Pappas v Brezniak Neil Smith & Co.

Pappas v Brezniak Neil Smith & Co. - [2001] NSWSC 726 - NSWSC 2001 case summary — Zoe

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1 MASTER: The plaintiff sues his former firm of solicitors, the defendant, for professional negligence. It is common ground that the defendant acted for the plaintiff in District Court proceedings, Pappas v Dr G Kleiner and Central Area Health Service (DC 1759/94). The counsel representing Mr Pappas in the District Court was Mr Philip Bates. 2 In 1984, the plaintiff underwent a nose operation performed by Dr Kleiner. In April 1991, he underwent a second nose operation. In the District Court proceedings complaint was raised only about the 1991 operation. About two months prior to the hearing, the defendant admitted breach of duty of care for the 1991 nose operation. The matter went to trial on the issues of causation and damages. 3 On either 20 May 1998 or 1 June 1998 Balla ADCJ (as she then was) delivered a written judgment in which her Honour gave judgment in favour of the plaintiff in the sum of $41,349.80 plus interest of $8,000. 4 Her Honour stated: "On the basis that the plaintiff has suffered the physical discomfort in his nose associated with the recovery from the operation and the subsequent complications caused by the extruding of the three pieces of silastic which I accept were severe and the two year exacerbation of his underlying schizophrenia I assess general damages at $40,000.00" 5 No damages were awarded for economic loss. 6 The plaintiff was ordered to pay the defendant's costs from 9 October 1997. This was because in September 1997, the defendant in the District Court proceedings, Dr Kleiner, made an offer of compromise of $65,000 plus costs. The plaintiff gave written instructions to his solicitor to reject the offer of compromise. I shall return to these instructions later in this judgment. 7 At the hearing before this court the plaintiff represented himself. He was without the benefit of legal representation. He was well prepared and articulate. However, during the course of the proceedings, I came to the view that the plaintiff was selectively quoting from documents to advance his case. The plaintiff relied upon his affidavit of 12 July 2001 together with some expanded documentation. Perhaps the most helpful document in which the plaintiff outlined his case is entitled "History pertaining to further and better particulars (1 to 8 inclusive) addressed in the statement of claim". This document was filed on 13 July 2000. Other documents that the plaintiff relied upon are listed at the end of his affidavit. The defendant relied on three affidavits, namely that of the defendant, sworn 23 April 2001, an affidavit of Dr Jonathan Phillips sworn on 12 April 2001 and an affidavit of Mr Philip Bates, affirmed on 13 June 2001. All of the deponents were cross examined at length. Dr Samra and Dr Baker gave evidence for the plaintiff. 8 In the amended statement of claim (filed 14 July 2000) the plaintiff pleaded that there was an implied term of the agreement that the defendant would do all things necessary to prosecute Dr Kleiner on behalf of the plaintiff and would do so and advise the plaintiff with all due professional care, skill and diligence. By a defence filed 1 February 2000, the defendant admits owing the plaintiff a duty of care to act as a reasonably prudent solicitor within the terms of the retainer, but otherwise denies the allegations made in the amended statement of claim and asserts that it fails to disclose a course of action against him. 9 The amended statement of claim limits the plaintiff's assertions of negligence to two issues. They are: Firstly, the defendant failed to warn or advise the plaintiff that the limitation period within which an notice of appeal should be lodged was 28 days from 20 May 1998, the date of judgment and failed to lodge an appeal within 28 days from that date. Secondly, the plaintiff alleges that the defendant falsely represented to the plaintiff that a notice of appeal could not be lodged until a report was received from the Health Insurance Commission (HIC). The plaintiff submitted that the defendant had represented that it would notify him of receipt of the report and that the 28 day appeal period would commence from the date of that notification. 10 The plaintiff submitted that, as a result of the defendant's alleged negligence, he has suffered loss and damage as follows: Firstly that due to the delay in receipt of the proceeds of the legal action against Dr Kleiner the plaintiff has been unable to invest in a marine pleasure craft with entertainment business, with an estimated profit of $500,000 annually and a computer programming business with an estimated profit of $500,000 annually. Further the plaintiff alleges that he would have earned between $50,000 to $250,000 from playing the classical guitar. 11 The defendant has helpfully provided a summary of allegations which he perceives are being made against him. This summary expands on the allegations made in the amended statement of claim. They are firstly, withholding evidence; secondly, failing to obtain readily available evidence; thirdly, failing to obtain further evidence regarding economic loss; fourthly, releasing the hospital from the proceedings; fifthly, failing to plead failure to warn; sixthly, failure to cross examine Dr Kleiner regarding condition of nose prior to the procedure; seventhly, failure to advise of the time limit for filing an appeal; eighthly, failing to file an appeal; ninthly, representing that the plaintiff could not execute appeal time until receipt of an HIC Report; and tenthly, overcharging. The plaintiff has agreed that this document accurately raises the issues he wished to ventilate. In addition, I have added another issue, which seemed to be important to the plaintiff, namely, the allegation that there was no evidence or submissions made to the District Court that he had not suffered from nasal allergies and obstruction prior to the 1991 operation. 12 As the hearing continued over a number of days it became clear that the plaintiff sought to attribute his wide ranging symptoms as being caused solely by the by negligent nose operation in 1991. These symptoms include swollen and congestion of the sinuses, misshapen nose, pain in the nose, breathing difficulties including blockage primarily of the right nostril, swollen turbinates, frequent headaches (not everyday but almost daily), ear aches (almost every day), frequent dizziness, sleep difficulties and disturbance, sore and itchy throat, inability to run without pain in the ear, anxiety and stress and unsightly appearance of the nose causing embarrassment and shyness, immune system dysfunction, chronic fatigue syndrome, his legs take longer to heal, he can no longer memorise long passages of music nor play the clarinet, he cannot play the guitar for long periods and the religious experiences he underwent while playing the guitar have ceased. He submitted that there was a trail of medical evidence which started with Dr Goldston in 1991 and moved through Dr Logan, Townsville District Hospital, Dr Luchavitch, Dr Coman, Dr Stevens and Dr Robinson to the present which establish that the plaintiff has experienced these symptoms and that they were caused by the negligent nose operation in 1991.

