Negligence - Proof of medical negligence - Assessment of damages - Pre-existing injuries and disabilities

Judgment for the plaintiff against the second defendant in the sum of $131,846.00

First Defendant : Mr J Gilmour QC with him Mr J P Allan

Second Defendant : Mr J Gilmour QC with him Mr J P Allan

Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112

Graham v Baker [1961] HCA 48; (1961) 106 CLR 340

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

Medlin v The State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1

Paul & Anor v Rendell (1981) 34 ALR 569

Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479

Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434

The Council of the Shire of Wyong v Shirt & Ors [1980] HCA 12; (1980) 146 CLR 40

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553

F v R [1983] 33 SASR 189

Heydon v NRMA Ltd [2000] NSWCA 374

Jones v Bartlett & Anor [2000] HCA 56; (2000) 205 CLR 166

Maloney v Commissioner for Railways (New South Wales) (1978) 52 ALJR 292

Modbury Triangle Shopping Centre Pty Ltd v Anzil & Anor (2000) 205 CLR 254

1 JENKINS DCJ: The plaintiff claims damages for personal injuries he alleges he received as a consequence of the negligent conduct of the first and second defendants in connection with right knee replacement surgery that the first defendant performed on 24 September 1998 and his subsequent treatment by the first and second defendants. The second defendant, became involved in the subsequent treatment of the plaintiff when he was requested by the first defendant to provide an opinion with respect to vascular problems that the plaintiff suffered following the surgery.

2 The amended statement of claim ("the statement of claim") pleads that the plaintiff suffered severe injuries in 1967, in an unrelated incident ("the landmine accident"), which resulted in amputation of his left leg and injuries to his right leg causing, inter alia, loss of movement of the knee joint. It is also pleaded that the vascular system of the right leg was injured including occlusion of the right popliteal artery. It is alleged that as a consequence of these injuries the plaintiff's right knee had two degrees of movement and he had swelling and discomfort of the right knee after use and bloodlessness of the right foot on elevation.

3 It is further pleaded that the plaintiff consulted the first defendant, an orthopaedic surgeon, to enquire about having his right knee fused ("arthrodesis") to alleviate the swelling and discomfort he was experiencing. It is pleaded that the first defendant instead offered knee replacement surgery ("arthroplasty") to the plaintiff. It is alleged that after x-rays and scans of the plaintiff's right knee, a determination whether shrapnel from the land mine still present in the plaintiff's right leg would pose any risks and a review by a plastic surgeon to determine whether any soft tissue transplants would be required the first defendant told the plaintiff he was a suitable surgical candidate for arthroplasty.

4 It is pleaded that the surgery took place on 24 September 1998 at Hollywood Hospital ("Hollywood"). It is pleaded that the plaintiff experienced signs and symptoms in his right leg of which both the first defendant and the second defendant knew or ought to have known.

5 It is pleaded that in the afternoon of 25 September 1998 the plaintiff was examined by the second defendant who observed that he suspected the plaintiff had major arterial discontinuity in his calf from his 1967 injury. It is alleged that he suggested that a duplex scan, and the ankle brachial index ("ABI") be obtained, that the plaintiff's foot be kept down and that the plaintiff be prescribed Clexane, an anticoagulant.

6 It is pleaded that a subsequent duplex scan revealed that the distal end of the plaintiff's popliteal artery was occluded and ABI was 0.0.

7 It is pleaded that on the evening of 26-27 September 1998 the first defendant diagnosed the plaintiff as suffering from compartment syndrome and that at approximately 3.30 am on 27 September the first and second defendants performed a fasciotomy on the plaintiff's right lower leg.

8 It is pleaded that as a result of the plaintiff's compartment syndrome and fasciotomy the plaintiff was injured and suffered loss and damage to his right leg. The particulars of his injuries are loss of muscle tissue due to the same becoming necrotic, recurrent infections of the right leg, nerve and muscle damage to the right leg resulting in foot rot, secondary lymphodema and damage to sense of balance caused by antibiotic administration.

9 In relation to this last particular it is pleaded that the plaintiff remained under the care of the second defendant and that in or about August 2000 the second defendant prescribed the plaintiff Aminoglycoside antibiotic medication including Gentamicin and Vancomycin and that as a consequence the plaintiff suffered permanent injury. The particulars of permanent injury are damage to sixth and seventh cranial nerves, loss of sense of balance and partial loss of hearing.

10 Against the first defendant it is pleaded that the plaintiff's injuries occurred as a result of his negligence. The particulars of such negligence being;

"(a) failure to investigate the circulation in the plaintiff's right leg prior to surgery and in particular failure to refer the plaintiff to a vascular or other specialist to ascertain the state of the plaintiff's right leg circulation, failure to order a duplex scan of the plaintiff's right leg and failure to have any adequate regard to the plaintiff's complaints of bloodlessness in his right leg caused by elevation;

(b) failure to advise the plaintiff that by reason of his right leg's compromised circulation he was at greater risk of developing compartment syndrome than a person of a similar age would be;

(c) failure to advise the plaintiff that he was not a suitable candidate for knee replacement surgery;

(d) failure to perform a fasciotomy on the plaintiff's right leg within 6 to 8 hours of onset of symptoms;

(e) failure to have due regard to the plaintiff's leg symptoms on 24 September 1998;

(f) failure to have due regard to the plaintiff's symptoms on 25 September 1998."

11 In relation to (a) it is pleaded that if the test and referrals had been made they would have indicated that the plaintiff was not a suitable surgical candidate for arthroplasty, alternatively, that arthroplasty posed greater risks because of the state of the circulation of the plaintiff's right leg.

12 In respect to (b) it is pleaded that had the plaintiff been advised of his increased risk he would not have had the arthroplasty.

13 Against the second defendant it is pleaded that the plaintiff's injuries were caused by his negligence. The particulars of negligence being;

"(a) failure to have any or any adequate regard to the plaintiff's signs and symptoms following the knee replacement surgery;

(b) failure to diagnose the plaintiff's compartment syndrome;

(c) failure to perform or recommend fasciotomy to be carried out on the plaintiff's right leg;

(d) failure to recommend or perform surgery on the plaintiff's leg to restore blood supply;

(e) in relation to the prescription of Aminoglycoside antibiotic medication, prescribing the medication without being aware of the risks associated with long term use of Aminoglycoside, failure to prescribe the plaintiff with alternative antibiotics and prescribing Aminoglycoside for too long a period."

14 It is pleaded that as a result of his injuries the plaintiff has required and undergone medical treatment and has suffered permanent disabilities.

15 Damages and interest on damages is claimed in respect to economic loss, superannuation benefits, medical expenses, gratuitous services, travelling expenses, special appliances and general damages.

16 The defences of the first and second defendants either do not admit or deny most of the matters pleaded in the statement of claim.

17 The first defendant does admit to having performed arthroplasty on the plaintiff on 24 September 1998 but does not admit to being told of bloodlessness of the plaintiff's right foot on elevation and denies each and every allegation of negligence as pleaded in the amended statement of claim.

18 The first defendant pleads that if the plaintiff has suffered permanent disabilities and loss and if the plaintiff will require gratuitous services, travelling expenses and special appliances then such loss would have occurred in any event and such expenses would have been incurred by the plaintiff in any event due to the combination of the plaintiff's pre-existing and progressive severe right leg pain, progression of arthritis in the plaintiff's right knee, recurrent back pain, polyarthralgia particularly to the plaintiff's left and right shoulders, left and right wrists and hands, exzema, disposition to recurrent infection in his right leg stump and right leg, hyperlipidaemia, coronary artery disease, the fibrotic nature of tissue consequent upon the plaintiff's land mine injuries to his right leg, and progression of the plaintiff's pre-existing peripheral arterial disease.

19 Similarly the second defendant's further re-amended defence does not admit or denies the matters pleaded against him. However, during the trial of the action, on 30 January 2003 the second defendant's counsel admitted that the second defendant was liable in negligence for any loss and damage suffered by the plaintiff in respect to his use of Aminoglycoside antibiotic treatment after 24 August 2000. The assessment of damages is the remaining issue between the parties in respect to that allegation. The second defendant's defence repeats the first defendant's claim of pre-existing problems.

20 The following facts are either not in dispute or have been found by me.

21 The plaintiff was born in Perth on 22 February 1945. He joined the Royal Australian Army in 1964 and after attending officer cadet school and being initially posted to New Guinea in 1967, he was posted to Vietnam as a second lieutenant. On 28 August 1967 the plaintiff stepped on a land mine whilst serving in Vietnam and suffered injuries to both his legs.

22 As a result of these injuries his left leg was initially amputated at the knee. Later it was amputated above the knee to enable a prosthesis to be more easily attached to it.

23 He also suffered permanent injuries to his right leg. His right knee was left with only a few degrees of flexion and he lost half his right calf muscle. Initially he had discharging sinuses behind his right knee where he also had significant scarring. He also had a discharging sinus in his ankle. These sinuses stopped discharging many years ago. Multiple pieces of shrapnel and other material remain within his right leg.

24 The plaintiff was repatriated to Perth and in 1968 he resumed normal duties with the Army. Over the next few years the plaintiff had two children to his first wife and graduated with a Bachelor of Commerce from the University of Western Australia. In the early 1970's he was posted to Canberra. In 1973 the plaintiff resigned his commission as a captain in the Army.

25 In 1974 the plaintiff joined the Swan Brewery as market research manager. By this time the plaintiff was able to walk using a prosthesis on his left leg and no other aids. Between 1973 and 1998 the plaintiff had a number of different occupations including periods running his own liquor store and then tavern. By 1998 he was working for the Western Australian Government in the Department of Commerce and Trade as a Level 7 manager. This employment required the plaintiff to travel throughout the State and Australia which he managed to do.

26 Throughout this period the plaintiff suffered varying amounts of pain in his right knee. Principally after standing for two to three hours his knee would be painful upon walking and it would also swell. Now and again he asked doctors whether there was any advancement in medical technology that would enable something to be done about his problems in his right knee. Up until 1997 the answer was "no" but at that time he asked a doctor and he suggested that the plaintiff see the first defendant about having an arthrodesis performed. He went to see his general practitioner, Dr Colin Broun, and he wrote a referral to the first defendant asking the first defendant to speak to the plaintiff about options for his knee.

27 The first defendant is the professor of orthopaedic surgery at the University of Western Australia and is a consultant at Hollywood and Sir Charles Gairdner Hospital. He is a very well qualified and experienced orthopaedic surgeon. He lists joint replacement as one of his professional interests. He performed approximately 2000 arthoplasties between 1985 and the end of 2002.

28 The plaintiff consulted the first defendant on 2 September 1998. The plaintiff was asked what he recalled being said at the first consultation. He gave the following reply:

"I told Prof Wood of my background and I told him the reason I was to see him and explained that the knee would become swollen on prolonged standing and cause pain if it flexed after that condition began and that ... I was exploring the issue of having the knee fused to prevent any flexion at all and thereby hopefully preventing any pain. We talked for a while and then he said, "Look, there is an alternative to a fusion and the alternative is a total knee replacement," which surprised me because to that date it wasn't something that I'd had recommended. I told him of the background of talking to people over the years about knee replacements and he said the technology had improved and the longevity of the artificial joint was now something longer. I asked him about the infection and he said modern drugs were built to control any infections well enough. He said that if I went ahead with the original approach, which was to have the knee fused, that I would lose an inch in height possibly, but that could be rectified, but once it was done I would never be able to have a knee replacement, so one would exclude the other. I asked him what he would recommend and he said he would recommend the knee replacement."

29 In respect to current symptoms in the leg he said:

"I explained to him how the pain came about which was, as I have said before, as a result of long standing and then the knee flexing. If the knee didn't flex then even despite long standing and swelling the leg wasn't necessarily painful and I told him how I coped with that, which was to, in the first instance, try not to stand on it for that length of time but if I had then I would lie down and elevate the leg. I mentioned to him that on that occasion the leg would become painful - or the foot would become painful after about 20 minutes."

30 There was a further exchange between the plaintiff and his counsel as follows:

"After 20 minutes of what?---Of elevation.

Did you tell him when that started to come on?---That had always been the case.

Any other discussion about symptoms and the condition of your leg up until that time, 1998?---No. Well, I'm not sure. I had begun experiencing some pain 2 years before seeing him in my stump and also in my lower leg. I have some recollection of telling him about that, but I can't be sure of that."

31 I accept the plaintiff's evidence in this regard.

32 The plaintiff said the first defendant then gave him a booklet entitled "Total Knee Replacement Information Book" ("the booklet") which is a standard Hollywood publication for arthroplasty candidates.

33 The booklet explains that more than 90 per cent of arthroplasties are trouble free and successful. It states that in five per cent of patients the results are not satisfactory and that some complications can be put right by further surgery and some may not. Immediate complications include death (in about one per cent of patients), major post operative illness such as pneumonia, reaction to drugs or some other generalized problem. Although the booklet supposedly deals with knee replacement surgery it refers to particular problems in hip replacements. However even if these are read as referring to knee replacements, there is no specific reference to vascular complications at this point of the book.

34 At p 12 there is further particularisation of risks from arthroplasty. The booklet refers particularly to thrombosis. It says;

"Thrombosis in the leg occurs in between 25-50% of patients but is usually trivial and can be ignored. Serious thrombosis, with major problems in the leg or in the lungs occurs in about 5% of cases.

Death from thrombosis, or from fat getting into the blood stream, or from a heart attack, or for some other reason occurs in about 1-2% of patients having a knee replacement."

35 He was asked whether there were any discussions about further investigations. The plaintiff's answer was as follows:

"He said ... prior to a decision to have the operation he would need to undertake some further tests. He said one of the tests was to check out the condition of the bone at the joint and the other test was he was concerned that the back of the knee - as a result of the landmine explosion the skin was adhered to the back of the knee and he was concerned that that skin wouldn't rupture if the knee flexed. So he gave me referrals for MRI scan, ..., and also to visit Dr Fiona Wood who he explained was his sister and did I mind? She was to give an opinion on the skin.

And your response?---I said that would be fine. I would do those tests."

36 I accept the plaintiff's evidence in this regard.

37 In respect to the first consultation the first defendant said he received a referral letter from the plaintiff's general practitioner. That letter said that the plaintiff wanted to discuss "options for his knee - it becomes painful and swollen with standing".

38 When asked what the plaintiff complained off upon presentation he said:

" ... He said that his knee was stiff and became painful on load bearing so that he had a limited walking distance and that he was having increasing difficulty over the last few years in getting around. He said he was having increasing difficulty with some of the activities of his daily life such as driving and getting in and out of the car and he said he would like something done about it, if possible."

39 He was asked whether there was any discussion about his walking ability. The first defendant said:

"I asked him how far he could walk and he said, 'It was a bit of a struggle getting into your rooms here from the carpark. I had to stop a couple of times.' Later in the consultation I examined him and I observed him and he had quite a bit of difficulty just getting from the chair to the bed which is a matter of about four or five metres."

40 The first defendant said he discussed the plaintiff's pain with him in the following terms:

"He said it was severe and I asked him what kind of things made it better and what made it worse and he said that when he stands up for a time it get painful, when he walks it's very painful, and he tried to alleviate it by resting it, resting it up, but after about half an hour to 45 minutes that became painful and he had some difficulty in finding any comfortable position for his knee."

