It was surprising that the plaintiff attempted to prove his case without any radiological expert evidence. The defendants objected at trial and continue to complain on appeal of the Trial Judge's decision to allow the tender of Dr Parker's report through the Memorial Hospital case notes, without Dr Parker being called by the plaintiff. That forensic advantage allowed the plaintiff to prove the most critical fact in the case without providing the defendants with an expert's report and without exposing the witness to cross-examination.

It is equally surprising that the defendants did not have their own radiological expert evidence. I can think of no reason why Dr Parker could not have been found earlier and a report obtained from him. Dr Perrett was always available to provide a report. Both parties should have observed their obligations under r38. Both parties should have exchanged their experts' reports at the appropriate time so as to allow each other to be aware of the expert evidence which had to be met.

It might be thought that both parties were attempting to obtain tactical advantages.

As it transpired the plaintiff obtained an expert's radiological report during the argument. Dr Saifuddin provided the plaintiff with a report on 28 May 1998. The plaintiff could not have been embarrassed by Dr Perrett giving evidence.

In the end result the question for the Trial Judge, in my opinion, was whether the defendants should be disadvantaged in the presentation of their case because of their failure to comply with Rules.

The Rules of Court should always be observed: Ratnam v Cumarasamy [1964] 3 All ER 933. Sometimes, however, there will be a failure to comply with the Rules. When they are not observed and a party seeks a dispensation from that party's failure to observe obligations under the Rules then the question of whether a dispensation should be given depends upon whether the justice of the case necessitates that the default should be forgiven: Morres v Papuan Rubber and Trading Co Ltd [1914] NSWStRp 21; (1914) 14 SR (NSW) 141 per Cullen CJ at 144.

Rule 38 confers an unfettered discretion, except that the discretion must be exercised judicially, upon a Trial Judge to allow a party leave to adduce expert evidence when there has not been compliance with r 38: r 38.03. The court is otherwise given power to dispense with compliance with the Rules: r 3.04(a) The purpose of allowing parties to proceed notwithstanding non compliance with the Rules is to allow justice to be done. Rules of this kind are to aid in the attainment of justice: Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479; Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257 at 262. It is, of course, for those seeking a dispensation or an indulgence to convince the Court that such an order is necessary to do justice in the matter: Pond v WorkCover [1999] SASC 362.

The question therefore, in this case, was whether it was just to allow Dr Perrett to be called in the circumstances to which I have referred.

I do not have any doubt that Dr Perrett should have been allowed to have been called to give expert evidence. It may have been that terms needed to be imposed so as not to cause any injustice to the plaintiff, although I cannot think of any injustice which would have been caused to the plaintiff by Dr Perrett being called. Mr Morley, who was the only relevant witness, had been cross-examined on all of the matters upon which Dr Perrett was to give evidence. He had commented upon those matters and had disagreed with the propositions put by the cross-examiner in cross-examination. Indeed Mr Morley and Dr Perrett gave opinions in relation to two different specialties.

Mr Morley, therefore, did not need to be recalled. If, however, the calling of Dr Perrett, without warning prior to the defendants' opening, was an embarrassment to the plaintiff in that the plaintiff would have otherwise have obtained an expert radiological report then that could have been a term of Dr Perrett giving evidence. Indeed, in due course, the plaintiff did call a radiologist to rebut Dr Parker's evidence.

Dr Perrett's evidence went to the heart of this matter. It contradicted the radiological report of Dr Parker of 10 May 1991, which had been admitted without Dr Parker being called to that point of time. Dr Perrett's evidence supported Dr Parker's evidence and contradicted Dr Saifuddin's evidence, a radiologist the Trial Judge later allowed the plaintiff to call in rebuttal.

If accepted, the evidence would have disproved the assumption upon which Mr Morley relied for the purpose of expressing his opinion, namely, that the right-sided pedicle screw had protruded by 7 mm. If that assumption was disproved then, of course, the further inference which Mr Morley relied upon, namely, that the left-sided screw protruded to the same extent, could also not be drawn.

In those circumstances, Mr Morley's opinion could not have been accepted.

In my opinion, the Trial Judge was wrong to refuse the defendants leave pursuant to r38.01(7) and that refusal caused a miscarriage of justice because the defendants were denied justice.

Summary on the Ground of Appeal Relating to the Calling of Dr Perrett

The plaintiff provided no expert radiological report to the defendants. The plaintiff was allowed to prove Dr Parker's report without calling Dr Parker. The defendants provided no expert radiological reports to the plaintiff. The defendants were permitted to call Dr Parker without first providing a report for the purpose of explaining that the opinion which had been tendered by the plaintiff had ceased to be his opinion after 16 May 1991. As will be seen later Dr Parker wrote a report at or about the time he gave evidence. The Trial Judge refused to allow the tender of that report. The defendants were not permitted to call Dr Perrett who supported Dr Parker's second opinion and supported Dr Parker's explanation for why his opinion expressed in his report of 10 May 1991 was not correct.

After allowing the defendants to call the witness who should have been called by the plaintiff the plaintiff was permitted to call evidence in rebuttal directed to Dr Parker's evidence. That evidence was called from an expert radiologist whose report had also not been delivered in accordance with r 38.

In due course the Trial Judge preferred the evidence of the radiologist called in rebuttal, Dr Saifuddin, to that of Dr Parker, notwithstanding that the Judge was aware that there was evidence from Dr Perrett which supported Dr Parker and contradicted Dr Saifuddin.

It follows, in my opinion, that ground of appeal must succeed. The defendants must be entitled, therefore, to a new trial to be allowed to present Dr Perrett's evidence.

If, however, the defendants succeed on any of the other grounds of appeal on liability and persuade this Court that the plaintiff failed to establish negligence against either defendant and that judgment should be set aside then the appropriate order would be to allow the appeal and dismiss the plaintiff's action.

Because I believe at the least, from the defendant's point of view, there should be a retrial it is strictly not necessary to discuss the defendants' appeal against damages. Because the defendants are entitled to a new trial damages will be at large. However in case I am wrong about this aspect of my reasons and the matter has to be considered elsewhere it might be better to address all of the matters raised on this appeal and I will do so.

Dr Parker was called in the circumstances to which I have referred. He was not opened on. This Court has been told from the bar table that Dr Parker's whereabouts were not known until shortly before he was called. No expert's report was provided by Dr Parker. The purpose of calling Dr Parker was to allow Dr Parker to say that the opinion he expressed in his report of 10 May 1991 was wrong.

Dr Parker graduated in May 1981. He completed his internship in January 1982 and his residency in February 1984. He became the radiology registrar of the Royal Adelaide Hospital in February 1984 where he remained for four years. He became the staff specialist radiologist at the Royal Prince Alfred Hospital in Sydney in February 1998 and remained for just short of eighteen months. He obtained a fellowship to study neuroradiology at the University of Utah in July 1989. He became an assistant radiologist with Dr Perrett, Harrison & Partners in October 1990 and remained until January 1992.

Since February 1992 he has been a staff specialist of the radiology department of the Royal Prince Alfred Hospital in Sydney.

He has a diploma from the Royal Australasian College of Radiologists and a fellowship of the Royal Australasian College of Radiologist which he obtained in March 1988. I cannot understand why Dr Parker's whereabouts could not have been known very much earlier. He could easily have been traced through the College of which he was a member. I think it is more likely that none of the parties approached him until shortly before he gave evidence.

Before giving evidence Dr Parker was provided with a copy of his report of 10 May 1991 and radiological reports of 16 May, 4 June and 12 June 1991.

He said that he had been asked to review the films taken on 10 May in the light of subsequent films taken on 16 May, 4 June and 12 June and advise whether his opinion was still that expressed in the radiological report of 10 May. At that stage he was not provided with any CT scans, nor did he seek any. In particular before giving his evidence he did not see a CT scan of 20 August 1991.

The x-ray film of 10 May was a left lateral film, in other words the left side was closest to the film. There was also an anthro posterior film which is a frontal view of the patient. Dr Parker said that those two films were a totally straightforward routine examination which would constitute a complete examination.

Immediately after Dr Parker commenced his evidence, Mr Cameron, who appeared for the plaintiff, objected to his evidence because no report had been provided pursuant to r38.

The Trial Judge dismissed that objection upon the basis that:

" It would be a travesty if I were to, knowing or having been told that Dr Parker has changed his view and this being or these documents being of some considerable significance in the case if I were not to allow him to give evidence on oath. Whatever the technicalities are, that's the reality of it."

I agree with that statement. Indeed for similar reasons Dr Perrett should have been allowed to give evidence.

Dr Parker was asked whether he had changed his view from the view expressed in his report accompanying the x-ray of 10 May. He said he had. He said he believed the position of the screw on the right side was distorted by a number of factors. He said that the 10 May x-ray was a lateral view. He had failed to take into account the possibility that the patient had been rotated on the film. On a re-reading of the x-ray film he formed the view that it was not truly a lateral view of the patient and in those circumstances the protrusion of the right screw was apparent rather than real.

He said he first became concerned about his first report as early as 16 May 1991 when he had the opportunity to view a myelogram. He said, at that stage, he took particular care to ensure that a truly lateral view was obtained. When he considered the myelogram he corrected the earlier opinion that he had held and formed the view that whilst there was some protrusion of the right screw the extent of the protrusion was 3mm or less.

Apart from questions of rotation he also indicated that magnification could lead to a wrong interpretation of the film. Magnification can vary between 12 and 40 per cent. The particular film which he was addressing was magnified to the extent of 40 per cent. He was then asked to address the true lateral film taken on 16 May and in particular the left screw. He indicated that the upper screw on the left side did not penetrate the anterior cortex of the sacrum as the right screw appeared to do.

His attention was then directed to x-rays of 4 June and 12 June 1991. He said the film of 4 June was a very true lateral film "and that does not show significant protrusion". By significant protrusion he meant approximately 2mm.

He said, after reading the myelogram on 16 May, that his opinion was that there was some protrusion but not significant protrusion on the right side and no protrusion at all on the left side.

He said it was his usual practice to issue a supplementary report or an addendum. He said he had been told there was no record of such a report in the clinical records.

He was then asked to address the anatomy in the region of the sacrum. It was his opinion that the L5 nerve passed forward to the side (laterally) of the sacrum. It was put to him that a witness had described the L5 nerve root as "passing above and lateral to the position of the screws". In answer to a question whether he was "comfortable" with that he said he was.

During examination-in-chief Mr Halliday sought to tender an expert's report from Dr Parker which had been signed whilst he was giving his evidence. Objection was taken. His Honour suggested deferral of the tender until after the completion of evidence-in-chief. Counsel agreed. At the end of evidence-in-chief a further application was made for the tender of the expert's opinion. The tender was refused. No reasons were given.

In my opinion the Trial Judge erred in refusing the tender of Dr Parker's written report in circumstances where Dr Parker had completed his evidence-in-chief and was available for cross-examination. There seems to be no reason at that stage to refuse the tender of that document unless it had become irrelevant by reason of his evidence. There was no suggestion of that. Rather the objection to the tender of the report was upon the basis that Dr Parker's evidence had not been made available at the earliest opportunity. In my opinion that was not a ground, at that point of time, for the refusal of the tender.

In cross-examination Dr Parker agreed that the further a screw protruded beyond the anterior cortex of the ala of the sacrum the greater the risk there would be of damage of some sort. He agreed that the L5 nerve root traversed over the ala of the sacrum.

However his opinion was that neither of the sacral screws protruded any significant distance beyond the anterior cortex of the ala of the sacrum.

He was specifically asked to carry out the myelogram examination six days after his initial report. His opinion, on a reading of that film, was that the screws were placed in a sagittal plane, that is, they went from front to back. They were not angulated medially, that is, they were not angled towards the mid line of the sacrum. They were not significantly angulated laterally, that is, to the side of the body.

In his view the left sacral screw was fractionally angulated. The right sacral screw was in the true sagittal position. The left sacral screw was a millimetre or so perhaps angled laterally.

He was asked in cross-examination the following:

"Q Are you able to assist his Honour to come to an understanding of how far the sacrum screws of the type that were shown in the X-rays would protrude beyond the anterior cortex of the sacrum if they protruded a distance of the dome and, say, one and a half threads of the screw. A Do you mean - if they did, in fact, protrude from that distance, it would be possible to calculate the true protrusion if one measured the size of the screw, the image of the screw and measured the size in correct magnification. That is, once again, assuming that the bone through which the screw appears to pass is in the same plane as the screw itself. That assumption cannot necessarily be made. Q My question to you is this; are you able to tell the court, tell his Honour, the distance that one of the sacral screws would protrude beyond the anterior cortex of the sacrum if it protruded by the distance of the dome and one and a half threads of the screw. A I could do a calculation, put it that way, assuming that the piece of bone that one thought the screw was protruding through was, in fact, in the same plane."

He was then asked whether he had done such a calculation and he said he had based on the true lateral film taken on 16 May. He said that he calculated that the right sacral screw protruded through the cortex for 3mm or less and the left sacral screw did not protrude through the cortex.

He calculated the protrusion on the right side after reading the lateral x-ray films of 16 May 1991 at 3mm. He arrived at that calculation by measuring the actual protrusion showing on the film which was 4.5mm and deducting some 40 per cent to reflect the extent of magnification in the film itself.

It was put to him that was not the same calculation as was predicated in the question. He said that he had not done a calculation based upon the assumptions inherent in the question. He said that he would be able to carry out such a calculation if asked. The cross-examiner did not ask him to carry out such a calculation.

He was asked in cross-examination to assume that the two sacral screws were 45mm in length. He was also asked to assume that they were both placed through the sacrum in the sagittal plane and that the left sacral screw was slightly more laterally placed than the right screw. Upon those assumptions he was asked whether both screws would protrude for a similar distance. He said he did not think that would be the case because the extent of protrusion would depend upon the bulk of the posterior elements that the base of the screw was resting against. Those elements can vary from patient to patient. He maintained in cross-examination that the left sacral screw did not project through the ala of the sacrum at all.

