Injuries, treatment and prognosis
58After the accident Mr Herbert was taken to Wollongong Hospital. X-rays showed he had suffered proximal shaft fractures of his left tibia and left fibula. His leg was placed in a cast. However he developed "compartment syndrome", a serious condition that arises when there is insufficient blood supply to the muscles and nerves. He underwent an emergency left leg fasciotomy and a fixator apparatus was placed across the femur and the tibia. After five days in Wollongong Hospital he was transferred to St George Hospital. Unfortunately, he developed an infection of his fasciotomy wounds. On or about 3 December 2008, the fixator apparatus was removed and a heavier fixator was implanted. It seems that infection still remained. Towards the end of December 2008 he was operated on by Dr Molnar. Dr Molnar carried out an open reduction and an internal fixation of the fracture in the left knee by the application of plates and screws. He was discharged from St George Hospital on 31 December 2008.
59In the calendar year 2009 Mr Herbert underwent more surgery on his leg and suffered from recurrent infections. In April 2009, Dr Molnar reported that he would need to remain under a regime of antibiotics until union of the fracture occurred. He anticipated at that stage ceasing antibiotics and removing the hardware in his leg. In July 2009 Dr Molnar reported that Mr Herbert continued to have intermittent wound discharge and that he had only demonstrated partial union at the fracture site, although the intra-articular fractures appeared to have united. Dr Molnar proposed removing the hardware in Mr Herbert's leg, although the operation was postponed until later in the year.
60The surgery occurred on 30 September 2009 when the hardware was removed and various steps were taken in an attempt to avoid future infections. Unfortunately they were not successful. On 2 December 2009 Mr Herbert underwent a bone graft procedure. The donor site for the graft was his left hip. He was discharged shortly afterwards but readmitted to hospital on 12 December 2009 for the administering of intravenous antibiotics.
61In July 2010 the staff specialist in the infectious diseases section wrote to Dr Molnar advising that in the last month Mr Herbert had suffered increasing pain and swelling. On 21 July 2010, Dr Molnar performed further surgery which opened up his previous wounds and removed all the remaining plates and screws in his left leg.
62In September 2010 Mr Herbert was still reporting swelling in his leg and was taking long term suppressive antibiotics. He was still receiving those antibiotics in January 2011. He reported wound break-down and anterior knee pain.
63In May 2011 Dr Molnar reported that, having regard to the history of infection since the time of the accident, Mr Herbert had developed "proximal tibial osteomyelitis" (ie infection and inflammation of the bone or bone marrow).
64Since 2011 Dr Molnar has continued to closely review Mr Herbert. In July 2013 Dr Molnar reported that Mr Herbert had attained union of the fracture, but had been left with "significant osteoarthritis of his left knee and significant soft tissue damage involving the area over the proximal tibia". Dr Molnar considered that there was the possibility of chronic osteomyelitis, although he noted that at the time of last review there were no signs of active infection. His report discussed the possibility of Mr Herbert undergoing knee replacement surgery. Dr Molnar reported that the subject had been discussed with Mr Herbert. Dr Molnar noted that such surgery presented a "significant risk of infection or other complication", and may "ultimately end in the need for an above-knee amputation". In his evidence Mr Herbert stated that he did not want to have the operation because of its attendant risks and would only do so if the position "bec[ame] desperate".
65Consistent with the above medical history, Mr Herbert explained that he now has left hip pain and left knee pain, his leg swells up, he has pain in the left foot and he constantly uses medication in the form of painkillers, antidepressants and sleeping tablets to cope with his difficulties. He stated that he used a walking stick to walk on most occasions although not inside his house.
66At the time of the hearing Mr Herbert's leg presented with substantial scarring and appeared red and sore. It was bandaged. He explained that there are parts of his leg that he cannot feel and other parts that have a burning sensation. There are two lesions on his leg which at the time of the hearing were not inflamed. They were described by Mr Herbert as being the size of a "five cent piece". However Mr Herbert said that on occasions these lesions flare up and weep. He said the holes sometimes become bigger, "[b]ack to around a twenty cent piece". This occurred every couple of months. He copes by placing a compression bandage on his leg and then "hop[ping] into bed and put[ting] two pillows under [his] leg and let[ting] the blood come back out of it". He said that it can take some weeks for the lesions to contract. Mr Herbert said that during those periods when his leg is not severely infected he would have his foot elevated some two hours a day.
