Peterson v South Eastern Sydney Illawarra Area Health Service & Elliott

The original injury sustained by the plaintiff on 11 October 2003 involved a very severe set of multiple, complex and comminuted fractures, the prognosis for which almost inevitably involved the plaintiff developing some lasting disability in the form of post-traumatic osteoarthritis, irrespective of the very good treatment initially received for those fractures. It was just a matter of time as to when this would occur.

Dr Elliott thought it was probable that the plaintiff's injury would result in post-traumatic arthritis in the coming years. Dr Bornstein agreed, stating that the risk of osteoarthritis developing was very high, including the possible need for an arthrodesis. Dr Donaldson was of the view that the plaintiff developed fracture disease or ankle joint stiffening in the absence of a want of care on the part of the defendants. He also identified the prospect that even with earlier surgery, complications may still have arisen requiring multiple attempts at connection, as was encountered by Dr O'Carrigan. Professor Nade said that fractures of the kind suffered by the plaintiff were always difficult to treat and that normal function does not occur even in the optimal treatment situation. Professor Higgs also acknowledged that the risk of osteoarthritis was an ever-present consequence of the injury. He said that the type of injury sustained by the plaintiff is generally accepted to have the worst results. He said that this type of injury had a 50 per cent chance of a good result even if well treated.

Professor Higgs was more optimistic as to the likely outcome stating that if the plaintiff had benefited from the earlier surgery in or about March 2004 he probably would have been expected to have regained normal or near-normal function of his right lower leg. I do not accept that opinion for two reasons. First, the opinion is not sufficiently explained by supporting reasoning : Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 30; (2001) 52 NSWLR 705. Secondly, the opinion seems to me to be at odds with the statistic he cited that there was less than a 51 per cent chance of a good result if well treated. Thirdly, it assumes that Dr Elliott should have operated or arranged for an operation at a time when he considered, for stated reasons, the risk of surgery should not be undertaken. In doing so, he has effectively ignored the clinical advantage that Dr Elliott had on this issue.

For these reasons I prefer the views of Dr Donaldson and Professor Nade to those of Professor Higgs on this causation issue.

In my view, based on the medical evidence, these disabilities were most probably going to affect the plaintiff at some stage in his life, whether it was 2, 3, 5, 10 or so years after his injury, irrespective of any alleged negligence on the part of the defendants.

In view of the disabilities the plaintiff was likely to encounter in any event, absent any negligence of the defendants, it is incumbent upon the plaintiff to demonstrate through evidence, what materially different disabilities would probably have arisen as a result of the negligence. This is not an appropriate case for a simple application of the "but for" test of causation : Chappell v Hart [1998] HCA 55; 195 CLR 232 per Gummow J at [66]. Some cogent evidence of differentiating evidence was required. In my view, for the reasons I have identified, the abovementioned evidence of Professor Higgs did not satisfy that requirement.

In reviewing the evidence as to what possible difference in disability has arisen, it seems to me that even when viewed at the most advantageous level for the plaintiff's case, the evidence falls short of satisfactory proof.

The evidence for the plaintiff's causation argument is that following the initial treatment with the spatial frame, the fractures were held in a good position of reduction and alignment. This changed to a position of abnormal external rotation of the tibia and fibula when the spatial frame had to be removed due to infection and when a manipulation for equinus contracture was performed. There was no criticism of the decision to remove the spatial frame. The effect of that removal led to some fracture displacement causing a mal-rotation, which went on to mal-union. Given that the decision not to intervene surgically at that time, either on or shortly after 25 February 2004, was one that was reasonably open to Dr Elliott for the reasons I have already stated, I consider that it cannot be reasonably argued that the mal-rotation and the resultant mal-union were avoidable consequences of the plaintiff's injury.

Professor Nade pointed to the mal-rotation in the fractures that had healed by the time Dr O'Carrigan had operated to indicate that the remedial surgery undertaken by Dr O'Carrigan was not due to non-union or delayed union, as was clear from the findings of Dr O'Carrigan at operation, but was in fact due to the need to correct mal-rotation and mal-union, which was a by-product of the angulation that Dr Elliott did not treat surgically, initially due to infection and circulatory factors, and then later because of a perception of progress to union. Professor Nade argued that the first, and therefore the subsequent operations undertaken by Dr O'Carrigan for mal-rotation - because the first operation he performed was unsuccessful - would have been needed in any event. On an acceptance of that view, there is no reasonable basis for a causation finding to be made in the plaintiffs favour on that issue.

Apart from the evidence of Dr Bornstein and Professor Higgs, there is no evidence to support a finding that a delay in operating between 25 February 2004 and 11 August 2004 led to Dr O'Carrigan's procedure being unsuccessful, and therefore requiring the 4 further procedures that were performed.

The argument against the analysis put forward by Professor Nade was first stated by Dr Bornstein in the final paragraph of his report dated 4 September 2006, where he stated that the plaintiff would not have required the operation performed by Dr O'Carrigan if an earlier procedure had been carried out to correct the mal-rotation soon after it had appeared. Whilst logically, that view may be correct, it is only correct from the causation perspective if it is assumed that contrary to the level of risk assessment arrived at by Dr Elliott, that Dr Elliott should have nevertheless operated on the plaintiff in the period between February 2004 and August 2004, in the form of the procedure ultimately performed by Dr O'Carrigan on 25 January 2005.