41 Upon examination on the plaintiff's right knee the first defendant said he found that it was quite heavily scarred from the injury and from the surgical procedures and there were areas of skin graft, particularly on the inside of his leg, and he had some loss of muscle on the inside of his leg. He had loss of the top part of the medial gastrocnemius muscle. He had some loss of semimembranosus and loss of another hamstring, the semitendinosus. He had a slight to moderate effusion in his knee and overall his leg was quite well aligned. It was held in a position of about five degrees bend, from his memory, and only moved by about four or five degrees. He had a bony defect on the lower end of his femur, the medial femoral condyle. At that point the skin and scar tissue underneath the skin was adherent to the back of his medial femoral condyle.

42 The first defendant said that he also did a neurvascular examination and he explained it as follows:

"The standard neurovascular evaluation includes looking at muscles, power of muscles, reflexes and sensation, and vascular component is - the vascular component involves feeling the pulses."

43 The relevant pulses are the pedal pulses and the popliteal pulse. There are two pedal pulses. One is called the distalis pedis ("dp") which is in front of the ankle bone. The other is called the posterior tibial ("pt") which is immediately behind the ankle bone. The popliteal pulse is in the popliteal artery which runs behind the knee. All three pulses can be difficult to palpate, even by experienced practitioners.

44 The first defendant said he was particularly interested in the plaintiff's pedal pulses, and they were present. He also felt his popliteal pulse which was present. I accept that the first defendant carried out these physical examinations and that these were his findings.

45 The first defendant said he discussed four options with the plaintiff. He said that the most straightforward thing for him would be to do nothing surgically and to leave him as he was. The second option was an arthrodesis. He said this was a reasonable option to consider in terms of eliminating the pain. He said that the plaintiff wasn't enthusiastic about an arthrodesis saying that stiffness was part of his problem although pain was the main complaint. The third option they discussed was amputation. He said that the plaintiff said he wasn't going to have it amputated now.

46 The fourth option the first defendant said they discussed was knee arthroplasty. He said he told the plaintiff that it might be necessary, if the knee replacement went wrong, to amputate the knee as a salvage operation and that the chances of that were relatively small but not zero.

47 He said he then gave the plaintiff the booklet about knee replacement surgery but he said he said to the plaintiff that the outcome was unpredictable in his particular situation because it was unique. He said that he dictated a letter to the general practitioner in front of the plaintiff because he wanted to be sure that he understood the risks.

48 That letter states, inter alia:

"I have provided him with basic information about knee replacement surgery but advised him that there is a wealth of ignorance about his particular situation and success could not be guaranteed. We will meet again when we both have had a chance to consider this complex situation."

49 The letter also refers to the first defendant having palpated the plaintiff's pedal pulses. There is no other reference in the letter to vascular function of the lower leg.

50 In cross-examination the plaintiff denied having told the first defendant that it was difficult for him to walk across the car park to the waiting room because he couldn't imagine under what circumstances it would be painful.

51 He said that the knee was only painful after longstanding. He acknowledged that he said he could walk 50 to 100 metres and then the stump would become painful and he would rest and continue.

52 As to options discussed at the first consultation the plaintiff denied that the first defendant had said that his preferred option was to continue with conservative treatment because of the potential risks involved with surgery. He agreed they discussed arthrodesis. The plaintiff agreed that when arthroplasty was discussed he was enthusiastic about the possibility of mobilising his knee.

53 The plaintiff said he had no recollection of discussing amputation as a primary solution to his then problems but that if the first defendant had suggested it he would have been dismissive of the suggestion because it was an option he had resisted since the war injury occurred.

54 With respect to the booklet he said it was implied rather than expressed that he should read it and discuss any issues he had with the first defendant.

55 He said after he saw the first defendant he went home and read the booklet and saw a lot of information that was different to the purposes and the content of the conversation he had with the first defendant. He thought the book was written for aged people who suffered arthritic pain and so a lot of its information was not entirely applicable to him. I find that it was unreasonable for the plaintiff to adopt this position. On my reading of the booklet it does not contain information that would lead to this conclusion.

56 In respect to the risks of arthroplasty he said that he was prepared to accept major risks of higher than 1-2 per cent and other problems at 10 per cent

57 As to the first defendant's letter to the general practitioner, the plaintiff acknowledged that the first defendant examined him and presumably took his pulses. He agrees that the first defendant told him that "success could not be guaranteed". However he couldn't recall the term "wealth of ignorance".

58 There are crucial differences between the recollections of the plaintiff and the first defendant as to what was said during the consultation. Neither presented as being intrinsically more credible than the other. Both men are of good character and are intelligent. Both gave plausible accounts of the consultation. Neither party made contemporaneous notes of the consultation. In the case of the first defendant, a medical practitioner, in my experience, this is very unusual. No attempt was made to justify the lack of note taking as a reflection of an extraordinary memory and I am not prepared to assume it. The first defendant said that he dictated the letter to the general practitioner in the presence of the plaintiff and the plaintiff neither agreed nor disagreed with this. I accept that the letter was dictated at that time and as it is contemporaneous, I accept the truth of its contents.

59 However it is a fairly brief summary of the consultation and there are many matters upon which it does not touch. Even when it does mention matters such as that the plaintiff was advised that "success could not be guaranteed" it is unclear whether this is a reference to the fact that the first defendant could not guarantee that the result, for example the range of movement obtained and longevity of the replacement knee, may not be as good as in a person without the plaintiff's disabilities or whether it is a reference to the first defendant not being able to guarantee that there would not be complications that would be unconnected with the primary success of the arthroplasty, which was what occurred in this case.

60 The plaintiff has more reason than the first defendant to remember the consultation. The suggestion that arthroplasty may be able to relieve the pain in his knee and provide increased movement was, no doubt, a very exciting and positive development. The fact that within a month he had the surgery and then suffered complications would be matters that were likely to reinforce the events of that month in his memory. On the other hand for the first defendant this was one of thousands of consultations that he has had with arthroplasty candidates. The first defendant said that his mind had focused upon the consultations with the plaintiff when the plaintiff had complications and he thought he "sort of had a pretty good memory of the first consultation". He said that the first time he made a written note of the conversation was in 1999 when he received notification that legal action was being taken against him. His note which is an exhibit does not descend into the kind of detail he gave in evidence. In assessing the reliability of the first defendant's evidence I have also compared the detail he gave of the first consultation with his memory of the events of 25 September and in particular his vague recollection of conversations with the second defendant on that date. I cannot explain the variance between the quality of his memory of these occasions except by inferring that to some extent he has reconstructed the events and conversations of the first consultation. This finding reflects adversely on the extent to which I am prepared to accept his version of the first consultation except where it is supported by other evidence.

61 At the conclusion of that consultation the first defendant did not offer the plaintiff an arthroplasty. However, to the plaintiff's knowledge, it was an option that he was then considering.

62 The first defendant referred the plaintiff to Miss Fiona Wood, a plastic surgeon, for an opinion as to "the relative value of a lateral gastrocnemius transposition flap" to use as a skin graft over the surgical incision and the possibility of cultured skin to improve his healing after an arthrosplasty. This was, as it states, a specific request for an opinion about the value of the skin the first defendant thought he may need to use to close the surgical incision and not a request related to the general sufficiency of the vascularity of the plaintiff's right knee for surgery.

63 On 17 September 1998 Miss Wood gave an opinion that the plaintiff had a good lateral gastrocnemius that she thought would provide good support when transposed medially to the anterior position. She said that she did not think that an arteriogram was necessary as the flap should not affect the vascularity of the area.

64 The first defendant also arranged for tests to look for any infection in the area of the right knee. He undertook some investigations to ascertain whether there would be any metal mismatch and electrolysis between the shrapnel in the plaintiff's leg and the metal used in the replacement knee.

65 A second consultation between the plaintiff and the first defendant took place on 11 September. The plaintiff said that the first defendant said he had come to the conclusion that the metals were not incompatible and that the scans and x-rays had revealed that the operation was feasible. He could not recall anything further discussed at that interview. The plaintiff had not seen Miss Wood at this time.

66 The plaintiff denied that the first defendant told him at any stage prior to the surgery that he was at increased risk of complications because of the existing injuries to your right leg. However I accept that the first defendant did mention that he was at greater risk by virtue of him stating in his reporting letter to the general practitioner that there was a "wealth of ignorance about his particular situation".

67 The plaintiff was asked whether if he had been told that there was a risk of complications and that if they materialised he might lose his right leg, would he have proceeded with the total knee replacement surgery? The plaintiff's answer was:

"The choice - in retrospect I certainly would have said no, but I had lived with the pain at that level for 30 years, so it wasn't as if it was an essential operation. I'm not sure but I would say that if he had said there was a reasonable risk of losing the leg or running some further damage to the function of the leg and that was above, say, 5 per cent, I probably wouldn't have gone ahead."

68 The first defendant acknowledged there was a second consultation but did not give detailed evidence about it. He said he thought they discussed infection and wound breakdown as a complication. Also the potential need for a flap and skin graft and potential complications with that. I accept that these, being relevant issues to the tests the first defendant had ordered, would have been discussed.

69 In his evidence the first defendant acknowledged that the arthroplasty involved greater risks to the plaintiff than the usual arthroplasty candidate. The first defendant said the potential for an adverse outcome such as knee stiffness or infection or a complication over and above that of the regular arthroplasty existed because of the plaintiff's previous history of infection, soft tissue damage and stiffness in his knee.

70 He was also concerned that the operation would be more technically challenging in relation to mobilising the knee. The first defendant said that mobilising the soft tissues from the medial femoral condyle where the plaintiff had some loss of bone presented a problem, and in gaining movement in a knee that had been stiff for some time there was need for soft tissue release. In addition to that there was a risk that the structures on the inside of the knee joint might suffer as a result of the surgery, might not be viable and might need to be replaced either by a flap or a skin graft. He said there was always a theoretical risk of damage to the popliteal artery during knee replacement surgery. I accept that he discussed these risks in general terms with the plaintiff as evidenced by the letter he wrote to the plaintiff's general practitioner.

71 As to whether he was concerned that the plaintiff's blood circulation system in the lower leg was compromised as a result of his earlier injuries he considered that the vascular examination was normal and therefore there was no need to get a vascular opinion. He considered but did not explore the possibility that the plaintiff may have had arterial disease because he looked in the plaintiff's Veterans Affairs notes to see if there was any indication that he had had popliteal artery damage and found none. He also could feel his pulses. Further there was no history given to him of arterial disease. The first defendant did not offer the plaintiff an arthroplasty at the time of the second consultation. He was still awaiting the opinion of Miss Fiona Wood.

72 There is dispute between the plaintiff and the first defendant as to the sequence of events after the second consultation. It is not necessary for me to resolve all these conflicts. I find that during a telephone conversation between the plaintiff and the first defendant on a date prior to 23 September 1998 the first defendant offered an arthroplasty to the plaintiff and the plaintiff said that he wanted to proceed with the surgery. The plaintiff was then booked in for surgery on 24 September in a gap in the first defendant's operating list at Hollywood.

73 The plaintiff was admitted to hospital on 23 September and on the morning of 24 September 1998 the first defendant performed an arthroplasty on the plaintiff's right knee .

74 The surgery itself was relatively uneventful. The scar tissue behind the knee from the land mine accident had to be cut away to mobilise the knee but once this was done the surgery proceeded normally. The services of Miss Wood were not required to perform a skin graft in order to close the wound.

75 The surgery was performed under an epidural anaesthetic which remained in situ upon the plaintiff's return to the ward. This was to enable the plaintiff to receive anaesthetic pain relieving medication following surgery.

76 After surgery the plaintiff's pedal pulses were palpable and recorded as being strong. The plaintiff's right knee was not bandaged and it was on a continuous passive motion ("CPM") machine. This moved the knee in an arc of 30 to 60 degrees.

77 As is the usual procedure, upon the plaintiff's return to the ward a vascular observation chart of the plaintiff's right leg was kept by the nursing staff. On the morning of 24 September the first entry records the pedal pulses as faint. Then through to 2.00 pm the plaintiff's pedal pulses were recorded as strong. At 3.00 pm they are recorded as faint. The vascular observation chart also records observations of skin colour, skin temperature, sensation, movement and a pain score. As at all relevant times the plaintiff was receiving epidural pain relief, these observations may not be accurate as they may be effected by the epidural drugs. Consequently few, if any, conclusions can safely be drawn from the observations of colour, temperature, movement and sensation on the vascular chart whilst the epidural was in situ. With respect to pain, conclusions cannot be drawn with respect to observations of absence of pain. However, with respect to observations of pain, and in particular of substantial pain, those observations tend to a conclusion that despite the presence of epidural pain relief the plaintiff was experiencing pain in his knee or leg. The significance of this pain may depend upon where the pain was and whether the epidural had been recently topped up with pain reliever or not.

78 The observations of the pedal pulses being faint, even when measured with a doppler continued from 3.00 pm on 24 September through to 9.00 pm that evening. A "doppler" is a hand held instrument which measures the velocity of blood-flow using a beam of ultrasound. Surprisingly, and this comment may be made with respect to the lack of observations at other times, despite this significant observation, no observations are recorded with respect to the pedal pulses between 9.00 pm on 24 September and 2.10 am on the morning of 25 September. At that time the pedal pulses were again recorded as being faint with doppler. There is then no further recording until 4.50 am when, across the columns where proper observations should be, the words "very hard" are written. In the remarks column, the words "doppler not available" appear. In light of the faint pulses that were recorded for over 12 hours before this time as well as the absent recordings from 10.00 am that morning, I conclude that the words "very hard" mean that the observing nurse found the pedal pulses very hard to find by palpation. This in my opinion was because they were either at that point very faint or absent. The next recording on the vascular chart is at 6.10 am. At this time there is no entry in either column for the pedal pulses.

79 The first time the first defendant saw the plaintiff after surgery was early in the morning of 25 September. The first defendant asked him how the leg was and the plaintiff told him that he was very comfortable and the first defendant adjusted the angle of the CPM machine so that it was further flexing the knee. After lunch and in the evening of that day the plaintiff had constant pain below the knee. The nurses told him that it was pain from the operation and they increased the epidural medication.

80 The first defendant felt the plaintiff's pulses and they were present. The first defendant thought that the plaintiff had venous return and his foot was warm.

81 The first defendant's evidence is that if the pedal pulses were able to be palpated then this would have amounted to an ABI of about one, which is normal. It was his view that whether or not pulses were hard to palpate or faint was irrelevant as long as they were present and there were other positive signs such as venous return and warmth.

82 The first defendant says he was not told by the plaintiff, the nursing staff or the junior doctors of any problems and neither did he read the vascular chart. There was no criticism of him for not doing so.

83 Despite the first defendant's evidence about the significance or lack thereof of a faint pedal pulse, after having heard the evidence of other experts I am surprised that at the time of the ward round on the morning of 25 September no-one mentioned to the first defendant the change in the plaintiff's pedal pulses. However, there is simply no evidence that would enable me to conclude that he was told or that in his examination of the plaintiff he detected any cause for concern at that time.

84 The next entry in the vascular chart is at 10.00 am when it is noted that the toes were cool and there was 3 out of 10 pain on movement and the pedal pulses were absent. The epidural nursing notes indicate that that level of pain continued until 12.45 pm when the pain was ten out of ten on movement. The first defendant's registrar, Dr Boris Brankov, and the resident medical officer were informed. This was in accordance with usual practice.