During Dr Parker's cross-examination the Trial Judge asked the following questions:

"HIS HONOUR Q What I cannot understand is this; you seem to be quite confident about this now. How have you made the mistake in the first place if it is so obvious, if you are so confident now. How can you make the mistake. A As I explained to your Honour on Friday, I took into account a piece of information, which I examined the film and misinterpreted the two lines that one uses to check the lateral of the film. Q How did you do that though? A It was just an error. Q It was an elementary - A It would appear so in the light of the substance of the films, yes."

His Honour asked him these further questions:

"Q Do you think that error was due to inexperience or how could you have made it. A If I may be allowed to speculate, I'd just come back from the University of Utah where I'd done a fellowship which involves some research and some quite, in my opinion, quite complex procedures and so on and my view is that I simply applied too much science and not enough - or too much pseudo science and not enough common sense to the interpretation of the film."

He believed that a review of the x-ray film of 10 May showed that the position of the right sacral screw had been exaggerated by rotation and that was confirmed by subsequent films which he had taken on 16 May1991.

Later his Honour asked these further questions:

"Q You realised on the 16th that you had made an error. A That is correct. Q But you can't remember if you corrected it with an addendum. A I have said that that is my usual practice. Q But you don't know if you followed it or not. A I can't recall."

Dr Parker said that at the time of completing the myelogram he had obtained what was in his view a true lateral film showing no evidence that the left sacral screw protruded through the anterior cortex of the sacrum. In those circumstances he did not arrange for a CT scan.

During the trial the plaintiff presented a video to the Court in which a commentator warned of the dangers in a fusion of this kind of the sacral screw coming into contact with the L5 nerve root. That video, the provenance of which was never proved, could only have been used by way of evidence if it was accepted by the witness to whom the video was put as being accurate either in what it depicted or in what was said.

A number of witnesses were shown the video most of whom denied the accuracy of all of it. However various aspects of the video and what was said by the commentator on the video were acknowledged as being correct.

As was pointed out during the hearing of this appeal the video really played no special part in the hearing. The propositions which were put to the witnesses could have been put without the showing of the video.

In any event the video was shown to Dr Parker and his attention was drawn to the position of the sacral screws shown on the body of the person who had been operated on in the video. That person was a woman. It is not unimportant that the person depicted in the video was a woman because the anatomy of a woman, in this area, is markedly different to that of a man. A woman's sacrum is much wider than that of a man and if a fusion is to performed at this level on a woman then the screws are placed in different positions than in a fusion on a man.

"Q Is this the position, that if the L5 nerve root is close to the anterior cortex of the sacrum, one should, therefore, as the commentator on the video suggests, medially angulate the sacral screw so that the screw does not penetrate beyond the anterior cortex of the sacrum in a position where it could damage the L5 nerve root that is very close to the anterior cortex in that area. A That is the opinion of the person who prepared that video. I think there is a crucial difference between the position of the sacral screws on that video tape and the position of the sacral screws in Mr Lucas. The sacral screws in the video tape are located just below and parallel to the end plate of the S1 vertebral body. The screws in Mr Lucas's case are angulated much more steeply inferior so they are passing through a greater thickness of bone. In that position, from a purely anatomic point of view, the L5 nerve root would not appear to be at risk. If the screws were placed, as you say, in the lateral view much higher up as they are in the video tape, then I think they would require a medial angulation in order to miss, or potentially miss, the L5 nerve roots, but the fact is that instead of being in this sort of position (indicates), they are in that sort of position (indicates) which means that the tips of the screws are some considerable distance in my estimation from the L5 nerve root at the point where they approach or project through the anterior cortex of the sacrum."

274. Dr Parker was eventually shown the CT films of 16 May 1991. Those films were taken at the direction of Dr Parker but not read at that time. They were in fact read by a Dr Reece because, for reasons which were unimportant, Dr Parker became unavailable.

275. He was asked, in cross-examination, on reading the CT scan whether he agreed that the screws on both sides of the L4 pedicle and of the L5 pedicle were well placed within the pedicles and not protruding beyond the pedicles. It was put to him that in those circumstances any involvement between those screws and the L5 nerve root could be excluded. He agreed with that.

276. His attention was then directed towards the sacral screws. He was asked whether he agreed that they were pointing towards the L5 nerve root. He was not prepared to agree with that proposition without qualification. He said that the particular cut of the CT scan which he had been shown did not show the tips of the screws. He said if the screws were visualised that would show that the L5 nerve roots were lateral to the tips of the screws and they were not pointing towards the L5 nerve root. He was interrupted at that stage by the Trial Judge who said that there was no such further cut so that it could never be known if that was the case. Dr Parker said that assuming Mr Lucas' anatomy was that as described in Cunningham's Manual then the L5 nerve root would pass laterally to the tips of the screws.

277. He accepted in cross-examination that the myelogram could have been performed on 16 May so as to show the tips of the screws but it was not. He believed that the lateral film on the myelogram on 16 May indicated with sufficient certainty the position of the screws.

278. His attention was then directed to the myelogram film of 16 May 1991. It was put to him in respect of those films that one of the sacral screws appeared to protrude beyond the midline of the sacrum. It was put that the screw was shown protruding by the extent of the dome of the screw and then a distance of two to three threads beyond that. Dr Parker disagreed with that proposition. It was his evidence that the screw to which reference was made protruded beyond the mid line of the sacrum by the extent of the dome plus one full turn, one full helix of the thread. He said that it was his view that the helix of the thread went right to the dome. He was asked whether he had endeavoured to calculate that distance and he said that he thought the correct way was simply to measure the whole length of the screw, and its image, and calculate the magnification factor to arrive at a distance by which the screw protruded past the anterior cortex of the sacrum.

279. Dr Parker disagreed with Mr Morley's evidence where he had stated that after reading the x-rays and myelogram of 16 May 1991 he was unable to state the length of the sacral screw on either side.

280. Next it was put to him that there were further CT scans of 20 August 1991. He agreed that those scans showed that neither the L4 or the L5 pedicle screws on the right side had gone beyond the pedicle in either instance. He said, however, one could not say whether the right sacral screw, because of limitations of the study itself, penetrated beyond the anterior aspect of the ala of the sacrum. It was further suggested that the left sacral screw was pointing directly at the L5 nerve root. That CT scan was put to Dr Parker.

281. Dr Parker said that the L5 nerve root causes a groove in the anterior surface of the sacrum. However the position of the screws were so far medial to that point to make it impossible for the screws to come into contact with that nerve root.

282. He pointed out that the position of the sacral screws had changed. In the films of 4 June both sacral screws contact the anterior cortex of the sacrum. By the time the CT scan was taken on 20 August the left sacral screw had been removed. His attention was directed to the position that the left sacral screw had occupied prior to its removal. He was asked whether the films of 20 August showed that the screw had previously pointed directly at the L5 nerve. He was not prepared to concede that so much could be read from the film. The 4 June films rather indicate that the right sacral screw appears to have been backed off slightly and the left sacral screw appears to have advanced slightly from that shown in the 16 May films.

283. Next his attention was drawn to some magnetic resonance imaging (MRI) taken on 20 December 1991 which he had not previously seen.

284. Of course, like the CT scans of 20 August 1991 the scans were taken subsequent to the removal of the left sacral screw.

285. His attention was directed to the right sacral screw and he said that it was impossible to make any accurate interpretation of the positioning of the right sacral screw in relation to the anterior cortex of the sacrum because of associated artefacts.

"Q Would you nonetheless agree that it can be seen from those cuts that the right S1 pedicle screw appears to penetrate the anterior cortex of the sacrum for a distance which, to the nearest round figure, approximates 5mm or so. A I don't think one can make that assumption at all."

287. He said both the examinations of 20 August 1991 and 20 December 1991 were too difficult to interpret.

288. The cross-examiner criticised Dr Parker for his failure to read the myelogram of 20 August 1991 and the MRI scan of 20 December 1991. He also criticised Dr Parker for failing to have regard to the other radiologist's opinion. Of course, criticism of that kind of an expert is irrelevant and, in some respects, unfair.

289. Dr Parker said in reply that he had been asked to give evidence on one aspect only. He had been asked to give evidence on the topic of why his report of 10 May 1991 was in error having regard to the myelogram of 16 May 1991.

290. The cross-examiner pursued Dr Parker in relation to his failure to read other x-ray films and other radiological reports relating to the plaintiff. An example of the cross-examination is:

"Q Were you aware prior to giving evidence, that plain X-rays had been taken in July 1991. A I would have to check with the documents that I was sent if I may? Q You can't answer that question offhand? A Offhand I would say that I was aware that there were films in existence from 10 May, 16 May, 4 June and 12 June and CT scan from August. I don't have a direct recollection of the presence or absence of any films in July. Q Given what you have said earlier about the significance of plain X-rays, do you agree that plain X-rays can cast important light on the position of screws? A Yes, I would agree with that, yes. Q Had you been aware of the existence of plain X-rays in July 1991, prior to giving evidence, would you wish to look at those X-rays prior to venturing an opinion to the court. A Well, as I told you the other day, I understand that the screws were repositioned on a date in - may I refer to this document? HIS HONOUR Q What document are you looking at? A P1. Q What page? A P7. XXN A My understanding is that the fusion devices, the plates and so on had been removed and repositioned on 22 May, so that the later film may not have represented the exact position of the screws. HIS HONOUR Q That's reading the operative details, that is in line with what you been told, is it, I think you said to Mr Black about the repositioning. A I was told by Mr Black that the screws were - that the screws and plates were removed and the screws were placed back in, I believe the word was "the same position" or "approximately the same position". Q They weren't repositioned? A They were removed and repositioned. Q To me "repositioned" means that they were put somewhere else. A No, I don't believe that they were put - Q They were removed and put back. A Correct. Q In the same position. A That's correct. Q That's what you were told. A Correct. XXN Q Were you aware, prior to giving evidence, that it had been suggested by another radiologist that there was material in plain X-rays in July 1991. A I don't recall without reference to Dr Saifuddin's report. Q Would you like to look at that report for the purpose of refreshing your memory. A Yes - yes, there is a reference on p3 to a film of 1 July. Q He's the same gentleman as the Dr Zeef you were referring to the other day. A That is his Christian name. Q Can we therefore take it that prior to giving evidence, before this court, you were aware that there was material in the plain X-rays of the lumbar spine of 1 July 1991 that it was rightly or wrongly considered to be of significance by another radiologist. A In that I had received that document on 3 June and had read it, yes, I must have been aware that that was the case."

291. The cross-examiner then referred to articles apparently mentioned in Dr Saifuddin's report. In answer to a question suggesting that he should have read those articles Dr Parker said:

"A Well, I wouldn't agree that, I have no expertise of the area. I would agree that I haven't got a special interest in the area. As I have said to you, my purpose in coming here was that I considered that I had a moral obligation to tell the court that I believe and believed that my initial report was incorrect. I did not wish to come here to be cross- examined on the details of references in the literature. It was simply - simply to indicate to the court that by simply straightening the patient up it was possible to get rid of the appearance shown on 10 May."

"I've said I did not come here to attempt to be an expert witness on the subject, I came here to tell the court that, in my opinion, the initial film of 10 May was distorted and that straighter films obtained on 16 May clarify the position."

Later his Honour again directed the witness's attention to the previous error:

"HIS HONOUR Q I still don't understand how you have made what seems to have been an elementary mistake. A As I explained to your Honour the other day, I looked at the film and talked myself out of what I believed to be the correct interpretation. Q How did you talk yourself out of it. A I attempted to assess the film to see if it was a lateral film. To do that, I looked for the two white lines, which are the iliopectineal or iliopectinate lines, and I thought that they were superimposed or close to superimposed. In fact I chose the wrong lines and therefore may have come to the wrong conclusion. Q I think we have been over this before but it was an obvious mistake wasn't it. A I think in retrospect having regard to subsequent film, obvious mistake. Q That anyone would pick up? A Yes your Honour. Q When I say anyone would pick up, I mean any radiologist or surgeon. A I believe so."

Dr Parker was then shown x-rays of 1 July 1991. He was asked whether the appearance of that x-ray was pretty similar to the original x-ray interpreted on 10 May 1991. He said that the hardware on the left hand side had been removed and there was a slight difference in the projection of the x-ray of 1 July 1991.

He was not prepared to agree, however, that that x-ray demonstrated that the right sacral screw was clearly seen to penetrate the anterior cortex of the sacrum. It was put to him that was the view of Dr Saifuddin and that view had been expressed in Dr Saifuddin's report.

Dr Parker was prepared to agree that the film was capable of different interpretations. The film itself he said was difficult to interpret. Mr Cameron pressed him:

"Q So that it would be reasonable for a radiologist to suggest on the basis of that film that the right S1 screw is clearly seen to penetrate the anterior sacral cortex? A No, I wouldn't agree with that. I would agree that there are some projectional difficulties in interpretation of that film which make the exact conclusion difficult to come to."

Dr Parker was extensively cross-examined. He was not only challenged on the change of opinion but he was challenged as to why he had changed his opinion. It was rather suggested to him that there was some collateral reason for his change of opinion.

Because his evidence is so important to this case I have read and re-read his evidence. His evidence remains consistent throughout the whole of his examination-in-chief and lengthy cross-examination.

He said that before 16 May 1991 he had reason to doubt the opinion he expressed on 10 May 1991. He supervised the further x-rays taken on 16 May for the purpose of determining whether the opinion he had expressed in the report of 10 May was correct. He formed the opinion on 16 May that his previous opinion given was wrong.

It appears that he did not publish a correction to that previous opinion. There is no record of any addendum having been received by Dr Hillier, the hospital or anyone else.

However if Dr Parker is to be believed there is no doubt that he was not of the opinion expressed in his report of 10 May after 16 May 1991.

The Trial Judge said that Dr Parker did not impress him. He did not say why. It appears to me, however, the Trial Judge was under some obligation to say why it was that Dr Parker did not impress him. The Trial Judge said that he preferred the evidence of Dr Saifuddin to which I will refer shortly. He said that he believed Dr Saifuddin was a "most impressive witness".

The Trial Judge also did not comment upon Dr Parker's evidence that since 16 May 1991 he had been of the opinion that his report of 10 May 1991 was in error. On the face of it there was no reason for Dr Parker to tell anything but the truth and to offer his true professional opinion in relation to this matter.

