Jambrovic v Day; Jambrovic v Day

Supreme Court of NSW|2017-06-19|Before: Schmidt J, Mr J

Judgment

In 2011 Mr Jambrovic suffered catastrophic complications during brain surgery performed by Dr Day, a neurosurgeon and another surgeon, Dr Pearson. He has been left considerably impaired. Mr Jambrovic's tutor (also his grandson) Mr Dennis and his wife Mrs Jambrovic, have both brought proceedings in negligence against Dr Day, which are defended. The case brought against Dr Pearson, an ENT specialist, was not pursued and no evidence was called from him. The pleaded claim that Dr Day had performed the surgery negligently was also withdrawn.
When CT scans were undertaken in February 2011 a tumour in Mr Jambrovic's brain was identified. He saw Dr Day on 2 March 2011 and underwent surgery on 31 March, after Dr Pearson established that the surgery to remove the tumour could be performed endoscopically, through Mr Jambrovic's nasal passage, as Dr Day had proposed. This was the first time that Dr Day had performed such surgery.
Shortly after the surgery on 31 March 2011 it was established that Mr Jambrovic had suffered a haemorrhage in his brain. He underwent further procedures that day and subsequently, with the final result in August 2011 being the placement of an external ventricular drain, to drain cerebrospinal fluid and release increased intracranial pressure in his brain, which had been caused by the haemorrhage and its consequences. It was not until December 2011 that Mr Jambrovic was discharged into the care of his family at home.
Mrs Jambrovic gave evidence about their life; Mr Jambrovic's health, both before and after the surgery; what Dr Day and Dr Pearson had each advised them about Mr Jambrovic's tumour prior to the surgery; the consequences of the injuries which Mr Jambrovic has suffered; and what she has suffered as a result of his injuries. Their two daughters, Mrs Mary Dennis and Ms Angela Jambrovic and Mr Dennis, gave corroborative evidence about the family's life and the consequences of Mr Jambrovic's injuries for them, Mr Jambrovic and Mrs Jambrovic.

Mr and Mrs Jambrovic's cases must succeed

I am satisfied that relevant negligence on Dr Day's part has been established. There must accordingly be judgment in favour of Mr and Mrs Jambrovic, as well as orders for damages made in their favour.
I will explain the reasons for those conclusions in detail, but in summary, I am satisfied that if the decision to have the surgery was made after Dr Day gave advice of the kind it was put to Mrs Jambrovic he had given at the consultation on 2 March 2011, which she denied receiving, that decision would have been quite irrational and one which Dr Day should have counselled against, given the comparative risks of the two available courses.
As Dr Day himself conceded in cross-examination, he had a preference for surgery, given his concern that it was oedema which was causing Mr Jambrovic's headache and the risk of tumour growth. This was what he conveyed to Mr and Mrs Jambrovic. They accepted his advice. The result was that Mr Jambrovic pursued a surgical procedure which Dr Day had neither prior experience of, or training in, when the better course would have been to wait and monitor the progress of the tumour. Had Mr and Mrs Jambrovic received that advice, or even information about the risks of the surgery when compared with the risks involved in monitoring the tumour, it is quite unlikely that Mr Jambrovic would have had surgery in March 2011.
In the circumstances, Dr Day's evidence that in 2011, before the surgery, he gave advice about the risks involved in both the surgery and monitoring the tumour, which Mrs Jambrovic denied receiving, but Mr Jambrovic preferred to have him proceed to perform surgery on his brain which Dr Day had never performed before, is quite implausible. I am satisfied that it cannot be preferred over Mrs Jambrovic's evidence.
In the result, I have concluded that Mr and Mrs Jambrovic's case must succeed, they having established Dr Day's negligence, on the balance of probabilities.

The nature of Dr Day's duty

There was no issue between the parties that Dr Day owed Mr Jambrovic a duty of care of the kind discussed in Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58.
On Dr Day's case there was a disagreement as to the scope and content of the duty and whether it had been breached, although there was no issue that he had a duty to advise Mr Jambrovic.
As discussed in Rogers v Whitaker at [5] - [6], the duty is a single duty to exercise reasonable care and skill in the provision of professional advice and treatment, covering all the ways in which a doctor is called upon to exercise his skill and judgment. The duty extends to the examination, diagnosis and treatment of the patient and to the provision of information. The standard of reasonable care and skill required is that of the ordinary skilled person, exercising and professing to have that special skill.
Further, in the case of advice given to a patient, when the issue is whether the patient has been given all the relevant information to choose between undergoing and not undergoing treatment, the risks attending the proposed treatment must be communicated to the patient "in terms which are reasonably adequate for that purpose having regard to the patient's apprehended capacity to understand that information": Rogers v Whitaker at [14]. Further, as discussed at [16]: "The law should recognize that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it."
In this case, given the comparative risks of the surgical procedure Dr Day performed and that involved in monitoring the tumour, which I will explain, and Dr Day's failure to disclose his lack of training and experience in the procedure he recommended, I am satisfied, that the advice Dr Day gave on 2 March 2011 did not accord with these obligations.

Issues

What was in issue was identified to be: "LIABILITY 1 The nature and extent of any risk warnings provided by the defendant to the plaintiff. 2 The nature and extent of any alternative treatment options discussed or recommended by the defendant to the plaintiff. 3 Whether the defendant was appropriately trained and experienced to perform the surgery performed on the plaintiff, 4 Whether the defendant ought to have recommended the proposed surgery to the plaintiff. 5 Whether the defendant ought to have performed the surgery upon the plaintiff, 6 Whether the defendant ought to have recommended other forms of treatment to the plaintiff. DAMAGES Non-Economic Loss 1 The nature and extent of the injuries and disabilities sustained by the plaintiff. 2 The percentage of a most extreme case. Treatment Expenses 3 Whether the plaintiff's treatment to date has been reasonable and necessary. 4 The extent of any need for future treatment and its anticipated cost. Attendant Care Services 5 The level of attendant care services required, both past and future. 6 The extent to which the plaintiff requires commercial attendant care services."
While not identified as an issue, the credibility of both Mrs Jambrovic and Dr Day also arises for consideration. Both made concessions against interest, but aspects of the evidence which they each gave cannot be accepted. On the critical question of what Dr Day advised and disclosed at the March 2011 consultation, I have concluded that Mrs Jambrovic's evidence must be accepted, supported as it finally was by relevant concessions made by Dr Day in cross-examination.
The parties also finally agreed on Mrs Jambrovic's damages, in the event that the case in negligence against Dr Day was proven. A large measure of those to be awarded Mr Jambrovic was also finally agreed.

