Gulab Khan v Matthew Rathjen

District Court of NSW|2016-02-09

INDEX PARAGRAPH NO. The plaintiff's claim 1 The Defence to the Amended Statement of Claim 5 Background to the dispute 9 The issues in the proceedings 24 The plaintiff's evidence 26 Other evidence relied on by the plaintiff 93 The defendant's evidence 111 Cross-examination of the defendant 132 Evidence of Ms Louise Tong 171 The expert medical evidence 185 Defendant's expert hand surgeon - Dr H P Kapila 204 The concurrent evidence of the hand surgeons 212 The plaintiff's peer review evidence 225 The defendant's peer review evidence 232 The conclave 235 Peer review - concurrent evidence 236 Factual findings 247 Did the defendant breach his duty of care 261 Causation 267 The defendant's defence, relying on s 5O of the CLA 271 Damages 274 Determination 284 Non-economic loss 292 Treatment expenses 294 Past economic loss 303 Commercial future care 306 Summary of damages 307 Conclusion and orders 308

The Defence to the Amended Statement of Claim

The defendant denies the allegations of negligence set out above. As to the consultation that took place on 17 October 2011, the defendant has pleaded: 1. "he obtained a history of the injury from the plaintiff; 2. on examination of the plaintiff's left hand, the defendant noted a number of small lacerations and also two lacerations which were approximately 1 cm long over the index and middle fingers; 3. he conducted tests to ascertain the neurovascular status of the plaintiff's hand and whether the plaintiff had any damage to his tendons and nerves by: (a) testing capillary refill; (b) testing whether the plaintiff could feel light touch of fingers on the injured hand; (c) asking the plaintiff to open and close his hand and to make a fist; (d) closely looking at each finger separately to see if there was deeper involvement. (e) assessing flexion at the metacarpophalangeal joint; (f) assessing the flexion of the middle finger by holding the other fingers in extension and asking the plaintiff to flex the middle finger to isolate the flexor Digitorum Profundus (FDP) and the flexor Digitorum superficialis (FDS). (g) assessing flexion at the distal phalangeal joint. 1. he found no deficits and concluded that the lacerations were superficial; 2. he closed the wounds with histoacryl and prescribed analgesia; 3. he asked the plaintiff to return for review the following week. 4. the wounds were washed with saline and dressed and the plaintiff was given a tetanus shot by the practice nurse."
In respect of the consultation that took place on 25 October 2011, the defendant has pleaded: 1. "he reviewed the plaintiff's wound' 2. he noted that the hisotacryl was still in place, there was no tenderness around, nor any evidence of infection; 3. the plaintiff complained of some ongoing pain in his hand, but it was gradually settling; 4. the plaintiff complained of psychological symptoms; 5. the defendant diagnosed the plaintiff as suffering from post‑traumatic stress; 6. he told the plaintiff that he should have counselling and antidepressant medication; 7. the plaintiff told him: 1. he was not a national, 2. he did not hold a Medicare card; 3. the plaintiff's employer had told him he did not want to lodge a Workcover claim; and 4. the plaintiff's employer had told him he would personally pay for the cost of the plaintiff's medical treatment. 1. he asked the plaintiff to telephone his employer whilst he was in the defendant's rooms and: 1. the defendant explained to the plaintiff's employer that the plaintiff required psychological counselling, which could be expensive; 2. the plaintiff's employer insisted that he did not want to lodge a claim through Workcover. 3. the plaintiff's employer confirmed that he would pay for any medical treatment. 1. the defendant requested the plaintiff to return for review the following week, however the plaintiff expressed concern about the cost; 2. the plaintiff did not return for review."
By [16] of his Defence, the defendant has pleaded reliance on s 5D(1)(a) and (b) of the Civil Liability Act 2002 ("CLA") and has pleaded that causation has not been made out, relying on the same particulars pleaded above, together with the following: 1. "The defendant repeats the allegations in paragraph 8(a) - (j) herein; 2. The plaintiff failed to return for review as requested by Dr Rathjen on 25 October 2011; 3. The plaintiff did not have evidence of laceration of the tendons when seen by Dr Sinha on 4 January 2012; 4. The plaintiff failed to claim workers compensation as recommended by Dr Rathjen on 25 October 2011, so that his medical treatment could be properly funded; 5. The plaintiff failed to seek any or further treatment as recommended by Dr Sinha on 31 January 2012; 6. The plaintiff did not seek any further treatment until 26 September 2012, despite being told by Dr Sinha on 31 January 2012 that he needed review by a hand surgeon; 7. The plaintiff failed to undergo the remedial surgery recommended by Dr Dilley."
The defendant abandoned at the hearing a pleading of contributory negligence, but has further pleaded a eefence pursuant to s 5O of the CLA, namely, that he acted in a manner which accorded with the standard of care accepted by peer professionals in Australia as competent professional practice.

Background to the dispute

The following summary represents my findings of fact in this matter unless otherwise indicated. My findings of fact in respect of the areas of dispute between the parties, and in particular, in respect of the consultations that took place on 17 and 25 October 2011, are set out elsewhere in this judgment.
The plaintiff was born on 29 November 1981 in India. He completed his Bachelor of Information Technology ("IT") in 2004 and migrated to Australia in July 2007 on a Sub-class 573 Student Visa with no working rights. In September 2007, he commenced a Master's degree in IT at the University of Southern Queensland, and on 10 December 2007, he was granted a further Student Visa with working rights. He then commenced to work as a casual console operator at the Caltex service station at Five Dock.
In September 2009, the plaintiff applied for a Bridging Visa A ("BVA") to complete his studies. That came into effect following the expiry of his Student Visa. On 1 October 2009, he was granted a further 573 Visa to complete his studies, which expired on 30 September 2010.
On 30 August 2010, the plaintiff completed his Masters in IT. He lodged a Sub-class 458 Visa application and obtained a Bridging Visa with working rights.
On 8 November 2010, the plaintiff obtained a positive Australian Computer Society Assessment as a systems analyst. That assessment was required for him to obtain work as a systems analyst in Australia. He thereafter commenced seeking work as a systems analyst, whilst he continued to work as a casual employee at the Caltex service station.
At approximately 10.00pm on 16 October 2011, the plaintiff was working at the Caltex service station. He commenced his shift at 3.00pm. A man entered the shop and approached the plaintiff, who had returned behind the counter. The man was holding a knife in his right hand, approximately 30cms in length. Fearful of being stabbed, the plaintiff told the police that he grabbed the blade of the knife and struggled with his attacker. It was as a result of that action that the plaintiff sustained several lacerations to his left hand.
When his attacker had fled, the police and ambulance were called. The ambulance report (Ex AD35), records that the ambulance arrived on the scene at 10.22pm. The history recorded by ambulance officers contained the following: "Hand injury post assault. 29 year old male service station attendant states he was approached by a male holding a knife and demanding money in a threatening manner. This person attempted to stab the attendant, but he grabbed the knife in his left hand causing two minor lacerations to his index and middle fingers. The alleged aggressor then ran from the scene. On arrival police on scene and victim approaching us. On examination fully conscious obviously emotionally affected by this incident. 1cm lacerations to anterior mid digit of both left index and middle fingers. Nil motor sensory loss. Haemostasis nil, nil other visible injuries or complaints. Wounds cleaned and dressed. Advice to hospital with us for investigation and/or treatment. However, he refused. Insisted he will see LMO or hospital on his own."
On 17 October 2011, at approximately 4.00pm, the plaintiff's employer took him to the Five Dock Medical Centre, where he was seen by the defendant. Following an examination, the wounds on the plaintiff's left hand were closed with a wound glue known as "Histoacryl" and a tetanus shot was given. It is also not in issue that the plaintiff returned to that surgery on 25 October 2011 for review of the wound.
On 10 November 2011, the plaintiff presented to Five Dock Physiotherapy and was seen by a physiotherapist, Louisa Tong. What occurred on that occasion is also the subject of some dispute between the parties.
On 20 December 2011, the plaintiff was granted a Sub-Class 485 Visa (with work rights), which was to expire on 20 June 2013. It was this visa which would have enabled the plaintiff, but for his injury, to obtain work as a systems analyst in the IT industry in Australia. Part of the plaintiff's claim is that he lost the opportunity to pursue that avenue of employment.
On 4 January 2012, the plaintiff consulted another medical practitioner, Dr Sinha. He also saw Dr Sinha on 31 January 2012 and 24 September 2012. In September 2012 the plaintiff made a workers compensation claim which was accepted by his employer's workers compensation insurer, CGU.
On 2 October 2012, the plaintiff underwent an x-ray and ultrasound of his left hand. The latter study revealed the following abnormal finding: "Sonographic review demonstrates the area of scarring corresponds to abnormality of the A3 pulley suggesting injury, contiguous with the laceration scar. Flexor Digitorum Profundus appears normal from the insertion of the Distal Phalanx, however, from 15mm distal to the PIP joint, I cannot identify a normal tendon. Flexor Digitorum Superficialis is also abnormal in this region, and not visualised. Flexor Digitorum Superficialis and Profundus show limited motion in the palm without evidence of glide. Appearance suggests at least partial laceration of the FDS and FDP which is likely high grade. I would recommend MR evaluation, available at Campsie for full characterisation." (see Ex AC19).
The plaintiff was referred to Dr David Dilley, hand surgeon, who examined him on 11 October 2012. He was given advice as to his options in respect of the hyperextension he was then suffering at the PIP joint of the middle finger of his left hand. His options were to: 1. Live with what he has got, 2. Attempt to stabilise the joint by use of a "silver splint" to prevent hyperextension, 3. Undergo a tenodesis or fusion of the PIP joint, or 4. A final option of a long, involved and complicated reconstruction of the tendon pulleys, stabilisation of the joint and two-stage tendon graft.
The plaintiff was also referred by Dr Sinha to see a psychologist, Jean Griffin, in respect of a Post Traumatic Stress Disorder he had developed since the armed robbery on 16 October 2011. He has since remained under her care. The plaintiff was also referred to Associate Professor Graham Gumley, hand surgeon, for review, who also advised in respect of a two-stage tendon graft procedure, which he described as "quite complex". The plaintiff was also referred for specialist hand physiotherapy. He received treatment from both the hand physiotherapist and Jean Griffin, psychologist, throughout 2013.
Since the expiry of the plaintiff's Sub-Class 485 Visa on 20 June 2013, the plaintiff has been in receipt of successive Bridging Visas. On 10 April 2014, the Department of Immigration refused the plaintiff's Sub-Class 457 Visa application. An appeal lodged with the Migration Review Tribunal was not successful, and in April 2015 a review application was lodged with the Federal Circuit Court of Australia, which was ultimately dismissed on 10 July 2015. A further 402 Visa application was made, but that too was refused, and a review application lodged with the Administrative Appeals Tribunal was also refused on 16 November 2015. Following a recommendation made by the Tribunal member, an application for Ministerial Intervention was lodged with the Minister on 7 December 2015 and a Bridging Visa was granted on 15 December 2015 and extended on 3 February 2016. The basis of the Ministerial Intervention application is to enable the plaintiff to obtain medical treatment by way of the hand surgery outlined above. Whether he is able to do so depends on the outcome of these proceedings.

The issues in the proceedings

The issues to be determined in the proceedings are as follows: 1. The factual issues to be determined are what occurred at the defendant's examination of the plaintiff on 7 October 2011 and 25 October 2011? 2. A further factual matter to be determined is what occurred on 10 November 2011 at the Five Dock Physiotherapy, when the plaintiff was treated by Louisa Tong? 3. Whether the defendant breached his duty of care to the plaintiff? 4. Whether that breach of the defendant's duty of care, if any, was causative of the plaintiff's injuries? 5. Whether the defence pleaded pursuant to s 5O of CLA has been made out? 6. What damages, if any, would flow from any proven negligence by the defendant.?
The relevant evidence for the determination of those issues is summarised below.