In a sense, professionally, it would have suited him to say that his previously expressed opinion was correct. However, he said he recognised a moral obligation to come and tell the court that his report of 10 May 1991 was in error.

Of course the Trial Judge had an advantage not enjoyed by this Court. The Trial Judge had the advantage of seeing Dr Parker over a number of days and therefore observing the manner in which he gave his evidence and his demeanour. An expert's demeanour is significantly less important in the assessment of the expert's evidence than a witness who is not an expert. In assessing an expert's evidence, after a consideration of his qualifications, the first matter the judge must identify is the precise assumptions upon which the expert has relied for the purpose of expressing the expert's opinion. Next the Trial Judge must determine the particular opinion based upon those assumptions. The Trial Judge does not seem to have gone through that method of reasoning. He has simply reached a conclusion that Dr Parker did not impress him.

The Trial Judge gave no reasons for preferring Dr Saifuddin. In NRMA Insurance Ltd v Tatt (1989) 92 ALR 299 at 312 Samuels JA said:

"Certainly it cannot be said that the learned judge gave no reasons; but in my judgment he failed to provide those findings and reasons which enable 'a proper understanding of the basis upon which the verdict entered has been reached'. That point is to my mind sufficiently taken by grounds of appeal which complain that the judge failed 'to give any sufficient or any consideration to', amongst other things, the evidence of Mr Carmody and Mr Dowling and the cause of the fire and 'failed to take into account' a number of aspects of the scientific evidence. By recording only one side of the judicial equation he has deprived this court of the opportunity of assessing the weight to be given to the finding on credit, which might thus be accorded for (sic) greater cogency than in the whole of the context it properly deserves. It is, to my mind, impossible for a judge to make a finding on credit in a vacuum, as it were, without relating the witness' evidence, demeanour and particular circumstances to the other material evidence in the case. In Uranerz (Aust) Pty Ltd v Hale (1980) 30 ALR 193; 54 ALJR 378 at 381 Gibbs J (with whom Stephen, Mason and Wilson JJ agreed) dealing with the deference which an appellate court generally accords to the trial judge's findings on credibility said: 'Gallop J was not entitled to reverse the finding of the tribunal which was based on its view of the credibility of the witnesses unless it was seen clearly to be wrong on grounds which did not depend merely on credibility - for example, on the ground that the evidence which was accepted was inconsistent with established facts, or was so improbable that no reasonable person could accept it, or that the judgment of the tribunal disclosed that its conclusion was affected by some error of law or fact. The evidence of Mrs Hale no doubt was such that it might well have been viewed with suspicion, but it was not inherently improbable and it was not inconsistent with any facts which were indisputable or established by other evidence which the tribunal accepted.' It is important to observe that this passage emphasises that the comparison which an appellant (sic) court may make is between findings made by the judge below, that is to say his or her finding on credibility viewed against findings on other evidence. It is only by this means that the appellant (sic) court can judge whether deference or disagreement is the appropriate response. In the present case we cannot say what view the judge took of the expert and other evidence and because of his failure to consider it to the point of conclusion we cannot review the weight to be given to the finding on credibility."

In my opinion this case is no different. This Court simply cannot judge whether it was appropriate to prefer Dr Saifuddin to Dr Parker.

There is nothing apparent from his evidence that makes Dr Parker unreliable or unacceptable.

The parties were entitled to know what it was about Dr Parker or his evidence which made Dr Saifuddin's opinion preferable. Alternatively if Dr Saifuddin's demeanour or evidence was such that he should have been preferred to Dr Parker, again the parties were entitled to know.

In all fairness to the Trial Judge he was not helped by the way in which the advocates approached the expert evidence.

An expert medical practitioner may be called to give evidence of fact or opinion or both. Usually a medical practitioner is asked, if he is a consulting medical practitioner, to examine the plaintiff. If the medical practitioner gives evidence of that examination the evidence will be evidence of fact, usually being evidence of observations made by the medical practitioner. Next the medical practitioner may recount the history that was given by the plaintiff: Ramsay v Watson (supra); R v Fowler (1985) 39 SASR 440. The history may or may not be admissible to prove the fact of what was said. It will depend upon whether the history is an admission or a contemporaneous statement as to sensation: Ramsay v Watson (supra); R v Fowler (supra). If the history is not admissible to prove the fact of what was said, the expert will usually still be able to recount the given history, but only then for the purpose of establishing the history relied upon for the expression of the opinion. The history will have to be proved by the historian, that is, the patient: Ramsay v Watson (supra) at 649. Next the practitioner will offer his diagnosis and prognosis. They are the experts' opinions.

When the medical practitioner gives his diagnosis and prognosis, it should be on clearly stated assumptions. The medical practitioner should state that he or she has assumed, if it be the case, the plaintiff's history as the medical practitioner has recorded it. The medical practitioner should also state which of his or her observations made during the clinical examinations are relied upon for the purpose of expressing the opinions.

If the medical practitioner is relying upon any other extraneous facts, apart from those contained in the history obtained by the medical practitioner or the clinical examination as explained, then the medical practitioner should identify that material.

If it be the case, for example, that the medical practitioner is also relying upon a radiological examination then the medical practitioner should say so and, if it is his or her interpretation of the x-ray film, that should be stated. If on the other hand the extraneous material relied upon is the radiological report by a radiologist then that should be stated.

Like any other expert witness a medical practitioner is under an obligation to clearly identify the assumptions upon which that medical practitioner has based his or her opinion.

Both the examination-in-chief and the cross-examination of Dr Parker, and indeed most of the other witnesses in this case, proceeded on the basis that he was entitled, as it were, to find facts. Dr Parker was extensively criticised in his cross-examination for not having done things in relation to the offering of his opinion.

The cross-examiner was certainly entitled to cross-examine Dr Parker about the way he carried out his radiological examinations on 10 and 16 May, or on any other date, but he was not entitled, in my opinion, to criticise Dr Parker for failing to be aware of facts which were known to the cross-examiner.

It was for the party calling Dr Parker to put before him the assumptions upon which that party wished Dr Parker to offer an opinion. If Dr Parker was aware of some other facts which he believed were relevant for the purpose of expressing his opinion then it would have been appropriate for Dr Parker to ask to be allowed to assume those further facts.

However, the medical practitioner should not be put, as most of the medical practitioners were in this case, in the position where they believed that they were entitled to find facts.

The facts upon which the expert has based his or her opinion must be proved by admissible evidence: Ramsay v Watson (supra); Paric v John Holland (Constructions) (supra) at 846. It is not for the medical expert to prove facts except the facts of which he or she is entitled to give direct and admissible evidence.

Otherwise, the facts must be established by the appropriate witness.

The medical practitioner's opinion cannot be accepted if any of the assumptions upon which the opinion is based which are essential for the integrity of the opinion are not, in due course, found as facts by the Trial Judge. That is the reason for the clear identification of the assumptions upon which the evidence is based.

It is for the Trial Judge to find facts. Having found those facts he or she must then determine whether any of the expert opinion which have been given can be accepted on the facts as proved.

If the facts as found allow for the acceptance of two conflicting opinions, because both of those opinions were based upon assumptions which have been found to be correct, then the Trial Judge has the more difficult task of determining which of those opinions should be accepted.

The difficulty in this case is that the Trial Judge did not make findings of fact which would have validated or invalidated Dr Parker's opinion.

He merely said he preferred the evidence of Dr Saifuddin to that of Dr Parker.

In the end result, Dr Parker's opinion was that the right-sided pedicle screw did not protrude through the cortex by 7 mm. He gave a variety of reasons for expressing that opinion, all of which would have explained why the opinion he expressed on 10 May 1991 was wrong.

It seems to me that unless there was something about Dr Parker himself which would have caused the Trial Judge to doubt him as a reliable witness, the Trial Judge had to consider whether the assumptions upon which Dr Parker had based his opinion had been established.

In my opinion it was not for the Trial Judge simply to reject the expert without first determining whether that expert opinion could not be accepted upon the assumptions that had been found.

The Trial Judge went on to discuss two aspects of the evidence of Dr Parker and Dr Saifuddin. He said that Dr Saifuddin was of the opinion that the right-sided screw must have penetrated the ala of the sacrum. That was also Dr Parker's opinion. That could not be a reason for preferring the evidence of Dr Saifuddin. Next the Trial Judge referred to Dr Parker's opinion that the left-sided screw did not penetrate the anterior cortex of the sacrum at all.

The learned Trial Judge then referred to Dr Saifuddin's evidence and said:

"Dr Saifuddin on the other hand said that it was not possible to be definite one way or the other on the position of the screw based on the x-rays and scans he had before him. He felt that he could not be sure that the left-side of pedicle screw did not penetrate the anterior cortex of the sacrum. He disagreed with Dr Parker. I prefer the opinion of Dr Saifuddin."

It is not clear to me from that passage why it was that the Judge preferred the evidence of Dr Saifuddin in respect of that matter. The disagreement between the witnesses is not to whether the left-sided screw did not penetrate the anterior cortex but whether in the case of Dr Saifuddin he could be sure that it did.

However the critical questions arising out of Dr Parker's evidence were these. First was his report of 10 May 1991 accurate? Secondly did the report of 16 May 1991 indicate that the report of 10 May 1991 was incorrect? Thirdly did the right-sided sacral screw penetrate the ala of the sacrum to the extent of 7mm? Fourthly did the left-sided screw as visualised in the films after 16 May 1991 penetrate the ala of the sacrum? If it did to what extent? If it could not be visualised then was it appropriate to assume that the degree of protrusion was the same as that of the right side?

The Trial Judge addressed none of those matters.

All of those questions had to be considered and answered before the Trial Judge could rely upon the opinions expressed by Mr Morley, who had relied upon the evidence contained in the report of 10 May 1991 for the expression of his opinion.

337. After the conclusion of the defendants' case the plaintiff applied to call evidence in rebuttal.

338. After hearing argument the Trial Judge allowed the plaintiff to call Dr Asif Saifuddin in rebuttal. The term of the order was that the evidence would be strictly in rebuttal of Parker's evidence.

339. Whilst no formal order was made the following interchange shows the effect of what his Honour had in mind:

"MR HALLIDAY: I put to you as much as I can realistically put. If your Honour was minded to allow the application, we would however ask you to place some limitations. HIS HONOUR: I'm happy to do that. It would be rebutting Parker's evidence and that's it. MR HALLIDAY: Strictly in reply to Parker's evidence and I say evidence-in-chief. We would only be examining him in chief in recourse. That's what we need, the cross-examination. HIS HONOUR: The boot will be on the other foot. If you want to go into other things in cross-examination, that's for you. So far as the plaintiff is concerned, then it will be strictly in rebuttal of Parker's evidence. MR HALLIDAY: That evidence that Parker gave about what he did. HIS HONOUR: About what he did? MR HALLIDAY: Yes, those - his reports and the X-rays upon which the reports were made."

Dr Saifuddin's curriculum vitae was tendered. He is a Fellow of the Royal College of Radiologists in the United Kingdom (1991). He is also a member of the British Society of Skeletal Radiologists (1994) and a member of the European Society of Skeletal Radiologists (1997).

He had previously graduated BSc Honours Pathology (1982); MB ChB (1984); MRCP (UK) (1987) and FRCR (UK) 1991.

There is no doubt that Dr Saifuddin is well qualified and has had considerable experience. His curriculum vitae also shows that he has published a number of papers in his specialty.

Dr Saifuddin provided the plaintiff with a report which was dated 29 May 1998 and was prepared in response to Dr Parker's evidence. That report was not tendered. Instead his evidence was led from him in evidence-in-chief.

I do not know the reason why the plaintiff chose to lead Dr Saifuddin in that way. It appears to be a feature of this case that both the plaintiff and the defendants led their evidence-in-chief from their experts orally rather than tender the reports which had been prepared by those experts.

I deprecate that practice which is contrary to the spirit of r38 and is self evidently a waste of time. The purpose of r38 is to ensure that each party has notice of the opposite party's expert evidence.

Any expert who is proposed to be relied upon in this Court should be able to write a medical report which complies with r38 and Practice Direction 46. Practice Direction 46 requires the expert to prepare a report which clearly and fully states the assumptions made by the expert, summarises the opinions and gives reasons for each opinion.

That report should form the basis, if not the whole, of that expert's evidence-in-chief: see now r 38.01A(5).

In most cases there should be no need to lead further evidence from the expert because otherwise that would mean that there has not been compliance with r 38.

In this case 16 pages of evidence were devoted to Dr Saifuddin's experience. The plaintiff's counsel then tendered his curriculum vitae. In my opinion leading evidence of an expert's experience in such a way is a waste of both the Court's and the party's time. A waste of the party's time means increased costs.

Dr Saifuddin was asked whether he had been retained in May 1998 for the purpose of looking at some radiological investigations relating to Mr Lucas between 1990 and 1995. He was asked whether he had prepared a report of some three pages together with a covering letter detailing his opinions. After giving that opinion he was then asked whether he had looked at "some evidence" that was given before the court in early June 1998 by a radiologist, Dr Parker. In particular he was asked whether he had seen the evidence-in-chief of Dr Parker from transcript 3513 to 3536.

He agreed that he had read all of those documents.

It was not appropriate to lead evidence from Dr Saifuddin in that way. Such a course is objectionable. It does not allow for the tribunal to be aware of the assumptions or facts upon which the opinion to follow is based: Trade Practices Commission v Arnotts Ltd (No. 5) (1990) 92 ALR 527. In that case, Beaumont J said at 533:

"In my opinion, these authorities establish that there is a rule of evidence at common law that, except in straight-forward, uncomplicated case, where the facts are admitted and readily identified, the opinion of an expert is admissible only where the premises, that is to say, the facts, upon which his or her opinion is based, are expressly stated. It follows that, in a complex case, where facts are not readily identifiable, it is not permissible to put the whole of the transcript and documentary evidence to the witness en bloc."