The view expressed by Dr Bornstein in his report dated 26 February 2007 that the x-ray findings on 25 February 2004 dictated that an internal fixation procedure should have taken place, has to be viewed in the correct clinical context. That view does not adequately reflect the problem of the recent MRSA infection which was a concern to Dr Elliott. The relevant context was that it was Dr Elliott who was going to be responsible for managing the fracture. A further relevant context was that there was a range of surgical opinions, some being more prepared to undertake the risk of surgery than was Dr Elliott. In my view he cannot be criticised for his conservative approach to surgery where he was the one who would bear the responsibility of a poor result due to infection or the other circulatory and soft tissue injury factors that he had adverted to in his evidence. In this context it has to be recognised that there are a range of views over intervention, some surgeons being more readily prepared to intervene than others, as was observed by Dr Donaldson and Professor Nade.

Professor Higgs thought that the plaintiff should have been referred to Dr O'Carrigan in March 2004 and if this had occurred the plaintiff would have avoided some pain and suffering between March 2004 and January 2005 but he acknowledged the plaintiff would have only needed 3 further surgical procedures, namely, the osteotomy, the fixing of the frame, followed by removal of the frame at a later date and then the insertion and removal of fixation plates.

There are some difficulties with that view. First, there is the fact of Dr Elliott's more conservative approach which I have already discussed. Secondly, it is not necessarily correct to say that a referral to Dr O'Carrigan in February 2004 would have saved the plaintiff pain and suffering between March 2004 and January 2005, noting that when Dr Elliott referred the plaintiff to Dr O'Carrigan on 11 August 2004, Dr O'Carrigan operated on the plaintiff on 25 January 2005, some 23 weeks later. Thirdly, Professor Higgs has not explained in full the basis for his view that the other 2 procedures undertaken by Dr O'Carrigan would have been unnecessary. In my view this aspect of his opinion ignores the risk of complications of the kind that the plaintiff and Dr O'Carrigan actually encountered and which, in my view, cannot be ignored. In this regard, I consider Professor Higgs' analysis to be overly simplistic. For that reason I prefer the opinion of Professor Nade who correctly observed that one cannot assume there will be a perfect result from postulated surgery.

It is also of significance to recognise that Dr Bornstein's report dated 22 March 2007 was qualified by his statement on the second page to the effect that his interpretation of the x-ray indications of a fracture line representing non-union was just that, namely an interpretation that was not intended to be a definitive statement. I take this to mean that a clinical perspective was also required in the analysis. In this regard it is also of significance that Dr Bornstein changed his view as to the presence of non-union to that of delayed union.

Once it is recognized, as I have found it to have been the case, that Dr Elliott's decision not to operate, at the commencement of the period between February and August 2004 and during the course of that period, was defensible according to accepted peer practice widely accepted in Australia, it becomes apparent that the plaintiff was inevitably going to have a mal-rotation which was going to require corrective surgery of the kind that was later undertaken by Dr O'Carrigan. That is, the need for such latter surgery would have been inevitable if in fact the plaintiff found that he was unable to accept a degree of mal-rotation in the manner described by Dr Elliott.

It is for that reason that I prefer the analysis by Professor Nade to the analyses put forward by Dr Bornstein and Professor Higgs, as summarised above.

In this regard, it is significant that Dr Bornstein conceded in his first report that he could not be dogmatic in his view because of the absence of clinical information. It is also significant to note that neither Dr Bornstein nor Professor Higgs had the advantage which Dr Elliott had when he was dealing with the plaintiff's problems in the clinical setting. It is apparent from the evidence in this case that Dr Elliott's clinical advantage involved a first-hand understanding of the state of healing of the fracture, evidenced by the findings he was able to garner on a clinical and physical examination, as well as from the radiological examinations.

In this regard, it is also pertinent to note that Dr Elliott needed to undertake a very personal risk assessment in which he weighed the indications for, and the contraindications against, surgical intervention. This latter issue was a matter upon which Dr Elliott had to make his own decision at the time. Caution and fairness dictates that such a decision should not be criticised by a hindsight analysis that fails to adequately take this factor into account.

In my view, once it is recognized that the removal of the fixation device in February 2004 inevitably led to a degree of fracture displacement, and once it is recognized that not only was Dr Elliott justified in not operating earlier for the reasons he gave, but that he was then justified in his subsequent decision to proceed by expectant and monthly monitored management, by which it was hoped that union would occur over time, albeit with delay, and in the knowledge that mal-rotation would have to be corrected at a later date, if that problem remained significant and inconvenient to the plaintiff, then the plaintiff's causation case must fail. For the reasons I have given, I so find.

Before leaving the causation issues, there is another issue, which in my view, represents an obstacle to a causation finding in favour of the plaintiff.

In his report of 21 May 2007, Dr O'Carrigan stated that all of the plaintiff's disabilities were a direct result of the accident. Nowhere in his analysis did Dr O'Carrigan identify a level or layer of avoidable disability that arose due to any actions or alleged inactions on the part of either of the defendants. That view, coming as it does from a treating surgeon who had obviously undertaken a thorough evaluation of the plaintiff's problems before further operating upon him, is in my view, and insightful and insurmountable impediment to the success of the plaintiff's case on a causation analysis.