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(ii) Dr Logan 20 Also in the plaintiff's letter to the defendant dated 31 March 1998 (referred to above) he stated that he saw Dr Logan in 1991 and again in 1992 for sinus and ear problems. The plaintiff requested that the defendant obtain a report from Dr Logan. The defendant duly wrote to Dr Logan on 2 April 1998, requesting a report from him and seeking information about whether the plaintiff had complained of a number of specific symptoms during those consultations. 21 Dr Logan, in his report dated 1 May 1998, said that he had two consultations with the plaintiff, namely on 6 December 1991 and 13 April 1992. At the first consultation, the plaintiff complained of sinus problems reported after diving, sinus barotrauma. Dr Logan advised him to see an ENT specialist, gave him general advice and suggested panadol. At the second consultation, the plaintiff complained of recurrent sinusitis and eye problems. Dr Logan prescribed antibiotics and advised the plaintiff to see an optometrist. 22 Dr Logan reported that at neither consultation did the plaintiff complain of swollen and congestion of the sinuses, misshapen nose, pain in the nose, breathing difficulties including blockage primarily of the right nostril, frequent headaches (not everyday but almost daily), ear aches almost every day, frequent dizziness, sleep difficulties and disturbance, sore and itchy throat, inability to run without pain in the ear, anxiety and stress, and unsightly appearance of the nose causing embarrassment and shyness. 23 Dr Logan did not link the symptoms outlined above related to the 1991 nose operation. Further Dr Logan did not think that the plaintiff's symptoms warranted him being referred to an ENT specialist. According to the plaintiff, he went to the first consultation because he needed a medical certificate to show that he was medically fit to dive. Dr Logan did not issue the medical certificate because he was of the view that the plaintiff may suffer from sinus barotrauma if he participated in diving. The second consultation involved a diagnosis of sinusitis for which antibiotics were prescribed. At best, Dr Logan's reports would have been evidence that the plaintiff had suffered from sinusitis but the cause was not identified. 24 Even if these reports had been tendered they do not state that the sinusitis and possible nasal obstruction were caused by the operation. Further there was evidence tendered which suggested that the operation did not cause nasal obstruction. Balla ADCJ made a finding that the plaintiff's other physical symptoms were not a consequence of the operation. It is my view that her Honour's view would not have altered had those two reports been tendered in evidence.

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The Reports of Dr Pohl - Ear, Nose & Throat Specialist 25 This issue took up much time at the hearing. The reports of Dr Pohl were not served in the District Court proceedings. The plaintiff submitted that Dr Pohl's report of 17 May 1996 would have assisted his case because Dr Pohl attributed "some" but not all of the nasal obstruction to be the a result of his first operation. Therefore, according to the plaintiff, most of the nasal obstruction was caused by the second operation. 26 In the report of 17 May 1996, Dr Pohl attributed the flapping septum that caused the nasal obstruction to the first operation. The other cause of the plaintiff's breathing problems were large turbinates. Dr Pohl also opined that turbinates do not become inflamed or swollen due to collapse of the nasal tip area. He also said that the collapse of the nasal tip and lack of septal support are additional factors that cause obstructed nasal airway. The collapse of the nasal tip and lack of septal support were discounted by Dr Robinson as being a cause of the obstructed nasal airway. 27 Mr Bates of counsel provided two carefully considered advices on 2 December 1997 and 5 September 1998 concerning the service of Dr Pohl's reports. Mr Bates, when cross examined, acknowledged that, throughout the preparation of the plaintiff's case, the plaintiff was concerned about the service of Dr Pohl's records. Mr Bates also acknowledged that on a number of occasions prior to the hearing, the plaintiff gave the defendant instructions that he wanted the reports of Dr Pohl served. However, Mr Bates gave evidence that on each occasion when Mr Pappas raised this issue, he would provide either written advice or oral advice in conference, reiterating and explaining his reasons why the report was unhelpful. After the plaintiff was in receipt of that advice, he would acquiesce, accept Mr Bates' opinion and retract his instructions to serve Dr Pohl's reports. 28 As at August 1997, the plaintiff had adopted the view that Dr Pohl's reports did not assist his case because in letters dated 24 August 1997 and 26 August 1997 by the plaintiff to Dr Coman, the plaintiff stated that: "Dr Pohl's report confirms as to where's and why of nasal blockage … My solicitors and I feel it detrimental to my case" (Ex 6).

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Counsel's written advices of 2 December 1997 and 5 September 1998 in relation to the service of Dr Pohl's reports 29 On 2 December 1997 the defendant wrote to the plaintiff, where he stated: ""(a) Dr D Pohl (ear, nose & throat surgeon) to Dr N Rajandrum dated 22/06/94 Comment : Dr Pohl focuses on two main problems. The first problem is the lack of cartilaginous support, however, one of our main witnesses on liability, Dr Robinson, does not believe we can demonstrate that that was caused specifically by the silicon implants or their complications. The second problem identified by Dr Pohl concerns the bulky turbinates, but our other main witness on liability, Dr Stevens, regards the turbinate congestion as a distinct problem unrelated to the silicon complications. (b) Dr D Pohl (ear, nose & throat surgeon) addressed to whom it may concern dated 21/12/94 Comment : This is covered in my comment on Dr Pohl's earlier report of 22/06/94. (c) Dr D V Pohl (ear, nose & throat surgeon) to Roach & Halligan solicitors dated 03/03/95 Comment : Dr Pohl agrees with Dr Robinson that the lack of cartilaginous support cannot be sheeted home specifically to the silicon implants, as it may have resulted from the previous surgery or from previous cartilage necrosis secondary to the infection (page 2). Dr Pohl does not advance the case on breach of duty which is established by the opinions of Dr Robinson & Dr Stevens. (d) Dr D V Pohl (ear, nose & throat surgeon) to the plaintiff dated 17/05/06 Comment : This is damaging to the plaintiff's case, as Dr Pohl attributes the flapping septum problem to the initial operation that preceded the silicon implant operation." As discussed by telephone, if it is your instructions that we should tender Dr Pohl's reports then we shall do so." 30 On 6 December 1997, the plaintiff asked his solicitor to tender the reports of Dr Stylis and Dr Pohl as the plaintiff thought that these reports covered the issues of turbinates and nasal blockage. On 9 December 1997, the defendant replied that in respect to your instructions to serve reports of Dr Pohl & Dr Stylis and to subpoena Dr Pohl we are informing Philip Bates of your instructions and will let you know of his response prior to carrying them out. The reports of Dr Stylis were tendered as they were referred to by Balla ADCJ in her judgment. 31 There was a lengthy conference on 8 April 1998, where the plaintiff, the defendant and Mr Bates were present and they went through the subpoenaed documents for two hours. It was at this conference that the defendant believes that the plaintiff agreed with his and Mr Bates reasoning and advice as to why Dr Pohl's report should not be served. It was also the defendant's recollection that the plaintiff agreed that Dr Pohl should not be subpoenaed. Mr Bates' evidence was also to the effect.

