Michael Shane Neal v Ambulance Service of NSW and The State of NSW

District Court of NSW|2007-06-06|Before: Mr J

CITATION: Michael Shane Neal v Ambulance Service of NSW and The State of NSW [2007] NSWDC 123 This decision has been amended. Please see the end of the judgment for a list of the amendments.

DECISION: 1.Verdict for the plaintiff as against the first defendant in the sum of $99,336.52.; 2.The first defendant to pay the plaintiff's costs as agreed or assessed.; 3.Verdict for the second defendant.; 4.The plaintiff to pay the second defendant's costs but only insofar as such costs relate solely to the case as against the second defendant.

Plaintiff: Michael Shane Neal PARTIES: First Defendant: Ambulance Service of New South Wales Second Defendant: The State of New South wales

COUNSEL: Plaintiff: Mr J Gormly, SC with Ms K Nomchong First and Second Defendant: Mr Craddock with Ms Avenell

SOLICITORS: Plaintiff: David H Cohen & Co First and Second Defendants: I V Knight, Crown Solicitor

1 The plaintiff was born on 3 August 1962 and has lived in Boorowa all his life. Boorowa is about 65 kilometres from Yass.

2 He arrived in Newcastle on Wednesday 25 July to visit family and friends. On Friday 27 July 2001 he met a friend Heath Power. In the evening they went into the centre of Newcastle by train. The plaintiff started drinking beer at about 7 p.m. They spent the night in two pubs. The plaintiff could not remember how many beers he had consumed.

3 The plaintiff left the Royal Oak Hotel at around 11.30 p.m. to go to Hamilton Railway Station. The plaintiff missed his train and decided to go and get a meal. He had walked 70 to 80 metres past the railway entrance when he felt a big thump to the left side of his head. He saw stars and smelled blood. He had been assaulted by an unknown person and sustained a head injury either when he was hit or as he fell to the ground.

4 Constable Fuhrer was in a police van with Constable Cosgayon when he noticed the plaintiff in a sleeping position on the footpath. They stopped and went to have a look. As Constable Fuhrer tried to rouse the plaintiff he saw droplets of blood on the driveway and a small nick on the plaintiff's head. Constable Cosgayon also saw a small cut on the top of the plaintiff's head with a small amount of blood.

5 The plaintiff's speech was slurred, what he said did not make a lot of sense and he was not particularly coherent. They both thought that he was well affected by alcohol. They were unable to find out his name or address or what had happened to him. They called an ambulance because of the head injury.

6 Two ambulance officers arrived in an ambulance. Lorelle Chapman was the treating officer. She had been a registered nurse since January 1999 and was a probationary ambulance officer at the time of the plaintiff's injury.

7 Ms Chapman tried to examine the plaintiff. He told her that there was nothing wrong with him. She told him that the police were upset that he had a bit of a bump on the head and that she would like to look at it. The plaintiff repeatedly said that he had not given her permission to examine him, he knew his rights and he could not be examined without permission. He knocked her hands away. He was putting his hand on his head, rubbing it and saying, "Look no blood". She made several attempts to persuade the plaintiff to co-operate.

8 Ms Chapman asked a police officer to shine the torch on the back of the plaintiff's head. She saw a contusion and an area of dried blood which was very dry and flaky. She touched the area from behind a couple of times. That action did not elicit a painful response from the plaintiff. She did not feel a boggy mass which would have indicated bleeding or a depressed skull fracture. The only abnormality she felt was a hard swelling like an egg. He did not complain of pain. There was no clear fluid running from his ears or nose. His speech was not slurred and he had no dysphasia. He had purposeful movement in all his limbs, he was co-ordinated enough to push her hand away a couple of times and she inferred that he had equal power in his limbs from the way he was moving them. She saw that he could weight bear on his legs. His breathing was a good rate and depth. He had a good colour. Ms Chapman was unable to assess his pupils for size and reaction.

9 Adam Butt was the other ambulance officer. He had seven years service. He saw Ms Chapman having some difficulty in her assessment so he tried to help. He took over a device to take the plaintiff's blood pressure. The plaintiff said that he had not given his permission to be touched and Mr Butt did not take his blood pressure. He had a quick look at the plaintiff's wound. The plaintiff wiped his head where the wound was and showed Mr Butt his hand and said, "There's no blood there".

10 They both thought that the plaintiff was intoxicated.

11 Ms Chapman said that if the plaintiff had been willing to go to hospital they probably would have taken him because he had a laceration and a bump on his head. She was aware that there was a risk of a haematoma and that any head injury could be a significant head injury.

12 Mr Butt said that if the plaintiff had not refused help he would have taken the plaintiff to the hospital. He believed that the plaintiff required medical assessment because there could have been a significant head injury. The ambulance protocol required a person with a head injury to be taken to a hospital where he or she could be examined and tested by medical practitioners who had the capacity and the equipment to detect whether it was a significant injury.

13 The police officers saw that the plaintiff would not let the ambulance officers examine his head. They heard the ambulance officers ask the plaintiff several times whether he wanted to go with them to the hospital. The plaintiff was brushing their hands away and was not co-operating.

14 The ambulance officers decided to leave and told Constable Fuhrer that they could not treat the plaintiff if he did not want to be treated.