85 There are entries for 10.30, 10.50 and 10.55 am. However, at these times there are no observations regarding colour, temperature, movement, sensation and pain. There are two entries recording that the pedal pulses were again absent. Registrar Brankov felt the popliteal artery and heard it on doppler.

86 The popliteal artery runs down the back of the leg from approximately two thirds the way down the femur. It continues behind the knee joint and below the knee it bifurcates into the anterior tibial artery and the posterior tibial artery. The posterior tibial artery quickly gives off another branch called the peroneal artery. The palpation of a pulse in the popliteal artery is not inconsistent with a blockage in the popliteal artery if Dr Brankov felt the popliteal pulse above the blockage. I find that this is what in fact occurred.

87 There is no evidence that Dr Brankov advised the first defendant around this time of any problem in the plaintiff's right leg. Again, having regard to these findings this is inexplicable. Dr Brankov has no recollection of examining the patient in the morning of 25 September or of speaking to the first defendant about the plaintiff around this time. I find Dr Brankov's complete lack of memory of the events of the morning to be incredible. Dr Brankov should have done more than he did after being advised of the nurses' observations and examining the plaintiff, but I accept he did nothing at that time.

88 The first defendant did not give any evidence that he was spoken to in the morning about any problem and his evidence is that it was not until about 1.00 pm that a problem in the plaintiff's right leg was drawn to his attention.

89 I accept that the first defendant was not advised of the absence of the pedal pulses on the morning of 25 September. There is simply no evidence that he was told.

90 At approximately 1.00 pm the nursing staff rang the first defendant whilst he was in the operating theatre at Hollywood and advised him that the plaintiff was in excruciating pain. The first defendant sent Dr Brankov to see the plaintiff and Dr Brankov examined him. Dr Brankov reported back to the first defendant that he was concerned about the blood supply to the plaintiff's leg and he thought that it might be ischaemic, that is affected by insufficient blood supply. The first defendant told Dr Brankov to get a specialist vascular opinion immediately, as a matter of an emergency, preferably from the second defendant who he knew worked full-time at the hospital.

91 The second defendant is a surgeon practising in general and vascular surgery. He is a consultant at Hollywood. His curriculum vitae shows that he is a very well qualified and experienced surgeon. His specific areas of interest include collateral circulation and stimulation of the collateral circulation.

92 Within an appropriately short period of time the plaintiff was examined by the second defendant. There is a written referral to and reply from the second defendant on the hospital file. The request to the second defendant was to "review his vascular supply to the lower leg, if it has been compromised?" Dr Brankov also spoke to the second defendant prior to the second defendant seeing the plaintiff.

93 The written reply of the second defendant dated 25 September states as follows:

"I suspect that he has major arterial discontinuity in the calf from his old injury.

Suggest:

Micro vascular thrombosis after protracted elevation is a real possibility and must be prevented at all costs."

94 Dr Brankov reported to the first defendant that he had put the leg down flat and that he was organising the duplex scan. A duplex scan is a diagnostic ultrasound examination. The first defendant told Dr Brankov not to implement the Clexane treatment until the first defendant had reviewed the plaintiff. This is because the first defendant was concerned about the effect of Clexane, an anticoagulant, on the epidural site. Whilst an epidural is in situ Clexane may produce bleeding at the epidural site.

95 The plaintiff had the duplex scan, again in reasonable time. The duplex scan report advised as follows:

"The distal right SFA and proximal right popliteal artery are of normal calibre and demonstrate normal biphasic wave form. Minor atheromatous changes are present in the mid right popliteal artery causing 40 per cent stenosis. There is total occlusion of the distal right popliteal artery. Irregular echogenic material surrounding the artery is most in keeping with scarring. There is no visualisation of flow within the tibioperoneal trunk or proximal anterior or posterior tibial arteries or the right peroneal artery. Geniculate collateral vessels are present.

There is reconstitution of flow within the right posterior tibial artery at the ankle joint. However there is monofasic wave form due to perfusion by collateral. This results in an ABI of 0.0."

96 These results require expert interpretation. I accept Professor Tracy's explanation of them. Professor Tracy is a vascular surgeon called by the plaintiff. As he explained, the report says that the superficial femoral artery, the main artery to the leg, and the first part of the popliteal artery were of normal calibre and size, and had a normal wave form, suggesting they had normal soft walls. There was minor early arterial disease present in the middle section of the popliteal artery, causing a 40 per cent narrowing of its calibre. At the end of the popliteal artery, it was completely blocked. Then the report described a doppler appearance in keeping with scarring surrounding the popliteal artery. There was no blood flow within all three of the main arteries to the leg below the knee. Collateral vessels, known as the geniculate vessels, which are the small arteries around the knee, were present. There was flow reconstitution in the right posterior tibial artery at the ankle joint. The report commented on the different wave form created by perfusion via the collaterals. That means that it was consistent with the early part of the posterior tibial artery being blocked and the blood flow coming in via collateral arteries which join up to small branches of the posterior tibial artery. This resulted in an ABI of zero which means that although the arteries were recognisable and there was a wave pattern, they could not measure pressure in the distal arteries.

97 An ABI of zero is a significant finding indicating that there is ischaemia in the lower leg. It indicated that the reconstitution of blood flow at the ankle joint was due to perfusion by collateral blood vessels and there was no arterial flow. If blood flow was not restored to the ischaemic tissue the tissue would die. At this point there was a 50 per cent chance that the plaintiff would lose his lower right leg.

98 The first defendant left theatre at about 3.30 pm and tried to find the plaintiff but at that time he was undergoing the duplex scan. Approximately an hour later he visited the plaintiff on the ward. The hospital progress notes record at 4.45 pm that the first defendant instructed to cease CPM and only to commence Clexane after the epidural and other drains had been removed. The notes also record a requirement for "regular neurovascular obs 4 hourly" on the right leg. The first defendant gave instructions to elevate the head of the bed above the heart at night and to use a space blanket. This was to keep the leg warm. The note concludes with "review in am". I accept that the first defendant saw the plaintiff once only at approximately 4.45 pm.

99 After reviewing the written advice of the second defendant he discussed the plaintiff with the second defendant and the second defendant advised him that he was concerned about the plaintiff's leg in that the duplex scan had shown no run off but that a bypass operation in his view was contra indicated. It seems that after leaving the instructions which I have just referred to the first defendant considered that he had done all that was required at that time. He gave evidence that when he left the plaintiff he thought that the blood flow appeared to be improving because the colour of the leg had improved and it was warm. As the first defendant only saw the plaintiff once, this assessment must have been based on his observations and the earlier observations of the second defendant and Dr Brankov which were conveyed to him. He also considered that pain was under control but acknowledged that that was partly due to the plaintiff's epidural. I also note that the improved colour and warmth could have been due to the space blanket and lowering the leg. There were still no pedal pulses.

100 When the second defendant first examined the plaintiff's leg in the afternoon it was white and cold. There was a lack of movement, sensation and no pedal pulses. His view was that because the plaintiff had a popliteal pulse and no pedal pulses there had to be discontinuity of blood flow between those two levels. To find out the nature and extent of that he suggested a duplex scan. The radiologist advised the second defendant by telephone of the results of the duplex scan as he said because of "the gravity of the findings".

101 His provisional treatment was to put the leg down in order to use gravity to encourage blood flow and to suggest anticoagulation treatment, that is Clexane.

102 The second defendant regarded his suggested treatment as a standard conservative course. He agreed that he discussed it with the first defendant around 4.30 pm. He acknowledged that there were complications with using Clexane as it may result in bleeding into the site of surgery and in the epidural space if the plaintiff still had an epidural catheter inserted. He considered that it was not up to him to decide whether, for example, to remove the epidural catheter as the plaintiff was not his patient, he was only providing a vascular opinion.

103 He explained his reference to microvascular thrombosis in his written note to thrombosis of the smaller arteries coming from the tibial arteries. He said that once thrombosis occurred in these arteries and eventually also on the venous side there was an irretrievable situation. He said that this process occurred within hours. None of the vascular surgeons who gave evidence understood why the second defendant described the situation in this way. However in my view it is consistent with the second defendant believing that the popliteal artery was chronically occluded and therefore placing importance on the collateral system.

104 As to whether it was appropriate to surgically intervene the second defendant thought that the only way to save what was not irretrievably damaged in the leg was via a conservative approach. This was because the benefit he saw in surgical intervention was zero and the risk was very high. He thought that the benefit was zero because at the time what was damaged was already damaged irreversibly because of the 30 hours or thereabouts time lapse since the arthroplasty. Whereas nerve and muscle which had been deprived of blood would have only survived for six hours once the blood flow was stopped. The risk he regarded as high because it would have required a surgical incision behind the knee straight through the area where the collaterals existed which in his view were sustaining the leg. He believed the result of that would have been that the plaintiff would have lost his leg because it would have divided his collaterals which were the only vessels that sustained the leg in the presence of the tibial artery occlusions.

105 As for bypass surgery, that is surgery to bypass the occluded area, his view was that as the duplex scan indicated there was reconstitution of flow within the posterior tibial artery at the ankle joint the bypass would have had to have been "plugged in" at the ankle. His view was that this would have had the result of saving his foot but losing the calf as the surgery would have required a cutting of the collaterals which supplied blood to the calf.

106 He said he gave consideration to a Fogarty catheter, which is a tube with a balloon on the end which is able to be passed down an artery and inflated and used to retrieve thrombotic material. The second defendant said that a Fogarty catheter is fairly rigid and will only go down an artery and will not traverse vessels. Therefore in this situation he regarded that it would be necessary to insert it in the popliteal fossa behind the knee in order to approach the smaller vessels. However, this would not have cleared the thrombotic material in the tiny branches and microvascular system. He said that is why it fails after a few hours. He also referred to the complication of arterial damage from the catheter itself.

107 With respect to the use of a catheter to aspirate the clot in the popliteal artery the second defendant said that "we" have not had particularly good results with the use of the method. He referred to the larger diameter of the catheter and the fact that it had similar limitations as the Fogarty catheter.

108 The second defendant also considered the use of clot dissolving treatment as opposed to anti-coagulant which prevents further clotting. However he dismissed this because of the risk of "torrential haemorrhage" at the site of the operation.

109 The second defendant saw the plaintiff for the initial consultation, then after he received the results of the duplex scan at approximately 4.30 pm and again at around 6.00 pm. He said the first defendant was present during the 4.30 pm consultation. I accept this evidence and note that the second defendant's answers to interrogatories in respect to times are wrong.

110 During the 4.30 pm consultation he thought that there had been a slight improvement in the perfusion of the leg in that the colour was somewhat better and the pain was somewhat less.

111 There was one observer who recorded vascular observations at noon, 1.00 and 2.00 pm. At noon and 1.00 pm the colour is described as pale, toes cool, movement present, sensation absent and pedal pulses absent. At 2.00 pm the colour is pale, the temperature warm, movement present, sensation absent and the columns for the pedal pulses blank and a remark that there was popliteal on doppler.

112 There are no observations between 2.00 pm and 4.00 pm. This is probably due to the plaintiff being taken from the ward for the duplex scan during this time. At 4.00 pm a different observer records that the colour is pink, temperature warm, movement present, sensation absent and the columns for pedal pulses and remarks is blank. In what appears to be the same handwriting the observer has recorded that at 5.30 pm the colour was pink, toes were cool, movement slight, sensation absent, pain nil and the pedal pulses were faint with doppler. Underneath the words "toes cool" was written the word "warm". I find that this is a comment in relation to the leg generally. The second defendant believed these observations were consistent with an improvement.

113 Inexplicably, given the plaintiff had an acutely ischaemic leg, there are then no observations recorded on the vascular chart between 5.30 pm and 11.00 pm. I note that the first defendant said that he ordered four observations per hour not one every four hours which is what is recorded in notes. Even accepting that mistake in recording, it is remarkable that there were no vascular observations for five and a half hours of a man who had an ischaemic leg.

114 During the course of the evening the plaintiff's condition deteriorated. The pain increased substantially. It is difficult to make accurate findings with respect to when the pain increased as there was little evidence from the plaintiff as to exact times when his condition deteriorated and the hospital notes are to some extent inconsistent and incomplete. At 11.00 pm the vascular chart has no entry in the pain column but notes that the pedal pulses are absent with doppler. At midnight the vascular chart notes the pain as nil, across the pulses column there is a comment "leg is swollen" and in the remarks column it states "popliteal on doppler". At 1.00 am on 26 September a different observer has recorded that the colour is pale, temperature of the foot is cool, movement slight, sensation ? (illegible) to mid-calf, nil below and pain severe. There is no entry for the pedal pulses. Regular observations are made between then and 2.00 am. However, no pain observation is made except at 1.15 am where it says "pain calf 9 on 10".

115 The epidural infusion notes for the same period has observations hourly from 5.30 pm on 25 September to 1.00 am on 26 September. On these the pain is noted as zero up until midnight and severe at 1.00 am.

116 The integrated progress notes have an entry for 1.00 am indicating that the plaintiff had complained of severe pain in his right calf, that the leg was very swollen and there was no sensation and movement. The first defendant was notified and came in to see the plaintiff. The plaintiff does not recall seeing the first defendant prior to being taken to surgery for an emergency fasciotomy. However, it is clear that the first defendant after having been notified by the nursing staff came to the hospital and examined the plaintiff. The first defendant noted that the antero lateral aspect of his lower leg was swollen, woody hard and quite tender. The plaintiff's foot was white and passive dorsiflexion of his toes increased the pain. The first defendant diagnosed compartment syndrome, arranged for an emergency fasciotomy and also arranged for the plaintiff to sign consent papers for a fasciotomy and a bypass procedure. He explained that this was because he thought the plaintiff's leg was at risk. I note that from the time the ABI was confirmed as being zero there was known to be a significant risk of necrosis and amputation. The first defendant contacted the second defendant and the plaintiff's wife. There were no delays in the first defendant's response after having been advised of the deterioration in the plaintiff's condition at around 1.00 am.

117 As soon as the theatre was ready the first defendant commenced the fasciotomy. A fasciotomy, as the first defendant explained, is an operation to release the build up of pressure within a fixed compartment by dividing the fascia of the compartment. A compartment is a sheet of connective tissue which encloses groups of muscles or other organs. They separate muscles into groups. As the plaintiff's expert witness Professor Tracy explained compartments are dense and they do not give way. So if there is swelling within a compartment, for any cause, pressure within the compartment rises and it is unable to be released because of the layer of membrane surrounding it. Thus the swelling prevents the blood from circulating normally through the compartment and the muscles can be thereby deprived of essential blood and they can die. This is called a compartment syndrome. In the lower leg there is a compartment below the knee at the front called the anterior tibial compartment. It was in this compartment that a compartment syndrome developed.

118 As Professor Tracy explained there are a number of different causes of the build-up of pressure that causes a compartment syndrome. Among those causes are exudation of tissue fluid, haemorrhage or the restoration of blood flow after a protracted period of ischaemia beyond 6-12 hours.

119 The second defendant's view was that the compartment syndrome developed after he last saw the plaintiff on 25 September. In his opinion the ischaemia that he saw in the plaintiff's leg on the afternoon of 25 September was inconsistent with a compartment syndrome because lack of blood and fluid in the leg due to ischaemia could not cause swelling of the tissues as required for a compartment syndrome. Thus, the compartment syndrome in his view, had developed upon re-perfusion of the leg.