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Counsel's advice of 5 September 1998 32 Counsel's advice on 5 September 1998 Mr Bates advised that, although the plaintiff was of the view that Dr Pohl's and Dr Stylis' reports helped his claim, it was his professional opinion that the reports would weaken the plaintiff's claim. Mr Bates stated that he was concerned that the plaintiff seemed to confuse the difficulties that he does experience with the causes of those difficulties. He explained that the only "difficulties" for which the plaintiff was entitled to compensation were those caused, or materially contributed to, by the operation of 4 April 1991. Mr Bates noted that Dr Pohl's various reports seemed to have commended themselves to the plaintiff because Dr Pohl referred to the plaintiff's ongoing breathing difficulty. However, his view was that the reports were to the effect that the ongoing breathing difficulty had nothing whatsoever to do with the botched operation and that the reports negated the plaintiff's claim for compensation in respect of that complaint. It was for this reason that he advised that Dr Pohl's reports should not be served. At the hearing in this court the plaintiff still failed to understand this distinction between the difficulties he experiences with the causes of those difficulties. Mr Bates went on to say: "I reiterate my opinion that Dr Pohl's reports SHOULD NOT BE SERVED as they support the view that the ongoing breathing difficulty is not caused by or materially contributed to by the botched operation. I note that Dr M Stevens in his report to Dr Coman dated 10/9/92 (which has been served) does not link the ongoing breathing difficulties to the botched operation but regards it as a turbinate problem." 33 As previously stated, Mr Bates gave evidence that each time he conferred with the plaintiff there was some discussion about Dr Pohl's reports and at the end of each discussion the plaintiff accepted Mr Bates' advice. Mr Bates at no stage received any instructions to override that advice. If he had he would have acted on that advice (transcript p194 - 198). 34 After the District Court case was finalised, the plaintiff wrote to Dr Pohl (on 25 July 2001 and 1 August 2001) asking him to review his opinion. Dr Pohl replied by letter of 27 July 2001 (Ex 4) that the information he provided in his letter of 17 May 1996 is an accurate and objective assessment of the plaintiff's nasal condition and its future prognosis. 35 It is my view that counsel had carefully evaluated whether it was in the plaintiff's interest to serve Dr Pohl's reports and gave cogent reasons why this should not be done. The defendant (at paras 28 and 29 of his affidavit) deposed that the medical reports obtained on behalf of the plaintiff were provided to Mr Philip Bates of counsel to provide advice on which medical reports should and should not be served in the District Court proceedings. The defendant exercised his mind and agreed with the advice and recommendations given by counsel and acted accordingly. In those circumstances, the solicitor was entitled to accept and act on this advice. The defendant acted prudently and competently. Even if these reports were tendered, they did not support the view that the plaintiff's nasal problems were caused by the silicon implants or the second nasal operation. The defendant did not act negligently in relation to the service of Dr Pohl's reports.

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(iv) Dr Burchett's report dated 25 August 1997 39 The report of Dr Burchett (Doc 19) was not served. Dr Burchett was the plaintiff's general practitioner between October 1993 and August 1997. In August 1996, the plaintiff attended Dr Burchett complaining of taste and stomach reflux. In February 1996, he complained of food intolerances. In January 1997 Dr Burchett referred the plaintiff to Dr Baker to investigate the multiple airborne allergies and allergic nasal appearances that the plaintiff complained about. Dr Burchett stated that was only in July 1997 the plaintiff first consulted her for ear, nose and throat symptoms, including blockage of the nasal passages and right eustacian tube. Hence these complaints were made over six years after the operation and after the District Court proceedings had been commenced. Further, the records state that it was in August 1997 that the plaintiff consulted the doctor for the first time in relation to a claim against Doctor Kleiner for nasal surgeries. Dr Baker expressed the view that he has significant airway for nasal breath and that there is a deviation of the septum and this can lead to an increase in the likelihood of nasal allergies. Dr Burchett said that, physically, the plaintiff was fit for work. I accept that in 1991 and 1992, the plaintiff was living in Noosa. 40 On 9 September 1997, counsel advised that Dr Burchett's report was unhelpful and should not be served. Mr Bates was of this opinion for the following reasons: Dr Burchett had not seen the plaintiff until 1993, two years after the silicon implant surgery and was unable to comment on the "before and after" changes; the complaints recorded by Dr Burchett in 1993 and 1995 referred to a motor vehicle accident and other matters irrelevant to the litigation and accordingly might suggest to the court that the plaintiff did not suffer any real concern from the silicon complaints or that his complaints stemmed from other causes to the 1991 operation; and that Dr Burchett had no record of relevant complaints until 1997. For these reasons counsel considered that service of this report would be damaging to the plaintiff's credit as it might suggest self-serving consultations. Counsel gave considered, reasoned and correct advice as to why Dr Burchett's report should not be served. Once again the solicitor agreed with and acted upon counsel's advice and was entitled to do so. It is my view that the service of this report would not have advanced the plaintiff's case and may well have damaged it.

