Plaintiff v Defendants

Plaintiff v Defendants - [2011] VSC 468 - VSC 2011 case summary — Zoe

[36]

When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v. McMonagle; Davies v. Taylor; McIntosh v. Williams. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place. [10]

[52]

Mrs Campbell has been a patient of mine since January 2006 when she first presented to me with significant problems relating to bilateral posterior tibial tendon dysfunction (PTTD). This had resulted in quite severe adult acquired flat feet.

Helen is a rather tall and slightly large 61 year old non insulin dependant diabetic who works as a law clerk. She presented with a 18 month history of left foot progressive pain and deformity which had significantly worsened after a fracture of the right ankle which had resulted [in] her depending on her left ankle for weight bearing. The right ankle fracture had been treated conservatively and even though the right ankle had signs of early deformity developing as a result of PTTD it did not seem to bother her.

Helen's left ankle however caused severe pain and when she first presented to me, she could barely walk a couple of steps without significant pain. Helen's diabetes was well controlled and she had been diligent in foot management with visits to her podiatrist who had reported normal 2 point discrimination in her foot.

Helen had very severe PTTD with the foot in a significant plano-valgus[18] position requiring her to bear weight along the anterior and anterior medial aspect of the foot. She also found it much more comfortable to walk bare foot than with shoes. She was highly dependant on her stick which she used in her right hand to help unload the left foot and ankle.

Examination revealed that the left ankle had 15 degrees of dorsi flexion and 25 degrees of plantar flexion. The subtalar joint was in valgus[19] which could not be corrected fully to the neutral position. Mobility in the subtalar joint surprisingly did not cause much pain however the mobility was considerably decreased compared to the opposite side. There was tenderness along the head of the talus which was considerably worse when Helen was weight bearing since the head of the talus was the load bearing bone. The tibialis posterior tendon was nonfunctional though the perioneii were normal. Helen was graded as having Grade IV PTTD i.e. end stage, requiring corrective foot surgery and mid foot and hind foot fusion.

Helen's case was presented at the clinical case conference at the teaching orthopaedic unit at Monash Medical Centre where the consensus was that the deformities would not be correctable either by simple osteotomies[20] or manually and would therefore require gradual correction using an external fixation Ilizarov frame prior to performing formal subtalar and midtalar fusions.

Helen had an Ilizarov frame applied to her lower extremity on 24th February. The deformity was gradually corrected to the neutral position. The Ilizarov frame was in place for 6 weeks. On the 7th of April the Ilizarov frame was removed and a triple fusion performed. This involved the subtalar joint and the talar navicular joint. The calcano-cuboid joint had a distraction bone grafting (per MOSCA) with a bone graft. Unfortunately it was this bone grafting that caused Helen difficulty with wound irritation and low grade infection which was easily controlled with regular dressings and antibiotics. Helen had one of her screws in the foot back out probably as a result of loosening of the fusion between calcano-cuboid joint. The screw was removed and the calcano-cuboid fusion revised using bone graft substitute wedges. The foot has healed in good position and importantly Helen has very little pain on weight bearing which is a significant improvement for her. Helen has intermittent ooze from the lateral aspect of the foot. Latest x-rays show that one of the bone graft wedges has failed to be integrated and has indeed dislodged and will require removal. The fusion however is relatively solid and the correction has been maintained and therefore the fusion does not need to be revised.

Helen has had a difficult treatment period because of ongoing problems with her right ankle which has also been intermittently painful as well as her relatively large size which has not been helped by the period of inactivity. She has been quite diligent in following her physiotherapy and has remained motivated throughout her treatment.

I envisage that in the next 3-6 months Helen will have made a complete recovery and would be able to walk on the left foot without any aids. [She] may ultimately require surgery on her right foot and ankle albeit to a lesser extent to correct early PTTD type acquired flat foot. At this stage the right side is being treated conservatively.

[56]

She started seeing her general practitioner, Dr K S Chua, since 2002 or 2003 for her right ankle. From the statement, Dr Chua had started her on acupuncture treatment and painkillers on a weekly basis over a long period of time. Later in 2004 she was developing pain in the left ankle and had noticed swelling of the ankle. The pain was becoming unbearable at times. When she mentioned this to Dr Chua he did not do any investigations or x-rays. He suggested that she had been putting extra strain on the left ankle on account of the fracture of the right ankle and she had now developed osteoarthritis in the left ankle. She recalls telling him in June 2005 that the pain in the left ankle was severe. At that time he did some blood tests for her and carried on with acupuncture and painkilling medication.

Eventually she wanted to have something done and asked her doctor to send her to a rheumatologist. She even looked up the name of the clinic which was an arthritis clinic in Blackburn. Dr Chua then referred her to see Dr Roy Karna who saw her on 30 November 2005. After arranging x-rays and ultrasound of the left ankle he (Dr. Karna) came to the conclusion that she had a suspected rupture of the tibialis posterior tendon and that it was posterior tibial tendon dysfunction condition and apparently did not have any direct relationship to the arthritis.