The plaintiff's evidence

The plaintiff gave the following evidence about the armed robbery which occurred on 16 October 2011: "A: Well around 10.00pm and I was on the floor checking chips and the other thing, and I saw someone walking into the store and I thought maybe it's a customer so I went back behind the counter and by the time I was behind the counter, he was right next to me and pulled a knife."
Having identified the knife as a big hunting knife and drawn a sketch plan of it (Ex A), the plaintiff gave the following evidence: "Q: The man pulled a knife, did he point the knife at you? A: Yes. Q: What did you do? A: I grabbed the knife with my left hand. Q: Why did you do that? A: I was afraid that he was going to stab me. Q: Where did you think he might stab you? A: In my stomach … Q: Can you please tell us what happened from the time that you first put your left hand around the knife? A: Well he was trying to push the knife towards my stomach and I was trying to push it away and during that process I got injured. Q: What did you feel in your hand? A: It was bleeding pretty badly and I couldn't feel anything in my finger. Q: At some time did you take your hand away from the knife? A: No, when he was trying to run away after taking the money I felt like my finger got stuck in the knife. Q: Are you able to estimate today how many seconds you were holding the knife for? A: Fifty seconds, something like that."
The plaintiff identified that his left hand was bleeding from the index and middle fingers. The cut on his index finger was between the first and second joints on that finger, and his middle finger was cut on the second joint, namely, the proximal interphalangeal joint ("PIP").
The plaintiff was rendered first aid assistance and spoke to the police when they arrived. Photographs taken of the plaintiff and his left hand by the police became Exs B and C.
The plaintiff also received treatment from ambulance officers who arrived. He gave the following evidence: "Q: Did you show the ambulance officer your left hand? A: Yes. Q: What did the ambulance officer do, if anything, to your left hand? A: He wrapped it up. He asked me to stitch it, and I said 'without having a proper look how can you stitch it?' Q: He offered to stitch the hand, did he? A: Yes. Q: The ambulance officer? Did you say 'No'? A: No. Q: Why did you say 'No' at that time? A: Because they were not checking it properly. Q: How was your left hand feeling at the time? A: It was very numb … Q: Did you try and move your fingers at that time? A: No, it wasn't moving. Q: When you say it wasn't moving, what do you mean, what wasn't moving? A: Well, I couldn't feel my finger at all. Q: Your middle finger or your index finger? A: Middle finger. Q: Did you try and move it? A: Yeah, I tried. Q: At that time? A: Yes. Q: Could you move it? A: No. Q: Since you let go of the knife on 16 October 2011, have you been able to move voluntarily your middle finger towards your palm? A: No. Q: After the ambulance officer offered to stitch your wounds and you said 'No', did the ambulance officer say anything else to you? A: Yeah, he asked me to go and see a doctor next morning."
The following day the plaintiff returned to work at approximately 3.00pm. Soon after, he was taken by his employer, Mr Dagher, to the Five Dock Medical Centre. He gave the following evidence as to what occurred: "A: Well first one I walked with him inside the room he was laying, he said 'Oh did you think that I'm an Indian doctor with my surname, that sounds more like Indian?', then I said nothing. Then he asked me 'Why you're here?' and I explain him what happened to me. Q: What exactly, as best you can remember, did you say? A: I said to him 'I was arm, armed robbed when I was working the night before at the Caltex service station and I grabbed a knife. In that process I injured my fingers', and he had a look at it and I told him my finger doesn't move. Q: Which finger? Did you indicate which finger or did you just say, 'my finger doesn't move'? A: No, this middle finger. And he said to me 'The way you held the knife it should be a cramp'. Q: A cramp? A: Yeah. Then he asked his assistant to put some glue and give a tetanus shot to me. Then after that we left. Q: What was it that he asked the assistant to do? A: To put blue glue."
The plaintiff gave evidence that the nurse came into the consultation at the end of the consultation. She then took the plaintiff to another room in the medical centre to put the glue on the wound. Having done that, she gave him a tetanus shot and put a bandage on his finger.
The plaintiff gave evidence that the defendant had removed a bandage from his left hand and looked at his fingers during the consultation. He gave the following evidence: "Q: Did he ask you to do anything with the fingers on your left hand when he examined you? A: He asked me to move it and I said 'I can't move it'. Q: Did you try to move it? A: I tried to move but I couldn't move it. Q: We're talking about your middle finger, correct? A: Yes. Q: On your left hand? A: Yes. Q: Did Dr Rathjen touch your middle finger with any part of his hands? A: No. Q: Did Dr Rathjen ask you to make a fist with the fingers of your left hand? A: No. Q: Did he place any of his fingers between any of the joints of your middle finger? A: No. … Q: Did he ask you to move any of the separate joints of your left middle finger during his assessment? A: No. Q: Did Dr Rathjen give you any advice about what you should do after the nurse put the glue on the cut on your middle finger and gave you the tetanus shot? A: He asked me to come and see again. Q: Did he say when you should come and see him again? A: When the glue dries."
The plaintiff gave evidence that he returned to the Five Dock Medical Centre on 25 October 2011 with his employer. He denied that Dr Rathjen said anything to his employer on that occasion. He gave the following evidence: "Q: When you went and saw Dr Rathjen on 25 October 2011, what did he say to you? A: He said, 'That while you held the knife it's a cramp, I think you should see a physio'. Q: Did he also ask you about how you were feeling? A: Yes, I said 'It's very painful still'. … Q: And how were you feeling at that time emotionally? A: I was very shocked. Q: Were you upset? A: Yes. Q: Were you feeling scared? A: Yes. Q: Had you been having nightmares? A: Yes. Q: Were you feeling sad? A: Yes. Q: Had you mentioned - did you mention any of those things to Dr Rathjen on 25 October? A: Yes."
The plaintiff gave evidence that the consultations with Dr Rathjen were paid for by his employer. At the time, he had no knowledge that he could make a workers compensation claim. During the time period between the two consultations he had been working as a console operator, however, his finger was not working. At the second consultation Dr Rathjen had taken the bandage off the middle finger of his left hand and asked him to move the finger, but he was not able to do so.
The plaintiff gave evidence that he subsequently went to see a physiotherapist at Five Dock Physiotherapy. He made an appointment, and saw two girls there. He told them the following: "A: I told them that I was armed robbed. I held the knife and during the process I injured my fingers and ever since I can't move my finger. They were asking me to force and try and move it and I was telling them that I can't do anything. I can't - even though I pressurise on the finger I can't move it."
The plaintiff gave evidence that one of the women touched his middle finger on the left hand and was able to move it, however, when asked to move it by himself he couldn't do it. He said he was given no advice and no treatment. When asked how his middle finger was after that examination he said: "A: It was still not working, it was very bad."
On 4 January 2012, the plaintiff gave evidence that he went to see Dr Sinha "because my hand was swelling and the pain was intense, and it was turning kind of purple in the middle." He was still unable to move the middle finger. He also gave evidence that the finger had changed in appearance between the time he saw the physiotherapist at Five Dock and the time he first went to Dr Sinha. When asked to describe that change, he said: "It bent backwards" and he demonstrated that by holding his hand horizontally to demonstrate that from the PIP joint, the finger bent upwards towards the ceiling. That condition had developed between the time he saw the physiotherapist at Five Dock and the time he went to see Dr Sinha.
Dr Sinha sent him for an x-ray and he returned to see the doctor on 31 January 2012. At that time, Dr Sinha referred him to a hand surgeon, Dr David Dilley, who he saw in September 2012. His reason for taking so long was, "I wasn't on workers comp and I couldn't afford medical bills".
During that time, the plaintiff gave evidence that his symptoms were getting worse, namely, "the pain was intensifying and it was getting swelling around the whole thing". He then indicated that it was the PIP joint on the left middle finger which was swollen.
The plaintiff gave evidence that the pain and symptoms that he was experiencing caused him difficulty at work. He was unable to do the normal duties, such as lifting boxes and filling shelves, and unable to do household chores such as cooking, cleaning and throwing out the garbage.
The plaintiff gave further evidence that he had difficulty when he took his fingers off the knife during the armed robbery, as he "felt like my finger got stuck into it", identifying his left middle finger.
The plaintiff made a written statement to the police in September 2012. At that time, photographs were taken of his left hand, which became Ex D.
In September 2012, the plaintiff gave evidence that he made a workers compensation claim because he had to see a specialist hand surgeon. Dr Dilley, who he saw on 11 October 2012, advised him that he had to either wear a splint or "go with surgery". He did not have the surgery, but was treated by a hand physiotherapist and a psychologist. He described his psychological problems as follows: "I was scared. I was going through a lot of nightmares. It was scary going back to the same place and every Sunday still. Now I feel scared like someone is going to come and rob me again."
The plaintiff gave evidence that he remained on light duties at work because of the problems with his hand. He had made a number of attempts to obtain work as a systems analyst during the 12 months following his injury, but had been unsuccessful. He could not use a keyboard with his left hand because he could not bend the left middle finger.
When asked why he had not had surgery, the plaintiff said: "A: He (Dr Dilley) explained it's a very complex procedure, that's why I had a good thought about it but I never had any stitches in my life so I was a bit scared."
The plaintiff gave evidence that he was also referred to Professor Gumley, specialist hand surgeon, who agreed with Dr Dilley's advice about surgery.
The plaintiff gave evidence that he uses a splint on his left middle finger to keep the finger in a straight position, similar to the other fingers on his left hand. It did not help him to move the finger and was painful to wear. He continued having treatment by way of hand physiotherapy until the workers compensation insurer stopped paying for that treatment in December 2013. The treatment did not relieve the pain in his hand, nor did it improve function of his left middle finger. The plaintiff also continued to have treatment with Ms Griffin, psychologist, throughout 2013, and consulted the Pain Clinic at Royal Prince Alfred Hospital for constant pain in his left middle finger, in his left palm, wrist and elbow, which radiated to the shoulder and neck. He described this pain level as being 8 out of 10, and it was constant pain. He still suffers that pain. The plaintiff gave evidence that he took Nurofen and Panadol for the pain, two tablets, three times a day. He has not benefited from physiotherapy and had no money for any medical treatment once the workers compensation insurer stopped paying for that treatment.
The plaintiff gave evidence that had he been able to obtain work in the IT industry as a systems analyst, he would have applied for and obtained permanent residence in Australia. Mr Alan Rigas, lawyer, had assisted him with his various applications for visas since 2010.
If he was to return to India, he will have to work at a call centre. He would be unable to obtain work as a systems analyst in India with his injury.
On his return, he would live with his mother in Hyderabad, but would be unable to assist her with household chores because of his injury. The plaintiff further gave evidence that his mother had a maid to assist with the household chores.
In cross-examination, the plaintiff agreed that he had not consulted a hand surgeon in respect of the proposed surgery since 2012. He had undergone hand therapy throughout 2013, but agreed, that by the end of 2013, that therapy had not helped him. Further, by the same time, he knew that the splints had not helped him. The plaintiff agreed that by the end of 2013, the options for him were really to pursue surgery and that he had made a decision recently to pursue that surgery.
The plaintiff agreed that the information that he relied on to form the view that surgery is the proper procedure for him to undertake, was based on information he knew in 2013. One of the outcomes of that surgery would be elimination of pain in his left hand and finger. He agreed that was something he knew by the middle of 2013, however, the doctor had given him the first option which was using splints and hand therapy.
The plaintiff accepted that he now knew surgery was the option for him, but denied that he had realised that in 2013.
The plaintiff gave evidence that he recalled speaking to the ambulance officers. He had read the ambulance report and agreed that the report contained some things which were different to his evidence. He agreed he was emotionally affected by the incident at the time, and that he was teary. He denied that the ambulance officers asked him to move his hand. He gave the following evidence: "Q: Can I suggest to you that you did and you did not demonstrate that they were unable to bend your index finger? A: I told them myself that my finger was not moving. Q: What I'm suggesting, Mr Khan, that they in fact examined or asked you to bend your middle left finger and you were able to? A: No, I did not. Q: You had some dried blood obviously on your finger at the time? A: No, it was still coming out. Q: They cleaned and dressed your wounds on your left hand and fingers, didn't they? A: Yes. Q: They advised you, did they not, Mr Khan, that they could take you to hospital for further investigation? A: No, they did not. No, they did not. Q: You refused to go with them to hospital, didn't you? A: No, they didn't ask me to. Q: You insisted, can I suggest to you Mr Khan, that you would see your local medical officer or the hospital on your own? A: They asked me to see a doctor next day."
The plaintiff agreed that he prepared a statement for his lawyers dated 26 July 2013.
It was the plaintiff's recollection that the first consultation with Dr Rathjen on 17 October 2011 was for roughly 10 minutes. It was put to the plaintiff that he was asked by the defendant to open and close his hand to make a fist during that consultation, which he denied. He gave this evidence: "Q: To make a fist with your left hand would involve your fingers closing up and reaching towards the palm of your hand, wouldn't it? A: Yes. Q: Can I suggest to you that you were able to do that? A: No I couldn't. Q: You were able to do it without difficulty or any obvious deformity in your fingers? A: No I couldn't. Q: Dr Rathjen also looked carefully at your hand didn't he? A: No. Q: And he touched your hand? A: No he did not. Q: And he examined your hand didn't he? A: How do you explain exam? Q: I'll be more specific. He touched the end of your fingers? A: He didn't even touch me. Q: At no stage during? A: No. Not the way you're explaining. Q: What were you explaining by saying 'he never touched me'? A: He cut the bandage. He asked me to move. Q: What then? He cleaned and glued up the cut in your left middle finger, is that it? A: No, he looked at the wound. He said it's just a normal cut and I said 'I can't move the finger'. He says 'It's a cramp' and then he called the assistant for putting the glue and tetanus shot."
It was put to the plaintiff that a consultation involving that explanation would have taken but a few minutes at most, and the plaintiff said that he could not remember how much time it took. He denied that the defendant performed any form of examination of his fingers by way of moving them, but agreed that the defendant had cleaned his wounds. He denied that the defendant applied glue to the wound on his finger, but said that the nurse did that.
The plaintiff agreed that the defendant had told him to come back if there were signs of infection, but denied that the defendant told him to come back if there was increased pain or swelling.
The plaintiff agreed that he was, at that time, still very distressed, but denied that the defendant had asked to review not only his hand, but also his symptoms of distress.
At the second consultation on 25 October 2011, the plaintiff denied that the defendant closely examined his hands and fingers. He described the glue as having "dried up" and stated "the wounds were sealed up".
The plaintiff agreed there had been no development of infection at the time he was examined on 25 October 2011, but complained to the defendant of some ongoing pain in his left hand. He denied that he told the defendant that that pain was gradually settling. He also denied that the defendant had asked him to open and close his hand to make a fist on that occasion. He said that he had been asked to move his finger, but he could not do so. He gave this evidence: "Q: What I want to suggest to you is that you weren't complaining to Dr Rathjen about the limit that the problems in your left finger, that you weren't able to use it like you've complained today? A: I complained about not moving the finger. Q: What you say again at this consultation is that you've more or less got a stiff middle finger, completely unable to move and Dr Rathjen didn't do anything about it? A: That's right. Q: Despite you telling him now repeatedly that that was so? A: Yes, yes. Q: Pretty extraordinary, isn't it? A: Yes. Q: You see, Dr Rathjen didn't refer you to physiotherapy at all, did he? A: No, he said it's a cramp and you have to go to a physio. Q: In fact, you made the decision, can I suggest, to go and see a physiotherapist? A: No, no, he did."
The plaintiff did agree that at the consultation on 25 October 2011, he complained to Dr Rathjen about psychological problems that he was still suffering, including suffering from going blank, having flashbacks, feeling depressed, interrupted sleep, nightmares, lack of appetite and not socialising.
The plaintiff agreed that he had suffered those kinds of symptoms throughout 2011, 2012, until the present. It was the principal reason why he had consulted Ms Jean Griffin.
At that point in his cross-examination, the plaintiff gave further evidence‑in‑chief with leave by consent. He gave evidence of applications he had made online to obtain work as a systems analyst, and evidence that he would attempt to have the surgery performed on his left middle finger in India if he was unable to remain in Australia. He did not know how much that surgery would cost in India. Further, he intended to seek further treatment for his stress and depression from a psychologist in Australia. He had made no enquiries as to the availability of such treatment or counselling in India.
The plaintiff gave further evidence that his injury to his left middle finger had affected his capacity to participate in social cricket.
In further cross-examination, the plaintiff agreed that Hyderabad was a substantial city of about 3.5 million people, with primary health facilities, including teaching hospitals.
The defendant's case was put to the plaintiff in cross-examination as follows: "Q: On 17 October 2011, you never complained, can I suggest, Mr Khan, to Dr Rathjen at all, about loss of function in your finger? A: I did mention it. Q: Can I suggest that you in fact never displayed loss of function in your left middle finger; do you agree with that? A: No, I don't. Q: Dr Rathjen at no stage said it was like a cramp? A: He said it was a cramp. Q: I'm going to suggest to you, Mr Khan, that's simply not right? A: That's the truth I am speaking. Q: Also when you attended on 17 October, Mr Khan, in addition to the laceration on your middle finger and the other cut that you had on your left index finger, you also had some other minor, very, very superficial cuts, didn't you? A: No. Q: You deny that, don't you? A: Yes. Q: Could I suggest to you that in fact that's how your hand did present to Dr Rathjen on 17 October? A: No."
In respect of the 25 October 2011 consultation, the plaintiff was asked: "Q: You agree, do you not, that you had a discussion with Dr Rathjen about some of the psychological problems that you suffered as a consequence of this robbery? A: Yes. Q: But on 25 October 2011, when you were seeing Dr Rathjen, he also had a discussion with you, did he not, about you submitting a claim for workers compensation? A: I disagree. Q: You deny that there was any discussion, do you, about workers compensation? A: Yes. … Q: You accept though, do you not, that at least by 25 October 2011, your employer had told you that he would be paying for your medical expenses? A: Yes. Q: You also accept, do you not, that as at 25 October, and possibly on the earlier occasion, you were very concerned about the cost for any treatment that you might need; isn't that so? A: Yes."
The plaintiff agreed that he did not have a Medicare card, and was unable to fund the treatment himself. He agreed that a workers compensation claim had only been put in after police had spoken to him about the armed robbery in September 2012. The plaintiff agreed that he had been very concerned about the cost of any treatment, and that that informed the way he had sought and obtained treatment up until the workers compensation claim was accepted in late September 2012.
The plaintiff denied that at the consultation on 25 October 2011, Dr Rathjen had in fact reviewed his left hand and specifically asked him to open and close his hand to make a fist. He agreed that what was prominent in that consultation was the fact that he had significant psychological symptoms related to the robbery. The plaintiff agreed that the defendant specifically asked him about his psychological wellbeing on that occasion. He denied that the defendant suggested counselling, that he told the defendant about his concerns about pain for medical expenses and that the defendant had asked him for contact details of his employer. He further denied that Dr Rathjen made contact with his employer by telephone during the consultation.
The plaintiff further denied that the defendant recommended to him that he return to see him the following week.
It was put to the plaintiff that the defendant did not refer him for physiotherapy, which he denied. He was asked about attending Five Dock Physiotherapy and it was put to the plaintiff it was a walk-in consultation. He denied that and said he had made an appointment.
It was put to the plaintiff that there was one physiotherapist during the consultation, which he denied. The plaintiff did agree that one person examined his hand and asked him questions about why he had come to see her.
The plaintiff could not remember whether the physiotherapist asked whether he had sustained an injury to his wrist or fingers on the left hand. He disagreed with the suggestion that he told the physiotherapist that he could not recall any major injury to that wrist and fingers. He denied that he told her that he experienced pain mainly towards the evening, sometimes stiffness in the morning, sometimes stiffness in his neck muscles, or words to that effect. He in fact denied suffering symptoms of pain in his neck as at November 2011.
The plaintiff denied that the physiotherapist performed any form of examination on his right hand. He agreed that she asked him to flex the fingers on his left hand, but he was unable to do so. He could not recall the physiotherapist performing testing by her passively moving his left fingers. He could not recall the physiotherapist performing any form of massage on the left forearm and denied that she applied massage to the top part of the left hand, along the line of the left fingers.
The plaintiff further denied that he was given taping to support the wrist and fingers, and that the physiotherapist had advised him to go back to his GP or be referred to a specialist hand physiotherapist if the pain did not settle.
The plaintiff agreed that he had exhausted all departmental merits and judicial review processes and his last chance to stay in Australia was to obtain Ministerial intervention to allow him to have treatment.
The plaintiff was cross-examined about the content of a letter sent by his solicitor, Mr Rigas, to the Minister for Immigration on 7 December 2015. That letter contained the following: "During the treatment by the physiotherapist, our client reports that his tendons in the left middle finger were severed, resulting in our client not being able to use the left middle finger."
Learned counsel for the defendant put to the plaintiff that the content of that paragraph was false, which the plaintiff denied. The plaintiff did, however, agree that he did not tell Mr Rigas the content of that paragraph. His explanation was that that may be Mr Rigas' understanding of the position.
The plaintiff agreed that he had been examined on behalf of the defendant by a psychiatrist, Dr Virgona. He agreed that he had told Dr Virgona that the physiotherapy treatment was the very worst experience, because the physiotherapist was putting pressure on his left middle finger and it hurt a lot. The plaintiff denied that he told Dr Virgona that the first time that he noticed loss of flexion in his left middle finger was during the consultation with the physiotherapist on 10 November 2011.
The plaintiff agreed that when he saw Dr Sinha on 4 January 2012, he complained of left palmar pain. He also saw Dr Sinha on 31 January 2012, but had no recollection of seeing him about anything other than his left hand and left middle finger. It was put to the plaintiff that at the time that he consulted Dr Sinha, he presented only with a loss of flexion of the third joint of the finger, namely, the DIP. He could not recall that. The plaintiff could recall attending for an x-ray and ultrasound, but not when those studies took place.
The plaintiff agreed that whilst he was able to work 20 hours per week whilst on a Student Visa, the one thing he did not have at any time was permanent residency. He agreed that that was one of the difficulties he faced in securing work and that it was a source of profound anxiety for him over the course of many years. He had sought a 457 Sub-class Visa to secure a position at the Caltex service station, but was unsuccessful in that application. He applied for that Visa on 18 June 2013, after his 485 Sub-class Visa expired on 20 June 2013. Had Mr Dagher offered him a full-time position as a customer service manager, he would have taken it. Further, he understood that on 1 July 2012, the Department of Immigration tightened up the availability of visas that would in due course lead to permanent residency. That decision affected the plaintiff directly, as he did not meet the criteria or requirements as prescribed by the Department.
The plaintiff admitted to great disappointment as a result of his failure to secure a better class of visa.
The plaintiff was cross-examined about seeing Dr Charlotte Johnston, at Royal Prince Alfred Hospital in 2013. He did not remember telling her that he had no idea that workers compensation was owed to him. He agreed that he told Mr Tim Austin, physiotherapist, that his employer had told him that no workers compensation claim had been made because that might jeopardise his future employment prospects. The workers compensation process was only instituted after his interview with police in 2012.
It was put to the plaintiff that he had not had any counselling treatment with Ms Griffin since the end of April 2013, which he could not remember.
The plaintiff was also shown statements made by him to his solicitor on 26 July 2013 and to the police on 17 September 2012 and 17 October 2011, and cross-examined as to the contents of those statements. For example, he made no reference in his statement dated 17 October 2011 about the ambulance officers offering to stitch his left middle finger. Nor did he mention it in his statement to his solicitors dated 26 July 2013.
The plaintiff agreed that the armed robbery was a very emotionally traumatic event for him and he had become quite focussed on his emotional problems. He also agreed that those emotional consequences had escalated his perception of pain in his right hand.
Finally, it was put to the plaintiff that when examined by ambulance officers on 16 October 2011, he made no complaint of any sensory loss or loss of sensation in his left hand or left middle finger. He said he had loss of feeling in that finger.
In re-examination, Counsel for the plaintiff tendered the plaintiff's academic transcript, which became Ex E. In respect of the examination by Dr Sinha on 31 January 2012, the plaintiff gave evidence that he told Dr Sinha that he could not move his finger at all.
The plaintiff gave evidence that the statement made by him to police on 17 October 2011 was made at Burwood Police Station. Detective Susan Watkinson asked him questions and he gave the detective answers. He did not volunteer any information to the detective, and she prepared the statement. The statement became Ex F. A further statement was prepared on 17 September 2012 by the police officer asking questions and the plaintiff answering those questions. That statement became Ex G. Similarly, the plaintiff's statement to his solicitors was tendered and became Ex H, and the letter from Mr Rigas to the Minister for Immigration, became Ex J. Exhibit K was the decision of the Administrative Appeals Tribunal dated 13 November 2015, in which the Tribunal member had recommended an application for Ministerial Intervention.
With respect to the changes made to the Immigration visa rules in July 2012, the plaintiff gave evidence that one of the changes was a mandatory one year IT professional experience which was required to pursue such an application. That concluded the plaintiff's evidence.