15 The police officers took the plaintiff to Newcastle Police Station because they could not find out his address. Senior Constable Mark Keaping was the custody officer. He received the plaintiff at Newcastle Police Station under the Intoxicated Persons Act 1979. Constable Fuhrer completed a form on which he stated "IP refused treatment and would not identify place of abode"

16 Senior Constable Keaping was aware that the plaintiff had been seen by ambulance officers and they had not been able to complete their examination. He noticed a very minor lump on the plaintiff's head but did not inspect it closely. He assessed the plaintiff as having a very minor injury and did not believe he had to arrange a medical examination of the plaintiff under the relevant protocol.

17 There is video evidence of the plaintiff at the police station. He is depicted walking into the charge room and being placed in the dock area. He apparently was asked to give up some personal items. The police officers appear to be having a conversation with the plaintiff. The contents of his wallet were emptied onto the desk. The plaintiff went into a cell at 3.11 am.

18 The Code of Practice required the police to check the plaintiff every half an hour and wake him up every half hour for the first two hours. Senior Constable Keaping first checked the plaintiff at 3.45. The plaintiff had vomited within the first hour or so. Senior Constable Keaping did not know that vomiting can be a sign of a head injury. He noted "seen, spoken to, still would not give address".

19 At 4.12 the plaintiff was "seen woken and went back to sleep". He was observed sleeping at 4.50, 5.11 and 5.29. He was woken and spoken to again at 6.10 a.m. He was observed sleeping at 6.45, 7.29, 7.46, 8.06, 8.39, 9.16, 9.34 and 10.34.

20 At 11.05 a.m. Senior Constable Ross Payne entered the cell and tried to rouse the plaintiff. He was conscious but unable to stand. They called an ambulance. He left in the ambulance for the Mater Hospital at 11.22.

21 The plaintiff was assessed at the Mater Hospital at 12.00 where he was recorded as being combative and smelling of alcohol. He resisted being undressed and having his observations taken. He was referred for a CT scan at 13.20 and it was done at 14.00. It showed a left acute extradural haematoma.

22 The plaintiff was transferred to John Hunter Hospital at 15.15 and he was taken to surgery at about 17.00.

23 There are a number of allegations of negligence against each defendant in the statement of claim. 24 However in submissions senior counsel for the plaintiff only relied on the following:

25 As against the Ambulance Service there are two relevant bases on which the plaintiff claims it was negligent through the actions of the ambulance officers. Firstly they should have spent longer trying to persuade the plaintiff permit a full examination and/or be taken to hospital.

Secondly the ambulance officers should have informed the police officers that they had been unable to complete their examination of the plaintiff, there was a possibility of a serious injury and he needed to be taken to hospital to have the head injury thoroughly checked.

26 Senior counsel for the plaintiff expressly withdrew any allegation of negligence based on the following: · That the plaintiff should have been physically restrained in some way to ensure that a proper examination could be undertaken. · That the ambulance officers should have forcibly transported the plaintiff to hospital.

27 As against the Police Service, there are again two bases on which the plaintiff claims it was negligent through the actions of the police officers. Firstly they were aware that the ambulance officers had not been able to fully examine the plaintiff. They knew he had a head injury. They should have taken him to a hospital rather than the police station.

Secondly, when the plaintiff was brought to the police station, the custody manager knew that the ambulance officers had not been able to complete their examination. He knew the plaintiff had a head injury. He should have arranged for the plaintiff to be taken to hospital. Scope of duty of care

28 The defendants say that they did not owe the plaintiff a duty of care.

29 Counsel for the defendant relied on those decisions of the NSW Court of Appeal where an occupier was held not liable for an injury to a person where the injury was caused by the criminal behaviour of strangers. (Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 and State of New South Wales v Napier [2002] NSWCA 402).

30 I am not persuaded that these principles apply in these proceedings. Police and ambulance officers regularly attend persons who have been injured through a variety of causes. The causes are incidental.

31 Counsel for the defendant also relied on the decision of the NSW Court of Appeal in State of NSW v Napier supra where the elements relevant to the determination of the duty of care were discussed. The defendant says that the plaintiff has not established the elements of vulnerability, assumption of responsibility and control as set out in that decision.

32 In relation to vulnerability, it was submitted that the plaintiff was vulnerable but not vulnerable to the actions of the Ambulance Service. He was vulnerable in the sense that he was heavily intoxicated, had a head injury and might not take sensible decisions in his own interest.

33 In relation to assumption of responsibility counsel for the defendant relied on the plaintiff's refusal to be assessed by the ambulance officers.

34 Lastly, counsel for the defendant submitted that control must be exercised by a defendant over the source of the risks. The ambulance officers were never in any sense in control of the plaintiff. The risk in this case arose from the injury to the plaintiff caused by a third party in circumstances where the plaintiff was entitled to reject their offers of assistance.

35 It seems to me however that this submission is predicated on the assumption that there must be some type of "consent" before any substantive duty arises on the part of the ambulance service. This proposition conflicts with the general concession made by counsel for the defendant that both defendants do owe a duty of care to persons with whom each defendant has professional contact. This was discharged by the ambulance officers if they did that which was reasonably possible in the circumstances to assess the plaintiff.