By the time she saw Dr Minoo Patel in the first week of January 2006 this condition had reached such an advanced stage of degeneration that simple tendon operation on the medial side of her left ankle was no longer indicated. Advanced changes had occurred in the bones of the left ankle and foot and she was walking on the bone in the inner side of the left ankle (head of talus).

Her heel was severely everted.

She was in considerable pain and could hardly weight bear on the affected left leg. As she already had a problem with her right ankle, which continued to do so, she was between the devil and the deep sea as there was some discomfort in the right ankle, although minimal on weight bearing.

...

However, I can confidently say that if the condition was diagnosed at an earlier stage as indicated above in my report, when she saw her general practitioner, she was most likely not to require arthrodesis surgery and extensive procedures involving destruction of the joints, stiffening below ankle level and exposing her to infections due to the extensive nature of the surgery. Hence, the impairment would have been expected to be far less in percentage than it is likely to be now.[24]

[83]

In order for a medical Panel to assess impairment 'in accordance with the [Guides]' as required by s 91 of the AC Act, it must act in conformity with the Guides. This means that it must apply the methodologies, processes and criteria set out in the Guides for the relevant condition, body part or system and adhere to any minimum or maximum values set out in the Guides for that condition, body part or system. Where the Guides contains a table that is applicable to a condition, body part or system, an assessment based on that table will not be in accordance with the Guides unless the categories, descriptions, criteria, ranges, adjustments and other elements of the table that are relevant to the condition, body part or system are adhered to and complied with.

Some provisions of the Guides, including some tables, provide alternative methodologies or set out ranges, and require the exercise of professional judgment in selecting the most appropriate methodology or in determining where in the range the relevant condition or body part falls. However, the Guides does not permit the exercise of professional judgment at large, unconstrained by the specific requirements of each methodology or table that it sets out. Once a particular methodology or table is selected, its requirements, including any limitations, must be applied in the manner set out by the Guides even if the outcome may appear sub-optimal. This is so because the role conferred by the AC Act on a Panel is not to arrive at a correct or fair assessment, but rather to arrive at an assessment that is the product of the application of the Guides.

The Guides itself makes it clear that the protocols and methodologies it sets out are intended to be standardised processes which produce similar outcomes irrespective of who conducts the assessment. In particular, the statement in s 1.2 of the Guides which I have set out in [11] highlights that in order for an assessment to be in accordance with the Guides, the Panel must follow the protocols and tables in the Guides.[29]

[85]

The Guides attempts to take into account all relevant considerations in estimating or rating the severity and extent of permanent impairment and the effects of the impairment in terms of the individual's every day activities. An impairment should not be considered 'permanent' until the clinical findings, determined during a period of months, indicate that the medical condition is static and well stabilized.

A physician who is asked to reevaluate an individual's impairment must realize that change may have occurred, even though a previous evaluator considered the impairment to be permanent. For instance, the condition may have become worse as a result of aggravation or clinical progression, or it may have improved. The physician should assess the current state of the impairment according to the criteria in the Guides.

Valid assessment of a change in the impairment estimate would depend on the reliability of the previous estimate and the reliability of the evidence on which it was based. If there were no valid previous evaluation, information gathered earlier could be used to estimate impairment according to Guides criteria. However, if there were insufficient information to document the change accurately, then the evaluator ought not attempt to estimate the change but should explain that decision.

If 'apportionment' is needed, the analysis must consider the nature of the impairment and its possible relationship to each alleged factor, and it must provide an explanation of the medical basis for all conclusions and opinions. Apportionment and causation are considered more fully in the Glossary (p.315).

For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.

Even when the impairment is well localized, its consequences cannot be understood without taking an individual's activities into account. Attention to full and complete reporting will provide the best opportunity for physicians to explain the health status of patients and the nature of their impairments to reviewers, claims examiners, and hearing officials; for attorneys to understand impairments; and for individuals to pursue any benefits to which they are entitled.[30]

[106]

(1) A Medical Panel must not determine the degree of impairment of a person unless it has made an assessment of the degree of impairment in accordance with Division 3.

(2) After making the assessment, the Medical Panel must give the claimant and the respondent -

(a) its determination of the medical question in accordance with subsection (4); or

(b) its certificate, in accordance with subsection (5), that it is unable to determine the medical question but that it is satisfied that the degree of impairment will satisfy the threshold level when the injury has stabilised; or

(c) its certificate that it is unable to determine the medical question and a statement of the time fixed for further assessment of the person under subsection (6).

