Hope v Hunter and New England Area Health Service

The applicable statutory provisions are in Pt 1A Divs 1, 2 and 3 of the Civil Liability Act 2002 ss 5B, 5C and 5D as the plaintiff's claim is governed by that Act : ss 5 and 5A of the Act.

Subject to any defence available to the defendant under s 5O of the Act, which I will deal with when analysing the final liability issue, it is necessary to consider whether the statutory requirements for proof of negligence and causation have been satisfied. The plaintiff bears the onus of proving these matters : s 5D of the Act.

I will address these considerations in the paragraphs that follow.

As has been observed by McClellan CJ at CL in Halverson v Dobler [2006] NSWSC 1307 at [162], it is at times difficult in professional negligence cases for a court to resolve differences of opinion between highly qualified and experienced medical specialists. In such cases, when judging whether there has been a departure from the required standard of care, a legal analysis must proceed cautiously to avoid the danger of contaminating the analysis of relevant events by hindsight knowledge : Halverson per McClellan CJ at CL at [16], following Ipp JA in Capital Brake Service Pty Ltd v Meagher & Ors [2003] NSWCA 225 at [30].

In Halvorsen, McClellan CJ at CL approached the problem of a retrospective analysis of the issue of breach of duty of care but undertaken prospectively guided by the remarks of Hayne J in Vairy v Wyong Shire Council [HCA] 62; (2005) 223 CLR 442 at [124], pp 461 - 463. I propose to follow a similar course, as was identified by Hayne J at [126], p 461, namely : "That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event, it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury."

In this case, when the operating surgeon planned and prepared for the operation he knew he had to make an incision into the volar aspect of the skin of the plaintiff's left middle finger to enable him to obtain surgical access to the ganglion to effect its removal. It must have been known to him that on either side of the general operation site there were digital nerves and arteries, which, if injured, whether by cutting or otherwise, could well have given rise to an unwelcome and unacceptable result from the operation. I base these findings on my acceptance of the evidence of Associate Professor Connolly. 149. In these circumstances I consider that the operating surgeon ought to have had in mind when planning and executing the operation in question that there was a foreseeable risk that the digital nerve and the adjacent artery were at risk of injury if reasonable care was not taken in order to identify and protect these structures in order to avoid surgically dividing them : s 5B(1)(a) of the Act.

I also consider that because the operating surgeon was using sharp instruments for at least the initial part the procedure and when he was cutting the ganglion at its base on the tendon sheath he ought to have known that the risk of injury to structures near the surgical target area was not insignificant particularly if sharp dissection or cutting occurred around the base of the ganglion on the tendon sheath in an area adjacent to the structures that were intended to be cut for removal of the ganglion : s 5B(1)(b) of the Act.

In these circumstances, accepting as I do Associate Professor Connolly's description of the required operation, I consider that a reasonable person in the position of the operating surgeon, that is, a surgeon possessing ordinary skill and competence, would have taken the precautions that Associate Professor Connolly described in his oral evidence. I am satisfied that had this occurred the surgeon would have thereby identified and taken measures to protect the nerve and the adjacent artery from injury during the operation, including by not permitting these structures to be cut as they were in fact cut : s 5B(1)(c) of the Act.

Having regard to Associate Professor Connolly's description of the relative juxtaposition of the relevant structures, I am satisfied that if such precautions had not been taken to identify and protect the nearby digital nerve and digital artery this would have markedly increased risk of injury to the structures in question to a high degree of probability. I am satisfied that such a course would thereby have exposed the plaintiff to suffering injury, pain and ongoing losses as has in fact occurred in this case : s 5B(2)(a) and (b) of the Act.

In the terms of the Act, whilst there was a high degree of social utility in providing the plaintiff with surgical treatment directed at alleviating his discomfort due to the presence of the ganglion on his middle finger, there was an equal if not greater social utility in avoiding harm if this could be reasonably achieved by the exercise of reasonable skill and care : s 5B(2)(d) of the Act.

Having reached these views by the foregoing analysis, that framework requires consideration of the implications of the burden, if any, in taking precautions to avoid the identified risk of harm : s 5B(2)(c) of the Act.

I conclude that in this instance there was no real burden involved in taking a few extra moments in time during the operation to expose and identify the digital nerve and the digital artery nearest the ganglion, including on both sides if need be. The absence of any true burden is in my view evident from the fact that the plaintiff was already anaesthetised, and from the description of the procedure given by Associate Professor Connolly, it seems most unlikely that any significant extra equipment, staff or supplies would have been required for taking the extra time and trouble to identify and protect the structures that were at risk of being cut and injured in the operation because the surgeons already had the necessary instruments on hand, these being cutting implements, forceps, retractors and hooks, amongst other things.

Although there was no evidence given as to an estimate of any likely extra time required if the suggested extra precautions were taken, I infer from the fact that the actual operating theatre time occupied for the plaintiff's procedure, namely 15 minutes, that any extra time required to be taken in addition to that time and required to implement the suggested additional precautions I have outlined, would have been most unlikely to have taken up more time than a few extra minutes. Even if the additional operating time required for taking such precautions was double the time taken for the procedure, which from the description given by Associate Professor Connolly seems most unlikely, in the context of the range of potentially adverse and foreseeable harms, the extra time required, if any, ought to have been regarded as being of relatively inconsequential proportions when weighing the risks to be avoided and the benefits gained by such a course.