36 In my view the relevant proposition is that the obligation to exercise care, undoubtedly imposed by law on the Ambulance Service in relation to its patients, is not an abstract duty but a duty which applies to the practice of paramedics attending at emergencies to stabilise a patient and convey him or her to hospital as necessary. (Ambulance Service of NSW v Worley (2006) NSW CA 102). In some cases the refusal of a patient to participate in an examination may exhaust the responsibility of the ambulance officers.

37 However in this case the ambulance officers attended. They attempted to examine the plaintiff. They were unable to conduct a full examination. They were conscious that they were not permitted to examine the plaintiff against his will or forcibly transport him to hospital. They nevertheless also understood that any head injury can be significant. They also both appreciated that the possible severity of the plaintiff's head injury could only be further investigated at a hospital. They left the plaintiff in the custody of the attending police officers.

38 Mr Butt said that he did not tell the police that the plaintiff may have a head injury and should be medically assessed. He said that in hindsight he should have done so.

39 I find that the ambulance officers should have articulated the possible consequences of their inability to complete their examination to the attending police officers. Those police officers did not have any formal medical or paramedic training. While they knew the plaintiff had a head injury they did not appreciate the possible consequences of the head injury. There was no reason for the ambulance officers to believe that the police officers had any appreciation of the possibility that the small laceration they could see at the back of the plaintiff's head could lead to a loss of consciousness and brain damage.

40 I am satisfied that the ambulance officers breached their duty of care to the plaintiff in failing to inform the police officers:

Of the possible consequences of their inability to fully examine the plaintiff.

That the plaintiff should be taken to a hospital to be medically assessed.

41 I do not consider however that the evidence establishes that the ambulance officers spent insufficient time trying to persuade the plaintiff to co-operate in the examination and/or go with them to a hospital. They continued trying until they formed the view that the plaintiff's attitude was unlikely to change.

42 The expert evidence only establishes that, in some cases, if an unlimited amount of time is available, some patients may be persuaded to co-operate. The evidence relating to the work practices of triage nurses and other staff at emergency wards is not evidence that these ambulance officers were negligent in the performance of their duty.

43 I accept the primary submission made by counsel for the defendant which is that the plaintiff was entitled to stay on the street. The police could only detain him to take him to a police station or a hospital if there was a power at common law or under a statute.

44 In this case the plaintiff relies on the Intoxicated Persons Act 1979 (as it was at the time of the plaintiff's accident).

45 Counsel for the defendant submitted that the police did not have the power to transport the plaintiff to hospital as it was not within the scope of power given to them to by the Intoxicated Persons Act.

46 The Act provides that a police officer may detain an intoxicated person who is in need of physical protection because the person is intoxicated (Section 5 (1) (d)). That intoxicated person is to be taken to and released into the care of a responsible person willing immediately to undertake the care of the intoxicated person (Section 5 (3)).

47 It is common ground that the plaintiff was an intoxicated person. "Responsible Person" is defined as follows: " Responsible person" includes any person who is capable of taking care of an intoxicated person including: (a) a friend or family person, and (b) an official or member of staff of a government or non government organisation or facility providing welfare or alcohol or other drug rehabilitation services.

48 I am satisfied that a hospital is a "person who is capable of taking care of an intoxicated person". Subsections (a) and (b) are not exhaustive definitions of the possible destinations available to police officers.

49 I am accordingly satisfied that the police officers had the power, if they considered it necessary, to take the plaintiff, as an intoxicated person, to a hospital.

50 However, there is no evidence that the police officers appreciated the potential seriousness of the plaintiff's injury. Constable Cosgayon said that at the time he did not know that a head injury, while superficial at the surface, may be more serious below. He believed at the time that the ambulance officers had made an adequate assessment of a minor injury and for the plaintiff's welfare he had been taken back to Newcastle Police Station.

51 I am not persuaded that there is any evidence on which it would be appropriate to find that police officers, in the position of Constables Fuhrer and Cosgayon, ought reasonably to have concluded that the plaintiff should be taken to a hospital rather than the police station.

52 In addition I am not persuaded that the custody manager was in any different position to Constables Fuhrer and Cosgayon. While he appreciated that the plaintiff had been uncooperative when dealing with the ambulance officers I decline to find that this should have alerted him to the possibility of the plaintiff having been seriously injured.

53 I accordingly decline to find that the plaintiff has shown any breach of duty of care on the part of the police officers.

54 I am accordingly satisfied that the plaintiff has shown that, if the ambulance officers had exercised their duty of care, they would have advised the police officers to take the plaintiff to hospital.

55 Constable Fuhrer said that if he had been told by the ambulance officers that the plaintiff should be taken to the hospital it was more than likely that he would have done so. He believed that he had the power to detain the plaintiff and take him to a responsible person such as a hospital in certain circumstances. Constable Cosgayon said that they would have taken the plaintiff if the ambulance officers had said "This man should be taken to a hospital".

56 I am accordingly also satisfied that the police officers would have taken the plaintiff to hospital if they had been asked to do so by the ambulance officers.

57 The consequence of my findings is that the plaintiff should have been taken to hospital from the scene and I find that he would have arrived at around 2.30 a.m. I find that there was a delay in the plaintiff arriving at hospital of about 8 hours.

58 The defendant asserts that the plaintiff has failed to show that the delay caused or contributed to any of the plaintiff's ongoing disabilities.