67Not surprisingly, there are significant restrictions on Mr Herbert's movement of his leg. Mr Herbert stated that he only had 20% movement at the knee and a 50% restriction on twisting his foot. A medico legal report from an orthopaedic surgeon retained by the plaintiff, Dr Wallace, states he has a range of movement at the left knee of 0 to 110 degrees flexion and at the left ankle of 0 degrees dorsi flexion, 40 degrees plantar flexion, 40 degrees inversion and 40 degrees eversion.
68Mr Herbert stated that he was previously a keen fisher and hunter. Since the accident his fishing activities have been restricted so that he can only fish from the river shore and is not prepared to risk getting into a boat or walking in high country. He experiences similar difficulties with hunting. He said that he used to hunt rabbits and vermin, but as it involves walking over rough or uneven ground he can only do it for about twenty minutes at a time. He agreed that once or twice a year he would go hunting on a quad bike.
69One of the forms of medication that Mr Herbert takes is antidepressants. Since the accident his moods and his emotions have become volatile. He stated "one of the biggest things that hurts [is] not being able to go out, make a living, have a good wage come in", and that his emotional state is significantly affected by the fact that he is "not providing". A psychiatrist, Dr Jungfer, opined that Mr Herbert has suffered a major depressive disorder "solely within the context of the injury that he sustained and the losses that occurred as a consequence of this injury". I accept this evidence.
70Dr Wallace and an orthopaedic surgeon retained on behalf of the defendant, Dr Harvey, participated in a joint conclave before trial and gave evidence together at the trial. Their joint report reveals that there was a very significant level of agreement between the two of them, although senior counsel for Mr Herbert, Mr Lidden SC, submitted that some parts of the joint report should not be accepted. I will return to address that submission.
71Although as at July 2013 Dr Molnar only considered that it was possible that Mr Herbert had osteomyelitis, Dr Wallace and Dr Harvey treated Mr Herbert as definitely suffering from that condition. They also stated:
"We agree that Mr Herbert has a poor prognosis for further recovery of function [in his] left leg despite ongoing treatment.
He is likely to develop osteoarthritis of the left knee in the future as a result of involvement of the articular surface at the time of his injury in November 2008.
At the time of review in 2012, the cartilage intervals were well preserved and we did not see this as a problem in the near future.
However, it is likely that Mr Herbert will develop post-traumatic osteoarthritis at the left knee within a period of ten years of his injury in November 2008."
72This part of their report and the inter-relationship between Mr Herbert's osteomyelitis and developing arthritis for his future prognosis was the subject of much questioning. Dr Wallace opined that the prospects for the function of Mr Herbert's leg in the next five to ten years were "grim". He considered that the early osteoarthritis in his knee "will worsen". Absent the osteomyelitis, Dr Wallace considered that Mr Herbert would be likely to need a knee replacement in the next ten years because of his arthritis. However, the complications of the osteomyelitis were such that surgery represented a significant risk and might, as indicated by Dr Molnar, lead to amputation of his leg. On the other hand, if there was no surgery there would be deteriorating arthritic change within his knee. Dr Wallace was not prepared to state that, absent such surgery, the deteriorating arthritic change would lead to him becoming immobile, but he accepted that there was a significant prospect of a significant loss of function.
73Dr Harvey considered that a knee replacement would be a highly hazardous procedure for Mr Herbert to undertake given his medical history. Although Dr Harvey considered that, absent any knee replacement, Mr Herbert's arthritic knee could worsen, he did not accept that there was any realistic possibility that he would be wheelchair-bound for many years in his later life.
74Thus Mr Herbert finds himself in a position where his arthritis is likely to lead to a deterioration in his knee functioning, but his osteomyelitis makes a knee replacement operation risky. Absent a knee replacement, there is a prospect of further deterioration in his functioning. None of these outcomes is certain. However, as realistic possibilities they must all be considered in assessing damages (see Malec v J.C. Hutton Pty Ltd [1990] HCA 20; 169 CLR 638), subject to the conformity of that approach with the CLA.