In the context of surgical cases in an operating room waiting list, notwithstanding the time pressures for efficiency in the use of operating lists and operating theatres, time is but one relevant consideration. Patient safety is another, and it is of equal if not paramount importance.

In balancing any potentially competing interests to patient safety, and on the evidence given by the experts I am not satisfied that there was a relevant competing interest, the focus of the thinking of those charged with the overriding duty to take reasonable care for the plaintiff should have been on the issue of the safe delivery of surgical services in response to the plaintiff's reasonable surgical needs. This ought to have been the relevant focus and not matters such as the convenience of the surgeons or other considerations that in the scheme of things may have been extraneous : Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 per Reynolds JA at p 562A.

Guided by that prospective approach, it is therefore necessary to consider what the operating surgeon ought to have done when deciding upon the placement and progress of the initial incision and the subsequent operative steps including the ganglion removal surgery.

I am satisfied that in this case, in advance of the operation being performed, the operating surgeon recognised there was a small but observable lump comprising a ganglion about half a centimetre in diameter on the volar aspect of the left middle finger and which required excision. This was adherent to the tendon sheath of the flexor tendon of the middle finger. Although evidence has been given that such ganglia usually appear in the midline, the records are silent on whether or not this was so in this particular instance or whether, by reason of its size, the outer edge of the base of the ganglion on the tendon sheath juxtaposed the digital nerve and digital artery.

The questions that therefore arise for decision are: whether there was a foreseeable risk of cutting these structures during any of the surgical steps outlined above; and if so, whether the exercise of reasonable care required that precautions should have been taken to avoid the materialisation of such risk; and whether a failure to take such precautions amounted to a departure from the required standard of care in the circumstances.

I am satisfied that there was a foreseeable risk of injury if reasonable steps were not taken to identify and protect the digital nerves and arteries during the procedure. I am satisfied that this risk materialised when the digital nerve and artery were cut because steps had not been taken to identify these structures, or, if such steps had been taken, an unacceptable result occurred when these structures were cut in circumstances where there was no plan or intention to do so. There is no doubt that the damage was caused by inappropriate cutting. For the reasons outlined above, in my view the plaintiff has demonstrated that all of the requirements for proof of breach of duty of care and causation have been satisfied. It therefore remains to consider whether the defendant has made out its defence under s 5O of the Act.

Issue 4 - Whether the defendant has established a defence pursuant to s 5O of the Civil Liability Act 2002

In a case such as this s 5O of the Civil Liability Act 2002 provides:

"5O Standard of care for professionals (1) A person practising a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. (2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational. (3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section. (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted."

The onus is on the defendant to prove a defence based on s 5O of the Act : Halvorsen v Dobler [2006] NSWSC 1307; Dobler v Halvorsen [2007] NSWCA 335.

The defendant relied upon the evidence of Associate Professor Haertsch to establish what constituted peer professional opinion as to what was widely accepted in Australia as competent professional practice. In furtherance of that aim Associate Professor Haertsch gave evidence that he had consulted a colleague, Dr Claudia Gschwind, another plastic surgeon, as to her views on the issue. He sought to give hearsay evidence that it was her practice to use the method he had described. The plaintiff made a late objection to the hearsay. At the time I determined that this evidence be dealt with by considerations as to its weight.

Therefore, the initial question for consideration is what weight, if any, should be given to Associate Professor Haertsch's evidence concerning his belief as to what constituted the practice of his colleague Dr Gschwind in such cases. For a number of reasons that follow, I consider that I should place very little weight on that evidence.

First, it has not been established that Dr Gschwind's practice related to the procedure for removal of ganglia that were the size of a little rice grain as distinct from ganglia that were a half centimetre in diameter as in the plaintiff's case. In my view it was incumbent on the defendant to establish that nexus and it should have been the subject of evidence that established the connection if the defendant had wanted to rely upon it.

Secondly, the issue of Associate Professor Haertsch's belief as to the practice of Dr Gschwind concerning ganglion excision arose during his evidence in an unforeshadowed manner rather than in the context of a reasoned inclusion within an expert opinion that complied with Sch 7 of the Uniform Civil Procedure Rules 2005. This evidence was not the subject of a notice given pursuant to s 67 of the Evidence Act 1995 concerning the notification of an intention rely upon hearsay evidence. If the defendant intended that serious consideration be given to such an opinion, steps ought to have been taken to obtain and serve an expert report that contained such an opinion in accordance with the rules. As the matter arose unexpectedly in the course of a narrative answer to another question, I consider that the evidence of Associate Professor Haertsch's belief of Dr Gschwind's practice has been unfairly introduced and is not probative of what constitutes competent professional practice in this case, particularly as there was no warning that the evidence was going to be given. As a result the plaintiff was deprived of the opportunity to take pre-trial steps to test the opinion so given. Further, the evidence was not the subject of a reasoned explanation as to why Dr Gschwind operated in the manner described by Associate Professor Haertsch.

In my view the evidence should be given very little weight not only due to the surprise nature of it but also because it is insufficiently reasoned. In particular, it does not deal with considerations concerning whether Dr Gschwind's technique was the same for ganglia that were the size of little rice grains as well as for ganglia that were about half a centimetre in size. There should be no room for ambush on such issues in this type of case or any case : Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116. That view must be given emphatic effect in litigation where the parties are bound to apply themselves to the requirements of s 56 of the Civil Procedure Act 2005, with special emphasis on the justness of the circumstances in which such evidence is led. Accordingly, I consider the evidence given by Associate Professor Haertsch concerning his understanding of Dr Gschwind's practice to be prejudicial to a proper determination of the issues and I attach no weight to it.