Mr and Mrs Jambrovic's circumstances before and after surgery

In order to resolve what remains in issue, it is necessary to bear in mind the evidence as to Mr and Mrs Jambrovic's circumstances, both before and after the surgery.
In 2011 Mr and Mrs Jambrovic, both immigrants to Australia who had married and raised their family here, had then been married for over 50 years. Mr Jambrovic had retired from his position at Telstra in 2002, when he was aged 64 years. They shared a close and loving relationship, one in which on Mrs Jambrovic's evidence, they made decisions together, including in relation to Mr Jambrovic's surgery in 2011. They also had a close-knit family.
Before February 2011 Mr Jambrovic had little history of ill health, although Dr Day had earlier treated him for carpal tunnel syndrome, which had resulted from nerve compression in his neck. Dr Day had then also advised surgery, but Mr Jambrovic did not proceed with it, when his symptoms resolved.
In March 2011, when referred to Dr Day, Mr Jambrovic was aged 73 years. He was then a happy, fit and active man, still working daily on the renovation of his own home and with Mr Dennis, on the renovation of his daughter Angela's home. He and Mrs Jambrovic were also leading an active social life.
There was no issue between the parties that Mr Jambrovic's circumstances since the surgery have been entirely different and that the surgery and its consequences have also had an adverse impact on Mrs Jambrovic's health. The result has been that Mr and Mrs Jambrovic's children and grandchild have assisted Mrs Jambrovic to provide Mr Jambrovic with the considerable care he has required, since his release from hospital in December 2011.
Up to 2011 Mr Jambrovic did not have a history of suffering from headaches. He mentioned having had a headache to his GP, Dr Raza, in early February, when seeing him about something else. On 10 February 2011 he told Mrs Jambrovic that he had a "little headache", but it was not severe enough to have required medication, or to have interfered with Mr Jambrovic's pursuit of his normal activities. Because the headache was unusual and had persisted, with Mrs Jambrovic's encouragement, he saw Dr Raza about it on 11 February.
That day Mr Jambrovic reported that he had been suffering headaches for some weeks. He was referred for a CT scan, which was inconclusive. A further scan revealed "a solid homogenously enhancing mass lesion within the midline of the anterior cranial fossa demonstrating some adjacent mass effect and oedema within the right frontal lobe having features most typical of a meningioma". Dr Raza then referred Mr Jambrovic to Dr Day, who saw him on 2 March, after considering the scans.
On 2 March 2011 the decision to have surgery was made during a one hour consultation. That day Dr Day measured the tumour to be 3.5cm. After further investigation it was found to be smaller, but that result, or the decision to have surgery was not revisited with Mr Jambrovic. Mr Jambrovic's headaches persisted, but even up to the day before his surgery on 31 March, they were not severe enough to interfere with his normal activities.
The surgery at Wollongong Hospital on 31 March 2011 was estimated to require seven to eight hours. On completion Mr Jambrovic was taken for another CT scan. Mrs Jambrovic was informed by a nurse that they were having trouble waking Mr Jambrovic. Heavy bleeding was identified and he was returned to surgery.
Mrs Jambrovic next saw Mr Jambrovic in intensive care. In evidence is a chronology describing the period of his hospitalisation until December 2011 and the further 10 surgeries and other treatment which he has received since the initial brain surgery. Mr Jambrovic's weight dropped from some 78 kilos, to 45. After surgery he was unresponsive for the first six weeks.
Mrs Jambrovic spent time with Mr Jambrovic in hospital every day, reading and playing music to him and helping to give him various physical care. In her evidence Ms Jambrovic explained the impact of this time on Mrs Jambrovic and how she, her sister and nephew supported her and Mr Jambrovic, extensively during this time. Mr Dennis and his mother provided corroborative evidence.
Mr Jambrovic gradually improved and was eventually moved to Port Kembla Rehabilitation Hospital, but even on discharge he still had limited mobility and had to use a wheelchair. Despite recommendation of hospital staff that Mr Jambrovic required care in a nursing home, he finally returned home. Initially his food had to be pureed. Later, for a time he began eating voraciously, seemingly not having any memory of having eaten, or initially how to eat. He was frustrated by his problems with using cutlery. For a time he again had no interest at all in food, but later he developed obsessions with particular foods, which he hides.
Mrs Jambrovic has received considerable assistance in providing Mr Jambrovic the extensive care that he continues to require. The other family members have also provided considerable help, initially looking after the housework, while Mrs Jambrovic spent her days at the hospital. On discharge Mr Dennis lived with Mr and Mrs Jambrovic, helping with his care. The care Mr Jambrovic required eventually began affecting Mrs Jambrovic's health and led to Mr Dennis moving out.
When he returned home Mr Jambrovic was for the first nine months very lethargic and required a great deal of assistance. He had difficulty conversing and with memory and comprehension and was often frustrated and angry. He needed ongoing assistance of various kinds, with washing, shaving, and showering.
From about six months post-discharge Mr Jambrovic was able to move around without a wheelchair. Then he began using a walking frame/pusher and was given assistance with a belt, which he continued to use for at least two years. After about two and a half years, he began walking without assistance, but continued to experience problems with balance, stairs and uneven surfaces. He can no longer drive or garden.
Some nine months after discharge, Mrs Jambrovic started teaching Mr Jambrovic to write again. It was some 12 months before Mr Jambrovic could shave himself. There has been some improvement with his incontinence, but he still has toileting problems. He continues to only have full vision in one eye. After approximately a year, Mr Jambrovic's progress was such that he could be taken on outings, to the shops or a local Club, for up to 2 hours.
In mid to late 2013 Mr Jambrovic's sleeping patterns altered, finally making it so difficult for Mr Dennis to sleep, that he had to move out. Mr Jambrovic still has problems sleeping at night and becomes very agitated, requiring attention throughout the night. He is no longer able to be left alone. On occasions he has left the house unaccompanied and had to be searched for.
Mrs Jambrovic and other members of the family still continue to devote themselves to Mr Jambrovic's care, he still being unable to perform even simple tasks around the house. Ms Jambrovic described him as being a danger to himself, if he attempts to use any type of machinery or electrical equipment.
That all that Mr Jambrovic's care has required has put considerable financial and emotional strain on this close family, as was Ms Jambrovic's evidence, can well be understood. This must be taken into account, when resolving what care he requires in the future.
The consequences of the impact of Dr Day's negligence for Mrs Jambrovic were agreed. They need not here be outlined. Her health has also otherwise deteriorated. She has been advised that she requires knee replacements, but is concerned not to pursue treatment which will affect her ability to care for Mr Jambrovic.

What advice did Dr Day give on 2 March 2011?