Would The Plaintiff Have Been Treated Earlier By A Doctor?

59 A number of eminent medical specialists were called to give evidence.

60 There was general evidence about the delay which may have occurred treating a patient in the early hours of the morning.

61 Dr Day is a doctor specialising in emergency medicine. He said that not every hospital can organise a CT scan at 3am. The usual procedure is for the hospital staff to speak to a radiologist. That radiologist needs to approve the scan. The radiographer would be called in from home, the scanner would take 15 to 20 minutes to warm up, the patient would then be transferred from the emergency department, it would take 20 to 30 minutes for the film to be produced and then the films would have to be read. A neurosurgeon or a neurosurgical registrar would be called to come in to the hospital to look at the scan. The effect of the evidence was that the treatment would be delayed in any event because there would be delay in organising each step of the investigations and then the surgery.

62 However, it was not suggested that this evidence necessarily applied to John Hunter Hospital. Dr Day was not familiar with the procedures at John Hunter Hospital. He agreed that it is the major hospital in the Newcastle area with the capacity for carrying out significant and urgent surgery.

63 In these circumstances I decline to find that it is unlikely that the plaintiff's treatment would have been delayed in any event so that his late arrival at hospital had not caused any change to the treatment that he would have received.

64 I am satisfied that, as a consequence of the negligence of the first defendant there was a delay of up to 8 hours in the commencement of the treatment of the plaintiff's head injury.

Causation - Can the Plaintiff show that any of his Disabilities are the Result of the Delay?

65 Unfortunately there is a significant divergence of views amongst the experts who were called to give evidence.

66 There is general consensus that the plaintiff 's loss of the senses of smell and taste and the loss of hearing in the left ear were all due to either the initial blow or the plaintiff's fall onto the footpath. They are not claimed as disabilities flowing from the negligence of the defendants.

67 The primary remaining disabilities are the plaintiff's right-sided weakness and, brain damage, if any. Drs Dan and McGee-Collett agree, and I accept, that the plaintiff's frozen right shoulder has been caused by the disuse of that shoulder as a consequence of the hemiparesis rather than a result of brain damage.

Explanation Of The Mechanism Of An Extra Dural Haematoma

68 It is common ground that the blow at the scene resulted in a fracture in the left temporal bone of the plaintiff's skull causing damage to the auditory and olfactory nerves.

69 Bleeding occurred from the fracture site into the extra dural space between the bone of the skull and its internal lining. The blood formed an extradural haematoma that gradually expanded over until it was evacuated neurosurgically. An urgent CT ordered at 13.20 and performed at 14.00 on 28 July 2001 scan showed a left acute extradural haematoma producing an 11 mm midline shift. This means that the extradural haematoma had caused pressure on the brain pushing it to the other side.

70 That pressure on the underlying brain caused weakness in the plaintiff's right arm and leg. There was also increasing pressure on the centres in the brainstem that control consciousness resulting in a gradual reduction in the plaintiff's level of consciousness.

71 Dr Christie undertook immediate surgery and evacuation of the extra dural haematoma. After the evacuation the plaintiff regained consciousness quite quickly but did have ongoing right sided weakness and speech disturbance with the weakness particularly affecting his arm.

72 After the haematoma had been evacuated it recollected.

73 A post operative CT scan on 3 August 2001 showed a significant remaining collection of blood in the extra dural space. It was causing a 5 or 6 mm midline shift. Dr Spittaler at John Hunter Hospital drained the recurrent recollection on 4 August 2001. The plaintiff's condition improved.

74 A third CT scan on 7 August 2001 revealed a further but smaller recollection of blood with a 3 millimetre mid line shift. It did not require any treatment.

75 The doctors agreed that in general the earlier an extradural haematoma is evacuated the better the outcome.

76 Initially, on 24 September 2001 Dr Christie did identify some minor residual deficits which he thought were a consequence of the injury but did not think they could be related in any way to any delay in receiving treatment.

77 In his report dated 10 August 2005 the doctor expressed what he said was his longer term view. He concluded: "It is difficult to say to what extent the delay in definitive treatment of his extra dural haematoma contributed to any ongoing problems that he has. I think that it is reasonable to say that the ongoing difficulties with right upper limb function, apart from the pain in the shoulder, may have been less if his haematoma had been evacuated at an earlier time. I really can't place any percentage figures on that."

