Hawkins v South Western Sydney Local Health District

Facts

1. The following facts, save for during the period from approximately 2pm on 29 August 2015 to 4 am on 30 August 2015, are not in dispute and are contained in the plaintiff's medical record admitted into evidence by consent.
2. The plaintiff was born in October 1959 and at the time of the events was 55 years of age. He lived with his two daughters and a flatmate and at least occasionally smoked cigarettes and marijuana, although it is not clear in what quantities (see below).
3. The plaintiff presented to the emergency department of Campbelltown Hospital at 11:26 am on 21 August 2015 with abdominal pain. He had undergone a Hartmann's procedure for a perforated sigmoid diverticular abscess on 17 October 2014 performed by Dr Stephen Fulham, colorectal surgeon at Campbelltown Hospital. The triage comment written by Ms Lauren Gadsdon dated 21 August 2015 is as follows:- Presents with non-functioning colostomy. States has a small amount output this morning and nothing since. Swelling around the site. Nil vomiting. Abdo firm, distended. Distressed with pain.
4. The plaintiff was tachycardic with a pulse of 89 bpm, pain was rated as 9 out of 10, blood pressure was 189/107 and he was tachypnoeic with a respiratory rate of 20 per minute. His temperature was recorded at 36.7°C.
5. The plaintiff was sent for erect and supine abdominal x-rays. The report states that the x-rays did not show a definite small bowel obstruction. The plaintiff was reviewed by Dr Ariyaratne, resident medical officer (RMO), in the emergency department. On examination, it was noted that the plaintiff was in discomfort. The abdomen was recorded as being mildly distended with no peritonism and there was tenderness around the colostomy area. Bowel sounds were noted to be present. A provisional diagnosis of a bowel obstruction was made and a number of blood tests were ordered. A surgical review was requested.
6. The plaintiff was then reviewed by Dr Kandasamy, general surgeon. He noted that the plaintiff had minimal output of faeces or gas from the colostomy since early that morning and that he had associated abdominal pain. Dr Kandasamy observed that the abdomen was mildly distended but soft and non-tender and that bowel sounds were present. His impression was that this was a large bowel obstruction secondary to faecal impaction. The orders were recorded as follows:- 1. Admit the plaintiff under Dr Ali Zarrouk, consultant general surgeon; 2. Keep nil by mouth with intravenous fluids; 3. Heparin 5000 units BD; 4. No need for antibiotics; 5. Abdomen pelvis CT with oral intravenous contrast.
7. An abdominal CT scan was performed at 6:06 pm on 21 August 2015. The typed report records as follows:- Dilatation of fluid filled small bowel loops adjacent to the stoma site in the mid-abdomen measuring up to 4 cm in diameter. There appears to be a transition point in the region of the mid-abdomen to the left of the midline. There is a parastomal hernia containing a loop of small bowel. This bowel loop is of normal calibre with no features of incarceration. No surrounding fat stranding. The stoma site appears otherwise unremarkable... There is a midline anterior abdominal wall epigastric hernia containing omental fat, the neck measures to centimetres. Left indirect inguinal hernia containing omental fat. Conclusions 1. Small bowel obstruction with the transition points seen in the mid-abdomen to the left of the midline. 2. No free intra-abdominal gas or fluid. 3. Dilated left renal calyces and left renal pelvis suggestive of either a chronic PAG obstruction or prominent pelvic cyst -suggest ultrasound for further assessment or comparison with previous imaging available. No previous available for comparison at the time of report.
8. The plaintiff was reviewed at 9:30 pm on 21 August 2015 by Dr Kandasamy. He noted that the CT scan showed a small bowel obstruction and also a left pelvic ureteric junction obstruction. The plaintiff was placed on nil by mouth (NBM) with ice to suck and was given some proton pump inhibitors, placed on a fluid balance chart and was ordered to be carefully observed. There is a nursing note at 11:03 pm on 21 August 2015 recording that the plaintiff's pain was 1 out of 10. There is a medical entry at 1 am on 22 August 2015 by Dr Quirk who had been asked to see the plaintiff regarding hypertension. Dr Quirk noted that the plaintiff was afebrile and had a pulse of 90 bpm. The plaintiff was given some Amlodopine to relieve his blood pressure. There is a further entry at 3:20 am on 22 August 2015, noting again that the plaintiff had high blood pressure and an ECG was performed. The plaintiff was given a GTN patch.
9. The plaintiff was reviewed by Dr Kandasamy at 10:20 am on 22 August 2015. He recorded that the plaintiff had less pain and that his abdomen was soft. The plan was for the plaintiff to stay NBM with ice to suck. A nursing entry at 12:50 pm on 22 August 2015 records that the plaintiff was alert and oriented and that the stoma had still not functioned.
10. A urology review carried out at 4:22 pm on 22 August 2015 regarding the left pelvi-ureteric obstruction notes that a plan was made to review the plaintiff in the urology clinic at Liverpool Hospital once his current medical condition was resolved. A review was conducted on 23 August 2015 by Dr Zarrouk which is untimed, but precedes an entry at 3 pm. Dr Zarrouk observed that the stoma was still not working and he gave an instruction that the plaintiff should stay NBM and that he should have a nasogastric tube on free drainage with six-hourly aspirates. There is a nursing entry at 3 pm on 23 August 2015 noting that the stoma was still not working.
11. A medical entry at 4:30 pm on 23 August 2015 by the after-hours RMO indicates that he had been asked to see the plaintiff regarding nausea and it was noted that the abdomen was distended but soft and non-tender. The plan was to continue with conservative management.
12. An untimed medical review was conducted on 24 August 2015. The abdomen was noted to be soft with mild tenderness but there was some flatus via the stoma. A nursing entry at 12:20 pm on 24 August 2015 records that the nasogastric tube was now connected to low suction and observations were stable. It is also recorded that the plaintiff felt nauseous and vomited a small amount of faecal fluid. A nursing entry at 9 pm on 24 August 2015 recorded the plaintiff complaining of pain for which subcutaneous morphine was given. The plaintiff also had some nausea and vomiting during that shift. A further entry was made at 3 am on 25 August 2015 which noted that the plaintiff had been unsettled and his pain was rated at 7/10. It also noted that there was high output from the nasogastric tube which was brownish-green in colour and offensive to smell. There is an untimed medical entry on 25 August 2015 recording that the plaintiff had high nasogastric drainage and that the abdomen was distended but soft. There was no flatus via the colostomy.
13. A medical entry at 1:10 pm on 25 August 2015 states that a urinary catheter had been inserted. The plaintiff's condition was discussed with Dr Zarrouk and a decision was made to proceed with surgery. There is a typed operation report dated 25 August 2015 which states:- GA/IV Cephazolin/Supine Prep & Drape. Incision surrounding old scar which was eventually excised. There were loops of small bowel adhering to the posterior rectus sheath. The adhesions present here were carefully removed during the incision. Intra peritoneal adhesiolysis performed. During adhesiolysis, an inadvertent serosal tear occurred. This was repaired using 3-0 PDS. Internal hernia identified and reduced. Peritoneum of lateral wall pexied to colostomy with 3-0 PDS to close the defect occurring lateral to the colostomy. Small bowel from DJ flexure to ileo-caecal valve was examined and any adhesions removed. Small bowel milked distal to proximal up to DJ flexure. Haemostasis checked. Wash to abdominal cavity with normal saline. 1- Fr Blake drain inserted into lower abdomen/pelvis and sutured to skin with 2-0 Silk. Fascia close to with 0 Maxon. Skin closed with clips. Comfeel dressing.
14. Post-operative orders dated 25 August 2015 were recorded as follows:- 1. Nil by mouth with sucks of ice 2. IV fluids 3. Heparin and TEDS 4. Sit out of bed and mobilise tomorrow 5. No heavy lifting for six weeks 6. Strict fluid balance including hourly urine output measures 7. Nasogastric tube on free drainage with 4th hourly aspirates.
15. A nursing note made at 8:55 pm on 25 August 2015 states that the plaintiff had been returned from the operating theatre. There is a nursing entry at 2:07 am on 26 August 2015 stating that the plaintiff's observations were "between the flags". A medical entry made on 26 August 2015 noted that the plaintiff's observations were stable and he was afebrile. He was sat out of bed and was allowed sips of water. There is an entry from the acute pain service at 9 am on 26 August 2015.
16. On 27 August 2015 there is a medical entry stating that the plaintiff's observations were stable and that he was afebrile. There was minimal drainage and the abdomen was soft with mild distension. The plan was for the plaintiff to be continued on NBM and the drain was removed. A dietetics entry made at 3 pm on 27 August 2015 and signed by Ms Brunner record that the plaintiff was at risk of re-feeding syndrome and that he had been classed as malnourished. A nursing entry made at 6:10 pm on 27 August 2015 noted that the plaintiff was alert and orientated and afebrile. The pain score was 2/10.
17. An entry by the medical team on 28 August 2015 noted that observations were stable and the plaintiff was afebrile. The plan was to redress the wound, continue intravenous fluids and keep the plaintiff NBM. A further dietetic review was carried out at 11:18 am on 28 August 2015 and it was noted that the plaintiff was continued on NBM.
18. There is a nursing entry at 3:05 pm on 28 August 2015 where it is recorded that the plaintiff's dressing became wet following a shower, and it was removed and changed. It is recorded that there was redness present at the right side of the wound.
19. A nursing note at 2 am on 29 August 2015 recorded that there had been some flatus passed from the plaintiff's stoma. A medical entry on the morning of 29 August 2015 records that the plaintiff was feeling well and that there was gas in the stoma. It is recorded that the plaintiff was afebrile and the wound was clean. The plan was to move the nasogastric tube, progress the plaintiff to a free fluids diet (also known as a full fluids diet, and which includes creamed or smooth soups, jelly custard and yoghurt as well as clear liquids), cease the patient controlled analgesia (PCA) and give oral analgesia. The plaintiff was reviewed at 10:40 am by Dr Cheung from the acute pain service who ceased the PCA. At 1 pm on 29 August 2015 a nursing note recorded that the plaintiff was alert and orientated, and OxyContin was given at 11 am. Vital signs were normal, the plaintiff was afebrile and it was further recorded that the plaintiff's diet had been upgraded to free fluids which had been tolerated well, "nil N+V" (which I understand to be nausea and vomiting), and the nasogastric tube was removed. The plaintiff was ambulant, showering and was coughing with clear sputum. He was encouraged by nursing staff to brace his abdomen when coughing. His dressing was intact. A nursing note at 9:30 pm on 29 August 2015 noted that the plaintiff had felt unwell, that he had vomited twice during the evening and that an antiemetic had been given. He was scared to drink because of nausea. His dressing was attended to, and he refused oral medications. The medication chart notes that the plaintiff was given 10 mg of Endone at 10:30 pm.
20. A nursing entry at 4 am on 30 August 2015 (which was the fifth postoperative day) recorded that the plaintiff was afebrile, alert and oriented, that there was some redness around the laparotomy wound, and that the stoma was not active. The note also records that the RMO had been informed of the plaintiff's nausea and that Maxalon had been given intravenously. Endone was given, and the patient was noted to be happy about his care. The team was to review the wound site. A note at 5 am recorded that the patient was nauseated, that nausea had settled due to Maxalon and that the RMO was informed to come. There was a review by the overnight RMO Dr Nguyen who examined the abdomen, A medical entry made at 9:05 am on 30 August 2015 notes that the plaintiff had nausea overnight but that it had now resolved. It is recorded that the plaintiff was stable and afebrile. It is also recorded that the stoma was producing faeces, that the wound was discharging from the upper end and that two staples were removed and fluid evacuated. Cultures were taken and sent for pathology. The wound was packed with Kaltostat. A nursing entry at 8:15 pm on 30 August 2015 noted that the plaintiff was tolerating free fluids. It was also recorded that the plaintiff was very upset, as he had not received his preferred meal.
21. A medical entry on 31 August 2015 records that the plaintiff's observations were stable, that he was afebrile, but that he had been mildly febrile during the night. He had vomited three times and was nauseous. There was flatus via the colostomy. It was recorded that the abdomen was distended and that there was mild erythema around the wound. The plan was for the plaintiff to continue on free fluids.
22. A later entry on the morning of 31 August 2015 records that the situation was discussed with Dr Zarrouk. He ordered some skin staples to be removed and antibiotics administered. An abdominal x-ray was performed at 4:20 pm on 31 August 2015. A nursing entry at 3:30 pm on 31 August 2015 notes that the plaintiff was tolerating 30 mL of water per hour and the stoma bag was draining well. It also records that the abdominal wound had been reviewed by the surgical team and that the staples had been removed and a vacuum assisted closure (VAC) dressing had been applied. The plaintiff was ambulant and self-caring.
23. A medical entry dated 1 September 2015 noted that the plaintiff was stable and had been started on total parenteral nutrition (TPN).
24. A medical entry on 2 September 2015 notes that the plaintiff had passed into the stoma and that the VAC was in situ on the abdominal wound.
25. A medical entry on 3 September 2015 records that the plaintiff's observations were stable and that he had no further vomiting or nausea and was tolerating free fluids. He was continued on TPN.
26. A medical entry on 4 September 2015 noted that the plaintiff's observations were stable and that he was afebrile. It is recorded that he was eating and drinking and that there was no nausea or vomiting.
27. A medical entry on 5 September 2015 records that the plaintiff was well and TPN was to be weaned down.
28. A medical entry at 9 am on 6 September 2015 records that the plaintiff was well and tolerating a diet. VAC dressing was continued.
29. On 7 September 2015, a medical entry by Dr Zarrouk and his team notes that the plaintiff's observations were stable and that he was afebrile. Plans were made to commence for his discharge. At 12:05 pm on 7 September 2015 a nursing note records that the wound had been reviewed, that the midline was granulating but there was still quite a lot of slough. There is a photograph of the wound. The plaintiff was discharged at 5:25 pm on 7 September 2015.
30. Dr Zarrouk reviewed the plaintiff on 29 September 2016. He noted that the plaintiff looked well, and that there was no incisional hernia.
31. A letter from Dr Zarrouk to the plaintiff's general practitioner, Dr Abdalla Hakam dated 16 November 2015 states:- Current problems: Post op wound infection treated by VAC dressing. Recent admission with small bowel obstruction requiring laparotomy and division of adhesions. Past history of Hartmann's resection under Dr Stuart Care (?) October 2014. Waiting to see Dr Fulham for reversal of Hartmann's. I reviewed Mr Hawkins in my rooms in Campbelltown today. He is doing well. His is wound is nearly completely healed. He was supposed to have reversal of his Hartmann's resection by Dr Fulham. Instead he presented under my care with adhesive bowel obstruction requiring laparotomy and division of adhesions. On examination today, he looks well. The wound has epithelialised completely except into areas also ensure materials are still there. I removed. There was weakness in the anterior abdominal wall but there was no obvious incisional hernia. I am happy with his progress. I expect his wound will heal very quickly now I have removed the dissolved deep sutures. I recommend that he delay reversal of Hartmann's for six months to allow adhesions to mature. He will get in touch with Dr Fulham to rebook for his reversal of Hartmann's. I am happy to see him again if there is any concern. [sic]
32. A letter from Dr Fulham dated 25 February 2016 from Dr Sergey Fedorine, consultant upper gastrointestinal and general surgeon states: Thank you very much for asking me to be involved in the care of this very pleasant 56-year-old gentleman. As you may recall, Brian's surgical history is quite complicated. I understand that initially he had a Hartmann's operation and subsequently had another operation but unfortunately the details from the public hospital are not available today. He does have a significant divarication of the rectus muscle/incisional hernia. On top of this he does have hydronephrosis on the left side. I have explained to Brian that if we were inclined to reverse his Hartmann's that it would be a major procedure that will require placement most likely of biological mesh. Considering his Hartmann's operation, component separation technique on the left side may not be fully available. As the next step, I have asked Brian to come and see Dr Nestor Lalak for review regarding his nephrosis. I am going to obtain all of the medical records from Campbelltown Hospital and review his images with one of our radiologists. I trust this is of assistance. I will keep you informed of his progress.
33. A further letter from Dr Fedorine to Dr Fulham dated 27 April 2017 states: I had a long discussion with Brian and explained to him that if we were to go ahead with reversal of Hartmann's repair of his bulge will be a complex and complicated procedure which is major with possible complications. I understand that he will also be reviewed today by Dr Fulham regarding reversal of his Hartmann's. He did give me controversial statements that he does not care about the reversal of the Hartmann's but only about the bulge but then he changed his opinion. Certainly, I will be discussing his clinical situation with Dr Fulham and if he wants to undertake a major operation I will need to discuss it further with him and go through all of the details.
34. A letter from Dr Fulham to the plaintiff's general practitioner of the same date states: I reviewed Brian in the rooms today. It's been quite a while since I have last seen him. He is well. He is managing his stoma well. He is working hard. It does not trouble him. On clinical examination he has quite a large incisional hernia which is occupying most of the upper abdomen with a wide neck. The skin has formed quite a large hypertrophic scar over it. I would not contemplate doing a laparotomy and reversing his Hartmann's because of the risk of complications associated with abdominal wall closure. Providing he is asymptomatic there is no reason to intervene. I have discharged him back to your care.