There are also 2 other matters that should be mentioned. There is the effect of the plaintiff smoking cigarettes and the possible impact of this on the healing process, as well as the effects of the plaintiff's fall on 19 January 2004, which was followed by pain in his right foot and ankle. The parties avoided detailed analysis of these two latter matters. This was so notwithstanding that in the case of the fall, Dr Donaldson and Professor Higgs mentioned this factual matter in passing in their reports. The matter was not followed up in evidence. In the absence of expert evidence on the significance of the fall, a commonsense analysis would indicate that the fall in question which gives rise to an inference of fresh injury because of a subsequent degree of pain, could be a matter of some significance to the process of fracture healing : Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538. In the case of the fall, it is pertinent to note that the unchallenged view of Dr Donaldson was that the plaintiff's stumble and fall may have caused loosening of the fracture components. Given the subsequent complaint of pain I consider that this is probably what happened, so as to give rise to a novus actus interveniens. During submissions it was acknowledged by the plaintiff that this matter was ignored in the evidence. Be that as it may, on the state of the evidence, I find it unnecessary to further analyse these other issues in view of my primary findings on the causation question.

To allow for the possibility that I may have erred in making my findings on the issue of breach of duty of care, in conformity with convention, I set out my findings concerning the contributory negligence arguments that were raised by the defendants.

In my consideration of Issue 1, I have already found that the plaintiff was advised to stop smoking in the context of the slow progress that was encountered in respect of the healing of his fractures. The defendants claim that the plaintiff's failure to cease smoking in the period whilst he was under their care should base a finding of contributory negligence. The defendants carry the onus of establishing contributory negligence on the plaintiff's part. That onus on the defendants relates not only to establishing the factual basis of the conduct relied upon being characterised as contributory negligence, but it also requires that the defendants establish a relevant relationship of causative potency to the harm suffered by the plaintiff.

The task of apportionment of blame on account of contributory negligence is an evaluative exercise, in which matters of proportion, balance, emphasis and the weighing up of different consideration plays a part, as has been more recently restated in Evans v Lindsay [2006] NSWCA 354, following Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 at [10]; Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16 and Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552.

The task, essentially, is to allocate the causative potency of the respective breaches to be shared according to proportions that are just and equitable as was explained in Davies v Swan Motor Co. Ltd [1949] 2 KB 291 at 326 per Denning LJ.

In Pennington v Norris, the process of apportionment was explained by Dixon CJ, Webb, Fullagar & Kitto JJ at 16 to necessarily involve a comparison of culpability in the sense of a degree of departure from the standard of care of the reasonable man. In Podrebersek the nature of the task of reaching an apportionment was described as reaching a conclusion as to the relative importance of the acts of the parties in causing the damage.

With these principles in mind I approach the task of evaluating the causative potency of the plaintiff's actions compared to the actions of the defendants.

Notwithstanding my earlier finding that the plaintiff had been advised to cease smoking, I am not persuaded that the failure on the plaintiff's part to heed that advice until early to mid-August 2004 should be characterised as contributory negligence on his part, and even if it was, I am not persuaded that it was a potent cause of any ultimate harm suffered by him. I have reached this conclusion for the reasons that follow.

First, although the plaintiff's failure to heed advice to stop smoking is capable of supporting a finding of contributory negligence, on the evidence given in this case, I consider that the extent of the evidence elicited by the defendants is insufficient to base such a finding. In this regard, I consider that the evidence is insufficiently precise to establish an actual awareness on the plaintiff's part of the potentially deleterious effects of continuing to smoke cigarettes at a time when to cease to do so would have a materially different causative impact on the healing of the plaintiff's fractures. Whilst I am persuaded that the plaintiff was advised to cease smoking, the terms of the evidence adduced did not go so far as to impute to the plaintiff an actual or probable awareness, that continuing to smoke was likely to have had an adverse impact on the process of bone healing. The issue of the plaintiff's understanding of the matter has to be considered in such an evaluation. This is a matter upon which the defendants carry the evidentiary onus. In my view the circumstances outlined in the evidence contra-indicate a finding of contributory negligence in this case.

Secondly, at the time when Dr Elliott made his exclamatory note in the hospital records concerning the need for the plaintiff to stop smoking, it is clear that a substantial period of time had already elapsed during which a combination of states of non-union and delayed union had prevailed. In my view the defendants have failed to adduce definitive evidence either proving or tending to prove by reasonable inference, that at any time before May 2004, or after May 2004, and before August 2004, a refusal of the plaintiff to cease smoking would have had a material contributing causative impact on the further delay in bone union at those relevant times.

Thirdly, I consider that on the state of the evidence in this case, it would be unreasonable to draw an inference that during any of those periods, and at a time that was causally relevant, that a demonstrably material causative difference in outcome or level of damage, was due to avoidable fault on the plaintiff's part. In my view, a result in those terms has not been made out on the evidence.

I therefore find that the defendants have failed to discharge the onus upon them to establish contributory negligence on the part of the plaintiff.

In the paragraphs that follow, I set out my findings on the issues of the plaintiff's injuries, treatment, rehabilitation, mitigation, disabilities and probable remaining life span.

The undisputed evidence is that the plaintiff sustained a most severe comminuted orthopaedic fracture of his right lower leg and ankle, classified as a Type 3 Pilon fracture. This injury resulted from a high energy impact of the plaintiff's right foot with the ground, shattering the ankle bones into many fragments, disrupting the articular surface of the right ankle and also resulting in fractures to the right fibula and the distal tibia near the ankle. Fortunately, the indisputably skilled primary treatment received by the plaintiff at the hands of the defendants avoided the plaintiff facing the need for an amputation of his right lower limb.