This leaves for consideration whether Associate Professor Haertsch's evidence as to his practice regarding ganglion excision constituted widely accepted peer professional opinion in Australia. The plaintiff pointed to a number of matters that cast doubt upon this question. Without at all intending any criticism of Associate Professor Haertsch, the plaintiff emphasised that his practice was in accordance with what he had learnt in his training in Edinburgh, Scotland and in Michigan, USA which was not, of itself, evidence as to peer practice in this country. I do not ignore the evidence given by Associate Professor Haertsch in which he said he has taught his registrars in this country to do the procedure the way he was taught to do it however this begs the question as to what sized ganglia he had in mind when giving that evidence. I understood his evidence to indicate that he was speaking about little rice grain sized ganglia, not ganglia measuring half a centimetre on a flexor tendon on the volar aspect of a finger as opposed to a thumb.

No evidence was called from Associate Professor Haertsch as to Australian standards of teaching, training or practice other than his own practice. This was of some significance as he said he had never seen the digital nerves exposed when he operated on volar ganglia on the four fingers as distinct from thumbs. No opinion evidence was called to establish, by reference to literature, texts, or professional development conference or seminar papers or otherwise, to establish that what Associate Professor Haertsch described as his own practice constituted widely accepted peer practice in Australia.

I consider that omission to be telling on the issue but not necessarily determinative. I also consider it telling that Associate Professor Haertsch appeared to be in sufficient doubt about the matter that he thought it was necessary to consult Dr Gschwind for her views and for details of her practice concerning ganglion excision. I infer from the fact of such consultation, together with the fact that Associate Professor Haertsch has only operated on little rice grain sized ganglia on the four fingers, that he has not had the same breadth of experience as Associate Professor Connolly as to what constituted widely accepted professional practice within the terms of s 5O(1) of the Act concerning the excision of a half centimetre sized ganglia of the type that the plaintiff had presented for removal. In this regard I prefer the evidence of Associate Professor Connolly to that of Associate Professor Haertsch.

In coming to that view I am mindful of the requirements of s 5O(4) of the Act which provides that peer professional opinion does not have to be universally accepted in order to be considered to be widely accepted. However, in giving due consideration to that provision, I consider that it is necessary to read that provision in conjunction with the proviso that evidence of peer professional opinion cannot be relied upon if it is considered to be irrational : s 5O(2) of the Act.

The question arises as to what constitutes an irrational opinion. In this context I do not construe "irrational" to mean without reasons, although it can have that meaning. Rather, I construe it to refer to reasons that are illogical, unreasonable or based on irrelevant considerations.

I consider that at the forefront of a consideration of the reasoning of an opinion used to base a s 5O defence, the focus should be on the practical nature of the risk that attracted the duty of care and the consideration of patient safety concerning sources of potential intra-operative harm if reasonable precautions against the foreseeable risk of harm are not reasonably taken.

In this case, the reasonably foreseeable risk the plaintiff faced was collateral nerve and blood vessel damage if such structures were cut without them being exposed for visibility in the direct field of vision of the operating surgeon. In my view it would be illogical, unreasonable and therefore irrational to operate in the vicinity of such structures without first identifying them and protecting them from damage through contact with surgical instruments whether this be as a result of cutting or tearing, using either sharp or blunt instruments or the "cats' paw" retractors or tissue hooks that were described by Associate Professor Haertsch. It is not necessary to anticipate the precise manner in which an injury can occur where there are a number of ways in which this may occur, as long as it was reasonably foreseeable and that the contemplated type of damage was liable to happen, even in an unusual case : Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 per Mason J at [4] following Caterson v Commissioner for Railways [1973] HCA 12; (1973) 128 CLR 99 per Barwick CJ at [5], p 102; C. Czarnikov v Koufos [1967] UKHL 4; (1969) 1 AC 350 per Reid LJ at pp 385 - 386.

Neither expert considered the injury sustained by the plaintiff to be the materialisation of an inherent risk and I do not find otherwise : s 5I of the Civil Liability Act 2002.

Once the plaintiff has established a basis for finding that there has been a relevant breach of duty of care because the defendant's treatment fell short of the required standard, in order to escape liability, it is for the defendant to establish that pursuant to s 5O, the operating surgeon acted according to professional practice widely accepted by peer professional opinion, subject to the rationality of such opinion : Dobler v Halvorsen [2007] NSWCA 335; (2007) 70 NSWLR 151 per Giles JA at [60], p 167. This approach is well settled. For example, it and was applied by Hoeben J in Melchior v Sydney Adventist Hospital [2008] NSWSC 1282 at [141]. I respectfully adopt the same approach.

For the reasons I have given, I find that the defendant has failed to establish a defence based on s 5O of the Act concerning rational peer professional opinion widely accepted in Australia. I therefore find that the plaintiff's surgical injury was caused by breach of duty of care on the part of the defendant due to the negligent performance of the operation for ganglion excision.

It is necessary to resolve the issue of the credit of the plaintiff and the conflict within the psychiatric opinions.

By leave, at the conclusion of the plaintiff's evidence, the defendant was permitted to further cross-examine the plaintiff. In doing so the defendant put to the plaintiff an amorphous and non-particular allegation that he had exaggerated his symptoms and, by implication, his evidence as to his disabilities. The plaintiff denied the allegations so made. This attack upon the plaintiff's credit appeared to be based on some oral evidence given by Dr Lee to the effect that it was possible to subjectively and dishonestly manipulate the answers to the Beck Depression Inventory which was administered to the plaintiff by Dr Jungfer. The apparent purpose of these questions was to seek to undermine the basis for the acceptance of the opinions set out in the report of Dr Jungfer.