Facts in Dispute

1. Several facts are in dispute.
2. The first factual matter in dispute is the extent of the plaintiff's smoking at the time of August 2015.
3. The second matter in dispute is what was contained in the meal provided to the plaintiff at lunchtime on 29 August 2015.
4. The third matter in dispute is what complaints were made by the plaintiff overnight on 29 August 2015 to 30 August 2015.
5. I will deal with each of these matters in the content of this judgment.

The Expert Evidence

1. With respect to Particulars 2 and 3, there was no expert evidence from any nursing expert commenting on breach of duty. I am therefore left to decide these issues without the assistance of an appropriately qualified nurse
2. Both the plaintiff and the defendant briefed surgeons who prepared written opinions and gave concurrent evidence. For the reasons that follow, I am of the view that their opinions are relevant primarily to causation. Of the two surgeons, Associate Professor Richardson was the only one of the two who had experience in the surgical management of like patients and in the end, I prefer his opinion for reasons expressed below.
3. I note too that there is no pleaded complaint that the plaintiff developed an infection, and no infectious diseases expert was called to give evidence.

Jones v Dunkel Inference

1. Mr Davies submitted that there were several nurses identified in the clinical records in the hours between 2 pm on 29 August 2015 and 4 am on 30 August 2015 who could have given evidence on critical issues advanced by the plaintiff. He submitted that as there was no explanation offered for their absence, I should find that they would not have assisted the defendant's case.
2. Mr Kettle submitted that no adverse inference ought to be made, as this was not a case where there was no evidence from a witness who would have been expected to be called. In his submission, there is contemporaneous evidence from the nurses in the clinical notes.
3. In my opinion, for reasons that follow, it matters not whether any such inference ought to be drawn. It is true that no explanation was offered by the defendant as to the nurses' absence. However, in my view, any evidence they might have given, taking into account the time that has passed since August 2015, would have been speculative.

Clinical Records

1. As to the clinical records of the hospital, Mr Davies said that as a matter of logic I would find that they are not always contemporaneous records and may in fact be a record of several or more hours later. He also submitted that they do not record every aspect of every conversation that occurs, and that not everything that transpires between the patient and a nurse is recorded. He submitted that if there is a contest between the plaintiff's evidence and the clinical notes, that the plaintiff has given evidence and been subject to cross-examination means that his evidence should be given greater weight.
2. The clinical records of the hospital were admitted into evidence, by consent, as business records pursuant to section 69 of the Evidence Act, for their hearsay purpose. I accept, as Mr Davies submitted, that a hospital record is not a complete record of everything that occurred at the relevant time. The nursing staff in this case were concerned with the plaintiff's treatment at the time, rather than this litigation. However, this is not a case where different histories are provided to different medical practitioners: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34, Mason v Demasi [2009] NSWCA 227 and Gulic v O'Neill [2011] NSWCA 361. Indeed, in this case I am concerned with the hospital records over a 14-hour period. The plaintiff does not otherwise dispute the truth and content of the hospital's records.

Risk of Harm

1. The plaintiff says that the risks of harm, with respect to each Particular, were as follows: 1. A large incisional hernia following the midline of the abdominal recti muscles (the stomach); 2. A weakness of the abdominal recti muscles; and 3. The loss of opportunity for reverse the Hartmann's procedure.
2. The defendant did not cavil with this characterisation. I will deal with each Particular in turn.