78 Dr Christie gave this evidence in these proceedings in relation to the consequences of delay: The question as to whether you can attribute any long term problems to a delay in treatment I think is a very difficult one. There are some problems that were identified that I didn't actually identify at the time - loss of sense of smell and so forth - which are just completely due to the original injury. He had problems with pain in his shoulder, and although I didn't refer to it, the rehabilitation specialist referred to it. I really can't explain what that's due to. I can't really attribute that particular symptom to some sort of delay in treatment. If there were problems identified by a neuropsychologist in terms of information processing, language processing, that sort of thing, and if someone in a detailed examination did identify some difficulties with fine motor function of his right side as a long term sequelae and that was objectively identified, then you could say that earlier evacuation of the clot may have - may have - led to a better outcome on that side. And that's about as strongly as I can put it either way. 79 The plaintiff relies principally on the evidence of Dr Noel Dan, Neurosurgeon. It October 2004 he concluded: "Had Mr Neal been taken to hospital rather than to detention it is likely that the extra dural haematoma would have been diagnosed sooner. It is, therefore, also likely that the effects of the head injury would have been significantly better than it was after the delay between his being found at the sight of the assault and his transfer to hospital. The components of the head injury which are likely to have been different are the effects due to compression of the left hemisphere. These would principally include the right hemiparesis. Some memory defect is likely to occur after even a minor head injury and it is difficult to postulate that a major difference in his memory deficit would have been present had the lesion been treated sooner." 80 In his report dated 7 November 2006 Dr Dan added that the re-accumulation of the haematoma did contribute to the bad outcome. He said: "The eventual outcome is a combination of the volume of the haematoma and the time during which the compression occurs. The first haematoma was larger and the re-accumulation was present for a longer interval of time. It is factual to report that the variability between outcomes is so wide that no one can project with certainty the outcome of evacuating the haematoma in any individual. It is also true that in the broad generality the earlier the haematoma is evacuated the better the probable outcome will be. One of the most significant advances in the management of acute head injury has been the emphasis on early evacuation of the haematoma. For those reasons I believe it is probable, on balance, the first and larger haematoma did contribute to the persistence of the right hemiparesis although re-accumulation may also have done so." 81 Dr Dan gave evidence in these proceedings. He remained of the view that the delay had contributed to some of the plaintiff's ongoing disabilities. He said:

· at the time of its evacuation the first haematoma was causing a very large shift. This meant there had been a very major effect on the brain. The almost inevitable consequence of such a large haematoma is a permanent deficit. · the shift caused by the second haematoma suggested that there was not nearly as much pressure on the brain as had been caused by the first haematoma. Some of the shift was caused in any event by the first haematoma because of residual swelling

· the right-sided weakness was a direct effect of the haematoma. The surface which was being compressed by the haematoma was on the outside of the cerebral hemisphere and controlled right sided movement. The haematoma caused both direct pressure and disturbance to the blood flow to that part of the brain causing loss of tissue and consequent loss of function.

· he had been involved in a study in 1980/1981 to identify the factors which would lead to a better outcome from an extradural haematoma. The biggest single factor was the speed with which the haematoma had been evacuated.

· he could not exclude local trauma having caused the disability in the right shoulder.

· short term memory is affected pretty much routinely by a head injury. Patients often become more insightful over time and more aware of their deficits.

82 Dr Raftos is a specialist in emergency medicine. The outcome from extradural haematoma is an important part of his specialty. He considered that the primary cause of any ongoing right sided weakness was probably the blow the plaintiff had sustained before the ambulance arrived.

83 In his report dated 20 September 2005 Dr Raftos concluded: "It is possible that Mr Neal has some residual slight right arm weakness associated with his injury on 28 July 2001 … This weakness was not caused by any potential delay in neurosurgical treatment for his extradural haematoma. As it was, his significant right arm weakness persisted for several days after the initial operation because of persistent extradural haemorrhage. Had an operation been performed earlier on 28 July 2001 the outcome would, on the balance of probabilities, have been the same, that is residual extradural haematoma would have continued to compress his left cerebral cortex in the right arm motor area." 84 Dr Raftos explained:

· the parts of the brain that are associated with higher intellectual functions are the parts that are most easily injured by direct force trauma to the head. Very few individuals recover from a significant head injury without some neurological disability and subtle residual disturbance of brain function. · the earlier the intervention or the assessment of a head injury the less the likely adverse consequences. There are two potential adverse consequences - death from pressure on the brain stem and indirect brain injury from pressure on the brain. · More often than not a patient with an extradural haematoma is left with little or no permanent neurological disability depending on the severity of the injury. Extradural haematomas are generally caused by less trauma than the type of head injury which typically leaves people with permanent brain injury. This is because an extradural haematoma is usually the result of a simple fracture of the temple bone which does not run into the base of the skull. The thin bone of the temple requires little force to cause a fracture.

However the plaintiff had sustained a fracture in the occipital bone which is much stronger. In addition the fracture ran into the base of the skull. That was consistent with the plaintiff having sustained a substantial blow to the left side of his head. It could have occurred when he fell to the footpath. It was likely that such a forceful blow would injure the brain. · the reduction in the plaintiff's symptoms when the haematoma was evacuated was to be expected and did not necessarily suggest a relationship between the haematoma and the persistent right-sided weakness. It only suggested a relationship between the right-sided weakness that was present before the operation and which subsided after the operation. · the extradural haematoma was one of the possible causes of the plaintiff's right sided weakness. However for an extradural haematoma to cause indirect brain injury there needs to be evidence of substantial compression just before surgery. This would have been evidenced by a Glasgow Coma Scale score of below 9 or 10 and dilation of the pupil on the side of the haemorrhage. At the John Hunter Hospital Emergency Department the Glasgow Coma Score had been 11 and the pupils were both reactive. This meant that the oculo motor nerve had not been stretched to the extent that it had stopped functioning. Those findings meant that the intracranial pressure was not in the range that Dr Raftos would have expected to cause significant indirect damage. 85 Dr McGee-Collett is a neurosurgeon. He agreed that, in general, neurological dysfunction is more likely to occur the larger the haematoma and the longer the duration of brain compression. However, exceptions are not uncommon.