120 I do not accept this view. The weight of the expert opinion is that there was not the restoration of blood flow that would cause such tissue swelling. There are a number of other causes of compartment syndrome and in my opinion the explanation given by Mr Lawrence-Brown which is detailed later in this judgment is to be preferred.

121 In Professor Tracy's opinion the plaintiff's popliteal artery had been occluded in the land mine injury in 1967 and thereafter the circulation in his leg had been provided by the collateral vessels. For reasons given later in this report I reject this view. After the surgery on 24 September there was swelling and a consequent rise in pressure which he thinks may well have squeezed the collateral circulation. The remaining medical experts, other than Mr Milne, accept that the plaintiff developed a compartment syndrome. With due respect to Mr Milne, whose opinion and expertise I generally rely upon, I do not accept his opinion on this issue. In this respect I defer to the clinical judgments of the defendants, particularly the first defendant who examined the leg upon arrival at Hollywood. Both defendants who had the undoubted benefit of seeing and examining the plaintiff in the early hours of the morning of 26 September believe that the plaintiff had developed compartment syndrome.

122 I find that it was also the second defendant's view as of 25 September that the occlusion to the popliteal artery had occurred in 1967. In his written opinion of that date he said he suspected that was the case and he answered interrogatories based on this belief. However, by the time he gave his evidence at trial he had reviewed that opinion based on material he had seen from other experts and the fact that in 2000 a further scan found the plaintiff's popliteal artery to be patent.

123 In the fasciotomy the first defendant did a skin incision and then divided the fascia of the anterior, posterior, deep posterior and perineal compartments of the lower leg. Although upon division there was muscle inside the anterior compartment which looked abnormal it twitched upon the first defendant testing it and so he decided not to do any debridement of the tissue in the hope that it would all survive.

124 The first defendant did not give an opinion as to what he thought the cause of the ischaemia was. Neither did he give an opinion as to what the cause of the compartment syndrome was. He said that in his conversations with the second defendant on the afternoon of 25 September the second defendant said that he thought that the plaintiff's ischaemia was due to old trauma and that he did not think that a bypass was a viable option. The first defendant said that he accepted the second defendant's view as the vascular management of the plaintiff was the second defendant's responsibility. He said that when he left the hospital on the afternoon of the 25th he believed that the leg was improving and he thought it would revascularise. This was due to the fact that he believed there was an improvement in warmth and colour although he could not feel any pulses. He believed that it would improve but that if it didn't then he appreciated that there was a chance of the plaintiff losing his leg.

125 Several matters arise from this. The first is that there was poor communication between the defendants and the plaintiff at this time. There is no evidence that either defendant bothered to explain to either the plaintiff or his wife what had happened, what the proposed treatment was or what the prognosis was.

126 Secondly, there is a dispute between the defendants as to which of them is responsible for the plaintiff's vascular treatment. The first defendant's view was that the second defendant was responsible for the vascular management of the plaintiff. As a consequence he said that he did not question the second defendant's opinion, did not institute or consider instituting any vascular treatment of his own, or explore other options with the second defendant as to treatment of the ischaemia. Whereas the second defendant was firmly of the opinion that he was called in to provide a vascular opinion only and that management of the plaintiff whether it be vascular or orthopaedic was the responsibility of the first defendant.

127 It is regrettable that the first defendant and the second defendant were at such odds with respect to which practitioner was responsible for the vascular treatment of the plaintiff. This situation puts a patient at risk of not receiving the appropriate treatment from either practitioner.

128 For example, in the plaintiff's case, the second defendant recommended that the Clexane be administered. However, he did not follow this advice any further as he apparently regarded it as the responsibility of the first defendant to commence treatment. The first defendant on the other hand instructed that Clexane not be administered until after the epidural had been removed. As it turned out there is no evidence that anybody was instructed to remove the epidural and thus the Clexane was not started until well after the fasciotomy had been performed. It was Mr Lawrence-Brown's view that it was likely that without an anti-coagulant there would be more thromboses in the plaintiff's lower leg.

129 Thirdly, the attitudes of the defendants to the plaintiff's treatment and condition on the afternoon of 25 September appears to be what might be described as robust. The plaintiff had had a profoundly ischaemic leg at approximately 3.30 pm and at approximately 4.45 pm he had increased warmth and colour but still no palpable pulses. The presence of warmth and colour must be seen in light of the fact that since the ischaemia had been diagnosed the plaintiff had been taken off the CPM machine, had his foot lowered and had the benefit of a space blanket each of which may increase temperature and colour of an ischaemic limb. These problems were in a patient who had only one leg. The second defendant suspected the plaintiff had an occlusion of his popliteal artery for 30 years. Thus, this was a patient whose collaterals were, to the best of their knowledge at that time, supporting the circulation of his lower leg. Nonetheless, the defendants went home that afternoon apparently without alerting any of the nursing staff or the plaintiff to the possibility of a compartment syndrome arising in the lower leg. Such a risk, although insignificant after an uncomplicated arthroplasty, is significantly raised where the patient's leg is ischaemic, circulation is being provided by the collateral vessels and the treating doctors believe circulation is improving.

130 After the fasciotomy the wound was dressed. There was some bleeding after the fasciotomy had been performed which suggested to the first defendant that he had restored some blood flow to the compartment by performing the fasciotomy.

131 The vascular chart shows slow improvement in the circulation of the lower leg. It took until October sometime for the pedal pulses to be recorded as strong. The plaintiff was commenced on Heparin, an anti-coagulant, immediately after the fasciotomy. The epidural catheter was removed at approximately 2.00 pm on the 26th.

132 On 1 October the plaintiff was taken back to surgery to have necrotic tissue in his lower legs removed. Further debridement of the fasciotomy site occurred on 6, 14 and 19 October. On 5 November he had a further debridement of fasciotomy site and a skin graft. Similar procedures followed. He was discharged from Hollywood on 15 December 1998.

133 The following year he was in and out of hospital having debridement and skin grafts. He also had manipulation of the knee under anaesthetic to improve its mobility which was affected by the long periods of immobilisation required after the skin graft.

134 In April 2000 the plaintiff had a scan which showed that this popliteal artery was patent. Thus somehow the occlusion had dissolved.

135 Within days of the fasciotomy the plaintiff noted that he had foot drop and this has continued to this date. The remainder of the plaintiff's relevant history will be dealt with when I consider the issue of damages.

136 In support of his case the plaintiff called two vascular surgeons, Professor Graham Tracy and Mr Peter Milne. He also called an orthopaedic surgeon, Professor Sydney Nade. The defendant called a vascular surgeon, Mr Michael Lawrence-Brown and an orthopaedic surgeon, Mr John Hill. The plaintiff also called his current treating vascular surgeon, Mr Stephen Baker. However his evidence was substantially limited to the question of the plaintiff's current treatment and was not opinion evidence on the question of liability.

137 Because of the complex medical issues raised by this action it is necessary for me to summarise in some detail the evidence of each of these witnesses.

138 Professor Graham Tracy is professor emeritus of surgery at the University of Sydney and a consultant at St Vincent's private hospital in Sydney. He has had over 50 years experience in general and vascular surgery. He has published a number of papers touching on lower leg ischaemia. He is clearly a very experienced and well qualified vascular surgeon. Professor Tracy was asked to provide a medico-legal opinion on behalf of the plaintiff.

139 In his minute of expert evidence Professor Tracy opines that the circulation of the plaintiff's lower leg must have been damaged at the time of the war injury. He reasons that as the plaintiff had severe open wounds to the knee area and destruction of his upper calf muscle there must have been damage to blood vessels in the area.

140 He further reasons that as the second defendant did not operate when the plaintiff' leg became ischaemic the occlusion to the popliteal artery must have been an old injury and that circulation to his leg was provided by the collateral vessels. Thus he says that the plaintiff had much greater chance of producing "critical ischaemia in the distal leg, whether or not compartment syndrome develops". He says that the risk is difficult to quantify but it required careful assessment before surgery.

141 However as I reason later in this judgment the second defendant was wrong in his belief that the occlusion to the popliteal artery must have been an old injury. When, in cross-examination, it was put to Professor Tracy that the second defendant had changed his view and now thought that the injury which caused the occlusion occurred at the time of surgery Professor Tracy maintained his view that it was caused by the landmine accident. He said that he could not think of a mechanism for any acute arterial injury caused during surgery which would have left the plaintiff's leg so satisfactory immediately afterwards. Thus he remained of the view the ischaemia was caused by swelling of the tissues which greatly increased the pressure on the collateral vessels which were then sustaining the blood flow in his leg.

142 He was of the view that the condition of the plaintiff's foot after surgery, that is, circulation as good as it was before, strong pulses, warm foot and no pain was inconsistent with the injury to the artery occurring during the surgery. It was, however consistent with problems developing over the passage of some hours due swelling squeezing off the plaintiff's alternative circulation.

143 Professor Tracy's theory was that subsequent to the occlusion of the popliteal artery as a consequence of the war injury the plaintiff developed a good collateral circulation so that he did not lose his leg. The collateral circulation was enough to produce palpable ankle pulses as the first defendant found upon preoperative examination.

144 Nonetheless on the basis of the history he, Professor Tracy, was given he thought that the first defendant ought to have realised that the circulation was compromised with increased vulnerability to further injury and swelling during surgery. He believed that the mere presence of the pulses was not sufficient to assess arterial sufficiency and that doppler measurement of ABI before and after exercise may be required. Consequently it would have been prudent for the first defendant to obtain a vascular opinion prior to surgery. He believed that such investigations would have revealed the chronically occluded popliteal artery.

145 In relation to the history he said that the report that was compiled by the plaintiff which was provided to him in order to provide his medico-legal opinion was to the effect that the plaintiff's leg would become pale when he raised it and he had intermittent claudication, that is pain on exercise, relieved by resting. This is a typical complaint of someone with arterial insufficiency in the muscles of the leg. I have noted elsewhere that the plaintiff's evidence fell short of establishing that the plaintiff either had or told the first defendant that he had these symptoms.

146 Professor Tracy acknowledged that if he had not been advised of that history there was nothing to point one way or the other as to the cause of any compromise to his circulation. Further if he had heard of no complaints of ischaemia prior to surgery, there would be no reason for him to think that the plaintiff had ischaemia or any cause for ischaemia.

147 As to the post operative treatment of the plaintiff Professor Tracy says that from reading the notes it is impossible to say when the compartment syndrome started, especially when the epidural was masking some of the symptoms. The instructions he received from the plaintiff's solicitors were that the plaintiff said that the pain in his lower leg commenced on the morning of 25 September after the first defendant had been to see him. Thus Professor Tracy believes that this is probably when the compartment syndrome began. I note however that in his evidence, the plaintiff was vague about when the pain in his leg started. He said he recalled the first defendant visiting him the morning after the operation and he asking if the leg was comfortable and the plaintiff recalled he said yes. So the plaintiff deduced from that that there was no significant pain at that time. He also recalled that it was there in the evening. The best he could say was that it began during the day. The notes disclose that the pain commenced at 10.00 am.

148 Professor Tracy noted that compartment syndrome might proceed from onset to irreversible muscle necrosis within six hours. No other expert disagreed with this opinion. However it is also true that it can take longer than that period. He also said that the results of the duplex scan in the traumatic setting indicated that there was a 30-60 per cent chance of the outcome being loss of the leg.

149 Professor Tracy was of the view that a fasciotomy should have been performed when the second defendant was called in for an opinion, that is after the duplex scan had been performed and it was confirmed that the plaintiff's leg was ischaemic. That would have been about 4.00 pm on the afternoon of the 25th . He notes that subsequent assessment indicates that the plaintiff suffered an anterior compartment syndrome. The symptoms of this would be extreme pain on attempting downward movement of his foot. This finding would indicate the need for urgent fasciotomy to avoid muscle necrosis. He said that it was important to perform the fasciotomy early when the signs were first present because once ischaemia became absolute it was too late to fix it. Then the plaintiff would not have lost the muscle and had the debridement and the infection and everything else that's flowed from it.

150 It was put to Professor Tracy that in view of the encouraging signs the defendants said that saw at around 4.30 pm on 25 September the best approach was that adopted, to merely to continue to monitor. He said he was "not sure about that". His reason for saying that was because a fasciotomy for compartment syndrome is in his view usually done in anticipation of the obvious signs of painful muscles that cannot move. He said fasciotomy was often done in a prophylactic way, to make sure that the muscle did not die. He thought that if some time on the 25th the plaintiff had had a fasciotomy no-one could be critical of that decision.

151 My assessment of Professor Tracy's evidence in this regard is that it is insufficient to establish that it was negligent of the second defendant not to perform the fasciotomy at an earlier stage, in the absence of overt signs of compartment syndrome. It is insufficient to prove negligence to merely say that a defendant could not be criticized for doing something other than what he did. There is a positive onus on the plaintiff to show that the omission of the second defendant to perform a fasciotomy fell below the standard of care expected of a competent vascular surgeon. Rather Professor Tracy's evidence is to the effect that there were two options, one was to wait and see and the other was to perform a prophylactic fasciotomy. He regards the former as the preferred better decision. However he does not go so far as to say that the latter is below the standard of care expected of a competent vascular surgeon.

152 Indeed he acknowledged that in the absence of signs of compartment syndrome on 25 September performance of a prophylactic fasciotomy would be controversial especially in the context of a recent arthroplasty that was susceptible to infection. It can hardly be said to be negligent to fail to perform an operation that a competent vascular surgeon such as Professor Tracy regards as "controversial".

153 As to the cause of compartment syndrome Professor Tracy said there are at least four different causes. He thought the one that he would say was not the cause of the plaintiff's compartment syndrome was the mechanism that the second defendant proposed, that is, a consequence of the restoration of blood flow. This is because complete restoration of blood flow would make the limb hot, hyperaemic and swollen. Professor Tracy said that that was not the case with the plaintiff's leg and also there was no management of the plaintiff's ischaemia that would act as a mechanism whereby there would be a sudden surge of arterial blood which would make his leg hot and swollen.

154 He said that he thought that the fasciotomy, even though in his view it was over six hours too late, was successful in helping the collateral circulation because the plaintiff's leg improved after the fasciotomy and he could not see anything else that helped the circulation. However he said that because of the delay the muscles and nerves in the anterior compartment were already dead.

155 As to alternative treatment of the ischaemia Professor Tracy agrees with the second defendant that the plaintiff should not have had a bypass. This was because in his view the injury to the popliteal vessel was a chronic injury of longstanding and not an acute severed artery which could be repaired, sewn up, patched or bypassed. He said that if the plaintiff had an acute injury second defendant drew much more criticism for not doing anything about it.

156 Professor Tracy said that as the results of the duplex scan meant that there was thrombosis through the arteries coming off the popliteal artery conditions for an attempt to revascularise with operative intervention were unfavorable. I do not know exactly what kind of operative intervention Professor Tracy was talking of at this point.

