating rate of infection if operative treatment were to be delayed: Exhibit "A", p 225.
It is plain that Dr Raftos' cited argument was raised in response to the articles that Dr Gatus had introduced as an annexure to his report. The fact that Dr Raftos referred to a 2014 article in response to Dr Gatus' opinions did not necessarily mean that his other views, which were clearly framed as at 2011, should in any material way be disregarded, or that they should be seen to have been undermined. In that regard, his evidence must be fairly read as a whole.
It is important to recognise that, in proceedings such as this, the outcome is not to be determined by the content of articles from journals alone. If the content of journal articles is to be relied upon, such reliance must be accompanied by cogent explanatory expert evidence clearly establishing the status of the article and the point to be made in, or extracted from within, such articles. This is so especially where, according to the expert evidence, and some parts of the articles themselves, different levels of evidence in the epidemiological sense apply to the academic or authoritative status of the articles.
In this case, Dr Raftos' evidence was not predicated upon articles, or guidelines that required interpretation. Instead, his evidence by which he identified criticisms of the treatment the defendant gave to the plaintiff was based on his exposition of principles of practise that constituted the standard of care he described, which were in turn based upon his training, experience and knowledge of contemporary standards of practice in 2011. In my assessment, on a fair reading of Dr Raftos' evidence, his reasons were cogent and framed prospectively, and adequately served to explain the opinions he had reached, as was set out in his reports, and in his oral evidence.
I therefore conclude that Dr Raftos' evidence should be seen as being entirely reliable, and available for consideration to assist in the task of resolving the medical issues, including the issues concerning the applicable standards of medical practice that have arisen for decision in the circumstances of this case.
I now turn to a consideration and evaluation of the opinions of Dr Gatus, as follows.

[62]

Evaluation of evidence by Dr Gatus

Dr Gatus' initial opinions, as set out in his first report, were based on a series of 25 identified background assumptions that had been provided to him by the solicitor for the defendant (Exhibit "1", Tab 4, pp 463 - 467), together with his review of the clinical records, and the application of his expertise to address the single question that had been asked of him, as identified at paragraph [254] above.
Dr Gatus approached the task by reference to the Australian publication entitled Therapeutic Guidelines Antibiotics, which he identified as a "de facto standard for the prescribing of antibiotics in this country for a host of infectious conditions" (T126.42). He also annexed to his first report some literature which he had identified and selected by drawing upon his knowledge and his expertise. The further opinions and commentary that he set out in his supplementary report arose when he was asked to comment on the reports of Dr Raftos and Dr Mansour which had been prepared at the request of the plaintiff's solicitor.
When Dr Gatus' opinions were examined it became apparent that a number of matters emerged which had an impact on the assessment of the reliability of his evidence, as appear in the paragraphs that follow.
Dr Gatus' opinions were reliant upon literature which, having due regard to the seriousness of the plaintiff's presenting injury and given history, and according to the unchallenged evidence of Dr Raftos on this point, did not represent the standard of care that applied to the plaintiff's presenting circumstances.
Aspects of the literature cited by Dr Gatus contained significant statements of qualification which served as inherent limitations to be read in conjunction with the conclusions of that literature, thereby diminishing the evidentiary value of it in terms of the expert evidence issues to be decided in this case.
Dr Gatus postulated what I consider to be an uncertain if not flawed, unreliable factual assumption as to the timing of the plaintiff's injury at 17:00 hours on the day in question. He then drew upon that flawed assumption to underpin his opinions on the appropriateness or otherwise of the timing of the plaintiff's surgery to argue that the incurred delay was not material. That position was not reasonably supportable on the evidence. The time of the plaintiff's injury remains unknown. Whilst it may well be that the 17:00 hours assumptions, which was also made by Dr Raftos, was adopted by Dr Gatus for the purposes of calculating time in applying the articles he annexed to his report, it still remains a flawed assumption.
Whilst ordinarily, a consideration of the timing of the plaintiff's injury may not have been of critical importance, and in some cases, it may be reasonably approximated, in this case, it seems to be of critical importance. This is because of the content of the expert evidence to the effect that without timely proper treatment, the risk of harm from infection was likely to be incrementally escalating by the hour. This was therefore a necessary consideration relating to the consequence of the decision to delay providing appropriate treatment. In my view, the adoption by Dr Gatus of a guesstimated time for when the injury occurred, without evidence, is a fundamental matter that casts some doubt upon the reliability of his exculpatory analysis.
In setting out the above analysis, I have not overlooked the fact that in his first report, at page 10, Dr Raftos also assumed that the plaintiff's injury occurred "at about 17:00 hours on 22 August 2011". What makes Dr Raftos' use of that assumption different to that of Dr Gatus' use of it, is that Dr Raftos simply identified it as starting point for the calculation of the ensuing hours to highlight the point that an unacceptable delay occurred between the time of hospital presentation the required surgical cleaning that did not commence until "about 09:00", a delay which he characterised as being unacceptable. In my view, Dr Gatus unreasonably sought to minimise the significance of the delay given the uncertain timing of the injury, and in that sense, his use of the assumption of the injury occurring at 17:00 hours was unreasonable.
It appears that Dr Gatus' views on the appropriate antibiotic therapy for the plaintiff's circumstances were based on general epidemiological considerations and standardised treatment regimes of general rather than specific application, and which appeared to have involved policy considerations, and what he described as both a national and a worldwide antibiotic stewardship by which specialists in his discipline are trying to reduce the inappropriate use of antibiotics because of the "huge issue" of antibiotic resistance. He said that this was a matter that involved daily fights with surgeons about the appropriate use of antibiotics, hence the use of guidelines. It was not clear whether that antibiotic stewardship was a pre-dominant precept of medical practice as at 2011, or whether it was of more recent origin, or whether it should prevail in the emergency setting in which the plaintiff found himself, or whether it was a clinical consideration that had actually been adopted or followed by those who treated the plaintiff at the time.
In articulating his view about the inappropriate use of antibiotics, Dr Gatus disagreed with Dr Raftos' view that the guidelines were to be applied clinically according to the experience of the clinician. In rejecting that proposition, Dr Gatus did not accept that the use of guidelines for determining which antibiotic to use should be considered on a case by case basis, referring to such an approach as being practise according to whims: T130.13 - T130.39. I consider that his answer to that effect to be unduly dismissive of the clinical decision-making process. It fails to adequately explain how the relative risk to the patient, and the patient's specific antibiotic needs, is balanced against the principles of antibiotic stewardship in cases where a clinician gives consideration to the pros and cons of administering an antibiotic to which stewardship considerations might ordinarily apply. Accordingly, I consider Dr Raftos' views on this issue should be preferred on grounds of rationality.
I considered Dr Gatus' commentary in that regard to be misdirected, and overstated in the context of determining the reasonable treatment needs of the plaintiff according to the requirements of the need to appropriately discharge the duty of care owed. In that regard, I consider that an analytical process achieved by a reasoned clinical judgment, as explained by Dr Raftos, should prevail over an approach that involves adherence to general guidelines simply because they exist.
This is so especially where there is a risk that if such guidelines are applied according to considerations that place the interest of promoting adherence to guidelines of general application ahead of the best interests of the individual patient. It must be recognised that it is the patient who carries the risk of an adverse outcome if inadequate consideration is applied to the reasonable treatment needs of that patient.
In this context, it is noteworthy that the Liverpool Hospital clinicians who considered the plaintiff's need at the time for antibiotics and prescribed them according to that assessment, did not seek in their evidence given in these proceedings, or in the clinical notes, to invoke the policy concept of antibiotic stewardship, as was raised by Dr Gatus.
An adherence to non-prescriptive discretionary guidelines, without sufficient regard for the specific injury-based needs of the plaintiff could suggest an inadequate discharge of the duty of care owed. The antibiotic needs of the plaintiff in this case, required that due regard be had to the clinical consideration of the vagueness of his presenting history, the wetness of the surface he had contact with, the timing of the injury, the severe nature of his thumb wound, the presumption that the wound should be considered to be contaminated due to prolonged environmental exposure to "a host" of potentially infective organisms, absent a timely achievement of wound irrigation, washout and debridement under general anaesthesia, and when the passage of each hour of delay, carried with it an evolving incremental risk of the plaintiff incurring a bone infection or osteomyelitis, due to prolonged exposure of his wound. In my view, Dr Gatus' commentary does not give adequate regard to that consideration. Furthermore, I consider that his interpretation of the Guidelines for use of antibiotics involved three difficulties.
First, there is an objectively inherent difficulty in interpreting the unfortunately confusing "and/or" component of its terms for the implementation of those guidelines, which by the nature of that cited expression, permitted wide scope for confusion, as already remarked upon at paragraph [273] above.
Secondly, from a common sense perspective, insufficient regard has been given to the unchallenged evidence of Dr Raftos, which was to the effect that the Guidelines, which Dr Gatus described as being the de facto standard (T126.42), were not mandatory, and were not of a kind which required them to be applied inflexibly, and instead, they stood to be adapted by experienced clinicians in the emergency setting, in light of their understanding of the presenting problem, possibly in consultation with hospital infectious diseases consultants. There is no evidence of a hospital infectious disease consultant being involved in the initial consideration of the plaintiff's antibiotic needs at Liverpool Hospital before he developed gangrene in this left thumb.
Thirdly, and perhaps the most significantly, Dr Gatus' specific interpretation of the Guidelines as requiring water "immersion" rather than mere contact between the injured part and environmental water as a pre-condition for prescribing a broader spectrum antibiotic, as was contended on behalf of the plaintiff, appears to me to have involved Dr Gatus adopting an unduly subjective and unreasonably narrow interpretation. I consider this to be so particularly since no mention is made in the Guidelines of the factor of immersion as a relevant requirement or consideration for antibiotic selection. Furthermore, in this context, Dr Gatus' implied requirement of immersion, does not appear to accommodate the fact that there may be relevant degrees of immersion or contact with contaminated water, where the duration of the immersion or the contact may also be relevant factors requiring specific consideration for antibiotic selection. Unfortunately, neither the contemporaneous clinical information concerning the assessment of the plaintiff, nor the evidence from the treating doctors, recorded any detail about such matters.
Dr Gatus' comments which the defendant advanced in justification for the incurred delay in the surgical irrigation, washout and debridement of the plaintiff's wound, which he estimated to have occurred about 16 hours from the time of presentation at hospital, was in apparent tension and conflict with the first stated conclusion of the Gustilo article which Dr Gatus cited in aid of his argument. That stated conclusion is reproduced at paragraph [269] above. That apparent tension and conflict was not adequately explained or reconciled in the evidence. Furthermore, Dr Gatus' views on this topic did not appear to accord with the contemporaneous clinical reasoning, or the initial decisions made by Dr Geraghty and Dr Scott, on the night in question, to the effect that emergency surgery should be carried out on the plaintiff promptly, on that night, at around 22:30 hours, without any further delay. The fact that plan ultimately became frustrated by the arrival of other emergencies which took precedence, does not detract from this analysis.
It appears that Dr Gatus' reliance on the 2014 Ibrahim article, which he produced as an annexure to his report as justification for late or delayed surgical debridement represented an incomplete analysis. This is because the articulated standard treatment was not just debridement, but also irrigation, and washout, under general anaesthetic. That component of Dr Gatus' analysis also seemed, on my reading of it, to be incomplete, because it made no attempt at a reconciliation with the predominant statement of qualification within the conclusion of the Ibrahim article, namely that initial expedient surgical debridement of open fractures in children should always remain the rule, as opposed to the more generalised optimistic statement that "no harm" would arise from a 7hr - 24hr delay in debridement. On the joint evidence of Dr Raftos and Dr Gatus, there was little room for such optimism, as the potential for harm from infection during that period of delay was unquestionably an incrementally escalating consideration which needed to be taken into account: T138.27 - T138.32.
Dr Gatus' postulated theory or mechanism of an ischaemic event as an explanation for dry gangrene having been noted to be present in the plaintiff's thumb, was a conclusion that he had expressed gratuitously to the question that had been asked of him. This raised an unexplored question as to whether that conclusion was based on the required rigour of reasoning. On its face, in my view, it appeared that it was not: UCPR r 31.27(1)(c); UCPR Sch 7 cl 5(1)(c); Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [59], [87]; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, at [91]. In this regard, the question of whether or not the noted observation of dry gangrene in the plaintiff's thumb had been correctly described, is a factual matter that will be analysed, following the completion of the evaluation of the expert evidence.
Dr Gatus' view that the argued administration of ciprofloxacin (instead of the flucloxacillin that was in fact given), was not necessary at the early stage of management of the plaintiff's injury, was based on what I consider to be his unduly narrow and undefined meaning of "significant fresh or salt water exposure": Exhibit "1", Tab 4, p 471.
In that regard, the historical information that the solicitor for the defendant made available to Dr Gatus for the purpose of his analysis, did not properly permit a reasoned conclusion to the effect that there had been no significant exposure to water that might contain contaminants. In that respect, I prefer the contrary evidence of Dr Raftos, where he explained that the risk of infection from environmental factors needed to be addressed on a presumptive basis: T129.4. Dr Gatus interpreted "significant" to mean immersion. There is no record in the clinical notes, or the evidence of Dr Geraghty or Dr Scott, to suggest that there was any exploration of that aspect of the history, or whether in fact there was immersion, partial or total, or whether there was some other form of sustained contact between the plaintiff's thumb wound and environmental water on the wet cement or concrete surface upon which he injured his thumb.
Dr Gatus discounted the possibility that, on 6 September 2011, there was an uncontrolled infection caused by the organisms Aeromonas hydrophila, coliform and mixed anaerobic organisms, which had been grown from the wound swab cultures obtained at Campbelltown Hospital on 4 September 2011. He said that an examination should have revealed more clinical signs of infection than just "Necrotic dorsal aspect of thumb": Exhibit "1", Tab 1, p 38.
In my assessment, Dr Gatus' reliance on that cited clinical finding by the plastics registrar, which was then described as "Dry gangrene", and recorded in a relatively shorthanded fashion in the medical notes, requires close analysis as to its basis.
In this case, I consider that note to be of limited utility because it was a conclusion which did not otherwise go on to describe any other of the plaintiff's symptoms, signs or any other co-extensive contemporaneous observations made of the plaintiff's left hand and thumb in circumstances where there is evidence that contains other notes of such observations. When the nursing notes, made on the occasion of the plaintiff's visit to the Hand Clinic on 6 September 2011 are examined, a different picture emerges from Dr Sathasivam's note stating "Dry gangrene". At that time, the attending nurse took the time to carefully record that the wound to the plaintiff's left thumb was "smelly + sloughly" and that the plaintiff had stated the wound was very painful to touch: Exhibit "1", Tab 1, p 36. A further matter noted in the evidence comprising the Campbelltown Hospital notes on 4 September 2011 was the appearance of redness and swelling in the left wrist: Exhibit "1", Tab 2, p 361. Whilst that observation was made at Campbelltown Hospital by an emergency doctor who spoke about it with "Dr Siva" (whom I infer from the context, was Dr Sathasivam). It therefore seems that there was evidence of swelling and redness in the plaintiff's left wrist evident on 4 September 2011, but not further noted on 6 September 2011, even though there was a malodorous presentation and sloughing on both occasions, and the clinical impression was one of infection, at least on 4 September 2011. Dr Gatus appears not to have given that body of evidence contained in the clinical records a comparative consideration when he focussed on the interpretation and the meaning of the "Dry gangrene" note.
When the evidence concerning those matters is examined, not only for 6 September 2011, but also in relation to the observations available beforehand, namely on 28 August 2011 and 4 September 2011, a more detailed and different picture emerges.
In that regard, the unchallenged evidence of Mrs Gould was that there was a malodorous smell of decay, and the appearance of blackness of the thumb just 4 days post-operatively. The 4 September 2011 nursing notes of Campbelltown Hospital also provide some evidence from which the presence of infection can be inferred. Furthermore, the clinical nursing notes of the Liverpool Hospital's Hand Clinic records for 6 September 2011 provide a more detailed factual description of the surrounding signs and symptoms relating to the plaintiff's left thumb, which also suggests the presence of infection.
When those matters are weighed against the more limited analysis of the evidence that was cited by Dr Gatus, a different impression emerges, which on the description of the expert evidence given by Dr Raftos, is more consistent with signs of an infective process being present as early as 4 days after the initial surgery, and which was continuing without being controlled by the provision of suitably active antibiotics, as was found to be the case when the swab results were available on 8 September 2011.