The plaintiff's ankle fracture was fixed by the insertion of AO screws, following which it healed. The fractured fibula went on to unite and heal within an expected time range. Unfortunately, the healing time for the fractured distal tibia was extended.

In these circumstances, where there is a claim that subsequent delays in affording the plaintiff appropriate surgery in the follow-up period during which the fractures from the original injury were expected to have healed, it becomes necessary to identify the specific additional injury sustained by the plaintiff as providing a basis for an award of damages.

The statement of particulars filed on behalf of the plaintiff claimed that for the purpose of these proceedings, the plaintiff has suffered 3 relevant injuries. The particulars of those injuries were a delayed union of the tibia, mal-rotation of the tibia and psychological trauma.

In my view the only reasonably identifiable injury for which the plaintiff could legitimately make a claim would be for an allegedly avoidable prolongation of an un-united state of the tibial fracture. I have found that to the extent that there was a portion of the tibial fracture that had remained un-united up until 11 August 2004, the actions of the defendants did not contribute to that state. In my consideration of Issue 2, I have found that the plaintiff's right distal tibial fractures had united by 25 January 2005. For the reasons I have already outlined, I have not accepted the plaintiff's argument that there was an avoidably long delay in affording the plaintiff operative treatment.

In my view, on the state of the evidence, it cannot be reasonably argued on behalf of the plaintiff that the defendants caused either non-union or delayed non-union of the plaintiff's distal tibial fracture. Similarly, I consider that the mal-rotation of the plaintiff's tibia cannot be reasonably attributed to any fault on the part of the defendants. It is understandable that the plaintiff suffered psychological trauma as a result of his injuries and the resultant prolonged period of treatment, but I do not see any basis on the evidence to attribute the blame for this to the defendants.

The plaintiff's ankle fractures were surgically treated by the insertion of some AO fixation screws to hold the fragments in place whilst bone healing occurred. The result has been a restoration of the position of the ankle bones in a good anatomical position notwithstanding the earlier disruption of the articular surface of the ankle joint.

The fractured long bones of the plaintiff's right leg were treated by immobilisation in an external fixation device variously called a Hoffman or Taylor spatial frame which fixed the fractured tibia and fibula at appropriate positions. The progress of the healing of these fractures was monitored by successive x-rays taken at periodic intervals determined on review of the plaintiff at the hospital fracture clinic.

The fixation device was appropriately dynamised to enable the plaintiff to load or weight bear to promote bone healing. Unfortunately the pin sites for the fixation device became infected with MRSA which required the fixation device to be removed. Thereafter, from February 2004 until August 2004, the plaintiff used crutches pending further periodic reviews to check on progress of bone healing.

The foregoing description of the plaintiff's treatment, which was supervised by the defendants, did not attract any professional criticisms from any orthopaedic or other peer practitioner in respect of the period up to the end of February 2004.

The plaintiff was referred for tertiary assessment, advice and management in August 2004. He was operated upon by Dr O'Carrigan on 5 occasions, namely, 24 January 2005, 20 July 2005, 12 August 2005, 20 July 2006 and 8 November 2007. All of these operations were for the correction of a rotational deformity that had been present since the removal of the fixation device on 9 February 2004.

In conjunction with this treatment the plaintiff took significant amounts of pain killing medications.

The evidence discloses that following his referral to Dr O'Carrigan for the described treatment, he has had physiotherapy treatment, he has undertaken exercises and he has generally made appropriate efforts to improve his position in order to return to work on lighter duties in January 2007. There is no evidence that the plaintiff failed to avail himself of, or co-operate with, any offered rehabilitation advice or assistance.

I consider that the plaintiff has taken reasonable steps to mitigate his situation by following most treatment recommendations and by obtaining work in January 2007, albeit on lighter duties. Although the plaintiff has apparently declined to attend a further consultation with Dr O'Carrigan, I do not consider that his disinclination to do so amounts to an unreasonable failure to mitigate his loss. I take this view because there is no evidence of a benefit to him with regard to such a consultation. He has obviously had enough contact with surgeons. In my view this cannot be reasonably said to be an unreasonable failure to mitigate, because in my view, subjective factors can be taken into account.

The approach taken on behalf of the plaintiff with regard to his ongoing disabilities is to claim that these were due to the alleged negligence of the defendants. This is evident from the way in which the disabilities are framed in the statement of particulars filed on behalf of the plaintiff.

The plaintiff asserts that he has had 3 additional operative procedures carried out on him in order to achieve union of his right tibia. He claimed that these procedures were unnecessary. The plaintiff also claims that he has been left with mal-rotation of his right lower leg which would have been avoided if he had been treated in the manner contended. He claims that as a result of these matters, he has been put through the trauma of unnecessary surgery, he has been left with significant physical restrictions, including difficulty with all forms of physical activity, an inability to run or play active sport, pain and discomfort when walking up and down stairs and difficulty negotiating uneven ground. He claims his right lower limb carries the scars of unnecessary surgery. He also claims the need for domestic assistance and assistance with handyman and gardening activities. He also claims he has suffered severe depression.

The reports of Dr Harvey and Dr Davis deal only with the results of the primary injury and do not differentiate between the effects of the primary injury and the additional effects of the alleged negligence. There is no medical evidence concerning treatment of the plaintiff for depression.

It is incumbent on the plaintiff to establish that his claimed disabilities are as a result of alleged inadequate treatment at the hands of the defendants rather than such problems being due to the ordinary, natural and probable consequences of the primary injuries.