Both what Dr Day advised on 2 March and how the decision to have the surgery was made during the consultation that day were in issue.
Both Mrs Jambrovic and Dr Day made statements and were cross-examined. Dr Day did not join issue with Mrs Jambrovic's statement in his own statement.
There were aspects of the consultation which Mrs Jambrovic agreed in cross-examination that she did not have good recall of and some things about which she was wrong. For example, Mrs Jambrovic could not remember Mr Jambrovic signing the surgical consent forms on 2 March, although that was their date and in her evidence she referred to MRI results being discussed at the consultation, when there were only CT results then available.
There were other aspects of the consultation which Mrs Jambrovic said that she could clearly remember, including the advice which Dr Day had given, that Mr Jambrovic should have surgery and what the risks of not having surgery were.
Dr Day also had a limited recollection of the consultation and so his statement was couched in terms of what he "would have" advised, given his usual practice. Dr Day remembered some things that Mrs Jambrovic did not, including that Mr Jambrovic had signed the consent forms during the consultation. In cross-examination he claimed to have remembered things not dealt with in his statement, including other things which he claimed to have been part of his usual practice.
It was common ground that there were two available courses of treatment in Mr Jambrovic's circumstances. First, surgical removal of the tumour. Secondly, conservative treatment, involving monitoring the tumour at regular intervals.
There was no issue that conservative treatment of the tumour would have involved regular observation, with further scans undertaken at 3, 6, 9 or 12 monthly intervals, together with treatment for oedema and pain. As he explained in his evidence, Dr Day's view on 2 March 2011 was that if conservative treatment was pursued, 6 monthly scans would have been appropriate in Mr Jambrovic's case.
There was also no issue that Dr Day recommended that the tumour be removed by endoscopic surgery which he had not previously performed, although he had performed other endoscopic procedures. He had also removed brain tumours by craniotomy.
In her statement Mrs Jambrovic explained what Dr Day had advised at the consultation, namely, that Mr Jambrovic was suffering a meningioma, a tumour which he thought unlikely to be malignant, but which needed to be surgically removed, because it put Mr Jambrovic at risk of suffering a stroke, which would leave him in a wheelchair, or dementia. Dr Day proposed removing the tumour endoscopically, through the nasal passage, rather than by craniotomy. Mrs Jambrovic said that Dr Day described endoscopy as the more modern and cleaner procedure, from which Mr Jambrovic would have a quick recovery. That was subject to assessment by Dr Pearson, to confirm that such surgery was possible, given the state of Mr Jambrovic's nasal passages.
In cross-examination, Dr Day agreed that he had referred to the risk of stroke and dementia, but said that it was very unlikely that he would have referred to Mr Jambrovic ending up in a wheelchair. Dr Day agreed, however, that there was then no real prospect of Mr Jambrovic's tumour causing dementia or stroke, within six months.
There was finally no issue that a printed document explaining craniotomy surgery and its risks was provided to Mr and Mrs Jambrovic at the consultation. The actual document provided to them is in evidence, Mrs Jambrovic having searched for and found it at home in a drawer where medical records were kept, after she gave her evidence on the first day of the trial. This document deals with the risks of surgery, what is involved in a craniotomy and the risks of that procedure.
This document does not deal at all, however, with the endoscopic procedure which Dr Day recommended. That procedure was quite different to the craniotomy there described, involving as it did two surgeons and the tumour being removed through the nasal passage, rather than the skull. This document also does not deal with the possibility that an endoscopic procedure might prove to be unsuitable, in which event a craniotomy of the kind explained in the document, would have to be undertaken.
Mrs Jambrovic's evidence was that Dr Day did not explain, or refer to this document during the consultation, he provided it only at the end, when he slid it across the desk, without explanation. She never read the document, not understanding when she looked at it later, that it was relevant to the endoscopic procedure Dr Day had recommended and so she put it away.
Mrs Jambrovic accepted that it was possible that Mr Jambrovic had read the document, but she had not, not appreciating that it was significant.
Mrs Jambrovic was cross-examined in considerable detail about what Dr Day had advised about the risks of surgery, by reference to this document. She denied that Dr Day had advised anything by reference to the document. She also denied that Dr Pearson had given advice about the risks of the surgery, at the consultation which he had with Mr and Mrs Jambrovic. Not much can finally turn on this, given that it was the advice which Dr Day gave or failed to give which was in issue; that no claim was pursued against Dr Pearson; and that Dr Day did not call Dr Pearson to give evidence, as might be expected, if reliance was to be placed upon advice which he had given.
Mrs Jambrovic agreed in cross-examination that she was upset during the consultation, because she was concerned about Mr Jambrovic having surgery on his brain and that she understood that it could involve risk, but that Dr Day had assured them that everything would be okay and that he would be up, in a few days. Dr Day denied giving such advice. That was, however, what Mr and Mrs Jambrovic understood, given what the evidence revealed they later told their daughter and grandson.
In cross-examination Mrs Jambrovic also denied, however, that Dr Day had explained that the risk of the surgery he recommended included brain damage; that not all of the tumour would be removed; that there was a risk of stroke and damage to blood vessels near the tumour; that there might be a need for further surgery or a risk of seizures after the surgery; that there was a risk of possible impact on memory, a risk of infection, heart problems and pneumonia; that the risk of the two surgical procedures, craniotomy and endoscopy were basically the same; or that there was a risk of death involved in the proposed surgery.
Mrs Jambrovic insisted that while Dr Day had explained the risk of not proceeding with surgery, he had not so explained the risks of proceeding with the surgery he recommended. She also denied that he had given such advice by reference to the printed document, which explained the risks of craniotomy. Her evidence was that if Dr Day had advised of these risks and that not having the surgery was an option for Mr Jambrovic, they would have had a choice to think about. Instead, they decided to go ahead to prevent Dr Day's prediction of what would happen if Mr Jambrovic did not have the operation.
There is no evidence that when they later spoke to family members, either Mr or Mrs Jambrovic then said that Mr Jambrovic also had another option, namely of Dr Day monitoring the progress of the tumour, before a decision to proceed with the surgery was made.
In his statement Dr Day outlined the limited matters which he could recall about the consultation, as well as what his usual practice at the time was, when dealing with a patient such as Mr Jambrovic. In his statement Dr Day did not refer either to Mrs Jambrovic's statement, or to various matters which he gave oral evidence about. For example, in his statement he did not refer to Mrs Jambrovic having tried to dissuade Mr Jambrovic from having the surgery, or having told Mr and Mrs Jambrovic that this would be the first time that he would perform endoscopic removal of a brain tumour of the kind Mr Jambrovic had.
Dr Day's evidence depended on his own records, what various records of certain medical investigations had revealed and his usual practice. In early 2011 he had a practice of leaving an unbooked appointment time daily, in case a patient required urgent review of a brain or skull based tumour, but he had no recollection of then having spoken to Dr Raza about Mr Jambrovic.
Dr Day described his usual practice in 2011 to involve reviewing referred patient's reports and on examination and initial consultation, giving advice as to treatment options and obtaining consent to proceed to surgery. He denied having ever told Mr Jambrovic that the only treatment was surgery and that the operation was simple and without risk.
Dr Day's record of Mr Jambrovic's symptoms described persistent headaches, worse in the morning every time they occurred. In the report to the GP which Dr Day dictated after the consultation, reference was made to the headaches having worsened, but there is no mention made either there, or in Dr Day's notes, of any consideration of or advice given about, conservative treatment prior to surgery.
In his statement Dr Day said that his usual practice on consultation was to explain the scans, while displayed in a computer screen or light box, as well as by reference to a model of the skull and brain. In her evidence Mrs Jambrovic confirmed that the former had occurred, but could not recall the latter.
Dr Day also explained what he would have advised about the options of surgery through the skull base, or the nose and the alternative surgical approaches involved. This, too, accorded with Mrs Jambrovic's evidence.
Dr Day also explained why he considered endoscopic surgery to be preferable to a standard open craniotomy in Mr Jambrovic's case, given the location of the tumour and the risks of permanent disfigurement and deformation of the skull which craniotomy posed. There were also additional risks which he considered would be minimised by a trans nasal approach.
Dr Day also there said that he had also advised that he was not sure how long Mr Jambrovic's tumour had been present, or how rapidly it was growing; that it was likely to be benign; that it could explain his headaches, because of the swelling; that the scans showed oedema, which was swelling; and that steroids could be prescribed to reduce the swelling, but that would not be a long term solution to his headaches; that the tumour could explain his altered taste and that: "I would have then said words to the effect 'One of your options is to proceed to surgical removal of the meningioma. Without surgical removal, I consider your headaches will likely continue and may get worse as time goes by'."
While Mrs Jambrovic could not recall receiving all of this advice from Dr Day and denied that he had advised that the tumour was slow growing, she did recall him advising that without surgery, the headaches were likely to continue.
In his cross-examination Dr Day said that Mr Jambrovic's headaches were persistent, but not constant. While he could not guarantee that the surgery would cure the headaches, given their type, he believed that they would not go away unless the tumour was excised. But he denied that the reason for the surgery was to avoid stroke or dementia, as Mrs Jambrovic understood. On his evidence, Mr Jambrovic was very insistent that he wanted to have the tumour removed and that: "I did not attempt to lead him to leave [sic] that his headaches were going to get worse. I did not offer him a steroid injection I spoke to him about the effect of oral steroids on the tumour, and I discussed with him surgical treatment versus non-surgical treatment."
While to that time Dr Day had performed about 50 skull-based meningioma removals and 30 transnasal removals of pituitary tumours, this was the first trans nasal endoscopic removal of a skull base meningioma which Dr Day had performed. The Hospital had to acquire the specialised endoscopic equipment required for that surgery. In his statement Dr Day did not say that he had disclosed this to Mr and Mrs Jambrovic. He deposed: "My thought process at the time of the consultation, and it remains my opinion, was that the oedema Mr Jambrovic had was most likely due to the physical compression of the brain tissue overlying the meningioma. There was a physical proximity between the meningioma and the oedema. Temporarily, steroids can used to treat oedema but only for a few days. They were not a permanent solution to the problem nor a long term clinical management strategy. However, the typical clinical course for oedema is that it will get worse over time. Oedema is unpredictable when accompanied with a meningioma and there is no other way to deal with it except by surgical removal of the meningioma. This can remove the source of irritation that is exacerbating the oedema."