"This objection to his evidence is not a mere technicality nor is it only a rule to be applied in jury trials. True, some of the authorities refer to the jury, but the rule is of general application. In complicated litigation, there are sound reasons of policy which support a rule that the premises considered by the expert should be expressly stated rather than left to speculation. It is preferable that these matters be clarified when the witness is examined-in-chief rather than leave room for argument later as to exactly what matters the expert had in his mind when expressing his conclusions; cf Trade Practices Commission v Ansett Transport Industries (Operations) Pty Ltd [1978] FCA 21; (1978) 20 ALR 31; 32 FLR 305 per Northrop J at 329; Trade Practices Commission v TNT Management Pty Ltd (1985) 58 ALR 423; 6 FCR 1 per Franki J at 80 - 82."

Dr Saifuddin's attention was drawn to both x-rays of 10 May 1991; the lateral and AP x-rays. His attention was drawn to Dr Parker's report of 10 May 1991 where Dr Parker had reported that:

"The right-sided sacral screw has penetrated the anterior cortex of the sacrum for a distance of approximately 7 millimetres."

Dr Saifuddin said that it was not possible to clearly identify the anterior cortex of the sacral ala on the radiograph because the x-ray was not a perfectly true natural film. He said that, in his opinion, the right-sided sacral screw appeared to be protruding two or three threads beyond the line which he identified at or near the mid line of the sacrum.

He said that it was his opinion that the degree of rotation on the film of 10 May 1991 is relatively minimal. He said that he was of the opinion that one could determine that the right-sided sacral screw must have penetrated the anterior cortex of the ala of the sacrum. To that extent he disagreed with Dr Parker's revised opinion that it was not possible to determine whether the right-sided sacral screw had penetrated the ala of the sacrum.

He was then directed to the left sacral screw and I think in connection with the x-rays of 10 May 1991 although the question is not precise. In any event he was asked:

"Q Would it be consistent with what you have seen on the plain x-ray of 10 May 1991 that the left sacral screw could protrude beyond the anterior cortex of the ala of the sacrum a similar distance to the right-sided sacral screw. A I don't think it is possible to make that judgment. Similarly, I don't think it is possible to say definitely that it didn't penetrate, because for the reasons of beam divergence and for the reasons of slight rotation, I have explained hopefully in that diagram that the left-sided pedicle screw could appear to be well behind the anterior cortex of the sacrum but still penetrating the sacral ala to a significant degree. So I don't think it is possible to be definite one way or the other about the position of the left-sided screw from this radiograph. Q That is based on that radiograph. A That's right, yes. Q Would you therefore disagree, for the reasons that you have given, with the express statements of Dr Parker in the evidence that I have just referred to. A Yes, in my opinion there is no way that you can be sure that the left-sided pedicle screw did not penetrate the anterior cortex of the sacrum."

Whilst Dr Saifuddin disagrees with the opinion offered by Dr Parker if his opinion was accepted it would be of no assistance to the plaintiff. His opinion was not that the left-sided sacral screw did protrude beyond the anterior cortex of the ala of the sacrum, but only that it could not be said that it did not.

Dr Saifuddin's attention, after a series of objections, was directed to the myelogram of 16 May 1991. He said both the right and left sacral screws were able to be identified in slice 23 of the CT scan. He said:

"What I will hope you can see is that the left pedicle screw is pointing directly at the left L5 nerve root. So the orientation of the left S1 pedicle screw is in such a way that if it carries on in that orientation and there is no significant change in the L5 nerve root as we move downward, the left L5 pedicle screw would involve the nerve even if it penetrated a millimetre of the sacrum, because the nerve root lies on the anterior cortex of the sacrum. There is no gap between the two structures."

He was then asked whether he agreed with Dr Parker's evidence that the L5 nerve root passed laterally across the ala of the sacrum. He said, having regard to the x-rays of 10 May, 16 May, 4 June and 12 June 1991 that one cannot say if it does move laterally and if so how much it moves laterally or when it begins to move laterally.

He said that it was not possible to make a judgment with any degree of certainty that the sacral screws pass through the mid portion of the sacrum at a point where the sacral ala was anterior to the anterior cortex of the sacral vertebral body. He said because of variations in the anatomy in different persons it was not possible to say one way or the other whether the mid line of the sacrum is anterior to, level with, or posterior to the ala.

Dr Saifuddin's attention was then drawn to that part of Dr Parker's evidence in which Dr Parker said that the x-ray film of the 10 May 1991 was of no assistance in deciding one way or the other whether there was any protrusion of a sacral screw. Dr Saifuddin agreed with that proposition.

Next he was directed to Dr Parker's evidence in which Dr Parker said that the myleogram x-ray of 16 May 1991 did not allow the reader to determine where the ala of the sacrum were. He also agreed with Dr Parker that on reading the myleogram as the ala of the sacrum moved laterally they moved forward where they coincided with the sacroiliac joints.

He said that the plain x-rays of 16 May 1991 and in particular the AP radiograph films showed that the tips of the screws were not angulated medially at the sacral level.

His attention was then directed to Dr Parker's evidence that on his reading of the plain x-rays of 16 May 1991 he formed the opinion that there was a slight degree of protrusion on the right side but that it was not a significant amount of protrusion and there was no protrusion on the left side.

It is important to set out Dr Saifuddin's evidence in relation to this matter because this matter is at the heart of the second aspect of Dr Parker's evidence:

"Q At p.3529 Dr Parker was asked about his conclusion having looked at the X-rays of the 10th and 16th, including the lateral X-rays taken at the time of the myelogram, and his conclusion as expressed from lines 2-5 at p3529 was that there was a slight degree of protrusion confirmed on the right side, but that it was not a significant amount of protrusion. Do you have that passage. A Yes. Q Do you agree with that view. A He says a significant amount. Now I don't know what we have decided between ourselves that a significant amount is. Is it one millimetre, three millimetres, five millimetres? If it's gone through a centimetre and hasn't hit anything of value, it's not a significant amount, so I can't really make a comment on that statement. If it's gone through two millimetres and hit the nerve root, then it's a significant amount. So it's not possible to agree or disagree with that kind of a statement. Q You've already expressed your view, disagreement with his statement following that passage to the effect that he felt that the left screw did not protrude. A I feel from the imaging available - and I'm talking about the imaging that I've been asked to comment on - that he cannot make a statement with any degree of confidence, that the tip of the left screw did not penetrate the sacrum, the anterior cortex of the ala. I don't think such a comment can be made with any degree of certainty at all."

It is important to note, in my opinion, that Dr Saifuddin really did not address Dr Parker's evidence at all. In relation to the right screw he engaged in a semantic argument which could have been of no assistance to the Trial Judge and in relation to the left screw he talked about degrees of certainty. The court is not concerned with a radiologist's opinion of the degrees of certainty.

What Dr Saifuddin was asked was whether he agreed with Dr Parker's opinion upon the assumptions contained in the plain x-rays of 16 May 1991. In my opinion he has not offered an opinion in relation to those matters.

His attention was then directed to matters of anatomy.

He said that the L5 nerve root can move laterally as it goes down the sacrum. His experience was that the lateral movement was very variable and certainly varied from individual to individual.

In particular in relation to the plaintiff and Dr Parker's evidence, in which he said that the L5 nerve root passed forward and laterally to the sacral foramen, Dr Saifuddin said:

"Based on the imaging on which I've been asked to comment on, I would say there is no way he could make that statement with any confidence. It may be the case, but he cannot make it with any confidence based on the imaging that I have been able to comment on."

Again that answer is not helpful. Dr Saifuddin, by that answer, was not denying Dr Parker's opinion. His evidence was that Dr Parker could not offer the opinion with any degree of certainty. The question for Dr Saifuddin was whether or not that was his opinion based on the assumptions which he was asked to make.

In cross-examination Dr Saifuddin agreed that in respect of the x-ray of 10 May 1991 if the patient was rotated the degree of protrusion of the right sacral screw could be exaggerated.

He was not asked nor did he offer an opinion of the extent of the protrusion of the right-sided sacral screw of 10 May 1991. Irrespective of that first aspect of his answer, of course, his evidence was consistent with Dr Parker.

He agreed that the myelogram of 16 May 1991 does not demonstrate a protrusion of the left sacral screw beyond the anterior cortex because the myelogram has only been taken to a level of approximately 50 per cent along the length of the screw.

He repeated in cross-examination that one could not be 100 per cent sure that the L5 nerve root goes laterally in every single patient. In some patients the L5 nerve root travels downwards for a greater distance than others before it tracks laterally.

In cross-examination he was asked to indicate from his general knowledge whether a safe screw implantation in the sacrum can only be ensured if it is placed above the level of the first sacral foramen and directed straightforward or medially.

He said the difficulty in giving an answer with that is that everyone is different. There can be some patients who have very wide S1 pedicles which are relatively far apart. He then went on to offer this opinion:

"A From my general knowledge it appears to be accepted that there are two accepted techniques for placing S1 pedicle screws. The first is with medial angulation so that the tips of the screws are within the sacral promontory, and the second is with a fairly major degree of lateral angulation. And can I demonstrate that from the CT so that you can understand what I am saying. HIS HONOUR Q Yes, I think it would be a good idea. A My understanding of the situation, and I am now showing you again slide 23 of the CT scan, is that there are two safe, accepted techniques for S1 pedicle screw fixation. The first is with medial angulation in such a fashion and the second is with fairly exaggerated lateral angulation in this fashion here. I am personally not aware of the literature which suggests that to place a screw directly in this direction is acceptable. Q Does it follow from that that what was done here is not acceptable? A That would be my opinion, yes."

The opinion, which was sought inadvisably from this witness, was given from his general knowledge. The opinion which was given was outside his patient's expertise. He is not a surgeon but a radiologist. He was not able to offer an experts' opinion on the matter on which he did.

He was then directed to an article in a publication entitled "Spine". It was put to him that that article contradicted the opinion which he had just offered.

He agreed that the journal was a well respected journal and that publications made within it would be likely to represent a responsible body of opinion. Indeed he volunteered that he would like to have articles of his own published in "Spine".

"Q I mean no disrespect by putting this to you, but given that the authors of that particular article describe a medial safe zone, would that be to you, even if you don't agree with it, consistent with a screw directed straight forward above the level of the first sacral foramen as being a screw that would be likely to avoid the L7 (sic) nerve root. A If we base our discussions on this diagram, that would clearly be the case, but based on the imaging I see on a day-to-day basis, and based on personal experience in seeing pedicle screw fixation going wrong in other situations, I would not accept that that is the satisfactory position. Q Am I correct in saying that even though you don't agree with it, you would accept that a responsible body of opinion would support the contrary view. A It's difficult. I think maybe his Honour would be helped by understanding something about how publication occurs within peer review journals."

383. The witness then went on for about a page and a half describing how it is that articles come to be published in medical journals. Having completed that answer his Honour asked:

"Q Anyway, the answer to this one is that you don't agree with it. A Yes, I find that diagram, based on what I see on a day-to-day basis of MRI and CT scans, quite misleading. XXN Q But obviously someone has a contrary opinion. A Of course, and if I might, I would just quote the paper which was published in the same journal immediately before this which shows a diagram of a CT scan with a proposed position of an anteriorly placed pedicle screw hitting the L5 root. So this is a directly opposed opinion in the same journal, in the two papers published next to each other. Q Such matters are controversial against qualified people. A That's right yes."

384. At that stage his cross-examination completed.

385. A number of matters may be noted in Dr Saifuddin's evidence. First he did not in the end disagree with Dr Parker that the x-ray of 10 May 1991 did not indicate a protrusion of the right screw of 7mm. He did not offer an opinion on any of the x-rays to which his attention was directed as to whether there was any protrusion of the right or left screws and if so the extent.

386. He limited his evidence to saying that Dr Parker could not say with a degree of certainty a number of the matters about which Dr Parker gave evidence.

387. His evidence was entirely negative and, indeed in my opinion, did not advance the plaintiff's case at all.

"I found Dr Saifuddin to be a most impressive witness whose evidence and opinions I much preferred to that of Dr Parker who did not impress me."

"With regard to the right-sided screw, Dr Saifuddin after examining two x-rays, an AP (anterior posterior) view and a lateral view taken on 10 May 1991, expressed the view that the dome and two turns of the screw had gone beyond the mid-line of the sacrum. He was critical of Dr Parker's use of iliopectineal lines to determine rotation, finding it difficult to determine which of the various white lines on the x-ray had to be imposed. In his examination-in-chief, Dr Saifuddin was of the opinion that 'the right-sided S1 screw must have penetrated the anterior cortex of the ala of the sacrum.' As for the left-sided screw Dr Parker expressed the opinion that it did not penetrate the anterior cortex of the sacrum at all (in other words did not come through the front of the sacrum, the bony plate at the base of the spine) in front of which a nerve root passes. Dr Saifuddin on the other hand said that it was not possible to be definite one way or the other on the position of the screw based on the x-rays and scans he had before him. He felt that he could not be sure that the left-sided pedicle screw did not penetrate the anterior cortex of the sacrum. He disagreed with Dr Parker. I prefer the opinion of Dr Saifuddin. Dr Saifuddin when examining an MRI scan made the observation that the 'left pedicle screw is pointing directly at the L5 nerve root'. He explained that if the nerve continued in the direction it was taking that a screw would irritate the nerve even if it penetrated a millimetre of the sacrum. On the radiological material before the Court, it was impossible to track the direction of the nerve root as the MRI scan had only mapped half of the offending screw. Nevertheless, this combined with another observation of Dr Saifuddin seem to indicate that the screws were placed in at an angle which was most likely to injure a nerve. This observation came out in a conversation between myself and Dr Saifuddin: "A My understanding of the situation, and I am now showing you again slide 23 of the CT scan, is that there are two safe, accepted techniques for S1 pedicle screw fixation. The first is with medial angulation in such a fashion and the second is with fairly exaggerated lateral angulation in this fashion here. I am personally not aware of the literature which suggests that to place a screw directly in this direction is acceptable. Q Does it follow from that that what was done here is not acceptable. A That would be my opinion, yes."

Summary of the Trial Judge's Findings on Dr Saifuddin

390. I have already indicated that, in my opinion, the Trial Judge did not address Dr Parker's evidence appropriately. He did not first make his findings of fact before determining whether Dr Parker's opinions could be relied upon.