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(v) Allegation that there was no evidence submitted to the District Court establishing that the plaintiff had not suffered from nasal obstruction and allergies prior to the 1991 operation 41 The plaintiff submitted that there was no evidence put to Balla ADCJ that the plaintiff had not suffered from allergies and nasal obstructions prior to the 1991 operation. 42 In relation to the problems the plaintiff experienced after 1991, the plaintiff's counsel submitted to Balla ADCJ that Dr Taylor was consulted by the plaintiff on 17 occasions from 27 June 1989 to 10 August 1990 and during that period the doctor did not observe or received any complaints from the plaintiff of symptoms of anxiety or depression or nasal obstruction. Hence there was the evidence of Dr Taylor to show that the plaintiff had not complained of nasal obstruction prior to the April 1991 surgery. 43 In Counsel's submissions to the Judge (at para 10) he stated: "The plaintiff became aware of the surgical iatrogenic complications from the time his post-operative consultation with the defendant on 16/4/91 when the defendant removed the plaster and was already able to observe extruding silicon implant. The plaintiff was appalled at the size and shape of the nose. The plaintiff gave oral evidence of a number of physical and psychological difficulties he first experienced as a constellation of symptoms from that time over the failed operation: pain, breathing difficulties, thick mucous, sleeping difficulties, problems with digestion, depression, anxiety, embarrassment, feelings of wanting to die, anxiety, depression, loss of self-confidence, loss of creativity, regarded his guitar as an axe, loss of beautific feeling he used to experience while playing music and which used to inspire him to practice and play flamenco guitar for hours at a time. He complained about the size of his nose to Dr Scoppa, ENT surgeon, who also observed extruding silastic (Ex A, doc 2, report by Dr Scoppa to the defendant, 22/5/91). He complained of pain in the nose, wrong shaped nose and difficulty breathing on the right side to Dr Buchanan who removed one piece of silastic implant extruding to the left nostril on 16/7/91 (Ex A, doc 3, report by Dr Buchanan to the defendant on 16/7/91 and also Ex. C). Dr Buchanan removed a second piece of silastic from the left vestibule/nostril on 10/9/91 with improvement in airway" 44 The plaintiff's counsel did put evidence and submissions to the court to the effect that the plaintiff did not experience problems with nasal breathing difficulties and pain prior to the operation and suffered a constellation of physical symptoms after the operation. The defendant in giving instructions to Mr Bates acted as a competent and prudent solicitor.

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(i) Report of Dr Kleiner 45 The plaintiff has placed emphasis on the fact that his solicitors did not obtain the referral letter by Dr Senanayake and the post operative report for the 1991 operation. I have already referred to Dr Kleiner's post operative report earlier in this judgment. Dr Kleiner by letter 21 May 2001 has advised that he had told the plaintiff previously that those two documents were not in his file and he was not aware as to their whereabouts. Dr Kleiner in that letter further advised that he could state that the plaintiff's complaint prior the second operation was that he was not happy with the shape of his nose and felt it would hamper his musical career. He stated that the plaintiff wanted the operation to be performed so that a more cosmetically pleasing nose would enhance his musical career. He added that he and the plaintiff had spoken about the fact that the plaintiff had previously had a septoplasty performed at the age of 20 to improve his breathing and from that time until the second operation there had been no further problems in breathing through either nostril. 46 Dr Senanayake has also written to the Court on 9 October 2000 advising that he was unable to supply the court with copies of the plaintiff's medical history as his patient records are kept for seven years and then destroyed under secure conditions pursuant to the Medical Practice Regulation 1998 (NSW). 47 As previously stated, Balla ADCJ accepted that the plaintiff did not complain of breathing difficulties prior to the 1991 operation. The introduction of Dr Kleiner's report into evidence would not have assisted the plaintiff any further. 48 The difficulty in the plaintiff's case was to link the breathing difficulties as being caused by the 1991 nose operation. The Judge held that the physical symptoms were not caused by this operation. There was medical opinion to suggest that the breathing difficulties were linked to a turbinate problem not the botched operation (report of Dr Coman dated 10 September 1992). Dr Stevens in his report dated 30 October 1997 stated that it was impossible for pain in the ear and visual disturbances to result from any routine rhinoplasty and that the relationship in this particular case was extremely tenuous. He was of the opinion that the patient did not have any allergic or vasomotor symptoms but had large turbinates, interfering with the airway. The plaintiff was born with large turbinates. The plaintiff had not reported in sinus problems and there was no history of sinusitis and the doctor's examination of the plaintiff revealed a slight deviation of the septum, engorged turbinates and normal tympanic membranes. He further stated that the eye, ear and throat symptoms had been to some extent attributed to nasal problems, which was extremely unlikely.

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(ii) Failing to Obtain Reports from Dr Baker 49 The defendant has a contemporaneous file note dated 22 October 1997 wherein the plaintiff told the defendant that Dr Richard Baker did not want to help him and that the plaintiff would go to Dr Moore, general practitioner, and seek a referral to an ENT specialist for confirmation of nasal blockage (Ex 1). Dr Baker has subsequently written reports to the plaintiff dated 2 February 2001 and 18 June 2001. 50 Dr Baker gave evidence to this court. He stated that the plaintiff did not approach him to furnish a medical report in 1997. Dr Baker said he would not have refused to supply a report to the plaintiff or his solicitors, if it was requested. 51 Dr Baker gave evidence that the plaintiff's nasal condition would not stop him working. He also gave evidence there was no research medical paper linking silicon products to allergic rhinitis. Dr Baker was shown an article "Silicone Toxicity as a Result of Silicone Implants" published in the International Journal of Occupational Medicine and Toxicology Vol 4 No 1 1995. The article postulates that silicone is not inert and is associated with immunogenic reaction; that various silicone implants are associated with the migration of silicone into the lymphatic system and subsequent travel into locations such as the myocardium, lymph glands, liver, spleen and brain and that the immune reaction elicited by silicone is an adjuvant reaction, which causes the production of silicone-specific antibodies. Dr Baker said that he was not qualified to comment on this and that the plaintiff's allergies could have been caused by factors other than surgery. 52 It was Dr Baker's view that the allergies were not caused by the surgery but that the surgery may have extenuated his allergies. Dr Baker has investigated nasal allergies for 29 years and said that nasal allergies and predispositions may develop in utero or in the early years of life. In the plaintiff's case he could have developed nasal allergies even without the insertion of the silicon in his nose. However, this issue would need to be investigated by experts such as those involved in the Dow Corning litigation. 53 Had Dr Baker given evidence at the District Court hearing, it would have been most unhelpful to the plaintiff. However, I accept the contemporaneous written note and evidence by the defendant that the plaintiff told him that Dr Baker did not want to help him and that he, the plaintiff, would approach another ENT specialist. In those circumstances, the solicitor acted competently and professionally.