A difficulty with the attack the defendant sought to make on the credit of the plaintiff was that it was not suggested to the plaintiff that he had exaggerated in his answers to the Beck inventory, dishonestly or otherwise, when this inventory was administered to him by Dr Jungfer.

I have concluded that the attack on the plaintiff's credibility should be rejected. I have come to this view for the reasons that follow.

First, there is the difficulty that the attack the defendant sought to make was made in circumstances where it was not suggested to the plaintiff that he had exaggerated in his answers to the Beck inventory, dishonestly or otherwise, when this inventory was administered to him by Dr Jungfer : Browne v Dunn (1893) 6 R 67. Whilst it is sometimes impractical or oppressive to fully observe the rule in Browne v Dunn in complex cases so that degrees of observance are at times permissible - Vines v ASIC [2007] NSWCA 75 per Spigelman CJ at [62] and [409] - this was not such a case. Where exaggeration is being alleged in a case such as this, procedural fairness requires some elementary particularity in putting the opposing case to the witness and not just by way of a perfunctory observance of the rule.

Secondly, I was impressed with the plaintiff's direct and forthright answers to questions, there being no difference in the way he dealt with examination-in-chief and cross-examination. If anything, I thought that when he gave his evidence he tended to understate the nature and effect of his disabilities rather than to overstate or elaborate upon them.

Thirdly, in view of the defendant's non-particular form of the allegation of exaggeration, I gave careful consideration to all aspects of the plaintiff's evidence and to his claim generally. In the course of such consideration it struck me that the plaintiff's claim was understated rather than being exaggerated. For example, unlike many claims for personal injury of this kind, where there is claimed impairment of the use of a hand, there was no particularised claim for the commercial value of future domestic assistance, a claim that was not capped by statutory thresholds and one that I considered would have been open for the plaintiff to claim on the evidence.

Accordingly I find that the plaintiff was a credible witness who gave his evidence without embellishment in a careful and honest manner. I felt compelled to the view that his evidence was entirely truthful. I consider he took particular care to be accurate when answering questions. In view of my assessment of the plaintiff's credit I felt that I could confidently rely upon the summarised histories of his complaints as was prepared by the assessing doctors when surveying the range and detail of his disabilities : Daw v Toyworld (NSW) Pty Ltd [2007] NSWCA 25 per Heydon JA at [70].

The essential difference between the opinions of Dr Lee and Dr Jungfer is that Dr Jungfer found the plaintiff was suffering from a major depression whereas Dr Lee's initially reported opinion was that there was only a mild degree of emotional distress present. In his oral evidence Dr Lee then changed that view to state the plaintiff was not emotionally distressed. This disparity of opinions requires an evaluation of the basis for these respective opinions.

In that evaluation I have to consider the possibility that such differences in diagnostic impressions arose because the respective assessments of Dr Jungfer and Dr Lee were carried out some 4 months apart in the context that there is some evidence that the plaintiff's problems with mood disorder tended to fluctuate. I do not consider these factors to be relevant because, as Dr Jungfer has noted, and Dr Lee has not, the plaintiff's problems with his mood are based on his experience of neuropathic pain which has been a continuing issue for him because it is related to his nerve defect and neuroma.

In seeking to reconcile the differing views of Dr Lee and Dr Jungfer it seems to me that Dr Lee has focussed his assessment on historical accounts of the plaintiff's psychological problems based on his review and summary of records that were largely not introduced into evidence. The consequence of this omission from the evidence is that the accuracy, relevance and probative value of some of the matters he has summarised could not be evaluated or tested and there is a risk that unexposed and irrelevant matters may have infected the opinions of Dr Lee.

In contrast, Dr Jungfer has transparently based her assessment of the plaintiff not only upon her analysis of the history of the described events that have affected the plaintiff, but she has also based her opinions on her interpretation of a test instrument she administered to the plaintiff, namely the Beck Depression Inventory whereas Dr Lee did not use that approach in assessing the plaintiff, preferring instead to rely upon his own questioning of the plaintiff. Dr Lee acknowledged that both such approaches were valid.

Dr Lee explained that the Beck inventory is a self-report questionnaire so that its reliability was dependent upon the honesty of the approach of the individual to the task of answering the questions in the inventory. Dr Lee agreed that a score of 31 on the Beck inventory, as was obtained by Dr Jungfer, was indicative of a major depression. Dr Lee confirmed that persons with Asperger's syndrome tended to be obsessional and had an obsessional commitment to describing detail with accuracy and truthfulness as they saw the issue. He also added that when he interviewed the plaintiff he did not get the impression that the plaintiff was exaggerating the effects of his disabilities upon his day-to-day life and existence.

It is plain from Dr Lee's evidence that he has based his stated views upon his review of material that was not introduced into evidence. Confirmation of that fact is that he has used that material to make an unexplained value judgment on the significance of the plaintiff's report of pain in order to reach his conclusion of the absence of emotional distress in the plaintiff. As the material he reviewed and relied upon for this opinion cannot be evaluated, due to the fact that it does not form part of the evidence in the proceedings, in my view this undermines the probative value of Dr Lee's stated opinions. This should not be taken to represent a criticism of Dr Lee, rather, it simply identifies the methodology by which his evidence has been procured in this case.