391. In my opinion, he has made the same error in relation to his assessment of Dr Saifuddin's evidence.

392. He has, in the passage to which I have referred, indicated the differences between Dr Saifuddin's evidence and Dr Parker's.

393. He has failed to identify, however, that Dr Saifuddin failed to give evidence that the left-sided sacral screw protruded through the cortex by 7 mm or any distance.

394. The high point of Dr Saifuddin's evidence was that he disagreed with Dr Parker who said that he could positively say that the left-sided pedicle screw did not penetrate the anterior cortex of the sacrum. He did not say that the left-sided pedicle screw did penetrate the anterior cortex.

395. If the learned Trial Judge was right to reject Dr Parker's evidence and, in my opinion, no reason has been given for doing so, the Trial Judge was then left without any evidence as to whether or not the left-sided sacral screw did penetrate the anterior cortex of the sacrum and any evidence of the degree of protrusion.

396. If he was right to accept Dr Saifuddin's evidence and, in my opinion, he was not because Dr Saifuddin did not give any positive evidence, then the Trial Judge was left with no evidence on the question of protrusion of the left-sided pedicle screw.

397. If there was no evidence to support a finding that the left-sided pedicle screw penetrated the anterior cortex of the sacral by 7 mm, or by any distance which would have made the screw likely to impinge on the L5 nerve root, then Mr Morley's evidence could not be accepted, no matter how impressive Mr Morley was himself as a witness. As I have already pointed out, it was always Mr Morley's opinion that there must have been an impingement because of the degree of protrusion of the left-sided pedicle screw.

398. In my opinion, upon the findings made by the Trial Judge, the plaintiff's claim of negligence against Mr Hillier had to fail. I must say, however, I do not believe that the Trial Judge approached the exercise correctly. If he had approached the exercise correctly, he would have accepted the evidence of Dr Parker and found positively that there had not been a penetration of the cortex by the left-sided pedicle screw and that it was not the source of whatever injury, if any, the plaintiff did suffer.

399. In any event, in my opinion, for that reason the finding of negligence by Mr Hillier in the carrying out of the operation cannot stand.

400. The Trial Judge did not address the other two assumptions made by Mr Morley. He did not determine whether it was appropriate to infer that if the right-sided sacral screw protruded by 7 mm, so also must the left. That was not a matter within Mr Morley's own specialty. It was an assumption he made for the expression of his opinion. I have referred to the evidence of Mr Hillier which touches on this issue. However he was not qualified to express that opinion. It was for a radiologist to express that opinion. That is because the deduction has to be made from a reading of x-rays.

401. The third assumption made by Mr Morley was that the history recounted to him was accurate. That was an assumption that Mr Morley could properly make. It was not, however, an assumption the Judge could make. The plaintiff had to give the same or similar evidence, in so far as it was relevant, as the history he had given to Mr Morley. The Judge had to accept that evidence and make appropriate findings. The assumptions made by Mr Morley had to correspond with the factual findings made by the Judge. If the Judge was not prepared to accept the history given by the plaintiff then he could not accept the opinion, offered by Mr Morley, based upon that history: Ramsay v Watson (supra).

403. The Trial Judge said that he formed a poor opinion of the plaintiff. He described the plaintiff as a manipulator and a professional invalid who has lived on the tax payer since 1983.

404. A film was shown which contradicted a good deal of the plaintiff's evidence. It was after that that the plaintiff agreed that he had lied.

405. He not only lied in evidence but he manufactured symptoms after he underwent this operation. He deliberately manufactured a foot drop and wore a calliper supposedly for that foot drop.

"In examination-in-chief I formed a picture of a man still quite severely handicapped. After cross-examination and seeing film it was obvious that the plaintiff had exaggerated his incapacity, indeed gone past the point of exaggeration to downright lying, to mislead those who examined him and the Court."

"I really do not feel able to accept anything the plaintiff has told me of how he has felt since the operations unless it is confirmed independently in some way."

The learned Trial Judge was obliged to make some assessment of the plaintiff's complaints immediately after the operation. He found:

"Having heard the plaintiff and having read the notes I believe that up to this time, [on 15 June] the complaints of pain were genuine."

In my opinion, to accept the evidence of Mr Morley, the Trial Judge needed to decide whether the account given to Mr Morley was accurate. He could only have made that decision if the plaintiff gave the same account in court and the Trial Judge was prepared to accept the account given in court.

The Trial Judge did not address either of those matters and, in my opinion, absent such a finding, he was not entitled to rely on Mr Morley's evidence based as it was on that third assumption.

Ordinarily, it may be that a Trial Judge would not need to address those matters with the formality which I have suggested. If the plaintiff's evidence is to be accepted, and if the plaintiff's account in court is consistent with the account given to the medical practitioner, it is enough to simply accept the medical practitioner's opinion based on that account, without having to formally make a finding that the account given to the medical practitioner corresponded with the account in court and was accepted by the Trial Judge.

But that is not the case in this matter. In this matter the Trial Judge disbelieved the plaintiff. He found that the plaintiff was not a witness who could be accepted unless his evidence was confirmed independently in some way.

He did not make the appropriate findings and, in my opinion, therefore, could not rely upon Mr Morley's evidence.

A number of other expert medical witnesses were called by the defendants. I do not intend to canvas the evidence of all of the witnesses but reference should be made to the evidence of three of them. The evidence of a physiotherapist is also relevant.

The defendants called two neurologists, Dr Hall and Professor Burns.

The learned Trial Judge did not refer to their evidence in his reasons except in an oblique way:

"But what of the other expert medical evidence? I heard from a number of gentlemen, called by both sides, expert witnesses who greatly impressed me - 'witnesses whose attainments neither were nor could be challenged.' Yet alas, as in Forst's Case, again to use the words of Rich ACJ 'whose opinions exhibited no greater degree of unanimity that is commonly met within other departments of abstruse knowledge and of scientific research.' I do not propose to canvas the evidence of each but I assure the reader that I have carefully considered the opinions of them all. I shall not canvas the different opinions because I have come to the firm view that I prefer the evidence of Mr Timothy Roland Morley... "

It must be assumed that his Honour has included Dr Hall and Professor Burns within that group of witnesses who greatly impressed him, because his Honour did not otherwise refer to their evidence.

Of course his Honour was entitled to prefer Mr Morley's evidence to the evidence of any of the other witnesses but only if, as I have already said, he was able to indicate why that evidence should be preferred.

Both Dr Hall and Professor Burns who are eminent neurologists practising in South Australia gave evidence that the plaintiff's post-operative complaints could not be attributable to the left sacral screw impinging on the L5 nerve root.

Dr Hall saw the plaintiff at the instigation of Mr Carney in August 1991. He reported that in his opinion the plaintiff's complaints were due to lumbar plexopathy. In particular it was his opinion that there was no clinical evidence of any involvement of the L5 nerve root.

It was his opinion that a lumbar plexopathy, which is a lesion, should resolve within a few weeks to a couple of years.

Professor Burns saw the plaintiff in May 1995 at the instigation of the plaintiff, Comcare. He also could not find any organic reason for the plaintiff's complaints of pain.

The Trial Judge was therefore presented with the evidence of two neurologists that there was no evidence of any impingement of the L5 nerve root.

The Trial Judge was under an obligation, in my opinion, to refer to that evidence for the purpose of making any finding as to whether or not there had been an impingement of the L5 nerve root.

The defendants also called an anaesthetist, Dr Aidinis. Dr Aidinis had seen the plaintiff on 15 June 1991, that is two days before the third operation was carried out.

The Trial Judge dealt with Dr Aidinis's evidence in this way:

"On 15 June Dr Sydney John Aidinis gave the patient epidural pain test. They shewed a bizarre pattern. The patient reported less pain in the leg when administered placebos than with even high doses of pain killers! This led Dr Aidinis to express the opinion that the complaints of pain were consciously exaggerated. Perhaps exaggerated but genuine nonetheless. Having heard the plaintiff and having read the notes I believe that, up to this time, the complaints of pain were genuine. Certainly there were bizarre features but I find that the plaintiff was having very great discomfort. Both defendants knew or should have known this!"

Dr Aidinis carried out a number of tests to determine whether or not the complaints of pain were genuine or otherwise.

"Saline injections were administered on July 9, 1991 for a period of 7 hours. This resulted in considerable pain relief. In fact when compared to epidural pethidine injections the placebo administration was more effective in reducing his pain."

Dr Aidinis also administered a course of Marcain which would have the effect of deadening sensation from the waist down. The anaesthetic is potent enough to eliminate all bladder and bowel control. Notwithstanding that the plaintiff still complained of pain. It was Dr Aidinis's opinion that there would be "no way you could feel any pain."

In my opinion the Trial Judge has not dealt adequately with Dr Aidinis's evidence.

It must be remembered that Dr Aidinis's evidence was consistent with the Trial Judge's finding in due course that the plaintiff had lied and exaggerated.

In Dr Aidinis's evidence, the Trial Judge had evidence which indicated that the plaintiff was exaggerating his symptoms even before the third operation was carried out on 17 June 1991. His evidence also supported a finding that the plaintiff was consciously exaggerating his symptoms a month after that operation.

In my opinion the Trial Judge had to make findings in respect of that evidence.

The defendants also called a physiotherapist, Mrs Richardson, who treated the plaintiff both before and after the operation of 6 May 1991.

Within a few days of the operation she formed the opinion that there were inconsistencies in the plaintiff's presentation. His complaints were inconsistent with physical signs.

She formed the opinion that the plaintiff was manufacturing his symptoms.

The only evidence to support the plaintiff's complaints of pain and discomfort was that of the plaintiff who, as the Trial Judge found, had been discredited.

In my opinion the Trial Judge was under an obligation to assess and weigh the evidence of the neurologists, the anaesthetist and the physiotherapist for the purpose of determining whether or not there had been an impingement to the L5 nerve and determining that the complaints made by the plaintiff were truthful.

No attempt was made by the Trial Judge in that regard.

The defendants have complained, rightly in my opinion, of the Trial Judge's failure to deal with this aspect of the defendants' case.

In my opinion the Trial Judge has erred in failing to evaluate this aspect of the defendants' case.

Summary of the Plaintiff's Case Against Mr Hillier on Liability for Negligence in the Carrying Out of the Operation

For all of those reasons, notwithstanding that the Trial Judge was impressed by Mr Morley, in my opinion he was not entitled to rely upon Mr Morley's evidence for the purpose of determining that Mr Hillier had been negligent in the carrying out of the operative procedure.

In my opinion, the plaintiff's complaint against Mr Hillier failed because the plaintiff did not prove the assumptions upon which the opinion evidence was based.

The Trial Judge did not make a positive finding of the standard of care appropriate to be observed by a surgeon carrying out a Luque operation in the circumstances of this case. It might be inferred that he found the standard of care such that the pedicle screws should not penetrate the anterior cortex such as to cause damage to the L5 nerve. That might be his finding in the passage to which I have referred where he discussed the Bolam test.

If that was the standard of care found by the Trial Judge there is no evidence that Mr Hillier failed to observe that standard of care.

In the end result because Mr Morley's opinion could not be accepted, in my opinion, there was no evidence of a failure to observe the standard of care.

Summary of the Plaintiff's Case Against Mr Carney in Relation to the Operation Itself

The case against Mr Carney, in relation to the operation, was that he failed to remain in the theatre whilst Mr Hillier carried out his procedure. The plaintiff did not attempt to establish that Mr Carney's failure to remain in the theatre was causative of any loss. The claim against Mr Carney in relation to his conduct in the operation had to fail.

449. The plaintiff has not sought to challenge that finding on this appeal.

450. The Trial Judge then considered the post-operative care offered by both defendants. He noted that neither defendant had kept proper notes of consultations and examinations. Neither surgeon ever read the hospital notes. Both claimed that they carried the information related to the plaintiff in their head. He did not, however, find that the defendants' failure to make notes was of itself negligent.

451. The Trial Judge concluded that the defendants delayed in reacting to the plaintiff's complaints of pain after the operation on 6 May 1991. He said that nothing was done until 26 May when the second operation was carried out and during that operation the offending screw was not removed. It was not until 17 June 1991 during the third operation that the left plate and the screws were removed.

452. Relying again upon the opinion of Mr Morley, the Judge concluded that the delay was significant. Mr Morley believed that the earlier the irritation was removed the better the prospect of the nerve recovering from the insult caused by the screw.

453. The Trial Judge found that Mr Hillier was negligent for waiting so long before removing the plate and the screws and that that delay had unnecessarily prolonged the plaintiff's pain and discomfort.

454. Whilst Mr Carney acted after the operation of 6 May 1991 as though Mr Hillier had the responsibility for treating the complaints of pain the Trial Judge found that Mr Carney could not thereby avoid responsibility. He also found that Mr Carney was negligent in not taking action promptly either himself to try to find out what went wrong or at least by pushing Mr Hillier to try to find out.

"I accordingly find each defendant negligent in not taking action earlier - the first defendant at least to the extent of urging on the second defendant - after the operation on 6 May 1991, each being aware of the plaintiff's complaints of pain, especially in the left leg and in the nature of the complaints. I find the defendant Mr Hillier alone negligent in the performance of the operation of 6 May for allowing the left-sided screw or screws to penetrate so far as to impinge on a nerve root, the probable cause for pain. So much for liability. I find that the plaintiff has succeeded, on the balance of probabilities, in establishing liability against each defendant."

The Trial Judge did not distinguish between the effects upon the plaintiff of the separate acts of negligence of the first and second defendants. He did not make any findings as to the extent of the damage caused by the operation of 6 May 1991 itself and how much of the damage was caused or maintained by reason of that delay after the operation.

He treated both defendants as being responsible for the whole damage even though, on his own findings, Mr Carney was responsible only for the failure to react more quickly to the plaintiff's complaints of pain.

I shall first deal with the complaint against Mr Carney.

Mr Carney, of course, had the responsibility post-operatively of caring for the plaintiff in respect of that part of the procedure for which he was responsible. Mr Carney's procedure caused no complications post-operatively. If there were any complications those complications arose out of Mr Hillier's procedure. It was for Mr Hillier to give whatever advice was appropriate and to take whatever action was appropriate to relieve the plaintiff of any symptoms directly referable to some failure of the operative procedure of 6 May 1991.