86 Dr McGee Collett agreed that the delay was undesirably long. The probability was that if it had been identified and evacuated earlier the mass would have been smaller and the damage would have been less.

87 In this case however the ongoing neurological disabilities were, in his opinion, almost certainly more likely to be the result of the seven day period of persisting brain compression after the first haematoma was evacuated and up until the second evacuation rather than to any relatively short delay in diagnosis. This is because the likelihood of damage is a factor of the time during which the brain is compressed.

88 In the first evacuation a significant lot of material had been removed. Although the plaintiff would have been left with some swelling the pressure would have been removed.

89 Dr McGee-Collett's opinion was based on the improvement in the plaintiff's right sided weakness after the second evacuation. The doctors had noted that the patient was much improved, he still had a mild right sided weakness but otherwise looked and felt better. Dr McGee-Collett described this as a dramatic improvement. If the first operation had not been complicated by the development of a recurrent haematoma he expected that the plaintiff's outcome would have been much better.

90 I find that the loss of hearing and the loss of the senses of smell and taste are unrelated to any delay in treatment. They were caused by the initial blow.

91 I am not persuaded that the evidence establishes that any cognitive deficits are a consequence of a delay in treatment. Dr Christie only thought earlier evacuation "may have" led to a better outcome and added that that was about as strongly as he could put it.

92 Dr Dan discounted any likely link. He concluded that it was "difficult" to conclude that there would have been any major difference in memory deficit and some memory defect is likely to occur even after a minor head injury.

93 The real issue is whether the plaintiff's right-sided weakness is caused by or contributed to by the delay in treatment. The evidence identified three possible causes:

the initial blow. Dr Raftos was firmly of the view that this was by far the most likely cause given its severity.

the continuing pressure on the brain between the first and second evacuations. Dr McGee-Collett was of the view that this was the most likely cause.

the delay in treatment. Dr Dan did not suggest that this was the only cause. He thought, it was probable, on balance, that the first haematoma did contribute to the persistence of the right hemiparesis although the re-accumulation may also have done so. If the first haematoma had been diagnosed sooner, it would have been evacuated earlier and the better the probable outcome would have been.

94 None of the doctors totally discounted that possible contribution of each of the three causes. Each of them were impressive witnesses and gave compelling, logical and reasoned explanations for their conclusions.

95 I am satisfied that it is likely that each of these three causes played a role in causing the plaintiff's right sided weakness. That right sided weakness has led to disuse which has resulted in the plaintiff's frozen right shoulder.

96 I find that all three causes contributed equally to the outcome.

97 There are a number of legal issues impacting on the assessment of damages.

Is there any basis on which the defendants are liable for any neurological outcome caused by the second evacuation?

98 Counsel for the plaintiff concedes that there is no medical evidence suggesting that the second haematoma arose out of the delay in the diagnosis of the first haematoma.

99 However counsel for the plaintiff submitted that I should find that any damage caused by the second haematoma should still be treated as part of the tortious damage because the delay in diagnosis led to a very large haematoma and extensive swelling. He submitted that the effect of the evidence of Dr Dan was that the swelling caused by a large primary haematoma can make the effects of a secondary haematoma worse because the subsequent bleed is entering an area that is already swollen and has a midline shift.

100 I am not persuaded that this was the effect of the evidence of Dr Dan. At the passage referred to Dr Dan was merely discussing the sources of pressure - from the haematoma and from the swelling of the brain itself. I am not persuaded that there is any evidence in support of this submission - indeed the evidence is to the contrary. Reaccumulation is not uncommon because stopping the bleeding is difficult. As Dr McGee-Collett explained in detail, a haematoma strips the dura off the skull and despite the best attempts of the surgeon it continues to ooze after the operation and a blood clot redevelops.

State Government Insurance Commission v Oakley (1990)

102 Counsel for the plaintiff submitted that the second category in the decision in State Government Insurance Commission v Oakley (1990) Australian Torts Reports 81-003 applied. In that case the Court relevantly said (at 67,577): 'In my opinion, where the negligence of a defendant causes an injury and the plaintiff subsequently suffers a further injury the position is as follows …: (2) where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence;" 103 For the reasons I have already given I have declined to find that there is any causal link between the first and second haematomas.

105 Counsel for the plaintiff submitted that the defendant had failed to disentangle the effect of the two haematomas. Watts v Rake (1960) 108 CLR 158 is authority for the proposition that where there is a contribution to damage from a non tortious cause which would reduce the plaintiff's damages the onus is on the defendant.

106 I do not accept this submission for two reasons:

· this line of authority relates to the role of a pre-existing condition (Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164). In that situation there is an onus on a defendant when it alleges that a plaintiff's pre-existing condition was a contributing factor to his or her condition. In this case there is no relevant pre-existing condition; · even if it does apply, the defendant only needs to show that the existing condition was a contributing factor to the plaintiff's condition. It is not, as asserted by counsel for the plaintiff, for the defendant to "disentangle" the effects of each of the two haematomas. Indeed, nothing in those cases imposes an onus on the defendant to prove that a pre-existing condition had made a material contribution to the plaintiff's injury. I am satisfied that the extensive evidence called by the defendant discharges that onus.

107 I accept that the only logically supportable basis for assessing damages is by reference to the loss of a chance of a better outcome by reason of the breach.