Mr Hawkins

1. The plaintiff gave evidence that after his operation on 25 August 2015, he started feeling better on about 27 August 2015. On 28 August 2015 he recalled having a conversation with Dr Zarrouk who told him that his diet would be changed from NBM, and that he would be permitted to start consuming liquids again. He recalled the doctor telling him that he was to be put on a free fluids diet and telling him that he could now drink tea and water. Soon thereafter, he had a cup of tea and felt fine. He noted that a nurse put a free fluids sign behind his bed.
2. On Saturday 29 August 2015, the plaintiff said that he was served lunch. He described the contents as a sort of broth or soup, vanilla yogurt, vanilla ice cream, apple juice, jelly and a paper packet in which he presumed was bread. The plaintiff described the soup as an opaque chicken broth with pieces of chicken and bits of potato floating around. He described the bits as about the size of the square of his thumbnail or 1.5 cm². He said that he spoke to the catering servicewoman serving him the food and said words to the effect of "I am not supposed to be fed, there has been some mistake". She replied to him that he had been upgraded.
3. The plaintiff said that he first had the soup. He then had a couple of sips of the apple juice, and a couple of spoons of yogurt. At the time his friend Wendy was in the room with her children, as they had come to visit him. He gave her children the ice cream and the jelly. He believed he finished eating sometime before 1 pm. He felt fine, but things started to change at about 3 pm. He felt a lot of movement and heard noise in his stomach and he began to feel warm and sweaty. He then started dry retching and had cramps and a burning sensation in his stomach.
4. During the late afternoon or early evening, the plaintiff said that he rang for a nurse. A male nurse came in and the plaintiff told him that he had been fed by mistake and that something had happened. The nurse pulled the sheet back and looked at the plaintiff's bandage. The plaintiff observed that there was no blood on it, and that it looked fine. The plaintiff told the nurse that he had been dry retching and convulsing. The nurse left the room and returned with some medicine. The plaintiff said that he told the nurse that he would put himself on NBM until he saw the doctor the next day.
5. The plaintiff said that he was brought food that evening but that he rejected it. The plaintiff could not really recall, but he believed that he had no interactions with nurses during the evening. After midnight. he said that he was seen by an attentive nurse. He said that he believed that she was worried about him and that she "checked him out a fair bit". Although his recollection was vague, he said that he believes that the nurse checked his wound.
6. In the morning of 30 August 2015, the plaintiff said that he had a vague recollection of a group of people checking on him. He could not recall what they did. The plaintiff believed that he was examined by Dr Zarrouk during the morning of 30 August 2015 at about 9 am. He said that Dr Zarrouk pulled back the bandage and looked at the wound. The plaintiff recalled seeing a big black blob at the top of the incision where there were two staples. He said that they had exited the wound and were up in the air. The plaintiff said that Dr Zarrouk asked him when the staples had pulled out, and he replied that it had happened the previous afternoon (but contrast this with his statements set out at para [62] above). He believes that he told Dr Zarrouk that he had been dry retching uncontrollably, and that he had told the nurse something was wrong. He believes that Dr Zarrouk told the plaintiff that they would remove the staples that morning. They were apparently removed sometime on 30 August 2015.
7. On 31 August 2015, the plaintiff said that he was told by nurse that the rest of the staples were to be removed and he was given a painkiller.
8. In evidence in chief, the plaintiff said that he had smoked but did not currently smoke. He said that he ceased smoking in about 2012 and that he used to smoke perhaps half a pack or three-quarters of a pack per day but gave them up after a very bad chest infection. He said that he thereafter had an occasional cigarette, perhaps once a month. He gave evidence that the last cigarette before his operation in August 2015 was perhaps 6 to 10 months prior to that date.
9. In cross-examination, the subject of Mr Hawkins's smoking was explored at length. The plaintiff said that since 2012 he has continued using tobacco products, but that he had not put a cigarette in his mouth since 2012. After being given a certificate pursuant to the Evidence Act, the plaintiff said that he does not smoke cigarettes but has regularly smoked marijuana with tobacco since 2012, perhaps once per fortnight.
10. The plaintiff was taken to several documents in the clinical records, some in his own handwriting, which suggested that as at August 2015 he was smoking half a pack of cigarettes. The plaintiff denied that any record of his smoking that amount was correct. He ultimately conceded that he possibly smoked 25 cigarettes per week in 2017, but he said that there were weeks and sometimes months when he had no tobacco products at all. He agreed that in 2014 he was smoking five cigarettes per day. The plaintiff conceded that his signature was at the bottom of page 425 of exhibit B and at page 423, 424 and 425. Ultimately, the plaintiff said that after August 2015, he attempted to quit smoking several times, but that he has never been able to give up smoking altogether. I find, on the balance of probabilities, that the plaintiff was smoking an indeterminate number of cigarettes and was smoking marijuana in the months leading up to August 2015.
11. As to marijuana, the plaintiff conceded that he has regularly smoked it since 2012, perhaps about 10 joints per week. In the six months prior to the trial, the plaintiff said that his consumption dropped to approximately three joints per week.
12. Mr Kettle suggested to the plaintiff that on 27 August 2015 he was told by the nursing staff to brace and hold his stomach when coughing. The plaintiff conceded that he had a cough at that time. Mr Kettle suggested to the plaintiff that on 29 August 2015, he was coughing clear sputum. The plaintiff conceded that he had a cough on that day as well. The plaintiff also conceded that he regularly coughed at the time of his previous hospitalisation in 2014. He also agreed that he had felt nauseated in the period leading up to the 2015 operation, and that on 24 August 2015 he vomited a small amount of faecal fluid and he was given mouthwash. He suffered from nausea and dry retching on that day.
13. Mr Kettle suggested to the plaintiff that he had tolerated the free fluid diet on 29 August 2015. The plaintiff agreed that he had not felt nauseous when he ate the food. Mr Kettle suggested that the plaintiff vomited twice during the evening and was given an antiemetic. The plaintiff said that he could recall dry retching but not vomiting. When Mr Kettle suggested that there was no reference in the clinical record to dry retching on that evening, the plaintiff said that the record was incorrect. The plaintiff insisted that dry retching accompanied vomiting. Mr Kettle suggested to the plaintiff that it was at approximately 4 am on 30 August 2015 when he complained of nausea. The plaintiff said that the events from midnight onward were not entirely clear to him, but he agreed that once he was given intravenous Maxalon, his nausea settled. It was suggested to the plaintiff that following the introduction to the free fluid diet on 29 August 2015, he vomited only twice on the evening of 29 August 2015. The plaintiff denied this. The plaintiff said that he was dry retching and vomiting and that he was reporting it to the nurses. He said he may have vomited 5 times and that he may have dry retched 10 times, and that he was very sick. I do not accept the plaintiff's evidence on this matter, and I find that his complaints about nausea and vomiting are contained in the clinical notes, I do not accept, on the balance of probabilities, that he ever complained about dry retching. The plaintiff's complaints of pain were treated with opioid medication.
14. The plaintiff had no memory of being introduced to a free fluid diet after his first operation on 21 October 2014, but agreed that it was likely true. The plaintiff said that until recently, he had no idea what a free fluid diet was. The plaintiff did not accept that after 29 August 2015 he made no immediate complaint about the wrong food being provided to him. He said that he complained to Dr Zarrouk on 30 August 2015 at about 9 am, but mentioned nothing about chicken pieces. He conceded that he never complained about being provided with the wrong food to his general practitioner in September 2015. Indeed, Mr Kettle suggested that the first time he ever complained to a doctor about the hospital giving him the wrong food was to Dr Fedorine on 27 April 2017. The plaintiff could not point to any time when he told any person about the chicken pieces prior to that occasion, but he said that he told many people that he had been fed by mistake.
15. When asked by Mr Kettle when he had first heard the words 'incisional hernia', the plaintiff said that he had only been introduced to those words during evidence and had not previously heard that expression.
16. Returning to the question of soup, Mr Kettle reminded Mr Hawkins about his description of the soup as opaque. The plaintiff agreed that he could see the bottom of the bowl. He said that he ate most of the soup and did not recall telling Dr Alan, the psychiatrist qualified on behalf of the defendant, that he ate only some of the soup. His belief was that he had finished the soup. He believed that the cubed forms looked like chicken, that he had chewed and swallowed them and had no trouble eating them. He said that the soup was not thick and creamy, but soft in texture. He disagreed that it was puréed and drinkable.

Dr Ali Zarrouk

1. Dr Zarrouk gave evidence by telephone for the defendant on 9 December 2019. Dr Zarrouk was the plaintiff's treating surgeon at the time of the events in question, and the plaintiff does not allege that anything Dr Zarrouk did or omitted to do caused him harm within the meaning of that term in the Act.
2. Dr Zarrouk is a visiting medical officer at Campbelltown Hospital. He is a general surgeon with an interest in upper gastrointestinal surgery and is a fellow of the Royal Australian College of Surgeons. He gave evidence as a lay, rather than an expert witness.
3. Dr Zarrouk noted that the plaintiff came under his care on 21 August 2015. He first saw him on 22 August 2015 when he determined that the plaintiff had a small bowel obstruction. He noted then that the plaintiff had a Hartmann's resection for sigmoid diverticulitis with perforation the previous year, and that he was waiting to have surgery to reverse his colostomy with the colorectal surgeon Dr Fulham. He presented acutely with bowel obstruction, secondary to adhesions in the small bowel. Dr Zarrouk, explained that a Hartman's resection is performed when people get a perforation or bad inflammation in the sigmoid colon. An emergency operation is necessary to remove the part that is perforated, and the bowel is brought as a colostomy to the surface through a hole in the abdomen and one must then wear a bag.
4. The bowel obstruction with which the plaintiff presented in 2015 was caused by adhesions when the bowel is obstructed. The plaintiff did not have closed-loop obstruction, that is the bowel was obstructed but not compromised. Dr Zarrouk first attempted conservative management. However, when the plaintiff did not progress, he required surgery. At that point, Dr Zarrouk said that the plaintiff had three hernias. One was at the site of the colostomy, the second was a left inguinal hernia and the third was a small incisional hernia from his previous surgery. The surgery was performed on 25 August 2015 under Dr Zarrouk's supervision by Dr Ricardo Hamilton, who had performed the plaintiff's 2014 surgery. The adhesions were divided and they put a stitch through so that the bowel did not herniate again. The adhesions were freed up and the bowel was put back together and the plaintiff's abdomen was closed. After the surgery, the plaintiff's condition was such that his intestine stopped working for a while, which is usual. This is referred to as a period of ileus, which means that the bowel stops working. It is not obstructed, but matter does not flow through it because it is paralysed. The plaintiff was then put on a nasogastric tube and on 29 August 2015, when he started passing flatus (which is a sign that the bowel had started to recover), he was permitted to start drinking. Initially his gut was rested until he had bowel movement and when faecal fluid appeared in the colostomy bag. Also on 29 August 2015, the plaintiff was started on a free fluids diet.
5. Dr Zarrouk said that between the operation and 29 August 2015, the plaintiff was not fed. He was having intravenous fluid and sips of water and ice to suck, so that he had no nutrition. Prior to 29 August 2015, Dr Zarrouk was not aware of any infection, and he would not have expected one. He said that infection usually starts at about three days after surgery. A usual sign would be discharge through the staples. At operation, the abdomen is closed with strong sutures put into the muscle, and the skin is usually closed with staples or clips. Staples hold together the skin, but not the muscle. The muscles are held by very strong sutures that dissolve in a few weeks or months. If the plaintiff had an infection, it would be expected that there would be redness around the wound and pus coming through or between the staples and discharge on the dressing. Dr Zarrouk said that the plaintiff did not show those signs on 30 August 2019.
6. Prior to 29 August 2015, Dr Zarrouk was aware of factors that made the plaintiff more prone to infection. First, he had emergency surgery and in emergency surgery with bowel obstruction, there is a risk of a phenomenon called translocation of bacteria. Even when there is no hole made in the bowel, bacteria crosses into the fluid around the intestine which causes a risk of infection when having an emergency operation for a bowel obstruction. Second, the plaintiff had a colostomy next to his incision, meaning that bowel content was coming very close to the incision site. Third, the plaintiff was nutritionally compromised. Fourth, he was less than a year recovering from a major surgery in 2014. Fifth, the plaintiff was a social smoker and was smoking marijuana on and off. All of these factors, increased the plaintiff's risk of wound infection which eventuated.
7. On 29 August 2015, when Dr Zarrouk started the plaintiff on a free fluids diet, the nasogastric tube was taken out and the PCA pain pump stopped, as the plaintiff's colostomy had started working after the period of paralysis. Dr Zarrouk said that a full fluids diet is not something that is "set in stone". Fluid is "stuff" that people can drink and has a consistency that is soft. It is not merely water. Indeed, Dr Zarrouk believed that it was important to get nutrition into the plaintiff because he had been completely fasted from 21 August 2015.
8. Dr Zarrouk could not recall when he next saw the plaintiff, but he was notified about his progress every day and he believes that he saw him on 31 August 2019 rather than on 30 August 3015. Dr Zarrouk was aware that on 30 August 2019, the plaintiff showed signs of wound infection and his registrar removed some of the clips. The infection was in the subcutaneous tissue, and they wanted to get that infection cleared. It was important not to have the infection trapped, so it needed to be drained, and the clips holding the skin edges together prevented it from draining. Antibiotics alone would not fix the problem. They therefore removed some of the clips, washed the wound out and then packed it to keep the skin edges open, which prevented the clips from closing and healing over the pus. Removing the clips is the first thing that is done when things do not settle. A swab was taken to determine the organism, so that the infection could be treated appropriately with antibiotics. The wound was packed with Kaltostat, a fluffy substance made of seaweed. All this was done on 30 August 2015.
9. On 31 August 2015 Dr Zarrouk decided that more needed to be done, and he instructed his team to remove all the staples. When the staples were removed, this allowed the infection to drain. Dr Zarrouk explained that the plaintiff still had the muscles sutures closing his muscles, so it was not as if he had an open belly. It was just the skin, the superficial part of the wound, that was open and on that they put a VAC dressing. This drained the infection, which encouraged circulation and healing. This, he said, is the best way to treat bad wound infections.
10. When Dr Zarrouk inspected the wound, he did not expect to see an incisional hernia but he checked to see if the muscle tissue had been affected. Dr Zarrouk determined that the plaintiff had a severe superficial wound infection which is why the VAC dressing was used. Dr Zarrouk believes that the source of the infection was gut bacteria and E.coli, as they had operated next to the colostomy.
11. Dr Zarrouk said that he did not become aware of any complaint to the hospital about the plaintiff being provided with an inappropriate diet until long after the plaintiff returned home. Dr Zarrouk said that an inappropriate diet would not have been relevant to any considerations when treating him for infection, because there is no evidence that it makes a difference. He said that current practice is that patients are started on any food they like, and if they have nausea they stop eating that food. In other words, a patient is permitted to decide.
12. After applying the VAC dressing on 1 September 2015, a PICC line was put in so that the plaintiff could receive TPN whilst he waited for his gut to recover properly. The plaintiff recovered and was slowly weaned off. He went home on 7 September 2015 with a VAC dressing on and a portable vacuum machine to apply negative pressure to allow the wound to heal.
13. As to whether or not the plaintiff had a dehiscing wound on discharge, Dr Zarrouk said that these were inappropriate words because they imply a burst abdomen when the muscle sutures come out and herniate the intestines, so that a person would have to physically grab their intestines. Here, the plaintiff had a superficial wound infection.
14. Dr Zarrouk next saw the plaintiff on 29 September 2015 and prepared a report for the plaintiff's general practitioner. At that time, the plaintiff had the VAC dressing on and he did not suffer from an incisional hernia. Dr Zarrouk would not have expected to see an incisional hernia so quickly. Dr Zarrouk agreed that the plaintiff was at high risk of getting one because of many factors, but he did not have one when Dr Zarrouk saw him. The plaintiff was examined through the VAC dressing, which was not taken off. The incisional hernia developed later. Dr Zarrouk believed that the VAC dressing drained the infection very quickly. He also believed that the musculature of the abdomen was intact because the muscle was stitched together from his original surgery and when the clips were removed and he had the infection, the muscle closure was still intact. Dr Zarrouk advised that any reversal of the Hartman's procedure would be delayed for six months to allow the adhesions to mature.
15. Dr Zarrouk said that the plaintiff had many risk factors for the development of an incisional hernia. First, he already had weakness in his wound and his general connective tissue was not strong. Second, he already had three hernias when he arrived at the hospital and one was an incisional hernia at the sight of his laparotomy. This meant that his connective tissue made him prone to getting hernias. Third, he had a colostomy next to his incision that weakened part of the scar. Fourth, his nutrition was not good so his immunity was compromised. Fifth, he had two operations within less than a year.
16. Dr Zarrouk has not seen the plaintiff since 16 November 2015.
17. In cross-examination, Dr Zarrouk said that on 29 August 2015, when the nasogastric true was removed and the plaintiff was put on a free fluids diet, he was given the opiate medications OxyContin and Endone prn for pain relief. On that day, it appeared to Dr Zarrouk that the wound was clean and not obviously infected. The plaintiff was afebrile and there was no obvious pus draining from the wound. Clips would only be removed when there is sufficient concern. On 29 August 2015, there were no signs of infection and no concern. Rather, it was on 30 August 2015 that there were signs of infection, and the initial clips were removed. Dr Zarrouk said that it would make no sense to remove clips because someone has vomited, which he said was very odd. They are only removed because of infection. He repeated that muscle sutures hold the muscle together, not the clips; the clips are just for the wound edges to be together to heal. The deep muscle sutures were intact at all times and that is why the plaintiff did not end up having to grab his intestines with his hands. The skin staples became loose because as you get more pus and more infection, the skin edges become unhealthy and dislodge the clips. Dr Zarrouk appropriately conceded that it was possible that if someone coughed in a tremendously violent manner that it might cause the clips to dislodge, but he reiterated that it would have no effect whatsoever on the deep muscle sutures or the development of an infection. In any event, Dr Zarrouk was adamant that it did not happen in this situation.
18. Dr Zarrouk reiterated that the first note of infection was on 30 August 2015 when two clips were removed. The clinical explanation is that this was the area where the infection was coming through, likely because the plaintiff was lying supine, as this was the weakest spot in the skin. His infection was so bad that on 31 August 2015 all the other clips were removed. Dr Zarrouk said that the genesis of the infection was the surgery, and usually the infection will not become apparent until some days following the surgery, which is what happened in this case.