The claim against Mr Carney in relation to the post-operative procedure had to fail. The Trial Judge was wrong, in my opinion, to find any fault upon the part of Mr Carney in relation to the post-operative management and treatment of the plaintiff.

The plaintiff's evidence was that after he recovered from the anaesthetic he had terrible pain in his left leg. He continued to complain of pain in his left leg during the whole of the time that he remained in the Memorial Hospital. On 26 May 1991 Mr Hillier carried out a further operation. He explored the operation site and lifted the metal to determine whether the metal was protruding on the L5 nerve.

After satisfying himself that the pedicle screws were not the cause of the plaintiff's complaint of pain, he replaced the plate and screws.

The plaintiff continued to complain of pain and on 17 June 1991 Mr Hillier carried out a third procedure. On that occasion he removed the left plate and the screws.

The claim against Mr Hillier in respect of the post-operative treatment also has to fail. The claim is predicated upon the basis that the plaintiff suffered a major irritation by reference to Mr Hillier's procedure on 6 May 1991. That claim has not been made out.

In regard to the post-operative treatment, the Trial Judge again relied upon Mr Morley. Mr Morley expressed the opinion that the plate should have been removed before Mr Hillier carried out his second procedure on 26 May 1991 and certainly before they were removed in the third procedure on 17 June 1991.

It was Mr Morley's opinion that the continued presence of the screws exacerbated the irritation to the L5 nerve root.

But, of course, that opinion assumes Mr Morley's underlying opinion, which has not been established, that the left-sided pedicle screw was the cause of the irritation.

If that opinion cannot be accepted then, in my opinion, nor can his further opinion that that screw should have been removed.

This aspect of the Trial Judge's reasons also suffers from an absence of findings. The Trial Judge has not found from what symptoms the plaintiff was suffering after May 1991 and before the removal of the plate in June 1991.

The plaintiff was an unreliable witness. It was incumbent upon the Trial Judge to find the particular symptoms of which the plaintiff was suffering during this period of time and, if satisfied that the plaintiff was experiencing symptoms, the severity of those symptoms. The Trial Judge then needed to determine whether Mr Morley's opinion was based upon the assumptions which the Trial Judge had found proved.

It is not enough to say, in my opinion, that Mr Hillier should have done something quicker than he did without first determining what symptoms it was that the plaintiff was suffering and whether those symptoms would have been alleviated by Mr Hillier doing something quicker than he did. It also needed, in my opinion, findings from the Trial Judge as to whether it was appropriate, having regard to the plaintiff's pre-operative history, to treat him conservatively rather than to submit him to further operative procedures.

Mr Hillier's evidence was that in the second procedure on 22 May 1991 he removed the plate for the purpose of determining whether the screw was causing irritation to the L5 nerve. It seems to me if the Trial Judge was to accept Mr Morley's opinion he had to find that Mr Hillier, during that procedure, failed to observe that the left-sided sacral screw was impinging upon the L5 nerve. He had to also find that when Mr Hillier replaced the screw and the plate that he did so such that the left side of the sacral screw continued to impinge on the L5 nerve. In the alternative the Trial Judge had to find, if Mr Hillier was to be found negligent, that the original procedure on 6 May 1991 was such that the lifting of the plate in the procedure of 26 May 1991 did not alleviate the plaintiff's symptoms.

If it was the Trial Judge's opinion that the damage had occurred on 6 May 1991 and nothing done on 26 May 1991 could or did alleviate the symptoms then he had to find that Mr Hillier's delay in lifting the plate for the purpose of examining the screws and the L5 nerve was not causative of any further injury to the plaintiff. The plaintiff had already suffered his injury by reason of the first procedure.

This is a further instance, in my opinion, of lack of findings on the part of the Trial Judge.

Without the findings to which I have referred it is not possible, in my opinion, to hold that Mr Hillier was negligent in delaying the investigation of the operation site until 22 May 1991.

The same shortcomings affect any determination of negligence by Mr Hillier in failing to remove the plates before 17 June 1991.

In my opinion, Mr Morley's opinion cannot be relied upon for a finding of negligence post-operatively especially so in the absence of the various findings to which I have referred.

In my opinion, the plaintiff's claim was not made out against either defendants.

In my opinion the plaintiff has failed to make out negligence on the part of either defendants. The plaintiff has failed to establish the assumptions upon which the plaintiff's opinion case was based.

In those circumstances the plaintiff did not prove a want of care on the part of either surgeon.

It would follow therefore that the appeal must be allowed and the judgment entered against both defendants set aside. In lieu thereof judgment should be entered for the defendants against the plaintiff.

If I am wrong about that and the plaintiff has established negligence on the part of the defendants, in my opinion, the defendants are entitled to a new trial. In my opinion the Trial Judge wrongly refused to allow the defendants to call Dr Perrett to give evidence of the radiological examinations, which he carried out in June 1991, and his opinions expressed in relation to those and to other radiological examinations.

In the circumstances of this case it was unjust to the defendants to allow the plaintiff to attempt to prove his case by relying upon the tender of the Memorial Hospital case notes and thereby Dr Parker's evidence without Dr Parker being called.

It was unjust to the defendants to allow the plaintiff to call in rebuttal Dr Saifuddin in circumstances where the defendants had called the witness who should have been called by the plaintiff and was not entitled to call a witness to support that first witness.

In those circumstances if I am wrong and the plaintiff has established negligence against one or both the defendants then, in my opinion, the appeal should be allowed and the matter remitted to another judge for a new trial.

I will, as I have said, consider the question of damages even though I believe that the plaintiff's claim against both defendants should fail and even though I believe that the defendants would, in any event, be entitled to a new trial for the failure by the Trial Judge to allow the defendants to call Dr Perrett on the critical issue to which I have referred.

The Trial Judge formed a very strong and unfavourable view of the plaintiff. As I have said, he described him as a man whose word not to be trusted, a manipulator and a professional invalid who has lived on the taxpayer since 1983.

The plaintiff admitted to lying under oath after he was shown a video film on himself. The Trial Judge said that the plaintiff had pretended to have a foot drop which required him to wear a calliper. This gave him a high stepping gait which he admitted to exaggerating. He complained that he could not climb stairs and had difficulty walking on uneven terrain. That was shown to be untrue.

"In examination-in-chief I formed the picture of a man still quite severely handicapped. After cross-examination and seeing film it was obvious that the plaintiff had exaggerated his incapacity, indeed gone past the point of exaggeration to downright lying, to mislead those who examined him and the Court. The videos shewed a man who, by January 1998, was quite mobile and appeared to be leading a reasonable existence engaging in every day activity such as shopping, driving, cleaning the car and hobbies such as fishing and yabbying. It means that I must greatly discount what the plaintiff has told me about his incapacity. I too discount the evidence of Sandra Stevens, his partner with whom he lives in the caravan on the Sturt Creek and of her daughter, Lee Stevens, who lived with them for sometime, because of their obvious loyalty to him. I really do not feel able to accept anything the plaintiff has told me of how he has felt since the operations unless it is confirmed independently in some way. It certainly makes the job of assessing damages difficult, particularly to work out when he had recovered from the effects of the operations (as I am sure he had well before the time of trial). What should be the cut-off point, as it were, for damages for pain and suffering and the loss of amenities of life?"

490. The Trial Judge answered the question he posed for himself by determining that the plaintiff had substantially recovered from the after effects of the operations by November 1992, when a morphine pump was fitted.

"I have already set out the several operations he had after the first operation on 6 May 1991, in an attempt to reduce the pain in his left leg. The plaintiff was in hospitals for about four and a half months and during that time must have been very uncomfortable indeed. I accept that after he went home to the caravan park the discomfort accompanied by incapacity continued. The medical people did what they could to help him but until November 1992, when he had a morphine pump fitted, about 18 months after the operation, nothing much helped. Given that he must have a pump in his body now for the rest of his life, it has been pretty successful in reducing his pain."

492. His Honour then discussed Mr Morley's evidence in relation to the pump:

"Nevertheless, Mr Morley described it as, 'the best decision that anybody took. It revolutionised his life'. Mr Morley also expressed the view that the plaintiff is probably better off now than he was before the operation. I propose therefore to use November 1992, when the pump was first fitted, as the cut-off date. This was when the plaintiff had substantially recovered from the after effects of the operation. His condition was stable. I do not forget, though, that the maintenance and occasional replacement of the pump will continue for the rest of his life and I must make allowance for that."

493. His Honour then referred to Mr Morley's evidence:

"Q If he admits to faking a foot drop from 18 months after the surgery, would you expect that, in an average patient, if there is such a thing, after this type of surgery, that he will recover within 18 months without the complication. A If you have a neurological injury, and you take away the cause of it, you have 18 months in which to recover. So, if this was a recoverable lesion, which I think we all think it was, then, you would have expected him to recover over a period of 18 months."

494. The Trial Judge said he was fortified by that evidence in the findings that he made.

495. Mr Morley's evidence does not support a finding for the need for the insertion of the morphine pump. It does not support a finding that as a result of the defendants' negligence a morphine pump would be necessary for the rest of the plaintiff's life.

"I think that it was neuropraxia, i.e. a bruising of the nerve and not a cutting of the nerve, and I think that with time it recovered and it recovered in the major part, so if that's defined as minor, yes, its minor. I think it took a minimum of 18 months to resolve, which is what you would expect from a neuropraxia."

That further evidence, in my opinion, would not support a finding that the defendants' negligence gave rise to the need for morphine pump.

However there is other evidence again to which the Trial Judge has not referred and to which I have referred. The evidence of Dr Hall, Professor Burns and Ms Richardson would indicate that whatever else the plaintiff suffered from he had probably made a complete recovery by this time.

The evidence supports a finding that the plaintiff should have recovered in all respects from this injury within 18 months of the operation of 6 May 1991. It also would support a finding that the insertion of the morphine pump has left the plaintiff better able to cope with his disabilities than he was prior to the operation.

The Trial Judge has not expressly found that the morphine pump was made necessary by the negligence of the defendants. However, I think it must be inferred that he did from the fact that he allowed for the insertion of the pump and for the ongoing cost of priming it.

Assuming that to be his finding, in my opinion, that finding was not supported by the evidence.

I have difficulty in the Trial Judge's reasons in respect of damages. On the one hand he has found that the plaintiff has been guilty of gross exaggeration. He has found that he cannot believe the plaintiff unless the plaintiff's evidence is confirmed independently in some way. Notwithstanding those findings, his Honour has approached damages upon the basis that the plaintiff has suffered significant damage between 6 May 1991 and November 1992.

The findings seem to me to be contradictory. There is no independent evidence to support the plaintiff's continuing complaints of pain at least after June 1991 and it seems to me, in assessing damages upon the basis that he continued to suffer pain, the Judge is acting contrary to his first finding.

However the Trial Judge held that up until November 1992 nothing much had helped the plaintiff in relieving the pain which he suffered as an after effect of the negligent operation. That is why I think he allowed for the cost of the morphine pump and its ongoing costs.

The plaintiff will have a morphine pump in his body for the rest of his life. That morphine pump has to be primed once a month and must be replaced every three to five years.

The Trial Judge then considered the plaintiff's lifestyle. He observed that the plaintiff had always smoked heavily and consumed far too much alcohol to the point of becoming an alcoholic. He has continued with that lifestyle up until trial and the Judge concluded that he was likely to do so for the rest of his life. Whilst he has an actuarial life expectancy of about twenty-five years the Trial Judge concluded that his life expectancy had been considerably reduced by his lifestyle. He found that the plaintiff had a life expectancy of twelve years.

In considering the award for pain and suffering and loss of amenities the Trial Judge took into account a reduced sexual capacity, although it is clear that his Honour thought that reduction in a sexual capacity was not so much due to the operation, but more likely to be due to the dependence on tobacco and alcohol. He took into account a reduced mobility. He had regard to the four and a half months which the plaintiff spent in hospital.

The learned Trial Judge allowed $30,000 for pain and suffering for the period between 6 May 1991 and November 1982. That is an award of about $20,000 per year. He also allowed a further $10,000 for pain and suffering from November 1992 until judgment. He allowed yet another $10,000 for future pain and suffering.

I am prepared to assume that the learned Trial Judge found, without expressly saying so, that the plaintiff was in pain for the whole of the period between May 1991 and November 1992. Thereafter, the pain was alleviated by the morphine pump. I must assume, although in my opinion the finding was not open, that the insertion of the morphine pump was due to the negligence of one or both of the defendants. In considering damages I must assume that the verdict on liability will stand as his Honour has determined.

As I have pointed out judgment was entered against both defendants for their several acts of negligence.

Because Mr Carney was not found negligent in relation to the operation it was necessary for the Trial Judge to determine whether the plaintiff's incapacity until November 1992 arose out of the operative procedure or the operative procedure and the post-operative care. He also had to determine the extent of the damage which could be attributed to the operative procedure and the post-operative care.

Because inferentially he found that the insertion of the morphine pump was a consequence of the negligence of the defendants he had to find whether that arose by reason of the negligence of Mr Hillier in the conduct of the operation or by reason of the failure of both of the defendants in relation to the post-operative care.

Mr Carney can quite simply say that whatever else about this decision he could not be responsible for the same damages for which Mr Hillier was responsible, unless Mr Hillier's operation did not cause any of the damage which flowed. If that was so, of course, the learned Trial Judge had to dismiss the claim against Mr Hillier in relation to the operation.

I merely point out these things to show how difficult it is for this Court to deal with a decision which is so lacking in findings.

Putting all those matters aside and assuming that the plaintiff was in almost constant pain between May 1991 and November 1992 a figure of $30,000 for pain and suffering, whilst it might be high, cannot be said, in my opinion, to be manifestly excessive.

A further sum of $10,000 for pain and suffering between November 1992 and judgment requires further findings. The plaintiff could not have been entitled to any further sum for pain and suffering unless he was suffering pain after November 1992 due to the negligence of the defendants in May and June of 1991. In respect of the claim brought against Mr Carney, he could not have been liable for any damages after November 1992 unless the plaintiff's condition after that time was partly due to his negligence in the post-operative stage. No finding was made to that effect.