I have not accepted the opinion of Professor Higgs that the plaintiff would have probably had a much better predicted outcome if there had been an earlier surgical intervention in the period 25 February 2004 to 11 August 2004. I have stated my reasons for that finding in setting out my causation findings.

For the reasons I have outlined with regard to the causation component of the claim, I consider that the plaintiff has failed to establish these matters by evidence. Accordingly, these matters remain as unproven allegations. It is insufficient for the plaintiff to merely complain of these disabilities as that approach does nothing to serve to discharge the onus of proof that he carries with regard to showing these matters are the avoidable consequences of the treatment of which he complains.

In my view, the plaintiff has failed to establish by evidence, any disabilities that either have in the past, or continue at present, to afflict him in a way that would not have occurred in any event, if he had been afforded the treatment he contended he ought to have been given. In this case the plaintiff carries the evidentiary burden of establishing the relevant difference in the level of his claimed disabilities so as to differentiate the effects of the primary injury from the subsequent events for which he claims damages for negligence : Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. In my view the plaintiff has not discharged that evidentiary burden. This is a matter of some significance to the plaintiff's claim for damages for non-economic loss and other heads of damage.

I accept the evidence of the plaintiff and his employer Mr Stennard, to the effect that the plaintiff no longer has the capacity to carry out the full duties of a tradesman plumber or any other work that requires the exertion of unrestricted physical mobility, strength, agility and dexterity. I accept the evidence of Mr Stennard that the plaintiff is being reasonably remunerated in the labour market at $600 per week net on account of his restricted earning capacity. I also accept the evidence of Mr Stennard that the reasonable measure of the plaintiff's lost earning capacity is to be identified as being at $600 per week net. I regard that sum as being conservative as it does not include any provision for overtime.

I accept the evidence of Mrs Peterson that following his injury, the plaintiff was unable to fully care for himself for a time, and this required that she provide him with domestic assistance in the manner and to the extent she described in her evidence. This was initially in the form of 24 hour on call care for the first few weeks, followed by an average of about 25 hours per week from the end of October 2003 until the end of January 2007, a period of about 169 weeks. I will analyse the significance of this in my reasons concerning the plaintiff's claim for domestic assistance.

Having regard to the current prospective life tables, at age 30 years, this being the plaintiff's age at trial, in the absence of any medical or other evidence suggesting a decreased life span, I assess the plaintiff's life expectancy, which is by definition a statistical estimate or average, to be in a rounded down estimate of a remaining 55 years.

Although I have found that the plaintiff has not succeeded in establishing an entitlement to damages on account of a failure to establish causation, in accordance with convention, to allow for the possibility that on an appeal it may be determined that my findings on causation were made in error, I now turn to an assessment of the heads of damage claimed by the plaintiff.

On behalf of the plaintiff, Mr Hirsch submitted that the "injuries and disabilities" sustained by the plaintiff merit an assessment of damages for non-economic loss in the range of 40 per cent to 45 per cent of the most extreme case ["MEC"] pursuant to section 16 of the CL Act. The current indexation of s 16 damages, equates this to a range of between $189,500 to $213,000.

On behalf of the defendant, Mr Fordham submitted that on an assessment of this head of damage, the appropriate percentage of a MEC would be 25 per cent. After allowing for the statutory deduction, this currently quotes an amount of $31,000.

In view of the disparity between the submissions, the underpinning assumptions requires evaluation.

Damages pursuant to s 16 of the CL Act are intended to compensate the plaintiff for pain and suffering, loss of enjoyment and the amenity of life, and to place the plaintiff in the position he would most likely have been in, but for the negligence of which he has complained. In this context, it is necessary to identify the position the plaintiff would most likely have been but for the claimed negligence.

The unchallenged evidence of Dr Elliott, which I have accepted, was that the plaintiff's original ankle fracture was very severe, on the scale of 8.5 out of 10, where a score of 9 would have led to an amputation. The fracture and the related soft tissue injuries were certainly very complex. The recollection of Dr Elliott was that there were as many as between 25-40 individual fragments of bone.

Further, in the convalescence period, in January 2004, which was well before considerations were required for further intervention, an issue arose with regard to an infection at the pin sites. That infection consisted of a penicillin resistant staphylococcus aureus infection, otherwise known as MRSA or golden staph, which was associated with infection, pain and increased discharge at the surgical wounds. There was no criticism of Dr Elliott's decision to advise removal of the fixator devices at that stage because the continued presence of a rigid external fixation potentially inhibited the formation of callous and therefore, bone union.

Further, as at March 2004, there was no criticism of Dr Elliott's opinion not to consider performing an osteotomy procedure to correct angulation at that stage because it would have delayed progress and would have led to further immobilisation. At that stage, it was therefore clearly apparent that in the coming weeks or months, a further surgical procedure of the kind carried out by Dr O'Carrigan would have been necessary to correct the angulation problem that emerged following the removal of the external fixation device.

In my view the evidence does not permit a reasoned analysis of whether the first operation conducted by Dr O'Carrigan, if carried out earlier, say between March and May 2004, or even before August 2004, or before January 2005 for that matter, would have obviated the need for the plaintiff to have the subsequent procedures that were identified as having been carried out by Dr O'Carrigan on 24 January 2005, 20 July 2005, 12 August 2005 and 20 July 2006.