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(iii) The Evidence of Dr Samra 54 Dr Samra in his report dated 25 June 2001 stated that on the balance of probabilities considering the onset time of his symptoms, the plaintiff may be suffering from silicone induced chronic fatigue syndrome subsequent to immunotoxicity. The plaintiff had informed him that the silicone implants had rough edges and sharp points. Dr Samra stated that: "[he] would regard this akin to the leakage of silicone from the breast implants and using poor quality materials such as this would certainly increase the chances of immune reaction and subsequent Chronic Fatigue Syndrome". 55 In cross examination, Dr Samra retreated from this view. Dr Samra stated that he could only speculate on the trigger of chronic fatigue syndrome, it could be a virus or the silicon implant, and that it was impossible to identify the cause. However, he did provide some support for the plaintiff's inability to work. 56 As previously stated Balla ADCJ accepted that the plaintiff did not display any of the symptoms of depression or anxiety and had not complained of nasal obstruction to Dr Taylor between 17 June 1989 and 10 August 1990. 57 The defendant discharged his obligation to seek and obtain opinions of specialists that may support the plaintiff's claim. However, these specialists did not express the view that the nose operation caused Chronic Fatigue Syndrome and the other problems the plaintiff complained about. At each consultation, the doctor took a history of the plaintiff's complains. At that stage the plaintiff had the opportunity to tell the doctors of all the problems he experienced. 58 Overall, the plaintiff alleged that these reports would have assisted his case. Even if I am wrong and some of these reports would have proved helpful in showing the plaintiff suffered from nasal problems and allergies, none of these reports linked the nasal obstruction and sinusitis as being caused by the operation. The plaintiff's evidence to the District Court was referred to by Balla ADCJ in her judgment at page 7. Her Honour observed that the plaintiff complained that he continued to suffer with problems breathing, pain in the ear through the mouth after running quickly, pain from the mouth to the ear when playing the clarinet, earaches, headaches, blurred vision, loss of balance, anxiety, depression and a loss of his confidence. She noted that the plaintiff had tried to play music but could not memorise music and his creativity had been destroyed. 59 Her Honour then made references to the plaintiff's inconsistent evidence. I will refer to only a few: firstly, that he had claimed that his health was good while he was in Queensland and that he had not suffered any medical problems but subsequently recalled an injury to one finger which he believed he had sustained while using a spanner and on further cross examination conceded that he could have injured his hand in a fight around Christmas 1990; secondly, the plaintiff had denied injuring his left eye in December 1989 but a report from Dr Taylor indicated that a foreign body was removed from the left eye on 16 December 1989; thirdly, the plaintiff admitted to having problems with the police while in Queensland, conceded that he had written to Dr Ali on 11 April 1994 informing him that he was acting on his own behalf in relation to a claim for psychological trauma resulting from an incident between the plaintiff and the Cooktown police and Dr Ali had subsequently prepared a report, essentially repeating the plaintiff's letter, asserting that he had seen the plaintiff on 13 April 1994 which was apparently untrue and concluding that it was likely that the plaintiff's symptoms were due to the incident with the police; fourthly, the plaintiff conceded that on 24 August 1997, he had written to Dr Coman in Brisbane asking the doctor to supplement the report of Dr Robinson as he was an ear nose and throat surgeon; and fifthly, the plaintiff conceded that he wrote to Dr Rajendram on 4 October 1990 asking the doctor to prepare a report for his case relating to the motorcycle accident and stating that he intended to use the proceeds of the claim to buy a boat and start a skin diving business but made no mention in the letter of his desire to pursue a medical career. Hence, there were difficulties with the plaintiff's inconsistent evidence. The plaintiff, by asking the doctors to alter their reports, would not have assisted the Judge in forming a favourable view as to his credibility.