The learned Trial Judge's reasons rather suggest that after the insertion of the morphine he was not satisfied that the plaintiff would suffer pain. Of course he would have the inconvenience of priming the morphine pump but no allowance could be made for that unless the morphine pump was directly attributable to the defendants' negligence. If he was satisfied that the plaintiff suffered pain after that time, that would be contrary to his finding in accepting the evidence of Mr Morley that the plaintiff was better off after insertion of the morphine pump than he had been before the operation of 6 May 1991 and the further evidence that the plaintiff would have recovered within 18 months.

It might also be contrary to a finding which he made in relation to the claim for special damages. In awarding special damages his Honour allowed nothing after November 1992 except for the cost of the morphine pump between that date and judgment. He allowed nothing for any of the other treatment for pain and suffering.

I cannot understand how the Trial Judge can reconcile an award of damages for pain and suffering after November 1992 and before judgment, and further award of damages for the period after judgment with the findings which he has made.

The difficulty with the two figures of $10,000 for pain and suffering from November 1992 to judgment and after judgment is that his Honour found that after the insertion of the morphine pump the plaintiff was probably better off than he was before the operation. If he was better off it is difficult to see how any sum at all could be justified for pain and suffering and loss of amenities, except I suppose a sum to represent the inconvenience of having the morphine pump primed and, assuming the life expectancy found by the Trial Judge, for the two or perhaps three operations that will need to be undergone for the purpose of replacing the morphine pump.

If that is the basis of the award for damages for pain and suffering after November 1992 I think I would have allowed less than $10,000 for each of those two periods but I am not prepared to say that the sum of $10,000 for each of those periods is excessive.

The Trial Judge only allowed $2,000 for loss of earning capacity. Having regard to a life expectancy of twelve years from trial and the fact that nearly eight years had passed since the operation had taken place that is a sum of about $100 per year without any discount for acceleration in benefit.

The defendants assert that the Trial Judge was wrong to award any sum for loss of earning capacity. It is asserted that the plaintiff's pre-operation history shows that he had, as at 6 May 1991, no earning capacity which was capable of exploitation. There was nothing that was capable of being lost.

It is true that the plaintiff had not worked for many years and every indication was that he would never work again. As the Trial Judge found he had become a professional invalid.

However in assessing the loss of earning capacity the Trial Judge took into account all of those matters. He found there was a low probability that even with a successful operation that the plaintiff would have exercised his earning capacity. It was for that reason he awarded such a low figure.

Because the plaintiff's life expectancy has been reduced by factors which were not the responsibility of the defendants it would not be appropriate to have regard to the lost years.

The figure allowed, in my opinion, is so low that it cannot be said that it is wrong.

I am not prepared to say that so modest an award could not have been made on the evidence before the Trial Judge.

Next, the Trial Judge made an allowance of $2,000 for loss of domestic capacity. It was claimed that the plaintiff was severely restricted in his "yabbying abilities, not able to use a ladder or to carry out handyman duties around the home".

The Trial Judge found that a film taken in 1998 showed that he was able to do all of those activities and he found that he would have been able to do all of those activities for some years before that.

He further found that even if the operation had been a success he would have suffered some restriction in mobility.

It is not clear why the Trial Judge awarded any sum for "loss of domestic capacity". The plaintiff lived in a caravan with his partner and her daughter. He did not have any house to maintain. He did not have any garden to tend. In my opinion it is not apparent to me why he would have been allowed anything for domestic activities.

In my opinion, a claim that he was unable to carry out his yabbying activities to the same extent as he previously had would have been covered by the award for loss of amenities.

On any understanding of the plaintiff's position, in my opinion, he was not entitled to an award of $2,000 under this head.

The Trial Judge allowed $45,000 for future medical expenses.

"In assessing future medical expenses I make allowance for visits to the plaintiff's general practitioner, supervision by pain clinic, one morphine injection per month to refill the morphine pump, the replacement of the morphine pump every three to five years and the operations and hospitalisation associated with the replacement of the morphine pump. I shall use as a rough guide the unproven claims admitted as special damages. I take into account that the plaintiff has a reduced life expectancy not of the consequence of the operation. I shall use the life expectancy of twelve years, in the absence of any precise expert opinion. I allow $45,000 for future medical expenses."

537. This head of damages raises the same difficulties to which I adverted in consideration of the award for pain and suffering.

538. It is not clear on the Judge's findings that the plaintiff is entitled to damages for the likely cost which his Honour has referred.

539. The plaintiff is only entitled to those damages if the morphine pump has been made necessary by the negligence of the defendants or one of them in May/June 1991. It is unsatisfactory that this Court should be called upon to infer that such a finding has been made.

540. If it was the Trial Judge's opinion that the morphine pump had been made necessary by the defendants' negligence, it is not possible from his reasons to understand how his Honour has calculated the sum of $45,000. The assessment is based on undisclosed costs. It has been taken over a period of 12 years but upon the basis of a replacement pump every three to five years. On that shortened life expectancy it would be expected that the Trial Judge could have determined exactly how many replacements would be necessary.

541. It is not clear whether the Judge calculated the sum of $45,000 having regard to present day costs and whether he took into account the plaintiff's ability to use the money before the occasion for the costs arose. In other words it is not clear whether he took into account the acceleration in benefit that the plaintiff will receive by the receipt of the moneys at judgment.

542. If the Trial Judge found that Mr Morley was correct that the plaintiff was better off after the insertion of the morphine pump than he had been before the operation, one would have thought that some regard would be had to the reduced cost of medical treatment as a result of the insertion of the morphine pump.

543. The cost of replacement of the morphine pump is $9,700. Assuming the reduced life expectancy which has been found by the Trial Judge that pump will have to be changed two or three times after trial.

544. The plaintiff maintained that the cost of priming the pump was $155 per month say $2,000 per year. Assuming no acceleration in benefit the cost for future priming of the pump is in the order of $24,000.

545. The award of $45,000 would not be erroneous if the pump has to be replaced on three occasions but maybe a little high if the pump has to be replaced on only two occasions.

546. I have not overlooked the acceleration in benefit which will accrue to the plaintiff by receiving the award immediately but that acceleration over a period of 12 years, assuming a discount rate of 3 per cent, would not be so great as to make an assessment of $45,000 erroneous if the pump needed to be replaced on three occasions.

547. In the end result and assuming the findings to which I have referred, but the Trial Judge did not make, I am not satisfied that a sum of $45,000 for future medical expenses is excessive.

548. The next head of damage attacked by the plaintiff was the award of $3,000 for Wilson v McLeay [1961] HCA 56; (1961) 106 CLR 523 damages.

549. In Wilson v McLeay the plaintiff was very seriously injured whilst travelling interstate. She was admitted to hospital in the State in which she was injured. Her mother visited her on three occasions and her father once. The damages claimed were for the interstate travelling expenses of the parents.

550. In the special circumstances of the case Taylor J sitting as a single Justice of the High Court said that her serious injuries were:

"Such as to call for such comfort and consolation as her parents' reasonable attention could provide." He therefore made an allowance for the cost of attendance of the parents.

551. Taylor J seemed to suggest that the damages were not recoverable unless there had been an actual expenditure on the part of the visitor. It is probably right that such a limitation is, as explained by Stephen J, in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 at 178, contrary to principle. It is probably not necessary that any actual expenditure be proved. Like damages for gratuitous surveys it would be enough for the plaintiff to establish the need to which Taylor J referred.

552. Unless the visits help in the alleviation of symptoms and relieve pain or assist in the rehabilitation of the plaintiff a claim for damages of that kind is simply too remote: Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541 per Windeyer J at 547. It would therefore be necessary that the plaintiff make out that the attendance of the visitors was necessary for either the alleviation of some symptoms or to assist in the rehabilitation of the plaintiff.

553. The plaintiff's partner and her daughter visited the plaintiff frequently. The plaintiff's partner said that she attended hospital every day to visit the plaintiff. She travelled by public transport and remained in the hospital for some hours each day. Her daughter also attended on most days.

"Despite Sandra Stevens admitting that at times the plaintiff was unaware of their presence and that at times when he was really depressed 'he did not want any visitors at all', the plaintiff, I accept, would have derived benefit from Sandra Stephens' and Lee Stephens' visits. He said he hated hospitals: his time in hospital would have been less pleasant but for their visits. I award $3,000 under this head of damages."

555. I am not sure that the evidence goes far enough to justify an award of damages under this head. I am sure that anyone who undergoes surgery, whether as the result of a trauma or for any other reason, benefits by regular visits from their close relatives whilst they are in hospital.

556. However, I am not convinced that where a plaintiff has been hospitalised as a result of the negligence of another person that the courts have gone so far as to allow damages for the visits of anyone, whether a close relative or otherwise, who visits that plaintiff. I think there must be more before the plaintiff becomes entitled to damages. I think there must be a real need in the sense in which I have described it and that is a need for the visit by the close relative or perhaps even a friend, which arises out of the seriousness of the injuries themselves, for comfort, care and support which assists the plaintiff in recovering from their personal injuries.

557. In my opinion such a need was not made out on the evidence in this case and the Trial Judge was wrong to allow any damages under this head.

558. The Trial Judge allowed $5,000 for voluntary services rendered by the plaintiff's partner and her daughter to the plaintiff after he left hospital. I think the period over which the Trial Judge allowed a claim for voluntary services was that same period as he considered relevant for the claim for substantial aspects of pain and suffering and loss of amenities, that is from May 1991 until November 1992.

559. In that period he said that the plaintiff required and received a good deal of assistance from both his partner and her daughter. The plaintiff's partner's daughter was of a nursing background and tended to the plaintiff's ulcers, bathing and changing the dressings as required. His partner looked after his other needs at a time when he was mostly bedridden. During that time she cooked, cleaned, washed him and his clothes, dressed him and helped him to use the lavatory.

560. The defendants submit on appeal that no allowance should have been made for any voluntary services rendered to the plaintiff over this period of time. I cannot agree with that submission. I think on the evidence accepted by the Trial Judge, which must be mainly that of the plaintiff himself, discloses that the plaintiff demonstrated a need for voluntary services over the period to November 1992. Those voluntary services were met by his partner and his daughter and in those circumstances the plaintiff was entitled to damages for those voluntary services.

561. The figure allowed by the Trial Judge does not seem to me to be so high as to be capable of being categorised as erroneous. In those circumstances I would not interfere with that aspect of the award.

562. The head of damage which gave rise to the most substantial award was special damages.

563. The plaintiff claimed $215,115.46 by way of special damages.

"Finally I come to special damages. The total eventually claimed, made up of hundreds and hundreds of separate items, is $215,115.46. From time to time during the hearing, counsel told me they were 'working on' agreement and they were 'confident' the damages would be agreed before the hearing finished. They never were. Special damages were agreed as to quantum but not as to liability. Not one item was ever proved: no attempt was made to prove even one item of special damage."

"I do not remember being in such a situation before. I have always understood that special damages either must be strictly proved or agreed. Thankfully, nowadays they are nearly always agreed - but not so here. I have already mentioned that there are hundreds and hundreds of items. For the plaintiff to have to prove each would be absurdly tedious, a great waste of time. Yet, technically, as I understand the law, that is what should happen. The job is usually avoided by the parties being reasonable, coming to agreement on quantum and liability."

His Honour then discussed the system within Comcare for the payment of special damages and said:

"I am not prepared to allow the special damages as claimed. I shall certainly not follow Comcare and allow everything just because it is claimed. Mr Cameron relied on a reference in Luntz 'Assessment of Damages' (3rd edition, @ paragraph 1.6.12, pp 59-60), setting out dicta of Dixon CJ and McTeirnan J in Russell v Hargreaves & Sons Pty Ltd (1957) 30 ALJ 533 @ 534 (the appellant was a taxi driver injured in a motor vehicle accident): - 'His efficiency as a driver and his capacity to drive for any lengthy period have obviously been greatly impaired and even if an exact sum of special damages has not been proved the existence of this head of damage has been shown as an substantial element and ought to have been taken into account in assessing general damages.' I suppose that is sufficient authority for me to 'wield the broad axe'. Anyway that is all I can do. The plaintiff must be entitled to something for out-of-pocket expenses but I do not accept his claim and that of Comcare as to what they are. I shall allow eighty per cent of the total claimed until the end of November 1992 (looking at the list of items claimed up to then, about 80% look arguably justifiable) and make an allowance to cover the costs of the morphine pump between December 1992 and judgment. Eighty per cent of specials claimed to November 1992 is $90,421. In addition I allow $24,573 from December 1992 to the end of the hearing in December 1998, being the costs in that time relating to the morphine pump. That makes a total of $114,994. I shall not allow anything for other specials claimed after the cut off, November 1992, believing they are either unjustified or not referrable to the after effects of the operation."

His Honour's decision not to allow special damages after November 1992 is inconsistent with him allowing general damages for pain and suffering after that date, unless those general damages for pain and suffering were awarded only to compensate the plaintiff for the morphine pump and other procedures necessary to prime and replace it. I will assume that to be the case. That must be if the award of special damages is consistent with the awards for both damages for pain and suffering and for future medical expenses.

I think it can be assumed again, although his Honour has not said, that after November 1992 the only pain and suffering that the plaintiff will suffer is that associated with the morphine pump itself.

The defendants' claim on this appeal that no amount should have been allowed for special damages. They said they indicated throughout the trial that, whilst they did not dispute that the various accounts which formed the subject matter of special damages had been paid, they did dispute that the various services described in the special damages had been made necessary by the operation or the treatment after the operation or that if the various services had been made necessary by any act of negligence on the part of the defendants, that the services were reasonable.

In support of the claim for special damages the plaintiff tendered six volumes of documents evidencing payments by Comcare of the various amounts claimed for special damages.

Rule 46.15 requires in any action in which the plaintiff claims damages for or in respect of personal injury that the plaintiff provide:

(a) Full details of all damages in the nature of a special damage, including an itemised list of all expenses and outgoings associated with any treatment administered with respect of (sic) such personal injury, and including as to each item the name of the person or institution to whom the expense or outgoing was paid or payable."