It is in this context, that a differential analysis of the plaintiff's complaints of disability is required to be undertaken in order to achieve an understanding and definition of what most probably would have been the case concerning his likely level of disability, if the initial treatment carried out by Dr O'Carrigan had been carried out within the time frame that was contended on behalf of the plaintiff.

In my view, the state of the evidence in this case does not reasonably permit that analysis, other than by impermissible speculation : Luxton v Vines [1952] HCA 19.

I have already summarised the physical, cosmetic, functional, psychological and emotional consequences for the plaintiff of his injuries and resultant disabilities. That summary appears between paragraphs [519]-[525] of my reasons. In my view the evidence does not reasonably permit a differentiation within those disabilities to segregate for assessment purposes which of them relate to the original injury and which of them should be regarded as having arisen in whole or in material part to alleged negligence. Accordingly, in my view, there is no rational basis upon which to base a finding that involves such differentiation. This is a matter upon which the plaintiff carries the onus of proof. I find such proof to be absent from the fabric of the evidence in this case.

Other than through what I consider to be insupportable speculation, the medical evidence in the proceedings offers no guidance on this issue.

In my assessment the plaintiff has failed to provide any evidence that would, by reasoning, demonstrate a relevant difference in his situation if the contended treatment had been afforded to him, so as to base an assessment of damages for non-economic loss based on the considerations required by s 16 of the CL Act. I come to this view because of my acceptance of the evidence of Professor Nade that the procedures performed on the plaintiff for mal-rotation would have been required in any event, noting that they were not performed for any non-union or delayed union.

However, in coming to that view, I have to consider the possibility that I may be in error in my findings in this regard such that an alternative assessment is necessary. In order to allow for that possibility, for the purposes of an alternative assessment, in the absence of evidence to differentiate the plaintiff's present disabilities from those due to his original injury, I accept the appropriateness of the MEC concession made on behalf of the defendants, namely 16 per cent of a MEC, which equates to a monetary assessment of $31,000.

Accordingly, if the plaintiff had been entitled to damages for non-economic loss, I would have assessed such damages in the conceded amount of $31,000.

The plaintiff makes a claim for past loss of earning capacity in the net sum of $145,400.

The basis upon which the plaintiff's claim proceeds is that at the time of his accident he was earning $600 per week net as a plumber. It is claimed that absent the negligence of the defendants, the plaintiff would have ordinarily returned to work after about 7 months following the accident, namely around the end of October 2004. The plaintiff claims this is a conservative estimate that allows for even further time than that which was anticipated in the evidence of Dr Bornstein for recovery.

The quantification of the plaintiff's claim for past economic loss proceeded upon an imprecise basis, mainly that in each of the financial years following his accident, up until the date of the commencement of the trial, his weekly earnings would have increased by about $100 per week net having regard to award wages, increased skill and experience.

On this approach the plaintiff claims that his probable net earnings, but for the alleged negligence of the defendants, would have been of the order of $188,000. The submission concedes that the plaintiff earned mitigatory earnings in the 2008 and 2009 financial years totalling $42,600, thus identifying a claimed net loss of $145,400.

Whilst the evidence for the approach contended on behalf of the plaintiff is imprecise, I consider the approach to be nevertheless reasonable.

On behalf of the defendant Mr Fordham submitted that at best, the plaintiff's claim for past loss of earnings should be limited to 6 months at $600 per week net or $15,600.

The basis for that submission was that the plaintiff's underlying injury, for which he was not entitled to compensation, had the potential to keep the plaintiff out of the workforce for a considerable period of time, during which he would be undergoing continuing post-operative recuperation, including recuperation from multiple surgical procedures. These procedures at the very least comprising the original operation and the subsequent fixator removal, in respect of which there was no complaint, and a further procedure for tibial osteotomy, which may or may not have been successful and may or may not have required subsequent revisionary surgery, as had been performed by Dr O'Carrigan.

In view of the inherent imprecision in the exercise of assessing past loss of earning capacity, I consider that a more conservative approach than that advocated on behalf of the plaintiff is required in order to accommodate the point made by the defendant, but not in terms that are as constrained as that which has been argued on behalf of the defendant.

In taking this approach, and in adjusting the figures argued on behalf of the plaintiff to accommodate this approach, I considered that it was more likely than not that the plaintiff would have returned to his trade as a journeyman plumber, but with the present restrictions on the physical tasks he could carry out in that employment. I consider that he would have returned to such work by about the beginning of January 2005, at which time he probably would have been earning income of the order of $600 per week net. On that approach, the plaintiff's submitted calculation for past lost earnings of $145,400 are adjusted downwards to $129,800.

If the plaintiff had been entitled to an award of damages for past loss of earnings, I would have assessed such damages in the amount of $129,800.

On behalf of the plaintiff it was submitted that the claim for future loss of earning capacity should be assessed in two parts, the first part being until the age of 55 years and the second being from age 55 years to the age of 65 years.

In developing that submission, it is claimed that as a result of the negligence of the defendants, the plaintiff will never be able to work as an able-bodied plumber, whereas if he were able to do such work, he would be earning around $1200 per week net as indicated by Mr Stennard, instead of the $600 per week net which he presently earns. The plaintiff contended that in his injured state, he will not be able to work after the age of 55 years, and as a result, during the last 10 years of his working life, it is unlikely that he will earn any income. That submission was based on the evidence of Dr Davis, whose opinion I accept.