Having identified that methodology, and having identified the disparity between the documentary basis of Dr Lee's views with the more limited extent of the supporting documents to his report as tendered in evidence, I consider that to the extent Dr Lee has expressed views different to the opinions of Dr Jungfer, he has arrived at those views in a way where his reasons for those views cannot be analysed for their validity in the usual forensic manner.

In these circumstances, and where I otherwise consider Dr Jungfer's opinions to have been fully and adequately explained on the face of her report, and where her stated views seem on their face to be inherently reasoned and reasonable and are not otherwise glaringly improbable, I find that I prefer the opinions of Dr Jungfer to those of Dr Lee in this case. After dealing with the issue of the plaintiff's credit, this resolution of the psychiatric opinions will be reflected in my findings concerning the plaintiff's ongoing disabilities.

Injuries suffered by plaintiff resulting from the operation

I have found that during the operation the plaintiff suffered a surgical division of the digital nerve and digital artery of his left middle finger. I base these findings on the observations made by Dr Meads during his remedial surgery. These findings are also supported by the evidence of Associate Professor Connolly and they are not contradicted by Associate Professor Haertsch.

I find that the defendant's breach of duty arising in the surgery in question has left the plaintiff with permanent residual disabilities that continue to adversely affect him in a physical, emotional and psychological sense.

The lasting physical problems for the plaintiff include the experience of ongoing numbness to the radial side of the middle finger of his left hand extending from the tip of the finger down to the proximal metacarpo-phalangeal joint or the first knuckle on that finger, near the palm of his hand. His circulation in the injured area is also affected as has been documented by Associate Professor Connolly.

The plaintiff has developed a lump around the area of the operation site which has been identified to be a neuroma or abnormal aggregation of nerve tissue in the form of a scar. The plaintiff has noticed that the lump gradually continued to grow and has become increasingly more painful to touch and vibration when the hand is touched, used or bumped in the course of ordinary everyday activities. The pain he describes has been identified as neuropathic pain.

The plaintiff described the pain as becoming worse whenever he flexed his hand back, and stated this would produce a straining sensation around the nerve and up his arm. The plaintiff described there being times when he feels that there is a burning sensation in the limb and finger which he likens to a phantom sensation and which feels like someone holding a cigarette lighter and running it up and down his affected finger.

In addition to the scar from the initial surgery he also carries a scar from the unsuccessful attempt at restorative surgery. He has a surgical deficit and interruption to the digital nerve of the left middle finger.

The surgery in question has left the plaintiff with an uncomfortable feeling in his hand when he grips things. He feels an electric shock-like sensation when this occurs, including when he hangs his hand down by his side or places his hand in certain positions. He feels unable to hold his girlfriend's hand. This does not make him feel good. He thinks the physical problems are getting worse. He described a circumstance in which he was showering when he tried to turn the shower taps off by gripping the tap handle and in doing so he placed pressure on the neuroma and then dropped to the ground in tears, crying in pain.

The plaintiff described his observation that over time his continuing physical problems have led him to suffer a number of emotional difficulties. He described the pain as constant. He felt unable to cope, he felt very low, his self-confidence and self-esteem had become reduced and he felt he had little to live for and at times has suicidal thoughts. He feels less competent. He found himself becoming frustrated when performing physical tasks because of increased levels of pain and burning sensation whenever he attempted to do things with his injured hand. His sleep has become disturbed, he feels irritable and short-tempered at times, as well as feeling restless and has impaired concentration.

These matters have caused the plaintiff to suffer psychological problems. He was referred to Dr Street for what he understood to be treatment for depression and post-traumatic stress disorder. He was experiencing what he described as flashbacks when under stress. He eventually had what he described a breakdown in August 2006. He also described a situation in December 2007 where he had accepted a job with an auto-electrician but found that he became distressed when it came time for him to start the job and he felt depressed and felt that he could not start the job. The plaintiff described ongoing problems with his self-confidence and unstable mood variations. This is a particular problem for the plaintiff because he has high expectations of himself and his impaired self-confidence makes it difficult for him to talk to people. In cross-examination it emerged that the plaintiff's low mood and low satisfaction had led him to experience fleeting thoughts of suicide, negative thoughts and low energy.

The plaintiff also described some conflict problems he had with his father whilst he was living at home. His father had expressed his concern over the amount of time the plaintiff was spending on the computer and with his pocket bike whilst not working. The impression I gained from this evidence was that there was a degree of natural expression of parental concern because the plaintiff was not working and was spending time on the computer. Some of the plaintiff's computer activity was related to seeking to upgrade his knowledge and skills in photography. Whatever the conflict was, the plaintiff no longer lives with his parents and such conflict no longer seems to be a relevant stressor for the plaintiff.

I find in varying degrees, all of these matters that affect the plaintiff, as reviewed above, continue to have a significant and adverse effect on his ability to lead a normal life.

An assessment of the plaintiff's entitlement to damages for future expenses and domestic assistance first requires an assessment of the years that probably remain for the plaintiff. Having regard to the current prospective life tables, at age 25 this being the plaintiff's age at trial, in the absence of any medical or other evidence suggesting a decreased life span, I assess the plaintiff's life expectancy, which is by definition a statistical estimate or average, to be in a rounded down estimate of a remaining 60 years.

I now turn to my assessment of the individual heads of damage claimed by the plaintiff.