The words "in the nature of a special damage" have been used advisedly in r 46.15.

The special damages claimed included hospital accounts, medical accounts, accounts from the defendants, specialist medical accounts, specialist medical services, paramedical services, pharmacy accounts and taxi fares.

Apart from the obligations imposed by r 46.15(a) the law requires that all items of the kind referred to and claimed as special damages are of a kind that fairness dictates requires the plaintiff to give the defendant notice, because the damages claimed are quantifiable and have been met. As such they need to be pleaded; Pelestrello E Companhia Ltd v United Paint Co Ltd (1969) 3 All ER 479. In that case Lord Donovan said at 486:

"The same principle gives rise to a plaintiff's undoubted obligation to plead and particularise any item of damage which represents out-of-pocket expenses, or loss of earnings, incurred prior to the trial, and which is capable of substantially exact calculation. Such damage is commonly referred to as special damage or special damages but is no more than an example of damage which is "special" in the sense that fairness to the defendant requires that it be pleaded. The obligation to particularise in this latter case arises not because the nature of the loss is necessarily unusual, but because a plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible. The matter is clearly stated in Mayne and MacGregor On Damages (12th Edn, 1961) in para 970, where the learned editors write: 'Special damage consists in all items of loss which must be specified by [the plaintiff] before they may be proved and recovery granted. The basic test of whether damage is general or special is whether particularity is necessary or useful to warn the defendant of the type of claim and evidence, or of the specific amount of claim, which he will be confronted with at the trial.' "

Because of those obligations the practice has developed that parties identify medical expenses and out-of-pocket expenses which have been incurred by a plaintiff as a result of suffering personal injury.

Whilst it is convenient for the plaintiff to identify each item of expenditure so as to fully inform the defendants of the case which the defendants have to meet, in my opinion, that does not make the damages for medical treatment, to the date of judgment, a special damage in the sense the expression 'special damages' is technically understood.

Some years ago, in this State, it was common for a plaintiff to plead as a special damage the plaintiff's 'loss of wages' up to the issue of proceeding and at trial prove loss of wages in the same way as other 'special damages'.

Conceptually, of course, loss of wages do not form a head of damage at all. The plaintiff, in a claim for personal injuries, is entitled to damages for any loss or diminution of the plaintiff's earning capacity rather than the repayment or the payment for loss of wages.

In a sense the same is true in relation to medical and like expenses usually described as special damages. The plaintiff, in a claim for damages for personal injuries, is entitled to be compensated for any need which has arisen by reason of the injuries caused by a defendant including for example any voluntary services rendered to satisfy that need: Griffiths v Kerkemeyer (supra).

Another need which will usually arise is the need for medical services. That need will usually arise immediately after the tort. The cost of satisfaction of that need pre-trial can easily be ascertained by reference to the charges of medical persons and paramedical persons. Other needs will arise such as the need for transport and those needs will be satisfied by taxis.

Usually the cost of satisfaction of the various needs can be identified pre-trial. The plaintiff must particularise those costs because the defendants are entitled to have fair notice of the plaintiff's case against them. But that is a pleading obligation. It does not change the character of the damage. The damages which are to be awarded to satisfy the needs which arise are general damages and not special damages as that term is understood: McGregor On Damages 16th Edition 1997, p. 16.

In Griffiths v Kerkemeyer (supra) at 180 Stephen J said:

"In Teubner v Humble Windeyer J, spoke of the creation of needs that would not otherwise exist as one way in which a personal injury can give rise to damage. His Honour adverted to the impossibility of surely predicting the future but otherwise drew no distinction of kind between past and future damage of this character; nor does any true distinction, I think, exist, other than the degree of certainty with which each may be quantified. The damages to be awarded for each can in these circumstances scarcely be different in kind; being more precisely known, past expense or loss incurred must, for the reasons already stated, be particularized, but that is all. It follows that there must be logical difficulty in now applying, in the light of recent decisions, the special rules applicable to special damages which were enunciated by Dixon CJ and by Fullagar J in Blundell v Musgrave. There (sic) application may, of course, be avoided, as they were in Wilson v McLeay and have been in some subsequent cases, by treating the damages awarded as general damages but to do so would then appear to leave no class of damages to which can be given the name "special". In Donnelly v Joyce Megaw LJ, while apparently attaching no significance to the nomenclature, did describe the damages in question as special damages; in that case what was in fact claimed and actually awarded was an amount equal to the mother's actual loss of earnings and this for reasons to which I refer below. In later cases little significance appears to have been thought to attach to the particular name given to describe the damages awarded. All this is, I think, the result of an approach which looks not to expenses incurred or earnings lost but, rather, to needs created or capacity lost."

Usually the need for medical services and the like which has been satisfied pre-trial will be assessed by reference to actual costs incurred.

There will be occasions, and this was one of them, where it will not be appropriate to assess damages in that way.

Where it is more appropriate to assess damages by reference to the need for medical services and the like pre-trial generally the plaintiff will have to lead evidence to establish the need. That will be done through the plaintiff and the plaintiff's medical experts.

Once the need is established the court will need some evidence to show how the need has been satisfied and the cost of that satisfaction. The court can then assess the damages for that need.

The plaintiff can, but is not required to prove every charge which has been raised.

In this case the Judge found that the plaintiff had a need for medical services up to November 1992. He was aware of the cost of all medical services which had been provided to the plaintiff up to and after November 1992.

He was entitled to take a broad axe, as he put it, to assess damages for satisfaction of the need before and after November 1992. He was not required to consider every separate account put before him to determine whether that account was raised in satisfaction of the plaintiff's needs arising out of the defendants' negligence.

He was obliged to satisfy himself that the figure at which he arrived fairly compensated the plaintiff for the need generated by the defendants' negligence.

In my opinion, the assessment of damages, for what otherwise would be called special damages, but which are in truth damages for the need for medical services pre-trial, was not unreasonable.

The defendants also complained about the award of interest made by the Trial Judge.

"Interest is awarded on past non economic loss, past voluntary services, past loss of domestic capacity and special damages. I should not allow interest on future non-economic loss, future loss of any capacity or future medical expenses. I allow 4% interest over the entire period for both the past non economic loss, past voluntary services, and past loss of domestic capacity and then divide this by half, see Gogic v MBP (SA) Pty Ltd [1991] HCA 3; (1991) 171 CLR 657, Wheeler v Page & Harris (1982) 31 SASR 1 and Calvaresi v Lawson (1995) 184 LSJS 147. I allow $7,000. With regard to special damages I accept the plaintiff's submission that a commercial rate of 10% be used. Given that I have effectively set a cut-off date of November 1992 for the special damages, and consequently removed almost all special damages between 1993 and 1998, I shall allow interest at 10% on the whole amount for the entire time. I allow $85,000."

594. The appellant's complaint is that the Trial Judge should not have awarded interest or special damages.

595. The Notice of Appeal raised the following matters:

"30. The Learned Trial Judge erred in ordering interest on special damages at all in that: 30.1 The plaintiff had already had the whole of his 'special damages' paid by way of payments from Comcare and therefore no entitlement to interest thereon arises. 30.2 Alternatively, if some interest is properly allowance on special damages then: 2.1 The rate of 10% is out of step with current commercial interest rates which are substantially lower; 2.2 The Learned Trial Judge appears to have applied 10% to the 'capital' sum of $114,000 said to represent special damages assessed from the date of surgery until the 'cut-off date' of 10.11.92. This calculation appears to impermissibly postulate that all of the special damages were incurred on the date of the surgery rather than gradually over the period of time when medical and other services were provided to the plaintiff."

596. The defendants argued that the plaintiff had all of his 'special damages' paid by Comcare from time to time as they were incurred. They argued that because he had had his special damages paid he was not entitled to interest: Batchelor v Burke (supra).

597. I do not think that Batchelor v Burke (supra) has any application in this case. These proceedings were brought by Comcare itself. The statement of claim clearly identified Comcare as interested in the proceedings.

598. In my opinion, Comcare was entitled to be treated as if it was the plaintiff and was entitled to claim that as it had paid the special damages it was entitled to interest on the sum expended.

599. It was submitted by the defendants that, even if Comcare was the party who had initiated the proceedings, s 50 and s 51 of the Act do not authorise Comcare to recover interest against a defendant.

600. I agree that s 50 and s 51 of the Act do not provide that interest is recoverable by Comcare. However, in my opinion, that is not to the point. The plaintiff's entitlement to interest did not arise under the Act, but under the procedural legislation governing proceedings in this Court, namely, the Supreme Court Act. Section 30C of that Act provides that unless good cause is shown to the contrary, the court shall, upon the application of a party in favour of whom a judgment for the payment of damages is to be pronounced, include in the judgment an award of interest in favour of the judgment creditor.

601. The defendants not only argued that s 50 and s 51 did not authorise payment of interest to Comcare they argued that s 50(7) and s 50(8) of the Act precluded such an award being made.

"(7) Any damages awarded under a judgment obtained in proceedings referred to in this section, or payable as a result of the settlement of such proceedings, shall be paid to Comcare and Comcare shall deduct from the amount of those damages: (a) an amount equal to the total of all amounts of compensation paid to the employee or dependant under this Act in respect of the injury, loss, damage or death to which the proceedings relate; and (b) the amount of any costs of or incidental to those proceedings paid by Comcare; and shall pay the balance (if any) to the employee or dependant. (8) Where Comcare pays an amount to an employee or dependant under subsection (7), the employee or dependant is not entitled to receive any further amounts of compensation under this Act in respect of the injury, loss, damage or death to which the proceedings related until the amount of compensation that would, but for this subsection, have been payable to the employee or dependant in respect of that injury, loss, damage or death equals the amount paid by Comcare to the employee or dependant under subsection (7)."

603. It was argued that because Comcare is entitled only to deduct from the amount of damages the amounts referred to in s 50(7)(a) and (b) that the interest which might be awarded to indemnify Comcare will have to be paid to Mr Lucas.

604. I think that is probably so but that is a matter between Comcare and Mr Lucas.

605. Even if it was so I see no injustice to the defendants in that because of the provisions of s 50(8).

606. If Comcare is obliged to pay to Mr Lucas the amount of the interest which it has recovered it will be entitled in due course to offset that amount against further amounts of compensation payable under the Act.

607. In that way it will recoup the amount of interest which it has recovered from the defendants by avoiding payment of compensation of the same amount.

608. In those circumstances it does not seem to me that s 50(7) and (8) are any bar to the plaintiff recovering interest.

609. In my opinion, Comcare should be treated as if it was the judgment creditor and, in those circumstances, it was appropriate to award interest on the amount of special damages already paid.

610. I would not be prepared to interfere with the rate of interest applied by the Trial Judge. Section 30C provides that the rate of interest is to be calculated at a rate fixed by the court. The learned Trial Judge discriminated between those heads of damage which attract commercial interest rates and those heads of damage which do not include an interest rate for the fear and expectation of inflation.

611. I am not prepared to say that the application of a rate of 10 percent is outside the proper exercise of the Trial Judge's discretion.

612. Lastly, it is complained that the Trial Judge applied interest over too long a period. As I have pointed out, he said that he allowed interest at 10 percent on the whole of the amount for the entire time. It is not clear to me what his Honour meant by the entire time but, as his judgment was 12 February 1999 and the special damages began to be incurred on 6 May 1991, it is likely that he has allowed interest on the whole of the amount since 6 May 1991.

613. If his Honour did allow interest on the whole amount for the period between 6 May 1991 and 10 November 1992 he would have over-compensated the plaintiff by about half of the amount of interest allowed during that period.

614. It is true as the defendants have pointed out, that the special damages would have accrued from time to time. In those circumstances, it would have been appropriate to allow interest on the special damages for half the period between 6 May 1991 and November 1992 and, thereafter, on the whole of the amount for the period between November 1992 and the date of judgment: Wheeler v Page & Harris (supra).

615. Having regard to the amount awarded for interest, it is likely that the Trial Judge has over-compensated the plaintiff by about $5,000.

616. In my opinion the defendants have demonstrated that the plaintiff was clearly overcompensated in respect of two heads of damages; viz loss of domestic services and Wilson v McLeay damages. The defendants have also established, in my opinion, that the other heads of damages are not underpinned by appropriate findings. Lastly, the defendants have established that the Judge erred in the award of interest.

617. If it was otherwise thought that the plaintiff had established negligence against both defendants, or either of them, and it was otherwise thought if both were negligent that it was appropriate not to discriminate between the defendants as to the damages for which they were liable, and the Trial Judge had not erred in refusing to allow Dr Perrett to be called and that therefore the verdict against both defendants could stand, in my opinion, this matter would have to go back for a re-trial on the question of damages.

618. As I have indicated the Trial Judge has made insufficient findings to allow this Court to be sure that the damages which have been assessed are appropriate.

619. However for the reasons I have already given, in my opinion, the appeal should be allowed because the plaintiff has failed to establish negligence against the defendants.

2. The judgment entered for the plaintiff against the defendants on 12 February 1999 in the sum of $313,994 and the order for costs be set aside.

3. That the plaintiff's claim against the defendants be dismissed.

4. That there be judgment for the defendants against the plaintiff.

621. The parties ought to be heard on the question of the costs of the trial and appeal. In this case there may be some argument as to who might be responsible for the costs: Vestris v Cashman (1998) 72 SASR 449; s 50(2) of the Safety, Rehabilitation and Compensation Act.

622. BLEBY J. I am indebted to Lander J for his exhaustive and thorough analysis of the evidence and of the trial Judge's reasoning in relation to it. Naturally, one hesitates long before overturning a trial Judge's findings based on the credibility of witnesses. However, in this case I believe, with great respect, that Lander J's careful analysis of the trial Judge's approach and of the trial Judge's refusal to allow some critical evidence to be led, the analysis by Lander J of the radiological evidence that was led and how it relates to the critical opinion of Mr Morley cannot be faulted. I respectfully agree with it.

623. I also agree with his Honour's observations on damages.

624. I agree with the orders proposed by Lander J.