The plaintiff's submission was for damages for future loss of earning capacity to be assessed at $350,162 however that calculation contained a mathematical error. When corrected the amount identified was $423,245. The plaintiff's submitted calculation omitted any allowance for the required discount in respect of possible future adverse vicissitudes. If a conventional approach was taken to vicissitudes, namely a discount of 15 per cent, this would result in an assessment in the sum of $359,758.

I consider that if the plaintiff had been able to demonstrate that the scenario for a reduced earning capacity, as was identified by Dr Davis, was due to the negligence of the defendants, then the claim would have to proceed in a two-stepped calculation as follows.

The first component of the claim is for a future loss of $600 per week, being the difference between the potential earnings identified by Mr Stennard at $1200 per week net and the plaintiff's actual net earnings of $600 per week. If it had been shown that this level of reduced earnings was due to the negligence of the defendants then the projection of $600 per week at 5 per cent over 25 years (x 753.6) yields the amount of $452,160 before discount for adverse vicissitudes.

The second component of the claim, being the remaining 10 years to age 65 years, should also be projected at $1200 per week over those 10 years but deferred for 25 years. The projection of $1200 per week over 10 years at 5 per cent (x 412.9) and discounted by 25 years at 5 per cent (x 0.295) yields an undiscounted amount of $146,166.

The combined undiscounted total of these calculations amounts to $598,326. A conventional discount of 15 per cent on these calculations reveals a calculation of $508,577.

In contrast, on behalf of the defendants, it was submitted that the plaintiff has not demonstrated any entitlement to future loss of earning capacity. The basis of that submission was that it has not been shown that, from the perspective of demonstrating a difference in his future earning capacity, the plaintiff is in a different position now to the position he would most likely have been in but for the negligence of the defendants. In turn, that submission is based upon the evidence of the severity of the original injury, for which there could be no claim, and the inherent uncertainty over whether if treated in accordance with the argued standard, the ultimate outcome for the plaintiff would have been materially different.

There are imponderables and difficulties associated with both of these approaches on the evidence in this case. This requires an application of s 13 of the CL Act concerning the plaintiff's most likely circumstances but for the injury, which in these circumstances, must mean but for the negligence.

In my view, recognizing the effects of the original injury, which was severe, I have to consider the possibility that, absent the negligence of the defendants, the plaintiff would have continued to work as he normally would have in his trade after the age of 55 years, consistent with the opinion of Dr Davis, but thereafter, the plaintiff may develop osteoarthritis in his injured ankle such that he would not be able to work beyond that time unless he had an understanding employer willing to give him light duty work.

Given the imponderable nature of this exercise, I consider the appropriate method for assessment of the plaintiff's future loss of earning capacity to be an acceptance of the previously identified components of the figure of $508,577 but to treat the discount for vicissitudes in two stages to reflect the increasing risk of unemployability due to the natural effects of the plaintiff's original injury as the plaintiff ages.

On that approach, I consider that in respect of the first period up to age 55 years, for which the loss of capacity is assessed at $452,160, the appropriate discount for possible adverse vicissitudes is 20 per cent : s 13(2) of the CL Act. This yields a figure of $361,728.

In respect of the second period, between ages 55 years and 65 years, for which the loss of capacity to earn is assessed at $146,166, I consider the appropriate discount for possible adverse vicissitudes to be 40 per cent : s 13(2) of the CL Act. This yields a figure of $87,699.

On this approach I consider that a reasonable assessment of the plaintiff's claim for future loss of earning capacity to be a combination of these two discounted amounts, namely, $449,427.

If the plaintiff had been entitled to an award of damages for future loss of earning capacity, I would have assessed such damages in the amount of $449,427.

The convention is for the loss of past employer funded superannuation to be assessed at 11 per cent of the amount assessed to represent past loss of earning capacity. Accordingly, applying that approach, 11 per cent of $129,800 is $14,278. If the plaintiff had been entitled to an award of damages for past superannuation losses, I would have assessed the value of the plaintiff's past superannuation losses to be in the sum of $14,278.

Consistent with the approach taken with respect to the assessment of past loss of employer funded superannuation, applying the same convention to the calculation of future superannuation losses, 11 per cent of $449,427 yields an amount of $49,436. This sum has already been discounted for vicissitudes. If the plaintiff had been entitled to an award of damages for future superannuation losses, I would have assessed the value of the plaintiff's future superannuation losses to be in the sum of $49,436.

The plaintiff makes a claim for the value of past gratuitous services provided to him by his mother in the form of domestic assistance, transportation and emotional support.

The claim is that the plaintiff received from his mother the benefit of 24 hour per day on call care for about one week after each surgical procedure, followed by regular care of a less intensive level of about 15 hours per week. On this basis the plaintiff argued that an appropriate allowance for past domestic assistance would be 25 hours per week from October 2004 to January 2007 at the rate of $20 per hour. This was the equivalent of 2.25 years or 117 weeks, which at $20 per hour was quantified at $58,500.

In respect of the second period mainly for eight weeks between November 2007 and December 2007 the plaintiff makes a claim for 15 hours per week at $20 per hour namely $2400.

The total claim made by the plaintiff is therefore in the sum of $60,900. As the hourly rate in respect of this claim does not exceed the amount prescribed by s 15 of the CL Act, I consider that the suggested hourly rate is reasonable.

On behalf of the defendants, it was submitted that an allowance for past care should be limited to 6 months at 15 hours per week calculated at the rate of $20 per hour. The basis of that submission seemed somewhat arbitrary.