Ms Wendy Oliver

1. Ms Wendy Oliver gave evidence on behalf of the plaintiff. She recalled visiting the plaintiff at Campbelltown Hospital on 29 August 2015. She believed that she was there at about lunchtime when he was served food. She believed that lunch was served by a food trolley lady who was wearing a uniform, but it was not a uniform worn by a nurse. She recalled a tray of food being delivered which had a plate or a bowl with a lid on it and some desserts. She recalled that the plaintiff asked the lady if he was allowed to eat, and the lady said yes.
2. Ms Oliver said that Mr Hawkins asked her kids if they wanted the desserts because he did not like desserts. He did not say anything about what he had been served for lunch. She believes that they were there for about half an hour.
3. Ms Oliver gave no evidence about the content of the soup which the plaintiff was served.

Ms Leslie Ann Miller

1. Ms Miller, the Director of Nutrition and Dietetics for the South Western Sydney Local Health District, was called by the defendant. She is based at Bankstown Hospital and has held her position for approximately 14 years. She has a Postgraduate Diploma in Nutrition and Dietetics. In her role as Director of Nutrition she has clinical governance over the dietitians and dietitian assistants.
2. As part of her role, Ms Miller utilises the power chart system, which is used on the wards as a system to place dietary orders. This was the system in place at the time of this incident. The diets download in real time to a database used across the Ministry of Health as a food and menu management system. At exhibit A, tab 15 there is a document headed "Master Menu February 2014" which was in place at August 2015. Ms Miller explained that this is the reference document that is used to look at the main items that are available on a patient's menu. A highlighted yellow strip sets out what is listed for lunch. At that time (and presently) creamed or smooth soups are served because they are suitable for a number of diets. They are designed for the smooth purée diet and are used for other texture modified and full fluids diets. There is a two-week cycle to the menu. On the Saturday, which is day six, there is a reference to smooth pea and ham soup. Smooth soups are made to be lump free. On Saturday, day 13 of the document, there is reference to smooth beef and vegetable which is also lump free. Lump free means that they are specifically designed for texture modified diets.
3. All soups are produced at the central production unit at Royal Prince Alfred Hospital and are delivered as required to Campbelltown Hospital. They are produced in bulk, chilled, bagged, and ordered as required for the menu. The actual patient meals are put together in the kitchen at Campbelltown Hospital. The diet is ordered in power chart downloads and is coded as compliant or noncompliant. Each day a tray ticket will print, which is used by the food service staff to plate up a meal. Everything that appears on the tray ticket is compliant to the diet order.
4. In this case, there is an original order entered and electronically signed by a registered nurse on 29 August 2015 at 846 am. At the top it says "Brian Dean Hawkins order information for a full fluids diet". That order was downloaded prior to lunch, and the system is automatically triggered to start a printout of tray tickets for every patient who will be getting a meal which will go from food services to a plate. The tray ticket will go on the tray of food saying "free fluids diet" with the patient's name on it and will have the ward and band number. In this instance, it says that the order at that time was a full fluids diet. A new order was placed replacing the full fluids diet on 1 September 2015 at 1323 hours. At that time the order information was for TPN plus NBM diet. The document shows a complete dietary history for Mr Hawkins.
5. Ms Miller says that both smooth beef and vegetable, and smooth pea and ham soup are consistent with a full fluid diet. Chicken soups were only served on day four and day nine, both of which were smooth and lump free but were not served on a Saturday in August 2015.
6. Ms Miller said that the documents demonstrate that soups with visible food pieces are not permitted on the full fluids diet.
7. In cross-examination, Ms Miller said that the soups are puréed to a smooth lump free consistency but that it was possible, although unlikely, that some food pieces did not get processed. However, she said that the food service staff have a responsibility to ensure that the soup have no solids left behind in it. As they ladle it into the bowls, they are required to check for solids. If lumps are found, they are to remove the entire bag and replace it with a new bag. She reiterated that the only soups available at lunchtime are smooth soups, and they are used for a number of restricted diets. A person on an unrestricted diet would not be getting soup at all at lunchtime. Ms Miller said that day one is always a Monday so she is certain that day six and day 13 were Saturdays. She said that there is a clear fluid diet that has clear broths including clear chicken broth, but that it is not used for a free fluid diet.

Section 5B and 5C factors: Conclusions on Particular 1

The plaintiff's submissions on Particular 1

1. Mr Davies submitted that there is evidence that the plaintiff complained about being fed chicken pieces to a registrar. In fact the plaintiff believed it was to Dr Zarrouk on 30 August 2015, to whom he apparently said that "they fed me" rather than "they gave me solid food". Mr Davies said that the evidence from the plaintiff was that he was told by Dr Zarrouk that he could go on a liquid diet. On the morning of 29 August 2015 the plaintiff asked Dr Zarrouk if he could have a cup of tea to which he replied you may and you may, and nothing further was explained to him. Rightly or wrongly, Mr Davies submitted, the plaintiff was led to believe that it was a liquids, rather than a free fluid diet, and that perception persisted until this case. I note that it was not suggested (or pleaded) that this was case about a failure to warn or provide information to the plaintiff.
2. Mr Davies submitted that a reasonable person in the position of the defendant would have in place a system of screening meals that served to patients to ensure that the meal served is compliant with the diet plan. He acknowledged that Ms Miller's evidence was that meals are pre-cooked and bulk packaged at Royal Prince Alfred Hospital and distributed to hospitals including Campbelltown Hospital, that at the time of service the soup is ladled from a bulk container to individual bowls, and that soups that are identified as containing solids or lumps (i.e. not in compliance with the diet certification) are withheld from service and the bulk bag is replaced. Mr Davies submitted that the burden imposed on the food service staff to pay extra attention to the meals being served up to ensure compliance with the diet plan "ticket" is not onerous, and bears no financial burden on the defendant.
3. Mr Davies conceded that there was no record of any complaint about being served solid chicken pieces until April 2017.

The defendant's submissions on Particular 1

1. Mr Kettle submits that for the purposes of section 5B, Campbelltown Hospital had taken precautions against the risk that a patient receives a meal that did not comply with dietary requirements. The precautions taken by the Hospital included checking that the soup was compliant when ladled into individual portions and, if not compliant, replacing the soup with a suitable substitute.
2. Mr Kettle also submitted that the plaintiff adduced no evidence to the effect that the reasonable hospital would have taken any additional precautions. Further, he says that the system and available documentation supports a finding that the plaintiff received and ate soup consistent with a full fluids diet.
3. I am unable to make a finding on the balance of probabilities that the plaintiff was served a lunch with chicken pieces or lumps on 29 August 2015 for the following reasons. First, although I found the plaintiff to be a generally credible witness, doing the best he could to recall events more than four years ago, I do not accept his evidence on this point which I find unreliable. He was at that time recovering from a serious operation and was administered PCA Fentanyl and then the opioids OxyContin and Endone on 29 August 2015. Second, the plaintiff conceded that his recall of events shortly thereafter was not good. Third, there is the uncontradicted evidence of Ms Miller that there was a system in place for the plaintiff to receive the correct diet, with a record of him receiving that diet on that day. Fourth, it appears that the plaintiff did not complain to any person about the chicken pieces until April 2017. Fifth, until the hearing of the matter, the plaintiff did not understand what a free fluids diet was. Sixth, the clinical records conflict with the plaintiff's evidence. In my opinion, this particular is not made out.
4. I now approach the section 5B and section 5C factors in turn, noting that section 5B says that 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

1. As to (a), the is no evidence that I can act upon that the risks as articulated by the plaintiff were foreseeable by reason of changing the plaintiff to a free fluids diet.

(b) the risk was not insignificant, and

1. As to (b), I find that the risk was in any event not significant. This finding is based on Dr Zarrouk's evidence (and Associate Professor Richardson to which see below) that the consumption of food was not material and contemporary practice would allow a patient to eat what he liked, and set the pace himself.

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

1. As to (c), I am satisfied that a reasonable person in the defendant's position took would take the precautions as set out by Ms Miller.
2. In determining whether a reasonable person would have taken precautions against a risk of harm, section 5B(2) requires a court to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

1. As to (a), I find that the probability that the harm would occur if care were not taken to be low, and I repeat the matters set out above.

(b) the likely seriousness of the harm,

1. As to (b), I find that the likely seriousness of the harm was such that it cannot be said to be that there was a real likelihood of the plaintiff sustaining serious harm.

(c) the burden of taking precautions to avoid the risk of harm,

1. As to (c), whilst the burden of taking the precautions to avoid the risk of harm set out in the evidence would not have been a significant financial burden on the defendant, the precautions were in fact taken.

(d) the social utility of the activity that creates the risk of harm.

1. As to (d), the question of social utility does not relevantly arise.
2. Further, section 5C requires a court, in proceedings relating to liability for negligence to consider:

(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

1. I repeat that the burden taken by the defendant was appropriate and reasonable.

(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

1. As to (b), I note that the fact that a risk of harm might have been avoided by doing something differently does not of itself give rise to or affect liability. I agree with Mr Kettle's submission that that the hospital's system as set out in Ms Miller's evidence was a cautious and responsible response to any risk of harm.

(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.

1. As to (c), it does not arise.
2. It follows that in my view, the defendant was not negligent as alleged by Particular 1.