157 As to the incidence of compartment syndrome as a complication of total knee arthroplasty, Professor Tracy said he had experience of numerous cases and regarded it as the most common vascular complication after arthroplasty or any knee operations or injury. He said that he could get from Medline hundreds of articles about just the problem of compartment syndrome after knee surgery, including arthroplasty. Medline is an online service providing access to most major medical journals and published medical papers. Over objection from the plaintiff, I permitted the defendant to lead evidence that a person experienced in searching Medline had not been able to find the articles that Professor Tracy said existed. As this evidence was given after Professor Tracy's evidence, he was not given the opportunity to respond to it.

158 I accept Professor Tracy's evidence as a respected vascular surgeon that he has had numerous cases of compartment syndrome arising out of knee surgery generally. I do not accept his evidence that it is the most common complication of such surgery as this was an opinion given in answer to a question under cross examination, without considered research on the point. For the same reason I do not take at face value his assertion that Medline contains hundreds of articles on the complication.

159 After considering the evidence in its totality, my view is that compartment syndrome is an uncommon complication of arthroplasty itself. This is because arthroplasty is unlikely to result in sufficient swelling to squeeze out the circulation in the muscles of the lower leg. Further I accept the orthopaedic surgeons' evidence in this regard that they very rarely experience such a complication. Rather, compartment syndrome is not an uncommon complication of ischaemia or, to put it more accurately, not an uncommon consequence of re-perfusion of a leg after ischaemia. Ischaemia in turn can occur after arthroplasty in cases where there is acute trauma to an artery during the surgery or where thrombosis occurs for some other reason during surgery. The booklet says that serious thrombosis occurred in five per cent of patients. I note that Mr Milne in his report said that most referrals to him for vascular injury during arthroplasty are for people who have had previous surgery to the back of the knee. Thus indicating that in his experience vascular complications in arthroplasty patients is not an unknown.

160 Mr Peter Milne has been practising for 25 years. In addition to his Australian fellowship he is a fellow of the English and American colleges of surgeons. He is currently deputy head of the vascular surgery unit at the Royal Melbourne Hospital and he is also a consultant at Cabrini Hospital in Malvern, Victoria. He is a very experienced vascular surgeon and has had a lot of experience in complications of a vascular nature following knee surgery. Apart from a 1982 paper on arterial reconstruction for lower limb salvage, his curriculum vitae does not disclose any particular interest in lower leg ischaemia. Mr Milne was asked to provide a medic-legal opinion on behalf of the plaintiff. For this purpose he also examined the plaintiff in June 2002.

161 As to the issue of whether the first defendant should have obtained a vascular opinion prior to surgery, Mr Milne had also received a statement from the plaintiff claiming he had experienced various symptoms in his right leg prior to the surgery. Mr Milne's view was that these were classic symptoms of vascular disease. He said that these symptoms were "missed" and that in a person with these symptoms, no femoral pulse on the left and a smoker a vascular opinion should have been obtained.

162 As with Professor Tracy the difficulty in accepting this opinion is that the plaintiff did not give evidence of the same symptoms as apparently he gave in his statement. However Mr Milne does say that the first defendant should have been alerted to the possibility of a vascular problem by the plaintiff's comment to him that the foot became bloodless upon elevation. The plaintiff said and I accept that he told the first defendant that the foot became painful after elevation for 20 minutes and this had always been the case. However he did not recall that he told the first defendant that it became bloodless after elevation. Thus this conclusion is not supported by the evidence.

163 As to whether the plaintiff should have been offered arthroplasty, he said the indications for arthroplasty were present. Although he also notes that prior to surgery there was adequate evidence of significant fibrosis around the popliteal artery making the surgery challenging. He believed that there was adequate recognition of the risks except that there was inadequate vascular assessment.

164 With respect to the results of that hypothetical vascular assessment his view was that if, as likely, it had disclosed the plaintiff's pre-existing large vessel vascular disease, the advice would have been that it was reasonable to proceed with surgery as long as peripheral pulses were present. I accept that they were present and were palpated by the first defendant. He is also of the view that the large vessel arterial disease was not critical to the plaintiff developing ischaemia after the arthroplasty.

165 This opinion , coming as it does from a well respected vascular surgeon called by the plaintiff, makes it impossible for the plaintiff to succeed on his case with respect to the failure to obtain a vascular opinion and with respect to plaintiff being unsuitable for arthroplasty. This is because those claims are based on a conclusion that if the vascular opinion had been obtained it would have said that the plaintiff was not a suitable candidate for arthroplasty and he should not have therefore been offered the surgery. Mr Milne's opinion negates this hypothesis.

166 Mr Milne is of the view that a vascular opinion and investigation preoperatively would have been of assistance in the plaintiff's postoperative treatment. Clearly they would have been but the failure to obtain them is not alleged to be negligent for that reason.

167 In respect to the cause of the occlusion to the popliteal artery, Mr Milne said that he was sure that it was of traumatic origin and that he suspects that it was caused during the posterior surgery to the knee. He believes that there was clinical evidence of an ischaemic limb between 24-36 hours after the arthroplasty and this implies a blunt injury to the popliteal artery with dissection with progression to thrombosis in the post operative phase. He said he had no doubt that the "classic combination" of previous scarring, knee surgery and resultant blunt injury to the popliteal artery occurred. As to the mechanism of the injury he said that if the surgery had damaged the lining of the popliteal artery, platelets would be progressively deposited and a clot formed. Therefore occlusion of the artery could occur some time later than the original injury. In this case the arterial damage, although significant, had not been a transection or a total blockage that occurred instantly.

168 He believes that there are two reasons why the second defendant was incorrect for believing at the time that the occlusion was from the land mine accident. The first is that prior to surgery the leg had functioned satisfactorily. He considered the degree of ischaemia after the surgery to be incompatible with a man walking around prior to surgery. Secondly, both the first defendant and the nursing staff had felt pedal pulses prior to and post surgery which had then vanished and that was incompatible with a longstanding injury.

169 He also rejected Professor Tracy's view that this was a chronic occlusion. He considered that he had more experience in emergency vascular medicine and more recent experience than Professor Tracy who has not been in practice for some years. He thought that the balance of evidence by far and away was in favour of the popliteal artery being patent prior to surgery. Further, in light of the arteriogram done in 2000 showing that the plaintiff's popliteal artery was patent at this time, the blockage at the time of surgery had to be transient. He said the artery would not have reopened after chronic fibrosis occlusion.

170 He said that on the morning of 25 September all of the clinical and physical signs were present that indicated that the plaintiff's leg would not survive.

171 He does not believe that the fluctuating observations on the vascular chart on 25 September should have led the medical practitioners to believe that the situation was improving to any great extent. He said an ischaemic limb can fluctuate quite widely in terms of its appearance and signs, for instance, depending on how many blankets were on the patient and the density of the anaesthetic block to the limb.

172 As to there being faint pulses by 5.30 on the afternoon of 25 September where there had been none earlier he said this was explainable by observer bias, but he did not think that the therapy instituted by the second defendant could account for it. It implied a changing picture that the second defendant had to consider it, but he did not think it was terribly significant.

173 In his report Mr Milne said that whether the injury was chronic or acute, appropriate and required treatment would have been contrast angiography followed by operative reconstruction of the plaintiff's popliteal artery. He regarded this surgery as "challenging" but the only way to avoid the result the plaintiff now has to endure. He said that as this treatment was not pursued necrosis occurred.

174 He said that it was not possible to determine the nature of the injury until the angiogram had been done. An angiogram involves inserting a tube in the groin artery, injecting a contrast agent into the artery, following it down with x-ray equipment to delineate the anatomy and the status of the arteries beyond the damaged area. It has a about a one in five thousand nasty complication.

175 He said he would also use an angiogram to try and improve the situation in that a radiologist or vascular surgeon would normally put a wire down the artery and poke at the blockage to try and discover whether it was just thrombus or whether it was solid and not able to be removed. He said you could also quite easily aspirate the clot through the catheter you put in to do the angiogram. This, he said was often done for acute thrombosis coming in through casualty. He said an ordinary catheter could be used and was generally available in most hospitals. He also referred to the option of a Fogarty catheter, which is a very fine tube, inserted down the artery. A balloon at the end is inflated and when the catheter is removed it also removes the embolus or thrombus. These he said were options for improving the situation without resorting to surgery.

176 He said that the results of the 2000 angiogram reinforced his impression that the injury was relatively minor in terms of anatomical disruption and that it was largely a thrombotic event and therefore would be likely to be amenable to an endovascular technology, such as aspiration, to alleviate it. Preventing it rethrombosing was another problem.

177 If such intervention were not successful the normal response in cases like this one would be to make an approach to the artery behind the knee thus exposing the traumatised vessel and then make an attempt to repair it or bypass it depending on the circumstances. Intervention should occur within 1-2 hours of the diagnosis.

178 As to the second defendant view's that having regard to the scan results showing occlusion of all three arteries extending from the popliteal, there was no point in seeking to unblock these, Mr Milne agreed that thrombosis of the micro circulation is an end event of ischaemia and the tissue is then never salvageable. However in the plaintiff's case he said the only necrosis was of the anterior compartment muscle, so the majority of the limb did not suffer this complication. He agreed that it was a clinical decision that had to be made depending upon the condition of the tissue. He said that you could tell whether micro vascular thrombosis has occurred by compressing the tissue and if it does not blanch then it is dead. If it does blanche then it is salvageable.

179 Alternatively he said that it is only after you have removed a thrombus and had and had no reasonable result that you can say that an artery is irreversibly thrombosed.

180 He regarded a distal bypass as the intervention of last resort because of its failure rate and agreed that a treating doctor may not do one. However he said that if less risky interventions with lower morbidity failed and if, as in this case, he thought the limb was going to die without intervention then there was nothing to lose by doing a very distal bypass. He had not had to do a bypass in injury of this nature as he had been able to fix them all by a more conservative procedure. However, he said in this case he could not say what procedure would have been required.

181 He agreed that there was a gradation of "ability, intent, daring do" which results in different decisions by different people.

182 He also seemed to think that the decision to intervene was easier because it was a localised injury and therefore not as difficult to resolve progression of a natural disease. In this case the second defendant knew exactly the site that had the problem, the likely cause and knowledge that a local procedure might fix it.

183 As far as the second defendant's treatment was concerned he said the vast majority of his colleagues would regard the improvement it may invoke as being too small to measure. Making a leg dependent produced such a small boost in blood flow as to be largely irrelevant to most vascular patients. An anticoagulant would help but in fact the plaintiff was not anticoagulated. There was no treatment instituted that might restore blood flow more than what might actually occur as a natural attempt by the body to restore blood flow. He agreed, however, that there had an excellent result for conservative care.

184 Mr Milne does not accept that the plaintiff had compartment syndrome at any time. Rather in his view he had ischaemic necrosis of muscle in the anterior compartment secondary to deprivation of adequate blood flow to the muscle. Consequently he could not say whether or not the limb survived because of the fasciotomy or in spite of the fasciotomy.

185 He agreed that in the absence of signs of compartment syndrome on 25 September, performance of a prophylactic fasciotomy would be controversial, especially in the context of underlying prosthesis susceptible to infection.

186 He agreed that on matters of medical opinion, including both diagnosis and treatment, even great minds could differ. In this case, his disagreement with Professor Tracy is an example of this. He regarded Mr Michael Lawrence-Brown, the vascular surgeon called by the defendant to be a vascular surgeon within the Australian and International context of some high standard.

187 Mr Michael Lawrence-Brown is an emeritus consultant in vascular surgery at Royal Perth Hospital. His curriculum vitae which appears to be current 2001 states that he is head of the endovascular unit at Royal Perth Hospital. However he may have retired from that position and be carrying on practice in a private capacity. He is a very experienced vascular surgeon His curriculum vitae and evidence do not disclose any particular interest in ischaemia of the lower limbs or compartment syndrome. He was asked to give a medico-legal opinion on behalf of the defendants.

188 With respect to his pre-surgery assessment, Mr Lawrence-Brown acknowledged that the plaintiff was not "the run of the mill case" because of his landmine accident. He agreed that it would have been prudent to obtain an assessment of the plaintiff's vascular supply prior to surgery, especially if there were known signs of claudication.

189 Mr Lawrence-Brown regarded the question as to whether pre-operative angiogram would have influenced the decision to operate to be debatable. In his second minute of expert evidence he said that a vascular opinion prior to arthroplasty was not uncommon, but neither was it routinely done. He said it is a decision for the orthopaedic surgeon in a case where there is "an index of suspicion for inadequacy of arterial supply". He noted that the adequacy of the plaintiff's blood supply to the plaintiff's leg had not been in question prior to the surgery. In essence his view is that it cannot be determined whether a preoperative vascular opinion would have avoided the plaintiff's complication. However he does say that it would not have prevented the compartment syndrome. The inference I draw from his evidence is that he does not believe that a preoperative vascular opinion would have disclosed that the plaintiff was not a suitable candidate for arthroplasty.

190 Mr Lawrence-Brown considered that the occlusion had to have been caused by the surgery because the plaintiff's pedal pulses had been able to be palpated both before and immediately after surgery. He regarded the presence of pedal pulses prior to surgery as being a sufficient sign to the first defendant that the vascular supply to the leg was adequate to expect healing after the arthroplasty.

191 Mr Lawrence-Brown said that the mechanism for the development of the occlusion in the popliteal artery could be one of a number of different mechanisms. The plaintiff may have developed a fresh clot due to the popliteal artery being injured during surgery. This could have been from a drill, a screw, being cut or twisted and if there was an underlying problem within it then from plaque. Alternatively, pressure external to the artery could have caused it to compress and block.

192 He said that he was aware of the popliteal artery being injured on a number of occasions during surgery and therefore it was at risk of injury. He agreed that the plaintiff was a greater risk of injury because of scar tissue that surrounded his artery.

193 It seems to me to be highly unlikely that the popliteal artery was completely pierced or severed during surgery. This is because there is no evidence that the artery haemorrhaged during surgery. Also, the subsequent patency of the artery indicates that it was not permanently injured during the surgery.

194 Mr Lawrence-Brown considered that the second defendant acted appropriately when called in to give an opinion about the plaintiff's ischaemic leg. He regarded the decision as to whether there should be intervention by surgery to clear the occlusion to be one made on the basis of a risk benefit analysis as to whether the limb was already non-viable or whether surgery would aggravate the problem. In this mix he did not mention the other alternative which is that surgery would resolve the problem. He concluded that the second defendant determined that the limb was viable but that further surgery carried more risks than benefits.

195 Mr Lawrence-Brown regarded the second defendant's treatment implied that he believed the leg was viable. However, he acknowledged in cross-examination that lowering the leg was standard treatment which would have minor effect. The amount of Clexane prescribed was sub-therapeutic. This may well have been because the second defendant was concerned about the use of Clexane after major surgery and with an epidural in situ, nonetheless a sub-therapeutic dose and putting the foot down would not have achieved the aim of restoring blood flow.

196 Mr Lawrence-Brown said that the usual treatment for a fresh clot was performing an angiogram and attempting to remove the clot by use of a Fogarty catheter under x-ray imaging or the use of a catheter to aspirate it. If these methods were not successful then a bypass would be considered. He said that removing the clot was normal treatment and clearly he did not regard administering an anticoagulant alone as usual treatment.

197 With respect to an angiogram Mr Lawrence-Brown said that an angiogram was not of any benefit if a vascular surgeon had decided not to actively intervene in any way.