Dr Gatus did not appear to have undertaken that analysis, or if he did so, he did not describe or record it, to indicate that he had done so. If he did so, it appears from the terms of his report that he has unreasonably dismissed its relevance.
It is difficult to see how factual support of a non-conjectural or non-speculative kind could be found for Dr Gatus' theory that the plaintiff could have "possibly … have been exposed to environmental organisms" after he had left hospital, as identified at sub-paragraph (4) of paragraph [301] above. This is because it can be reasonably assumed that in the course of treatment in hospital, the plaintiff's wound was cleaned as far as was practicable at the time of surgery on 23 August 2011, and thereafter, it remained covered by a surgical bandage to protect it from such environmental factors. If Dr Gatus was invoking a consequence of the plaintiff having an incorrect "wet/dry" bandage as a source of post-discharge infection, he did not specifically state that proposition.
That bandage was still in place until the plaintiff's thumb was re-dressed in hospital on 28 August 2011, and that re-dressing was kept in place until 30 August 2011, when that process was repeated yet again, on 4 September 2011.
On that analysis, Dr Gatus seems to have invoked unsupported speculation as to the post-operative environmental origin of infective process, and in doing so, in the course of providing his opinion, he does not appear to have differentially engaged with the alternative scenario. That alternative scenario was whether the described signs of an infective process present on 28 August 2011, 4 September 2011 and 6 September 2011, could have been due to the effects of a delayed washout reduction of bacterial load in the plaintiff's wound, which in turn permitted infection to take hold, together with the implications of the provision of antibiotics that were not of a broad spectrum character, and where they were not active against the organisms that were ultimately grown from a swab taken on 4 September 2011 from the plaintiff's thumb wound;
In arriving at the above analysis, I have not overlooked Dr Gatus' argument of a commensal organism colonisation theory, as identified at sub-paragraphs (7) and (8) of paragraph [301] above. That argument was based upon Dr Gatus' view that the organisms which were identified in the swab taken on 4 September 2011, and the subject of the report dated 8 September 2011 (Exhibit "1", Tab 2, p 311) can be found as normal commensals on the skin. It is necessary to refer to the report which identified the organisms after the relevant events had already occurred.
The microbiology report dated 8 September 2011, which followed the swabs taken from the plaintiff on 4 September 2011, was constructed in three phases. First, at 12:51 hours on 5 September 2011, on Gram Staining, polymorphs, Gram Negative bacilli, Gram Positive cocci and Gram Positive bacilli were reported. Secondly, at 09:02 hours on 8 September 2011 the preliminary report described Gram Negative Rods, coliform, mixed anaerobic flora and the isolation of mixed skin flora. Thirdly, at 12:15 hours on 8 September 2011, the final report identified Aeromonas hydrophila, mixed anaerobic flora and the isolation of mixed skin flora. The report went on to state that coliform was a probable coloniser. Dr Gatus was not asked for a detailed commentary or an analysis of that report, including how he reached the conclusion that Aeromonas hydrophila, in addition to coliform as stated, was a colonising organism. This is a relevant consideration given Dr Raftos' unchallenged contrasting views on that matter, in which he said that the pathogen Aeromonas hydrophila was not found on clean skin: T125.10 - T125.20. Dr Gatus did not contradict or seek to correct that evidence by Dr Raftos.
From the cited context, it seems that Dr Gatus has picked up the comment that coliform was a probable coloniser and he appears to have extended that comment to describe Aeromonas hydrophila as also being a coloniser of already necrotic tissue: T134.21 - T134.23; T134.31 - T134.39. Dr Raftos rejected the applicability of that analysis by reference to the photograph comprising Exhibit "F", in which he identified the indications of infection as being a black thumb tip, swelling of the whole thumb, and the presence of exudate coming from the proximal portion of the wound: T134.41 - T135.39. As an expert, that interpretation was open to Dr Raftos: Blacktown City Council v Hocking [2008] NSWCA 144. That analysis and interpretation was not criticised or contradicted by Dr Gatus in his oral evidence, and it was not in any material way refuted by him. I therefore accept Dr Raftos' opinion that there was infection present in the plaintiff's thumb when that photograph was taken.
The experts were at issue on the question of whether osteomyelitis was present in the plaintiff's left thumb. Dr Raftos proceeded upon the premise that it was present, and he based that view on a statement to that effect in the clinical records: Exhibit "A", p 211.
In contrast, Dr Gatus challenged the assertion that osteomyelitis had been diagnosed in the plaintiff's left thumb. In doing so, in his oral evidence he referred to the clinical notes as stating "query osteomyelitis": T136.14. He said that the presence of that question mark in the notes simply meant it was part of a differential diagnosis: Exhibit "1", Tab 1, p 22. Dr Gatus then added what I consider to have been a significant qualification to his oral evidence on this topic, namely, his statement that the cited account he gave in his oral evidence was given "from memory". In fact his memory was not accurate on that account, and this gave rise to a misstatement in his evidence;
In that regard, the actual passage of Dr Gatus' oral evidence was as follows: "HIS HONOUR: You criticise the clinical diagnosis of osteomyelitis? WITNESS GATUS: Who said it was osteomyelitis? Someone in the notes, they put "query osteomyelitis". Query, question mark, somewhere in the notes from memory. That doesn't mean that osteomyelitis is there. It's part of a differential diagnosis of whoever that person was. But there is nothing that I have read to say that osteomyelitis was present in this thumb, unless someone has evidence to show otherwise." [Emphasis added] [T136.11 - T136.18]
An objective reading of the primary source document for that evidence given by Dr Gatus shows that he had an unreliable memory of the effect of the note to which he had been referring in his oral evidence. The note in question, being a discharge summary dated 21 September 2011, in fact stated the indication for antibiotics as being the clinical assessment of "probable osteomyelitis": Exhibit "1", Tab 1, p 22. I consider that in his recollection of the note in question, Dr Gatus has confused the reference made in that note to querying cellulitis, namely, "? cellulitis of thumb stump": Exhibit "1", Tab 1, p 22.
In that note, the query of cellulitis appears to have been confirmed by the subsequent comment on the same page: "May be discharged onbne [sic for once] cellulitis resolved". In my view, that entry in the notes suggests a definitive diagnosis of cellulitis had been made. On reviewing that evidence, I have concluded that an unreliable process of reasoning based upon fallible memory and a mistaken recollection of an important factual matter of detail has entered into Dr Gatus' evidence, by which he argued the justification of his opinions.
In arriving at that conclusion I have not overlooked the matters of the suggested source for that evidence as was raised by counsel in the course of Dr Raftos and Dr Gatus giving their evidence concurrently, where it was sought to clarify the source of the "query osteomyelitis" comment by reference to the evidence of Dr Sathasivam: T136.20 - T137.26. That material is not relevant for several reasons.
In that regard, it must first be observed that there is no evidence that Dr Sathasivam's evidence had been made available to Dr Gatus. Secondly, nowhere in the clinical notes made by Dr Sathasivam did use the term "query osteomyelitis". His evidence was that on 6 September 2011, he had noted, on his x-ray interpretation of the x-rays taken at that time, that there was "No obvious osteomyelitis": T109.36. Whilst that may well have meant that a possible diagnosis of osteomyelitis was queried, Dr Sathasivam's notes did not say "query osteomyelitis", as was suggested by counsel at T136.20. It may well be that the correct interpretation of Dr Sathasivam's evidence and the effect of his notes is that he queried the presence of osteomyelitis. However, a conclusion that he did so does not support Dr Gatus' faulty or imprecise recollection of the actual terms of the contemporaneous note itself, which did not say "query osteomyelitis".
The relevant context is that Dr Raftos and Dr Gatus agreed that the presence of osteomyelitis, as detected by x-ray, can take some weeks to become evident: T137.21. It was for that reason, and presumably because of the potentially devastating consequences of a delay in the recognition and the treatment of that condition, that Dr Raftos' evidence was, in the clinical context, that one should assume the presence of osteomyelitis where it is likely to be present, and presumptively treat it accordingly: T137.25. I find the opinion of Dr Raftos to that effect to be compelling. It also accords with a common sense approach. For those reasons, I accept his analysis in preference to that proffered by the defendant's witness, Dr Gatus, on this topic.
In looking at the clinical events on 6 September 2011, which was 14 days post-operatively, Dr Sathasivam looked at the x-rays of the plaintiff's thumb and interpreted them as revealing no obvious signs of osteomyelitis on the x-rays, but that was a qualified view as only well advanced osteomyelitis would be seen on an x-ray: T109.19 - T109.40; T110.9: Exhibit "1", Tab 1, p 38; Exhibit "1", Tab 6, p 491. It may be inferred from the fact that an x-ray was ordered, that osteomyelitis was at least suspected if not entertained as a potential or possible diagnosis. In light of the evidence of Dr Gatus and Dr Raftos concerning the limited utility of early x-rays in detecting signs of osteomyelitis unless it was well advanced at the time of x-ray, Dr Sathasivam's view that there was no evidence of osteomyelitis 2 weeks post-operatively, was not surprising.
Dr Sathasivam's recorded comment should not be taken to be a definitive diagnostic conclusion that excluded the possibility of osteomyelitis in the plaintiff's left thumb because of the described limitation of x-rays as an investigative test for that condition. I accept that only a bone scan, or an MRI, or a microbiology report on swab cultures or a sample of bone, would have provided a definitive answer. As none of those other investigative tests were pursued in this instance, Dr Sathasivam's recorded comment stands to be evaluated in the context of other relevant contemporaneous evidence.
Given that an MRI scan was probably not indicated in this case, as was conceded by Dr Raftos (at T137.23), the evidence indicates that in the absence of any differential diagnostic testing, Dr Sathasivam's implied query over whether osteomyelitis was present, according to the opinion of Dr Raftos. The appearance of the plaintiff's left thumb should have led to the clinical assumption that osteomyelitis was present, and it should have been treated accordingly, including with appropriate broad spectrum antibiotics at an early stage: T137.24 - T137.26. He considered that gentamycin was indicated well before that time, namely on 22 August 2011. I accept Dr Raftos' evidence in that regard. For the reasons identified at paragraphs [433] - [440] above, I do not accept Dr Gatus' opinion to the contrary because it was not supported by sound and acceptable reasons.
In his oral evidence, Dr Gatus said he thought that a consideration of whether antibiotics, if given, would have reached the site of an assumed infection of the thumb to have a therapeutic effect, was an irrelevant question. He was of that view because an absence of a blood supply to the thumb would have prevented antibiotics from reaching the targeted tissues: T137.32 - T138.1. The extracted passage of Dr Gatus' evidence in that regard, was as follows: "WITNESS GATUS: If there is no blood supply an antibiotic won't give to the site. The reason why there is no blood supply is because there is no blood supply, and that will lead to, in this case, gangrene, death of tissue. When you have gangrene no treatment on earth will do anything to it apart from surgery. So it's not relevant. Even if osteomyelitis was present here - and there's no evidence it was, and my belief is it was not - but again it's not relevant because the thumb is dead. It needs amputating because it has lost its blood supply because of trauma. So again it's just not relevant that an organism might be there. And I don't believe - I'll reiterate, there's no proof that organisms were in there, and osteomyelitis does not give you a thumb looking like that. HIS HONOUR: Isn't that a bit of an overstatement, "The thumb is dead"? It's surely just the distal portion. WITNESS GATUS: Sorry? HIS HONOUR: Surely it's just the distal portion, not the thumb. WITNESS GATUS: Well, the distal portion." [Emphasis added] [T138.6 - T138.25]
The cited evidence to the effect that the plaintiff's thumb was dead, demonstrated that Dr Gatus was, to a material degree, loose, if not imprecise in his consideration. It was an overstatement for him to describe the plaintiff's entire thumb as dead. I considered that answer to have been ill-considered in its delivery and in its manner of delivery, and it lacked the required attention to detail, as was acknowledged by Dr Gatus in a belated corrective answer, which followed: T138.18 - T138.25. The initial off-hand comment cited in the preceding paragraph caused me to doubt the rigour of Dr Gatus' analysis.
Dr Gatus' opinion that the plaintiff's (distal) thumb was dead was dependent upon the assumption that there was no blood supply to that area of the thumb. The contemporaneous clinical records do not support Dr Gatus' theory of loss of blood supply. The evidence of the treating surgeon, Dr Scott, did not support that theory. Whilst Dr Raftos did not agree that simply because the crushing injury had been severe, that the vascularity of the thumb was "severely compromised". He explained that although injury could compromise vascularity, this did not mean that the injury would not heal: T122.35 - T122.49.
I consider it was significant that at the time of the plaintiff's discharge from Liverpool Hospital on 24 August 2011, there was no recorded sign of vascular compromise: Exhibit "1", Tab 1, pp 21 & 23. If there were such signs, it would have been a matter of some significance to the management of the plaintiff's condition, and it would be doubtful that the plaintiff would have been discharged from hospital at that time with a diagnosis of vascular compromise, especially given the previously cited comments concerning cellulitis which had delayed his discharge.
Although Dr Scott considered the plaintiff had received a severe crush injury to the thumb (T94.3) he did not consider the thumb to be devascularised: T91.43. He considered that at least one of the arteries was intact: T91.42.
Dr Gatus' ischaemic thumb theory was not based on the terms of any assumptions put to him in those terms by the defendant's solicitors, and it remains uncertain and unexplained as to from where that theory materialised: Exhibit "1", Tab 1, pp 463 - 468. It did not appear anywhere, in any recognisable form, in Dr Gatus' first report. On a beneficial reading, it appeared, almost subliminally, in Dr Gatus' second report, where he referred to the presence of dry gangrene or necrosis as a basis for the later identified organisms "colonising the dead tissue only": Exhibit "1", Tab 1, pp 475; 481.
If Dr Gatus had ischaemia in mind at that point in expressing his cited opinion, then it appears that he did not adequately explain this to the extent that was required by UCPR r 31.27(1)(c); UCPR Sch 7, cl 5(1)(c); Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [59], [87]; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, at [91].
Dr Gatus' comment that, on 6 September 2011, there should have been more clinical signs of infection than just the noted "Necrotic dorsal distal aspect of thumb" if there was an uncontrolled infection caused by Aeromonas hydrophila, coliform and mixed anaerobes, appears to have overlooked the earlier cited nursing notes made on that same date, which contained more extensive descriptive detail of the condition and the appearance of the plaintiff's thumb and which, at the least, raised a question of whether there was an infective process in existence at that time because of its abnormal sloughy appearance and malodour, as cited at paragraph [59] above: Exhibit "1", Tab 1, p 36.
Guided by Dr Raftos' evidence, I consider that the above cited nursing notes of that date provide contemporaneous evidence as to the presence of some relevant signs of infection, namely that the plaintiff's left thumb was noted to be smelly, comprised sloughing tissues, and was painful to touch. It is unlikely that the similarly described observations recorded at Campbelltown Hospital on 4 September 2011 would have disappeared by the time the plaintiff was seen at the Liverpool Hospital Hand Clinic 2 days later, on 6 September 2011. Those signs were malodour, exudate, swelling and redness to the wrist as noted at Campbelltown Hospital on 4 September 2011 as cited at sub-paragraphs (4) and (6) of paragraph [206] above: Exhibit "1", Tab 2, p 261. Those matters provide the basis for an inference that there were sufficient clinical signs available to suggest the presence of an infection of the kind which Dr Gatus doubted, and which Dr Raftos thought to be present, on his interpretation of Exhibit "F": T134.40 - T134.44. It appears that in his analysis, Dr Gatus had not considered the detail provided by those last cited admission summary and progress notes, as he made no analytical reference to the detail set out in them.
Dr Raftos critically commented on the views set out in the reports of Dr Gatus. Those comments are set out in some detail at paragraph [312] of these reasons and they do not require further re-statement other than to say, that in the light of the foregoing analysis of Dr Gatus' evidence, I prefer and accept Dr Raftos' views to those of Dr Gatus. This is because Dr Raftos had framed his remarks according to the applicable standard of care, whereas Dr Gatus appears not to have done so, as already explained in these reasons.
I consider that Dr Raftos' comments on Dr Gatus' reports, which have been cited at sub-paragraph (2) of paragraph [312] above, are persuasive with regard to the initial dose of flucloxacillin as being an antibiotic that was too narrow in its spectrum of activity. I also accept Dr Raftos' stated view, as cited at sub-paragraph (3) of paragraph [312] above, regarding the cited antibiotic Guidelines, as interpreted by Dr Gatus, did not proceed in accordance with the standard of care in treatment that was expected in the circumstances.
I consider this to be especially so having regard to the recorded vagueness and the variations that the medical personnel at Liverpool Hospital thought had arisen from within the plaintiff's history of injury, and bearing in mind the serious risks from infection that could arise from the provision of antibiotic prophylaxis that was inadequate in its action against a range of potentially relevant infective organisms. In deciding on the appropriate treatment the possibility of a significant risk of harm from inadequate antibiotic treatment had to be balanced against the relatively low if not rare risk of possible complications from the choice of antibiotics. It is of some significance that none of the doctors who treated the plaintiff gave any evidence that articulated matters concerning risks from the use of particular antibiotics, and how such matters were accounted for, if at all, in the process of choosing the antibiotics used to treat the plaintiff.
Taking an overview of the opinions and reports by Dr Raftos and Dr Gatus, as summarised at paragraphs [314] - [338] above, and taking an overview of the content of the oral evidence given concurrently by those experts, as summarised at paragraphs [339] - [372] above, I consider that nothing which emerged from the concessions made by Dr Raftos in his oral evidence serves to diminish the content or the standing of his expressed opinions.
The matters outlined in the above evaluation of the expert evidence, taken both individually and collectively, lead me to hold significant reservations against accepting the critically identified views of Dr Gatus on matters of the applicable standard of care and the causation issues which are in dispute within the expert evidence.