The plaintiff's submissions with respect to Particular 2

1. With respect to the plaintiff's vomiting, his evidence in chief was that he vomited on three occasions each lasting about 30 seconds, with a period of rest, and then the wave came over him again and that he dry retched on many occasions. This is conflict with the hospital records. I find that the plaintiff vomited twice in the evening of 2 pm on 29 August 2015 and once after 4 am on 30 August 2015.
2. Mr Davies submitted that the gravamen of the complaint is not the nausea itself, but the failure of the nursing staff to refer the plaintiff to a doctor after he reported symptoms of nausea, vomiting and abdominal pain. He said that the evidence was that during a second wave of vomiting, the plaintiff felt a sharp pain at the wound area and he reported that to a male nurse. That pain, in the plaintiff's submission, was the tearing of the staples and it was submitted that there was a failing with regard to the standard of care by merely looking at the external part of the bandage. He said that it would have taken no additional effort or professional skill to remove the bandage, to ask more questions and try to identify what the pain was, that is if it was transient or something more serious. The plaintiff's case is that the nurses ought to have made preliminary inquiries of the plaintiff to ascertain what the pain was, what caused it and whether or not it was of concern. Further he said it was incumbent on them to look below the bandage at the wound and if it was warranted, refer it on to a medical officer.
3. Mr Davies conceded that there was no nursing expert to assist me. He said that it was put to Dr Zarrouk what his examination would have been, had he been bedside. He gave evidence that he would have put his hand over the bandage and that he would have palpated it. It was submitted that this was not an unreasonable standard to expect of a nurse.
4. Mr Davies said that I am entitled to hear from a medical practitioner what he or she expected a nurse to have done to assist the plaintiff. He submitted that it follows that what Dr Zarrouk would have done is not invasive and requires no medical expertise beyond a reasonably trained and skilled nurse to look at the wound. If the observation caused them concern, then they should have referred it to a medical practitioner.

The defendant's submissions with respect to Particular 2

1. The defendant submitted that the plaintiff's evidence was that at about 3 pm on 29 August 2015, he started dry retching badly with cramps in the stomach. At about 4 pm, he told a male nurse that he had been fed by mistake. His evidence is that until the court case, he was under the misapprehension that he could only have liquid, but not puréed food. In Mr Kettle's submission that explains the plaintiff's behaviour in the context of his complaint. It is consistent with his subsequent complaint made to Doctor Fulham. Mr Kettle submitted that we know that the plaintiff was not fed by mistake, but rather he was put on a free fluid diet. The defendant says that the nurse in fact looked at the bandage, that there was no blood or anything on it, and that he did not see anything. He left the room but later returned with medicine. The plaintiff then put himself on NBM, and he referred to a nurse being attentive after midnight when the nurse might have checked the wound, but in any event paid a fair bit of attention to the plaintiff. He believed he had a bout of vomiting through the night. Then, the next morning, he had a vague recollection that Dr Zarrouk pulled the bandage back and had a look at the wound.
2. The defendant submitted that the clinical records are business records completed by professionals. They are timed, and one would expect that if there was, for example, convulsions or retching or 30 vomits (as he told Dr Sethi), that they would appear in the notes. There is evidence that after his 2014 operation, following introduction of a free fluid diet, there are clinical notes recording retching and vomiting. In Mr Kettle's submission there were two vomits and he points to Dr Sethi's withdrawal from a position which relied upon the plaintiff telling him that he had 30 vomits.
3. Mr Kettle's starting point is that there is no evidence against the nurses. His fall-back position is that Associate Professor Richardson's comments are to be preferred because of his experience with respect to the actions of nurses in these situations.
4. Assuming that the plaintiff told nursing staff that he was nauseous, dry retching and vomiting, Dr Sethi was of the view that the nurses should have reported it to the resident or to Dr Zarrouk, as they ought to have been concerned that something was wrong. Associate Professor Richardson noted that in most surgical wards people vomit all the time. It would not be unusual for someone like the plaintiff, who had been NBM for five days, to have some vomiting as it is part of a refeeding syndrome. If it persisted, an RMO should be called. Dr Sethi was under the impression that the patient had vomited about 30 times and he had vomited repeatedly. Associate Professor Richardson noted that there is nothing in the clinical record of the plaintiff vomiting to that extent, and that he was appropriately given an antiemetic.
5. In my opinion, even allowing for the evidence of Dr Sethi and Associate Professor Richardson, there was no failure to refer the plaintiff to a doctor for examination during the 14 hours, from 2 pm on 29 August 2015 to 4 am on 30 August 2019. Accepting as I do that the clinical notes accurately record the plaintiff's complaints during that period, noting that the plaintiff was given pain relief and an antiemetic at 9.30 pm and later IV Maxolon (which settled his nausea), and accepting the plaintiff's evidence that he had attentive nursing care and that a nurse looked at his bandage and that the plaintiff himself could see nothing untoward, in my opinion calling the RMO at 5 am on 30 August 2015 was consistent with a reasonable standard of care to be expected. I note that Dr Nguyen, RMD, attended at about 5 am.

Section 5B and 5C factors: Conclusions on Particular 2

1. I now approach the section 5B and section 5C factors in turn, noting that section 5B says that 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

1. As to (a), the defendant did not contend that the risk in this instance was not foreseeable.

(b) the risk was not insignificant, and

1. As to (b), I find that the risk was not significant. This finding is based on the fact that the nurses provided pain and antiemetic relief, looked at the plaintiff's bandage, and then waited until 5 am to inform the RMO who arrived at about that time. The Upper GI team saw the plaintiff at 9.05am.

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

1. As to (c), I am not satisfied that a reasonable person in the defendant's position would have taken any precautions other than those noted above.
2. In determining whether a reasonable person would have taken precautions against a risk of harm, section 5B(2) requires a court to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

1. As to (a), I find that the probability that the harm would occur if care were not taken to be low, but I have found that care was taken.

(b) the likely seriousness of the harm,

1. As to (b), I find that the likely seriousness of the harm was such that it cannot be said to be that there was a real likelihood of the plaintiff sustaining serious harm. As I have said, the nurses appeared to have appreciated the significance of the plaintiff's complaints, and the plaintiff conceded that they were attentive.

(c) the burden of taking precautions to avoid the risk of harm,

1. As to (c), there was no relevant burden in circumstances where the plaintiff had reasonable nursing care.

(d) the social utility of the activity that creates the risk of harm.

1. As to (d), the question of social utility does not relevantly arise.
2. Further, section 5C requires a court, in proceedings relating to liability for negligence to consider:

(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

1. As to (a), I find that the financial burden to the defendant to avoid similar risks of harm is not known on the evidence. It was not suggested by the plaintiff that there was a staffing issue with respect to the nurses.

(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

1. As to (b), I note that the fact that a risk of harm might have been avoided by doing something differently does not of itself give rise to or affect liability. I agree with Mr Kettle's submission that the nurses' acted cautiously and responsibly in response to the risk of harm.

(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.

1. As to (c), it does not relevantly arise.
2. It follows that in my view, the defendant was not negligent as alleged by the plaintiff in Particular 2.

The plaintiff's submissions with respect to Particular 3

1. Mr Davies submitted that there was a continuing breach after the expiry of a reasonable period of 1.5 hours to the time the plaintiff was examined at 5 am on 30 August 2015. For this submission, Mr Davies relies on the evidence of Dr Sethi (see below). He said that had the staples not "torn", the redness would not have developed to infection with discharge, and the hospital would have continued to treat the underlying infection with antibiotics without the need to remove the staples. I note that no infectious diseases expert gave evidence in these proceedings. Further, Mr Davies submitted that had the defendant referred the plaintiff to a medical officer within a reasonable time, the most likely form of treatment would have been the removal of the staples and the application of the VAC dressing on the small section of dehisced wound at the location of the two staples to assist with healing.
2. Mr Davies agreed that the infection occurred at the operation which was a risk in any event, and that the presence of the stoma may have increased the risk. However, he said that there was a short and critical delay of about 14 hours. He submitted that 1.5 hours would have been reasonable. He further said that if the risk of infection was known, then it imposes a higher standard. That standard is higher when there is a possibility of infection and the plaintiff had an expectation that any sort of complaint would suggest that his wound had been compromised. He conceded that this was not to be found in the pleading.

The defendant's submissions with respect to Particular 3

1. Mr Kettle submits that there was no unacceptable delay. Associate Professor Richardson concluded that there was no evidence in the medical record to support the allegation that there was any delay in the Plaintiff's wound dehiscence, and that the treatment provided by nurses was appropriate.
2. Assuming that the nursing staff did not inspect the wound immediately upon the plaintiff telling the nursing staff he felt a sharp pain in his wound following dry retching and vomiting, Dr Sethi said that they ought to have inspected the wound because the plaintiff reported one stitch coming apart and dehiscence. Associate Professor Richardson noted that the wound was inspected early in the morning of 30 August 2015, the day after he started to vomit. It was appropriate that the wound was then inspected by a doctor. He also said that even if there was a delay, it made no difference to the outcome (see below).
3. As to the alleged delay in alerting a medical officer, in concurrent evidence Dr Sethi noted that an RMO was called at 5 am on 30 August 2015 many hours after the vomiting the day before. Mr Kettle put to Dr Sethi that late in the afternoon on 29 August 2015 a male nurse had looked at the plaintiff's bandage but there was no blood. Dr Sethi thought that the wound should have been more thoroughly examined and antiemetics given much earlier than they were. Even though Dr Sethi accepted that there was an attentive nurse present throughout the night, he did not think that the nurse was sufficiently attentive, and the patient should have been assessed by a medical officer. In his opinion, a medical review ought to have taken place soon after the retching reported at 3 pm on 29 August 2015. Dr Sethi agreed that the review of the clinical notes at about 5 am on the 30 August 2015 do not suggest that there was any surgical or other crisis. I have found that the plaintiff did not complain of dry retching.
4. Associate Professor Richardson said that his reading of the notes is that the plaintiff felt unwell at about 9:30 pm on 29 August 2015 because he had vomited twice during the evening. An antiemetic was given at that stage, and it was relatively quiet until the next nursing entry at 4 am on 30 August 2015 when the wound was examined and intravenous Maxolon was prescribed. At 9 am on 30 August 2015 the plaintiff's nausea had resolved, and during that day his stoma was working and he was tolerating a free fluids diet without any difficulty. Associate Professor Richardson saw no reason for a doctor to be called on the evening of 29 August 2015.
5. In my opinion, relying primarily on the evidence of Dr Zarrouk, it cannot be said that there was true dehiscence of the wound. The plaintiff developed an infection on the surface of his wound that was present on 30 August 2015/ At 4am, the top, bottom and middle of the wound was noted by nursing staff to be red. There is no evidence before me to suggest that there was a reason for the nurses to call an RMO at any time before 5 am which occurred when Dr Nguyen arrived. He did not note dehiscence. Further, a nurse looked at the plaintiff's wound during the night, on the plaintiff's own evidence, and saw nothing untoward. Further, there is no evidence before me from an appropriately qualified expert to suggest that there was a material, let any alone any delay in the diagnosis and treatment of the plaintiff's wound on the part of nursing staff from 2 pm on 29 August 2015 to 5 am on 30 August 2015.

Section 5B and 5C factors: Conclusions on Particular 3

1. I now approach the section 5B and section 5C factors in turn, noting that section 5B says that 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

1. As to (a), the defendant did not contend that the risk was not foreseeable.

(b) the risk was not insignificant, and

1. As to (b), I find that the risk was not significant. I make this finding on the absence of any evidence to the contrary, and the fact that the plaintiff was treated and then released within a week.

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

1. As to (c), I am satisfied that a reasonable person in the defendant's position took appropriate precautions.
2. In determining whether a reasonable person would have taken precautions against a risk of harm, section 5B(2) requires a court to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

1. As to (a), I find that the probability that the harm would occur if care were not taken to be low, and I repeat the matters already set out above.

(b) the likely seriousness of the harm,

1. As to (b), I find that the likely seriousness of the harm was such that it cannot be said to be that there was a real likelihood of the plaintiff sustaining serious harm by any alleged delay. As I have already found, the plaintiff was appropriately treated by medical staff (about which there is no dispute), and he soon thereafter recovered.

(c) the burden of taking precautions to avoid the risk of harm,

1. As to (c), there is no evidence about the burden of taking precautions to avoid the risk of harm. No complaint was made by the plaintiff about nursing staffing issues.