Dr Day also said that he would have explained that the other option was to monitor the tumour's growth, because it was likely to be slow growing, which involved regular scans; and that in Mr Jambrovic's case, he would have advised at six monthly intervals. Further, that because of the position of the tumour, surgery was difficult and that a typical craniotomy could be performed and what that involved. He also explained the alternative, about which he would have advised: "(n) I would have then advised that in words to the following effect: 'The alternative surgery to remove the meningioma can be done through the your nasal passages rather than through an opening in your skull. I have had experience with removing pituitary tumours which is a similar approach as I would use to remove your tumour. I would have also said words to the following effect: 'if the operation is through your nasal passages then I will need to have you assessed by a specialist ENT surgeon, to determine if the nasal approach can be done and of [sic] that's OK to assist me while I'm performing the operation' (o) I would have said words to the effect: 'I recommend you going to see Dr Stephen Pearson to see whether it is possible to perform the surgery through the nasal passages who I have worked with before"; I explained in words to the following effect: 'if Dr Pearson does not think you are suitable for surgery through the nasal passages, you will need to return to me for further assessment and advice'."
The experts, to whose evidence I will return, did not agree with Dr Day's thought process and considered that his disclosure of his surgical experience was inadequate.
Dr Day also said that he would have explained the surgery and its risks by reference to the craniotomy and that : "(q) I recall that I said words to the following effect: 'We have a couple of options. We can monitor this over time and see if it continues to grow and monitor the oedema. This will mean you will have to have regular scans. If it gets bigger it may be difficult to operate on.' Mr Jambrovic replied 'Doctor I do not want to have the scans. I don't want to live with this in my head and I want it removed'. I do not recall him looking distressed. He was to my observation well presented, articulate and firm minded. His English was accented but I believe he had a good understanding of English."
Mrs Jambrovic disagreed with this. .
In his cross-examination Dr Day agreed that at the time of the consultation, he thought the tumour was a slow growing one and that it could be monitored, but he was concerned that it was symptomatic, because of the oedema and onset of headaches in "a headache naïve patient". Dr Day also said that it was unusual to have a substantial visible tumour volume difference between CT and MRI scan, but that he rarely made clinical decisions on MRI reports, because it was the scans on which his decisions were made. He also agreed that there was nothing in the imaging which suggested that Mr Jambrovic's tumour was aggressive and that on further scan, the tumour was smaller than he had measured it. That was not disclosed to or discussed with Mr or Mrs Jambrovic.
It follows that while there was certain common ground between the evidence given by Dr Day and Mrs Jambrovic, on the critical question of what advice Dr Day gave their evidence conflicted. My conclusion that Mrs Jambrovic's evidence had to preferred over that of Dr Day, on critical matters, was driven by evidence Dr Day gave in cross-examination.
Dr Day initially denied having had a preference for surgery over conservative management, but finally agreed that he had made it plain to Mr and Mrs Jambrovic that he thought it was unlikely that Mr Jambrovic's headaches would go away, unless the tumour was removed. His evidence was also: "Q. Let me go about it in another way. You say that in giving advice to Mr and Mrs Jambrovic about this tumour that you were advising them upon, that you did not mean to convey a preference of surgical management over surgical treatment? Have I understood that correctly? A. Yes. Q. Because in your view is it that it would be improper for you to positively recommend surgical treatment as the preferred course of the management of these symptoms at the time? A. I'm a surgeon. I'm certain I have inherent bias towards surgery, it's just the nature of my practice. Q. Being a surgeon thank you for that, sir. But the fact in the matter is that being an educated experienced neurosurgeon in giving advice you were cognisant of the dangers of a surgeon having a bias for recommending surgery that was unnecessary. That's right, isn't it? A. Yes. Q. It is, and certainly when what you're saying is that when you gave advice to Mr and Mrs Jambrovic about this tumour, that you would have thought that it would have been improper in their circumstances to be advocating surgical treatment in preference to conservative treatment. That's right, isn't it? A. I would try to do that, yes. Q. Do you think that you failed in that regard here? A. No."
When pressed further, Dr Day conceded that he was concerned about Mr Jambrovic's headaches and that: "Q. So in those circumstances, is the real answer to the questions that I have asked you beforehand that you actually prefer that this man opt for the surgical rather than the conservative option? A. Based on my clinical judgment, yes. Q. Well, why did you say otherwise earlier on? A. I don't know. I think I was trying to say I had a discussion of surgical versus non-surgical treatment. Q. You would agree, wouldn't you, that in the conversation that you had with Mr Jambrovic, that you intended to convey what you felt; namely, that he would be better off with a surgical as opposed to conservative treatment. That's right, isn't it? A. Yes. Q. Well, why did you say something different earlier on? A. I don't know what you think I said. I don't think I did say that."
This evidence supported that given by Mrs Jambrovic, namely, that they had accepted Dr Day's advice that it was preferable for Mr Jambrovic to have the transnasal endoscopic procedure he proposed. This evidence explained why it was that the decision to proceed with that surgery was made, Dr Day having advised that Mr Jambrovic would be better off having that surgery, rather than conservative treatment.
It was also in cross-examination that Dr Day claimed, for the first time, that he had told Mr and Mrs Jambrovic that: "Q. But you were not well experienced in the removal of a Meningioma of his type by the endoscopic approach; correct? A. Correct. Q. This was the first one you'd done. A. Yes. Q. You'd never told Mr and Mr Jambrovic that, did you? A. I told them that I had done transnasal surgery for many years, pituitary surgery and that I wanted to do this operation for the first time because of my experience based on the pituitary surgery experience I've had and the training I'd had for expanding the technique. Q. Do I understand your answer to be that you did tell them that this was the first time that you'd done this operation? A. Yes. Q. You never have mentioned that at all in your statement, have you? A. I don't know. I guess not. Q. Why not? A. I've never been asked that question before."
Dr Day finally said that he had no recollection of having told Mr and Mrs Jambrovic this, but that it would have been in accordance with his usual practice to do so. He also accepted that it would have been improper not to have disclosed that he had not performed this surgery before.
This account was given for the first time in cross-examination, only after the joint experts' report had been received and Mrs Jambrovic had been cross-examined. Had Dr Day given this advice in 2011, it should not only have been referred to in his statement, but also put to Mrs Jambrovic in cross-examination. That it was not, understandably led to the submission that it would be concluded that Dr Day feared the result, if it were to be put to her: Commercial Union Assurance Company of Australia v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 481 - 419.
Dr Day's evidence was that, in fact, he had "very little direct memory of this consultation". He explained in detail in his affidavit, as to what he "would have" told Mr and Mrs Jambrovic in March 2011, given his usual practice. In that context, it seems likely that if he had then told Mr and Mrs Jambrovic about his lack of experience in the surgery he recommended, he would have dealt with it in his 2016 affidavit, if that had formed part of his usual practice. That he raised this only in cross-examination, as he did, has led me to the conclusion that his evidence about giving such advice, cannot be accepted.
The experts' view was that Dr Day should have told Mr and Mrs Jambrovic about his lack of experience in the procedure which he recommended. What Dr Day should also undoubtedly have disclosed was that he had neither the available training nor observed the difficult procedure he recommended.
The decision which was made at the consultation, was to have Dr Day perform a difficult procedure which he had never performed before and which carried very serious risks of complication. They were much more serious than the risks which conservative treatment posed for Mr Jambrovic. They included risks of the kind which Mr Jambrovic wanted to avoid, including stroke. On the basis of Mrs Jambrovic's cross-examination, the procedure also carried the risk of death.
That being so, on Dr Day's case, the decision to proceed with surgery, in order to deal with intermittent, albeit persistent headaches which the surgery might not even cure, was made despite Dr Day having advised at the consultation, about the comparable risks of the surgery and the available conservative treatment, as well as that he had never performed such surgery before. That is improbable.
That the decision to have this procedure, rather than initial conservative management, would have been made, had Dr Day given all the advice he claimed to have given, is quite implausible. That the decision to have this surgery was made at a one hour consultation, without any time being taken to consider which of the available alternative options should be pursued, or another opinion being obtained, supports this conclusion.
On Dr Day's own evidence, Mr Jambrovic's tumour was a benign, slow growing tumour which might not have been causing his headaches at all and the proposed surgery might not have cured those headaches. In those circumstances, choosing surgery rather than the conservative option, which involved treating the oedema and headaches, while continuing to observe the tumour, would have been entirely irrational. On the evidence Mr Jambrovic was not an irrational man. To the contrary he had rejected Dr Day's advice in 2009 to have other surgery, given his symptoms.
In the result, I am satisfied that Dr Day's evidence cannot be preferred over that of Mrs Jambrovic, as to the advice which he gave on 2 March 2011. That advice left Mrs Jambrovic with the understanding which she explained. That is, that the preferable course was to allow Dr Day to surgically remove the tumour endoscopically, to deal with Mr Jambrovic's headaches, which the oedema was likely causing and to address the risk of stroke and dementia which he then faced, if the tumour was not removed.
Mrs Jambrovic's evidence provides an entirely rational explanation for why Mr Jambrovic, an otherwise fit, healthy and active 73 year old man, suffering from headaches which were not serious enough to impede the heavy manual work he was then performing, even on the day before his surgery, or to preclude him from leading the active family and social life he was then enjoying, agreed to have a surgeon who had never undertaken a surgical procedure (which carried very significant risks of catastrophic injury) perform surgery in which he was not trained or experienced.