[63]

Conclusions following evaluation of expert evidence

On the question of the standard of care expected in the plaintiff's circumstances, I find Dr Raftos' clinical explanations for rejecting Dr Gatus' arguments, relied upon by the defendant as justification of delays that occurred in the surgical treatment of the plaintiff's fractures, are persuasive. Dr Raftos' explanations have proceeded according to the required prospective analysis and they appropriately address the risk of harm the plaintiff found in the circumstances: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [124]. Consequently, I consider his opinions to be compelling and I accept them.
I consider that Dr Raftos' clinically-based explanations and opinions on the need for the plaintiff to have been given broad spectrum antibiotic prophylaxis should be preferred to Dr Gatus' epidemiologically-based Guideline justifications for the antibiotic issues that emerged in the plaintiff's treatment. Dr Gatus' views appear to have been formed by him placing a greater emphasis upon matters concerning antibiotic stewardship, which applied focus to a general public health issue, rather than to the required specific clinical consideration of weighing the relative risks faced by the plaintiff if he was not given appropriate broad spectrum antibiotic treatment, in circumstances where the only account of how the injury occurred came from the plaintiff, an 8 year old child, and it was considered to be vague, and where it was uncertain as to whether he had been exposed to significant environmental pathogens, including anaerobic bacteria that could have "horrendous" consequences if not treated with an appropriate broad spectrum antibiotic.
I consider that Dr Gatus' view that immersion, rather than partial immersion, of the plaintiff's injured thumb in environmental water, or contact with environmental water, was needed before broad spectrum acting antibiotics should be given, involved an unreasonable and unduly narrow and subjective interpretation of the terms of the non-mandatory Guidelines that he cited, especially since those Guidelines made no reference to a requirement for immersion, and where wound contact with environmental water seemed to be an adequate indication for giving the broad spectrum antibiotic gentamycin as argued by Dr Raftos. The logic and the subjective nature of Dr Gatus' argument on this asserted pre-condition of immersion was unpersuasive.
On a prospective common sense analysis of the history available to those assessing the plaintiff and treating him at Liverpool Hospital between 22 and 24 August 2011, it is difficult to see how a history of contact with a wet cement or a concrete surface, floor or pathway, which could not reasonably be assumed to have been clean, in a microbial sense, was materially different from contact by immersion in water, when it came to clinically weighing the risks of possible exposure to infection or infection taking hold in the plaintiff's wound. The water in question was unlikely to have been clean water. There were varying, and therefore imprecise, versions of the history of the plaintiff's injury recorded in the contemporaneous notes, and those responsible for the plaintiff's medical care at Liverpool Hospital ought to have reasonably considered that there may have been of a spectrum of potential pathogens from a variety of organisms that may have a medical impact on the progress of healing of the plaintiff's wound. Those varying items of history as contemporaneously recorded in the hospital notes, were within a relatively short compass, as follows: 1. Contact with concrete (22 August 2011): Exhibit "1", Tab 1, p 21; 2. Contact with a wet cement (22 August 2011): Exhibit "1", Tab 1, p 397; 3. Contact with a wet cement floor (22 August 2011): Exhibit "1", Tab 2, pp 321 - 323, 337 - 339, 349 - 351; 4. Contact with a wet footpath (23 August 2011): Exhibit "1", Tab 1, p 39; 5. Contact with a wet path(way) (23 August 2011): Exhibit "1", Tab 1, p 247; In my view, those matters of history, which were obtained at the outset of treatment on 22 August 2011, and over the course of the following day, justified the provision of appropriate antibiotics with a sufficiently broad spectrum action as a prophylaxis against the materialisation of the risk of potential harm in the case of an open bony wound.
In that regard, I consider that Dr Gatus' views on the exposure to pathogens to have been based upon a process that involved an insufficient consideration or balancing of the risk of potentially adverse consequences to the plaintiff if an antibiotic of sufficiently broad spectrum in its therapeutic action was not given to him in the emergency setting and the post-operative setting. This is so especially where the presumed bacterial load in the plaintiff's thumb had not been reduced by timely washout or lavage treatment until 12.5 hours had passed since the plaintiff was admitted to Liverpool Hospital, and where such bacterial load could reasonably be assumed to involve an incremental escalation as to its extent.
I therefore prefer the analysis put forward in the reports and in the evidence of Dr Raftos on matters of the expected standard of care and treatment, where he stated that an assumption should be made that the skin and environmental bacterial might cause infection, and this required a different antibiotic regime compared to a situation where an open fracture injury occurred in an uncontaminated environment: T129.2 - T129.9. I prefer Dr Raftos' opinions on those matters compared to the opinions of Dr Gatus, as those latter opinions involved undue emphasis on antibiotic stewardship and an overly narrow and subjective view of what constituted exposure by way of immersion.
In undertaking that balancing exercise, I have not overlooked the fact that both gentamycin and flucloxacillin each had significant potential deleterious side effects. In the case of gentamycin, the evidence described a very low risk of toxicity from that drug causing damage to the vestibular system which, if it occurred in its extreme form, would interfere with the ability to walk because of the potential for irreversible damage to the balance mechanism: T127.1. On the other hand, in the case of flucloxacillin, whilst Dr Gatus dismissed complications from that drug as being "pretty innocuous" (T132.12), the unchallenged evidence of Dr Raftos was that there were a number of well documented cases in Australia of deaths from hepatic failure from flucloxacillin: T134.6. Dr Gatus was given an opportunity to comment on a number of matters raised by Dr Raftos in his oral evidence, including that latter observation of possible hepatic failure, yet he did not raise any contrary commentary on that possibility as a consequence of flucloxacillin: T134.12. I therefore accept Dr Raftos' opinion on that question. It seems that both of the antibiotics that were the subject of debate between the experts were associated with the risk of adverse outcomes.
Looking at those matters prospectively, the risk of potential harm from flucloxacillin did not seem to have been a contraindication for ordering that drug to be given to the plaintiff as a first line of antibiotic treatment in the Emergency Department of Campbelltown Hospital on 22 August 2011, where this occurred following the telephone advice of Liverpool Hospital staff, and at a time when it appears that the mechanism of the plaintiff's injury had not yet been fully explored by those responsible for making definitive decisions on treatment. It seems the main action of flucloxacillin was against staphylococcus aureus: T132.13.
Given the evidence that gentamycin toxicity causing vestibular damage posed a comparatively very low risk occurring as a complication, it is difficult to see why the relatively rare risk of that particular potential complication should be viewed much differently to the risk of potential hepatic failure from flucloxacillin in terms of balancing the risks of adverse consequences. It is significant that the contemporaneous records do not include any reference to gentamycin to indicate that either it, or its possible adverse side effects, had been contemporaneously considered by those responsible for making decisions about the appropriate antibiotic cover to be prescribed for the plaintiff at the time. It seems that both categories of potential complications represent serious adverse consequences. In comparing those matters, if a balancing exercise had been undertaken, although both types of complications were serious, death from hepatic failure would seem to be a more significant adverse consequence in comparison to the effects of gentamycin toxicity causing vestibular damage and balance difficulties.
In considering those matters, in my view, Dr Gatus' arguments in favour of not giving gentamycin, based on considerations of antibiotic stewardship, and on account of what was described as a very low or rare incidence of the risk of toxicity from that drug, should be seen to have the hallmarks of an analysis based on hindsight justification, rather than representing a prospective clinical reasoning process that took place at Liverpool Hospital at the time the plaintiff was being treated: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [124]. There was no evidence that those who were treating the plaintiff proceeded to make their clinical decisions on considerations of antibiotic stewardship. There is no evidence that those treating the plaintiff undertook a process of balancing the risks of potential adverse complications balanced against the potential benefits. This was in circumstances where the nature and the extent of the plaintiff's environmental exposure to particular and potentially devastating pathogenic microbial organisms, necessarily remained unknown, and this was in the context where the available history was considered to have been vague and inconsistent: Exhibit "1", Tab 1, pp 123 and 255.

[64]

Issue 1 - Identification of relevant risk of harm

It is necessary to identify the relevant risk of harm to the plaintiff in connection with a consideration of the duty of care that was owed to him by Liverpool Hospital at the time: s5B of the CL Act; Solomons v Pallier [2015] NSWCA 266.
In this case, the evidence unquestionably establishes that the Liverpool Hospital staff responsible for the care of the plaintiff were very well aware, from shortly after the plaintiff's presentation to that hospital at 20:05 hours, if not beforehand when inter-hospital transfer of care was discussed and arranged by telephone, that there was a need to promptly and appropriately address, through the exercise of reasonable care and skill, the possibility of the plaintiff's wound, with exposed bone, being or becoming infected. The required response was to take reasonable precautionary steps by way of providing appropriate antibiotic prophylaxis, in conformity with what constituted the standard of reasonable care and skill, against the risk of harm in the form of uncontrolled or inadequately treated infection, which could foreseeably cause significant damage to the injured tissues of the plaintiff's left thumb.
I am persuaded as to the appropriateness of that formulation because of the fact that the plaintiff was promptly assessed at Liverpool Hospital, and because the examining hospital staff had quickly determined that in the plaintiff's presenting circumstances, there was a low threshold for emergency operative intervention within a relatively short period of time on that night in order to achieve a surgical irrigation, washout and debridement under general anaesthesia. The clear object of that plan was to clean the wound of contaminants, even if they were not obvious on a visual inspection, and to try and reduce bacterial load within the wound. That formulation also arises from the fact that consequential arrangements were then put in train for operative intervention to take place that night, as planned, and from the fact that a further antibiotic, cephazolin 500mg, was administered to the plaintiff intravenously at 23:55 hours on 22 August 2011: Exhibit "1", Tab 1, p 284.
The state of awareness by hospital staff of such matters, and the proposed plan for prompt surgical intervention, was plainly directed at the issue of the risk of harm as articulated by Dr Gatus, to the effect that in the case of open fractures, wound irrigation is a key component of taking precautions against infection by reducing the bacterial load in the wound and removing any foreign bodies, in conjunction with the use of prophylactic antibiotics (Exhibit "1", Tab 4, p 415) where some infective microbial pathogens could have horrendous and rapidly developing adverse consequences: T132.44.
The compelling inference from the circumstances of the plaintiff's admission to Liverpool Hospital is that the health care professionals who had the responsibility for the plaintiff's treatment and care at the hospital, Dr Geraghty, Dr Scott, the anaesthetist on duty, and the administrative and ancillary staff with whom they communicated, were aware of, and were focussed on, the need for the plaintiff to promptly have his wound surgically cleansed under general anaesthetic in an operating theatre.
The further compelling inference is that the hospital staff were also aware that this treatment should occur in a timely manner, most probably before midnight on 22 August 2011, as the record shows, but for the postponement of that planned procedure because of later arriving trauma cases: Exhibit "1", Tab 1, p 257. Before that postponement, the plaintiff was scheduled to be the next patient to go into the operating theatre for that very procedure to be carried out upon him before midnight on that evening.
I am satisfied that the evidence I have reviewed and cited in the course of these reasons to identify the relevant risk of harm, amply demonstrates that the summary as set out in the preceding five paragraphs, represents a prospective analysis, rather than one that has been driven by the influences of hindsight: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [124]. Until such time as the plaintiff's thumb wound was explored under general anaesthetic, those treating him could not reliably know, at least on a visual inspection, the extent to which the wound might be contaminated by foreign matter or bone particles. According to the medical evidence, timely exploration under general anaesthetic was the only feasible means of addressing the presenting problem.
In undertaking the required prospective analysis, it is relevant to bear in mind that there may be more than one point on the timeline where a relevant risk of harm may materialise: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [127]. In this case, according to the expert medical evidence the risk of harm from delayed cleaning and inadequate prophylaxis grew incrementally by the hour.
It is for that latter reason, that the identification of the risk of harm, as required by s 5B of the CL Act, must not be too narrowly confined to seek to predict precise circumstances or precise injurious mechanisms: Solomons v Pallier [2015] NSWCA 266, at [68] - [69], following Shaw v Thomas [2010] NSWCA 169, at [43], which applied the principles stated in Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434, at [64], which identified and applied well settled common law principles.
In the plaintiff's injured state, after assessment at hospital, and before any treatment was given to him, one of the risks of harm that he faced, and which was towards the extreme end of the range of risks, was what was described by Dr Gatus as the risk of "horrendous" damage from infection from environmental organisms such as the pathogen Aeromonas hydrophila, which could be found in certain aggregations of water: T132.29; Exhibit "1", Tab 5, p 478. Those who were responsible for treating the plaintiff at Liverpool Hospital were not in a position to exclude contact between the plaintiff's injured left thumb and water that was contaminated by such organisms. On the history available to the staff at Liverpool Hospital, it could not have been reasonably assumed that the plaintiff's injury occurred in the course of contact with cement or concrete that was wet with only clean water.

[67]

Scope and content of duty of care

Whilst the plaintiff was in the care of health care professionals at Liverpool Hospital, the recognition of that duty of care ought to have been in sharp focus for those who were responsible for ensuring that he received the required standard of care.
This is because it was plain from the plaintiff's young age, and from the state of his injured hand, and from the painful nature of that injury, and also from the vagueness of the history of injury that he had given, that it was unlikely in the unfamiliar hospital setting, that he would be in a position where he could effectively understand the full implications of the exploration of history with him, and assertively advocate for his medical needs. In those circumstances the health care professionals under whose care he was admitted, must be taken to have assumed responsibility for his care. Accordingly, in such circumstances, those hospital staff members were invested with the duty to act with reasonable skill and competence in the course of applying their special knowledge, training and skills to the plaintiff's particular medical needs.
On a number of occasions along the timeline during which the defendant, through its professional staff for whom it is vicariously liable, had the care and the responsibility for the medical needs of the plaintiff, critical focal points arose for the consideration of those medical needs, and how those needs should be reasonably met in a manner that was consistent with the provision of the required standard of reasonable care and skill.
Sequentially, those considerations relate to the initial assessment and care of the plaintiff in the Emergency Department of Liverpool Hospital; the period in which he remained as an in-patient; and during his after-care at the Hand Clinic following his discharge from hospital. Those parameters form the framework for the identification and the consideration of foreseeability questions, and the application of Pt 1A, s 5B and s 5D of the CL Act to those matters.
At this point in the consideration, it is appropriate to identify the scope and content of the duty owed by the defendant at the commencement of the plaintiff's hospitalisation, according to the unchallenged and the uncontradicted evidence of Dr Raftos, who, as a well qualified emergency physician with long and extensive experience in the public hospital system, defined the obligation of Liverpool Hospital at the time it assumed responsibility for the care of the plaintiff's medical needs. Dr Raftos' succinct view of the defendant's obligation in that regard, as a major tertiary trauma referral centre, is restated as follows: "Hospitals have an obligation to provide timely and appropriate treatment. Liverpool Hospital ought to provide appropriate operating theatre resources to ensure that time-critical surgical treatment can be provided to all patients. Surgical lavage of Robert's open fracture should have been performed by midnight on 22 August 2011. … Appropriate treatment of an open fracture is to clean the wound and provide appropriate intravenous antibiotics. Wound cleaning should be performed under general anaesthesia in the operating theatre as soon as possible after the injury, preferably within six hours of presentation." [Exhibit "A", pp 211 - 213]
It follows that once the plaintiff was accepted as a patient at Liverpool Hospital, the defendant assumed the responsibility for treating his wounds according to the obligation of exercising reasonable care and skill in the provision of medical reviews, treatment, and appropriate antibiotic therapy, which obligation also continued for so long as the plaintiff continued to require post-discharge after-care at the Liverpool Hospital Hand Clinic.
In the described circumstances, the following periods of focus for analysis identify themselves for a consideration of whether, in the circumstances of the plaintiff's treatment at Liverpool Hospital, the defendant had properly discharged the duty of care that was owed to the plaintiff: 1. The period of time from the plaintiff's admission to Liverpool Hospital at about 20:05 hours on 22 August 2011, until about 22:30 hours on that evening, which was the time of postponement of the planned surgical procedure for irrigation, washout and debridement of the plaintiff's left thumb injury under general anaesthesia; 2. The period commencing from the postponement of the planned surgical procedure, that is from about 22:30 hours on 22 August 2011, until the procedure was ultimately commenced, and continued until completion, from about 08:30 hours on 23 August 2011; 3. The post-operative antibiotic regime whilst the plaintiff remained an in-patient at Liverpool Hospital until about 16:55 hours on 24 August 2011; 4. The prescribed antibiotic regime which was given to the plaintiff and which applied between the time of discharge from Liverpool Hospital at 16:55 hours on 24 August 2011 until the time the plaintiff first presented to the Liverpool Hospital Hand Clinic on 30 August 2011; 5. The plaintiff's medical needs whilst he was in the care of the Liverpool Hospital Hand Clinic between 30 August and 15 September 2011.
Those periods of focus will be taken up in the consideration of Issues 3 and 4 concerning whether or not the plaintiff has made out his claim that the defendant was negligent, and if so, what respects if any, was such negligence the cause of the harm suffered by the plaintiff.

[68]

Issue 3 - Breach of duty of care

The five periods outlined at sub-paragraphs (1) to (5) of paragraph [487] above, comprising the framework for the consideration of whether or not the defendant had relevantly breached the duty of care owed to the plaintiff, are analysed in the paragraphs that follow.
In respect of each of those identified periods, the evaluation must proceed according to three pre-conditions required by s 5B(1) of the CL Act, in conjunction with a consideration of the requirements of s 5B(2) of the CL Act, also having regard to the provisions of s 5C of the CL Act. Paragraph 21 of the amended statement of claim pleads the particulars of negligence relied upon by the plaintiff as follows: "(a) Failed to act with due skill, care and diligence (b) Failed to provide appropriate intravenous antibiotic therapy and/or wound cleaning within a reasonable time of presentation to the Hospital (c) Failed to arrange for an orthopaedic/plastic/hand surgeon to carry out debridement in operating theatre within 6 hours of arrival at the Hospital (d) Failed to heed the manner in which the Plaintiff was injured and the need for particulars (sic) antibiotic therapy (e) Failed to use an appropriate antibiotic regimen including a second generation cephalosporin plus gentamycin (f) Exposed the Plaintiff to an unnecessarily increased risk of developing osteomyelitis as a result of untreated bacterial contamination of the wound"
Dr Gatus' condensation of those particulars was identified as falling into three issues for consideration. That formulation is repeated here for convenient reference: 1. Whether gentamycin should have been added to the antibiotic regime of cefazolin. That formulation must be co-related to Dr Raftos' formulation of an argued need for a regime which included a second generation cephalosporin antibiotic, plus gentamycin; 2. Whether there had been a failure to carry out debridement (which I interpret to mean surgical irrigation, washout or lavage) in (an) operating theatre within 6 hours of arrival at the Hospital; 3. Whether there was a failure to arrange for an orthopaedic/plastic/hand surgeon to carry out debridement in (an) operating theatre within 6 hours of arrival at the Hospital.
In my view, Dr Gatus' formulation as cited above is an oversimplistic representation of the issues. Whilst his formulation poses the questions in an order that conveniently conforms to his specialty of infectious diseases, the order in which he set them out does not conform to the chronological sequence in which the treatment of the plaintiff needs to be considered in this case. Furthermore, Dr Gatus' condensed formulation does not fully reflect or deal with the criticisms made by the plaintiff's experts concerning the defendant's care of the plaintiff, including during post-operative care. The consideration of those matters must also focus upon the relevant risk of harm, as identified at paragraphs [468] to [477] above.
At the forefront of the required consideration is a recognition of the fact that no record exists of the actual time at which the plaintiff's injury occurred. There is no record within the evidence that any of the health care professionals who participated in the care of the plaintiff at Liverpool Hospital, knew of that actual or approximate time, at any stage of their involvement in the care of the plaintiff.