(d) the social utility of the activity that creates the risk of harm.

1. As to (d), the question of social utility does not relevantly arise.
2. Further, section 5C requires a court, in proceedings relating to liability for negligence to consider:

(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

1. As to (a), I find that any financial burden to the defendant to avoid similar risks of harm is not known on the evidence.

(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

1. As to (b), I note that the fact that a risk of harm might have been avoided by doing something differently does not of itself give rise to or affect liability. I agree with Mr Kettle's submission that the defendant nurses' response was cautious and responsible response to the risk of harm.

(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.

1. As to (c), it does not relevantly arise.
2. It follows that in my view, the defendant was not negligent as alleged by the plaintiff in Particular 3, and his case therefore fails.

Causation: Sections 5D and 5E of the Act

1. Section 5D(1) of the Act is a statutory restatement of the "but for" test of causation: Strong v Woolworths Ltd [2012] HCA 5 at 18. The determination of factual causation requires the plaintiff to prove that he would not have suffered the particular harm, but for the defendant's negligence.
2. The relevant sections of the Act provide: 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 proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
3. In the present case, the parties agree that section 5D(2) had no application. In any event, I am not satisfied that in all the circumstances that there was a breach of duty amounting to negligence, so that the question of causation under section 5D(1) does not arise.
4. It follows that in my opinion, the plaintiff has not made out his case in negligence, which must necessarily fail.
5. Notwithstanding those comments, Associate Professor Richardson and Dr Sethi gave evidence on causation, both by way of report and concurrently on 10 December 2019, and I will briefly address the issue.
6. Associate Professor Richardson is an Associate Professor at the University of Sydney. He is also a hepato-biliary, upper gastrointestinal, laparoscopic and general surgeon. The date of his report is 16 February 2019. Dr Sethi reported on 9 July 2018, 2 November 2018 and 3 April 2019. He is a gastroenterologist and hepatologist.
7. A joint report of Associate Professor Richardson and Dr Sethi was prepared in accordance with court orders on 11 October 2019. Both doctors agreed that broth with chicken solids did not meet the definition of a free fluid diet although Associate Professor Richardson believed that after straining the chicken soup, if the soup contained small pieces of chicken, it was still compliant. In his view, it was not uncommon for someone on a free fluid diet to have a little bit of solid material in their soup. Both agreed that clear broth, cream of soups, or soup without solids, met the definition of a free fluids diet. Dr Sethi was of the view that the plaintiff should not have received any solids at 29 August 2015.
8. As to the risk of wound infection, both Dr Sethi and Associate Professor Richardson agreed that if the plaintiff was a smoker at the time, the risk would have increased. Dr Sethi said that he believed that a little bit of dry retching and vomiting would not affect the risk of wound breakdown. However, if there was forceful vomiting and dry retching then it could affect breakdown. Associate Professor Richardson said vomiting or dry retching may have increased risk of wound breakdown, but there were multiple factors involved in this case, and this was only one of many. As to whether or not a meal which was noncompliant as a free fluids diet may have contributed to dry retching and vomiting, both doctors agree that it may have, but Associate Professor Richardson says not significantly. As to whether the wound breakdown was a contributing factor to the plaintiff's incisional hernia, Dr Sethi says it was a major contributing factor. Associate Professor Richardson says it was not. His position is that some skin breakdown (as here) would have not have been a contributing factor. If there was a breakdown of the muscle wound, that would have contributed to the incisional hernia. However, Associate Professor Richardson notes that Dr Zarrouk saw the plaintiff approximately 3 months later and observed that there was weakness in the anterior abdominal wall but no obvious incisional hernia, which was a clinical diagnosis.
9. Both doctors agree that at 9:05 am 30 August 2015 staples came off and there was some separation of the skin. Both doctors agree that it is not possible to say exactly when the incisional hernia developed, except that it was some time after the operation. Dr Sethi said that had the wound been treated on 29 August 2015, he would have been more likely to be a suitable candidate for reversal of the Hartmann's procedure. In his view, the hernia development that day made him less likely to be a candidate for the reversal. Associate Professor Richardson was of the opinion that any earlier treatment on 29 August 2015 would not have made a difference as to whether or not the plaintiff was a candidate to have the reversal in the future.
10. Both doctors agree that the plaintiff was malnourished on admission and post operatively, which would have increased the risk of wound breakdown and infection. Associate Professor Richardson was of the view that it would have significantly increased the risk.
11. In concurrent evidence, Dr Sethi said that a person who is on a free fluids or full fluids diet should not have visible food pieces because that person has recently undergone a bowel obstruction and his bowels are no longer functioning. Associate Professor Richardson said that it is mostly a convention. In the past, one would often start patients who had had an operation on clear fluids followed by free fluids followed by a light diet. In fact, he says that does not happen nowadays, but the reason for not having large food pieces is in part because they would feel worse if they vomit. He said it would be quite common for strains of soups to have tiny or small visible food particles which are of no concern whatsoever and that the idea that food particles themselves will induce vomiting is, in his opinion, very difficult to prove. Why someone would vomit after major operation is multifactorial and the cause of vomiting is difficult to ascertain even in retrospect. Dr Sethi said that a 1 cm² food piece would be too big, and would not have gone through a strainer and should never have been present. In his view, that could easily have triggered the patient to vomit, particularly in the context of him having had major recent surgery.
12. As to the plaintiff's vomiting, Dr Sethi said the key factor is that the plaintiff was fed inappropriately. Associate Professor Richardson disagreed and said that there are multiple factors involved in the development of incisional hernias or indeed in the development of vomiting. He said that he deals with people with bowel obstructions every day or at least every week, and he believed that ingesting a small piece of food would not be a major precipitating factor. Dr Sethi said that he does not deal with bowel obstructions regularly.
13. Associate Professor Richardson pointed out that because the nasogastric tube was removed at 1 pm on 29 August 2015, one would not expect vomiting whilst it was present. As to the cause of the vomiting and nausea reported on that day, Associate Professor Richardson says that the plaintiff probably vomited because of oral intake, whether it was fluid or the presence of small food pieces. He also had a degree of ileus which had not resolved. Associate Professor Richardson said it is not uncommon for people when they start oral intake after fasting for some days to get some nausea or vomiting.
14. Dr Sethi said the cause of the vomiting was unequivocally his upgrade to a free fluids diet. In response to a question asked by Mr Kettle, Associate Professor Richardson said that it was likely related to the plaintiff's upgrade of oral intake to a free fluids diet, but not to any unacceptably sized pieces of chicken. Dr Sethi disagreed. He said it was the single fact that he was given solids when he should not have been which triggered the vomiting. He did not think it was the upgrade that caused the vomiting. He later conceded that on occasion an upgrade to a free fluids diet could set off nausea and vomiting.
15. Dr Sethi said that the solid food piece was the major cause of the patient's vomiting, that the vomiting was very forceful, that the plaintiff had vomited repeatedly on a number of occasions that day, and that is what caused his staples to open. Further, he said that after this vomiting episode and his stitches opening up, he reported having wound dehiscence later the same day. Both doctors agreed that the nurses reporting redness around the wound on 28 August 2019 meant that they ought to have been monitoring the wound, (which they did) but nothing more.
16. Dr Sethi said if there was a simple wound infection, it could reasonably be treated with antibiotics. However, if there were signs of the wound coming apart, and a suspicion of an underlying collection or abscess or fluid, one should give consideration to a return to the operating theatre. His understanding of wound dehiscence, is the wound coming apart or the stitches opening up and the wound coming open. Dr Sethi would not address a superficial wound operatively. If it was a superficial wound, then treatment by the hospital was appropriate. I note that these comments are outside the pleaded case.
17. Associate Professor Richardson said that we need to very much discriminate between a superficial and a deep wound dehiscence. The plaintiff was at risk of all of these things for a variety of reasons. In a superficial wound with simple dehiscence, removing staples to let the wound drain and then applying VAC dressing is entirely appropriate.
18. Both doctors agreed that the determination of an incisional hernia is a clinical diagnosis rather than a radiological diagnosis, and that Dr Zarrouk was in the best position in November 2015 to make the diagnosis when he examined the plaintiff.
19. Dr Sethi said that if the plaintiff only vomited a maximum of three times it was possible, that damage was caused either to the sutures or the deep seated sutures. Associate Professor Richardson noted, relying on the records, that the plaintiff had vomited twice during the evening and there was no record of him vomiting repeatedly on multiple occasions. He also noted that the plaintiff had three hernias on admission which meant that he did not have a strong abdominal wall to begin with.
20. Dr Sethi said that the most likely source of the plaintiff's infection was from the surgery, and that he should have been treated first by removing the two staples, and then one could subsequently remove the balance to address superficial infection. Associate Professor Richardson agreed and said that the risk of infection in this plaintiff was much higher because he had a stoma very close to where his wound was. It was also increased, because it was an emergency operation, because he was malnourished and because he was smoking.
21. Dr Sethi accepted that the plaintiff was at a moderate risk of getting an incisional hernia in any event because he had weakness in the wound, he had three hernias on presentation which indicate a weakness in his connective tissue, that his nutrition was not good, that he had had two operations within the year and that he smoked. Further, he agreed that the plaintiff had a wound infection postoperatively which was a factor that put him at a high risk of incisional hernia. He agreed that these were all inherent risks pointing to a poor outcome following the operation. Associate Professor Richardson said that all of the factors mentioned were very important in terms of the development of the incisional hernia.
22. Dr Sethi and Associate Professor Richardson disagreed strongly about whether or not there was an indication to take the plaintiff to the operating theatre on either 29 or 30 August 2015. (I note the plaintiff makes no such allegations on the pleadings.)
23. Mr Kettle says that I would prefer the evidence of Associate Professor Richardson. First, because he has carried out these types of operations multiple times and second, because, as Associate Professor Richardson said on various occasions during concurrent evidence, Dr Sethi has not had the surgical management of patients like the plaintiff. He also pointed to the fact that Associate Professor Richardson said that when one is upgraded to a free fluids diet, you can expect nausea and some vomiting as your body would have a reaction to being reintroduced to food. The clinical notes record that the plaintiff had coughing and vomiting episodes when upgraded to a free fluids diet in 2014, and eventually tolerated free fluids in 2015.
24. In his written submissions, Mr Kettle submitted that Associate Professor Richardson's opinion should be preferred over that of Dr Sethi for these reasons: 1. Associate Professor Richardson's experience and qualifications give greater weight to his opinion than to that of Dr Sethi; 2. Associate Professor Richardson's opinion is not contaminated by assumptions not proven in evidence provided by the plaintiff to Dr Sethi, and upon which his opinions were based, such as the plaintiff coughing 30 times and that he was a non-smoker; 3. Associate Professor Richardson's opinion takes into account the risk factors for the development of an incisional hernia, including pre-existing weakness of the abdominal wall, development of post-operative wound infection, the plaintiff's smoking, the plaintiff's history of coughing, the plaintiff's malnourishment which predisposed him to poor wound healing and documented redness around the wound on 28 August 2015 which predated the plaintiff's vomiting on 29 August 2015; 4. The plaintiff was at risk of vomiting regardless of the diet as he had been obstructed for some days pre-operatively and had had a post-operative ileus; 5. Associate Professor Richardson noted that vomiting was common when patients restart oral intake (supported by the plaintiff's reaction after the 2014 operation and his reintroduction to free fluids diet); 6. It was not credible to suggest that vomiting was precipitated only by the presence of some chicken solids. Free fluids diet did not mean liquid only diet or clear fluids only, demonstrated by the introduction of yoghurt and smooth soups; 7. There was no record of an incisional hernia until after 16 November 2015 when Dr Zarrouk examined the Plaintiff, by which time the hernia would be expected to be present; 8. To reoperate in the presence of infection was contradicted by Dr Zarrouk and was likely to result in a repeat infection; and 9. Any vomiting on the evening of 29 August 2015 was at most a very minor contributing factor. There was no record of dry-retching, as there was in 2014.
25. In Mr Davies' submissions, he states that where the opinions of Dr Sethi and Associate Professor Richardson are in conflict, Dr Sethi's evidence ought to be accepted in preference. He notes that Dr Sethi examined the plaintiff and took an independent history. Associate Professor Richardson did not examine the plaintiff, and his history is premised on a review of the clinical records alone. Mr Davies submitted that the quality of the nursing records are only as accurate as the information recorded, which is largely influenced by what the nurse considers to be relevant and important.
26. With respect to Dr Zarrouk's evidence, Mr Davies submitted that Dr Zarrouk's evidence was unreliable. He said that his evidence is predicated on justification of his own conduct in the care of the plaintiff. Although no criticism was levelled at Dr Zarrouk, Mr Davies said his evidence was influenced by justification of his own actions and clinical decisions. I note that no such suggestion was put to Dr Zarrouk, and I reject this submission.
27. In my opinion, the evidence does not establish causation with respect to Particular 1, 2 or 3. First, the experts agree that the plaintiff was at a high risk of infection, and they agreed that the infection likely had its genesis at the operation. I have already found that the plaintiff was not fed any chicken pieces as described in his evidence. I have also found that he vomited three times only over the afternoon of 29 August 2019 and the morning of 30 August 2019. The inevitable consequence of the infection, which I find at that time was superficial only, was that the staples dislodged. I cannot accept on the evidence before me that but for the alleged failure by nursing staff to refer the plaintiff to a doctor at some earlier time between the afternoon of 29 August 2019 and the morning of 30 August 2019 and/or a delay in diagnosis and treatment by nursing staff of a dehisced wound, the plaintiff would not have suffered the harm alleged, i.e. the incisional hernia and the a loss of the opportunity to reverse the Hartmann's procedure.