108 Counsel for the plaintiff submitted that little or nothing should be deducted for the loss of a chance.

109 In determining the chance of a better outcome if the plaintiff had been taken to hospital from the scene, I have taken into account the following:

· even if the plaintiff had been conveyed to hospital there was a chance that his behaviour may or may not have permitted discovery of the haematoma at an earlier time; · it is likely that the haematoma would have been diagnosed and thus evacuated sooner. However it is not possible to say with any accuracy how much earlier this would have occurred; · one third of the plaintiff's neurological disability was caused by the delay.

110 I am satisfied that the plaintiff did lose the possibility of a better outcome.

111 In the circumstances I consider that it is appropriate to assess the plaintiff's damages at 25% of the amount he would have been awarded for damages for the right sided weakness and its consequences.

112 I will assess damages by reference to the amount which would have been awarded if the plaintiff had established that the defendants were wholly responsible for the loss. I will leave the parties to agree, if possible, on the mathematical outcome of my findings including the 75% reduction reflecting my finding as to the chance lost by the first defendant's negligence.

113 The plaintiff has a number of ongoing disabilities which are not causally connected to the first defendant's negligence. Some of these I have already mentioned. There is also an area on his head which he says weeps and scabs and trickles out all the time. There is scarring on the head. He has headaches. I have not taken these disabilities into account when assessing non economic loss.

114 The plaintiff was transferred from John Hunter Hospital to the care of the Rankin Park Rehabilitation Service on 8 August 2001. He was declared out of post traumatic amnesia on 9 August 2001. By that stage he was receiving physiotherapy for the right upper limb weakness. He was discharged on 15 August 2001.

115 At discharge the plaintiff's right arm weakness had improved significantly and his power was graded four out of five with normal tone, normal sensation but diminished proprioception. Dr Dan said this was consistent with a pattern of improvement with significant defects. Grade four means a significant degree of weakness. Diminished proprioception means that he was having difficulty in positioning the limb in space and using it for activities where he was not directly watching the limb.

116 The plaintiff said he has had constant pain in his right arm from the shoulder to the wrist. The right shoulder pain is worse if he tries to do something or bumps into something. He described it as a burning sensation. It is very sensitive to touch. His right leg plays up. It tingles down the bottom of the calf and near the ankle joint after standing too long. It occasionally swells. He trips up a stair every now and then and fells as if he is dragging his foot. He gets pain after standing for 15 to 20 minutes or sitting on a chair if his leg is not straight. He eases the pain by taking a warm bath. Otherwise he takes pain killers.

117 The plaintiff says that the injury has affected the legibility of his writing because of pain and an inability to manipulate a pen. This meant that he had difficulty with tasks as simple as writing down a shopping list. I take into account the opinions of the doctors but am not persuaded that this evidence is necessarily inconsistent with the plaintiff being able to write a three page letter to the Victim's Compensation Tribunal in September 2002.

118 The plaintiff can squeeze his right hand a little bit but cannot hold anything heavy or pick up little things. If he uses his hand to squeeze something it he gets pain in his arm. He held his right arm across his body while in court and said it was more comfortable in that position. It is painful if he lets it hang down.

119 The plaintiff owns and can drive a manual Commodore VU which is a utility and a manual Toyota dual cab Hilux. He can attach a box trailer to the Hilux using a jockey wheel. He can use it to cart water for his trees and any other general purpose. 120 There is some video evidence of the plaintiff. I am not persuaded that the plaintiff's activities on that video are inconsistent with his evidence in these proceedings.

121 I accept the evidence of the plaintiff in relation to his ongoing disabilities. I assess non economic loss at 35% of a most extreme case.

122 The plaintiff was born on 3 August 1962. He left school at 16 and worked as a cleaner and did some farm work.

123 A few months later he obtained a job with Boorowa Shire Council as a labourer. He worked there for 17 years. During that time he did concreting, fencing, grave digging, weeding of gravel with bulldozers, loader operation, tarring, road maintenance and rolling, painting, building.

124 While he worked at the Council he obtained a heavy truck driver's licence and drove articulated trucks, semitrailers, tractors, motor graders, bulldozers, backhoes, skid steers, tipper trucks and water wagons.

125 As at 1 January 1996 the plaintiff was being paid $480 per week by the Council.

126 I accept that there are issues in the plaintiff's past which impacted on his earning capacity at the time of the incident. These are the following:

· he had been charged with having goods in custody reasonably suspected of being stolen in about February 1995. The goods were the property of his employer. He was sacked after he was charged. He sought reinstatement in the Industrial Relations Commission. At a court mediated conciliation the plaintiff was reinstated pending the outcome of the hearing of the charges. He was convicted. He was also fined for possessing marijuana. He appealed to the District Court. The Court confirmed the finding of guilt but then dismissed the charge without recording a conviction. The plaintiff returned to the Industrial Relations Commission to argue about the effect of the agreement at the conciliation.

After being charged and sacked he spent very little time actually at work despite having been reinstated. Throughout most of 1995 and 1996 he was paid sick leave and he resigned on 23 April 1997. The plaintiff did not return to any paid work before the accident. He spent those three years renovating his house and working on his Toyota Hilux.