Other evidence relied on by the plaintiff

The plaintiff called Mr John Vevers, who was a registered migration agent employed by Alan Rigas & Associates. Mr Vevers gave evidence confirming the status of the plaintiff on various visas since his arrival in Australia. He corroborated the plaintiff's evidence that when he held a VC 485 Visa (which expired in June 2013), the plaintiff was permitted to seek work in the information technology industry as a systems analyst, and if he had been able to obtain such work, he could have then applied for permanent residency. To qualify for residency, the plaintiff required work experience and may have needed to obtain additional qualifications.
Mr Vevers prepared the letter to the Minister for Immigration seeking intervention (Ex J) on behalf of the plaintiff. He forwarded that letter to the Department as an attachment to an email dated 7 December 2015 (Ex N). He had not shown the letter to the plaintiff.
Mr Vevers was cross-examined to establish that the plaintiff had been a long‑term client of Mr Rigas. He agreed that the plaintiff's unsuccessful application for a 457 Visa was the final opportunity for the plaintiff to remain in Australia on a substantive visa. He also agreed that a medical treatment plan was required for a Medical Treatment Visa to issue.
The application informed the Minister that the plaintiff's surgery would take place in the near future, "namely around March 2016", and further stated "we are instructed that this surgery cannot be undertaken in his home country".
Mr Vevers agreed that that information, although inserted by some other employee, was on instructions from the plaintiff. Mr Vevers had not tasked himself with the responsibility of looking into the precise mechanism of how the plaintiff had injured his hand and therefore required surgery.
In re-examination, Mr Vevers gave evidence that there was nothing on the files of Rigas & Associates to support the statement on page 3 of the letter seeking Ministerial intervention, that the injury occurred during physiotherapy, as referred to above.
The plaintiff also called Mr Peter Dagher, the proprietor of the Caltex service station at Five Dock where the plaintiff was injured. He gave evidence that the plaintiff was a very good, very reliable employee before he suffered his injury in October 2011. Thereafter, he only did light duties because of his injury.
Mr Dagher corroborated the plaintiff's evidence that he had sponsored the plaintiff in 2014 on a 457 Visa application which was unsuccessful. He attended the service station on the night of the armed robbery and saw Mr Khan with his finger wrapped up with a lot of bandaging from the ambulance. He gave evidence that he asked the ambulance officer to take the plaintiff to hospital. He gave evidence that he spoke with the plaintiff after his treatment by the ambulance officers as follows: "Q: Did you understand or did Mr Khan say anything to you about the treatment that he believed he needed to have when you spoke to him after you saw him at the service station with the bandages around his fingers? A: No, he thought he got treated by the ambulance. He didn't know what else to be done and I didn't know what else to be done."
Mr Dagher gave evidence that the following day, when the plaintiff arrived at work, he took the plaintiff to the medical centre at Five Dock because he, Mr Dagher, wanted a second opinion. When asked what he meant by that, he answered: "A Because ambulance says it's surface cut so we want to make sure it is surface cut."
Mr Dagher remained at the medical centre whilst the plaintiff was examined by the defendant. He did not remember how long that took. When they left the medical centre, the plaintiff's left hand was wrapped up and he couldn't move his fingers because of the bandage.
Mr Dagher also went with the plaintiff to the Five Dock Medical Centre on 25 October 2011. He paid for both consultations. He gave evidence that he would have been prepared to pay for any other treatment that the plaintiff required, for example, an x-ray or ultrasound.
Mr Dagher also paid for the plaintiff's attendance at the Five Dock Physiotherapy. He gave this evidence: "Q: Did you pay for any more doctors' visits after that time? A: Yes, sir. Through the - after the event a few months later his wound healed but his finger was not moving, he couldn't work out what was going on because we thought it's only a surface cut and why it's not moving so he went to see another doctor in Strathfield, which is my staff, he found him to have another opinion why, what's the issue."
After the consultation with the defendant on 25 October 2011, Mr Dagher observed the plaintiff's left hand to be bandaged, but he had no memory of when the bandage was removed. When they were removed, his left middle finger wasn't moving. He observed the plaintiff to be in pain and his personality changed.
In cross-examination, Mr Dagher denied that he and the plaintiff were close friends. He agreed that the fact that he had been asked to give evidence only at the commencement of the trial meant the first time he had had occasion to think back about the events that occurred four years ago was recent. He did not know the name of the doctor consulted by the plaintiff in January 2012. The reason the plaintiff went there was because his finger was not moving at that time. He was challenged about his evidence that the plaintiff's finger was bandaged following the consultation on 25 October 2011 and said he did not remember "100 per cent" the bandage.
It was put to Mr Dagher that he did not have a clear recollection of what the plaintiff was complaining about in January 2012, to which he answered: "Yeah, he was complaining about his finger not working and painful."
Mr Dagher did not recall having a discussion with a doctor at the Five Dock Medical Centre and did not remember someone from the centre calling him.
He gave this evidence: "Q: What I want to suggest to you Mr Dagher, is that you thought it was a minor injury, but Dr Rathjen from the Five Dock Medical Centre suggested to you in a conversation that Mr Khan may need a lot of treatment for his psychological conditions? A: He never suggested that."
There was no re-examination.

The defendant's evidence

The defendant's Curriculum Vitae was tendered as Ex 4 in the proceedings. He gave evidence that he was employed by Health Scope at Five Dock Medical Centre during the period January 2010 to October 2012. Prior to that, the defendant had been a full time medical officer with the Australian Regular Army and had had three operational deployments. In October 2011, in addition to his employment at the Five Dock Medical Centre, the defendant began working at the Glebe Medical Centre, one day per week. In addition, he was also doing service in the Army Reserve.
The defendant's clinical notes of his attendances on the plaintiff on 17 and 25 October 2011 became Ex 5. In addition, the defendant had made a statement to police dated 20 August 2012, which became Ex 6. A report he wrote to the workers compensation insurer, CGU Insurance, dated 4 October 2012, became Ex 7. His statement to his solicitors became Ex 8.
The defendant gave evidence that he had a recollection of the plaintiff because his was a unique presentation. He was the only patient the defendant had seen at that time who had been involved in an armed robbery, and his presentation was "quite unique in regards to that". Secondly, during the second consultation, the plaintiff had displayed a number of what the defendant believed were "quite significant psychological symptoms".
The defendant gave evidence that he had experienced a lot of cases of PTSD during his time in the Army Medical Service, and particularly throughout 2007 and 2008. There were two other things that assisted the defendant to remember the plaintiff in the two consultations; the first was that he was on a Bridging Visa; and the second was the contact by the police in early 2012 requiring a statement for the criminal case against the alleged assailant.
At the consultation that took place on 17 October 2011, the defendant gave the following evidence: "A: Mr Khan stated that the assailant came up from behind, held a knife at his side, at Mr Khan's side. Mr Khan, as he was directing Mr Khan to the register, Mr Khan stated that he was quite anxious and concerned, as he would be, about being injured by the knife and in order to try and protect himself he then placed his hand cupping the knife around the bottom with like not touching the knife, but cupping the knife and trying to move the knife away by pushing on the flat surface or the side of the knife. Whilst Mr Khan was doing this his main concern, as he stated to me, was he was worried about the knife being in such close proximity to his body. Whilst trying to move the knife away from his body, the knife had come in, the sharp edge of the knife had come into contact with his hand on a number of occasions and that's how he sustained wounds." Q: When you say wounds? A: Or cuts."
The defendant then gave the following evidence of his examination: "A: So I initially removed the two bandages which were, my recollection, being simple band aids from the index and middle finger of the left hand and then generally inspected the left hand for signs of injury. Q: What did the general inspection involve? A: Just what I could see. Q: A visual inspection? A: Visual inspection. Q: Did you do anything else other than visually inspect the left, I think you said middle and index finger? A: Well, I inspected the whole hand. So what I saw on my initial inspection was multiple cuts which hadn't bled. Q: Whereabouts were they located on the hand? A: They were located on different fingers, on the palm. There were between 15-20 of these can you describe which were non-bleeding cuts, meaning that it involved the upper layer avascular or layer of skin that doesn't involve or have a blood supply, which is the upper-most layer of skin. Q: What else did you observe? A: I then observed the two deeper wounds that had, obviously, bled and had been dressed with band aids. They were on the index and middle finger. Q: Whereabouts was the laceration on the middle finger? A: My recollection is the laceration was approximately, the level of the PIP joint, the Proximal Interphalangeal joint. Q: You also mentioned that the index finger of the left hand had also something on it. What was that? A: A similar laceration, again, approximately, 1cm in size, my recollection being that it was between the Distal Interphalangeal joint and the Proximal Interphalangeal joint. Q: Did you do anything else after you had a look at the wounds that you've described, the two deeper wounds? A: The next thing I did after inspecting the wounds was to ask Mr Khan to open and close both his left and right fists. Q: What does that involve? A: I asked Mr Khan to make a fist. Q: Did Mr Khan do that? A: He was able to do that without any obvious difficulty or deformity. Q: Did you do anything else after Mr Khan opened and closed his hands in the way you described? A: Yes. Once he completed this process I took up Mr Khan's hand. Mr Khan's left hand sorry. Q: What did you do? A: I assessed for neurovascular status of the injured fingers, the left index and middle fingers. Q: What is neurovascular status? A: It's assessing the blood supply to the injured fingers as well as the nerve supply to the injured fingers."
The defendant then described the neurovascular test he applied, and gave evidence that there was no problem with the blood supply to the two fingers. He was then asked: "Q: What else, if anything, did you do after you completed those two tests? A: The final test is a pain test, so light touch and pain sensation. The pain sensation followed the same process as light touch, involving a sharp object. In the situation I used the sharp edge of a paper clip, again testing both sides of both injured fingers, comparing them to non-injured fingers to see if there was any difference in sensation between the two sides. Q: Did you do anything else after you performed that test? A: After I performed that test I just wanted to have a look at the wounds themselves on the index and middle fingers, so I had a minor obs trolley in my room, just used some normal saline and a sterile gauze to wash the lacerations on the index and middle fingers to remove the dry blood, enable me to inspect and observe into the wound to see - have some idea of how deep they were. I asked Mr Khan to actively flex the fingers while I was looking into the wounds. I also passively flexed - "
The defendant then demonstrated to the court what was involved in actively and passively flexing the finger. He gave this evidence: "A: So Mr Khan I'm asking, 'can you flex your finger as I am looking at the wound' and then following that I'm passively flexing whilst I'm looking in the wound, the purpose being to estimate the depth of the wound. Primarily, what I am looking for is if I can see any tendon moving. If I can see a tendon moving, it's more suggestive to me that there's potential tendon injury. Q: What, if anything, did you observe when he did that? A: Apart from Mr Khan being able to actively flex both index and middle fingers, I didn't see any evidence of - I couldn't see a tendon move. Wounds themselves seems (sic) quite superficial. I didn't see any muscle layer or any deeper structure visible. Q: What was the thing in your mind about tendons whilst you were conducting these examinations? A: Well I have a good knowledge of anatomy, a good knowledge of hand injuries and general musculoskeletal medicine. Due to the mechanism injury, my main concern was any possible damage to the flexor tendons on the hand due to the lacerations caused." Q: What was the next thing, if anything, that happened after you were inspecting the wounds and he performed those movements? A: After I inspected the wound, then I went on to individually test the Flexor Digitorum Profundus and the Flexor Digitorum Superficialis tendons in order to evaluate independently function of each of these tendons. Q: In which digits? A: In both the index and middle fingers."
The defendant then went on to give evidence of his observation that the plaintiff was able to actively flex the Distal Phalanx of his index and middle fingers.
The defendant also gave evidence of a resisted flexion test to both the left index and middle fingers. He was asked: "Q: What, if anything, did you notice in resisted testing of the Profundus tendon in the middle finger? A: I didn't notice any sensation of weakness. There was some pain on both index and middle fingers on resisted testing. However, I have been cleaning and if you like not playing with the wound but examining the wound, opening the wound up with my hands. The wounds were bleeding after my initial examination so the pain wasn't out of proportion to what I would have expected. Q: What about the Superficialis tendon, what, if anything, did you observe or detect for the Superficialis tendon in resisted testing? A: I didn't notice any deficiency in strength. Again, there was some pain associated with the procedure, but again I had been actively examining the wound which requires me to open it up so I can inspect it. I had cleaned it. It was bleeding again and the pain wasn't out of proportion to what I would have expected for one day post injury."
The defendant gave evidence that that testing took less than five minutes, maybe three or four minutes. He also gave evidence that he had previously had frequent experience treating hand injuries, including numerous hand lacerations. He was quite confident in assessing for tendon injury.
The defendant acknowledged that the evidence he had given of the examination was not contained in his clinical notes. When asked why, he gave the following evidence: "A: My recollection of the incident is that it occurred on Monday, which is generally the busiest day in general practice. That day was particularly busy for me. I was behind. At the end of the consultation the only thing down was the locations of injuries, so which hand was involved and the locations of the wounds. I'd finished the notes at the end of the day after seeing the rest of my patients. My only excuse I could say was after being at work finishing off my other patient notes and being tired, and from the assessment that I had made, I pretty much just put my conclusion down. That's not really an excuse. The notes are inadequate and poor. My intent was to expand on the notes because we had made arrangement to meet the following week, which had occurred."
The defendant was asked at what point in time did he reach the diagnosis of lacerations post knife injury. He gave this evidence: "A: I guess once I've assessed the neurovascular status, so looking at the blood supply and the nerves being intact, and I'd done my tendon injuries and felt that they were intact, then to me the wound was superficial, meaning involving just the upper layers of skin, not involving any deeper structures, so therefore, my diagnosis was a superficial knife injury, "superficial" meaning, not involving any of the deeper structures, muscles, tendons, nerves, arteries, veins. Q: Did you do anything else after you'd examined the hand in terms of treating Mr Khan? A: I had partially cleaned and irrigated the wound with normal saline, sterile normal saline. Q: Once you'd inspected it, what did you do, if anything? A: Once I'd completed my examination, which was after completing the testing for the superficialis refundus tendons (sic), I just finished irrigating the wound. I dried the wound with a sterile gauze and then applied the Histoacryl wound clean to both of the wounds, mostly because I'd made them bleed. I saw the bleeding was from direct pressure, but they were prone to bleed again with minor trauma, so I mostly applied the Histoacryl to form a seal over the wounds so that basically they were covered and sealed and they wouldn't be an issue. Q: Was any other treatment given to Mr Khan on that day so far as you're aware? A: Following was a discussion with Mr Khan the benefit of having a tetanus shot and so prior to - once Mr Khan had left my room, I walked him over to the practice nurse to give him a tetanus shot. Q: Who was the practice nurse? A: From the records it was Cheryl Skiffington."
When the defendant was asked what he then did, he gave the following evidence: "A: I'd see my next patient after that, was the end of my consultation with - but prior to doing that - prior to leaving my room, I discussed with Mr Khan - asked him to return to see me in a week, which he agreed to. My main concern there was not so much about his hand, I was more concerned about his potential psychological trauma. He displayed quite a lot of anxiety at the initial presentation and I also advised him to be on the lookout for signs of infection as per any injury, see redness, increasing pain, swelling, as well as any problems with hand function, if he had any trouble using his fingers, I'd ask him to come back early and see me, come back in a week, but if you have any of these issues, come back earlier. I then moved him over to the practice nurse who gave him a tetanus shot and I then went off to see my next patient."
The defendant said he had a recollection of seeing the plaintiff on the second occasion on 25 October 2011. He recalled the plaintiff telling him he had some ongoing pain in his middle finger, although that pain had been improving. The plaintiff did not indicate any issues with hand function or problems of that nature. When asked what he did, the defendant said: "A: I had a look at the wound, looking for signs of infection. Q: What did you see when you inspected it? A: I noticed the wound glue was still in place. There was no dressings on the hand at the time, were not real requirement for them, which is the purpose of the wound glue. There was no indication of infection, there was no redness, swelling or other signs of infection. I palpated or touched, pushed on the wounds and they appeared to be non-painful. I asked Mr Khan to open and close his fists or to make a fist for me again to look at general function. Q: Mr Khan when you asked him to open and close his hands, what if anything did you notice about his ability to do that? A: Mr Khan had full range of motion of both left and right hand with no obvious deficiency, no deformity or incapacity, so nothing that would indicate a rupture or complete of his flexor tendons."
The defendant said that during this consultation the plaintiff was obviously significantly distressed. When asked to describe that, he said: "A: His manner was nervous, he appeared uncomfortable, quite distressed while talking about the incident. I'm not sure if I can recall, but he may have become teary whilst talking about the issues. What I've written down in my notes comes directly from Mr Khan. Issues such as going black, having flashbacks about being robbed, feeling depressed, nightmares regarding the incident. I'm just reading through the list, sort of not socialising, things of that nature. Not feeling like he could discuss things with his wife who was overseas at the time."
The defendant diagnosed Post-Traumatic Stress and was asked whether he attempted to deal with the symptoms of the plaintiff's Post Traumatic Stress. He gave this evidence: "A: Sort of difficult process. I had a lot of discussion with Mr Khan that I've had a fair bit of experience with this sort of thing, more of in a military perspective. I indicated to him that he required psychological counselling, most to avoid, just to process the incident initially to avoid any avoidance behaviour, more so if he wasn't being able to go back to work because of his anxiety and to deal with that initial anxiety. I discussed that with him in detail. I mentioned he may need further treatment with things such as anti‑depressant medication, however obviously psychological therapy is the preferred option initially. I stated this was more likely to be a prolonged therapy and that's what I mentioned that Workcover may be appropriate for this because this was going to be expensive."
The defendant did not refer the plaintiff for counselling but discussed with him the possibility of counselling. He believed that Workcover would be appropriate to cover the costs and asked the plaintiff if he could call his employer whilst the plaintiff was in the consultation room.
The defendant then gave evidence that the plaintiff made a call to someone who he said was his employer, and that the defendant spoke to someone on that phone, who he assumed was the plaintiff's employer, who told him that the employer wanted to manage the costs himself.
The defendant then gave evidence that he asked the plaintiff to come back in a weeks' time, however, he did not return to see him.
The defendant gave evidence that he had never referred the plaintiff for physiotherapy, nor suggested it. There was no referral letter on his file and no note or indication of such a referral on the plaintiff's medical records.