How was the decision to have surgery made?

Mrs Jambrovic's evidence was that she and Mr Jambrovic together decided that he should pursue the surgery which Dr Day advised.
It was common ground that both during the consultation and afterwards, Mrs Jambrovic was upset. How upset and what impact that had on her involvement in the decision to pursue surgery, was in issue.
In cross-examination, while she denied that Mr Jambrovic had told Dr Day that he did not want to have further scans, as was Dr Day's evidence, she agreed that he had said that he wanted to proceed with the surgery, she said, because that was what they had agreed.
Mrs Jambrovic also said that she and Mr Jambrovic had not left the consultation room to discuss that decision; that in fact they had not discussed it, but that still, together they had decided to proceed to prevent what they had been told could happen, if he did not have the operation. She also agreed that Mr Jambrovic had not then showed how upset he was, she said because he did not want to upset her further.
Mrs Jambrovic's evidence accorded with what Dr Day said in his statement, that there was mainly non-verbal interaction between Mr and Mrs Jambrovic at the consultation and that she got more upset, as it progressed.
Dr Day described Mr Jambrovic as then appearing to be confident and forthright and Mrs Jambrovic quiet and increasingly upset. It was in his oral evidence that Dr Day said that he did not have an actual memory of much of the consultation, but he then remembered that Mrs Jambrovic had said things to her husband, "to try to get him to not proceed with agreeing to have surgery", which he had also not referred to in his statement. Dr Day could not, however, remember anything specific that she had said that day.
On 2 March 2011, after the consultation Ms Luscombe dealt with Mr and Mrs Jambrovic. Steps were then taken to book him in for surgery at Wollongong Hospital on 31 March. He was also referred for an MRI. When they saw Ms Luscombe Mrs Jambrovic was still upset, while Mr Jambrovic remained calm. Ms Luscombe described Mr Jambrovic as having then reassured Mrs Jambrovic, as Mrs Jambrovic accepted.
While Mrs Jambrovic accepted that there were various things which she could not remember about what was said that day, she denied then expressing concern that the surgery was scheduled to take place on their wedding anniversary, as was Ms Luscombe's evidence.
I accept that Mrs Jambrovic, while still upset, referred to 31 March being their wedding anniversary, as was Mrs Luscombe's evidence. That Mrs Jambrovic mentioned this, when she realised the significance of the date of the surgery, explains how Ms Luscombe came to know about it being their anniversary date.
I do not accept, however, either the evidence of Dr Day or that of Ms Luscombe, that Mrs Jambrovic argued with Mr Jambrovic, and objected to him having the surgery, which she denied having done.
Had that been the case, it is unlikely, given the usual practice Ms Luscombe described, which included alerting Dr Day to the existence of such a disagreement between family members (when it came to her attention), that the decision to have the surgery would have been made on 2 March. That Ms Luscombe did not act in accordance with her usual practice in Mr Jambrovic's case, suggests that there was no disagreement between Mr and Mrs Jambrovic for her to report, as was Mrs Jambrovic's evidence.
That is supported by there being no evidence of any disagreement about the surgery being raised by either Mr or Mrs Jambrovic, when they later told their daughters (one of whom is a nurse) and their grandson, that Dr Day had advised that Mr Jambrovic needed surgery, which was to proceed on 31 March.
Further, the MRI which Mr Jambrovic later underwent disclosed that his tumour was smaller than Dr Day had measured it to be, being only 2.7cm in length and 1.5cm in depth, not 3.5cm. That this was not conveyed to Mr Jambrovic and advice given about what this meant for the decision to pursue surgery, was consistent with there not having been any disagreement between Mr and Mrs Jambrovic on 2 March, about the surgery proceeding. Had Dr Day been aware of such a disagreement, it would seem likely, given the practice that Ms Luscombe described, that he would have revisited the decision to have the surgery with Mr and Mrs Jambrovic.
On all of this evidence, that there was not a verbal discussion between Mr and Mrs Jambrovic at the consultation about pursuing the surgery, before Mr Jambrovic said that he would have it, does not preclude Mr and Mrs Jambrovic having together agreed that it should be pursued - as was Mrs Jambrovic's evidence.
In the case of a long married couple such as Mr and Mrs Jambrovic, that she could have communicated her agreement to that course non-verbally, upset as she was, must be accepted. Indeed, that having occurred was consistent with Dr Day's statement, where he said that was the way that Mr and Mrs Jambrovic had communicated with each other at the consultation.
Mrs Jambrovic's evidence was that both she and Mr Jambrovic were upset by the advice Dr Day gave them, that Mr Jambrovic required surgery if he was to avoid the risk of stroke and dementia and ending up in a wheelchair, but only she visibly so. That being so, that in their non-verbal communication Mr and Mrs Jambrovic had agreed that he should have the surgery, is entirely possible.
Even if Dr Day's oral evidence that Mrs Jambrovic had tried to dissuade Mr Jambrovic from having the surgery was accepted, that would not have precluded Mrs Jambrovic having finally agreed that he should have it, as was her evidence. Given what Dr Day advised as to the risks of Mr Jambrovic not having the surgery, continuing headaches, dementia and stroke, that the decision to proceed was made by Mr and Mrs Jambrovic to avoid those risks, was understandable.
In the result, I am satisfied that it must be concluded that the decision to have the surgery was made together by Mr and Mrs Jambrovic at the consultation, when they accepted Dr Day's advice that Mr Jambrovic should have the surgery, as was Mrs Jambrovic's evidence.