· The plaintiff was also charged with receiving Centrelink payments totalling $5800. He pleaded guilty. It has been repaid. He was sentenced to 200 hours community service. · Shortly before the incident which is the subject of these proceedings, the plaintiff heard that there could be work available on the Great Northern Railway line from Adelaide to Darwin. He emailed an application form. He had decided to drive there and see if he could get a job. He said he was going to drive to Alice Springs and pull up at the local hotel or post office and ask for directions to the construction site. The plaintiff said that if had arrived in Alice Springs and not been able to get that job he would have chased up one of the big construction mobs and got a job as a machinery operator or truck driver.

He had stopped at Newcastle on the way to see family and friends when he was injured. He did not have any offer of employment when he left.

The plaintiff received a letter, which is dated after his injury, from PartnersinRail acknowledging his registration of interest for work and advising him that his details had been entered into their database. Those details would be provided to the labour hire companies following financial close on the project.

It is clear from the letter that it was very unlikely that there would have been work for the plaintiff on the project at that time.

127 The plaintiff said that a friend had offered him some work at the Council where he would have been able to use an electric hoist but did not do so because he had been involved in a motor vehicle accident on 23 June 2004.

128 The plaintiff said he would like to work but there is nothing in Boorowa because it is a small town. He cannot move to Newcastle but because he could not afford a house there.

129 I accept that the right sided weakness causes an impairment in his earning capacity. The plaintiff would not be fit to drive heavy machinery or any vehicle for which he would need to use both hands to operate levers.

130 However I am satisfied that the plaintiff does have a residual earning capacity. He has not taken any steps to find work in a neighbouring town.

131 There is no claim made for the first year after the accident. This is consistent with the opinion of Dr Dan who was of the view that if there had been early intervention it was likely that the plaintiff would have had six to twelve months of incapacity for work.

132 There is then a claim from 21 July 2002 based on average weekly earnings for all males. I decline to assess damages on this basis. Firstly the figure ($690) per week is significantly more than the plaintiff's actual earnings would have been if the incident had not occurred. Secondly it does not take into account the factors which I have listed above as impacting on his earning capacity at the time of the incident. Thirdly it does not make any allowance for the plaintiff's residual earning capacity.

133 I allow $150 per week from 21 July 2002 to date.

134 For the same reasons I allow $150 per week to age 65 on 5% tables less 15% vicissitudes.

135 The plaintiff stayed with his brother and sister in law for the first 12 months because he needed help. His sister in law did his washing, ironing, cooking and drove him around. He did improve over that year because he was able to drive to Boorowa five or six times to check on his house. He said it took him twice as long as usual because he became physically exhausted. He found it hard at first because he could not rely on his right arm for strength and steering.

136 In that first year the plaintiff tried mowing but found it difficult because he could not start the mower with his right arm and his head started throbbing and leaking. He also had difficulty weeding with his left hand.

137 The plaintiff claims 14 hours care a week for the first 12 months.

138 The plaintiff did give some evidence of assistance after the first year. However counsel for the plaintiff conceded that the six hour threshold had not been overcome.

139 Counsel for the defendant did not suggest that the plaintiff would not have required any care in the year after the accident, but submitted that the evidence did not support fourteen hours a week. I take into account that the plaintiff would have had some need for care in any event and because of his other injuries and that his condition improved over the year so that he was able to drive to Boorowa a number of times. I allow an average 10 hours a week for one year.

140 The plaintiff tries to clean with his left hand but friends come in and help. One of them, Donna Warren, comes to cook stew which he puts into the freezer. He does his own shopping very slowly.

141 He has difficulty with home handy man tasks it because he cannot go up and down a ladder and cannot hold his tools. He has tried drilling with his left hand but cannot get a good grip.

142 The plaintiff was assessed by Complete Domestic Care. They determined that he needed help with shopping, meal preparation, ironing, heavy laundry, cleaning, car maintenance, window cleaning, lawn mowing, gardening, cleaning gutters and handyman duties at a cost of $175.39 per week. Counsel for the plaintiff conceded that "that figure appears to be greater than the simple needs he expresses but some need is clear. A reasonable proportion of that figure is sought".

143 Counsel for the defendant submitted, and I accept, that some care would have been required in any event because of the inevitable consequences of the disability which would have occurred regardless of the delay.

144 I allow $100 per week for the rest of the plaintiff's life.

146 The plaintiff gave evidence of taking pain killers. However the disabilities unrelated to the first defendant's negligence also cause pain, in particular headaches.

147 The plaintiff estimated that he is currently spending $4 to $5 a week on medication but he is not paying the full cost. It was not clear what proportion of this medication is taken for disabilities associated with his right-sided weakness.

148 The plaintiff also claims the cost of arthroscopic surgery on the right shoulder. However most of the doctors described his condition as stable. There is no evidence of the likely cost.

149 The plaintiff also claims intermittent physiotherapy. It is unclear whether this would result in any benefit.

· $1,813 for the cost of various aides recommended by Complete Domestic Care such as a folding chair and an electric can opener. Clearly however some of the need arises out of the plaintiff's short term memory problems (e.g. a notebook computer) and some have not been costed. I allow the sum of $1,000; · 2 hours occupational therapy plus travel time to teach to how to use some of the equipment. I allow $200.00.

21/11/2007 - Omitted age under Future Economic Loss - Paragraph(s) 134

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