[69]

(1) Initial assessment and treatment plan

The chronology of the care the plaintiff received at Liverpool Hospital between the time of his presentation to that hospital at about 20:05 hours on 22 August 2011, and until about 22:30 hours that evening, at which time the planned operation was postponed, is set out and summarised in the chronology appearing at sub-paragraphs (1) to (13) of paragraph [119] above.
The initial treatment plan, if implemented, would have meant the plaintiff would have been operated upon by way of wound irrigation or lavage within 6 hours of his presentation to Liverpool Hospital, and most likely, also within 6 hours of his presentation to Campbelltown Hospital. It was self-evident that such a procedure would have occurred at about, if not more, than 6 hours after the injury had occurred. This meant that, according to the medical evidence concerning the "hit and miss" nature of wound classification as "dirty", on a prospective analysis of the situation at 22:30 hours when the procedure was postponed until the next day, there were proper grounds for the wound to be considered as being a "dirty" wound. This is because, after midnight on 22 August 2011, more than 6 hours would have passed following the plaintiff's injury and his first presentation to a hospital. That prospect would have been self-evident to those considering the revised treatment plan at 22:30 hours. In that regard, see the summary set out at paragraph [183] above.
The matters of significance which appear to emerge from the chronology extracted from the records of that period of the plaintiff's care at Liverpool Hospital were, first, there is no record of the time or approximate time at which the plaintiff's injury had occurred, which on the evidence, appeared to be a matter of some importance to the scheduling of a surgical wound irrigation and washout, secondly, between 20:05 hours and 23:55 hours on that evening, the plaintiff had not been given any further antibiotics in addition to the initial dose of flucloxacillin 125mgs he received at 19:30 hours at Campbelltown Hospital, and thirdly, there is no record of the plaintiff having been given any topical wound treatment with an antiseptic solution such as povidone iodine, which Dr Raftos identified as being required if surgical lavage was not feasible within 6 hours of arrival at the hospital. I consider that on the evidence, if such a solution had been applied to the wound it would have been a painful experience for the plaintiff, and it is most likely that it would have been minuted in the contemporaneous clinical records as being a matter of some significance to the plaintiff's treatment and further management.
As to the first of those matters, the failure of the hospital staff to record the time, or an estimated time, for the occurrence of the plaintiff's injury, may not have initially been of critical relevance, notwithstanding the fact the plaintiff had an open fracture. This was because it was documented that the plaintiff was being treated as an emergency case, and a surgical washout was initially planned to be carried out within 6 hours of the plaintiff's presentation to Liverpool Hospital. In that regard, the expert evidence reveals that there was no bright demarcation line at the expiry of 6 hours following the hospital admission, but that after 6 hours, any interval of delay in achieving a surgical washout of the wound was associated with an incremental risk of harm from infection: T138.27 - T138.45.
As to the second of those matters, there was no expert evidence which directed any criticisms per se at the timing of the first dose of cephazolin given to the plaintiff at 23.55 hours. Dr Raftos' criticisms of the second component of that initial treatment plan was that the standard of care and the medical management for open fractures was the administration of prompt intravenous antibiotics that were appropriate to the nature of the potential contamination of the wound, and there was no compliance with that standard: Exhibit "A", p 211. The full context of his opinion in that regard was as follows: "DISCUSSION Open fractures are fractures in which there is communication between the fractured bone and the external environment through a skin laceration. Open fractures are prone to infection because bacteria from the skin and from the environment have direct access to the bone. Once osteomyelitis (bone infection) develops in an open fracture, the likelihood of amputation or permanent disability is significantly increased. The immediate medical management of open fractures is aimed at minimising the risk of infection. Standard care for open fractures should always include prompt intravenous antibiotics, appropriate to the nature of the potential contamination of the wound, and wound lavage (washout) and debridement by an orthopaedic/plastic/hand surgeon in the operating theatre within six hours of arrival at hospital. If surgical lavage within six hours is not feasible, then the wound should be meticulously cleaned and bathed in antiseptic solution (usually a povidone iodine solution) pending formal surgical lavage. Failure to provide appropriate intravenous antibiotic therapy and/or urgent wound cleaning within a reasonable time from presentation to hospital of an open fracture would expose the patient to an unnecessarily increased risk of developing osteomyelitis as a result of untreated bacterial contamination of the wound. Robert's injury occurred at about 1700 hours on 22 August 2011. He presented to Campbelltown Hospital at about 1745 hours and arrived at Liverpool Hospital at about 2012 hours. The wound was cleaned first at surgery at about 0900 hours on 23 August 2011, some 16 hours after the injury occurred. This was an unacceptable delay in cleaning the wound. If Robert's wound had been cleaned within six hours of his presentation to hospital, that is by about midnight on 22 August 2011, the open fracture of his thumb would, on the balance of probabilities, have healed without developing osteomyelitis and without the need for amputation." [Emphasis added] [Exhibit "A", pp 211 - 212]
According to Dr Raftos' evidence, the administration of antibiotics "appropriate to the potential contamination of the wound" which I have emphasised in the preceding paragraph, included the addition of the broad spectrum antibiotic gentamycin.
The third of those matters, as outlined by Dr Raftos, the application of an antiseptic solution to the wound, such as povidone iodine, appears to have only become a pressing consideration once it became known that surgical lavage within 6 hours of presentation was no longer feasible.
On the cited evidence, it seems obvious, logical and in accordance with common sense, that in circumstances where the standard of care for injuries of the kind suffered by the plaintiff requires, amongst other things, prompt surgical lavage or washout within 6 hours of arrival at the hospital, or if that standard of care cannot be feasibly achieved, then meticulous cleaning and bathing in an antiseptic solution pending such treatment, that such a course should be followed, unless there were sound reasons for not doing so. No such exceptional reasons were identified in the evidence that would serve to reasonably justify departing from that suggested course as the plaintiff had an open wound with exposed bony fractures of the kind referred to by Dr Raftos, as cited at paragraph [498] above.
In the circumstances under present review, common sense dictates that expert evidence is not required in order to properly reach the conclusion that it is important to identify and to document the time of injury or the approximate time of injury for the information of other treating health care professionals who would be likely to be involved in the hand-over of the care of the plaintiff along the timeline of his stay in hospital: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538, p 563, p 564.
I infer from the contemporaneous clinical notes from both Campbelltown and Liverpool Hospitals, that those treating the plaintiff at either of those hospitals had no reliably recorded time which could serve as a working baseline from which to measure the time or the approximate time that elapsed since the injury. The only definite time reference was the record of when the plaintiff presented at hospital, and the timed notes of attendances upon him by staff. This made it even more important to arrange prompt provision of surgical washout or lavage, or alternatively, antiseptic treatment to the plaintiff's wound pending such a procedure. This is because as time passed, the risk of infection increased incrementally: T138.27 - T138.45.
By the time the plaintiff arrived at Liverpool Hospital on transfer from Campbelltown Hospital, at the time of hand-over of care, the staff at Liverpool Hospital who were responsible for planning, implementing, and handing over the plaintiff's assessment and treatment, had no recorded reference point as to when the injury had occurred. A review of the records in evidence reveals there is no contemporaneous notation which indicates that such an inquiry had been made of anyone who was likely to be able to throw light upon that question.
Accordingly, the determination in hospital of the reasonable parameters for the timeliness of the assessment and the treatment planning process at Liverpool Hospital was necessarily hampered by that absence of knowledge of the time of injury. Consequently, the subsequent successive decisions made for the timing of the plaintiff's planned treatment were made on the basis of unidentified or uncertain assumptions that were bound to involve incremental risk to the plaintiff from infection as time passed. Such risks required commensurate precautions, as described by Dr Raftos.
In my view, those circumstances justify a finding that the staff at Liverpool Hospital were in breach of their duty of care to the plaintiff at the outset of the plaintiff's treatment there, and that breach continued until the time the plaintiff ultimately had his surgical procedure, which commenced at 08:35 hours the following day.
I have come to that view because the three pre-conditions required by s 5B(1) of the CL Act are satisfied in relation to that period. I consider this to be so because a reasonable person in the position of the defendant's medical staff ought to have foreseen that uncertainty over the time interval between when the injury actually occurred and the time of treatment, carried with it the incremental risk of harm from infection: s 5B(1)(a) of the CL Act. In circumstances where there was no way of knowing which environmental microbial organisms the plaintiff had been exposed to either at the time of injury or whilst he was awaiting treatment. In that period, the risk of infection, including from infection with potentially "horrendous" consequences, was a risk that must be seen as being "not insignificant": s 5B(1)(b) of the CL Act. This is so particularly in view of what the assessing doctors described as a vague and therefore imprecise presenting history, which raised doubts as to the reliability of the plaintiff's history of injury in the case of an 8 year old child. In those circumstances, according to the expert evidence of Dr Raftos, which I accept, I find that a reasonable person in the position of the defendant's medical staff who were responsible for planning and arranging treatment for the plaintiff, would have taken the precautions identified by Dr Raftos, as cited at paragraph [498] above: s 5B(1)(c) of the CL Act.
I have reached that latter conclusion because as there was an incremental likelihood of escalating infection if the identified standard of medical care had not been provided, and there was a higher probability of infection occurring in the absence of any knowledge of the likely environmental microbial organisms to which the plaintiff had been exposed: s 5B(2)(a) of the CL Act. In such circumstances, the likely seriousness of the harm that would arise if there was inadequate adherence or non-adherence to the required standard of care was great, as an inadequately addressed risk of infection was a known source of harm: s 5B(2)(b) of the CL Act. Any burden on the defendant's staff in taking the precaution of attempting to ascertain the timing of the plaintiff's injury, and then in taking administrative steps to prioritise treatment of the plaintiff as time went by, must in the circumstances under present consideration, be seen as being of a very low order, if not negligible, given the duty of those treating the plaintiff was to act according to the expected standard of care: s 5B(2)(c) of the CL Act. No relevant exceptional social utility considerations arise: s 5B(2)(d) of the CL Act. Consistent with what was said in Albrighton's case, as cited at paragraph [479] above, major public hospitals operating as tertiary referral centres for trauma cases, in accepting and agreeing to appropriately managing such emergency trauma cases on an ad hoc basis, must have appropriate systems in place to reasonably ensure the delivery of the expected standard of care.
I therefore find that the defendant was in incremental breach of its duty of care to the plaintiff from the time the plaintiff was admitted to Liverpool Hospital, because there was no documentation of the time that the plaintiff's injury occurred, and therefore there was no sound or reliable reference point for properly considering the effect of delay occurring in the plaintiff's further care pending the opportunity arising for definitive operative treatment. That breach of duty continued until the plaintiff was operated upon, after some 12.5 hours had elapsed following his admission to Liverpool Hospital. This was an unacceptable circumstance where the plaintiff required emergency treatment and where delays in providing the required treatment had foreseeably deleterious consequences.
On the antibiotic issues, by the time the plaintiff arrived at Liverpool Hospital, he had already received an intravenous dose of flucloxacillin on the advice of medical staff at Liverpool Hospital in anticipation of an inter-hospital transfer of care.
Although Dr Raftos correctly identified the fact that flucloxacillin was an antibiotic with a narrow spectrum of activity, and a broader spectrum antibiotic should have been given at an earlier time, I consider that it is inappropriate to criticise the administration of flucloxacillin before the plaintiff was transferred to Liverpool Hospital. This is because at the time the advice to give the plaintiff flucloxacillin was provided, the Liverpool Hospital registrar did not have the benefit of a clinical examination of the plaintiff, or the opportunity of exploring the presenting history. Before inter-hospital transfer occurred, the Liverpool Hospital staff were therefore not in a reasonable position to fully appreciate the extent of the treatment challenges presented by the plaintiff's injury history, and the nature of the injury itself.

[70]

(2) Delay until surgical washout

For the reasons that follow, I consider the delayed timing of the procedure for surgical washout or lavage of the plaintiff's left thumb wound from the late evening 22 August 2011 until 08:35 hours on 23 August 2011 constituted a breach of the duty of care the defendant owed to the plaintiff in the circumstances of his admission to Liverpool Hospital.
On the medical evidence as to the "hit and miss" nature of classification of wound cleanliness, I consider that a convenient starting point for the analysis of this component of the consideration is that one significant effect of delay in carrying out the procedure was that, by about midnight on 22 August 2011, the plaintiff's wound would have been classifiable as a "dirty" or at least a contaminated wound due to the open exposure of bone and the period of time that had elapsed since presentation to hospital: T98.33; T99.1 - T99.18 (Dr Scott); T128.20 - T129.9 (Dr Raftos).
In my view, that was a significant circumstance requiring a procedural medical intervention in two respects with regard to the applicable standard of care. One option was for an operative intervention within 6 hours of presentation to hospital to carry out a surgical washout or lavage, or in the event that option was not feasibly achievable, the other interim option was to apply an antiseptic solution such as povidone iodine to the wound pending the preferred surgical procedure being performed.
Neither of those interventions occurred until the contemplated surgery commenced shortly after 08:35 hours on the following day, which was at least 15 hours after the injury occurred (assuming it occurred just before 17:30 hours if not beforehand), and about 14 hours after the plaintiff's presentation to Campbelltown Hospital (17:51 hours), and 12.5 hours after his presentation to Liverpool Hospital (20:05 hours).
According to the expert evidence, with each hour of delay in performing a surgical washout or lavage, the risk of harm the plaintiff faced from infection, incrementally and significantly increased: T119.36; T138.28 - T138.34.
The question of whether sedation of the plaintiff against the effects of pain might have been used to enable an antiseptic solution such as povidone iodine to be more promptly and effectively applied to all parts of the plaintiff's wound as a precaution against the incremental risk of infection whilst waiting for an opportunity for a surgical washout or lavage, was not explored in the evidence in these proceedings. Therefore, like the question of local anaesthesia, sedation does not feature as a pivotal matter in the consideration.
I now turn to a consideration of the three pre-condition requirements of s 5B(1) of the CL Act concerning the assessment of the claim of negligence in relation to the delayed surgical procedure.
It is clear that the staff members of Liverpool Hospital who were responsible for providing the plaintiff with appropriate treatment for his left thumb injury ought to have known, and in fact knew, that the risk of harm from infection, including in the case of a wound that could properly be classed as a dirty or contaminated wound, was a foreseeable one, and against which, precautions should be taken. The precautions that were suggested against that risk of harm involved performing a timely surgical washout or lavage to clean the wound of contaminants whether visible or not, and addressing an assumed bacterial load, in conjunction with the administration of antibiotics. Each of those aspects of the planned treatment were directed to that risk of harm. Therefore, subject to other required considerations, the pre-condition requirements of s 5B(1)(a) of the CL Act are satisfied.
It was obvious that the risk of harm from hourly escalation of incremental wound infection pending the treatment "was not insignificant" to the plaintiff and to those considering how and when the plaintiff should be given appropriate treatment. For it to have been otherwise, the contemporaneously documented low threshold indication for surgical intervention that evening would have been an unlikely assessment in the circumstances. Therefore, subject to other required considerations, the pre-condition requirements of s 5B(1)(b) of the CL Act are satisfied.
There is little room for doubt that a reasonable person in the position of those health care professionals in the employ of the defendant who were responsible for recommending, arranging and implementing the plaintiff's treatment would have taken the cited precautions against the risk of harm from infection in an untreated wound by providing timely surgical washout or lavage. This is evident from the fact that by about 20:55 hours, and continuing until 22:30 hours, the contemporaneously documented plan for treatment of the plaintiff was to carry out that procedure on him as soon as practicable as the next case to go into the operating theatre. Therefore, subject to other required considerations, the pre-condition requirements of s 5B(1)(c) of the CL Act are satisfied.
Before further considering the above conclusions in the context of the requirements of s 5B(2) of the CL Act, it is necessary to review the events that led to the postponement of the plaintiff's surgery until 08:35 hours the next day, and the consequential characterisation of those events.
The planned procedure would most likely have been performed in the available emergency operating theatre on the night in question were it not for the later arrival of two Category 2 emergencies which were assessed as having greater priority for access to the single operating theatre available for such emergencies. In those circumstances, there can be no reasonable criticism of the decisions made by hospital staff to the effect that those two cases had greater priority than did the plaintiff's situation for access to that operating theatre. However, and unfortunately, those circumstances then created a practical bottleneck which impeded the timing for the commencement of the planned treatment of the plaintiff. This was an emergency circumstance that required an active response consistent with the provision of the required standard of reasonable care and skill.
In those events I consider there is justifiable criticism of the fact that no other arrangements were then made by the hospital to open one of the other 14 operating theatres located at Liverpool Hospital absent the feasibility of a transfer of the plaintiff to another hospital. It can be reasonably inferred from the fact that a suitably skilled hand surgery registrar, Dr Geraghty, and an on call hand surgeon, Dr Scott, would have been available to operate on the plaintiff that night, and that the hospital would have had any other essential operating theatre personnel on an on-call roster to attend on site if sound reasons so dictated the need for this to occur. I draw that conclusion from the tenor of Dr Raftos' evidence concerning the nature of the emergency services expected to be provided by a major tertiary trauma referral centre, and also from the fact that Dr Scott was on call and not on site at the time the plaintiff was assessed by Dr Geraghty, and from the fact that Dr Geraghty had discussed the plaintiff's treatment needs with Dr Scott as was contemporaneously recorded: Exhibit "1", Tab 1, p 253.
It seems from the evidence of Dr Scott that the only thing which stood in the path of an after-hours opening of one of the 14 other operating theatres available on site to deal with the plaintiff's surgical emergency was an administrative task, not a medical debate, as to whether such a step was indicated and should be taken: T100.14. That said, there is no evidence that Dr Geraghty, or Dr Scott, or anyone else at Liverpool Hospital, had attempted to engage with the hospital's administrative processes in order to seek the emergency opening of another operating theatre in order to meet the plaintiff's escalatingly pressing need for the identified treatment in an operating theatre.
Instead, I infer, it seems to have been accepted that, at 22:30 hours on 22 August 2011, the administrative pathway for opening an operating theatre at night, difficult as it might have been, was not to be approached. Instead, it seems it was decided, in a minuted discussion between Dr Geraghty and Dr Scott, that the plaintiff's operation would simply have to be postponed, and would consequently be carried out as the first case in the emergency surgery list scheduled for the following morning: Exhibit "1", Tab 1, p 257. So much appears from the undisputed contemporaneous clinical records. There was nothing in the content of those notes which indicated that an attempt had been made to engage the administrative pathways within the hospital's hierarchy or required procedures for the opening of another operating theatre to treat the plaintiff's emergency trauma presentation.
It is recognised that those circumstances must be viewed in the broader context of the practical administration of the public hospital system in this State, and in the context of the required standard of care concerning the provision of treatment for trauma cases of the kind under consideration.
In that regard, Dr Raftos' unchallenged opinion, clearly and unambiguously stated, was to the effect that the responsibility of a trauma centre was to ensure that there were resources available so that everyone in need of trauma treatment gets appropriate treatment: T123.21. To that statement, which I accept as the applicable standard of care in this instance, I would add, that such treatment, including any interim alternative options such as applying an antiseptic solution to an open wound at risk of harm from infection, should be provided within a reasonable time frame, in which due regard is had to the risks faced by the patient if the required treatment were to be unreasonably delayed.
It is significant that in this case, the defendant did not challenge Dr Raftos' well qualified view as cited in the preceding paragraph, and called no evidence from a similarly qualified emergency medicine specialist to seek to contradict that view, but also did not seek to either plead or invoke a financial-based or other resource-based defence pursuant to Pt 5 of the CL Act, or s 42 of that Act.
The opinion of Dr Raftos on the standard of care expected of the defendant, as cited in paragraph [528] above, was not one that was newly minted at the trial. The defendant had been on longstanding notice of Dr Raftos' views to that effect because they were set out in his report dated 10 April 2013. There, he stated that in accordance with the obligations on hospitals to provide timely and appropriate treatment, Liverpool Hospital ought to have provided appropriate operating theatre resources to ensure that time-critical surgical treatment can be provided to all patients in need of such treatment: Exhibit "A", p 212 (p10 of Dr Raftos' report dated 10 April 2013)
For the reasons outlined at paragraphs [373] to [457] and [528] to [529] above, I prefer the views of Dr Raftos to those of Dr Gatus on the content of the standard of care that the plaintiff expected to receive in the circumstances of his assessment and treatment at Liverpool Hospital at the point where 6 hours had elapsed from the time of the plaintiff's presentation to a hospital.
Accordingly, I accept Dr Raftos' opinion that Liverpool Hospital unacceptably failed to provide adequate operating theatre resources to enable the plaintiff to receive a timely surgical washout or lavage of his left thumb injury by midnight on 22 August 2011, should be characterised as "a departure from what would have been widely accepted peer professional opinion in Australia in 2011 to be competent professional practice …": Exhibit "A", p 212 (p10 of Dr Raftos' report dated 10 April 2013).
Having reached the foregoing conclusions concerning the defendant's non-adherence to the required standard of care, I now turn to a consideration of the requirements of s 5B(2) of the CL Act as part of the process of determining whether or not, in consequence of the above stated findings, there should be a finding that the defendant was in breach of the duty of care that it owed to the plaintiff concerning this component of the plaintiff's claim.
In my view, on the evidence, the inescapable conclusion from the foregoing s 5B(1) analysis is that a reasonable person in the position of the responsible medical decision makers at Liverpool Hospital, considering the plaintiff's treatment needs at the time, would have taken the suggested precautions of arranging for the plaintiff to have a surgical washout or lavage to the wound of his left thumb by midnight on 22 August 2011, or alternatively, very shortly afterwards. I infer that the concept of a lavage would have included cleansing the wound with an antiseptic solution. I draw those conclusions because the plaintiff was at the time facing the significant risk of infection from a wound that, on the evidence, was properly classifiable as "dirty", and the risk of harm from any evolving infection to such a wound, which included an open bony injury was, as described on the evidence of Dr Raftos, most probably increasing incrementally by the hour: T119.36; T138.28 - T138.34; s 5B(2)(a) of the CL Act. On the evidence, the required wound lavage could not be feasibly achieved under a local anaesthetic.
The likely seriousness of the harm from an untimely approach to the treatment of potential infection of the plaintiff's left thumb wound was very significant, in terms not only of any distress to the plaintiff by reason of delayed treatment, but also because of the longer term consequences of an untreated or an inadequately treated infection, which foreseeably included loss of thumb tissue, either in whole or in part: s 5B(2)(b) of the CL Act.
The effect of those conclusions requires a consideration of the nature of the burden to the defendant regarding the suggested precautions. In that consideration, there appear to have been two relevant categories of burden on the defendant in taking the suggested precautions against the risk of harm from infection.
The first category of burden, namely that of effectively applying an antiseptic solution such as povidone iodine as an interim measure whilst surgical intervention remained pending, seems to be relatively slight or non-burdensome, especially since earlier, the plaintiff already had saline-soaked gauze applied to dress his wound pending the application of more definitive treatment: s 5B(2)(c) of the CL Act.
I consider that the second category of burden can be analysed on a common sense analysis. That second category involved the responsible hospital personnel arranging for the opening and the appropriate staffing of an operating theatre for an emergency surgical washout or lavage to occur. That course does not seem to involve any activity so out of the ordinary in terms of the functioning to be expected of a major public hospital which was a tertiary trauma referral centre. Viewed in that context, whilst that task may have posed administrative difficulties, those difficulties do not seem to be of an unmanageable character, or comprise an unachievable burden in the circumstances that prevailed, where the hospital was able to call upon appropriate professional staff if there was a pressing need to do so: s 5B(2)(c) of the CL Act.
For a contrary conclusion to apply, persuasive supporting evidence would be required. In stating that view, the plaintiff unquestionably carries the onus of proof in establishing the defendant was negligent: s 5E of the CL Act. In my view, where the evidence is silent on the nature and extent of the burden, the common sense analysis according to an ordinary understanding of the function of a tertiary trauma hospital, as identified above, remains open, and I make that finding: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538, p 563, p 564.
The final statutory consideration for this component of the analysis is that of "social utility". In my view, there is no social utility to be achieved or maintained by the defendant not taking the reasonable precautions against the risk of harm as has been identified and suggested by Dr Raftos. On the contrary, not taking reasonable steps to seek to minimise the harm of residual disability from trauma and possible infection in the case of a child, arising from the occurrence of the foreseeable harm against which reasonable precautions could have been taken, is likely to produce a significant and undesirable social burden. I find that the suggested precautions were reasonable and were prospectively justified, and they should have been taken in the circumstances: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [124]; s 5B(2)(d) of the CL Act.
In considering the burden associated with the precautions suggested by Dr Raftos, guided by that expert evidence which I have accepted, I consider that the procedure of surgical washout or lavage seems to readily fit within a range of commonplace functions expected to take place in a major tertiary public hospital trauma treatment centre, such that it does not appear to be unusual, and is not so dissimilar to other precautions against risks of harm from infected wounds so as to raise an exceptional circumstance that avoids a liability that might otherwise arise. The only apparently unusual circumstances were that, by the time the plaintiff was seen and attended to at Liverpool Hospital, it was 20:05 hours in the evening. However, recognising that trauma requiring hospital assessment and treatment (including surgery in an operating theatre) can occur in innumerably random ways, at any hour of the day or night, I consider that the plaintiff's reasonable need for timely treatment was well within the ordinary remit of the Liverpool Hospital, as a major trauma referral centre, without exception, subject to a consideration of the defence that is claimed by the defendant pursuant to s 5O of the CL Act; and s 5C of the CL Act. That consideration will form the subject matter of Issue 5.
I therefore find that the delay between shortly after 22:30 hours or midnight on 22 August 2011, and 08:35 hours the next day, in achieving a timely surgical washout and lavage of the plaintiff's left thumb wound was unacceptable, and constituted an escalating and continuing breach of the duty of care the defendant owed to the plaintiff.