Cross-examination of the defendant

In cross-examination, the defendant conceded there would have been no difficulty for him to refer Mr Khan either to a hand surgeon or a hospital for urgent review in October 2011.
The defendant further conceded that at the time, he was seeing as many as "high 20s to low 30s" patients per day.
The defendant gave evidence that the plaintiff's presentation was "unique and memorable". However, his conclusion was that he suffered two superficial cuts. He agreed that it was vitally important for comprehensive medical records to be maintained to enable differing doctors to assess and properly treat patients. Further, the software program within the Five Dock Medical Centre clinic included areas for history, current medications, immunisations and current and past medical history. He gave this evidence: "Q: You agree that the reason why those prompts were available within the medical record was so that medical practitioners consulting with a patient could add vital information about the patient into the record? A: That's correct but the receptionist are required to give you time to do that, not double book a patient and expect you to fill that information out in the time. Normally you would have half an hour appointment with a new patient to do all that, not squeezing a patient in, in a busy Monday afternoon session."
The defendant gave evidence that he did not have time to add those areas of information into the software program on 17 October 2011.
The defendant agreed that his patient records for this consultation are deficient in relation to the examination which he claimed he performed on the plaintiff.
The defendant was asked about the police report he prepared in August 2012. He gave evidence that he'd been working on that report since early 2012, and said: "A: I mean it's something from initially being asked to provide the report I printed off my file. I refreshed my mind about what had occurred. I stopped and started working on it. It refreshed it in my mind to such an extent that when this complaint came in and Mr Khan's name was on the file, I knew exactly who it was, I knew exactly what the issue was. I was surprised, I thought it was about mental health issues because I remembered my examination, I remember not having any issues and so I was actually quite surprised when I read the complaint."
The defendant was cross-examined on his experience of treating hand injuries since he joined the Army in 2006. Despite there being absolutely no record in his clinical notes of the type of examination he performed, he claimed to have an actual recollection of the examinations, and in respect of the chronology of the examinations, he said: "A: My chronology's based on repetition. I do exactly the same thing every time. I've been doing that for the last 10 years. Q: In fact what you've told us you did in this case was based upon what you say you have been doing with patients with suspected finger tendon injuries for many, many years? A: Well not finger tendon injuries, it's any muscular issue, it's active, passive, restrictive range of motion. It's look, feel, move. It's just basic examination technique. I recall the particular member, I recall what I did. My notes are insufficient, I admit that, however, I do recall examining Mr Khan appropriately at the time. Q: I want to suggest to you doctor, that in fact you are mistaken and the evidence you are giving, and I'm not suggesting you are deliberately attempting to mislead anybody, but the evidence you are giving is based upon your belief of what you did in Mr Khan's case, having regard to what you say has been your practice when you assess patients for musculoskeletal or suspected tendon injuries of the hands and fingers? A: I do not agree with that statement."
The defendant identified the Histoacryl glue, also known as blue glue and acknowledged the content of Ex V, namely: "Histoacryl and Histoacryl blue topical skin adhesives are intended for topical application to hold closed easily approximated skin edges of minimum tension wounds, from clean surgical incisions and simple thoroughly cleansed trauma-induced lacerations."
It was put to the defendant that on 17 October 2011, he in fact asked the nurse, Ms Skiffington, to dress the plaintiff's wound and to give him a tetanus injection. He stated: "A: I mean, I may have asked her to dress the wound. There's generally no requirement. Once the wound glue is in place, it provides a waterproof seal so a dressing is not really required. Q: You see, I want to suggest to you, Ms Skiffington wrote in the records 'Patient in treatment room for dressing to wound left hand. Same attended. Normal saline irrigation'. What I want to suggest to you is that she was the one that irrigated Mr Khan's wound and she was the one that put the blue glue on the wound, what do you say to that? A: I say that's incorrect. Q: You agree though, don't you, that it would be a nonsense for a nursing sister to irrigate the wound with saline if there had been glue applied? A: It would be. I cannot comment on what the enrolled nurse did, but it's in their scope of practice to apply wound glue, it's a procedural - considered a procedural issue, it's a doctor only initiated procedure. Q: See, I want to suggest to you, Dr Rathjen, that you are mistaken when you say that you applied the wound glue to Mr Khan's hand, and in fact, all you did after making your diagnosis of superficial lacerations, was call in the nurse and ask her to dress the wounds and to give the patient a tetanus injection? A: That's incorrect."
The defendant denied that asking the nurse to do those things was consistent with him being a very busy doctor.
The defendant stated that he had asked the plaintiff generally, "how he was coping, how he was feeling". He gave this evidence: "Q: You were quite concerned about his psychological state, were you, after the consult on 17 October? A: I believe just due to the nature of what had occurred that you wouldn't - that it would be not unusual for someone to be quite - to have some ongoing issues associated with that. I thought that was certainly worth exploring in a further consult."
The defendant was cross-examined as to his evidence that he was looking, during his examination, to see if he could see the tendon moving. He gave this evidence: "A: I'm estimating the depth of wound, so I'm looking into the wound looking for any evidence of - just a general observation of depth, looking to see if I could see structures such as muscle, tendon. If I can see tendon, it indicates that the knife cut of these went down to the depth of the tendon, as previously testified by specialists, that during the grasping of the knife or the contraction of a hand, the site of injury may not be at the site when the hand is in a straight position."
The defendant gave evidence that the laceration to the middle finger cut through the epidermis and dermis. He qualified that evidence to say that the knife lacerated part of the dermis, based on his clinical examination. He conceded that the plaintiff had sustained lacerations of the FDP and FDS tendons, and that the expert hand surgeons in the case all agreed that those lacerations were a result of him grasping the knife on 16 October 2011. He gave this evidence: "Q: You know that if those tendons were damaged during the course of Mr Khan grasping the knife, that knife, they must have been caused by the knife passing through the dermis so that the tendons could be damaged, don't you? A: That would be right, yes."
The defendant was only willing to concede that he could, on occasions, make errors when inspecting patients' fingers, "potentially". He was then asked: "Q: If there were some laceration by knife of part or all of the FDP and FDS tendons by the knife, you agree that there must have been a laceration through the dermis on that left middle finger, mustn't there? A: Yes. I agree with that."
The defendant disagreed that he erred on this occasion because he was tired. He could not recall when he finished seeing patients that day, or how many patient notes he had to write up. When asked why he could remember in particular writing up the plaintiff's notes, he gave this evidence: "A: Because when approached by Detective Watkinson, I - when I first looked at my notes I wondered why the note was so poor, why I didn't obtain any of the history that I remembered, and I recall writing them up at the end of the evening and - and just putting a conclusion down rather than providing a comprehensive note at the time."
It was suggested to the defendant that, in respect of the notes, he had, consciously or unconsciously, identified things in order to maintain his innocence in relation to the complaints made against him, which he denied. He was then asked: "Q: Why was it, if you were able to go back and complete the rest of the record after 6.00pm that you didn't include a few extra lines about the examinations that you now claim that you performed on that afternoon? A: If I may answer that question, at the end of a long day, being tired, not being particularly concerned about the injury because I had thoroughly examined it, I haven't found any abnormality. If I had any - as some of our specialists had said - trouble sleeping, I would have carefully documented every single thing, worried that it may come back to haunt me. However, based on the examination findings, having found no significant abnormalities of any sort, and based on the mechanism of injury provided to me by Mr Khan, I'd come to the conclusion that he had sustained two superficial lacerations and I wasn't concerned that this would be anything more than two minor cuts. As indicated by his employer, what I was more concerned about at the time was his mental health going forward."
He agreed that his notes were grossly deficient. He was asked further, about having made a mistake about his notes as follows: "Q: You admit that you could have made a mistake about your notes that day? A: By 'mistake', I mean not including things that should have been included, but not in regards to recall what I did at the time. Q: If you were fallible when it comes to something as important as your clinical notes, don't you accept that you might also be fallible in relation to the examinations that you performed on the plaintiff that day? A: Not at all. Q: Don't you agree that if you're fallible in relation to something like that on a busy day, your memory as to what occurred might also be fallible? A: Not at all."
The defendant was asked about evidence he had given previously about moving the plaintiff over to the practice nurse for a tetanus shot and going off to see his next patient. He said that evidence was based on his usual practise, he had no actual recollection of specifically asking the practice nurse to give a tetanus shot. He agreed that he was reconstructing his evidence on the basis of his record, "in regards to providing a tetanus shot", and, as to what happened in the treatment room.
The defendant said he did have an actual recollection of writing up his notes. He was asked: "Q: Your evidence is also that despite your intention of writing up the notes more fully at the end of the day when you didn't have any more patients to see, you didn't do that, did you? A: I did to an extent. The mistake I made was drawing on positives only, probably considering the injury after fully examining it and coming to my conclusion, not finding it necessary to include all the examination history and also knowing that Mr Khan was coming to see me the following week, at which time I would have had more time had he made an appointment to then write a thorough - a more thorough history of the incident."
The defendant agreed there was nothing about psychological symptoms in his clinical notes for the first consultation. Notwithstanding that, he gave evidence that he asked the plaintiff how he was feeling on that occasion and the plaintiff said he was feeling "quite anxious". Notwithstanding that, the defendant agreed that in his report to police (Ex 6, para 4), he had stated: "At the time of the initial assessment, Mr Khan did not report psychological issues."
The defendant described that as "a simple oversight".
The defendant agreed that one of the reasons for having a recall of the consultation was his dealings with the police. He agreed that in preparing the statement for police he was concerned to put in every positive finding.
It was put to the defendant that consciously or unconsciously, he was, in his evidence, reconstructing a memory of the first consultation which did not cast any potential criticism upon him, save for the deficiency in his clinical records, which he denied.
The defendant was cross-examined as to the time keeping records of consultations with patients at the Five Dock Medical Centre as at October 2011. He had no recall of the patient who he had seen before or after the plaintiff. On the day in question, he had seen 29 patients before the plaintiff came into his consulting room, and had been working for nine hours. When asked whether he would have been fatigued by the time he saw the plaintiff, he said: "A: I would say not overly fatigued; I would say a normal working day, coming towards the end of the day, may be a bit tired, but certainly not fatigued or impaired in my ability to do my job."
The defendant agreed that the time keeping records revealed that the consultation with the plaintiff was for 13 minutes and 22 seconds, and that the defendant's next consultation did not commence until six minutes after he had finished seeing the plaintiff. He gave evidence that he would use time to try to complete patient files during such gaps, however, his usual practice was to go immediately to reception and collect his next patient.
The defendant gave evidence that he had an actual recollection of his consultation with the plaintiff on 25 October 2011. His reason for that was: "A: Because I have strong memories, strong emotions, a lucid memory. I was annoyed that I had to spend 20 minutes when I was in a busy session. I spent the time because the time was required, but I have a recollection that there was no booked appointment and Mr Khan come in as a walk-in patient."
The defendant gave evidence that on that occasion the plaintiff "had a normal examination, he had improving and minimal pain. His main presentation or main concerns at that time were his mental health issues". He was asked: "Q: You're mistaken about that aren't you? A: No. I'm not. Q: If you truly accept the proposition that clinical records of examinations and findings are vital, you could and would have added information about your finger examinations and findings in the records of 25 October, wouldn't you? A: Well, certainly, if I had any level of concern that I may have missed something that would have been more important to me. However, there was no indication of any tendon problem at that stage. Q: You weren't just looking for tendon problems, though, on the 17th, were you? A: Well, I looked for signs of infection. As per my clinical records, Mr Khan stated his symptoms had improved and were resolving. There was nothing to suggest to me at the time there was anything more significant going on with the hand."
The defendant denied that the plaintiff said to him on the first consultation, "I was armed robbed when I was working last night at the Caltex service station and I grabbed a knife".
The defendant agreed that in his report to the workers compensation insurer, CGU, (Ex 7), he had written: "Mr Khan sustained injuries to his left hand when he grabbed the knife of the alleged assailant in order to protect himself."
He was then asked: "Q: Do you accept that the version of events you gave yesterday so far as history is concerned, in which you used the word 'cupping', and pushing away the blunt side of the blade, is a version which would tend to suggest minimal contact between Mr Khan's left hand and fingers, and the sharp part of the knife? A: I would and certainly more consistent with the injuries he sustained. The 15 or 20 superficial lacerations that didn't penetrate the upper layer of his skin. His version of events does not support his injuries sustained or indicate on his police report … Q: I'm suggesting that if Mr Khan had said he's cupped the knife, that's something you would have put in the clinical notes? A: As I said yesterday, he placed his hand around the knife, attempting to remove it away from his body. In doing so, his hand came into contact with the knife, the sharp edge of the knife on multiple occasions. … Q: If he'd used the word 'cupping', you would have included that in the police report, the police statement you made, wouldn't you? A: I mean the term 'grab' is very - has lots of different severities to it. Either you reach out and tightly grasp a knife or lightly grasp a knife as you're trying to remove it away from your body. … Q: I'm putting to you that he told you that he grabbed the knife in order to protect himself, what do you say? A: He told me - what he told was the knife was placed at the side of his body. He placed his hand underneath the knife and tried to pull it away from his body, worried about being injured. In doing so, his hand came into contact with the sharp edge of the blade. So in effect, yes, he did grab the knife in that respect. He didn't reach out and grab the knife as it was thrust towards his abdomen as he's testified to."
Cross-examining counsel put the plaintiff's case to the defendant in a series of questions consistent with the plaintiff's evidence. He denied that the plaintiff had told him that he'd injured his fingers by grabbing a knife and that he told the plaintiff that he had a cramp in his finger. He agreed that he had taken some bandages off the plaintiff's middle and index left fingers, wiped away dry blood and looked at the fingers. He denied that the plaintiff told him he could not move his middle finger and denied that he did not touch the plaintiff's middle finger with any part of his hands. The defendant denied that he asked the nursing sister to come into his room and that he asked the nursing sister to apply some glue to the plaintiff's wounds.
The defendant was asked: "Q: If you had become aware that he felt that his middle finger had become stuck in the knife for some part of the time he was grasping it, that would have led you to refer him for specialist review, would it? A: No, I would have referred him for an ultra-sound even with a normal examination if I had that history."
The defendant disagreed with the proposition that he did not really have an independent recollection of his consultations with the plaintiff beyond his clinical notes.
The defendant agreed that the plaintiff demonstrated pain in both his left middle and ring fingers upon testing the tendons. He was asked: "Q: You accept, do you not, now with the benefit of hindsight, that at the time Mr Khan presented to you on 17 October, he had injuries to those two tendons, the superficialis and the Profundus? A: Yes. It's obvious now that he did have partial injuries to those tendon at the time, an injury on the middle finger, yes. Q: Partial or complete, depending on whose version you accept, do you agree? A: Well I think complete is pretty obvious, so I don't think anyone would miss that, not even a first year medical student."
The defendant agreed that pain in a patient upon resistance testing of the finger could be suggestive of a tendon injury, however, the defendant qualified his answer by stating a belief that the pain "has to be out of proportion to what you'd normally expect from a type of injury sustained."
The defendant denied that on 25 October 2011 the plaintiff was unable to move his left middle finger. He also denied that on that occasion he suggested the plaintiff undergo some physiotherapy treatment. The defendant did accept that if there was a complaint on that occasion by the plaintiff of inability to move the left middle finger, he should have been sent to a hand surgeon or an emergency department straight away.
The defendant agreed that the testing that took place on 17 October 2011 took between three and four minutes. It was put to the defendant that much of his evidence "bears all the hallmarks of reconstruction", to which he disagreed. He disagreed that he was attributing an actual recollection to matters that he had simply reconstructed from his usual practice of treating hand injuries in the past. It was put to him that he was simply unwilling to accept any possibility that he erred, to which he answered: "A: I do not feel that there was sufficient evidence to suggest any underlying deeper injury at the time."
In re-examination, the defendant denied diagnosing a cramp in the plaintiff's finger. When asked why, he gave the following evidence: "A: Because of the fixed extension deformity, by that I mean, if the finger was raised the cramp occurs in the muscle and the muscle isn't on the extensor surface of the forearm, not the palmar surface where the injury has occurred. So if any cramp was to occur in the hand, the hand would be in some form of flexion rather than extension. Q: Does that include the middle finger as well? A: Yes, normally it would involve a number of fingers because of the extensor Digitorum involves all four fingers that you can't have a single finger in extension. All four fingers would be involved with the cramp because the muscle involves all four fingers."
Finally, the defendant said a third potential cause of pain was "the recency of the wound itself, the fact the wound had occurred the night before, the fact that Mr Khan was, although not looking at my police statement, was still significantly distressed and anxious about the fact that he'd been held up, all could compound the perception of pain, perception of injury"