(3) The Medical Panel must give the determination or certificate -

(a) within 30 days after the last of the following to occur -

(i) the last date on which the claimant complies with a request under section 28LZC;

(ii) the last date on which a registered health practitioner complies with a request under section 28LZE or if a request is made to more than one registered health practitioner, the last date on which the last of the registered health practitioners to comply, complies with the request; or

(b) within such longer period as is agreed by the claimant and the respondent.

(4) If, after making the assessment, the Medical Panel determines the degree of impairment, the determination of the medical question must state whether the degree of impairment resulting from the injury satisfies the threshold level but must not state the specific degree of impairment.

(5) If, after making an assessment, the Medical Panel is unable to determine the medical question because an injury has not stabilised, but the Medical Panel is satisfied that the degree of impairment resulting from injury will satisfy the threshold level once the injury has stabilised, the Medical Panel may certify in writing to that effect.

(6) If, after making an assessment, the Medical Panel is unable to determine the medical question because an injury has not stabilised and subsection (5) does not apply, the Medical Panel must in writing -

(a) certify that it is unable to determine the medical question; and

(b) fix a time (not being later than 12 months after the first assessment) for a further assessment of the degree of impairment of the person to be made under this section.

(7) The time fixed under subsection (6) must be the earliest time by which the Medical Panel considers that the injury will have stabilised.

(8) More than one further assessment may be made under this section but each further assessment must be made within the period of 12 months following the first assessment.

(9) A determination of the Medical Panel under subsection (4) must be given in writing and be certified by the Medical Panel.

(10) If the Medical Panel gives a certificate under subsection (5) in relation to an injury, the injury is deemed to be significant injury.

[114]

... In the present case, however, the claimant has brought proceedings against the plaintiff alleging that she suffered injury because of specific acts or omissions by the plaintiff, and that the relevant injury is the injury arising from the plaintiff's delay in diagnosis and treatment of an existing condition. The injury that is the subject of that claim is not the injury 'at large'.
It is true that a new definition of 'medical question' was inserted in the Wrongs Act in 2003 to make clear that a medical panel does not have to determine questions of causation. The explanatory memorandum to clause 13 of the Wrongs and Other Acts (Law of Negligence Bill) 2003 states that the new definition was included to make it clear that the role of the medical panel is to assess the degree of impairment resulting from the injury or injuries that a claimant alleges in his or her claim. The panel does not determine issues of causation, that is, 'whether or not those injuries could have been sustained in the incident on which the claim is based.'
This does not support an argument that the medical panel can only consider injuries 'at large'. To the contrary, it makes plain that the panel is concerned with the injury or injuries alleged in the claim. The panel must consider the injury allegedly caused by the tortfeasor and assume that it was caused by the tortfeasor as alleged. However, that does not absolve the panel of responsibility to correctly identify - for the purposes of assessing the degree of impairment - the injury which is alleged to have been caused by the tortfeasor.
The requirement that the Panel assess impairment arising from the injury that occurred as a result of the incident which is the basis for the claim does not require the Panel to determine whether the plaintiff caused the injury in respect of which damages are sought. Rather, it requires the Panel to assess the degree of impairment resulting from a particular injury - the injury in respect of which damages are sought. In this case, it is the injury suffered by the plaintiff as a result of delay in the treatment and diagnosis of a pre-existing dysfunction of the lower left leg and ankle.

[119]

The claimant said that in [or] about August 2004 she noted the acute onset of pain in the front and outer side of her left ankle when walking back from lunch one day. She said that she thinks there was also a little swelling at the time. She said that within a few weeks she became aware that when walking her foot and hindfoot seemed to be 'going out' and her back was sore.

The Panel discussed with the claimant her symptoms before the onset of these symptoms in August 2004. She said that her left foot/hindfoot was definitely not going out, she did not experience pain or swelling, and she wore normal shoes. She said that she was not aware of any uneven wear on her shoe heels, and her shoes were not twisted.

The claimant said that she attended her local doctor on 2 August 2004, and was told that she had arthritis due to weakness in her right ankle. She said that she was treated with acupuncture and with Codalgin Forte analgesic medication. She said that radiological investigations were not performed at that time.

The claimant told the Panel that over the next few months, she noted increased pain in the left ankle, which would stop her walking, and she was unable to walk downstairs because of her symptoms.

The claimant said that by late 2005 she was experiencing constant pain in the front and outer side of the left ankle, the twisting of the left hindfoot was worse and she had been forced to change from wearing shoes to wearing clogs and sandals because of the left foot deformity, there was swelling over the front of the left ankle and she was having to use a stick constantly. She said that she was not aware of pain in her right ankle and foot at that time.

The claimant said that she asked her local doctor for a referral to a specialist in November 2005, and was referred to a rheumatologist, who she attended in early December 2005. She said that she was referred for an ultrasound examination and was referred to an orthopaedic surgeon.

The claimant told the Panel that she subsequently underwent three surgical procedures on her left ankle.

At a glance

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Judgment (306 paragraphs)

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Legislation Cited (16)

Cases Cited (10)