[71]

(3) Adequacy of in-patient antibiotic regime

The plaintiff's claim of inadequate antibiotic treatment whilst he was an in-patient, arises for consideration in the context of the expert medical evidence to the effect that the different kinds of antibiotics referred to in the evidence acted against different particular bacteria or pathogens, and that some antibiotics were not active at all against some pathogens: Exhibit "1", Tab 5, pp 479 - 480; T132.4 - T132.16. In that context, it is relevant to note that dirty water was not the only potential source of pathogens against which antibiotic prophylaxis was required, as in the case of open fractures, there were some environmental bacteria to be relevantly considered as well: T128.35.
It seems reasonable to assume that when the plaintiff arrived at Liverpool Hospital at 20:05 hours on 22 August 2011, it was recognised by those who then assessed him, that he had already been given an intravenous dose of flucloxacillin. In looking at the timeline between 20:05 hours and 23.55 hours on that date, as summarised between sub-paragraphs (1) to (8) at paragraph [131] above, on the evidence, it is difficult to identify a time when cephazolin, which was administered at 23:55 hours, should have been given at a time earlier than 22:30 hours, which was the time when it became evident the planned washout or lavage and debridement scheduled for that evening would have to be postponed.
In between the triage time of 20:12 hours and the time of the nursing review at 21:30 hours, which followed and implemented the orders given by Dr Geraghty when he completed his plastics review of the plaintiff at 20:55 hours, there is no note of anyone having given any consideration to administering any further antibiotics to the plaintiff in addition to the flucloxacillin that he had received at 19:15 hours at Campbelltown Hospital. It seems that this was because it was known the plaintiff was to go to the operating theatre as the next case. However, that did not fully address the possibility of an increasing bacterial load in the interim waiting period.
At Dr Geraghty's 20:55 hours plastic review, it would have been apparent that in the previous one hour and forty minutes, the only antibiotic the plaintiff had received was a dose of flucloxacillin 125mg. Without an available narrative of why cephazolin was scheduled to be given 3 hours later, at 23.55 hours, it would be unreasonable to be critical of the time lapse that occurred until cephazolin was actually administered to the plaintiff. This is because there was no discussion raised in the evidence of the experts as to whether it was appropriate to administer a further antibiotic like cephazolin whilst flucloxacillin might still be having an effect for which there might have been an untoward drug interaction. In the absence of a discussion in the expert evidence of a possible or, alternatively, an unlikely drug interaction between the antibiotics flucloxacillin, cephazolin and gentamycin in that period, it is not possible to evaluate the antibiotic-relevant events in that period according to the requirements demanded in an analysis that must proceed pursuant to s 5B of the CL Act.
That said, it remains necessary to evaluate the criticisms made by Dr Raftos to the effect that gentamycin should have been added to the plaintiff's antibiotic regime. The way in which that criticism by Dr Raftos was framed, there was no precise time specified for the administration of gentamycin to the plaintiff as an antibiotic prophylaxis. The question then arises as to when in the timeline should it have been reasonably administered. In the described circumstances, because cephazolin was ordered at 20:55 hours and given at 23.55 hours, in the absence of evidence of a relevant adverse drug interaction with gentamycin, I find that gentamycin should have been administered to the plaintiff as soon as practicable after Dr Geraghty's review, which concluded at 20:55 hours.
I have reached that conclusion because, by 20:55 hours, Dr Geraghty would have recognised, as he has recorded in the clinical notes, that the plaintiff had given only a vague historical description of the manner, circumstances and environment of his injury. The significant component of the history given was contact between the plaintiff's injured thumb and wet cement or wet concrete. I accept the tenor of Dr Raftos' opinion that this history should have led to a realisation of the potential for the plaintiff's wound to have been contaminated by anaerobic bacteria of the kind against both which the flucloxacillin which had been given, and the cephalosporin which was about to be given, were inactive as a prophylaxis, as was explained by Dr Gatus: Exhibit "1", Tab 5 pp 479 - 480; T132.14 - T132.16.
In the terms of an analysis of those events as required by s 5B of the CL Act, in the circumstances, it is difficult to be critical of the non-administration of gentamycin to the plaintiff over the ensuing period of one hour and fifty-five minutes that elapsed until 23:55 hours, at which time cephazolin was given.
However, by 22:30 hours, it was already known by those responsible for considering antibiotic prophylaxis that the plaintiff would not be operated upon for a further 8 or more hours. At that time it ought to have been known, relevantly, that there was vagueness in the plaintiff's historical account of the circumstances of his injury, also recognising that he was only 8 years old. At that time, and also by 22:30 hours, there ought to have been a realisation on the part of those persons responsible, of the need to give the plaintiff antibiotic prophylaxis that was likely to be effective having regard to the circumstances of his injury. I accept this meant adding gentamycin into the mix because of the vagueness of his history of injury, and the mention in that history of open wound contact with wet cement or wet concrete, and subsequent environmental exposure of the open fracture, as was explained by Dr Raftos. There was no reasonable basis upon which it could be assumed that the wetness component of the contact involved only clean or uncontaminated water.
If the precaution of giving the plaintiff gentamycin had not been taken against the risk of harm from the incremental effects of infection for so long as surgical washout or lavage was to be delayed, it follows that there would have been no reduction in the bacterial load in the plaintiff's open bony wound. This was a matter which ought to have been reasonably foreseen by those who were responsible for managing the plaintiff's treatment. Therefore the requirements of s 5B(1)(a) of the CL Act are satisfied.
In those circumstances, the risk of harm from infection increased significantly as the hours passed, and this must be seen to have been a "not insignificant" risk. Therefore the requirements of s 5B(1)(b) of the CL Act are satisfied.
In those circumstances, I find that a reasonable person in the position of the health care professionals at Liverpool Hospital responsible for assessing and determining the plaintiff's need for treatment, including antibiotic prophylaxis, would have taken the precaution of adding gentamycin to the mixture of antibiotics prescribed for the plaintiff from some time between 20:55 hours and 23.55 hours on 22 August 2011, until he was discharged from hospital at 16:55 hours on 24 August 2011. Therefore, the requirements of s 5B(1)(c) of the CL Act are satisfied.
I find that the above conclusions are particularly apt where the probability of harm occurring to the plaintiff from the incremental risk of infection was significant: s 5B(2)(a) of the CL Act. In addition, there was a high likelihood of the harm consequential to those circumstances: s 5B(2)(b) of the CL Act. Furthermore, the burden of seeking out and obtaining access to the drug gentamycin did not seem to be particularly onerous or burdensome where Liverpool Hospital, as a major tertiary trauma centre, would be expected to have access to an appropriate range of such drugs, either with or without medically qualified staff having to negotiate such access with the hospital's infectious diseases consultant, if that was in fact a requirement at the relevant time: s 5B(2)(c) of the CL Act. In the circumstances, there was no relevant social utility in withholding such antibiotic therapy from the plaintiff on grounds of either the described rare side-effects referred to in the evidence of Dr Gatus, or on account of the principles of antibiotic stewardship in circumstances where the plaintiff was at significant risk of harm and disfigurement if that antibiotic were to be withheld from him on considerations of antibiotic stewardship. In my assessment, the vagueness of the plaintiff's history of injury, and the history of contact between his injured left thumb and wet concrete or wet cement, justified the suggested course of giving the plaintiff the broad spectrum antibiotic gentamycin: s 5B(2)(d) of the CL Act.
In my view, there are no exceptional matters which limit those conclusions on a consideration of the provisions of s 5C of the CL Act. I therefore find that the failure to provide the plaintiff with gentamycin for antibiotic prophylaxis whilst in hospital constituted a breach of the duty of care the defendant owed to the plaintiff. That failure then continued to have effect until the time the plaintiff was discharged from Liverpool Hospital.

[76]

4 September 2011

The next occasion on which Dr Sathasivam had the condition of the plaintiff's thumb drawn to his attention whilst he was on duty at the Liverpool Hospital Hand Clinic, was on 4 September 2011. On that occasion, a doctor at Campbelltown Hospital rang Dr Sathasivam at the Liverpool Hospital Plastics or Hand Clinic following removal of the plaintiff's bandage. At that time the plaintiff's distal left thumb was described as black/necrotic, with purulent fluid and malodour noted to have been present. At that time concerns were expressed over a non-viable thumb tip, with sloughing dorsal skin.
At that time, the question was raised as to whether the thumb wound was infected: Exhibit "1", Tab 2, p 341. I find that at that time, based on the content of the note made at Campbelltown Hospital, Dr Sathasivam was most probably made aware that the plaintiff was taking Augmentin 500mg twice daily, and that there was a discussion about possible infection, following which no changes were made to the plaintiff's post-operative antibiotic prescription. On that occasion Dr Sathasivam suggested a review of the plaintiff at the Hand Clinic in a further 2 days: Exhibit "1", Tab 2, p 341.
As cited at sub-paragraphs (4) and (6) of paragraph [206] above, from the summary notes made by the attending doctor at Campbelltown Hospital, the compelling inference is that in the conversation between that doctor and Dr Sathasivam on 4 September 2011, Dr Sathasivam was made aware of relevant physical signs and the stated impressions of infection thought to be present in the plaintiff's left thumb, as noted in the notes of that hospital: Exhibit "1", Tab 2, p 341.
Given that Dr Sathasivam was the Hand Clinic Registrar who saw the plaintiff on 30 August 2011, and given that he was advised of those matters of concerns over the plaintiff's wellbeing on 4 September 2011, when he subsequently saw the plaintiff at Liverpool Hospital Hand Clinic two days later on Tuesday 6 September 2011, it is remarkable that the only observation he recorded in the clinical notes at that time was "dry gangrene", without reference to the more detailed nursing observations made on the same occasion, and which painted a different picture.
This difference of detail cannot be explained on the evidence. Whilst it is understandable that Dr Sathasivam had no recollection of the plaintiff by the time he gave evidence at the hearing of this case (T108.34; T104.43; T105.4) it is unlikely that as at August/September 2011, as the registrar on duty who saw the plaintiff on several occasions at the Liverpool Hospital Hand Clinic, he would not have recalled the plaintiff's injury and his reviews of the plaintiff on 30 August 2011, and a related telephone discussion with a doctor from Campbelltown Hospital on 4 September 2011.

[77]

6 September 2011

Those events call into question the completeness and the reliability of Dr Sathasivam's brief notes as to the appearance and condition of the plaintiff's left thumb when he assessed it on 6 September 2011. Be that as it may, it is relevant to compare Dr Sathasivam's very brief note dated 6 September 2011 with the contemporaneous note made by a doctor at Campbelltown Hospital two days earlier, which gives a clear impression of an infection being present in the plaintiff's left thumb at that time: Exhibit "1", Tab 2, p 361; Exhibit "1", Tab 2, p 341. The full text of the relevant portions of those notes and impressions have been cited at sub-paragraphs (4) and (6) of paragraph [206] above.
Based on those notes, and based on Dr Sathasivam's only limited "dry gangrene" annotation, and his limited recollection of the events, as cited at paragraph [566] above, I do not accept Dr Sathasivam's brief "dry gangrene" note to be a reliable basis for concluding the plaintiff's left thumb was affected by dry gangrene as distinct from wet gangrene on that occasion. I find that the cited contents of the Campbelltown Hospital contemporaneous records dated 4 September 2011 suggest that Dr Sathasivam's note, although also contemporaneous, is not a complete or an accurate description of the plaintiff's condition on 6 September 2011. I reach that conclusion on the basis of a comparison of the Campbelltown Hospital notes dated 4 September 2011 (Exhibit "1", Tab 2, pp 341 and 361) and the Liverpool Hospital Hand Clinic notes made by a nurse, and by Dr Sathasivam: Exhibit "1", pp 36 and 38. In the described circumstances, it is unlikely that the signs which were evident to, and recorded by the doctor at Campbelltown Hospital, would have receded at the time Dr Sathasivam saw the plaintiff on 6 September 2011.
Whilst those conclusions relate more to the issue of causation, which will be taken up for analysis shortly, it is nevertheless necessary to consider the relevance of these matters to the issue of breach of duty of care on the antibiotic issues.
In my view, on account of the foregoing matters, Dr Sathasivam's 6 September 2011 review of the plaintiff reveals a breach of the duty of care that Liverpool Hospital owed to the plaintiff with regard to his attendances at the Hand Clinic of that hospital.
This is because on 6 September 2011, Dr Sathasivam had been made aware of signs of infection two days earlier, and he was also made aware that the plaintiff was taking Augmentin Duo 500mg. It was clear that at the telephone review on 4 September 2011, the question of infection was raised for consideration, yet no antibiotic review, or a change of prescription, or the arrangement of an early specialist review, occurred on 6 September 2011. Instead, Dr Sathasivam suggested that the plaintiff be reviewed in a further week in Dr Rider's Clinic: Exhibit "1", Tab 1, p 38.
Those events occurred in circumstances where, as a Plastics or Hand Clinic Registrar, he could at the time have been reasonably taken to be aware that an infective process could take hold, with potentially "horrendous" results, as was explained by Dr Gatus. In those circumstances, there was a significant risk of harm from the effects of infection not addressed with a broad spectrum antibiotic that was active against a greater range of pathogens than was the case with Augmentin Duo 500mg. At that time, Dr Raftos' view was that a broader spectrum antibiotic should have been given, including at a much earlier time. I accept his opinion in that regard: s 5B(1)(a) of the CL Act.
Because on 6 September 2011 there were signs of infection in the plaintiff's left thumb, and because the tip of the thumb was black, the risk of gangrene developing further, must have been seen as being "not insignificant" at the time: s 5B(1)(b) of the CL Act.
In those circumstances, a reasonable person in the position of the Hand Clinic Registrar would have taken the precaution of adding, or seeking to add, whether as a result of advice sought, or otherwise, a broad spectrum antibiotic such as gentamycin into the mix of the medications prescribed for the plaintiff, as identified in the opinion of Dr Raftos and arranging for an earlier specialist review: s 5B(1)(c) of the CL Act.
In arriving at those conclusions, I consider that if the contended precautions had not been taken, there was a high probability of harm occurring from the unaddressed potential for the spread of wound infection to a greater area of the plaintiff's thumb, if not to other adjacent structures: s 5B(2)(a) of the CL Act. If an infection remained uncontrolled and was permitted to spread by reason of such circumstances, there was a high likelihood of serious harm ensuing: s 5B(2)(b) of the CL Act. At that time, the likely burden of taking the precaution of providing a broad spectrum antibiotic and arranging an urgent specialist examination for review of the plaintiff's condition, does not seem to have been great: s 5B(2)(c) of the CL Act. There seems to have been no exceptional social utility involved in not following such a course: s 5B(2)(d) of the CL Act.
The suggested course of prescription of the broad spectrum antibiotic gentamycin, and the specialist referral outlined in the previous paragraph, seems to fit well within the remit of a hospital hand clinic, without exceptional circumstances: s 5C of the CL Act.