Evidence of Ms Louise Tong

The defendant called Ms Louise Tong, a physiotherapist employed by Five Dock Physiotherapy in his case. Ms Tong first qualified as a physiotherapist in early 2011 and commenced work in June 2011. She had no recollection of treating the plaintiff in November 2011, however, her clinical notes dated 10 November 2011 became Ex 9.5 (defendant's tender bundle tab 5, pp 33 and 34). The notes were somewhat illegible and Ms Tong read the first entry as follows: "A: Presented with soreness in the mainly last three fingers few weeks ago. Couldn't recall any major injury to the wrist and fingers. Nil previous injury to the wrist and fingers."
The notes contained the entry "mainly towards the evening, stiffness in the morning", referring to pain, followed by "nil medication and nil night pain".
The notes contained reference to Ms Tong's objective examination of the "MCP distal and proximal interphalangeal joints", MCP referring to the metacarpalphalangeal joints.
Ms Tong gave evidence that the entries recorded her findings on assessing movement on the hand, namely, that "left equals right".
Ms Tong then demonstrated what was involved in flexion and extension of the fingers by opening and closing of the fingers of the hand.
Ms Tong also demonstrated an upper limb tension test which demonstrated a positive response to the top part of the plaintiff's forearm.
The balance of the notes were interpreted by the witness in terms of her advice and treatment. A new patient information sheet was tendered as Ex 3. The plaintiff was not referred by a doctor.
In cross-examination, Ms Tong agreed that, according to Ex 3, the basis upon which the plaintiff found the physiotherapy practice was not at all clear.
Ms Tong also agreed that at the time she was a very junior physiotherapist with limited experience of treating patients. She was not a physiotherapist specialising in hand injuries, and could not recall seeing any sort of hand injury before she examined the plaintiff.
Ms Tong agreed that her evidence was a reconstruction based on the two pages of clinical notes, (Ex 9.5). She did not know whether she may have made mistakes in the information she recorded concerning the plaintiff. She agreed that nowhere in the notes did she identify that she was referring to the last three fingers of the left or right hand and therefore her notes were deficient. She accepted that it was possible that she had made mistakes when preparing the notes.
Ms Tong agreed that she had no recollection of what fingers were being complained of by the plaintiff, nor could she provide an explanation for writing that had been crossed out or written over in the notes.
In respect of her notation "tender and tightness finger E ("extensor digitorum"), Ms Tong agreed that she had not identified which finger that finding related to. She then agreed that her notes would be considered by her peers to be deficient.
Cross-examination on the second page of the notes demonstrated that the "treatment" she recorded was actually advice for the plaintiff to go back to see the GP and refer to a hand physiotherapist if necessary. Finally, Ms Tong could not remember whether her note about "exercise nerve glide" referred to something that she recommended the plaintiff should do after the consultation.
There was no re-examination.

The expert medical evidence

Both parties relied on expert opinions offered by hand surgeons. For the plaintiff, Dr David Dilley, was a treating hand surgeon who provided a number of reports. The plaintiff also relied on reports from Professor Conolly. The defendant relied on reports from Dr Kapila, who provided two reports. The specialists met at court before giving evidence, and gave concurrent evidence. Notwithstanding that the court requested that the doctors identify areas of disagreement with some precision before that evidence, their evidence proceeded on the basis of a list of five topics, which are referred to below. Before I refer to that concurrent evidence, it is important to identify the various opinions expressed by the doctors and relied on by the parties.
The plaintiff was referred by Dr Sinha to Dr David Dilley, hand surgeon, who examined him on 11 October 2012. In a report dated the same date, Dr Dilley recorded the following history: "He tells me was assaulted with a knife almost 12 months ago. He reported that he grabbed the knife with his left hand as he thought he would otherwise be stabbed in the stomach. As he grabbed the knife he said "blood spurted everywhere". He was subsequently seen by ambulance officers and someone at a medical centre, who told him that "it would be alright" and he did nothing more about it, despite the fact that he could not flex the finger. He subsequently developed hyper-extension of the PIP joint (sic)."
On examination, Dr Dilley noted a well healed scar just proximal to the flexion crease of the PIP joint. Light touch sensation was normal and the doctor opined that this was "despite the fact that quite clearly he had severed both the profundus tendons and the superficialis tendon". There was no clinical evidence of nerve damage.
The plaintiff's main functional problem was his inability to use the keyboard due to hyperextension at the PIP joint. Dr Dilley further opined that the plaintiff had four options; first, to live with what he had; secondly, to use a splint to prevent hyperextension; thirdly was surgery being tendonesis or fusion of the PIP joint; and finally, surgery by way of reconstruction of the tendon pulleys, stabilisation of the joint and a two-stage tendon graft. Dr Dilley described that as "long, involved and complicated". At that time, the plaintiff chose to proceed by way of appropriate fitting of the splint.
Dr Dilley re-examined the plaintiff on behalf of his solicitors, on 27 March 2014. On examination, the function of the deep and superficial flexor to the left long finger was absent. Further, a "swan neck" deformity was noted in the finger. In answer to specific questions, Dr Dilley provided the following opinions: 1. It was more likely than not that the complete division of the deep and superficial tendons to the left long finger occurred at the time of robbery on 16 October 2011. 2. Aside from the laceration itself being present on the finger, there would have been an inability to actively flex the finger into the palm of the hand. Flexion of the proximal and distal interphalangeal joints would have been absent. 3. It is more likely than not that those signs would have been present on 17 October 2011 when the plaintiff was examined by the defendant. 4. If the complete laceration of the FDP and FDS tendons had been diagnosed on 17 October 2011, and the plaintiff had been referred to a hand surgeon, it is almost certain that a surgical repair of the tendons would have been undertaken. 5. It is more likely than not that the plaintiff would have had a successful suture of the tendons.
Dr Dilley, however, cautioned against the assumption that the plaintiff would have had a perfect outcome, with a "normally functioning left third finger, left hand. Many patients experience ongoing problems with adhesion formation, stiffness, lack of grip and a 'normal hand' is by no means guaranteed".
In a separate report dated 11 April 2014, Dr Dilley assessed the plaintiff's whole person impairment, due to the injury to his left long finger, as 8%.
In a report dated 20 August 2014, Dr Dilley set out the plaintiff's options for treatment as first, continuing with the splint, which he had found useful initially; and secondly, the second surgical option referred to above. The prognosis for any surgery with tendon reconstruction, however, was guarded. Dr Dilley noted that the plaintiff was reporting flashbacks and pain going up his arm which could not be explained by the physical injury to his finger. Dr Dilley advised that should the plaintiff decide to undergo surgery, if that was to be under his care, Dr Dilley would want him to be in a better "head space" than he presently enjoyed. He noted that he was seeking appropriate counselling.
In a report dated 23 February 2015, Dr Dilley responded to opinions expressed by Dr Kapila, on behalf of the defendant, dated 9 December 2014 and 2 February 2015, together with a report from Five Dock Physiotherapy and clinical records of the Five Dock Medical Centre in relation to treatment provided by the defendant on 17 October 2011. Dr Dilley noted that his history was "somewhat at odds" with the history recorded in the physiotherapist's notes. He set out the possibilities as follows: 1. "The flexor tendons were completely lacerated at the time of the injury, and this was missed on the examination of both the defendant and Ms Tong. This could be explained by a "trick movement", which I have seen patients use, whereby the long finger is trapped between the right and index finger and passively moved into flexion by active flexion with the adjacent digits (this is one possible explanation). 1. The profundus tendon was completely severed at the time and the superficial tendon partially severed, and later ruptured. 2. Both tendons were partially lacerated at the time, and went on to rupture subsequent to the original injury. While this is theoretically possible, it is less likely than (b)."
Dr Dilley concluded that, on the balance of probabilities, both tendons were completely divided at the time of the initial injury, based on the history given to him by the plaintiff.
In a further report dated 27 May 2015, Dr Dilley commented on a number of police photographs of the plaintiff which had been forwarded to him for his consideration. He opined that nothing in the photographs changed the opinions that he had expressed in his previous reports.
In a further report dated 4 December 2015, Dr Dilley was asked to opine on whether the plaintiff would have difficulty using a computer keyboard as required of him in the IT industry field. Dr Dilley properly conceded that he was not aware of the standard of typist the plaintiff was at the time of his injury, nor any particular standard of typing required across the IT industry. He did not think the plaintiff would have effective use of the left long finger while using a keyboard.
Associate Professor W B Conolly, AM, provided reports dated 28 June 2014 (two reports), 29 June 2014, 25 July 2014, and 25 February 2015. Associate Professor Conolly first examined the plaintiff on 25 June 2014. He took a history that the plaintiff was assaulted and in the assault he sustained a laceration to his middle finger, and was bleeding from the wound. He had first aid treatment, and on the following day he attended a medical centre (i.e. the defendant), and a diagnosis of a cut to his hand was made.
Associate Professor Conolly confirmed that the plaintiff's left middle finger had a swan neck deformity with PIP extension and DIP flexions. His opinion was that from the assault injury on 16 October 2011, the plaintiff had suffered loss of function of the FDP and FDS tendons of his left middle finger with secondary deformity at the PIP and DIP joints.
In his report dated 28 June 2014, Associate Professor Conolly provided the following opinions: 1. "It is more likely than not that the third (middle finger) flexor digitor profundus (FDP) and superficialis (FDS) tendons were completely lacerated at the time of the robbery on 16 October 2011. 2. The physical deformity and the examination findings are consistent with a complete laceration of the FDP and FDS tendons of the left middle finger resulting in a swan neck deformity, with a hyperextension of the PIP joint and the flexion deformity of the DIP joint. 3. The signs outlined in paragraph (2) may not have all been present on October 17th, the day after the injury, because these signs take a little while to develop. What would have been present is the failure of active flexion of the PIP and DIP joints. 4. If the complete laceration of the FDP and FT tendons had been diagnosed in October 17th, 2011, and if Mr Khan had been referred to a Hand Surgeon, surgical repair would have been advised. 5. If these tendons had been repaired by a surgeon with experience in surgery of the hand, more likely than not, Mr Khan would have retained if not normal, but certainly good function of his left middle finger and hand. 6. Because of the severe deformity of the left middle finger, the entire left hand function is being affected, giving secondary muscle tendon imbalance and stress in his forearm and arm, causing him generalised anxiety and a stress situation, all of which combined, gives him the pain he describes. 7. Mr Khan needs to have the appropriate surgical treatment and prognosis would be of say a functioning left middle finger and hand. 8. Given effective hand surgery and post-operative rehabilitation with an experienced hand therapist, he should be able to return to his employment in customer service and to his chosen career on IT using a keyboard."
Associate Professor Conolly assessed the whole person impairment at 7%.
In his report dated 25 July 2014, Associate Professor Conolly described the surgical options available to the plaintiff as including a two-stage flexor tendon graft of the left middle finger, following which he should regain a two-thirds range of movement of the left middle finger. Further, if the plaintiff had been operated on in the period immediately following the assault on 16 October 2011, the most likely surgical procedure would have been a direct and primary flexor tendon repair of both the FDP and FDS tendons and he could have expected a three-quarters range of movement of that left middle finger. The appropriate cost of surgery and post-operative rehabilitation would now be in the order of $7,000.00.
In response to Dr Kapila's report of 9 December 2014, Associate Professor Conolly, in a further letter dated 25 February 2015, commented that Dr Kapila had noted that when he reviewed the notes of Ms Tong and Dr Rathjen, he presumed the tendons were partially lacerated, and went on to say: "That one might presume that a complete rupture of the tendon could have occurred from January 31st, 2012, until January 4th, 2012. (sic)"
Dr Kapila's reports did not cause him to alter the opinion he had expressed previously.

Defendant's expert hand surgeon - Dr H P Kapila

The defendant relied on two reports of Dr H P Kapila dated 9 December 2014 and 2 February 2015. Dr Kapila examined the plaintiff on 9 December 2014 and took a history that during the hold-up, the plaintiff instinctively grabbed the end of the knife in fear of being stabbed, and a struggle ensued. The plaintiff let go of the knife and sustained lacerations of his left index and middle fingers. Following his examination of the plaintiff, in answer to a question from the defendant's solicitors as to what he considered was the likely timeframe for complete laceration of the tendons, Dr Kapila opined: "Since I did not examine Mr Kahn immediately after his injury, it is difficult for me to say whether there has been a complete laceration of the tendons, but my experience tells me that on the probability, the tendons were severed at the time of initial injury."
That opinion was based on the fact that Dr Kapila had not seen any documentation of a clinical examination convincing him that the tendons were functioning to some extent immediately after the injury.
Dr Kapila went on to opine that if the tendons were partially lacerated, it was highly unlikely that the physiotherapist had any impact on the extent of the lacerations.
When asked what treatment the plaintiff ought to have undergone following the incident, Dr Kapila opined: "If there was any doubt of injury to the flexor tendons, then exploration should have been carried out to ascertain if there was partial or complete laceration of the tendons. Even if it was done a few days after the injury, then a satisfactory result could have been achieved. If the tendons were found to be partially or completely cut, then direct repair could have been possible. If it is left for more than four to six weeks, then it becomes harder to directly repair the tendons and other surgical procedures may need to be carried out, which may include two-stage tendon grafting."
Dr Kapila opined that had the plaintiff undergone surgery close to the date of injury, then there would have been an eight to ten week post-operative period during which he would have been unable to use his hand effectively.
In his second report dated 2 February 2015, Dr Kapila had access to the clinical notes of the physiotherapist, Ms Tong, in which there was no mention of any scars on his fingers in her examination. Further, those notes included that the plaintiff had active flexion of the MCP joint, proximal and interphalangeal joints. The physiotherapist's interpretation was that the flexor tendons were intact. Dr Kapila stated that there was no information provided in Dr Rathjen's findings that would indicate to him that the tendons were intact and that going on the physiotherapist's findings, "he would have to presume that the tendons were partially lacerated at that stage".
Dr Kapila was asked the following question by the defendant's solicitors: "Q: Bearing in mind the findings of Ms Tong and the fact that Dr Sinha recorded only palmar pain on 4 January 2012, and only noted loss of DIP flexion of the third finger on the left hand when he saw the plaintiff on 31 January 2012, are you able to say when it is likely that the complete laceration of the tendons occurred?
Dr Kapila responded: "A: Presuming that there was flexion at the DIP joint of the third finger on examination on 4th January 2012 by Dr Sinha (although there is no concrete written evidence to prove an injury to the tendons either way) and there was loss of flexion of the DIP on 31/1/12, one could presume that complete laceration (complete rupture) of the tendon could have happened between these two dates."