Should Dr Day have recommended the surgery he performed?

As was accepted for Dr Day in final submissions, if the experts' common views that the surgery should not have been recommended or performed by Dr Day are accepted, a finding that he had breached his duty to Mr Jambrovic must follow.
I am satisfied that those views must be accepted.

Dr Day did not have the necessary training or experience in the procedure

On the expert evidence of Professor Harvey, Dr Santoreneos and Associate Professor Weidmann, the growth rates of a benign meningioma tumour can vary from very slow, to atypical growth consistent with malignant tumours. Their location in the brain can make their surgical removal challenging, giving rise to the risks which materialised in Mr Jambrovic's case from the procedure which Dr Day performed on 31 March 2011. Mr Jambrovic's complications were recognised complications of that procedure, which the experts agreed occur less frequently with experienced surgeons.
This evidence establishes that the considerable risk of injury which the surgery which Dr Day undertook inevitably poses, are reduced when such surgery is performed by a surgeon trained and experienced in the procedure.
Dr Day was, undoubtedly, an experienced surgeon who considered himself qualified to undertake the procedure he recommended to Mr Jambrovic on 2 March. There was no issue, however, that he had not undertaken the available advanced fellowship training for endoscopic surgery on such a skull based tumour.
In the joint report the experts agreed that Dr Day probably did not have the experience to perform this surgery, which involved an endoscopic nasal approach to the anterior skull base, given that he was not fellowship trained in endoscopic skull based surgery; he had not observed such surgery live; nor had he performed a number of cases of intermediate complexity, other than pituitary surgery. The experts also agreed that Dr Day ought to have disclosed his lack of experience to Mr Jambrovic and discussed it with him, before the decision to have the surgery was made.
While Dr Day undoubtedly genuinely held the belief that he was appropriately qualified to have undertaken this surgery, I am satisfied that he was not, given the views to which the experts came, when considered in light of the evidence I have already discussed.
For the reasons earlier explained, I am also satisfied that Dr Day did not disclose his lack of experience and training to Mr Jambrovic, as he ought to have, at the 2 March consultation.

Should Dr Day have recommended this procedure or performed it?