198 In re-examination Mr Lawrence-Brown detailed the difficulties of performing the various surgical interventions. These difficulties echoed those of which the second defendant spoke. In the case of a bypass there were particular difficulties associated with the surgical area being fibrotic and scarred. There was also the difficulty in operating near a recent wound and having to cut the collateral vessels which were probably the only vessels then supplying blood to the lower leg and foot.

199 In respect to the Fogarty catheter he said it was useful for retrieving a clot but there was the potential to do damage with it. The potential existed if the artery had already been torn or damaged and the Fogarty catheter ruptured the wall of the artery or disrupted a clot that was plugging a hole in the artery.

200 With respect to aspiration he said that it was not something that was done for a traumatic situation but that it would be less damaging than a Fogarty catheter. His view was that it was not done in a traumatic situation because the clot that was aspirated could be containing a hole in the artery and removing it could make the situation worse by leading to bleeding into the tissues.

201 He said that looking at the vascular observation chart he could not tell when the plaintiff's limb became ischaemic and in order to make that assessment he would have to have seen the limb for himself. However it appeared to him that the nurses and doctors had become concerned at around 10.00 am on the morning of 25 September when the resident medical officer was informed that the pedal pulses were absent and then Dr Brankov examined the plaintiff. He said, and I accept that the absence of pedal pulses at that time and later in the day, did not indicate that the plaintiff had compartment syndrome. He said that a compartment syndrome was a relatively uncommon condition usually associated with trauma and reperfusion. He agreed that if there was reperfusion of the lower leg following an occlusion then compartment syndrome was a possibility and had to be watched out for.

202 In cross-examination Mr Lawrence-Brown said he thought that Clexane had been administered on the second defendant's advice early on the evening of 25 September. This is incorrect for the reasons I gave earlier. No anticoagulant was administered until after the fasciotomy. Mr Lawrence-Brown also understood that the epidural had been removed prior to the anticoagulant being administered. Again this was an incorrect assumption. Mr Lawrence-Brown said that he routinely administered Heparin, an anticoagulant, during surgery in the presence of an epidural and that he didn't put as much weight on the risks of haemorrhage as others.

203 Unlike Mr Milne, Mr Lawrence-Brown appeared to accept that a compartment syndrome did develop. He believed that it developed because there was decreased inflow of blood into the compartment due to the occlusion of the popliteal artery. Additionally, there was increased swelling and oedema from the arthroplasty and therefore even less outflow. However he did not exclude reperfusion as precipitating "the full blown picture". He did not appear to regard compartment syndrome as inconsistent with ischaemia. When asked directly as to whether it was, he said that compartment syndrome caused ischaemia. Ischaemia in turn caused swelling of the tissues and this in turn caused compartment syndrome and so a cycle was established.

204 Mr Lawrence-Brown did not say when he thought that the compartment syndrome developed. However he said that in the absence of compartment syndrome a prophylactic fasciotomy would be controversial. He said that treatment for compartment syndrome involved some controversies especially in relation to the time to treat it by fasciotomy. He said that many thought that the time to treat it by fasciotomy was when the blood flow was re-established, if it was a compartment syndrome caused by reperfusion. Those in that camp thought that by the time a compartment syndrome had developed that the tissue in the compartment would have died. Thus to perform a fasciotomy at that point would not save the tissue but may lead to infection. The alternative, that is to leave it closed and let it heal, was regarded as the better option. He said he tended to "lean towards not doing fasciotomy".

205 He said that although the best time to do a fasciotomy was in anticipation of the problem, the difficulty was in anticipating if the problem would occur because in most instances a compartment syndrome did not develop. He was not aware of fasciotomy being performed in any routine basis and he would not perform a fasciotomy routinely when he revascularised a leg unless it was obviously traumatised with open trauma.

206 In respect to the apparent improvement on the afternoon of 25 September Mr Lawrence-Brown said that this was contrary to expectations. He said that he would not expect an improvement and the inference I draw from this is that he would not have regarded the apparent improvement on the afternoon of 25 September as being significant.

207 As to why the limb survived Mr Lawrence-Brown opined that due to the landmine accident and subsequent surgery the plaintiff probably had better collateral blood supply than most people. Whereas in the usual case it takes time for the collateral supply to develop when an occlusion occurs, that was not the case in the plaintiff's situation. He also said that the pre-existing arterial disease may have predisposed the plaintiff to the occlusion. Nonetheless when it occurred at the time of surgery the leg survived because of the developed collateral blood supply.

208 He regarded the position of the second defendant as requiring a very difficult judgment as to whether to proceed to intervene and make the problem worse or to treat the patient conservatively and accept that there was at least a 50 per cent chance that the patient would lose the affected part of their limb. In his minute of expert evidence Mr Lawrence-Brown said that the salvage of the limb was due to the management of it. The inference being that in view of the amputation rate of lower limbs after an ischaemic event such as the one suffered by the plaintiff, the result for him has been good.

209 Professor Nade has been practising for 35 years. In addition to his standard medical qualifications he has a doctorate of medicine and a doctorate of science. He is a fellow of the Royal College of Surgeons of England as well as the Royal Australasian College of Surgeons. He has previously been a senior lecturer and associate professor at the University of Sydney and was the foundation professor of orthopaedic surgery at the University of Western Australia. He was also clinical professor in the Department of Surgery in the University of Sydney. Prior to retirement he was senior staff orthopaedic surgeon at Westmead Hospital in Sydney, where he is now an emeritus orthopaedic surgeon. For most of his career he managed patients with traumatic injury in major teaching hospitals. His curriculum vitae does not disclose any particular interest in arthroplasty and its complications. He was asked to give a medico-legal opinion on behalf of the plaintiff.

210 With respect to the plaintiff's preoperative assessment, Professor Nade's opinion was affected by his view that the occlusion of the popliteal artery occurred as a consequence of injury at the time of the arthroplasty. He did not say that he thought that the first defendant should have obtained a specialist vascular opinion or obtained an ABI prior to surgery. With respect to the ABI he said that the requirement for its performance would depend on history taken by the first defendant and his findings on clinical examination at the time he initially assessed the plaintiff. With respect to a duplex scan he said that it would not be considered to be a primary investigation, unless there was some indication to perform it either from clinical evaluation or following an ABI.

211 However, had the investigations been done and it was revealed by them that the popliteal artery was occluded, in his opinion it would have been inappropriate for surgery to have been performed.

212 This opinion though is of hypothetical value only as Professor Nade was of the view that the occlusion to the popliteal artery occurred on 24 September 1998 following surgery, and not preceding it.

213 Professor Nade's view was that after surgery, on the afternoon of 24 September 1998 the plaintiff's treating doctors should have been alerted to the possibility of ischaemia and the investigations that were carried out on the afternoon of 25 September should have been carried out the previous afternoon.

214 Whilst I am not in disagreement with Professor Nade about this, the difficulty in rendering the first defendant liable for this omission is my finding that the first defendant was not advised of and had no reason to be aware of the problems with the plaintiff's leg until approximately 1.00 pm on the afternoon of 25 September.

215 With respect to the mechanism of the injury, Professor Nade was of the view that because of the plaintiff's scarring and adherent tissue, it was necessary for the first defendant to strip the adherent tissue away from the knee joint. In the process Professor Nade believes that the popliteal artery was damaged. Whilst this could have been as the result of it being cut, the fact that a tourniquet was not used and no excessive bleeding was noted, in my opinion it is more likely that it occurred through blunt injury to the wall or lining of the artery.

216 Professor Nade says that as there appears to have been some blood passing into the plaintiff's leg in the afternoon of 24 September, it suggests to him that occlusion occurred through thrombosis rather than embolus or external occlusion of the popliteal artery and that this progressively worsened over the ensuing few hours. Over those hours it was possible that there was some blood flow to the limb.

217 Once the ABI was confirmed as zero and the duplex scan confirmed the acute arterial occlusion, Professor Nade's view was that appropriate treatment would be to attempt to restore the blood supply to the plaintiff's right leg. In his opinion the most appropriate way to have done this would be by surgical exploration of the right popliteal artery, and thrombectomy, embolectomy or a bypass, whichever was found to be appropriate.

218 Professor Nade thought that the plaintiff probably did develop compartment syndrome which was evident in the early hours of the morning of 26 September. However he acknowledged that the symptoms of compartment syndrome were not unequivocally present 24 hours earlier.

219 He regarded the principal symptom of compartment syndrome as pain upon passive movement, that is with the doctor moving the muscles rather than the patient. This, he acknowledged, was difficult to diagnose in a patient who had an epidural in situ. He acknowledged that the other features of compartment syndrome may not be obvious whilst they are developing. He believes that the extreme pain felt by the plaintiff on the morning of 25 September was consistent with either ischaemia or compartment syndrome.

220 Professor Nade regarded it possible for compartment syndrome to develop when a leg was still ischaemic. He described much the same mechanism as Mr Lawrence-Brown.

221 Even accepting Professor Tracy's view about the chronically occluded popliteal artery, Professor Nade did not think that there would be sufficient swelling of the muscles and tissues following arthroplasty to occlude the collateral vessels.

222 Professor Nade said he would leave the treatment of the ischaemia to a vascular surgeon. Similarly he would leave the treatment of the compartment syndrome to a vascular surgeon.

223 His experience was that if he had a patient with an ischaemic insult he always did a fasciotomy as part of the process of repairing the vessel to prevent potential compartment syndrome. However he did not argue with Professor Tracy's view that compartment syndrome did not necessarily follow an occlusion causing ischaemia as he regarded Professor Tracy as far more expert in vascular insults than he. I query whether it was Mr Milne's view that was being put to him.

224 Until recently Mr Hill was senior orthopaedic surgeon at Royal Perth Hospital where he had a part-time appointment for 35 years. He continues in private practice. A particular interest of Mr Hill's is surgery of the lower limb particularly arthroplasty of the hip and the knee. Over nearly 20 years he estimated that he had performed 1800-2000 arthroplasties of the knee and he was a pioneer of this type of surgery in Western Australia.

225 Mr Hill was of the opinion that the plaintiff was a suitable surgical candidate for arthroplasty in view of his severe disability. He based his view of the disability of the plaintiff on the account given by the first defendant.

226 He said in his experience patients without palpable pedal pulses can and often do undergo knee arthroplasty. He also thought that it would be unusual for a patient with pedal pulses to have compromised peripheral circulation.

227 Mr Hill's opinion is that because the plaintiff had had palpable pedal pulses before surgery and immediately after surgery that the plaintiff's blood supply was adequate to undergo the arthroplasty. He did not think that any other tests, scans, investigations or consultations should have been undertaken prior to surgery.

228 He expressed the view that after looking at the hospital notes, the first defendant's account and the nursing notes that proper care and attention was given to the plaintiff. When I asked him about the absence of vascular observations between 5.30 pm and 11.30 pm on 25 September, he acknowledged that there appeared to be a couple of "gaps". Later he said that he thought there was an indication of compromise of the plaintiff's circulation at 10.30 am on the morning of 25 September and that appropriately at that point a vascular opinion had been sought. This disclosed a misunderstanding of the hospital notes as it was not until after 1.00 pm that a vascular opinion was sought. These two examples lead me to place very little weight on Mr Hill's opinion that "proper care and attention was given to the plaintiff". He then said "looking at the neurovascular chart, there does not appear to have been any major change in the observations from immediately postoperatively until 1.00 am on 26/9/98...". In his evidence he acknowledged that this opinion was incorrect as there was evidence that the plaintiff's circulation was compromised at least at 10.30 am on 25 September 1998.

229 Mr Hill acknowledged that the severe pain recorded at approximately 12.45 pm on 25 September may be an indication that a compartment syndrome was developing but that he said this would depend upon whether the pain was in the muscles at the front of the leg or in the knee itself. He said he though it would be very difficult without seeing the patient and seeing the state of his leg to determine whether there were symptoms of compartment syndrome at this time.

230 Mr Hill believed that the plaintiff had acute rather than chronic ischaemia.

231 He said he could not comment upon whether a fasciotomy was the appropriate treatment for compartment syndrome but then he said that it was usually done.

232 In respect to the frequency of compartment syndrome, Mr Hill said that in the approximate 1800 cases of knee arthroplasty he had carried out he had had one case of compartment syndrome.

233 Mr Hill regarded the vascular observations on the late afternoon of 25 September as indicating that the circulation had improved. He regarded the symptoms that occurred in the early hours of the morning of 26 September as being the first definite signs of compartment syndrome. He regarded the fasciotomy that was performed at approximately 3.30 am as being the appropriate treatment performed in a timely manner.

Conclusions with respect to credibility of medical experts

234 The five vascular and orthopaedic surgeons who gave expert evidence are highly qualified and very experienced in their fields of expertise. However in most respects they have come to quite different views about the matters in issue in this trial. This is an example of the well known fact that fine minds can differ.

235 In respect to the vascular surgeons the weight of the opinion is against Professor Tracy in respect to whether the occlusion of the popliteal artery was chronic or acute. Although there is a logical basis for Professor Tracy's opinion, I am of the view that the experts who believe that the injury to the popliteal artery occurred at the time of arthroplasty have more objective evidence to support their view than Professor Tracy. Thus I prefer their evidence in this regard to that of Professor Tracy.

236 This conclusion has certain consequences in relation to Professor Tracy's evidence as a whole, as much of his opinion is based on his view that the popliteal artery was chronically occluded. Nonetheless I do not dismiss his evidence in whole. It is an example of how well qualified and competent medical practitioners can legitimately come to different opinions.

237 After reviewing the evidence of all three vascular surgeons the opinion of Mr Milne carries greatest weight. Against Professor Tracy I accept that Mr Milne has more current experience and greater experience in treating acutely ischaemic limbs. There is very little to separate Mr Milne and Mr Lawrence-Brown but overall it appeared to me that Mr Milne gave more cogent explanations for his opinions and had more relevant experience. However Mr Lawrence-Brown's evidence still carries weight as I refer to when dealing with individual allegations of negligence. In coming to these conclusions I have taken into account that Mr Milne was confused about some entries in the vascular observation chart but in my opinion these do not affect the overall cogency of his evidence.

238 With respect to the orthopaedic surgeons, I am much more inclined to accept the evidence of Professor Nade above that of Mr Hill. I accept the evidence of Mr Hill in respect to his experience as an orthopaedic surgeon with extensive experience in arthroplasty but in respect to the interpretation of what occurred at the relevant times, particularly postoperatively, and the opinion as to what was or was not appropriate treatment I accept the evidence of Professor Nade. This is because Mr Hill was shown on a number of occasions to have made sweeping statements in his minute of expert evidence which even he acknowledged could not be supported upon a closer examination of the objective evidence.

239 The relevant principles relating to the duty of care owed by a medical practitioner to a patient are set out in the decision of the High Court in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479. In Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at 453, Gummow J quoted the following excerpts from their Honours reasoning in Roger's case. He said that the structure and sequence of their reasoning could be understood from these passages:

"(i) 'In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade.'

(ii) '[I]t is for the courts to adjudicate on what is the appropriate standard of care after giving weight to "the paramount consideration that a person is entitled to make his own decisions about his life".'

(iii) 'The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty. However, the facts according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors.'

(iv) 'There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice.'