The concurrent evidence of the hand surgeons

The parties agreed to the three hand surgeons giving concurrent evidence in respect of the following five topics: 1. Anatomy of the hand/finger 2. The plaintiff's presentation/nature of injury 3. Examination and diagnosis 4. Surgery 5. Other sequelae of the injury The list was marked for identification as MFI 6.
The doctors first marked Ex L with the various anatomical descriptions. All three hand surgeons agreed that the history was quite consistent with the injury suffered by the plaintiff, namely, that he grasped a sharp knife with the left hand. The plaintiff had given evidence that within a period of hours after the incident where he grasped the knife, he was unable to move his left middle finger. Both Dr Dilley and Dr Kapila agreed that that was consistent with complete severance of the FDP and FDF tendons and Associate Professor Conolly was of the opinion that overall, it was consistent. Counsel for the defendant put to the doctors that, in the event of severance of the two tendons, it would be physiologically impossible for the tendons to be flexed without surgical intervention for the hand to be closed into a fist, or anything approaching that. Dr Dilley was of the opinion that that was not correct, and that the injured finger could track in passive flexion with the adjacent uninjured fingers. All three witnesses agreed that even with severed tendons, the plaintiff would have been able to actively extend his finger.
When asked about the findings of the ambulance officer on examination of the plaintiff's left hand, that there was no loss of motor function, all three witnesses agreed that meant the plaintiff could open and close his fist. "Nil sensory loss" meant that the nerves running in the front of the finger were not injured. Dr Dilley expressed a caveat to that examination as follows: "I would expect that an ambulance officer would screen because his main function is to preserve life and limb. He's not interested in the minute details of any particular injury and I would imagine his method of examining motor function of the hand would simply be to ask the patient to make a fist and extend all the digits. One of the caveats I've made in one of my reports is the particular of the middle digits, the patient can occasionally trap the injured finger between the outside digits and thus mimic an intact functioning finger."
All three witnesses agreed that upon presentation to the physiotherapist, three or so weeks following the injury, active flexion of the plaintiff's left hand involved the left hand and fingers opening and closing. When asked by counsel for the defendant whether that indicated whether the tendons had been severed or not, Dr Kapila gave evidence that: "If the plaintiff could make a fist, that meant the tendons must be either completely or partially intact."
Professor Conolly totally disagreed with that statement and stated: "A tendon can be severed 90% and the remaining 10% can still bend the finger."
Dr Dilley reiterated his evidence that the injured finger could track the other fingers on the hand and mimic an active movement.
All three witnesses agreed that if there was complete severance of the tendon, the plaintiff would still have some flexion of the middle finger at the first joint, i.e. the MCP, because flexion of that joint is carried out primarily by the lumbricals muscle. All three witnesses also agreed that the flexion observed by the physiotherapist three weeks after surgery depended on how detailed the examination was.
All three witnesses agreed that upon resisted testing in the event of partial rupture of the tendons, there would be pain.
All three expert hand surgeons agreed that following injury involving laceration to a tendon, there was a window of opportunity where, by surgical repair, a better outcome is achieved for the patient within the first two or three days, compared to a repair done later. Dr Kapila proffered that a period of two weeks was ideal but it was possible for a repair to be carried out after six weeks following injury.
All three witnesses agreed with the opinions expressed by Professor Conolly in his report dated 25 July 2014, as to the outcomes following surgery (Ex AA, p 48).
The plaintiff gave evidence that he developed symptoms of pain and swelling in the palm of his left hand in November or December 2011. All three expert witnesses agreed that those symptoms were consistent with a complete laceration of the two tendons of the left middle finger occurring in October 2011. As to the plaintiffs complaints of pain across the anterior part of his wrist and the posterior aspect of his wrist, Dr Dilley gave evidence that it was difficult to tie that pain directly to the tendon injury per se, however, pain can manifest in a number of ways and depended on the patient's perception of pain. In agreeing, Professor Conolly added a rider to the effect that the hand and arms are very sensitive structures, highly connected to the cerebral cortex in the brain, which could lead to a patient experiencing those symptoms. Such pain may be referred to as non-organic because the medical profession does not understand it.
Dr Dilley gave evidence about the information he conveyed to the plaintiff in October 2012 about the potential risks or complications associated with the two-stage tendon graft procedure. That involved two procedures over a period of three months, together with physiotherapy, which could extend for between six to twelve weeks following the second procedure. Both Professor Conolly and Dr Kapila agreed with Dr Dilley's management of the plaintiff's condition and his opinion as to the treatment options.
Dr Kapila agreed that the physiotherapist's notes indicated no injury to the left middle finger and no abnormality whatsoever to it.

The plaintiff's peer review evidence

The plaintiff relied on two reports of Dr James Jeong dated 15 March 2014, and 11 March 2015 (Ex AF). A further report of Dr Peter Hay dated 9 March 2015 was admitted over objection on 3 February 2016 during the trial. - see separate judgment, Khan v Rathjen (No. 2).
Dr Jeong, in his report of 15 March 2014, noted that within the defendant's clinical notes of 17 October 2011, there was no history of how the knife injury occurred. However, Dr Jeong referred to the defendant's statement to police made on 20 August 2012, in which the defendant stated: "Mr Khan stated that during the course of the alleged robbery he grasped the knife of the alleged assailant with his left hand in an attempt to protect himself, thereby cutting his hand on the blade."
On the basis of that history, Dr Jeong was of the opinion that there would have been significant force involved in that action, giving rise to the possibility of deeper, more significant lacerations and its associated potential of complications, including injuries to the tendons, nerves and arteries. Dr Jeong was of the opinion that a reasonable general practitioner in those circumstances should have examined so as to address the integrity of the tendons, nerves and circulation, and to document his clinical findings. Dr Jeong was of the opinion that had an appropriate examination been carried out, it would have led to a diagnosis of the complete laceration of the FDP and FDS tendons. Dr Jeong was of the opinion that a reasonable general practitioner in the position of the defendant should have referred the plaintiff to a hand surgeon and/or the emergency department of a hospital for consideration of repair of the tendons.
In his second report dated 11 March 2015, Dr Jeong responded to the report of Dr Ratner dated 12 December 2014, and the assumptions relied on by the defendant which are outlined therein. Dr Jeong stated that the defendant's clinical notes simply do not reflect any evidence of concern shown for possible neurovascular or tendon damage, the findings which would have been documented by an ordinary skilled general practitioner, whether the findings were positive or negative.
Dr Jeong disagreed with Dr Ratner's opinion that "a partial division of the tendons may have resulted in the test conducted being normal at that time", meaning the time of examination. Further, Dr Jeong disagreed with the statement of Dr Ratner as follows: "In the absence of evidence of damage to deep structures of the hand, as demonstrated by Dr Rathjen's apparent negative findings, there was no need to refer the plaintiff to a hand surgeon or an emergency department."
In his report dated 9 March 2015, Dr Peter Hay opined that the examinations by the defendant of the plaintiff on 17 October 2011, and on 25 November 2011, fell well below the accepted standard for a GP practising in Australia. The presenting history should have rung alarm bells in the defendant's mind as to the significant possibility of a deep laceration to the plaintiff's hand and subsequent likelihood of a tendon injury.
Dr Hay noted that none of the history appeared in the defendant's medical notes. It was incumbent on the defendant to undertake a detailed history of the events and it was imperative for the defendant to undertake a full examination of the affected fingers. The most important tests which allude to a tendon injury are pain on resisted flexion, and any reduction in movement of the affected digit. The defendant's notes completely omit any physical findings relating to the motor and sensory function of either the middle or ring finger on the plaintiff's left hand. It was Dr Hay's opinion that the defendant should have urgently referred the plaintiff to a hand surgeon or a casualty department on 17 October 2011.

The defendant's peer review evidence

The defendant relied on a report of Dr Ruth Ratner dated 12 December 2014. That report noted that she had been qualified with a set of assumptions, together with other relevant clinical records and reports of Dr Dilley and Dr Jeong. Dr Ratner noted the content of the clinical notes made by the defendant on 17 October 2011. She relied on the assumptions that the defendant conducted tests to ascertain the neurovascular status of the plaintiff's hand, and whether the plaintiff had any damage to his tendons and nerves by: "(i) Testing capillary refill; (ii) Testing whether the plaintiff could feel light touch of fingers on the injured hand; (iii) Asking the plaintiff to open and close his hand and make a fist; (iv) Closely looking at each finger separately to see if there deeper involvement; (v) Assessing the flexion of the metacarpophalangeal joint; (vi) Assessing the flexion of the middle finger by holding the other fingers in extension and asking the plaintiff to flex the middle finger to isolate the flexor Digitorum Profundus and the flexor Digitorum superficialis; (vii) Assessing flexion at the distal phalangeal joint."
Dr Ratner accepted a history that on review on 25 October 2011, the plaintiff did not complain of having any deformity of the hand, but only complained of pain.
Dr Ratner opined as follows: "(i) The tests that the defendant stated he conducted were appropriate. (ii) The examination the defendant made as stated in the assumptions was adequate to identify damage to tendons, nerves and blood vessels and therefore the defendant properly examined the plaintiff's left middle finger on 17 October 2011. (iii) Neither the ambulance officers examination, or the examination of the defendant or Dr Sinha, demonstrated a complete laceration of the tendons, therefore she did not consider that the defendant failed to diagnose the laceration. (iv) In the absence of evidence of damage to the deep structures of the plaintiff's hand, there was no need to refer the plaintiff to a hand surgeon or emergency department. (v) It was therefore her opinion that the defendant's management of the plaintiff would at the time be widely accepted in Australia by peer professional opinion as a competent professional practice."

The conclave

On 3 February 2016, the three general practitioner witnesses met at court to discuss a list of questions agreed by the parties' legal representatives (Ex R). Those questions and the parties' record of the answers (Exs S and T respectively), are reproduced as follows: 1. If the plaintiff described the history of injury as sustained lacerations to the index finger and middle finger of the left hand after grasping a knife while the victim of an armed robbery, causing significant bleeding, pain and loss of movement in the left middle finger, do you agree that the defendant practising acceptable medical practice should have referred the plaintiff to a hospital with a hand unit, or to a hand surgeon? Answer: All experts agreed "Yes". 1. If the plaintiff gave the above history in one, but did not inform the defendant that he was unable to move his left middle finger and the defendant asked him to make a fist, which he could not then do if the left middle finger, i.e. he could not oppose the tip of the left middle finger to the palm of the hand, should there have been a referral? Answer: All three agreed, "Yes". 1. If the plaintiff provided the history above in (2), and if the defendant performed the investigations set out in his assumptions/defence, if the FDP and FDS tendons were totally severed, should the defendant have been able to detect abnormality and referred the plaintiff? Answer: All three agreed, "Yes". 1. (a) Is it acceptable practice of a general practitioner in a situation that involves a laceration to a finger involving a knife, to examine and assess for injuries to a tendon? Answer: All three agreed, "Yes". (b) If so, what test that practice requires? Answer: Assess range of movement and power. All agreed (c) Should the history of injury alone, combined with cursory examination to confirm the presence of lacerations, have led to referral, i.e. to a hand unit etc? Answer: Needs to be discussed depending on history re mechanics of injury. 1. Should the defendant's examination of the plaintiff's left middle finger have included separate assessment of the FDP and FDS? And should it have included flexion against resistance, i.e. by the doctor placing his fingers across each joint to test flexion at each joint against resistance? Answer: All three agreed, "Yes". 1. Should a general practitioner have appreciated that reduction in power or pain caused in such testing suggest tendon injury requiring referral? Answer: Dr Jeong and Hay agreed. Dr Ratner disagreed and stated "the proposition needs discussion". 1. If there was only partial laceration of FDS and FDP, would resistance testing of the kind referred to in (5) above in the preceding question, probably have identified abnormality leading to referral? Answer: Not agreed. 1. Should a GP have appreciated that excessive pain with active and resisted movements, of the joints of the finger, is suspicious of tendon injury? Answer: All three agreed, "Yes". 1. Do practice articles in Australian Family Physician and the Journal of RACGB generally reflect accepted standards of general practice? Answer: All three agreed, "Yes". 1. Is it agreed that a detailed history is required of the mechanism of the hand injury because it gives important clues of structures involved and potential complications? Answer: All three agreed, "Yes". 1. Should notes of assessment of an injury of this kind include a record of type of examination and positive and negative findings? Answer: All three agreed, "Yes". 1. Should a GP armed with the history of injury have appreciated the possibility of partial tendon injury, that the injury could extend to a total severing of the FDP and FDS tendons, so that a partial tear had to be positively excluded, and if so by what means? Answer: No agreement, for discussion.

Peer review - concurrent evidence

Drs Jeong, Hay and Ratner gave concurrent evidence. Each gave evidence of their qualifications and experience.
Dr Jeong gave evidence about assessing range and movement on clinical examination of a finger injury caused by a knife wound. Two classic symptoms a general practitioner would be looking for were weakness on resisted movement and pain. Dr Hay agreed, but noted that upon examination you could still have a range of movement in the finger, notwithstanding that one tendon had been impaired and the other not. Dr Ratner agreed.
The witnesses agreed that they could not agree to question (4)(c) outlined above because of the different history given by the defendant's solicitors to Dr Ratner, namely the assumptions upon which the defendant relied, which was different from the history given by the plaintiff. Dr Ratner did agree that it would be important for a general practitioner acting reasonably to seek to illicit a full history from the patient if the patient presented and said "I've been the victim of an armed robbery, and during the robbery I grabbed a knife to protect myself".
The witnesses disagreed on question 6 because Dr Ratner felt they needed to have an indication of the amount of pain or amount of flexion that would give rise to the need for referral. Dr Jeong disagreed because if there was any reduction in power or pain, it was indicative of tendon injury and required referral.
When asked to comment, Dr Hay gave evidence that the history was "so defining", meaning that with the history of the patient being attacked with a knife, and the knife getting stuck in his hand, with profuse bleeding, a GP could not adequately examine the finger and had to exclude a tendon injury. The risk was that a GP might miss something, even with appropriate testing, and therefore the patient should be referred on.
Dr Ratner agreed that a laceration on the anterior or palmar surface of the middle finger was the type of injury which a general practitioner ought to anticipate could lead to a tendon injury.
Dr Ratner also agreed that there was potential confusion for a GP in identifying a tendon injury, by reason of the fact that there were two tendons operating to enable flexion of three separate joints, and that that potential for confusion should be uppermost in the general practitioner's mind. Further, Dr Ratner agreed that that would emphasise to a reasonable general practitioner the importance of eliciting a full history.
In further cross-examination from counsel for the defendant, Dr Jeong agreed that the key to making sure that there is a thorough examination is a thorough history before examination. He gave evidence that the practice of medicine was according to what a general practitioner did not want to miss, rather than what he thought a problem was. To that effect he said: "What we actively needed to exclude was the presence of a tendon injury, irrespective of whether it was there or not."
In the case of a knife injury, there would be a high suspicion, that a problem would be potentially located deeper within the finger. Dr Hay agreed. Dr Ratner also said it should be considered. All doctors agreed that a thorough examination to exclude potential tendon injury would involve active testing of the hand and finger involving passive movement. Dr Hay gave this evidence in relation to what ordinary good practice requires of a general practitioner when a patient attends with a laceration caused by a knife in a robbery: "… The history is the critical point here and the examination can help confirm the suspicion that a negative examination doesn't exclude a possible diagnosis. So there in this situation, this patient, with possible tendon injury, I cannot … go to sleep at night and be absolutely certain that this patient has not got a tendon injury, then I would prefer to be cautious and refer the patient for appropriate examination by someone who has more expertise than I certainly do."
All the witnesses agreed that a general practitioner is capable of doing an examination which would reveal a partial rupture of the tendon by way of testing weakness and pain. All expert witnesses agreed that if there was abnormality on resistance testing, suggestive of a partial tear, the next step must be referral to a hand specialist or a hand unit at a public hospital, to diagnose the extent of the injury and determine what treatment is required.
In respect of determining the extent of a partial tendon injury (question (12)), Dr Hay was of the opinion that that was not the responsibility of the GP, but was something within the competence of a hand surgeon. Dr Ratner said she could not disagree, however, if the history of the injury was such that there was a possibility of partial tendon injury, but on examination there were no signs (i.e. the examination was "satisfactory"), there was no need to pursue any further investigation. Dr Ratner agreed, however, that the examination should include resisted testing.