The case advanced for Dr Day in final submissions was that his evidence established that he thought that Mr Jambrovic's meningioma was most likely benign and slow growing, but that it was the presence of oedema which gave him concern and had led him to conclude that without surgical excision, it was unlikely to resolve. Further, that it was Mr Jambrovic who was concerned about his persistent headache and their progression; that he wanted a solution to his headaches; and that having weighed the competing risks, he wanted to pursue surgery.
Even accepting that there was a proper basis for Dr Day's views about the risks then posed by the oedema, with which the experts disagreed, there is no evidence that he told Mr Jambrovic that surgery might not cure the headaches, as was also Dr Day's view, even as part of what he said was his usual practice. Further, on the expert evidence, he should not have recommended any surgical procedure, despite Mr Jambrovic's headaches and he should have informed him that the surgery might not cure the headaches.
While the experts agreed that the procedure which Dr Day performed was appropriate for a consenting patient, given Mr Jambrovic's age and the nature of his tumour, they also considered that there should have been further investigation into the rate of growth of his tumour and its potential consequences, prior to any surgery.
There is no question on the expert evidence, that there was a risk of adverse consequences for Mr Jambrovic, if the tumour grew untreated, but that risk was not immediate. Dr Day saw Mr Jambrovic on 2 March and did not perform the surgery until 31 March. On the expert evidence, it ought not then to have been performed, by Dr Day, or at all.
The experts particularly agreed in the joint report that: 1. Appropriate management of Mr Jambrovic's tumour could have included "observation, analgesia or surgical excision. Investigation of pituitary and visual assessment was not critical but would have been a routine investigation in many centres and normal assessment would have supported conservative treatment. Other imaging was otherwise appropriate." 2. Further management, investigation and treatment of pituitary and visual assessments being within normal limits would have supported a trial of initial conservative treatment. If there was demonstrated growth, or if symptoms or impairment had progressed, then surgery should have occurred. 3. Dr Day's recommendation on 2 March for surgery without further investigation, fell within the expectations of a competent neurosurgeon. But, if Ms Jambrovic's evidence as to the advice he gave that day was accepted, Dr Day fell short of the expectations of a competent neurosurgeon, in relation to the option of conservative treatment involving observation and serial imaging.
In the concurrent evidence, while it was agreed that surgery was a reasonable option in Mr Jambrovic's case, it was considered that it was unreasonable for Dr Day to have presented the alternative conservative option of observation and monitoring of the tumour to Mr Jambrovic, as a poor option.
As a 73 year old man, Mr Jambrovic had another 11 years life expectancy. The experts considered that there was a significant possibility that he might have later required surgery, but further observation would have provided a clearer picture of any tumour growth. That course and its risks also had to be clearly explained to Mr Jambrovic, before surgery was pursued. As I have already explained, I am satisfied that Dr Day did not give such an explanation.
The experts also agreed that usually, as was Mr Jambrovic's case, when a tumour is not causing a functional problem and there are ambiguous symptoms such as headaches, memory loss, or dizziness which may not immediately be attributable to the tumour, a conservative approach is adopted. That does not depend on tumour size.
Nor should it be overlooked, I consider, that before the surgery, Dr Day did not disclose to Mr Jambrovic the error in his first measurement of the tumour, or advise him about the consequences of its smaller size, before the surgery was pursued.
The experts further agreed that Mr Jambrovic's tumour was not life-threatening. That is why conservative treatment is often recommended in such cases. They agreed, however, that the presence of oedema had an impact on the interval period for initial surveillance, to make sure that early or rapid growth was not present.
The experts also considered that if there was a concern that Mr Jambrovic's headaches were due to intracranial pressure, that would influence his management plan, so that further imaging would be done more frequently. Mr Jambrovic, however, had a small tumour, without significant mass and with ample space around it. The experts concluded that this meant that the presence of oedema was not critical in the decision making as to treatment in his case, although it required careful monitoring.
It was also agreed that while even slow growing tumours of the kind Mr Jambrovic had, can grow aggressively, his was small and he had only incidental or minimal symptoms at 2 March 2011.
When all of this evidence is considered together with Dr Day's lack of training and experience in the surgical procedure which he recommended and performed, I am satisfied that it must be found that he breached his duty to Mr Jambrovic, not only in failing to inform Mr Jambrovic of his lack of experience and training in that procedure, but also in actually performing that surgical procedure.
Not only should the relative risks of a conservative approach have been more accurately presented to Mr and Mrs Jambrovic than they were at the 2 March consultation, an initial period of observation of the kind the experts agreed would have been more appropriate in Mr Jambrovic's circumstances, was a course which Dr Day should have not only advised Mr Jambrovic about, but one which he should have recommended.
The result of Dr Day's advice was that Mr Jambrovic was not given a real opportunity to choose between available treatment options for his condition. Nor was he properly advised about the low risks which initial conservative management in the first instance carried in his circumstances, by comparison to the high risks of the surgery Dr Day recommended.
In the result, it must also be concluded that the risks which materialised for Mr Jambrovic were foreseeable; that they were risks of which Dr Day knew, or ought to have known; that they were not insignificant; and that in Mr Jambrovic's circumstances, a reasonable person in Dr Day's position would have taken the precautions which the experts agreed should have been taken. They were advising Mr Jambrovic as to the preferable course in his circumstances, namely initial conservative treatment before any decision to pursue surgery was made. Further, given his lack of experience and training in the procedure he recommended, Dr Day should have also disclosed this to Mr Jambrovic and should not himself have undertaken that surgery: Civil Liability Act, s 5B.
Accordingly, I am satisfied that the breaches of duty alleged have been established.

Causation

While not identified as an issue, causation was also addressed in the final submissions advanced for Dr Day. The onus fell on Mr and Mrs Jambrovic to prove causation: Civil Liability Act, s 5E. Section 5D also applies, providing as it does: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."
The question is what Mr Jambrovic would have done, if he had been properly advised of four matters. First, that the headaches which he was suffering, which could have been caused by his oedema, might not be cured by surgery. Secondly, of the relative risks of the two available options. Thirdly, that Dr Day was not qualified to perform the surgery he recommended. Fourthly, that in the first instance, conservative management should have been pursued
On the evidence, I am satisfied that had Mr Jambrovic been properly advised about all of these matters, he would then have been referred to a surgeon who was qualified to perform the surgery, Dr Day recommended, before any decision to have that surgery was made. In that event, he would have received advice of the kind which the experts gave evidence about, which I have discussed.
Having received that advice, given the relative risks of the recommended procedure, as opposed to conservative treatment, in the first instance Mr Jambrovic would not have pursued surgery. If surgery proved to be necessary later, after conservative management, because of tumour growth or the consequences of increased oedema, in the hands of an experienced and trained surgeon his risk of suffering the complications of the surgery which materialised on 31 March 2011, would have been considerably less. In fact, those complications might not have materialised at all.
I do not accept, as was argued for Dr Day, that had he disclosed his lack of experience to Mr Jambrovic, he would have elected to have Dr Day perform a craniotomy.
This is because of the risks which that surgery carried and the significantly lesser risks of conservative management, particularly in the immediate term. Further, it cannot be accepted that in those circumstances, Dr Day would have recommended a craniotomy. Dr Day had not recommended a craniotomy as the appropriate procedure in Mr Jambrovic's case. To the contrary, he advised that the trans nasal approach was the cleaner and more modern procedure. On his evidence it carried fewer risks than a craniotomy. That his advice would have altered, if Mr Jambrovic did not wish to be the first patient on whom Dr Day performed the surgery he recommended, does not follow.
That Mr Jambrovic would not have had Dr Day perform a craniotomy in those circumstances, is also supported by his decision in 2009, not to undergo the surgery Dr Day then recommended, when his symptoms settled down. Undoubtedly he was a stoic man, as was argued for Dr Day. It does not follow that if properly advised, Mr Jambrovic's stoicism would have resulted in him preferring to have Dr Day perform a craniotomy, rather than to be referred to a surgeon trained and experienced in the modern procedure Dr Day recommended, even if he wished to have surgery, rather than pursue conservative treatment.
In the result, I am also satisfied that causation has been established.