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(3) Failing to Obtain Further Evidence Regarding Economic Loss 60 The plaintiff submitted that he would have been awarded more damages for economic loss had nasal obstruction caused by the nose operation been established. The plaintiff also submitted that his musical earnings at Noosa was $320.00 per week not $200.00 per week as claimed by the defendant. 61 The plaintiff obtained affidavits from Eduardo Brunetti, sworn 13 March 1998 and Ian Farrington, sworn 23 February 1998, in relation to the plaintiff's earnings at Noosa as a guitarist. Mr Luc Turschwel refused to provide an affidavit. The plaintiff gave evidence in the District Court that he was earning $150 per week. 62 The plaintiff provided submissions (a letter to the defendant's solicitor dated 20 July 2001) where he calculated his loss of earnings at roughly $1,500,000 to $2,000,000. I have carefully considered these submissions. The claim made by the defendant's counsel in his submissions for past economic loss was for $20,000 for the two year period between 4 May 1991 to 4 May 1993, calculated at a rate of $200 per week, and $25,000 for the five year period between 4 May 1993 to 4 May 1998, calculated at a rate of $100 per week. 63 On 5 April 1998, in relation to economic loss, the plaintiff was advised by counsel that there was support for some temporary worsening of breathing difficulties caused by the botched operation. According to counsel, Dr Buchanan's reports supported the view that after a piece of silastic tube had been extruded from the plaintiff's left nostril, the plaintiff had reported improvement in his airway. 64 By letter dated 15 August 1997 the defendant advised the plaintiff that it was their impression that the state of the evidence, which they had already obtained and were likely to obtain, would not enable the plaintiff to successfully obtain damages for economic loss, except in respect of a closed period claim from the date of the operation to a date by which the Judge assessed that he would have recovered sufficiently to be fit for work, possibly September 1991. 65 The defendant was aware that the plaintiff was receiving unemployment benefits and avoiding tax (see defendant's file note 10 September 1997). The plaintiff was advised that the court would not accept that the plaintiff was earning substantial money from performing if he was saying something different on his Department of Social Security forms. The difficulty in proving economic loss was referred to in the judgment: namely, in 1989 and 1991 the plaintiff had been diagnosed by Dr Ali and Dr Milson, respectively as being a paranoid schizophrenic and was according to Dr Milson 85% disabled and the severity of this condition rendered him incapable of working. 66 Balla ADCJ had to determine whether the plaintiff's schizophrenia was worsened by the operation and whether the plaintiff's other symptoms were causally related to the operation. Her Honour referred to the evidence of the plaintiff's doctors, Drs Skinner, Phillips and Ali, that the operation caused a two year exacerbation of the plaintiff's underlying schizophrenia but the plaintiff did not have any real earning capacity during this period. Her Honour decided that the plaintiff's other physical symptoms were not a consequence of the operation, which was in accordance with the opinions of Drs Stylis, Stevens and Robinson, so did not award any damages for economic loss. 67 The plaintiff submitted that the defendant should have told the court that he applied for a job with the State Transit Authority as a Marine Engine Driver Grade III. He was not successful with this job application. This attempt to apply for work was referred to in the judgment. The defendant presented the plaintiff's claim for past and future economic loss at a high but realistic level. The plaintiff's assertions of earning $500,000 per annum from the entertainment business and playing the classical guitar is fanciful.

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(4) Releasing the Hospital from the Proceedings 68 The plaintiff submitted that he believed that Mr Bates and the defendant had misinformed and misled him and that he had had time to consider that in a large institution such as a public hospital, where operations of various kinds are performed daily, there would be as a result a responsible body or group who would therefore approve or not, of what is being taken away from or added to a person's anatomy during an operation. According to the plaintiff, as such the defendant was irresponsible and negligent in releasing the second defendant from such a responsible enquiry on my behalf and also on behalf of the hospitalised public as a whole. 69 The statement of claim was drafted by Mr Barko of counsel. He included an alternate claim against the hospital for negligence (para 24 - 33) in case some evidence turned up against it but if not the case against the second defendant could be dropped (Ex 7). The defendant examined the hospital notes very carefully. None of the medical reports levelled any negligence at the hospital. The defendant obtained evidence that Dr Kleiner was not employed by the hospital and that he was a subcontractor, and sought counsel's advice. It was the solicitor's view that there was nothing to justify keeping the second defendant as a defendant. 70 In counsel's advice dated 8 September 1997, Mr Bates advised that he strongly recommended that the solicitor seek instructions from the plaintiff to discontinue against the second defendant with each party to pay its costs because otherwise the plaintiff may be ordered to pay the second defendant's costs. The reason for discontinuing against the second defendant is that the hospital is not vicariously responsible in these circumstances for the acts of the first defendant - see Ellis v Wallsend District Hospital (1989) 17 NSWLR 553. 71 The defendant's file note dated 12 September 1997 records that the plaintiff approved the discontinuing of proceedings against the second defendant on the basis that each party pay its own costs. The defendant sought and accepted counsel's advice. The plaintiff approved of this course of action. The solicitor acted properly and in accordance with his duty of care. 72 As events later transpired there was an admission of breach of duty of care by the first defendant. In these circumstances, any need to have the second defendant remain as a defendant had evaporated.

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(6) Failure to Cross Examine Dr Kleiner Regarding Condition of the Plaintiff's Nose Prior to the Procedure 74 A notice to produce was issued to Dr Kleiner's solicitors in relation to Dr Kleiner's medical records (Ex 5). It was the defendant's recollection that these documents were produced at Court and were inspected by himself and Mr Bates. It was also Mr Bates recollection that he was told by the defendant that Mr Kleiner's solicitors would produce these documents informally at court and that these documents were inspected by him. The defendant could not instruct counsel to cross examine Dr Kleiner because Dr Kleiner was a defendant and had exercised his right not to give evidence. As previously stated, breach of duty of care was admitted. 75 However, as I understand the plaintiff's case, he submitted that Dr Kleiner could have given evidence that the plaintiff did not suffer any allergies prior to the second nose operation in 1991. The District Court transcript, at pages 169-170, records that the following exchange took place in relation to Dr Kleiner's records: "WINDSOR: I tender MFI 1 being a letter to the plaintiff from the defendant dated 20 June 1991, annexed thereto a letter from the defendant to Dr Broxson dated 20 June 1991 together with a working copy. BATES: I do object to this your Honour. The reason I object your Honour is this, that my friend through this tender is seeking to tender in fact two reports from the defendant himself. We had indicated we wanted to cross-examine the defendant. My friend was not willing to make him available for cross-examination and therefore I do object to my friend through the guise of a few questions put in cross-examination to the plaintiff seeking in effect to get the defendant's opinion in without cross-examination. HER HONOUR: Does this go to whether the defendant - the plaintiff ever received a referral? WINDSOR: Yes your Honour. BATES: In that case - if it's simply going to that basis - just in the actual referral there's then a sort of material about - excuse me, I'll take some instructions. Your Honour can I speak to my friend. My concern is this your Honour, that there are matters in here which have not been put to my friend. HER HONOUR: Could we short cut it. Could we deal with this by way of a concession by the plaintiff that a referral was sent by the doctor? BATES: I'm happy - well I'm happy to make that concession your Honour." 76 This established that if Dr Kleiner chose to give evidence, the plaintiff's counsel intended to cross examine him. 77 The plaintiff underwent the operation as a public patient at Marrickville Hospital. Clinical notes were in evidence before Balla ADCJ. There was evidence of Dr Taylor whom the plaintiff consulted ten times prior to the second nose operation where no complaint of allergies or nasal obstruction was made. Thus, there was already evidence to this effect introduced by the plaintiff's legal representatives. The defendant did not act negligently.