Factual findings

I make the following findings: 1. The plaintiff suffered an injury to his left middle finger during an armed robbery at his place of work on 16 October 2011. 2. That injury occurred when the plaintiff grabbed the knife directed at him to avoid being stabbed. 3. The plaintiff held the knife tightly so as to deflect its path, and in doing so, suffered a laceration to his left middle finger near the PIP. 4. When withdrawing the knife, it became momentarily 'stuck' in the plaintiff's finger. 5. The plaintiff was treated by ambulance officers who dressed the wound and advised him to go to hospital, or seek medical treatment from his local medical officer. 6. The plaintiff's employer, in an attempt to avoid making a workers compensation claim, took the plaintiff to the defendant's surgery the next day, 17 October 2011, and offered to pay (and did pay) for his consultation. 7. At the examination on 17 October 2011, the defendant did not carry out an examination in accordance with the set of assumptions relied on by the defendant, and with which the defendant's experts Dr Kapila and Dr Ratner were qualified. 8. I accept the plaintiff's evidence that the defendant's examination of his left hand did not include an opening of the wound to examine the internal structures, i.e. nerves, tendons and muscles of the finger. 9. I further find that the plaintiff was passed by the defendant to the practice nurse to have the Histoacryl glue applied to his finger, and a tetanus shot. 10. The plaintiff was advised by the defendant to seek physiotherapy treatment although no referral was written for the Five Dock Physiotherapy practice. 11. On 25 October 2011, the plaintiff consulted the defendant. At the time of that examination, the examination of the plaintiff's left middle finger was cursory, as the Histoacryl was still in place, covering the wound. The emphasis was on his psychological condition, the defendant having extensive experience in the treatment of post-traumatic stress disorders as a result of his previous employment in the Army, and his deployment as a doctor to war zones. 12. I find that the two tendons in the plaintiff's left middle finger were cut in the incident, and on the balance of probabilities, were severed completely. This was confirmed by the x-ray carried out by Dr Dugal in October 2012. Further, all the hand surgeons agreed that the development of the plaintiff's hand symptoms within a month or two of the laceration was consistent with a complete severing of the tendons in October 2011. 13. The examination by Ms Tong, the physiotherapist, does not establish that the tendons were not severed. She was very inexperienced, her clinical notes were either factually wrong (i.e. no history of the armed hold-up), and/or deficient, and her memory of the examination unreliable.
In arriving at these findings of fact, I have accepted much of the evidence of the plaintiff, who was an intelligent and impressive witness. It is clear that I have not accepted some of his evidence, for example, that the ambulance officer offered to stitch the wound. However, it is understandable that the plaintiff, having been subjected to a violent attack with a knife during an armed robbery, would have been in a state of shock following that event. I also do not accept his evidence to the effect that on 17 October 2011, during his examination, the defendant did not touch his left middle finger. The defendant must have done so, so as to clean the wound. Nor do I accept the plaintiff's evidence that the defendant told him, when the plaintiff said he could not move his finger, that it was "a cramp".
I do not accept the defendant's evidence set out at [115] above, as to the history he took when he first saw the plaintiff on 17 October 2011. Namely, that during the armed robbery, he tried to protect himself by placing "his hand cupping the knife around the bottom with like not touching the knife, but cupping the knife and trying to move the knife away by pushing on the flat surface or the side of the knife …"
That description did not accord with the clinical note of the defendant at the time, namely, "laceration post knife injury", which was the diagnosis recorded by the defendant in his clinical notes (Ex 5). Nor did it accord with the defendant's statement to the police (Ex 6), in which he stated the following history at [4]: "Mr Khan stated that his sustained the injuries during an alleged armed robbery at the petrol station where he was working. Mr Khan stated that during the course of the alleged robbery, he grasped the knife of the alleged assailant with his left hand in an attempt to protect himself, thereby cutting his hand on the blade."
Nor did the defendant's evidence accord with his statement to the workers compensation insurer, CGU, contained in Ex 7, where he recorded the following history: "Mr Khan stated that he received his injuries when the service station he was working in was held up by a man with a knife. Mr Khan sustained injuries to his left hand when he grabbed the knife of the alleged assailant in order to protect himself."
Nor did it accord with the defendant's own statement to his solicitor which formed the basis of the assumptions upon which the defendant's experts relied (Ex 8). In that document he recorded the following history: "3 … he had sustained lacerations to his left hand during the robbery. He explained to me that the assailant came from behind him and held a knife at his side with the blade parallel to his body. He tried to pull the knife away from himself in an effort to protect himself and in so doing, sustained lacerations to his left hand."
The defendant's evidence that the plaintiff had told him he had placed his hand "cupping the knife around the bottom, with like not touching the knife" in an effort to push the knife away was entirely exculpatory and designed to minimise the likelihood of the plaintiff suffering a deep laceration to his finger in the armed robbery.
As accepted by the defendant, his clinical notes of the examination were grossly deficient. Even so, the defendant's evidence about his examination of the plaintiff's left hand as set out at [116] above, merely sets out a visual inspection of the wounds without any internal examination to determine any impairment of the underlying structures. Rather, the defendant relied on what he stated was the plaintiff's inability to "make a fist", without any obvious difficulty or deformity. He further assessed the neurovascular status of the injured fingers. The defendant then gave evidence of a positive pain test and then set out what he did to inspect and observe the wound to determine how deep it was (see [117] above). I do not accept the defendant's evidence that he went on to individually test both FDP and FDS tendons in order to evaluate independently their function. There is no reference whatsoever to that testing taking place in his clinical notes, which, whilst admitting their inadequacy, the defendant explained away by stating that it was a busy day and he had intended to finish the notes at the end of the day.
I do accept the defendant's evidence that at the time of the initial examination on 17 October 2011, he was more concerned about the plaintiff's psychological trauma as a result of the armed robbery than his hand. By the time of his examination on 25 October 2011, the opportunity for inspecting the internal structures of the finger had been lost because of the application of the wound glue Histoacryl. By that time, the plaintiff was obviously significantly distressed and the defendant's training led him to focus on that aspect of the matter.
I do not accept the defendant's evidence of the first examination on 17 October 2011 based on his usual practice in assessing patients for musculo‑skeletal or suspected tendon injuries. In Elayoubi v Zipser [2008] NSWCA 335, Basten J said, in relation to evidence of usual practice at [87]: "Evidence of usual practice may be of assistance in circumstances where mechanical steps or routine tasks are in issue and the witness who supposedly undertook the task on a particular occasion has no recollection of the occasion. The weight to be given to such evidence will depend upon the possibility or likelihood of departure from such practice. However, the present case was not concerned with mechanical step or routine task: it was concerned with a quite unusual procedure in professional practice. Nor is the task itself in any sense mechanical: rather, it involved conveying important medical information to a patient in a hospital ward." So too here, the plaintiff's presentation was unusual in the defendant's professional practice as a general practitioner. His examination of the plaintiff was neither mechanical nor routine. Rather, his evidence was motivated by a desire to exculpate himself from the plaintiff's claim that his professional conduct had been deficient. He was forced to concede that on the basis of the agreement between the expert hand surgeons, that the tendons were damaged during the course of the armed robbery when the plaintiff grasped the knife, by the knife passing through the outer layers of the finger (see [144] above).
Further, I do not accept the defendant's evidence that he had a recollection of writing up his notes, and that the mistake he made was referring in those notes to "positives only", meaning that, after coming to his conclusion following examination, it was not necessary to include all of the examination history as the plaintiff had an appointment to see him the following week (see [150] above). I find that the defendant was reconstructing his memory of that consultation in a way so as to avoid criticism of his treatment of the plaintiff, save for the deficiency of his clinical records.
By the time of the examination on 25 October 2011, the opportunity for discovering the lacerated tendons had been lost, due to the application of the Histoacryl glue, and I therefore have found that the defendant's examination of the wound on that occasion was cursory only. The defendant's denial that he advised the plaintiff to have physiotherapy treatment could only be based on his wish to exculpate himself, again, on the basis that there was no injury to the tendons.
To the extent that the plaintiff did demonstrate movement of his left middle finger during each examination by the defendant, I accept the evidence of Dr Dilley that that movement was made possible by the ability of the finger to track impassive flexion with the adjacent uninjured fingers. Further, as set out above, all expert hand surgeons agreed that even with severed tendons, the plaintiff would have been able to actively extend his finger.
I also find that the defendant's evidence was somewhat unreliable in respect of the following matters: 1. His evidence that he applied the wound glue Histoacryl when the clinical records showed that it was the nurse who did so. 2. The defendant's evidence as to the numerous other cuts on the plaintiff's hands could not be accepted in the face of the ambulance record of "nil other injuries", referred to in [15] above, and the plaintiff's denial of those injuries. 3. His conflicting evidence as to whether the plaintiff had arranged to return to see him on 25 October 2011, which he denied, and his explanation for the paucity of his notes, namely, that he was to flesh them out following his re-examination of the plaintiff on that occasion. 4. His evidence in respect of his discussion with the plaintiff and his employer about his workers compensation entitlements, and the fact that he spoke to the employer by phone, which was denied by Mr Dagher (see [108] to [109]).

Did the defendant breach his duty of care

Sections 5B and 5C of the CLA provide as follows: "Division 2 Duty of care 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. 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."
It was not in dispute here that the defendant owed the plaintiff a duty of care and that the scope of that duty of care was for the defendant to take reasonable care as a competent general practitioner in providing a diagnosis and treatment, including provision of advice, to the plaintiff.
The first step pursuant to s 5B(1) is to identify the risk of harm involved here. Properly identified, the risk here was that the plaintiff would suffer permanent injury to his left middle finger if the defendant failed to identify a likelihood that he had suffered an injury to either one or both of his tendons. That risk was both foreseeable and not insignificant, pursuant to s 5B(1)(a) and (b).
The "precautions" referred to in s 5B were as pleaded by the plaintiff. Those matters set out in [3(a)] to [3(h)] above. The question then to be determined is whether a reasonable general practitioner in the defendant's position would have taken those precautions, having regard to the matters in s 5B(2) and s 5C.
I accept the evidence of Dr Jeong and Dr Hay, that on the history provided by the plaintiff, given the significant force involved, a reasonable general practitioner in the circumstances should have examined the plaintiff's finger so as to address the integrity of the tendons, nerves and circulation, and to document his clinical findings. The presenting history should have rung alarm bells in the defendant's mind as to the significant possibility of a deep laceration to the plaintiff's finger and the subsequent likelihood of tendon injury and therefore a reasonable general practitioner in the position of the defendant should have referred the plaintiff to a hand surgeon and/or the emergency department of a hospital for consideration of repair of the tendons. By failing to do so, the defendant breached his duty of care to the plaintiff. I prefer the evidence of Dr Jeong and Dr Hay to that of Dr Ratner, which was based on the defendant's set of assumptions, and a wrong history. Ultimately, all three doctors accepted that, with the correct history, the defendant practising acceptable medical practice should have referred the plaintiff to a hospital with a hand unit or to a hand surgeon.
I am therefore satisfied pursuant to s 5B of the CLA, that the defendant breached his duty of care to the plaintiff on 17 October 2011, by failing to properly assess and diagnose the plaintiff's injuries, which led to a further failure to refer the plaintiff on to a hand surgeon and/or to an emergency department at the hospital for review of the left FDP and FDS tendons. That breach was compounded on 25 October 2011 when the defendant again re‑examined the plaintiff and failed to refer him as outlined above.

Causation

Section 5D and s 5E of the CLA provide as follows: "Division 3 Causation 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. 5E Onus of proof In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."
The appropriate test for factual causation pursuant to s 5D(1)(a), is whether, "but for" the breach of the defendant's duty of care, the plaintiff suffered injury. In other words, was the negligence of the defendant a necessary condition of the occurrence of harm - see Strong v Woolworths Pty Ltd (2012) 246 CLR 182. In the circumstances outlined above, the defendant's breach of his duty of care was a necessary condition of the occurrence of harm to the plaintiff who thereby missed the opportunity for appropriate surgical treatment. I accept the evidence of Dr Dilley and Associate Professor Conolly that the FDP and FDS tendons were completely lacerated at the time of the robbery on 16 October 2011, and notwithstanding that all symptoms may not have been present on 17 October, the day after the injury, if the plaintiff had been referred to a hand surgeon then surgical repair would have been advised and carried out within the optimal period, and that the plaintiff would have retained good function of his left middle finger and hand - see Varipatis v Almario [2013] NSWCA 76 at [103]. Dr Kapila, on behalf of the defendant, agreed that if such surgery was carried out a few days after the injury, then a satisfactory result could be achieved, notwithstanding that there would be an 8 to 10 week post-operative period during which the plaintiff would have been unable to use his hand effectively.
I am satisfied that factual causation is made out and further, that it is appropriate for the scope of the defendant's liability to extend to the harm so caused, namely, scope of liability as made out pursuant to s 5D(1)(b). In so finding, I reject the defendant's submission that causation could not be made out by the plaintiff here, on the basis that the court would find, even if he was advised to consult a specialist hand surgeon or an emergency department of a hospital, he would not have done so based on his previous failure to follow the ambulance officer's advice to go to a hospital and, the fact that subsequently in 2012, when recommended to see Dr Dilley, he failed to do so for an extensive period of time. I reject the first part of that submission, as the plaintiff, by consulting the defendant on 17 October 2011, was in effect following the advice of the ambulance officer. He did so at the behest of his employer, whose evidence I accept, to the effect that he was prepared to pay for whatever treatment was recommended at that time. The evidence established that the plaintiff did not consult Dr Dilley because he was impecunious, and only did so after his workers compensation insurer accepted liability for his treatment in late 2012. By that time, the optimal period for surgical treatment and return to good function had long since passed. The defendant's submission elides the clear inference to be drawn that had the plaintiff been referred to an expert hand surgeon, he would have received advice that the surgery was required to be carried within the optimal period.
The above findings of fact, together with my findings of breach of duty of care and causation as set out above, necessarily lead me to reject the opinion of Dr Kapila, on behalf of the defendant, that the complete rupture of the plaintiff's two tendons occurred at some time between the plaintiff's examination by Dr Sinha on 4 January 2012 and his subsequent examination on 30 January 2012. There is no evidentiary basis for such an opinion. It is contradicted by Dr Sinha's statement to the police that the tendons were completely divided at the time of the original injury.

The defendant's defence, relying on s 5O of the CLA

Section 5O provides as follows: "Division 6 Professional negligence 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."
The defendant has pleaded a reliance on s 5O so as to avoid liability on the basis that the defendant acted in a manner which was widely accepted in Australia by peer professional opinion as competent professional practice. In McKenna v Hunter & New England Local Health District [2013] NSWCA 476, Macfarlan JA, (Beazley P agreeing) said at [160]: "To establish a defence under s 5O a medical practitioner needs to demonstrate, first, that what he or she did conformed with the practice was in existence at the time the medical service was provided and, secondly, to establish that practice was widely, although not necessarily universally, accepted by peer professional opinion as competent professional practice."
I am not satisfied on the evidence set out above that the defendant has made good its case. In fact, I prefer the evidence of Dr Jeong and Dr Hay to the effect that the defendant's conduct could not be accepted as competent professional practice and the evidence relied on by the defendant does not establish otherwise. Therefore the defence has not been made out.