I had already outlined the nature and extent of the plaintiff's ongoing physical, emotional and psychological difficulties that have been caused by the operation in question. 210. At the age of 25 years, the plaintiff faces a future of ongoing neuropathic pain in the region of the neuroma at the base of his left middle finger. Although his left hand is his non-dominant hand, common human experience suggests it is nevertheless used frequently in many forms of day-to-day activities involving work, domestic and recreational activities. The plaintiff's experience of pain is exacerbated by contact with the affected area.

211. In addition, the plaintiff's underlying vulnerability to triggering episodes of low mood and depression has been exacerbated by his ongoing exposure to neuropathic pain which in turn causes him to suffer what has been identified by Dr Jungfer as a major depression.

212. There is no evidence that the plaintiff's neuropathic pain and its psychological sequelae will abate in the foreseeable future. Accordingly, the plaintiff faces a long future life span in which he will be beset with the adverse, painful and distressing aftermath of the surgery in question. In addition, any leisure activities requiring the use of the left hand will be less enjoyable for the plaintiff to the extent that such activities are dependent upon grip and physical dexterity of his left hand.

213. Although I consider that the plaintiff's employment prospects have been substantially diminished due to the effects of the surgery, I have not included any economic considerations in my assessment of the plaintiff's entitlement to damages for non-economic loss.

214. All of these matters have been superimposed upon the plaintiff as a vulnerable individual who has had underlying problems due to the effects of Asperger's syndrome, which, to his credit, he had largely accommodated or overcome before the surgery in order to make plans for an independent future. It is relevant to note, by reason of that underlying condition, that he was less well equipped than some others to handle the additional stress of the loss of his full and unrestricted manual dexterity, and the loss of the expectation of what might otherwise have been a pain-free existence.

215. The defendant has submitted that an appropriate award for non-economic loss would be about 23 per cent of a most extreme case pursuant to s 16 of the Civil Liability Act 2002. I consider that percentage to be manifestly inadequate compensation for the plaintiff's post-injury problems.

216. In my view the matters I have outlined, which encompass physical, emotional and psychological factors, should sound in a significant assessment of the percentage extent of his entitlement to non-economic damages. I consider that an appropriate assessment to reflect the plaintiff's past and future pain, suffering and loss of amenity of life would be in the amount equivalent to 32 per cent of a most extreme case within the assessment table referred to in s 16 of the Act, which is the amount of $142,000. I therefore I assess the plaintiff's damages for non-economic loss at 32 per cent of a most extreme case, namely, in the amount of $142,000.

217. The plaintiff makes a claim for past loss of earnings at the rate of $500 per week net over 4 years, namely, $104,000.
218. The evidence discloses that the plaintiff had an established earning capacity of up to $700 per week gross at the time he had surgery in question. According to the Furzer Crestani Assessment Handbook, which includes a net economic loss ready reckoner, in the 2009/2010 financial year the amount of $700 per week gross is the equivalent of $618.23 per week net.

To allow for the fact that the plaintiff did not have a continuous history of such earnings before the surgery in question, I propose to adjust this figure to a lesser amount. However, in doing so I have had regard to the fact that the plaintiff was well motivated to work and was conscientious in his endeavours to pursue work, as is evident from the range of certificated qualifications and skills he had acquired privately and of his own volition before he had the surgery in question.

The adjusted figure I have settled upon is $500 per week net. I consider that this sum represents a fair estimate of the plaintiff's pre-injury earning capacity as an appropriate average over the past 4 years and I consider that this sum should form the basis for the assessment of the plaintiff's claim for past loss of earnings.

After allowing a perhaps arbitrary period of about five weeks absence from work in order to recuperate from the effects of what ought to have been successful surgery, but was not, I consider that the plaintiff should be compensated for past loss of earning capacity at the rate of $500 per week net over the period between 29 August 2005 to 31 August 2009, a period of approximately 4 years or 208 weeks. This is the equivalent of $104,000. I consider that there should be some adjustment to this sum on account of the plaintiff's earnings as a courier with Belmont Couriers. The defendant has submitted that there should be an offset for about 12 weeks. The evidence as to the length of that employment was not precise but I will make an offset of $6000 on account of that employment. I therefore assess the plaintiff's damages for past loss of earnings in the sum of $98,000.

The plaintiff makes a claim for future loss of earning capacity. Before making an award for such damages for future loss of earning capacity I must be satisfied concerning the assumptions that underpin the award, including the need to be satisfied that any award made should accord with the plaintiff's most likely circumstances, but for the events that gave rise to the claim : s 13(1) of the Act.

At the plaintiff's age of 25 years, I see no reason, on the evidence, to indicate that the plaintiff would not have sought to exercise his earning capacity and work until the current expectation of retirement at age 67 years.

The evidence of Dr Jungfer is that the plaintiff's mood disorder would be an impediment to employment but would not be an absolute prohibiter regarding employment. Dr Lee has stated that the plaintiff is not unfit for employment. The defendant points to this evidence to support its submission that the plaintiff should be awarded a buffer of about $25,000 less 15 per cent for vicissitudes or $21,259 to take into account the fact that from time to time the plaintiff may need to take time away from his employment as a consequence of his injuries and disabilities.

In my view the defendant's submission is overly simplistic and represents inadequate compensation for the plaintiff's future impairment of his earning capacity. I have come to this view for the reasons which follow.