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(7) Failure to Advise of the Time Limit for Filing an Appeal, Advising that an Appeal Should be Lodged 28 Days After the HIC Report was Received and Failure to Lodge an Appeal 78 The last three issues can be considered together. They are the alleged failure to advise of the time limit for filing an appeal, the alleged representation that the appeal time did not run until the receipt of an HIC Report. It is common ground that no appeal was filed from the decision of Balla ADCJ. The plaintiff alleges that the defendant made a false representation. The plaintiff wrote to the defendant and spoke with Mr Bates about lodging an appeal prior to the matter being heard by Balla ADCJ. However, after judgment was given, advice about lodging an appeal was given. The solicitor and barrister acted correctly by not advising on whether an appeal should be lodged until after the case had been heard. 79 In summary the plaintiff's version of events is that judgment was delivered on 10 May 1998. Mr Bates and the defendant say that although the judgment bears the date 10 May 1998, it was actually delivered on 1 June 1998. Mr Bates, who keeps meticulous file notes, has a file note which records the judgment date as 1 June 1998. I accept that judgment was delivered on 1 June 1998. In any event, it is common ground that, once judgment had been delivered, a lengthy conference was held between the plaintiff, the defendant and Mr Bates between 9.20 am and 10.45 am. 80 The plaintiff's version of events is that on 20 May 1998 the defendant represented to the plaintiff that the plaintiff could not execute the 28 day appeal time until the defendant received the HIC report. It was the plaintiff's evidence that on the day of receiving this report the defendant would notify the plaintiff and only then from the date of promised notification would the allotted 28 day appeal period commence. 81 The defendant deposed that: "I recall that on or about 1 June 1998, following Her Honour District Court Acting Judge Balla handing down her decision in the District Court proceedings, I attended a conference with the plaintiff and Mr Philip Bates of counsel. We had a conversation which included words to the following substance and effect: Paul Pappas said: " I want to appeal the decision. " I said: " You need grounds to appeal a court decision. If you want to appeal the decision, that is a matter for you. However, I will not act for you on the appeal. " Phillip Bates said: " You have 28 days to make an appeal, but I don't think you have any grounds to do so. " "

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Mr Bates' Evidence 82 At para 15 of his affidavit affirmed on 13 June 2001, Mr Bates stated: "On 1 June 1998, following Her Honour Acting District Court Judge Balla handing down her decision in the District Court proceedings, I recall attending a conference with Mr Angus Neil-Smith and the plaintiff. We had a conversation which included words to the following substance and effect: Paul Pappas said: " I want to appeal the decision. " I said: " You have 28 days to make an appeal, but I do not think you have any grounds to so. " " 83 Mr Bates made a contemporaneous file note (Ex M to Affidavit) which covers the period from 9.10 am to 11.10 am on 1 June 1998. Two thirds of the page gives details of what occurred when judgment was delivered. The entry "9.55 to 10.40" refers to the conference. It records that PB (Mr Bates) advised in conference that the plaintiff had no grounds of appeal. The plaintiff took the view that this file note was not correct because two thirds of the file note was devoted to what occurred in 35 minutes of time, whereas only one third of the page related to what occurred over a period of one hour and fifteen minutes. 84 As Mr Bates explained during cross examination the purpose of the file note was to assist him (Mr Bates). Although the file note does not specifically refer to the time to lodge an appeal but does refer to the view that there were "no grounds for appeal". Mr Bates has a firm recollection that he advised the plaintiff that he had 28 days to appeal from the date of judgment but that he had no grounds upon which to appeal. Throughout his career it has been his invariable practice to advise on the time period for an appeal and whether or not there is an appeal (transcript p14). Both Mr Bates and the defendant agree that the plaintiff was advised that he had 28 days to appeal but that he no grounds upon which he could appeal. I accept this evidence. 85 Further, on 23 July 1998 and 11 August 1998, the defendant had telephone conversations with the plaintiff where the issue of an appeal was raised. On 23 July 1997, the defendant had a telephone conversation with the plaintiff in which he informed the plaintiff that he had received the judgment sum of money. The plaintiff said "I still think I should appeal the decision" to which the defendant said "You're a bit late, you have 28 days from the date of judgment unless you apply for leave to file out of time. I won't act for you on the appeal." The plaintiff informed the defendant that he was going to try to see Michael Barko of counsel for an opinion. The defendant's time costing entry from 29 July 1998 records this conversation. 86 On 11 August 1997, the defendant had another conversation with the plaintiff in which the plaintiff informed him that he had not been able to get a reply from Mr Barko and that he still wanted to appeal the District Court decision. The defendant informed the plaintiff that there was "no merit in any such appeal". The defendant deposed that the plaintiff then said to him "Didn't you advise me that time to appeal runs out 28 days after clearance by the Health Insurance Commission?" The defendant replied that: "No Paul, if the HIC haven't determined the charge then the defendant can delay payment of the judgment debt until 28 days after the charge is determined by HIC, or else they can simply take 10% off the damages awarded and send you 90% and HIC 10%, in which case HIC will send you any balance left after deducting the charge. This doesn't effect (sic) the time to appeal. We have already told you it is 28 days after the judgment. you are out of time now. You can still apply for leave to appeal out of time. I think you probably have good grounds to bring that application. The fact you don't have solicitors acting for you anymore and your psychiatric condition, are factors which will assist you in getting leave to appeal." 87 The defendant deposed that the plaintiff then said that he thought the case was botched, that he wanted to appeal and that he was afraid that the defendant would seek to enforce the costs order and send the sheriff to seize his goods. At the time the telephone conversations were made, the defendant made contemporaneous file notes. I have no hesitation in accepting the evidence of the defendant and Mr Bates, in relation to the advice given to the plaintiff in relation to the appeal. I find that the representation as alleged by the plaintiff as to the appeal period was not made. The plaintiff was told he had 28 days from the date of judgment to lodge an appeal. After the appeal period expired he was told by the defendant on two occasions that he could seek leave to appeal but there was no merit in the appeal.