Section 5O of the Act

1. All allegations are made against the nursing and non-professional staff of the defendant. No allegations are made against any doctor.
2. The defendant conceded that its defence pursuant to section 5O of the Act could not be maintained with respect to the allegation that it had provided the plaintiff with inappropriate food (Particular 1), as the person who provided the plaintiff with food on 29 August 2015 was not a person practising a profession. In my opinion, it can also not be maintained with respect to Particulars 2 and 3, as there is no evidence from a nursing peer establishing competent professional practise.
3. Section 5O provides:- 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.
4. Neither Associate Professor Richardson nor Dr Sethi is a peer of the nurses who cared for the plaintiff on the material date, and the defendant cannot rely on Associate Professor Richardson's opinion to satisfy section 5O (1) of the Act. I therefore reject any defence based on this section of the Act.

Section 5I of the Act

1. The defendant also relied on section 5I of the Act. It provides:- 5I No liability for materialisation of inherent risk (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. (2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. (3) This section does not operate to exclude liability in connection with a duty to warn of a risk.
2. What must be identified under section 5I of the Act is the particular risk that cannot be avoided with the exercise of reasonable care and skill. Mr Kettle relied on Paul v. Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 and Sparks v. Hobson; Gray v. Hobson [2018] NSWCA 29, where Basten JA described the section as operating when the skill of a surgeon does not affect the risk of adverse outcome (at [44]). Section 5I is not engaged if a plaintiff cannot establish causation (at [45]). Mr Kettle submitted that section 5I was engaged in the present case because both the plaintiff's infection and his incisional hernia could not be avoided with the exercise of reasonable care and skill.
3. Section 5I provides that a person is not liable in negligence for harm suffered by another person as a result of a materialisation of an inherent risk, defined as a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. In Paul v Cooke [2013] NSWCA 311 at [52], Leeming JA observed that if the case can be decided under s 5I it should be, and once s 5I is engaged there can be no liability for a failure to exercise reasonable care and skill. Mr Kettle submitted that even if the defendant was negligent in serving soup containing solids or delayed informing a medical officer in the period from 29 August to 30 August 2015, it is not liable in negligence for the harm suffered by the Plaintiff and/or arising from infection or incisional hernia, as even Dr Sethi conceded, these were inherent risks of the operation.
4. Mr Davies submitted that in medical negligence claims, if the court finds that the defendant failed to act with reasonable care and finds a causal link from breach to injury, the provisions of s5I are not enlivened.
5. In my opinion, the defence or "safe harbour" pursuant to section 5I is made out. In the present case the inherent risks of infection and incisional hernia were likely to materialise given the multiple factors that made the Plaintiff more prone to infection and incisional hernia, such that in my view the identified risks of harm could not have been avoided by reasonable care and skill: Menz v Wagga Wagga Show Society Inc (No 3) [2019] NSWSC 541 per Bellow J.

Damages

1. In the event that I am wrong about liability, I turn to an assessment of damages had the plaintiff succeeded. I make the following assessment on the basis that the plaintiff had proved that the negligence caused the harm complained of, i.e. that he developed an incisional hernia which in turn caused a loss of an opportunity (proved on the balance of probabilities) to have his Hartmann's procedure reversed: see Tabet v Gett [2010] HCA 12. I accept for the purposes of this judgment that in all of the circumstances, that the plaintiff has in fact lost that opportunity. Notwithstanding some conflicting opinions about the possibility of the performance of the reversal, and noting that the defendant has not pleaded that the plaintiff has failed to mitigate his loss, in my opinion, it is not unreasonable that the plaintiff has chosen not to proceed with an attempted reversal of his Hartmann's procedure.
2. It is trite law to say that if a plaintiff can prove that harm has been caused by a tortfeasor, that plaintiff is entitled to damages reflecting his or her reasonable, as opposed to optimal needs. In this case, there are some disputes about causation of harm and the plaintiff's reasonable needs assuming causation is made out. As to the whether or not the plaintiff has suffered the harm he alleges as a result of the incident, I note below the plaintiff's evidence as to his injuries.
3. As to the plaintiff's reasonable needs, I note that in Arthur Robinson (Grafton) Pty Limited v Carter (1967-1968) 122 CLR 649, the High Court considered the method of assessment of damages in a motor vehicle case involving a plaintiff who was rendered quadriplegic. In that case Barwick CJ said, at 661, that "the question is not what are the ideal requirements, but what are the reasonable requirements of the plaintiff", and at 662 that "the sum to be awarded in compensation is not calculable by any mathematical process. At best it is and must remain a matter of judgment". In arriving at judgment on those issues, a court "must hearken to all of the evidence including the opinions of medical practitioners but, having done so, to come to its own conclusion on the question, not being bound to any opinion, however expert or apparently expert any witness expressing it may be": see Moran v Nominal Defendant [2008] NSWSC 804, where the principles are briefly collected by Hislop J at [38].
4. These are the principles which must be applied when determining the plaintiff's likely award of damages.

Failure to Call and Cross-examine Witnesses

1. Before briefly considering the medical evidence, I observe that the parties conducted the trial without calling expert witnesses on damages for cross-examination, and did not avail themselves of the court's practice and procedure for the calling of concurrent evidence. It cannot be said that the medical expert reports were not at all in conflict. Indeed, on some material issues they were. In particular on the questions of the Hartmann's reversal and the reasonable needs of the plaintiff, they were far apart. That the parties chose not to call the medical experts for cross-examination put the court at a disadvantage: see Cupac v Cannone [2015] NSWCA 114, and Majkic v Bonanno [2008] NSWCA 253.

Dr Siddarth Sethi

1. Dr Sethi examined the plaintiff on 1 November 2018. He was of the view that the plaintiff was not a candidate for reversal of his Hartmann's procedure, given the large size of the hernia and the thinning of his skin. He believed that there was a risk of the incisional hernia becoming strangulated in the future which would necessitate surgery.

Dr Tim Anderson

1. Dr Tim Anderson, occupational physician, reported for the plaintiff on 21 February 2019. His curriculum vitae and a letter of instruction were appended to his report. I note that he is a fellow of the Australasian Faculty of Occupational and Environmental Medicine which indicates that he specialises in preventative approaches to accidents in the workplace.
2. Dr Anderson noted that that the plaintiff was able to do all the housework and could cut his grass. He had difficulty lifting and bending, and could pull but not push. He was of the view that the plaintiff was fit to continue with some of the demands of his occupation, noting that he was able to manage the high-pressure hosing. Dr Anderson thought that the plaintiff ought not to lift more than 8 kgs. He believed the plaintiff fit for light work of all kinds.

Associate Professor Michael Robertson

1. Associate Professor Robertson, psychiatrist, provided a medico-legal report for the plaintiff dated 8 April 2019.
2. In Dr Robertson's opinion the plaintiff described symptoms consistent with a chronic Adjustment Disorder with anxiety and depressed mood caused by his treatment at Campbelltown Hospital. He recommends fortnightly psychological therapy at the cost of $240 to $270 per session.

Susie Mullen

1. Susie Mullen, occupational therapist, reported for the plaintiff on 15 February 2019. She examined him in his home for 1.5 hours on 31 January 2019. She believes that from the date of his operation until the date of assessment, he received gratuitous care and assistance, ranging from .5 hrs per week, 4.38 hours per week, 2.08 hours per week and 1.08 hours per week.
2. Ms Mullen found that the plaintiff was able to manage his personal care, and to drive in the community.
3. As to future paid assistance, Ms Mullen was of the view that the plaintiff requires 2 hours assistance per week for cleaning, 2 hours assistance per week for gardening, a recliner chair, a vacuum cleaner, a monthly car wash and an allowance for moving assistance should he move house in the future.

Dr Martin Allan

1. Dr Martin Allan, psychiatrist, provided a report for the defendant on 16 April 2019. Like Associate Professor Robertson, Dr Allan diagnosed the plaintiff as suffering from an Adjustment Disorder with depressed mood as a result of the stress associated with the dehiscence of his wound. He is of the view that the plaintiff would benefit from 10 to 12 sessions with a psychologist at a cost of about $300 per session.

Dr Luba Eikens

1. Dr Luba Eikens, rehabilitation specialist, reported for the defendant on 8 April 2019. She believed that the plaintiff was independent in self-care and was able to perform the majority of domestic duties. She was of the view that heavier duties might cause the plaintiff discomfort, and that he might require gardening and maintenance assistance. In Dr Eikens's opinion, the plaintiff was fit to continue in both his current employments.
2. In Dr Eikens's opinion, if the plaintiff lived alone, he would require 2 hours maintenance and gardening assistance per month.

Associate Professor Michael Hollands

1. Associate Professor Michael Hollands, general surgeon, reported for the defendant on 24 January 2019 and 10 April 2019. He examined the plaintiff on 5 February 2019.
2. In Associate Professor Hollands's opinion, the plaintiff's incisional hernia could be repaired and his stoma closed, but the procedure would require complex decision making, and it is possible that the plaintiff would require at least two operations to achieve closure of his colostomy and repair of his hernia.