Damages

The plaintiff advocated the following schedule of damages: Non-economic loss (35% of most extreme case) $207,000.00 Past out-of-pocket expenses (37,156.57 paid by CGU, the workers compensation insurer, and not required to be repaid and amounts paid by Mr Dagher) - Panadol/Nurofen $500.00 Future out-of-pocket expenses: $7,000.00 (a) Surgery to left middle finger and post-operative rehabilitation (b) Three-month supervised physical conditioning program and hand physiotherapy $5,000.00 (c) Psychological and psychiatric counselling, including a clinical psychologist for cognitive behavioural therapy and anti-depressant medication = $3,000 per annum for 2 years = $57.69 per week x 99.4 (multiplier for 2 years) $5,734.00 (d) Occupational rehabilitation and vocational placement program (x 2) $10,600.00 (e) Pain killer medication at $600 per annum for 10 years = $11.54 per week x 412.9 $4,765.00 Total $22,499.00 Past economic loss: $100,485.00 Difference between potential net earnings as a network administrator or systems analyst (average $1,800 gross per week or $1,329 net per) and actual earnings (average $720 per week) from December 2012 to 1 February 2016 = $609 x 165 weeks Future economic loss: $150,000.00 Buffer (noting annual net income for systems analyst $69,108) Future care: $3,976.00 1 hour per week at $40 per hour for 2 years = $40 per week x 99.4 = $117,672 Total $484,460.00

The defendant submitted that the appropriate assessment for any "orthopaedic complaints" amounted to less than 15% of a most extreme case for three reasons: 1. That the defendant was not liable for the injury the plaintiff suffered in the knife attack. Rather, his omission was the difference between what might have been the outcome had the plaintiff been referred for further investigation than what will be the outcome following the complex surgery the plaintiff has not been advised to undertake (leaving to one side the question of failure to mitigate his damages). 2. It could not be sensibly said that the plaintiff's tendon injury could constitute 15% when compared to a worse case such as a quadriplegic and; 3. The assessment was not inconsistent with the assessment made by the Court of Appeal in Penrith City Council v Parks [2004] NSWCA 201.
With respect to the plaintiff's psychological injuries of PTSD and major depression, the defendant submitted that there was no significant contribution by reason of his finger problems, rather, the significant reasons for his psychological status were the armed robbery itself and his failure to secure a visa that entitled him to work as an IT professional and to remain in Australia.
The defendant submitted that the onus was on the plaintiff to disentangle the various stressors, and that he had failed to do so. This was relevant to the assessment of non-economic loss and also to the claim for medical expenses.
The defendant submitted that for past loss of earning capacity the plaintiff had not established any diminution in his earning capacity that had been productive of any loss. It was submitted that the plaintiff's inability to secure work in the IT field had nothing to do with the injury to his finger. The real reason the plaintiff did not secure work was because he did not have Australian residency. He had failed to obtain any work in the IT industry for 12 months prior to the armed robbery, and in any event, the defendant submitted that work opportunities in the area were limited and there was a high demand for such jobs. The plaintiff's academic results were nothing more than average and he had to compete with large numbers of applicants for each job. Moreover, the defendant submitted that the Immigration rules changed on 1 July 2012, and thereafter, the plaintiff was not capable of meeting the departmental criteria for a professional working visa.
For future economic loss the defendant submitted that the evidence does not support the claim pleaded by the plaintiff. The plaintiff does not have an entitlement to permanent residency and thus has no prospect of finding work in IT. It was submitted that even if he is permitted to remain in Australia to undergo treatment, he will not be allowed to return. There was no evidence to base a finding that he would be able to do so. The plaintiff's evidence was that in fact, he would return to India and work in a call centre.
The defendant further submitted that the plaintiff's claim for paid care into the future, albeit modest, was not supported by the evidence. The plaintiff had not established a need for such care and it would be unrealistic and impractical to envisage that such paid commercial care would be utilised.
With respect to future medical expenses, the defendant submitted that the plaintiff was not entitled to an award of damages for either his psychological symptoms, his tendon injury, or rehabilitation expenses.
It was submitted that s 151Z of the Workers Compensation Act 1987 did not apply, and there was no obligation for the plaintiff to repay the workers compensation insurer for the medical expenses it had paid on behalf of the plaintiff. The defendant further submits that the defendant was entitled to have deducted from any damages awarded, the medical or other expenses reasonably incurred by the plaintiff as a result of the defendant's negligence, relying on Hood Constructions Pty Ltd v Nicholas (1987) 9 NSWLR 60, and Kempsey District Hospital v Thackham (1995) 36 NSWLR 492. The reason for that is that the plaintiff has an entitlement pursuant to s 59(3) of the Workers Compensation Act 1987 for payment of the costs of medical treatment relating to his injury and that compensation is payable: "(a) With a finding that surgery is reasonably necessary as a result of the injury (see s 60(5) of the Act); (b) The plaintiff undergoes a surgery - which would give rise to total and partial incapacity as a result of the injury; (c) The plaintiff, during hospitalisation and following it, would be entitled to weekly compensation; (d) Weekly payments being payable, s 59(3) is engaged entitling the plaintiff to compensation for the surgery."
It was submitted that this analysis accords with the decision of the Workers Compensation Commission in Flying Solo Properties Pty Ltd v Collett [2015] NSWWCCPD 14.

Determination

I accept the submission made on behalf of the defendant that the plaintiff cannot be compensated for the injury, pain and suffering, and psychological problems arising from the armed robbery on 16 October 2011. Therefore, any award of damages must be confined to those arising from the negligence of the defendant in his treatment of the plaintiff on 17 October 2011. Pursuant to s 11 of the CLA, injury is defined to include "impairment of a person's physical or mental condition". Non-economic loss is defined pursuant to s 3 to mean any one or more of the following: "(a) Pain and suffering (b) Loss of amenities of life (c) Loss of expectation of life, and (d) Disfigurement."
If the plaintiff had received appropriate treatment he would have undergone surgery for repair of the tendons, which, would have given him a substantial reinstatement of the functional use of his hand without pain. As a result of the defendant's negligence however, he has suffered constant pain in his left middle finger, together with ongoing pain in his left palm, wrist and elbow, which has radiated to his shoulder and neck. I accept the evidence of Dr Dilley and Associate Professor Conolly, that that pain is causally related to his injury. The plaintiff has also been left with a swan-neck deformity of his left middle finger, which is a substantial disfigurement, and impairment of his finger which has interfered with his capacity to carry out his daily activities, as well as impacting on his ability to work in his chosen field, given his inability to carry out the keyboard skills required for an IT specialist, as well as impairing his enjoyment of any recreational activity, such as cricket.
I accept the opinion of Dr Rose, psychiatrist, in his report dated 11 December 2013, that as a consequence of his chronic pain in the finger and difficulties in moving his finger and hand, the plaintiff's depressive symptoms have been compounded. Those symptoms include sleep disturbance, appetite disturbance, loss of energy and depressive symptoms with suicidal ideation and thoughts of guilt and worthlessness. He has been diagnosed with a major depression of moderate severity and has not had adequate treatment. When assessed by Ms Amy Chan, psychologist at the Royal Prince Alfred Hospital pain management centre in November 2013, the plaintiff was found to be suffering from persistent pain in his left hand, radiating up to his shoulder, which had a significant impact on his daily functioning.
The defendant relied on a report of Dr Virgona, psychiatrist, dated 11 November 2014. Dr Virgona took a detailed history and was qualified with the plaintiff's medical evidence, including the reports of Dr Rose and Ms Amy Chan, referred to above. Under the heading "Mental State Examination", he stated "the most remarkable feature of the presentation was his pain behaviour". He described the plaintiff as developing depressive symptoms as a result of stressors which included "chronic pain, difficulties in his relationship with his wife, her not coping in Australia, they are not being supportive of each other, the involvement of her family, her returning to India, having the baby and he has not seen them since, the lack of success with getting work in IT; uncertainty surrounding his visa". Dr Virgona expressed the following opinion: "In conclusion, the plaintiff is suffering chronic pain, chronic PTSD (best thought of as being in partial remission) and an Adjustment Disorder with Depressed Mood (secondary to the multiple stressors described above). His depressive symptoms have not been of a severity to qualify for the diagnosis of Major Depressive Disorder."
Neither psychiatrist was required for cross-examination and neither expressed an opinion as to the apportionment between the plaintiff's psychological reaction to the armed robbery, and his psychological reaction to the defendant's failure to refer him to a specialist hand surgeon or emergency department. Counsel for the plaintiff submitted that the apportionment was an evaluative exercise for the trial judge, relying on Qantas Airways Limited v Lisica [2007] NSWCA 371; Aust Torts Reports 81-929 per McColl JA. It is not possible, given the state of the evidence, to apportion by way of percentage between the armed robbery and the effect of the defendant's negligence. However, it is clear that the majority of the plaintiff's psychological symptoms, including the development of his PTSD, arise from the armed robbery. Notwithstanding that, the chronic pain that the plaintiff has suffered, together with his depressive symptoms, have been compounded by the defendant's negligence, and I propose to take that into account in assessing damages.
I do not accept the defendant's submission that the plaintiff has, by failing to undergo the surgery he now says that he wishes to undergo, failed to mitigate any loss that he has suffered. Nor do I accept the submission that the plaintiff should have reasonably have undergone that surgery by the end of 2013. The defendant has accepted that he bears the onus of proof of failure to mitigate damages and the issue is to be determined on the basis of what the plaintiff knew and understood about the treatment, including its risks and benefits - see Fazlic v Milingimbi Community Inc (1982) 150 CLR 345 at 350. The defendant accepts that the test is objective, but factors particular to the plaintiff must be taken into account.
Dr Dilley clearly set out the options available to the plaintiff for treatment when he first saw him in October 2012. The four options given to the plaintiff are set out above. It was entirely reasonable for the plaintiff, at that time, to accept the second option, namely, to stabilise the joint using a splint to prevent hyperextension. As Dr Dilley advised at the time, if that course was satisfactory for him, then nothing further needed to be done. It was clearly going to be some time before that could be clarified. The two other options of a tendonesis or fusion of the PIP joint, or the complex reconstruction of the tendon pulleys with the two-stage tendon graft, were also discussed with the plaintiff at that time. However, it was clear that Dr Dilley supported the plaintiff's choice of the first option. Dr Dilley was also concerned about the psychological status of the plaintiff, which needed to be addressed prior to him embarking upon surgery.
Whilst I accept that the plaintiff would have been in a position by the end of 2013 to understand that, by use of the splint, the problem with his finger was not going to be resolved without surgery, it was not unreasonable for him to keep using the splint. The plaintiff's subjective factors have to be taken into account, namely, that he was impecunious, that he was not, as a result of his status, in receipt of a Medicare card which would entitle him to access to public hospital facilities, and his concern about the surgery was not, in any event, unreasonable. It was clear that the workers compensation insurer, by that time, was not going to pay for the treatment. Therefore, I do not accept the defendant's submission, to the effect that by the end of 2013 the plaintiff had two clear options, namely, either to leave the finger "as is", or to undergo surgery to restore function to the hand. Having regard to the plaintiff's understanding of the advice given to him, his treating specialist's support of the treatment regime he undertook, and the various subjective matters outlined above, I find that the plaintiff has not failed to mitigate his damages in these circumstances.

Non-economic loss

In assessing damages for non-economic loss, I have had regard to the pain and suffering endured by the plaintiff as a result of the defendant's negligence, the development of the swan-neck deformity, the chronic pain condition, together with the manner in which his depression and PTSD have been compounded by the defendant's negligence. Those conditions have endured for over four years and the plaintiff is now faced with the prospect of complex surgery which may not have as good as a result as the surgery the plaintiff would have had but for the defendant's negligence.
Having regard to the physical and psychological sequelae arising from the defendant's negligence, I assess the plaintiff's non-economic loss as 25% of a most extreme case, pursuant to s 16 of the CLA. In accordance with that section, that will result in an award of damages in the sum of $38,500.00.

Treatment expenses

I note that past treatment expenses in the sum of $37,157.00, paid by the workers compensation insurer, are not required to be repaid. I accept that the plaintiff has had a regular need for non-prescription pain killing medication and anti-inflammatories and I award the sum of $500 as claimed for that expense.
In answer to the defendant's submissions relying on Hood Constructions v Nicholas, supra, the plaintiff relies on an email received from an authorised officer of the workers compensation insurer, CGU, (Ex AF), which includes the following: "While CGU agrees that s 151Z does not apply, we consider, in line with the decision of Mahony v J Kruschich Demolitions Pty Ltd [1985] HCA 37, that your client's current condition is not causally related to the original work injury, but rather, related to the treatment which your client now sues. That said, CGU does not seek any repayment of payments made to date. CGU will however deny any further claim for compensation on the above basis. Please note this when considering should the defendant propose to reduce any claim to past or future damages by reference to any entitlement for compensation."
In Mahony v J Kruschich (Demolitions) Pty Ltd & Anor (1985) 156 CLR 522, the High Court held that whether a tortfeasor can avoid liability for a subsequent injury tortiously inflicted by a second tortfeasor, depends on whether or not the subsequent tort and its consequences are themselves foreseeable consequences of the first tortfeasor's negligence. At page 528, the Court said: "A negligent tortfeasor does not always avoid liability for the consequences of a plaintiff's subsequent injury, even if the subsequent injury is tortiously inflicted. It depends on whether or not the subsequent tort and its consequences are themselves properly to be regarded as foreseeable consequences of the first tortfeasor's negligence. A line marking the boundary of the damage for which a tortfeasor is liable in negligence may be drawn either because the relevant injury is not reasonably foreseeable or because the chain of causation is broken by a novus actus interveniens."
At page 529, the Court went on to say: "When an injury is exacerbated by medical treatment, however, the exacerbation may easily be regarded as a foreseeable consequence for which the tortfeasor is liable. Provided the plaintiff acts reasonably in seeking or accepting the treatment, negligence in the administration of the treatment need not be regarded as novus actus interveniens which relieves the first tortfeasor of liability for the plaintiff's subsequent condition. The original injury can be regarded as carrying some risk that medical treatment might be negligently given (authorities omitted)."
The Court went on to identify circumstances where the medical treatment or advice was so "completely outside the bounds of what any reputable medical practitioner might prescribe", or grossly negligent so as to break the chain of causation. In the circumstances here, where the defendant's negligent conduct led to an omission to treat properly, by way of referral on to a hand surgeon or emergency department of a hospital, the negligence of the defendant amounted to a novus actus interveniens.
On that basis, there is no prospect of the plaintiff being double-compensated for his injuries as a result of the defendant's negligence. I therefore reject the defendant's submission to the effect that the plaintiff is not entitled to recover compensation for future treatment expenses on the basis that he may have a claim against his employer for those expenses, relying on Hood Constructions Pty Ltd v Nicholas, supra.
For the future, I allow the amounts claimed by the plaintiff for surgery to his left middle finger and post-operative rehabilitation as outlined by Professor Conolly in the sum of $7,000.00. I further allow the sum of $5,000.00 for supervised physical conditioning and hand physiotherapy.
The plaintiff will require ongoing psychological and psychiatric counselling, together with anti-depressant medication and I allow a further $5,000.00 for that.
The evidence does not establish that the plaintiff will require ongoing rehabilitation and vocational placement, nor pain medication for a period of 10 years as claimed, and I disallow those amounts. The total damages for treatment will therefore be allowed in the sum of $17,500.00.

Past economic loss

The plaintiff's claim for past wage loss is problematical, as he was working as a console operator prior to his injury and has continued to work, albeit on light duties, in that job. He was qualified to obtain work as a IT specialist for 12 months prior to the injury and was unable to secure such employment. Further, once the Department of Immigration changed the criteria in July 2012, it is unlikely that he would have obtained full time employment in Australia, given his inability to obtain residential status. Notwithstanding those problems, the plaintiff has suffered a diminution of his earning capacity, but not such as to be capable of precise arithmetical calculation on the basis of a loss of $609.00 per week, as claimed by the plaintiff. Notwithstanding that, I am satisfied that the plaintiff's capacity to earn has been diminished by his inability to compete with able-bodied persons in the marketplace for labour to obtain more lucrative employment, or employment as an IT analyst. I assess his past loss in the sum of $50,000.00, as a lump sum.
For the future, I am satisfied that the plaintiff has suffered a diminution in his earning capacity which is or may be productive of financial loss. Section 13 of the CLA requires the court to be satisfied that the assumptions about the plaintiff's future earning capacity accord with his most likely future circumstances, but for the injury. Those circumstances were that he had the opportunity to obtain work as a IT specialist and may have done so, and qualified for residential status prior to the Department's rule change. I accept the plaintiff's evidence that his option for work now upon his return to Hyderabad will be to work in a call centre. However, I accept the plaintiff's submission that he was entitled to seek work as a systems analyst or similar information technology role whilst residing in Australia on VC 485 visa until June 2013, and if he was able to obtain work within the information technology industry, while on the VC 486 visa, he could have then applied for another type of visa to reside in Australia. These were lost opportunities for which he is entitled to be compensated. I further accept the submission that a buffer is appropriate to compensate the plaintiff for both past and future loss of opportunity to obtain employment and remain working in Australia. In Penrith City Council v Parks, supra, Giles JA said at [5]: "I consider that it is still open to assess damages by way of a so called "buffer". The occasion for a buffer is when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. There is still a comparison between the economic benefits, although the difference cannot be determined otherwise than by the broad approach of a buffer. Section 13(1) of the CLA can be fulfilled, and the assumptions as to exercising earning capacity before injury can be stated. Having determined damages for future economic loss by way of a buffer, because of the broad approach there is no question of percentage adjustment, and so in the application of s 13(2) the percentage adjustment is nil."
Having regard to the plaintiff's qualifications, his visa status, and the lost opportunities involved for him in obtaining work in Australia as a result of the defendant's negligence, I assess the plaintiff's diminution of earning capacity for the future in a lump sum of $100,000.00 so as to reflect that loss. That amount is to compensate him for the diminution of his earning capacity over the whole of his working life, whether he resides in Australia or India.

Commercial future care

I accept the defendant's submission that the plaintiff has not established on the evidence a need for an award of damages for future care to be provided on a commercial basis into the future of one hour per week - see Miller v Galderisi [2009] NSWCA 353. I therefore reject that claim.

Summary of damages

I therefore intend to award damages as follows: Non-economic loss $38,500.00 Treatment expenses past and future $17,500.00 Past wage loss $50,000.00 Future economic loss $100,000.00 Total $206,000.00

Conclusion and orders

I therefore find that there will be verdict and judgment in favour of the plaintiff against the defendant in the sum of $206,000.00.
The orders I make are as follows: 1. Verdict and judgment for the plaintiff against the defendant in the sum of $206,000.00. 2. The defendant is to pay the plaintiff's costs of the proceedings. 3. The exhibits are to be returned forthwith. 4. The parties are to have liberty to apply on 7 days' notice by way of Notice of Motion for any special costs order.

Amendments 15 July 2016 - Index inserted DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 July 2016

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