(v) 'Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices.' (emphasis added)

(vi) 'We agree that the factors referred to in F v R ((1983) 33 SASR 189 at 192-193) by King CJ must all be considered by a medical practitioner in deciding whether to disclose or advise of some risk in a proposed procedure. The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege.'" (emphasis added)

240 A risk is real and foreseeable if it is not farfetched or fanciful, even if it is extremely unlikely to occur; The Council of the Shire of Wyong v Shirt & Ors [1980] HCA 12; (1980) 146 CLR 40 at 48. The precise and particular character of the injury or the precise sequence of events leading to the injury need not be foreseeable. It is sufficient if the kind or type of injury was foreseeable, even if the extent of the injury was greater than expected; Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 at 120-121. One of the factors relevant to, but not decisive of the question of what a reasonable medical practitioner ought to have foreseen is the state of medical knowledge at the time when the duty should have been performed. A reasonable medical practitioner cannot be expected to have foreseen an event uncomprehended by medical knowledge at the time; Rosenberg v Percival (supra) at 456 per Gummow J.

241 With respect to the issue of causation in a warning case, that is whether any alleged breach of a duty to warn has been proven to have caused the plaintiff's injuries, a court asks whether this plaintiff would have undertaken the surgery if warned of a risk of harm involved in it. The test is a subjective test. It is not decisive that a reasonable person would or would not have undertaken the surgery. What a reasonable person would or would not have done in the plaintiff's circumstances will almost always be the most important factor in determining whether the Court will accept or reject the plaintiff's evidence as to the course that the plaintiff would have taken. But what a reasonable person would have done is not conclusive; Rogers v Whitaker (supra) at 490; Chappel v Hart (1998) 195 CLR 232 at 246 and 272.

Allegations of negligence against the first defendant

Alleged failure to investigate the circulation of the plaintiff's leg prior to surgery

242 The statement of claim alleges that had there been sufficient investigation of the circulation in the plaintiff's right leg either it would have been found that:

(i) the plaintiff was not a suitable surgical candidate for arthroplasty; or

(ii) arthroplasty posed greater risks because of the state of the circulation of the plaintiff's right leg.

243 The latter conclusion does not automatically lead to a finding of negligence. Such a finding may be a basis for the next particular of negligence, that is, that the first defendant failed to advise the plaintiff of the risks of surgery. The first defendant also says that properly understood (i) does not stand alone but also needs to be read in conjunction with the plaintiff's warning case. In my opinion (i) can stand on its own as an allegation of negligence.

244 However, I am not satisfied that the allegation in par (i) has been made out. I have detailed the reasons for this when summarising Mr Milne's evidence.

245 The first defendant acknowledges that he did not investigate the circulation in the plaintiff's right leg prior to surgery other than to perform a basic vascular assessment himself and obtain an opinion from Miss Wood in regards to the closing of the site of the incision. If he had made such investigations he would not have discovered that the popliteal artery was occluded because I have found that the occlusion did not occur until after surgery.

246 In this regard it is important to review the plaintiff's pleadings. At par 4 of the statement of claim it is alleged that the following the land mine injury the plaintiff suffered damage to the vascular system of his right leg, including occlusion of the right popliteal artery. It is implicit that the remainder of the pleading is based on the allegation that the popliteal artery was occluded prior to the arthroplasty as opposed to being occluded during or immediately after surgery. Further in relation to this particular part of the plaintiff's case it is for this reason that the plaintiff says that pre-operative investigations of the plaintiff's circulation would have revealed an occluded artery and the fact that the plaintiff was not therefore a suitable candidate for arthroplasty.

247 At the commencement of the plaintiff's case the defendants raised the point that whilst this was the pleaded case, the plaintiff opened the case on the basis that there was two views concerning the cause of the occlusions in the popliteal artery and, although they were mutually exclusive, the plaintiff intended to lead evidence to support both views. Ultimately the defendants took the pleading issue no further. However it was always the defendants' view that presenting the case on the basis that either position was credible was fatal to the plaintiff's case.

248 Dealing with this allegation of negligence, I have to agree. For the plaintiff to succeed with respect to this allegation it must satisfy me that proper investigations would have revealed that the plaintiff was an unsuitable candidate for arthroplasty. In the context of this case, this could only be because of significantly compromised circulation of his lower leg, that is, occlusion of his popliteal artery. Yet the plaintiff has presented credible expert evidence from Mr Milne, which I accept, that the plaintiff was a suitable candidate for arthroplasty because his popliteal artery was not occluded prior to surgery.

249 The plaintiff has a second string to this plea. It is that even if the artery was not occluded as a consequence of the landmine accident, the plaintiff nonetheless had symptoms of arterial disease that should have alerted the first defendant to the need for further investigations. The plaintiff submits that the extent of the arterial disease would have been discovered on proper investigation and that this would have disclosed that the plaintiff was not a suitable candidate for arthroplasty.

250 One of the difficulties for the plaintiff is that in his evidence he both denied the existence of the symptoms of arterial disease and denied telling the first defendant of these symptoms. What is pleaded in the statement of claim is inconsistent with his evidence. Importantly he did not say he mentioned to the first defendant that he had been experiencing the symptoms of intermittent claudication; that is, pain in the leg, not joint, after walking which is relieved by rest. These, Professor Tracy and Mr Milne said, are classic signs of vascular disease but, despite being part of the instructions given to the plaintiff's experts, they were not something that the plaintiff gave evidence of. In this respect I am not satisfied that the plaintiff told the first defendant of or exhibited symptoms of arterial disease that should have alerted the first defendant to the need for further investigations.

251 The second difficulty for the plaintiff is that the duplex scan of 24 September noted that the plaintiff had "minor early arterial disease". There is no evidence before me to indicate that this amount of disease rendered the plaintiff unsuitable for arthroplasty. Mr Milne was of the view that the pre-existing vascular disease did not render the plaintiff unsuitable for arthroplasty as long as peripheal pulses were present. I have found they were.

252 The plaintiff also says that the surgery should not have been offered because the plaintiff's level of disability was much less than the first defendant believed it to be. In final submissions it was submitted that if the first defendant had properly understood the level of disability and the risks he would not have offered the surgery. I agree that the first defendant appears to have over estimated the plaintiff's subjective belief of the extent of his disabilities. The plaintiff is, as everyone at trial agreed, a stoic and brave man. I believe that he did not perceive his disabilities to be anywhere near as severe as the average person would think that they were. It may be that the first defendant thought they were even greater. However I do not accept that this misjudgment played a major role in the first defendant's decision to offer the plaintiff arthroplasty. As Mr Milne said in his report (Exhibit 10) "the indication for a knee replacement in this gentleman was present ..."

253 This allegation of negligence is not made out.

254 The next allegation of negligence is the failure to advise the plaintiff that, by reason of his right leg's compromised circulation, he was at greater risk of developing compartment syndrome than a person of similar age would be. There is a further pleading of failing to advise the plaintiff that he was not a suitable candidate for knee replacement surgery by reason of his right leg's compromised circulation. As a consequence of the plaintiff failing to satisfy me that he was not a suitable candidate for arthroplasty, I find that this latter allegation is not made out. However the first must be examined in further detail.

255 The pleading identifies the relevant risk as a greater risk of developing compartment syndrome. This is important because there were many risks associated with this operation but the plaintiff has pleaded just one as being material to his case. The question is whether the first defendant's failure to warn the plaintiff of his increased risk of developing compartment syndrome caused or materially contributed to the first defendant causing the plaintiff's compartment syndrome?

256 There are a number of issues implicit in this question. The first is did the plaintiff have such an increased risk? The second is whether first defendant should have warned the plaintiff of this risk, that is was it a material risk? The third is did the first defendant fail to warn him of this risk? The fourth is would the plaintiff have undergone the arthroplasty and thus suffered the compartment syndrome even if warned of the risk?

257 I find that the plaintiff had an increased risk of developing compartment syndrome in that he had minor early arterial disease in his leg and scar tissue behind his knee which meant that the surgery was more complicated and there was some risk of injury to the popliteal artery, as Mr Lawrence-Brown acknowledged. Although I doubt that this is the "compromised circulation" comprehended by the pleading. It seems much more likely, based on the pleaded facts, that the compromise was intended to be the chronic occlusion of the plaintiff's leg. The surgery involved the "stripping" of tissue which was adherent to the back of the knee and thus more surgery had to be performed in the vicinity of the popliteal artery.

258 Whilst I accept that compartment syndrome is an uncommon complication of arthroplasty in that the first defendant had never experienced it in approximately 2000 cases and Mr Hill has had only one case in 1800 the plaintiff's leg injuries and arterial disease put him at greater risk of developing ischaemia than the average patient and I accept that compartment syndrome is a known complication of acute ischaemia.

259 As to how much increase in risk existed Professor Tracy said that "in the presence of arterial insufficiency and arterial disease, all of the morbidity of surgery is vastly increased". However he was the only expert who expressed himself in this way and even then he did not refer specifically to compartment syndrome. Mr Milne said that the surgery was "challenging" but he did not express this as being related only to the increased risk to the plaintiff's circulation or of developing compartment syndrome. Indeed Mr Milne did not believe that the patient had developed compartment syndrome. The failure of any medical expert to expressly identify compartment syndrome as being a particular risk to which the plaintiff was exposed leads me to the view that his increased risk of developing compartment syndrome, in particular, was small. Consequently the first defendant cannot be expected to have believed that it was significantly raised.

260 The second question is whether the risk was a material risk of which the first defendant ought to have advised the plaintiff? I have asked myself whether a reasonable person in the plaintiff's position, if warned of the risk would be likely to attach significance to it or if the first defendant was or should reasonably have been aware that the plaintiff, if warned of the risk, be likely to attach significance to it?

261 After considering all the evidence I am not persuaded that a reasonable person in the plaintiff's position would have attached significance to the increased risk of developing compartment syndrome. This is because the risk of developing compartment syndrome was, in my view, far less than the risk of developing a serious infection, ischaemia or many other complications. For example, ischaemia was associated with approximately a 50 per cent chance of losing the leg. Compartment syndrome may develop as a result of reperfusion after ischaemia and some experts believe that it may develop in the presence of ischaemia but it certainly does not always happen. It was immaterial to tell the plaintiff that compartment syndrome may develop as a direct consequence of arthroplasty because the risk of it occurring in that fashion was too remote in light of my finding that the popliteal artery was patent prior to surgery. A risk that arthroplasty in the plaintiff's case included an unlikely, but slightly more likely than the norm, complication of ischaemia and that following ischaemia there was a further unlikely risk of compartment syndrome was not a risk that the plaintiff was likely to attach significance to.

262 In saying this I have taken into account the plaintiff was particularly sensitive to the idea of having his leg amputated. He said so in his evidence and I have no reason to doubt that keeping his leg was very important to him. Further I accept that the first defendant ought to have been aware of this because the plaintiff had been so dismissive of the idea of amputation as a primary treatment of his leg pain. Nonetheless in the context of all the risks he was taking in having the surgery, for example a 1-2 per cent risk of death, 5 per cent risk of serious thrombosis and 10 per cent risk of serious post operative complications (all of which were detailed in the booklet provided to the plaintiff), I do not accept that being told of the small risk of developing compartment syndrome would have been a matter of significance to a reasonable person in his position or to him in particular.

263 However if I am wrong in this regard I have considered the remaining issues. The next is whether the plaintiff was warned of the risk? As I have said the plaintiff was told that serious thrombosis in the leg or lungs occurs in about five per cent of cases. For the plaintiff compartment syndrome, if it developed was likely to be a complication of thrombosis. The plaintiff said that he understood that some of the risks in the booklet applied to patients with arthritis and not to him. I have found that it was not reasonable for him to believe that the risks I have just detailed did not apply to him and I do not believe that the first defendant should have foreseen that he would not have considered they applied to him. The warning of risk of serious thrombosis is a general warning of this condition and its complications, this would include compartment syndrome. It cannot be that a doctor is expected to go into details of every possible way the complication may manifest itself or develop. The risk as articulated in the booklet satisfies the legal requirement to warn the plaintiff of the risks associated with his surgery.

264 I also accept that the first defendant told the plaintiff at least when he dictated the letter to the general practitioner of the wealth of ignorance about his particular situation and that success could not be guaranteed. I accept that these were very vague comments but they must have put the plaintiff on notice that the risks associated with his surgery were over and above those of the general arthroplasty population.

265 If I am wrong that the plaintiff was warned of the risk I have considered whether the plaintiff would have undergone the arthroplasty and suffered the compartment syndrome in any event? The plaintiff said that he was prepared to accept major risks of higher than 1-2 per cent and other problems at 10 per cent. Later he said that he had lived with the pain for 30 years and it was not an essential operation. He said that if the first defendant had told him that there was a reasonable risk of losing the leg or running some damage to the function of the leg and that was above five per cent he probably would not have gone ahead with the surgery. The plaintiff's evidence is relevant but not solely decisive of this issue. Further the risk that is relevant is the risk of developing compartment syndrome, not of losing the leg or of damaging it by any means.

266 I have balanced the plaintiff's evidence against the extent of his disability and the information that he was provided in the booklet. He objectively had a significant disability and arthroplasty excited him because of the prospects of removing pain and gaining movement in his knee. It was an issue he had pursued with doctors for many years. He was given the booklet and it detailed some very significant risks. Some of them I have referred to above but there were others including 1-2 per cent of patients developing deep infections which give rise to major problems. Nonetheless the plaintiff was willing to undergo arthroplasty within a month of it being first raised with him. I conclude that if he had been expressly advised of the small risk of him developing compartment syndrome he would still have undergone the arthroplasty.

267 Consequently, this allegation of negligence has not been proved.

Alleged failure to perform a fasciotomy on the plaintiff's right leg within six to eight hours of the onset of symptoms

268 The statement of claim alleges that had the fasciotomy been performed within six to eight hours of onset of symptoms the plaintiff would not have suffered his injuries. Whilst this is the way in which the case is pleaded and the pleading is supported by Professor Tracy's view that a fasciotomy should have been performed on the afternoon of 25 September, the plaintiff's closing submissions focused on the allegation that the first and second defendants should have intervened surgically, but not by fasciotomy, earlier than they did. Nonetheless this allegation was not abandoned and it is necessary for me to deal with it.

269 I find that there were no clear symptoms of a compartment syndrome prior to the early hours of the morning of 26 September. As soon as the first defendant was advised of the plaintiff's deteriorating condition he went to the hospital and in a timely fashion diagnosed compartment syndrome and performed a fasciotomy.

270 The plaintiff made attempts to establish from expert witnesses that the pain that the plaintiff experienced on 25 September was a symptom of compartment syndrome. He was not successful. Mr Nade said it was consistent with either ischaemia or compartment syndrome. Mr Hill said it could have been due to compartment syndrome but he would have had to see the plaintiff to determine that question. I do not accept that it has been proved that the pain was caused by a developing compartment syndrome as opposed to ischaemia. There is no detail as to whether the pain was in the knee joint or in the muscle, a matter which is very important for determining whether such pain is caused by a developing compartment syndrome. Further the fact that the only muscle that died was in the anterior compartment indicates that the compartment syndrome may not have been developing as early as midday on 25 September.