First, as would be expected, both Dr Jungfer and Dr Lee expressed their opinions on the basis of the psychological aspects of the plaintiff's condition. The assessment of damages for future impairment of earning capacity requires a much wider consideration and should include the physical ramifications of the remaining disabilities and the relationship between those problems and the mood disorder in the plaintiff in this case.

Secondly, the defendant argues, incorrectly in my view, that there is a co-incidence of views of Dr Jungfer and Dr Lee on the issue of the plaintiff's future earning capacity. In fact, properly understood, Dr Jungfer's views are far more pessimistic than those of Dr Lee because her views on this issue are founded upon her diagnosis of a major depression or severe depressive disorder in the plaintiff whereas Dr Lee was of the opinion that the plaintiff had no emotional distress from the effects of the surgery. The foundation for their respective views was far from equivalent and on my reading of their reports, their views do not coincide at all on this issue.

Thirdly, the defendant's submission proceeds upon the basis that the plaintiff will obtain and sustain employment but will require time off work from time to time. I consider this to be an unrealistic view of the evidence. Contrary to that assumption, I consider that the disabilities I have summarised are likely to pose a significant impediment to the plaintiff securing employment because of the inter-relationship between his neuropathic pain and the effect this has on him psychologically, resulting in low mood, significant depression and an undermining of his self confidence. In my view the defendant's submission fails to pay due regard to the assessment of Dr Jungfer, which I accept, namely that the plaintiff's neuropathic pain has led to an inability to successfully maintain employment due to the impact of the neuroma and the associated difficulties with regard to depression.

Fourthly, the defendant's submission pays no regard to the effect of Dr Jungfer's view, which I accept, that the plaintiff will have difficulties in forming a therapeutic relationship with a psychiatrist. This is a factor that will probably make it very difficult to effectively treat the plaintiff's depression. This difficulty is obviously a matter that is related to the plaintiff's underlying vulnerability, the significance of which is a matter the defendant cannot avoid : Watts v Rake [1960] HCA 58; (1960) 108 CLR 158.

In addition to the foregoing factors the obvious conclusion I draw from the evidence in this case is that the plaintiff will be disadvantaged in competing for employment due to physical restrictions with the grip, dexterity and full use of his left hand. This, together with his underlying vulnerability to developing depression that is triggered by pain represent considerable hurdles to the plaintiff securing and maintaining future employment. This underlying vulnerability is not a disentitling factor for the plaintiff as the defendant must take the plaintiff as it finds him : Watts. For the defendant to assert that the superimposed triggering event had no effect on that underlying vulnerability and should therefore not sound in significant economic damages because of the nature of the presence of a pre-existing vulnerability requires cogent evidence to support such a view by disentangling the respective contributing factors. There is no such evidence in this case : Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.

The essential issue here is that whereas prior to the surgery in question the plaintiff was able to maintain employment despite an underlying attention deficit disorder, the effects of the injury have tipped the plaintiff into depression and an inability to return to his pre-injury level of functioning.

The foregoing analysis encompasses the assumptions I am required to make for the purposes of s 13(3) of the Act as a pre-cursor to assessing damages for loss of future earning capacity.

Although the plaintiff has been tipped from the category of being able to work to being unable to work as a result of the deleterious effects of the surgery in question, I do not consider this to be a case that requires the direct projection of a particular amount of assessed weekly loss to arrive at an appropriate assessment after conventional discounting. I take this view because it is unrealistic to assume that the plaintiff will always be severely depressed and will therefore be unable to work from a psychological point of view. I have to allow for the fact that there will undoubtedly be some jobs that will emerge from time to time which may be within the plaintiff's physical capacity and skills set and which will not cause him the severe problems with his neuroma so as to trigger further episodes of severe depression and low self-esteem so as to contra-indicate employment, as is the case at present.

This situation makes an assessment difficult but such difficulty does not preclude an assessment : State of NSW v Moss [2000] NSWCA 13.

I am satisfied that the matters I have outlined will have a significant adverse impact on the plaintiff's future capacity to earn an income. I am also satisfied that this will be productive of financial loss : Graham v Baker [1961] HCA 48; (1961) 106 CLR 340. In view of my findings on the manner in which that loss is likely to arise, I consider that the appropriate approach to assessment is by way of a lump sum to provide the plaintiff with an economic buffer against the future impact of the adverse factors I have identified, because the standard method of calculation or projection of future losses is problematical in this case: Penrith City Council v Parks [2004] NSWCA 201 per Giles JA at [5] and Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 per Mason P at [2].

In my view an appropriate buffer in this case is an amount of $250,000. In testing the reasonableness of this amount I note that it is the equivalent of $295 per week projected at 5 percent over 67 years (x 845). I consider this amount is justified in the circumstances having regard to the nature and extent of the plaintiff's physical and non-physical disabilities.

Conceptually, in the ordinary case where a buffer is assessed, there is no need to make an adjustment as required by s 13(2) of the Act : Parks, Montgomery. This is because the buffer has within it a discount to reflect vicissitudes. However, in this case I consider that in fairness to the defendant, the buffer I have assessed should be discounted to a degree to reflect the fact that due to his underlying issues the plaintiff was vulnerable to having an adverse reaction to unfavourable events occurring in his life to a greater degree than might have been the case with the average person. I consider that one of the factors that led to the zero adjustment position adopted in the cases of Parks and Montgomery was that the buffer had encompassed within it what has been referred to as the conventional allowance for adverse vicissitudes of 15 per cent whereas in this case I consider that the plaintiff's underlying vulnerability to react adversely to other future adverse events in his life should also be taken into account as an adjustment factor. I consider that adjustment should be in the amount of 10 per cent in addition to the conventional amount already incorporated : Wynn v NSW Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485.