[81]

Factual causation : s 5D(1)(a) of the CL Act

In relation to the first step of identifying factual causation, it is recognised that the defendant cannot be held responsible for all of the end result effects of the plaintiff's injury in this case, but only those aspects that could have been reasonably avoided but for breach of the duty of care owed.
Consequently, it is convenient and necessary to examine the particular residual problems the plaintiff would most probably have been left with had there been no breach of the duty of care owed to him.
On that question, I find that the plaintiff would inevitably have been left with some residual scarring from the open wound to his left thumb, including the surgical scarring that would have necessarily been related to the repair of that wound, and most probably, some stiffness to the distal thumb joint due to the fact that it was the subject of a displaced fracture dislocation. It was also quite possible that the nature of the complex fracture to the distal thumb could have resulted in some residual deformity of the thumb once the injury had maximally healed. Assuming that no osteomyelitis or avascular necrosis developed, and assuming that the plaintiff received timely treatment, including effective antibiotic treatment, the combination of those matters would most probably have meant the plaintiff would not have needed to undergo amputation of any part of his left thumb, but he would probably have been left with some reduced manual dexterity, although he would still have had a thumb which he could use to grip and to oppose when using his dominant right hand.
The matters to which the consideration of factual causation must be directed are first, whether the loss of the tip of the plaintiff's left thumb was due to the consequences of dry gangrene, or secondly, and alternatively, whether that loss was due to damaged tissues resulting from unaddressed or inadequately treated osteomyelitis infection.
The theory of occurrence of dry gangrene, which postulated that the death of the tissues of the tip of the injured thumb had been due to an assumed vascular compromise and related avascular necrosis, and an assumed subsequent colonisation of the thumb by infective microbial organisms, came from Dr Gatus. At the time he expressed his opinions to that effect, he had not seen the photograph comprising Exhibit "F". Dr Gatus appears to have based his avascular necrosis theory on Dr Sathasivam's short form notation which he recorded in the Liverpool Hospital clinical records dated 30 August 2011, which stated "dry gangrene": Exhibit "1", Tab 1, p 38.
In my view, on the evidence of the clinical records when read in their entirety, in conjunction with Dr Sathasivam's evidence, the assumptions made by Dr Gatus were conjectural or speculative and therefore unsound: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352, at p 358, p 360.
In his oral evidence Dr Sathasivam explained that his "dry gangrene" note should be taken to mean that this was the condition he diagnosed on that occasion, and that the signs (of infection) were not present on that day: T109.5 - T109.7. He earlier explained that dry gangrene was distinguishable from wet gangrene as the latter condition was associated with a discharge from the actual wound, it would be soft, with erythema (which means redness and inflammation of the skin) tracking up the thumb (presumably from its base at the wrist), and it would have a distinctive smell: T108.44 - T108.49. The correctness or otherwise of Dr Sathasivam's diagnosis of dry gangrene is a question of fact.
Dr Sathasivam explained that he had no independent recollection of his attendance on the plaintiff on the occasion in question and that he was therefore just reliant on what was written in the notes: T108.34. He stated that the description he wrote in the notes, namely "necrotic dorsal distal aspect of thumb" and "dry gangrene" meant there was no evidence of wet gangrene: T108.42.
Whilst those contemporaneous notes made by Dr Sathasivam are of importance in seeking an understanding of the events that occurred, given that there is a divergence between the unchallenged evidence of Mrs Gould, who was a few days beforehand, on 28 August 2011, concerned about infection at that time, as is evident from her evidence summarised at paragraphs [10] and [11] above, and the evidence of Dr Sathasivam as to what he observed two days later at the Hand Clinic on 30 August 2011, and subsequently, and given that Dr Sathasivam had no independent recollection on the matter, and was therefore reliant on an interpretation of his contemporaneous notes, before determining the aptness of Dr Sathasivam's interpretation, which would ordinarily attract significant weight because the notes should be read as a contemporaneous summary of his trained professional observations, it also becomes relevant to consider the broader context of other contemporaneous notes made by other trained observers at around the same time.
In this context, in addition to Dr Sathasivam's note dated 30 August 2011, there are two other relative contemporaneous reference points for comparison, the first comprising a medical officer's observations recorded in the Campbelltown Hospital records on 4 September 2011 (at Exhibit "1", Tab 2, pp 341 and 361, as cited at sub-paragraphs (4) and (6) of paragraph [206] above, and the second comprising the nursing notes recorded at the Liverpool Hospital Hand Clinic on 6 September 2011: Exhibit "1", Tab 1, p 36, which are cited in full at paragraph [59] above.
Guided by the cogently expressed opinions of Dr Raftos, and absent satisfactory evidence to the contrary, I find that those contemporaneous notes by trained observers clearly identify the presence of an infective process by reference to the description of the thumb tissues sloughing and being malodorous. Those matters, and the earlier medical observations of an infection on 4 September 2011 denote the presence of an established process of infection by 6 September 2011. Dr Raftos' expert interpretation of Exhibit "F", which I accept, also supports that conclusion: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538, p 563, p 564. Furthermore, the microbiological test results for organisms grown from the swab taken on 4 September 2011 identify the presence of the significant pathogen Aeromonas hydrophila, an organism that can cause "horrendous consequences".
I have considered Dr Gatus' theory that the plaintiff became exposed to that organism after he had left Liverpool Hospital. I considered Dr Gatus' theory in that regard to involve unwarranted conjectural speculation for a number of reasons. First, the plaintiff's hand was bandaged at the time he left hospital and this would ordinarily have been likely to have been protective of the wound with regard to exposure to environmental organisms. Secondly, on 28 August 2011, when the plaintiff presented at Campbelltown Hospital for attention to his thumb following a fall from a swing on that day, according to the unchallenged evidence of Mrs Gould, the plaintiff's thumb was already malodorous and showing signs of blackening of the tip suggesting an infective process was already in train in circumstances where the antibiotics given to the plaintiff beforehand were not of a broad spectrum kind, and were not prophylactic against the Aeromonas hydrophila organism that was ultimately grown from swab cultures taken from the wound on 4 September 2011. Thirdly, on the balance of probabilities, and taking into account Dr Raftos' opinions including his interpretation of the photograph Exhibit "F", when an overview is taken of the events comprising Mrs Gould's description of the plaintiff's wound on 28 August 2011, Dr Sathasivam's note of superficial skin necrosis on 30 August 2011, the Campbelltown Hospital observations of infection on 4 September 2011, the Liverpool Hospital Hand Clinic nursing notes of 6 September 2011, and the subsequent findings of infection and gangrene, this picture suggests that those events were connected by an infective process that was already in train very soon after the plaintiff's discharge from hospital on 24 August 2011, if not beforehand, and first noted by Mrs Gould's lay observations on 28 August 2011.
The probability of that latter scenario being the most likely explanation is supported by the fact that beforehand, the plaintiff had not received any antibiotic prophylaxis that was active against the Aeromonas hydrophila organism which was grown from the swab taken on 4 September 2011, and the unlikelihood of the plaintiff's bandage covered wound having been exposed to that organism after his discharge from Liverpool Hospital. Furthermore, it seems unlikely that the plaintiff would have been exposed to that organism at Campbelltown Hospital, when his blood stained bandage was taken off, and when his wound was then washed and re-bandaged in a cleansing process.
In making those findings I do not accept Dr Gatus' evidence to the contrary because it invokes speculation as to the presence of avascular necrosis rather than wet gangrene, when the evidence in favour of Dr Gatus' argument was speculative, and was outweighed by the more detailed contemporaneous evidence of the presence of an earlier established infective process by microbial organisms against which the plaintiff had not received any antibiotic prophylaxis, and where those organisms were grown from a swab culture taken from the plaintiff's wound on 4 September 2011.
In making those findings I have not overlooked the dispute within the expert evidence as to the opportunity for the plaintiff's wound to have become infected by the Aeromonas hydrophila organism in that Dr Gatus' view was that immersion in affected water was required for such an infection to occur. I consider that view was based on an unduly narrow and subjective interpretation of the antibiotic Guidelines, but more importantly, Dr Gatus did not refute Dr Raftos' expressed view that the plaintiff could have been environmentally exposed to the organism in question at the time of, or shortly after his injury, and this needed to be addressed: T129.47 - T130.9. I accept Dr Raftos' view with regard to that question, in preference to Dr Gatus' more speculative analysis.
In arriving at my findings I have not overlooked Dr Gatus' challenge to the theory that the plaintiff had osteomyelitis. That question has already been analysed at paragraphs [433] to [443] above. I am satisfied from the contemporary medical records that there was clinical evidence to support the diagnosis of probable osteomyelitis: Exhibit "A", p 211. There is no contemporaneous clinical record of there having been any relevant vascular compromise to the plaintiff's left thumb to support Dr Gatus' theory that avascular necrosis occurred in the plaintiff's thumb, which then, he said, permitted colonisation by the described infective organisms. I consider Dr Gatus' theory in that regard to be flawed by its reliance on Dr Sathasivam's "dry gangrene" note which I consider to be in itself, an incomplete and unsound basis for such a theory, as explained at paragraphs [589] to [593] above.
I therefore conclude that at the time of his injury, the plaintiff's left thumb most probably became infected by environmental exposure to the Aeromonas hydrophila organism, probably in affected water on the concrete or the cement surface with which the plaintiff's thumb had made contact at the time of injury. I infer that surface was not clean by reason of the fact that it had become wet from water that was most probably not clean by the time such injurious contact occurred. I also conclude that, as explained by Dr Raftos, the open bony wound of the plaintiff's injured thumb could also have been readily exposed to that organism in the atmosphere, and had then become infected by that organism, and by the other organisms that were identified from analysis of the swab taken on 4 September 2011. The antibiotic cover the plaintiff had been given was not prophylactic or active against the injurious effects of the microbial organisms to which he was thereby exposed.
Based on Dr Raftos' evidence, I find that but for the early failure to provide such prophylaxis by the administration of a cephalosporin and gentamycin at Liverpool Hospital at around 23:55 hours on 22 August 2011, the plaintiff would most probably not have suffered the injurious effects of the infection which ultimately resulted in the development of osteomyelitis and gangrene in his left thumb, and which consequently required the described two stages of amputation surgery that he ultimately underwent: Exhibit "A", pp 224 and 225; Strong v Woolworths Ltd [2012] HCA 5, (2012) 246 CLR 182, at [18].

[82]

Scope of liability : s 5D(1)(b) and s 5D(4) of the CL Act

The consequential statutory scope of liability question which necessarily arises at this point in the consideration, is whether or not it is appropriate that the scope of the defendant's liability for its breaches of duty of care or negligence, as found, should extend to the harm which has been identified and found to be the subject of factual causation: s 5D(1)(b) of the CL Act.
In determining that question, it is necessary to consider, amongst other relevant things, whether or not and why, the responsibility for the harm the plaintiff has suffered should be imposed on the defendant: s 5D(4) of the CL Act.
In my assessment, the relevant factors in support of extending the scope of the defendant's liability to the harm suffered by the plaintiff are as follows.
The plaintiff was an 8 year old child, and he was entirely dependent upon the defendant properly discharging the duty of care that was owed to him. Neither the plaintiff nor his family had a full knowledge or an understanding as to how, and in what circumstances, specialised procedures and considerations should be applied to his injured situation as reasonable precautions against the risk of harm from inadequate prophylaxis concerning infection issues, and they were not in a position to effectively advocate for him if concerns arose as to compliance issues relating to the duty of care that was owed.
In that sense, the plaintiff was entirely reliant on the hospital staff to fulfil the required standard of reasonable care and skill. No-one in the plaintiff's family was in a position to gauge whether or not that standard was being met before the harm occurred. They were entirely in the hands of the health care professionals at Liverpool Hospital.
Subject to the existence of any circumstances that might have been outside the control of the defendant, of which I find there were none, in this instance, the defendant must, as a major tertiary referral trauma centre, absent specific evidence to the contrary, as was explained by Dr Raftos' uncontradicted evidence, be assumed to have had the appropriate resources available at its disposal in order to properly treat trauma patients like the plaintiff who were brought there for that purpose and in accordance with the standard of care that was expected in those circumstances. This was an issue on which the doctors were "calling the shots" and it was therefore necessary for the hospital to have a plan by which to provide the required resources: T123.39 - T123.45.

[84]

Issue 6 - Defence based on s 5O of the Civil Liability Act 2002

The defendant relies upon s 5O of the CL Act as establishing a complete defence to the plaintiff's claim: paragraph 27 of the filed defence. The terms of that legislative provision have been set out at paragraph [91] above. In light of that claimed defence, it becomes necessary to evaluate the opinions of the defence experts, Dr Haertsch and Dr Gatus, as the question of whether a non-irrational peer professional opinion arises in relation to this claimed sheltering defence, for which the defendant bears the onus of proof: Dobler v Halvorsen [2007] NSWCA 335; (2007) 70 NSWLR 151, at [60], [61]; p 167; Melchior and Ors v Sydney Adventist Hospital Ltd and Anor [2008] NSWSC 1282, at [141].
The effect of s 5O(3) and s 5O(4) of the CL Act recognises that there is scope for exculpatory recognition of differing peer professional opinions concerning matters of professional practice that are widely accepted by peers as representing competent practice in Australia. In this context peer professional opinion does not have to be universally accepted in order for it to be considered widely accepted. Those provisions recognise that there is scope for the existence of outlier opinions that nevertheless also relevantly qualify as peer professional opinion.
Importantly, however, those provisions must necessarily be read subject to the overriding qualification that the peer professional opinion in question cannot be relied upon by the defendant to sustain a defence based on s 5O of the CL Act where the relevant peer opinion sought to be relied upon is considered by the court to be irrational: s 5O(2) of the CL Act.
In considering the application of s 5O of the CL Act to the facts of this case, and on a consideration of the evidence of Dr Raftos and Dr Mansour, which respectively criticised as unacceptable, the treatment the plaintiff received from the defendant as not conforming to the standard of competent peer professional practice in Australia, the questions that arise for consideration pursuant to s 5O are as follows: 1. Whether the entity comprising Liverpool Hospital falls within the statutory formulation of a "person practising a profession" within the meaning of s 5O(1) of the CL Act; 2. What constitutes peer professional opinion as envisaged by s 5O(1) of the CL Act; 3. Subject to considerations of irrationality within the meaning of s 5O(2) of the CL Act, whether the defendant has demonstrated that the clinical actions of those for whom it was responsible in the course of providing care for the plaintiff at Liverpool Hospital, acted according to what was widely accepted in Australia by peer professional opinion as competent professional practice, recognising that it is not a requirement that such practice need be one that is universally accepted (s 5O(1) and s 5O(4) of the CL Act).

[86]

Peer professional opinion in Australia

The term "peer" is not defined in the CL Act. Recognising that the legislative purpose and intention behind s 5O of the CL Act, is well understood to be a legislative measure by which to limit claims of the present kind through reform of the law of tort, by providing a sheltering statutory defence if the conditions for such a defence are met, the term "peer" should be given a beneficial interpretation consistent with that legislative purpose and intent.
In this context, the ordinary meaning of "peer" is someone who is equal in ability, standing, rank or value: Concise Oxford Dictionary, 8th ed (1990). A further and relevant definition of "peer" is someone of equal rank, category or match: New Shorter Oxford English Dictionary, 3rd ed (reprinted 1993). Another definition of "peer" is someone who ranks with another in respect of endowments or other qualifications, or being an equal in any respect: Macquarie Dictionary, 6th ed (2013). In the context of this case, I construe the latter reference of "in any respect" to mean any material respect.
In the context of s 5O of the CL Act, bearing in mind there is statutory scope for non-universal acceptance of a professional practice to nevertheless qualify as being acceptable according to s 5O(4), and recognising that there is also scope for the exclusion of opinions that are irrational, in the context of this case, I construe "peer" to mean a person with sufficient qualifications by way of professional education, training, knowledge, and experience, including from involvement in research, which enabled that person to properly understand the medical condition at issue, and who by reason of such knowledge, training and experience, would be legally permitted to relevantly take part in or advise in relation to clinical treatment or decision making for the management of the kind of condition under critical review. This must be subject to the overriding consideration of rational analysis, whereby the opinion in question cannot be relied upon by the defendant if, in the opinion of the court, the opinion in question is determined to be irrational: s 5O(2) of the CL Act.
In this case, on that formulation, in the relevant sense, I consider that Dr Raftos, Dr Mansour, Dr Gatus and Dr Haertsch, should each be relevantly considered as being "peers" in Australia, as they are all legally qualified Australian medical practitioners whose education, training, knowledge and experience, and the unchallenged matters set out in their curriculum vitae, enables them to offer relevant and perspective opinions on the assessment of, and the appropriate treatment and management of, injuries such as those that were incurred by the plaintiff.