Consistent with my findings concerning the nature and extent of the plaintiff's disabilities, I consider that no entitlement has been shown for any negligence caused need for assistance. If I am ultimately found to have been incorrect in relation to this finding, then I consider that the alternative submission as identified by the plaintiff would be the appropriate alternative finding. Accordingly, if the plaintiff had been entitled to damages for past domestic assistance, I would have assessed such damages in the amount of $60,900.

The plaintiff makes a claim for the provision of damages for future domestic assistance on a paid commercial basis. The claim is for 3-4 hours per week in respect of heavy household work, repairs and home refurbishments at a cost of $25 per hour or $75 per week. The plaintiff's submission projects the sum of $75 per week over a 55.25 year life span to identify a projected sum of $106,500 using a multiplier of 1420 but reducing the projected sum to allow for the possibility of improvements in the plaintiff's condition after possible eventual arthrodesis of the ankle. The submission is in the reduced sum of $90,000.

On analysing the plaintiff's submission it is apparent that the incorrect multiplier has been used. The 5 per cent multiplier for 55 years is 996.4. Using this multiplier, the corrected projected figure is revealed to be $74,730. Applying a 15 per cent reduction, which appears to be the proportion used in the preceding submission of the plaintiff, this yields an adjusted submission of $63,520.

I consider that the rate of $25 per hour for these projections is reasonable as it is less than the current maximum rate provided by s 15 of the CL Act, and by definition, must therefore be regarded as being reasonable.

The basis upon which the plaintiff makes his submission for an entitlement to such domestic assistance is the difficulty the plaintiff has described with physical activities.

The defendants submitted that the plaintiff has not demonstrated any entitlement to damages for future domestic assistance.

In my view the submission made by the defendants is too simplistic and pays no regard to the difficulties the plaintiff is likely to encounter in the future in connection with the running of a home. That said, I consider that an allowance of three hours per week is excessive in the circumstances because of an absence in the evidence of any degree of precision by which to differentiate between the needs the plaintiff would probably have incurred for such assistance absent negligence. Notwithstanding the state of the evidence, I consider that an allowance should be made for such assistance as a lifetime average. I consider that an appropriate adjustment would be to reduce the revised amount claimed by the plaintiff by 25 per cent. In rounded figures this reveals a discounted allowance of $45,000.

If the plaintiff had been entitled to an award of damages for future domestic assistance, I would have assessed such damages in the amount of $45,000.

The plaintiff makes a claim for the cost of treatment in the rounded down sum of $8000. The basis of this claim is the opinion of Dr Davis dated 19 January 2008 in which Dr Davis spoke of the eventual outlook for the plaintiff to be, the need for an arthrodesis, which he costed at $10,500. Dr Harvey considered the cost of this possible procedure to be $20,000.

The defendants did not concede any entitlement to damages for future treatment.

In my view, the evidence does not permit the conclusion that the plaintiff will need the identified procedure as a result of the negligence of the defendants. However, that is not to say that he will not require some possible form of future treatment, absent the negligence of the defendants. On the state of the evidence I consider that a buffer against the possible cost of additional future treatment is warranted. I assess that buffer in the sum of $3000.

If the plaintiff had been entitled to damages for future treatment, I would have assessed such damages in the amount of $3000.

The plaintiff makes a claim for past out-of-pocket expenses in the amount of $25,000 being the cost of the first operation performed by Dr O'Carrigan, which was paid for privately by the plaintiff. This sum was paid by the plaintiff in January of 2005.

The plaintiff makes a claim for an additional sum for out-of-pocket expenses in the sum of $4840, being $20 per week for 242 weeks from October 2004, comprising painkilling medication which included Voltaren, Panadol, Tramal and Panadeine Forte.

592. The plaintiff claims that he would not have had to incur the fees for the procedure carried out by Dr O'Carrigan if the procedure had been carried out by Dr Elliott as originally planned but at an earlier time. This was because as a public patient, the plaintiff would not have had to pay such fees.

593. The defendants made no concessions on the claimed out-of-pocket expenses.

594. In my assessment, the plaintiff's submission is correct. I find that if the operation carried out by Dr O'Carrigan had been earlier performed by Dr Elliott the plaintiff would not have had a liability to pay the identified additional sum.

595. In my view, the evidence does not permit a finding that the medications claimed by the plaintiff in the sum of $4840, argued to be due to the negligence of the defendants and would not have been necessarily incurred absent the negligence of the defendants. Accordingly I do not allow that amount.

596. If the plaintiff had been entitled to an award of damages for out-pocket expenses, I would have assessed such damages in the amount of $25,000.

597. As the plaintiff is not entitled to an award of damages, an assessment of the claim for interest does not arise.

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

(a) Non-economic loss $31,000 (b) Past loss of earnings $129,800 (c) Future loss of earning capacity $449,427 (d) Past loss of superannuation $14,278 (e) Future loss of superannuation $49,436 (f) Past domestic assistance $60,900 (g) Future domestic assistance $45,000 (h) Future treatment $3,000 (i) Past out-of-pocket expenses $25,000 (j) Interest on paid out-of-pocket expenses $ Nil Total $807,841

599. As I have determined the liability and causation issues in favour of the defendants there must be a verdict for the defendants. In accordance with convention, to allow for the possibility of a reversal of my causation finding on appeal, I have assessed damages in the amount of $807,841. The defendants are entitled to a verdict and judgment in their favour, together with an order for costs.

600. I make the following orders: (a) Verdict and judgment for the defendants;

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

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

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.