Non-economic loss

1. The principles with respect to the awarding of non-economic loss damages are well known.
2. What then is the extent of Mr Hawkins' non-economic loss? An award of non-economic loss is an evaluative judgment: see Clifton & Ors v Lewis [2012] NSWCA 229 per Beazley JA at 33. Section 16 of the Act speaks of the court determining "a most extreme case". The interpretation of those words in the decisions of Dell v Dalton (1991) 23 NSWLR 528 and Southgate v Waterford (1990) 21 NSWLR 427 (considering the like provision of section 79 of the Motor Accidents Act 1988) is therefore relevant. More recently, the Court of Appeal considered those words in Zhang v Golden Eagle International Trading Pty Ltd & Ors [2006] NSWCA 25.
3. In Southgate, the Court of Appeal held that the amount to be recovered as damages for non-economic loss is not to be calculated in accordance with common law principles up to the statutory maximum, but suggested the following three-stage process by which it would be appropriate for a trial judge to approach the question of apportionment of non-economic loss: 1. consider and make findings on the elements in the evidence which are relevant to non-economic loss, being those relevant to an award of general damages; 2. conceive a (not the) most extreme case (which the court noted would certainly include quadriplegia); and 3. award damages between nil and the statutory maximum in the ratio which the judge determines, keeping in mind that the maximum is retained for "a most extreme case".
4. In Zhang, Basten JA said that the purpose for which the assessment of severity is to be made is to identify the effect of the injuries suffered by a particular plaintiff.
5. In Coleman v Barrett [2004] NSWCA 27, Gzell J said at 63: Non-economic loss is defined in the Civil Liability Act 2002, s 3 as pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. Section 16(3) is like the Motor Accidents Act 1988, s 79A. It requires a judge, if the severity of the non-economic loss is equal to or greater than 15% of a most extreme case, to determine the severity of the non-economic loss as a proportion of the non-economic loss of a most extreme case. It has been said that the task under such legislation involves reaching a point where further reasoning is impossible and it is necessary to make a determination which is insusceptible to entirely logical exposition (Southgate v Waterford (1990) 21 NSWLR 427 at 442) and that the assessment of general damages is an evaluative process in respect of which minds may reasonably differ (Woolworths Ltd v Lawlor [2004] NSWCA 209 at [14]). Nonetheless, the statute requires a comparison to be made of the non-economic loss suffered by a plaintiff against the non-economic loss in a most extreme case. The statute does not require the comparison to be made against the most extreme case imaginable. In Kurrie v Azouri (1998) 28 MVR 406 at 413, Sheppard AJA said: "The expression a most extreme case' requires some discussion. It enables one to provide oneself with a yardstick as to what the legislature had in mind. A court considering the question will need to contemplate what in practical terms is embraced by a most extreme case'. Immediately one considers such a case, one thinks of cases of quadriplegia, perhaps some serious cases of paraplegia, cases of serious brain damage and, perhaps, some cases of extremely serious scarring and disfigurement caused, especially to young children, by scalding or burning. No doubt there are others."
6. See also Berkeley Challenge Pty Ltd v Howarth [2013] NSWCA 370 at [5] and generally Hall v State of New South Wales [2014] NSWCA 154 per Leeming JA.
7. I note that as of 1 October 2019, the statutory maximum for non-economic loss under the Act is $658,000.
8. The plaintiff gave evidence that having a colostomy bag causes him many difficulties. It smells, and the plaintiff is aware that when he eats, it generates wind and he must watch where he is, what he is doing, and who he is with. At work, if he sweats too much, the bag falls off which is extremely unpleasant. He feels embarrassed by it, and he believes that children stare at him. It makes funny noises. He has to change it two or three times a day and feels uncomfortable doing so in a public bathroom. He must take extra precautions when he is leaning up against anything. He pays a $50 per year membership to the Colostomy Society who supply all of the bags. So far as sleeping is concerned, the plaintiff says that he must sleep on his right side because if he sleeps on his left side he risks rolling over onto the bag and if there are contents in the bag, they will come out. He also has a very unsightly incisional hernia. That manifests as a protrusion on his stomach which was not present prior to August 2015. The plaintiff feels that the hernia is ugly. He said the fact that he has a colostomy bag affects his ability to form a relationship with a female. He is very self-conscious about it and believes that it has adversely affected his sex life, which he "rated at zero". The plaintiff said that he could not bend or crouch as he once did, and he cannot lay down on his stomach. The plaintiff said that he has a boat, but he is now unable to take it out because of the constant bumping which makes him feel extremely uncomfortable. As a result, he is unable to fish.
9. The plaintiff said that he currently lives at home with his two daughters who are aged 28 at 18. The plaintiff still mows the lawns but it is difficult. He discusses his medical condition with his daughters, but he is not the type of person to discuss his feelings very much. He has not sought any formal treatment from a psychologist or psychiatrist. If he were recommended to have some sort of psychological treatment, he said that he probably would not go. If he thought he had a definite problem, he might. I note that the evidence is unequivocal that he has a recognised psychiatric illness.
10. The plaintiff said that he had anticipated being a sewing machinist well into his 70s
11. The plaintiff gave evidence that prior to August 2015 he was expecting to have a reversal of his Hartmann's procedure under the care of Dr Fulham.
12. I found the plaintiff to be both credible and stoic when disclosing living with a colostomy bag. He did not appear to be exaggerating his symptoms or feelings. If anything, I believed him to understate the effects on his life.
13. In the present case, it is agreed that the plaintiff has a life expectancy of approximately 86 years of age. He thus has approximately 26 years ahead of him (multiplier 768.7). Whilst the plaintiff's age is relevant to the assessment of non-economic loss, it is only one of many factors: Reece v Reece (1994) 19 MVR 103, Varga v Galea [2011] NSWCA 76 at [73]. Accepting for the purpose of assessing damages only that the plaintiff cannot reasonably have his Hartmann's procedure reversed, which in my view is a significant loss of amenity, I allow 38% of a most extreme case, or $250,000.

Past out-of-pocket expenses

1. The parties have agreed on past out of pockets at $2500.

Future out-of-pocket expenses

1. The plaintiff has said that he will not avail himself of psychiatric assistance, and I therefore make no allowance for such treatment. The plaintiff would have required a recliner chair and a vacuum cleaner in any event, and I do attribute any need for them to this incident.
2. Aside from the cost of the items associated with maintaining his colostomy, the evidence is silent as to the cost of any medical review, or indeed any other item claimed.
3. The defendant suggests that I award a buffer of $7000, which exceeds the $170 per year ($3.27per week) for expenses associated with his colostomy found in the report of Ms. Mullen.
4. In the absence of evidence as to cost, I award $7000 as a buffer for future out-of-pocket expenses.

Gratuitous care in the past

1. Whatever assistance the plaintiff has had in the past, there is no evidence that it has ever satisfied the threshold set out in section 15 of the Act. I make no award under this head of damage.

Future commercial care

1. The plaintiff claims domestic assistance at commercial rates. The Plaintiff has 2 daughters who live with him on and off, and has a friend that stays with him 1 week every few weeks. The friend helps out with the garbage bins and other small tasks. Otherwise the plaintiff is required to care for the house both indoors and outdoors.
2. The plaintiff relies on the opinions of Ms Mullins in support of both need and cost. The plaintiff claims commercial domestic assistance at 2 hours per week at $36.50 per hour ($73 x 768.7 x 0.85 vicissitudes adverse over favouable = $47,697), gardening and outdoor maintenance assistance at 2 hours per week at $60 per hour ($120 x 768.7 x 0.85 = $78,407) and car cleaning at $9.21 per week ($9.21 x 768.7 x 0.85 = $6,018).
3. Mr Kettle submitted that because the plaintiff does not live alone, no commercial care is required. It was further submitted that on any view of the evidence, no sum for this head of damage should be awarded. Any assessment of future commercial care was urged to be in line with Dr Eikens's prescription 2 hours per month at (say) $38.50 per hour until age 80 years (0.5 hours per week x $38.50 per hour x 666.4) or $12,828.20 should it be awarded.
4. In my opinion, taking into account the undisputed evidence that the plaintiff should not lift more than 8 kgs, and that he has genuine issues with his stomach muscles, it would not be unreasonable for the plaintiff to have assistance of 2 hours per week for cleaning, gardening, maintenance and car washing. I allow $73 per week x 768.7 x .85 = $47,697.

Past Economic Loss

1. It was suggested to the plaintiff by Mr Kettle that he has earned more money since the injury and his annual income was higher. So much is generally borne out by the tax returns and payment summaries. The plaintiff agreed that his general practitioner had certified him fit to resume normal duties from 19 October 2015.
2. In respect of past loss of earnings capacity, Mr Davies says that but for the negligence of the defendant, the plaintiff would have had the capacity to increase his hours with one or both of his employers with an attendant increase in his income. The plaintiff claims that an income of $60,000 was achievable, and he claims the difference between $60,000 and his actual income for financial years 2016 to hearing, which amounts to approximately $56,000. He also claims the loss of superannuation at 9.5% on that amount, or $5,738.65.
3. The plaintiff gave evidence that he currently works for a cleaning company where he cleans a turkey slaughterhouse. He said that his average fortnightly wage is about $1600 gross. He commenced working at the plant in 2007. His average working week is five days, and at present he uses the high-pressure hose to clean the blood tunnel and the plucker room. He also cleans the walls and floors. Prior to his operation in October 2014, he worked in different sections. Following that operation, he had to modify his work because of the colostomy bag.
4. After being discharged from hospital in September 2015, the plaintiff returned to work. He has been working in the same section ever sense. The plaintiff said that his real trade is as a sail maker and sail machinist. Prior to the October 2014 operation, he was working for a company making jumping castles, giant slides, campers, and giant mats (the 'castle company'). He returned to work there after October 2014, and worked up until his admission to hospital in August 2015. He returned to work there in early 2016 and did "pop tops". Between October 2014 to August 2015 he was working at the cleaning company five days a week, for four hours a day. He was working at the castle company four hours a day, five days per week. In early 2016, the hours decreased at the sail maker and increased at the cleaning company. He is now subject to certain work restrictions, for example a 5 kg lifting weight limit.
5. Mr Kettle submitted that the tax and financial records do not support any material economic loss for the past. However, for the purposes of an assessment, he assumed the plaintiff would otherwise have resumed employment 12 weeks earlier and would have earned (say) $745 net per week. For the purposes of this assessment he also assumed that the plaintiff would otherwise have earned $795 from January 2016 (rather than an assumed $715 net per week) with an ongoing loss of (say) $80.00 net per week to 20 November 2017 when he was certified fit to resume work: (12 weeks x $745 net per week or $8,940, plus 104 weeks x $80 net per week or $8,320) for a total past loss of $17,260.
6. For the purposes of this assessment, I accept Mr Kettle's formulation. The plaintiff's actual loss in the past, doing the best I can, is approximately $17,500 net, which I allow. I also allow approximately $1900 in past superannuation loss. The total under this head of damage is $19,400.

Future Economic Loss

1. The plaintiff gave evidence that he considers that he is past his capacity to continue working at the cleaning company. He said that he is no longer capable to work for the castle company except to the extent he is currently. Mr Davies submitted that if the plaintiff is no longer able to continue to work at the cleaning company due to physical incapacity, the likelihood that he will find alternate employment is "slim to nil". The plaintiff claims a future loss of earning capacity at 50% of his 2018/2019 income until age 65, to reflect the possibility that the he will be unable to work due to physical limitation or that he cannot find alternative employment. The plaintiff further claims from age 65 to age 70, 50% of his 2018/2019 income. The plaintiff further claims a loss of superannuation on future earnings.
2. The defendant noted that the plaintiff's general practitioner assessed him as fit to return to work from November 2017, and that Dr Anderson had recently observed that the plaintiff was managing at both his planes for employment.
3. I am unable to determine the plaintiff's loss of capacity to earn in the future with any precision. He is still working. However, I note the unanimous view that the plaintiff has restrictions arising from his incisional hernia, weak stomach muscles and colostomy. I do not doubt that the plaintiff has sympathetic employers, and that if he loses one or both of his jobs, he will find it difficult to secure employment on the open labour market. Mr Kettle suggested that I award a buffer of $20,000. I agree that a buffer is appropriate in the circumstances, but I allow $35,000 which is approximately twice his past loss.
4. Had the plaintiff been successful, I would have assessed the plaintiff's damages as follows: 1. Non- economic loss: $ 250,000 2. Past out-of-pocket expenses: $ 2,500 3. Future out-of-pocket expenses: $ 7,000 4. Past gratuitous care: $ 0 5. Future commercial care: $ 47,697 6. Past economic loss: $ 19,400 7. Future economic loss $ 35,000 TOTAL: $ 361,597

Disposition

1. I make the following orders: 1. Verdict and judgment for the defendant; 2. The exhibits are to be returned; 3. That the plaintiff pay the defendant's costs of the proceedings on the ordinary basis from the commencement of the claim until 16 July 2019; and 4. That the plaintiff pay the defendant's costs of the proceedings on an indemnity basis from 17 July 2019 until 11 December 2019 (inclusive).

Amendments 25 June 2020 - Previous orders: (3) The plaintiff is to pay the defendant's costs of the proceedings on the ordinary basis unless a party is able to demonstrate an entitlement for some other costs order; and (4) Liberty to apply on seven (7) days notice if further or other orders are required, including as to costs.

Replaced with: (3) That the plaintiff pay the defendant's costs of the proceedings on the ordinary basis from the commencement of the claim until 16 July 2019. (4) That the plaintiff pay the defendant's costs of the proceedings on an indemnity basis from 17 July 2019 until 11 December 2019 (inclusive). 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: 25 June 2020