On this approach the buffer I have assessed should be adjusted to the amount of $225,000. I therefore assess the plaintiff's damages for future loss of earning capacity in the sum of $225,000.

The plaintiff is entitled to damages for the value of past loss of employer funded superannuation contributions commensurate with the assessment of his past loss of earning capacity. This may be identified by employing a rule of thumb calculation by applying a factor of 11 per cent on past loss of earnings to reflect the value of past superannuation losses. Accordingly, having the assessed value of the plaintiff's claim for past net loss of earnings in the amount of $98,000, and applying a factor of 11 per cent to represent the value of superannuation contributions, I assess the value of the plaintiff's past employer funded superannuation losses to be in the sum of $10,780.

Consistent with my assessment of the value of lost past employer funded superannuation benefits, I find the plaintiff is entitled to damages for the lost value of future employer funded superannuation benefits. A monetary assessment of that loss is therefore required. Given that I have assessed the plaintiff's future loss of earning capacity in the sum of $225,000, applying the same method of calculation employed to assess the loss of past superannuation, namely a factor of 11 per cent, I assess the value of the plaintiff's future employer funded superannuation losses to be in the sum of $24,750.

The plaintiff makes a claim for future treatment expenses. The defendant has submitted that there should be no award of any damages in this regard, or alternatively, any such damages should be limited to an amount of the order of $5,000 which equates to about $25 per week which, it was submitted, ought to be a sufficient sum for a reasonable period of rehabilitative treatment for the plaintiff.

The defendant's primary submission on future treatment is based on the opinion of Dr Lee who has suggested that there is no current need for the plaintiff to have psychiatric treatment although there may be some future need in view of the history of the plaintiff's fluctuating mood.

In my view there are flaws in the defendant's submission concerning future treatment. First, there is no evidence that the plaintiff's pain from his neuroma will subside and there is no evidence that normal sensation will return to his left middle finger. This must mean that it is highly likely that the plaintiff will continue to experience the problems of neuropathic pain he has described and which I have accepted. Secondly, given that there is a relationship between the plaintiff's experience of neuropathic pain and his low mood and depression, as I have found to be the case, it is neither fair nor appropriate that the plaintiff be denied access to funds to pay for medical support and treatment for these problems.

Accordingly, I accept that the plaintiff will require treatment along the lines suggested by Dr Jungfer in her report dated 14 October 2008. I prefer Dr Jungfer's analysis to that of Dr Lee for the above reasons and for the reasons I stated to be the basis for my general preference for the opinions of Dr Jungfer compared to those of Dr Lee.

Dr Jungfer has suggested further trials of anti-depressant medications and referral to a chronic pain management service to see whether this diminishes the extent of the neuropathic pain and in order to see whether this in turn increases the plaintiff's work options. It is significant that Dr Jungfer does not suggest that such a referral is likely to abolish the plaintiff's pain. In addition she has recommended that the plaintiff be seen monthly by a psychiatrist over a period of three years in conjunction with pharmacotherapy, the combined cost being of the order of $305 per month. In making that suggestion she noted that the plaintiff had a high risk of relapse which suggested the likelihood of a much longer period of treatment. Dr Jungfer has also suggested that the pain management service treatment would be up to approximately $3900 for about a year. The combined effect of Dr Jungfer's recommendations suggests significant expense as well as the prospect of further ongoing expense for treatment for relapses in the plaintiff's condition.

I accept Dr Jungfer's assessment as reasonable and appropriate. The undiscounted costing of her recommendations for the first three years is of the order of $15,000. Although there is the prospect that such treatment might improve the plaintiff's position, there is a high risk of relapse. It is that risk of relapse which is difficult to quantify on the evidence adduced. Nevertheless, some attempt must be made to arrive at a reasonable estimate to cover these prospects : State of NSW v Moss [2000] NSWCA 13. I propose to make an allowance by way of a buffer.

In my view a buffer of the order of $20,000 should be allowed for future treatment. Accordingly, I assess the plaintiff's damages for future treatment needs in the sum of $20,000.

The parties have reached a mathematical agreement that the plaintiff has incurred out-of-pocket expenses amounting to $4981.58. This amount comprises various monies paid by Medicare, the NIB Health fund, the gap in Medicare payment and certain travel expenses. I consider the claimed expenses to be reasonably claimed. I therefore assess the plaintiff's damages for past out-of-pocket expenses in the sum of $4981.

My assessment of the plaintiff's damages is summarised as follows:

Head of damage Assessment (a) Non-economic loss $142,000 (b) Past loss of earnings $98,000 (c) Future loss of earning capacity $225,000 (d) Past loss of superannuation $10,780 (e) Future loss of superannuation $24,750 (f) Future treatment $20,000 (g) Past out-of-pocket expenses $4,981 Total $525,511

I have found in favour of the plaintiff on the liability and causation issues. I have assessed the plaintiff's damages in the sum of $525,511 which entitles the plaintiff to a verdict and judgment in his favour in that amount, with costs to follow the event.

Accordingly, I make the following orders: (a) Verdict and judgment for the plaintiff against the defendant in the sum of $525,511;

(b) The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;

(d) Liberty to apply on 7 days notice if further orders are required.

11/12/2009 - Slip Rule correction - Paragraph(s) Para 216: percentage figure of 36 is replaced with "32"

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