Damages

There was expert evidence led from Dr Buckley, Ms French, Dr Davies, Dr Dalton, Professor Philips and Dr Brown.
Damages for Mrs Jambrovic were agreed, with non-economic loss assessed at 33% of a most extreme case.
For Mr Jambrovic, it was conceded that down the track, he might still have come to surgery, a possibility assessed by Dr Santoreneos at 20%, such surgery having an inherent 5 to 10% risk of adverse complications of the kind which materialised, but with the risk less likely to materialise, if the surgery was undertaken by an experienced surgeon.
In the circumstances, it was submitted that there would be a discount of as little as 1%, for damages for his future care, resulting from adoption of the approach discussed in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20. For Dr Day it was argued that the discount should be as high as 20-25%, given the possibility that the meningioma would grow, or the oedema increase, while conservative treatment was pursued, with the result that surgery would have occurred in any event.
It is impossible to be certain as to what would have transpired, had other available courses been pursued. Given all that I have already discussed, I am satisfied that there must be some discount, but not at the level which either party proposed. I consider that when the risks of this surgery are considered in light of the lesser risk of their materialisation, had a surgeon trained and experienced in the type of surgery Dr Day undertook and the experts' views as to the likelihood that there might have been a need for Mr Jambrovic to have surgery at some future time, if conservative treatment had been pursued in March 2011, I have concluded that there should be a 3% discount on a Malec v JC Hutton basis.
Damages agreed for Mr Jambrovic were: "1. NON ECONOMIC LOSS at 90% of a most extreme case 2.1 PAST DOMESTIC ASSISTANCE at a set figure and an ongoing weekly amount, until judgment. 2.3 THERAPY/CASE MANAGEMENT 5. PAST OUT OF POCKET EXPENSES 7. FUNDS MANAGEMENT, on a figure yet to be agreed."
What was not agreed was: "2.2 FUTURE DOMESTIC ASSISTANCE 2.4 GARDENING AND OTHER MAINTENANCE ACTIVITIES 2.5 TRAVEL ALLOWANCE 3. EQUIPMENT NEEDS AND HOME MODIFICATIONS 4. ACCOMODATION FOR CARER 6. FUTURE OUT OF POCKET EXPENSES"
As to the matters which were not agreed, I have reached the following conclusions.
The claim for equipment and home modification, reflecting as it does the cost of the materials used by Mr Dennis to undertake the modifications Mr Jambrovic required to the family home, of some $10,000 must succeed, that finally being agreed by Dr Day in further submissions provided after the hearing.
Given the nature of Mr Jambrovic's physical and cognitive problems, some of which have improved over time; the ongoing consequences of all of his injuries, including the impact of his impaired sight on his ability to walk, discussed in Ms French's report; his reduced stamina; his frequent feelings of frustration and anger; and his disrupted sleep patterns, I am satisfied that his conditions will continue to expose Mr Jambrovic to risk of falls, despite the views of Dr Dalton about the improvement of some of his symptoms, including dizziness and balance problems.
In the result, I am also satisfied that a proper basis for the claim for future physiotherapist treatment twelve times a year has been established, to address this ongoing risk.
As to the method of delivery of the 24-hour care it is agreed that Mr Jambrovic requires, it is necessary to take into account the impact of his brain injury on every aspect of his functioning. It is also necessary to have regard to the evidence of both the improvements and decline in the various aspects of Mr Jambrovic's condition over time, as well as the care he continues to require and receive from Mrs Jambrovic, with the considerable assistance given by other family members, as well as all of the evidence as to his ongoing current needs.
Account must also be taken of Mrs Jambrovic's evidence, that she wishes to continue providing Mr Jambrovic's care herself, but given her own age, health and Mr Jambrovic's considerable ongoing needs, particularly at night, it is not realistic to conclude that she can continue to provide that care at the level she has provided it to this point, and in the long term, at all. Nor is it realistic to assess these damages on the basis that other family members can provide the care which Mr Jambrovic continues to require.
This claim is based on commercial carers meeting Mr Jambrovic's needs in the future. It reflects the cost of 24-hour commercial care, addressed in Ms French's report.
Dr Day pressed for a calculation for the first four years based on Mrs French's "package care", of 40 hours per week voluntary domestic assistance and for commercial care at 12 hours per day, for 5 days per week. Thereafter no voluntary care, but packaged care on the basis explained in Mrs French's report, with additional domestic assistance of two hours per week.
I am satisfied that the approach urged for Dr Day cannot be accepted.
That either Mrs Jambrovic, or other family members can in the future realistically continue providing the care that they and Mrs Jambrovic may prefer to continue providing Mr Jambrovic, particularly at night, for the period proposed, cannot be accepted. When the agreement which the parties reached as to Mrs Jambrovic's circumstances and the evidence as to her other health problems are taken into account, this conclusion is unavoidable. It is also supported by Mr Dennis' evidence as to his inability to sleep in the house, given Mr Jambrovic's night time activities, and Mrs Jambrovic's evidence as to what Mr Jambrovic's night time care at times requires, when he is active and agitated.
The packaged care on which Dr Day relied, proceeds on an assumption that initially there would be an active night shift to care for Mr Jambrovic at night and thereafter, care provided by way of a sleepover shift, at lesser expense. That involves an assumption of improvement in aspects of Mr Jambrovic's condition, with, for example occupational therapy and Mrs Jambrovic's health being such that she could continue to be involved in his care. Given her ongoing problems with her neck, knees and spine and the unlikelihood of Mr Jambrovic's condition improving, this conclusion is not open.
On the evidence, the ongoing care which Mr Jambrovic requires cannot be provided by Mrs Jambrovic or other family members, without commercial care at night. There is no evidence on which it could be safely concluded that Mr Jambrovic's condition will further improve, so that his night time care needs will diminish over time. To the contrary, I am satisfied that there is a present need for that assistance, which will continue and may even increase.
In the concurrent evidence Mr Dalton and Dr Buckley disagreed over whether there was also a need to engage a housekeeper, to assist the carer with heavier tasks and some domestic chores. I am not satisfied that a basis for the claim has been established, notwithstanding all that I have discussed.
I do accept, on all of the evidence I have discussed, that it is likely that some of the voluntary domestic assistance that Mr Jambrovic has been receiving, at levels which have well exceeded 40 hours per week to this point, will continue for a time. That will continue to be driven by Mrs Jambrovic's desires and the capacity and desires of other family members to continue providing assistance. But, given Mrs Jambrovic's own health needs and the ongoing demands of Mr Jambrovic's care, this assistance will continue to diminish over time.
In the result I have concluded that the calculation should be undertaken on the basis that voluntary care at 40 hours per week will continue for no longer than 12 months. Thereafter, Mr Jambrovic will require 24-hour commercial care on the basis claimed.
These conclusions preclude an award for carer's accommodation. Had I accepted that after time Mr Jambrovic's care at night could have been provided by a sleepover shift, damages on this basis would have had to be awarded. Given an award for the cost of care on a 24-hour commercial basis, however, there can be no award for carers accommodation.
As to the gardening and maintenance claims, Mr Jambrovic was in the past a keen gardener and now is not. Whether there was a need for such damages, given that Mr Jambrovic is approaching 80 years, was in issue. Dr Day finally urged an award of gardening and handyman expenses at commercial rates for five years, that reflecting the application of the Malec v Hutton principles.
I accept that submission as reflecting a proper application of those principles to the evidence I have discussed. But for the surgery, in all likelihood Mr Jambrovic would have continued gardening and maintaining his house, but at some point, that would have necessarily come to an end.
As to the travel claim, Mr Jambrovic was no longer able to drive after the surgery. The claim was for damages calculated on the basis of the cost of taxi travel, at $40 per month. No alternative was advanced for Dr Day. That sum is modest and the evidence well establishes a basis for awarding such damages.
The parties will have to undertake the calculation of the amount of damages which reflects these conclusions. If there is any disagreement as to those calculations, I will hear the parties.

Orders

For the reasons given, there must be judgment for Mr and Mrs Jambrovic.
The usual order as to costs under r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) is that costs as agreed or assessed follow the event. That would be an order in favour of Mr and Mrs Jambrovic. If the parties seek some other order, they will be heard.
The parties should file proposed orders within 21 days.

Amendments 01 November 2017 - typographical amendments to [15] heading, [44], [125], [131] and [158]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 November 2017

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