[88]

Opinions of Dr Haertsch

For the purposes of determining whether, based on the evidence of Dr Haertsch, s 5O of the CL Act should be considered as providing the defendant with an acceptable exculpatory sheltering defence to the plaintiff's claim, I have concluded that Dr Haertsch's opinions are such that, in the relevant sense referred to at paragraph [620] above, they should be considered as being irrational within the meaning of s 5O(2) of the CL Act. My reasons for that view are set out as follows.
The delayed timing of the surgical washout or lavage of the plaintiff's left thumb wound, which Dr Raftos and Dr Mansour respectively described as not being in conformity with peer professional opinion in Australia, or as being unacceptable treatment, is sought to be countered by the defendant with the contrasting opinion of Dr Haertsch to the opposite effect: Exhibit "1", Tab 6, pp 486 - 487. That contrasting opinion must therefore be examined for its reasoned, logical, or rational basis.
That evaluative task which follows, draws upon the analysis, summary and conclusions concerning the evidence of Dr Haertsch which is outlined at paragraphs [288] to [300] and [382] to [383] above.
The reasoning advanced by Dr Haertsch, and relied upon by the defendant as justification for the delay in carrying out surgery on the plaintiff, was based on his categorisation of the plaintiff's hospital presentation as a Category 5 case. In my view, having regard to the evidence of the treating doctor, who considered the presentation was Category 4 (Dr Geraghty's statement, at par 15, Exhibit "1", Tab "8", p 504, as cited at paragraph [140] above), I see no sound reason why Dr Haertsch's shortly expressed opinion in that regard should be taken to be a reasonable basis for displacing the considered contemporaneous assessment made by Dr Geraghty. In my assessment, Dr Haertsch's reasons for his Category 5 conclusion did not adequately come to grips with, or deal with the risk of harm from infection from microbial organisms against which no prophylaxis had been provided in the case of an open wound with exposed bony fractures. This was in circumstances where the bacterial load in the plaintiff's wound had not been addressed by lavage or cleansing. In those senses, Dr Haertsch's opinion was proffered without soundly-based supporting reasoning, and it was therefore an irrational view.
In that part of Dr Haertsch's opinion where he gave consideration to the antibiotics given to the plaintiff, he adopted a factually inaccurate point of view, which undermined the logic of his opinion. Whereas Dr Haertsch stated that the plaintiff had been given a statum dose of cephalosporin at the time of surgery (at paragraph (b) of his report), the implication being that dose had sufficiently addressed the risk of infection, that description did not accurately reflect or take into account the actual series of cephalosporin doses which had commenced at 23:55 hours on 22 August 2011, which was about 9 hours before surgery occurred. The evidence shows that cephalosporin was not just given as a statum dose at the time of surgery at 08:35 hours on the following day, as stated by Dr Haertsch. In fact the Liverpool Hospital medication chart shows that the administration of a cephalosporin occurred to a much greater extent than that which was cited by Dr Haertsch: Exhibit "1", Tab 1, p 284. In my view this factual inaccuracy raises doubts about the logic, the completeness, and the applicability of Dr Haertsch's analysis. In that sense, that aspect of his stated opinion is not reasonable, or soundly based, and it should therefore be seen as being an irrational view.
Dr Haertsch's reasoning for rejection of the criticism of Liverpool Hospital for not getting the plaintiff to the operating theatre earlier than was subsequently achieved on the day following his admission, and Dr Haertsch's opinion which sought to defend the ensuing delay that occurred when the plaintiff was "bumped" off the priority position for surgery (at paragraph (c) of his report) did not adequately deal with the incremental risk of harm that the plaintiff faced thereafter in those circumstances. Furthermore, Dr Haertsch's classification of the plaintiff as a Category 5 case, was not in conformity with the contemporaneous clinical assessment by those who were responsible for providing care to the plaintiff. Dr Haertsch's Category 5 formulation was an artificial application of a statistical notion that did not adequately grapple with the risk of harm which the plaintiff incrementally faced at the time, and as time went by. In those senses, those aspects of his opinion were unreasonable, and should therefore be seen as being irrational.
In my view, Dr Haertsch unreasonably rejected the criticisms made of Liverpool Hospital to the effect that there had been an alleged failure to heed the manner in which the plaintiff's injury occurred when the treatment plan was formulated for the plaintiff. In setting out his rejection of that criticism (at paragraph (d) of his report) Dr Haertsch's reasons did not identify the mechanism of the plaintiff's injury, and he did not appear to have considered the 5, albeit slightly varying, factual descriptions of the circumstances in which the injury occurred, as were contemporaneously recorded in the defendant's clinical notes. Those 5 references have been collected and cited at paragraph [461] above. Some, if not all, of those variable descriptions obviously formed the basis for the contemporaneously expressed concern by Dr Geraghty over the vagueness of the plaintiff's history of injury. In the sense that Dr Haertsch's cited opinion involved an incomplete consideration of those relevant factual matters, it was not adequately reasoned, and it was therefore an unsound and irrational view.
Dr Haertsch's contention that the plaintiff was given an appropriate antibiotic regime (at paragraph (e) of his report) was founded upon irrational argument in several respects. First, he did not canvass or identify the detail of the antibiotic regime to which he was referring, and therefore his defence of the regime which was given, lacked a logical element as its foundation, and his opinion should therefore be considered to be an irrational view. Secondly, he employed an irrational argument in defence of the antibiotics given, in which he either conflated, or did not separately deal with, the antibiotics that had been given to the plaintiff in the primary admission phase of his hospitalisation between 22 August 2011 and 24 August 2011, and at the subsequent hospital admission for amputation surgery on 15 September 2011. The latter admission was the one at which flagyl was given to the plaintiff. Therefore, in the context in which Dr Haertsch made his statement that "in fact at one stage he was also given flagyl", this represents an unreasonable and therefore irrational conflation. Thirdly, his statement that gentamycin was not indicated in the case of someone as young as the plaintiff was oracular in nature, and it did not explain why the factor of the plaintiff's youth excluded the use of that medication. Therefore, I consider that those aspects of his opinions were inadequately reasoned: UCPR r 31.27(1)(c); UCPR Sch 7, cl 5(1)(c); Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [59], [87]; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, at [91]. In that regard, Dr Haertsch's view did not deal with the relative risk of harm the plaintiff faced in the clinical setting, in juxtaposition with the relative incidence of side effects from antibiotics, irrespective of stratification of risk on account of the plaintiff's young age. Dr Haertsch's cited view was therefore irrational because it was not logically explained.
Dr Haertsch's rejection of the plaintiff's argument (at paragraph (f) of his report) where he stated there was no evidence that the plaintiff was unnecessarily exposed to the risk of developing an osteomyelitis as a result of an untreated bacterial contamination of the wound, was inadequately reasoned, oracular in nature, and it was therefore irrational: UCPR r 31.27(1)(c); UCPR Sch 7, cl 5(1)(c); Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, at [59], [87]; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, at [91]. I reach that conclusion in light of the expert evidence that an open fracture of the kind suffered by the plaintiff was vulnerable to bone infection, or osteomyelitis. Dr Haertsch did not explain why he considered there had been no unnecessary exposure to bacterial contamination of the plaintiff's wound where other acceptably reasoned expert evidence acknowledged this as a factor to be considered, especially after a significant amount of time had passed since the injury occurred. In this context, his inadequate reasons indicate a fundamental irrationality in that aspect of his opinion.
Dr Haertsch's brief causation analysis (appearing also at paragraph (f) of his report) in which he suggested there was an ischaemic cause rather than an infective cause for the plaintiff's necrosis or gangrene, preferring the dry gangrene theory rather than the wet gangrene theory, did not sufficiently expose his reasoning process, and it did not rationally deal with other relevant aspects of the evidence, such as the cited reasoned opinion of Dr Raftos to the contrary, which was supported by the observations of Mrs Gould cited at paragraphs [10] to [11] above, the matters contemporaneously recorded in the Campbelltown Hospital notes (Exhibit "1", Tab 2, pp 319; 341; 361), the contemporaneous nursing notes made at Liverpool Hospital on 6 September 2011; Exhibit "1", Tab 1, p 36, and Dr Raftos' interpretation of the photograph comprising Exhibit "F". The irrationality of Dr Haertsch's opinion arises from the absence of a reasoned analysis of these matters. Therefore, Dr Haertsch's views should be seen as being unreasonable and irrational on this point.
At paragraphs [296] to [300] of these reasons, the basis upon which I considered Dr Haertsch's second report should be seen as being unreliable has been set out. The irrationality of Dr Haertsch's anecdote-based critical "coal face" argument, as analysed at [297] to [298] above, is self-evident from those cited reasons.
Dr Haertsch's anecdote-based argument that "it is all very well to say the [encountered] delay was not acceptable" has already been identified at sub-paragraph (4) of paragraph [299] above, as lacking the required basis in adequate reasoning, and accordingly, it should be seen as being irrational.
For the foregoing reasons, I do not accept Dr Haertsch's evidence as set out in his two cited reports as being a reliable basis upon which to successfully ground a s 5O defence. This is because his cited opinions are not sufficiently founded upon a logical or a rational analysis, and as such, they should be taken to be irrational views, and those views should not be taken to reliably base such a defence: s 5O(2) of the CL Act.

[89]

Opinions of Dr Gatus

For the purposes of determining whether, based on the evidence of Dr Gatus, s 5O of the CL Act should be considered as providing the defendant with an acceptable exculpatory sheltering defence to the plaintiff's claim, I have concluded that Dr Gatus' opinions are such that, in the relevant sense referred to at paragraph [620] above, they should be considered as being irrational within the meaning of s 5O(2) of the CL Act. My reasons for that view are set out as follows.
That evaluative task which follows, draws upon the analysis, summary and conclusions concerning the evidence of Dr Gatus which is outlined at paragraphs [254] to [287], [301] to [303], [314] to [372], [398] to [457] and [458] to [468] above.
There is a fundamental logical difficulty in accepting Dr Gatus' opinions on matters of timing of surgical washout or lavage and antibiotic prophylaxis as the defendant has provided no answer to the opinion expressed by Dr Raftos to the effect that Dr Gatus' opinions on standard of care do not represent the applicable standard of care in hospitals in which he worked in Australia: T128.20 - T129.9; Exhibit "A", pp 211 - 212, pp 224 - 225.
In my view, peer professional opinion cannot reasonably be considered to be sound or rational if it rejects, or is inconsistent with, the required standard of care. In that regard, Dr Raftos defined the standard of care as cited at paragraph [243] above. He identified the rationale behind that statement of the required standard of care as being that open fractures were prone to infection because bacteria from either the skin or from the surrounding environment have direct access to exposed bone, and an increased risk of osteomyelitis therefore arises, and which needs to be addressed: Exhibit "A", pp 211 - 213. That view was also consistent with Dr Gatus' reference to the "magic or 'golden' hour" for treatment to be given in under 6 hours: Exhibit "1", Tab 4, p 417.
Dr Raftos specifically refuted Dr Gatus' analysis by which Dr Gatus asserted, on the basis of the earlier cited Skaggs and Ibrahim articles, that those articles supported a different course which sought to justify delaying treatment to beyond 6 hours from presentation. Dr Raftos not only stated that proposition was outwith the expected standard of care (T128.20 - T129.9; Exhibit "A", pp211- 212, pp 224 - 225), but when Dr Raftos repeated that view in evidence, Dr Gatus did not comment upon or contradict that refutation, and that view was not contradicted by any other acceptable medical opinion evidence.
In those circumstances, I consider Dr Gatus' opinion which sought to defend the delay encountered at Liverpool Hospital in achieving a surgical washout or lavage of the plaintiff's wound beyond 6 hours after presentation to a hospital, to be an irrational view as it is not based on sound or acceptable reasons.
There appears to be an inherent tension between Dr Gatus' oral evidence, in which he sought to defend as acceptable the timing delay of more than 6 hours for surgical treatment of open fractures, and the related need for appropriate antibiotic prophylaxis.
On the issue of antibiotic prophylaxis the generalised consideration of the desirability of adhering to evidence-based guidelines founded upon principles of antibiotic stewardship, without considering the specific antibiotic needs of the patient after taking into account the likely range of infective organisms to which the patient has been exposed, must be seen to be an irrational approach.
In that regard, in Dr Gatus' first report (at Exhibit "1", Tab 4, p 415), he identified his reliance on Therapeutic Guidelines - Antibiotics (2010) as the de facto standard, a matter that was rejected by Dr Raftos: T128.20 - T129.9. Dr Gatus' reasoning, by which he suggested, by way of an off-hand flourish, that clinicians made antibiotic decisions based on "whim", was an unsustained criticism that should be seen to be irrational, as explained at paragraph [407] above.
On this point, in his first report (at Exhibit "1", p 416) Dr Gatus stated that in the case of wound soiling or severe tissue damage "and/or" if devitalised tissue is present: "Prophylaxis should be continued for up to 72 hours following injury, and discontinued 24 hours after wound closure. If presentation is delayed (8 hours or more), presumptive early treatment should be given for 5 to 7 days, but continued for longer if bone infection is established (See Osteomyelitis)." [Emphasis as in the report]
Putting aside for the present purposes the possible confusion that could arise from the use of the "and/or" expression, on the approach cited in the immediately preceding paragraph, the plaintiff's wound had still not been cleaned by the time 8 hours had passed following his presentation to a hospital. This would have been at about 02:00 hours the following day if the plaintiff's presentation to Campbelltown Hospital was used as the reference point, and at about 04:00 hours if the plaintiff's presentation to Liverpool Hospital was taken as the reference point.
In either case, the plaintiff's wound had not been cleaned, and it should have been increasingly regarded as contaminated as time passed because it had not been cleaned and because open fractures were present. That ought to have been the prospective view at the time, as it became recognised that wound cleaning was going to be delayed after the two later arriving emergency cases with greater assigned priority necessarily changed the clinical considerations for timing of treatment.
The detail of the "presumptive early treatment" cited in paragraph [645] above, was not defined, either in the Guidelines, or by Dr Gatus. In those circumstances, I consider the more rational view to be along the lines identified by Dr Raftos, where he stated in the context of serious injuries, recognising the scope for osteomyelitis to occur in open fractures, a different course to the one suggested in the Guidelines was required: T128.23 - T129.20. That view expressed by Dr Raftos is entirely rational because of the incremental risk the plaintiff faced from infection as time went by without appropriate wound cleansing and antibiotic treatment that was commensurate with the risks associated with the plaintiff's unclear history.
Dr Gatus' rejection of that view was based on antibiotic stewardship considerations rather than on the plaintiff's actual need for adequate and effective antibiotic prophylaxis directed at the likely range of organisms to which the plaintiff had been exposed, and Dr Gatus' reliance on the significantly qualified Skaggs and Ibrahim articles, leads me to conclude his different opinion should be seen as being irrational because it was based on unsound reasons.
At a later part of Dr Gatus' first report, in dealing with the possibility that "there has been significant fresh or salt water exposure" (at Exhibit "1", pp 416 - 417), he went on to state that treatment using ciprofloxacin plus either clindamycin or lincomycin should be employed, as follows: "Duration of treatment should be for 5 - 7 days, or longer if bone infection is established (See Osteomyelitis)" [Emphasis as in report]
A careful reading of Dr Gatus' first report reveals that although he twice made reference to the phrase in parenthesis "(See Osteomyelitis)" as cited in paragraphs [645] and [650] above, not once does he then mention the word "Osteomyelitis" either in passing or in any later section of his report, as was implied by those cited references in parentheses.
In those circumstances, the impression which emerges is that it appears that Dr Gatus has omitted to include an intended and significantly relevant section on the subject of osteomyelitis in his report. That impression was not a matter which was explored at the hearing.
That said, and approaching that apparent omission with some latitude, because at the trial, the topic of osteomyelitis was in fact canvassed and identified by Dr Gatus as being an infection of bone (T134.49), and since Dr Gatus' first report does refer to a regimen of treatment by irrigation as a key component in preventing bone infection after an open fracture because it serves to decrease the bacterial load and remove foreign bodies (at Exhibit "1", Tab 4, p 415), there nevertheless remains a tension between Dr Gatus' benign view of delayed surgical lavage in this case, and Dr Gatus' reference to the period of less than 6 hours after the fracture has occurred as "a generally held belief that open fractures should be debrided as soon as possible with the magic 'golden' time being < 6 hours after the fracture has occurred": Exhibit "1", Tab 4, p 417.
In my view, that tension remains as an obstacle to concluding that Dr Gatus' opinions on the issue of delayed surgical washout or lavage, are acceptable because they are irrational in the circumstances where he did not reconcile those plainly differing views as to indications for the timing of treatment: s 5O(2) of the CL Act.
To the extent that the identified internal inconsistencies or tensions remained unresolved in the evidence of Dr Gatus, I consider that this has served to undermine the rationality of his opinion evidence which was the subject of such tensions where the contradictory views of Dr Raftos are logically based and acceptably reasoned.
Dr Gatus stated that in 2011, the view that there should be surgical lavage within 6 hours, was unsupported by evidence based medicine. He made that argument by reference to the 2005 Skaggs article and the 2014 Ibrahim article previously cited and analysed at paragraphs [275] - [279], and [280] - [284] above. It is difficult to see how that view would be acceptably maintained based on an article published in 2014.
Just as legal analysis cannot supplant or displace acceptably reasoned medical opinions, medical opinions that are reliant upon medical journal articles which contain statements of significant and limiting qualification on contested issues, cannot reasonably trump medical opinions that are supported by rational arguments to the contrary of the content of such qualified articles. Opinion evidence based on such journal articles that are so significantly qualified, must in this case, be assigned very little weight.
To the extent that Dr Gatus relies on the Skaggs and Ibrahim articles he cited, I consider that such reliance, and therefore the affected opinions he has expressed, to be irrational. This is so particularly where, as Dr Raftos has stated, those views do not represent the applicable standard of treatment: T128.20 - T129.9.
The remainder of Dr Gatus' first report was confined to addressing the particulars of negligence pleaded in the plaintiff's statement of claim, where he then condensed the particulars (a) to (f) of those pleaded by the plaintiff. Those allegations, which are reproduced at paragraph [490] above, were condensed by Dr Gatus into the following three formulations: "1. Gentamycin should have been added to the antibiotics regime of cephazolin; 2. Failed to carry out debridement in operating theatre within 6 hours of arrival at the Hospital; 3. Failed to arrange for an orthopaedic/plastic/hand surgeon to carry out debridement in operating theatre within 6 hours of arrival at the Hospital."
Although the pleaded particular of negligence (f) alleged the plaintiff had been exposed "to an unnecessarily increased risk of developing osteomyelitis as a result of contracted bacterial contamination of the wound", Dr Gatus simply stated that gentamycin was not a recommendation of the Guidelines for the prophylaxis of compound (open) fractures, and therefore he rejected the assertion that it should have been added to cephazolin: Exhibit "1", Tab 4, pp 420 - 421.
It is plain from Dr Gatus' first report, that he simply did not, in a reasoned way, adequately address the issue of the risk faced by the plaintiff concerning the development of osteomyelitis, as was raised in the plaintiff's statement of claim. Accordingly, and for the reasons outlined at paragraphs [433] - [443] above, I consider Dr Gatus' stated basis for those views on the appropriate antibiotic regime to be unsound, inadequately reasoned, and therefore, irrational: s 5O(2) of the CL Act.
Furthermore, and for the reasons that follow, I consider significant aspects of the oral evidence given by Dr Gatus on the question of both the timing of the operation and choice of antibiotic prophylaxis, to be similarly unsound, and therefore irrational: s 5O(2) of the CL Act.
Dr Gatus' opinion that there was no need to administer ciprofloxacin to the plaintiff "because there was no significant fresh or salt water exposure" (emphasis as in Dr Gatus' report, Exhibit "1", Tab 5, p 471), has already been analysed at paragraphs [414], [419], [460] - [461] and [597] above.
Dr Gatus' interpretation of the Guidelines to the effect that "immersion" was the criteria for considering there had been "significant" exposure to water before the administration of ciprofloxacin could be justified (Exhibit "1", Tab 5, pp 471, 478, 480 & 481), was a subjective view, the rational basis for which was not identified. He gave no rational explanation as to why immersion in water of the kind to which he referred was materially different to, for example, momentary exposure, or partial immersion, of a wound of the kind suffered by the plaintiff.
Accordingly, I consider that as Dr Gatus' interpretation that "immersion" in water was the requisite exposure, and that requisite was not rationally explained, it should therefore be seen to be an irrational view. Given that Dr Gatus has also picked up the comment in the clinical notes concerning "inconsistency in history and injury type" (Exhibit "1", Tab 5, p 472), the assumption that there was no "significant fresh or salt water exposure" was not only subjective, but one that was uncertain and therefore unsafe in the circumstances. For those reasons, I consider Dr Gatus' cited view on water exposure as irrational in the sense that it is based on unsound reasons.
Dr Gatus' questioning view that, at the Hand Clinic visit on 6 September 2011, there was a possibility the plaintiff's thumb had been exposed to environmental organisms post-hospital discharge (Exhibit "1", Tab 5, p 474), involved no more than unsubstantiated conjectural speculation for which there was no evidence. This question was not explored in the evidence of either the plaintiff or Mrs Gould. In those circumstances, the question so raised does not provide a rational basis for discounting a causal connection between the non-administration of ciprofloxacin and the subsequent development of osteomyelitis and gangrene in the plaintiff's left thumb.
Furthermore, Dr Gatus' reliance on Dr Sathasivam's brief "dry gangrene" note which was made on 6 September 2011, did not involve a consideration of the other available and more expansive clinical descriptions of the plaintiff's thumb at around that time, as explained at paragraphs [422], [569] and [591] to [593] above, and the matters referred to in the paragraph that now follows, and therefore his reasoning that the plaintiff did not have "wet gangrene" was not adequately reasoned, and in that sense, it was irrational.
Dr Gatus' rejection (at Exhibit "1", Tab 5, p 474) of the possibility that the plaintiff had "wet gangrene" was not adequately reconciled to the unchallenged evidence that Aeromonas hydrophila was grown from the wound swab taken on 4 September 2011, the fact that the thumb was already observed to have been smelly and was blackening at the tip on 28 August 2011, which was just 4 days post-operatively.
The evidence of the cavity which developed, and which was noted to be present on the left thumb, with smelly exudate, on 13 September 2011, which signs were not present 3 weeks earlier (Exhibit "1", Tab 1, p 36), seems to fit well with Dr Gatus' requirement for there to be slow necrosis of the bone with an eventual pressure build-up of pus which is then discharged out of a resultant hole, suggesting an evolving osteomyelitis: T135.2.
As Dr Gatus did not consider and reconcile those matters when he simply dismissed the prospect of the plaintiff having osteomyelitis as explained at paragraphs [434] and [439] above, or wet gangrene (Exhibit "1", Tab 5, p 474). In my assessment, his views to that effect were inadequately and unsoundly reasoned, and in that sense, they should be seen as being irrational.
In identifying the absence of "an even more extensive infection" (Exhibit "1", Tab 5, pp 474 & 475), as the basis to his view that Aeromonas hydrophila was a later colonising infection after the earlier development of dry gangrene, Dr Gatus appears not to have taken into account that on 4 September 2011, the plaintiff was showing signs of redness and swelling in the left wrist (Exhibit "1", Tab 2, p 361), which, combined with Dr Raftos' view of the photograph comprising Exhibit "F" being evidence of an infective process, represented early signs of infection that could be considered to be "extensive". The fact that Dr Gatus' opinions at trial did not deal with those matters indicates his reasoning was incomplete, and therefore less reliable when compared to those of Dr Raftos on the issue of whether an infection from Aeromonas hydrophila was present, as distinct from infection from a later colonising organism. The swabs taken on 4 September 2011 which grew Aeromonas hydrophila support the view there was infection rather than colonisation.
For the foregoing reasons, I do not accept Dr Gatus' evidence as set out in his two cited reports, or in his joint report with Dr Raftos, or in his oral evidence, as being a reliable basis upon which to successfully ground a s 5O defence because his cited opinions are not sufficiently founded on a logical or a rational analysis, and as such, they are irrational views which should not be taken to reliably base such a defence: s 5O(2) of the CL Act.