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(8) Overcharging 88 The plaintiff did not examine the defendant on this issue. On 30 November 1995, the plaintiff received an initial estimate of costs. On 14 August 1997, the defendant supplied the plaintiff with a further costs agreement and an itemised list of the costs incurred to date. The costs agreement stipulated that the professional charges for the defendants charges together with counsel's fees for completing the work up to a final hearing would be in the range of $30,000 plus or minus $5,000. The costs were estimated to be $25,878.25. 89 The plaintiff was further advised that he would have to pay this out of any settlement monies he received, plus the amount assessed by the Health Insurance Commission. The defendant advised that the plaintiff could expect the defendant (in the District Court proceedings) to pay a proportion of his costs, probably 50%, perhaps more, but only party-party costs and not solicitor-client costs. When the offer of compromise was served, the defendant confirmed by letter to the plaintiff that he had explained to him the effect of the offer of compromise made by the defendant (in the District Court proceedings) and he repeated that. The plaintiff was advised that if he did not accept the offer and achieve an award of damages of $65,000.00 or less then he would have to pay all of the defendant's costs from 11 September 1997 until the end of the proceedings on a party-party basis. The defendant also advised the plaintiff that the costs of the defendant (in the District Court proceedings) were likely to be substantial because the hearing would run five or six days and that the plaintiff could assume that their costs would be in the order of $4,000.00 per day and that the plaintiff should allow preparation time of approximately four days. Accordingly, the defendant informed the plaintiff, he was running a substantial risk in relation to the offer and should give it serious consideration. 90 On 20 April 1998, the plaintiff was given advice that any award he was likely to receive in his action against Dr Kleiner would be in the range of $35,000 to $50,000 and no more. He was advised to accept an offer of $65,000 from the defendant plus costs but he rejected that offer. The plaintiff was further informed that if at the hearing he was awarded an amount less than the offer of $65,000 he would be liable to have a costs order made against him. He was told of the likely costs the defendant would incur and that any award of less than $65,000 was unlikely to cover the defendant's costs as well as those of his former and current legal advisers. Despite this advice the plaintiff instructed the defendant to proceed to hearing of the matter. The plaintiff gave written instructions to this effect. 91 On 20 April 1998 the plaintiff signed a written authority to reject the defendant's offer of compromise in the sum of $65,000. In that authority he acknowledged that the likely award will be in the range of $35,000 to $50,000 for general damages and that he was most unlikely to achieve an award of $65,000 or greater. The plaintiff acknowledged that there was an overwhelming likelihood that he would not receive an amount greater than $65,000. In the authority he also acknowledged the consequences of rejecting the offer would mean that he would be liable for his solicitor's costs and Dr Kleiner's costs and in the event that he recovered less than $65,000, there would be a likely shortfall in the amount of money available out of the balance to pay his prior solicitors and barristers. The plaintiff acknowledged that he had an obligation to personally pay the creditors. 92 Hence the plaintiff acted against the advice of his legal advisers to his detriment. The verdict moneys he received were used to pay his legal representatives costs. The plaintiff was informed of the costs he had incurred and would incur. There is no evidence that the plaintiff was overcharged. The solicitor followed the plaintiff's instructions which sometimes meant that extra work had to be carried out. The defendant exercised a reasonable level of professional care and skill and took all reasonable steps to advise the client and gather evidence in the plaintiff's proceedings for medical negligence against Dr Kleiner. He exercised a standard of care of an ordinary skilled solicitor who acts in medical negligence matters. The solicitor properly discharged his duties both under contract and at common law. The plaintiff has been entirely unsuccessful in his claim for professional negligence against the defendant.

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Overall 93 Finally a passage by Lord Pearce in Rondel v Worsley 1 AC 191 at 275 is apt in the case before me. The passage is: "It is easier, pleasanter and more advantageous professionally for barristers to advise, represent or defend those who are decent and reasonable and likely to succeed in their action or their defence than those who are unpleasant, unreasonable, disreputable and have an apparently hopeless case. Yet it would be tragic if our legal system came to provide no reputable defenders, representatives or advisers for the latter. And that would be the inevitable result of allowing barristers to pick and choose their clients. It not infrequently happens that the unpleasant, the unreasonable, the disreputable and those who have apparently hopeless cases turn out after a full and fair hearing to be in the right. And it is a judge's or a jury's solemn duty to find that out by a careful and unbiased investigation. This they simply cannot do if counsel do not (as at present) take on the less attractive task of advising and representing such persons however small their apparent merits. Is one then to compel counsel to advise or to defend or conduct an action for such a person who as anybody can see is wholly unreasonable, has a very poor case, will assuredly blame someone other than himself for his defeat and who will, if it be open to him, sue his counsel in order to ventilate his grievance by a second hearing either issuing a writ immediately after his defeat or brooding over his wrongs until they grow greater with the passing years … " 94 As criticism and allegations are made against both the defendant and counsel involved in the District Court proceedings (although Mr bates was not joined as a defendant), it should be stated that the defendant solicitor, Mr Angus Neil-Smith, and counsel, Mr Philip Bates, acted at all times in the plaintiff's interests. They could not have been expected to do more. The allegations of incompetence are without foundation. I am satisfied that there is no basis for the criticism of Mr Neil-Smith and Mr Bates in respect of their conduct of the District Court litigation on behalf of the plaintiff and in respect of the advice they gave him, the steps which they took to procure evidence on the plaintiff's behalf and the presentation of his case on hearing. The plaintiff was a difficult client who on occasions acted against the advice of his legal advisers to his detriment. In April 1998, the legal advisers were so concerned that they sought advice from Dr Phillips as to whether the plaintiff had the capacity to give instructions. Dr Phillips advised that the plaintiff did have the requisite capacity. 95 Accordingly, the plaintiff's claim fails. I enter a verdict and judgment in favour of the defendant. 96 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendant's costs.

At a glance

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Judgment (32 paragraphs)

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Legislation Cited (1)

Cases Cited (3)