[91]

Issue 7 - Novus actus interveniens

In the defendant's final submissions, at paragraphs 112 - 115, it was argued that a novus actus interveniens had arisen so as to relevantly influence the assessment of the extent of the plaintiff's entitlement to any damages in this case. The defendant argued that on an acceptance of that submission, no damages should be awarded to the plaintiff. That conclusion was said to arise because, just 4 days after the plaintiff's discharge from Liverpool Hospital, on 28 August 2011, the plaintiff fell from a swing and hurt his left thumb. The defendant bears the onus of proof for this claimed defence: s 5E of the CL Act.
A defence of novus actus interveniens arises when the chain of causation linking the harm caused by the tort feasor is broken by an unrelated supervening event: Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522, at [6].
The factual basis of the novus actus interveniens argument raised by the defendant was not explored in detail with the plaintiff or any other witness in the plaintiff's case to provide a proper opportunity for such an allegation to be dealt with in the course of the evidence: Browne v Dunn (1894) 6 R 67. It must therefore be evaluated within the limited confines of the available evidence.
The only factual description available concerning the circumstances that base the defendant's novus actus interveniens argument in relation to the claim for a further injury having occurred on 28 August 2011 came from the plaintiff's grandmother. Mrs Gould's evidence on this subject is summarised at paragraphs [10] and [11] and paragraphs [187] to [191] above.
On the evidence, the highest level at which the defendant could argue that there had been a novus actus interveniens, is that the plaintiff had suffered pain when he bumped his thumb, and that the dressing which had been covering the thumb, had blood on it. The competing possibilities are that the blood could either have been fresh blood from an injury that occurred when the plaintiff fell from the swing, or it could have been, at least in part, blood that was present at the time the plaintiff was discharged from Liverpool Hospital on 24 August 2011, as is recorded in the hospital notes for that date: Exhibit "1", Tab 1, p 260.
The defendant's claimed novus actus interveniens argument was submitted as having two elements, the first being that there was non-compliance with treatment recommendations for the plaintiff following his discharge from hospital, and the second being that the swing incident on 28 August 2011, represented a further injury to the plaintiff's left thumb.
An obstacle to the defendant's novus actus interveniens argument is the unchallenged and not otherwise improbable evidence of Mrs Gould that on 28 August 2011, the plaintiff's thumb was already noted to have given off "a funny smell" of decay, and that the top of the thumb appeared to be "a blackish colour", which suggests an injurious infective process in that thumb was already in train before the plaintiff had fallen from a swing. Furthermore, Mrs Gould's description on 28 August 2011 of the plaintiff's bandage being "a little bit wet", did not necessarily mean that the wetness she had observed had come from water. The wetness could also have been exudate from the plaintiff's thumb wound.
Apart from the plaintiff's experience of having had pain at that time of the fall from the swing, and possibly some bleeding, the defendant is unable to demonstrate the occurrence of an additional level of injury of probable causative significance, and which comprised damage of a kind that would break the causal chain of events.
The defendant sought to develop the novus actus interveniens defence by arguing that the evidence "casts serious doubt on the plaintiff's compliance with post-operative orders regarding the care for his surgically repaired thumb". That submission must necessarily be seen to be speculative in nature. The force of that submission should be seen as having diminished impact because it was made in the context that there was no pleaded defence of alleged contributory negligence, and because the plaintiff was a child. Insofar as it was sought to make the plaintiff's compliance with post-operative orders an issue, his care and supervision was in the hands of responsible adults, and there was no evidence of his knowledge of a need for such compliance.
In those circumstances, on the evidence, I consider that any contribution of the 28 August 2011 fall to the plaintiff's ultimate need for partial amputation of his left thumb should be characterised as de minimus non curat lex, or of an undemonstrated and insufficient causative consequence. Any pain or possible bleeding on 28 August 2011 should be seen as comprising the natural and probable consequence of the original injury, in combination with the superimposed effects of the delayed and inadequate antibiotic treatment of that injury.
On the element of argued non-compliance by the plaintiff with post-operative orders, it was submitted that, first, as an active 8 year old boy, there was, on the part of the tutor, a concern that the plaintiff should not hurt himself; and secondly, within 4 days of his hospital discharge, the plaintiff had nevertheless fallen from a swing and had hurt his left thumb and in doing so, he arguably had not complied with post-operative orders; and thirdly, it was noted that at an out-patient Hand Clinic attendance, the plaintiff was not wearing his splint, where the splint was identified as being very important to protect the healing fractures by means of complete immobilisation given the nature of the injury: T98.15 - T98.18. There was no evidence that the splint was provided to the plaintiff as a means of protection against the risk of infection.
There was no cogent expert evidence called to make good a claimed relevant causal connection with a novus actus interveniens which the defendant now seeks to establish. There is no evidence that the plaintiff was not wearing a protective splint at the time he fell from the swing on 28 August 2011. Furthermore, there is no evidence that would form a reliable basis for inferring that the plaintiff suffered anything other than some additional pain and perhaps a slight bleed on the occasion of the fall from the swing, rather than a further supervening injury that had the consequence of breaking the continuity of the causal chain. There is no evidence, expert or otherwise, to reliably base a conclusion that to any material or assessable degree, the plaintiff had sustained a causatively relevant fresh injury to his left thumb on 28 August 2011 which should be seen to have overtaken, or had a supervening effect on, the injury he sustained on 22 August 2011: s 5D of the CL Act.
As to the element of the defendant's novus actus interveniens argument concerning the non-wearing of a splint by the plaintiff when seen at the Hand Clinic for post-operative review, there is no evidence as to the circumstances of when and how the splint was removed, whether by the plaintiff, or by a person at the clinic before the plaintiff was seen by Dr Sathasivam or the attending nurse. Assuming, in favour of the defendant for the purposes of analysis, that the plaintiff had removed his splint before going onto the swing and before his fall occurred on that occasion, there is no reliable evidence to suggest that the wearing of the splint would have made any material or causative difference in the events of the fall in which the plaintiff bumped or hurt his thumb, either in terms of pain or bleeding.
The plaintiff was asked no questions about those circumstances. On the above analysis, absent a reasoned medical analysis suggesting the bump to the thumb had to any material degree caused a further injury that overwhelmed or eclipsed the effects of the injury sustained on 22 August 2011, nothing of a causative significance arises from the claimed failure of the plaintiff to wear a splint.
There is no evidence to throw light on the question of the degree of force with which the plaintiff had bumped his thumb, or whether the force of that bump was any different to a casual knock which would ordinarily be characterised as a vicissitude event which should be seen as being adverse to the defendant, rather than being of a character that should be seen as amounting to the occurrence of a novus actus interveniens against the plaintiff, as claimed. The defendant did not seek to explore those issues when cross-examining the plaintiff or Mrs Gould.
There is no evidence, either in the form of a record, or a clinical note, or a letter, or a minute of any advice given, which could reasonably sustain the defendant's argument that any material aspect of the advice on post-operative care of the plaintiff was not followed. In that regard, it is not known whether the plaintiff's fall from a swing was any different to him, for example, experiencing a vicissitude, such as falling from a chair or from a bed, or simply tripping over.
Quite apart from those matters, from a causation perspective, absent explanatory medical evidence on the point, although it is possible, or indeed probable, that a bump to the plaintiff's thumb that had been crushed and surgically sutured 5 days earlier, would cause the incompletely healed wound to bleed, Mrs Gould did not observe an open wound to be present on that occasion: T20.44.
It would be incorrect to conclude, without such evidence, that on 28 August 2011, the bump that occurred caused the plaintiff's injured thumb to be further injured in a material way that should influence an assessment of the plaintiff's damages. The evidence does not permit a reasonable inference that the bump resulted in any lasting further and causally relevant damage to occur. The assumptions that Dr Gatus had been asked to make as to the condition of the plaintiff's thumb on 28 August 2011, namely that it was covered in blood and pus (Exhibit "1", Tab 5, p 465) were not sufficiently made out on the evidence: HG v The Queen [1999] HCA 2; (1999) 197 CLR 414, at [39]; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, at [9]. To the extent that pus was observed to be present on that occasion, this suggests that the infective process that ultimately led to the partial amputation of the plaintiff's left thumb was already established, without a break in the causal chain.
It is not rationally discernible from the evidence, that when the plaintiff fell from the swing on 28 August 2011, he sustained an injury which either eclipsed or overlapped with the earlier injury, or caused the plaintiff's underlying wound to become either infected, necrosed or gangrenous, so as to require a partial thumb amputation. I find that the defendant, who carried the onus on those matters, has failed to establish a sound evidentiary basis for its argument that a novus actus interveniens had arisen to either avoid or diminish its liability: s 5E of the CL Act.
In my assessment, as explained above, the position remains that the plaintiff has satisfactorily established causation and that conclusion is not in any material way affected or eroded by the claimed defence of novus actus interveniens: s 5D of the CL Act; Glen v Sullivan [2015] NSWCA 191.

[95]

Non-economic loss

The position of the defendant was that the plaintiff has suffered no loss as a consequence of the conduct of the defendant, and therefore, there should be no assessment of any damages for non-economic loss pursuant to s 16 of the CL Act. I do not accept that submission.
On behalf of the plaintiff, it was initially contended that damages for non-economic loss pursuant to s 16 of the CL Act should be assessed at 28 per cent of a most extreme case, which equates to the monetary equivalent of $83,000. Subsequently, in final submissions on behalf of the plaintiff, it was submitted that s 16 damages should be assessed on an increased basis, at 35 per cent of a most extreme case, which equates to an amount of $208,000. In my view, the latter submission is excessive.
The plaintiff's evidence as to his disabilities, as shown and summarised at paragraphs [24]; [98] - [101] and [229] - [235] above, which I accept in its entirety, was stoically understated. I also accept the account of the plaintiff's problems as summarised by the assessing practitioners, as summarised at paragraphs [217] - [227] above.
The cosmetic defect and physical impairment of the plaintiff's left hand, as is to a degree shown in the photograph comprising Exhibit "G", represents a significant cosmetic deficit as well as representing a significant practical impediment to a full range of physical activity requiring manual dexterity and strength of the left hand. In addition, the plaintiff carries a significant cosmetic disfigurement to his dominant hand and he behaves in a way that indicates he is psychologically embarrassed by the disfigured appearance of his hand. Being a dominant hand it is likely to be regularly exposed to the view of others, which will be likely to exacerbate his embarrassment.
I consider that the foregoing matters provide the proper basis for a rejection of the defendant's submission that no damages should be awarded for non-economic loss. In my view, the matters to which I have referred require an assessment of non-economic loss at 28 per cent of a most extreme case, which monetarily equates to $83,000. I therefore assess the plaintiff's damages for non-economic loss in the amount of $83,000.

[96]

Future loss of earning capacity

On behalf of the plaintiff, it was submitted that damages for future loss of earning capacity should be assessed in the buffer amount of $250,000. In final submissions on behalf of the plaintiff, that submission was reduced to an amount of $150,000. Given the obvious imponderables in assessing this component of the claim in the case of a person so young, I consider that reduced amount as ultimately submitted on behalf of the plaintiff, to be a reasonable approach.
In contrast, the defendant submitted that any damages for future economic loss should be limited to only a "small buffer". The defendant's submission was founded upon the proposition that there was no evidence that the plaintiff would be incapable of pursuing a career in his stated area of interest of sound engineering as a consequence of the injury to his non-dominant left hand.
In my view, the defendant's submission is overly simplistic and fails to adequately reflect the fact that during his working life, the plaintiff will be at an obvious disadvantage in competing for a full range of unrestricted employment on the open labour market and this will more probably than not remain a problem for him over the entire period of his ordinary working life: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, at [7].
At the age of 13 years, it will be at least 5 years before the plaintiff is exposed to that disadvantage, assuming he enters the workforce at the age of 18 years. In the context where few people remain in the same employment throughout their working life, it is quite likely that this practical disadvantage will arise periodically to adversely affect him when seeking work or seeking to change his employment.
Those matters do not presently lead to a calculable loss of earning capacity, and it is difficult to predict the frequency or practical monetary extent the plaintiff's left hand impairment will have on his earnings.
Nevertheless, the fact that such a loss is difficult to quantify does not mean that the loss should not be assessed monetarily, including by taking a broad approach that incorporates a discount for deferral of loss, in the form of an assessed buffer amount: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] - [27].
I consider that an appropriate buffer amount, taking into account potential adverse vicissitudes, and taking into account the need to defer any such amount for at least 5 years, is the sum of $150,000. I therefore assess the plaintiff's damages for future loss of earning capacity in the amount of $150,000.

Gould v South Western Sydney Local Health District

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