271 Professor Tracy and Mr Lawrence-Brown regarded prophylactic fasciotomies to be the most effective because they relieve pressure in the compartment prior to necrosis occurring. On the other hand these experts regarded prophylactic fasciotomy as controversial amongst their peers. Mr Lawrence-Brown tended not to perform them. Mr Milne would not have performed one. The expert orthopaedic surgeons said they were usually done but both deferred to the vascular surgeons' opinions. I am not persuaded that it would have been good medical management for the first defendant to perform a fasciotomy on the plaintiff in the absence of any symptoms of a compartment syndrome, as opposed to symptoms of ischaemia which the plaintiff undoubtedly had. This is particularly so in the context of the facts as I have found them. That is, I do not accept that there was reperfusion of the leg sufficient to give rise to a high suspicion on behalf of the treating practitioners that compartment syndrome would develop. The experts gave evidence that if there is open trauma and a limb is revascularised it is often the case that a fasciotomy will be performed at that time. In this case although the first and second defendants thought that the plaintiff's leg was improving in the late afternoon of 25 September, I have found that there was not the reperfusion that was likely to give rise to a compartment syndrome.

272 Consequently this allegation of negligence fails.

Alleged failure to have due regard to the plaintiff's leg symptoms on 24 September 1998 which required investigations and/or surgery to restore blood supply

273 This allegation is in relation to the plaintiff's leg symptoms on 24 September 1998 and in particular the faintness of his pedal pulses from 3.00 pm onwards. The plaintiff contends that the faint pedal pulses ought to have alerted the first defendant to the fact that the plaintiff's leg circulation was compromised and required investigations and/or surgery to restore blood supply. The plaintiff's oral submissions focused upon the failure of the first defendant to actively intervene to restore blood supply to the plaintiff's ischaemic leg.

274 I have made findings of fact to the effect that the first defendant only became aware of the possibility of ischaemia at approximately 1.00 pm on 25 September. He responded appropriately by sending Dr Brankov from the operating theatre to examine the plaintiff. There was then an appropriate response by seeking a vascular opinion from the second defendant. I have found that because the first defendant visited the plaintiff at approximately 7.00 am on the morning of 25 September and examined him but neither heard nor saw anything that caused him concern there is no basis for finding that his management of the plaintiff up until 1.00 pm on that date was in any way negligent. As I have now stated his management of the plaintiff up until calling in the second defendant was entirely appropriate.

275 I find that once the first defendant had obtained the second defendant's opinion he was almost bound to follow the second defendant's advice with respect to vascular treatment as he was the expert. I accept Professor Nade's view in this regard. I do not accept that the first defendant could not question the second defendant's proposed treatment and it is a mystery to me why there was not further discussion between them as to possible treatment to increase the plaintiff's chances of keeping his leg and avoiding complications of the ischaemia. Nonetheless I am not persuaded that the first defendant's reliance upon the second defendant's advice which was not to surgically intervene, was negligent.

276 In coming to this conclusion I have also taken into account the various expert opinions as to the factors for and against surgically intervening in a case of ischaemia such as the plaintiff had. I deal with these in more detail in respect to the allegations of negligence against the second defendant. I do conclude that the second defendant was not negligent in failing to diagnose an acutely occluded popliteal artery. However if I am wrong in my conclusion he ought to have at the very least performed an angiogram in an attempt to obtain a better picture of the flow of blood in the plaintiff's leg but I do not believe that there is sufficient evidence for me to conclude that if he had done that he should have gone on to perform any particular surgical intervention and if he had that it would have avoided the plaintiff's injuries.

277 Consequently this allegation of negligence fails.

Failure to have regard to the plaintiff's symptoms on 25 September 1998 that ought to have alerted the first defendant to the fact that the plaintiff's leg circulation was comprised and required investigation and/or surgery to restore blood supply

278 This allegation of negligence is no different from the previous allegation except that it focuses on the plaintiff's symptoms on 25 September as opposed to 24 September. For the reasons that I have given above this allegation of negligence fails.

Allegations of negligence against the second defendant

Failure to have adequate regard to the plaintiff's symptoms following the replacement surgery

279 It is not clear to me that this pleading can stand alone. It is not pleaded how such a failure caused the plaintiff's injuries. Neither is it clear to me what "adequate regard" is. The second defendant did have regard to the plaintiff's complaints of severe pain and lack of pedal pulses. He diagnosed that the plaintiff had a profoundly ischaemic limb and he was aware of the risks that posed to the plaintiff. The only criticism that can be made of him in this regard is that he believed that the situation was improving in the late afternoon of 25 September when he had done little, if anything, to provoke an improvement. As Mr Lawrence-Brown, the defendants' own expert, said the apparent improvement would not have been expected and therefore little significance should have been placed on it.

280 Without further particulars, it is not possible for this allegation to succeed.

Failure to diagnose plaintiff's compartment syndrome

281 For the reasons given earlier in relation to the first defendant I am not persuaded that the plaintiff has proved that he was developing a compartment syndrome prior to the late evening of 25 September and, if he was, I am not persuaded that there were symptoms available for the second defendant to diagnose.

282 This allegation of negligence fails.

Failure to perform or recommend fasciotomy be carried out on the plaintiff's right leg

283 For the reasons given earlier in relation to the first defendant I am not persuaded that proper medical treatment required a fasciotomy to be carried out on the plaintiff's right leg prior to the early hours of the morning of 26 September when it was carried out. Even at that point there is divided expert opinion as to whether the fasciotomy was appropriate, although I accept that the first defendant's decision to perform it could not be criticised.

Failure to recommend or perform surgery on the plaintiff's leg to restore blood supply

284 Excluding fasciotomy there were three types of surgical intervention that could have been employed to attempt to revascularise the plaintiff's leg. I will accept that they are all included under the definition of "surgery" although this is debatable. I exclude fasciotomy because I have already dealt with that option and in any event it would not have restored blood supply in the sense of removing the occlusion in the popliteal artery.

285 The three types of surgical interventions are a Fogarty catheter, aspiration of the clot or bypass surgery.

286 I accept the preponderance of expert evidence to the effect that intervention should not have been attempted without first performing an angiogram in an attempt to get a better picture of the flow of blood throughout the plaintiff's leg and to determine the nature of the injury. Mr Lawrence-Brown was of the opinion that there was no use performing an angiogram if the treating surgeon had decided not to actively intervene because he thought he could only make the situation worse by doing so. I reject Mr Lawrence-Brown's opinion on this point as an angiogram is an important tool to assist the surgeon to decide on appropriate treatment.

287 As I have already stated the second defendant decided not to surgically intervene as he saw that the benefit was zero and the risk was very high. The conclusion that I draw from all the evidence is that on 25 September the second defendant believed that the occlusion was chronic and therefore he did not believe that he could remove the occlusion in the popliteal artery. He believed that he could not bypass it because the risk of failure of the bypass was significant and the risk of cutting the collateral circulation when performing the bypass was too high.

288 The second defendant said he did give consideration to a Fogarty catheter but that he regarded that it would be necessary to insert it in the popliteal fossa behind the knee in order to reach the smaller vessels and that it would not have cleared the thrombotic material in the tiny branches and microvascular system. This confirms my view that he was not considering a Fogarty catheter to try and remove the occlusion of the popliteal artery. I understand that if it was intended to remove this occlusion the approach would have been via the groin. He said that in relation to the use of a catheter to aspirate the clot in the popliteal artery he did not regard it as having particularly good results.

289 The second defendant narrowed his options by his view that this was a chronic popliteal occlusion. If he had been thinking more broadly then he may well have done an angiogram to explore whether there was any chance of removing the popliteal occlusion.

290 Whilst I have concluded that the occlusion was acute and not chronic, I do not find that it was negligent of the second defendant to believe that the occlusion was chronic and to act on that basis. This is because Professor Tracy, a witness called by the plaintiff, who is a well respected, experienced and qualified vascular surgeon with the benefit of more time and more background material has also concluded that the popliteal artery was chronically occluded. My rejection of that conclusion does not mean that the second defendant was negligent in arriving at it given the material that he had to work with on 25 September.

291 The plaintiff submitted that it was negligent of the defendant to act on the basis that the occlusion was chronic because this was inconsistent with the first defendant being able to palpate the plaintiff's pedal pulses before and after surgery. The fact remains that Professor Tracy, knowing those facts, still believes it was a chronic occlusion. I find that this was a reasonable conclusion for the second defendant to come to.

292 Having come to the view that it was a chronic occlusion, as Professor Tracy said, this was not a case where a bypass should have been performed and by inference his view was that surgical intervention of any sort to remove the popliteal occlusion was inappropriate as it would not be successful in removing it but would expose the limb to more risk. I accept that that was a reasonable position to take if, as I accept, the second defendant believed it to be a chronic occlusion.

293 At one point in his evidence Mr Milne said that whether the occlusion was chronic or acute the appropriate course was an angiogram. However he did not go on to explain how an angiogram and surgical intervention, other than a bypass, could benefit a chronic occlusion. He acknowledged that a bypass was probably inappropriate in this situation. Consequently, I do not accept his evidence in this regard.

294 However if I am wrong in my conclusion that it was not negligent to come to the view that the popliteal artery was chronically occluded and to base his treatment on that view, then I accept Mr Milne's evidence that at the very least it was appropriate to perform an angiogram to determine the nature of the injury to the popliteal artery. I also accept that in that process the radiologist or intervening vascular surgeon would normally put a wire down through a tube to poke at the blockage to try and discover whether it was just thrombus or whether it was solid and not able to be fixed. Depending upon the vascular surgeon's assessment a Fogarty catheter may be used or an attempted aspiration may be made.

295 I accept the opinion of Professor Tracy, Mr Milne and Mr Lawrence-Brown that it would not have been appropriate to attempt a bypass because of the potential failure rate and the risk of cutting the collateral vessels which were sustaining blood flow to the leg.

296 However there was a difference of opinion between the experts as to whether the other interventions should have been attempted. Professor Tracy did not think they ought to have been because he believed it was a chronic occlusion, Mr Milne believed they should have been because they were the only way to restore blood flow and avoid the poor result the plaintiff now has and Mr Lawrence-Brown regarded it as a matter of clinical assessment for the treating vascular surgeon as to whether attempts to perform those techniques were likely to have improved or worsened the situation.

297 I accept Mr Lawrence-Brown's evidence in regards to the risks of doing so and these risk factors had to be balanced by the second defendant in the light of his examination of the plaintiff. Mr Milne did not deny these risks but balanced them against the alternative of at least a 50 per cent chance of loss of the limb. He also accepted that there was a great gradation of "ability, intent, daring, do" which results in different decisions by different vascular surgeons. I find that Mr Milne with his qualifications and experience was at the end of that gradation. The second defendant was clearly a more conservative practitioner and he should not necessarily be found negligent because of that.

298 However, the second defendant should have performed an angiogram and should have assessed, from the result of the angiogram, the prospects of achieving a positive result from the use of the Fogarty catheter or aspiration. I cannot say whether the results of the angiogram would have been such to justify surgical intervention. Further, after considering all the evidence I am not satisfied that it can be said that the second defendant's failure to perform the angiogram and intervene has caused the plaintiff's injuries.

299 At the time the plaintiff developed ischaemia he had at least a 50 per cent chance of losing his leg whether or not there was surgical intervention. The conservative treatment has resulted in him keeping his leg. There is no doubt he has suffered damage to his leg as a result of the fasciotomy not healing. There is however insufficient evidence before me to prove that those injuries would have been avoided if the second defendant had attempted surgical intervention some time after the duplex scan result was obtained. First, revascularising the leg would have led to a greater chance of compartment syndrome occurring through reperfusion. Secondly, if as I accept the leg was gradually becoming ischaemic throughout 24 September and was ischaemic at around 10.30 am on 25 September, the damage to the plaintiff's muscle had in all likelihood occurred by the time the second defendant was in a position to revascularise the leg. Thirdly, I accept that any of the techniques that were available to the second defendant to use in an attempt to revascularise the leg carried with them their own risks of serious damage to, and even loss of, the leg. These risks were referred to by the second defendant and also by Mr Lawrence-Brown who regarded them as significant enough to warrant a vascular surgeon deciding not to intervene to revascularise a leg.

300 I also accept the possibility that if an angiogram had been performed it may have revealed to the second defendant an occlusion that could not be safely removed. For example, he may have decided that there was such a suspicion that the clot was blocking a hole in the artery that an attempt to remove it was fraught with too much danger. The real possibility that an angiogram and preliminary investigations may have revealed a situation that could not be improved was recognised by Mr Milne and certainly by Mr Lawrence-Brown.

301 Assuming I am wrong in finding that it was not negligent of the second defendant to act on the view that the occlusion was chronic I have gone on to consider what the appropriate standard of care was if the second defendant considered that it was an acute occlusion.

302 I conclude that whilst the second defendant should have performed an angiogram and explored the nature of the occlusion to the popliteal artery and on the basis of the results have seriously considered attempting to remove it, I am not satisfied on the balance of probabilities that his failure to do so has caused the plaintiff's injuries. I cannot conclude that but for his failure to act in this manner the plaintiff would not have suffered the injuries he has.

303 Consequently this allegation of negligence fails.

304 It is not surprising that the plaintiff is dissatisfied with the treatment that he received and the result of the arthroplasty. In a number of respects that I have mentioned I consider that he has a right to question his care and treatment. However, I am obliged to consider the liability of the defendants having regard only to particular allegations of negligence pleaded against each of them and in the light of the often conflicting expert medical evidence. I have concluded that in respect of all the allegations of negligence that are in issue between the parties the plaintiff has failed to make out his case.

305 The second defendant has admitted liability in respect to the administration of the antibiotic, gentamicin, for the period 3 August 2000 to 3 October 2000.

306 At par 20D of the statement of claim the plaintiff claims that as a result of the antibiotic treatment he has suffered damage to the 6th and 7th cranial nerves, loss of sense of balance and partial loss of hearing. At par 24 of the statement of claim there is a plea that the plaintiff has suffered permanent disabilities, implicitly, as a consequence of the second defendant's negligence these being limited and restricting ambulating function leading to a requirement to use a wheelchair and/or crutches, loss of earning capacity and depression. The second defendant denies that these are related to his antibiotic treatment. In his closing submissions the second defendant acknowledged that the plaintiff has a degree of hearing loss and some vestibular imbalance. His case is that these injuries entitle the plaintiff to be awarded general damages only.

307 Whilst the plaintiff gave evidence of some of his disabilities arising from the antibiotic administration, in many respects when detailing the difficulties he had in his daily life he did not differentiate between problems caused by the effects of the arthroplasty and those caused by the antibiotic administration. This has made it difficult to assess his damages for the antibiotic administration.

308 The plaintiff's damages for antibiotic related injuries must be assessed in light of his pre-existing disabilities and injuries. These are referred to earlier in this judgment. I accept that as a consequence of the arthroplasty and its complications he has had and continues to suffer from loss of muscle in his right leg, foot drop, recurrent infection in his right leg and lymphodema. On the positive side he now has increased movement in his knee of about 30 degrees.

309 As a result of the compartment syndrome and the subsequent fasciotomy the plaintiff had open wounds on his leg which did not heal well. The second defendant continued to manage this problem. On 3 August 2000 the second defendant caused gentamicin to be given intravenously to the plaintiff to deal with the infection. Gentamicin should not be given for any longer than 10 days because it involves risk of permanent side-effects. The known risks included permanent loss of hearing and permanent vestibular or balance dysfunction. The second defendant failed to monitor the development of the side-effects or to stop the administration of gentamicin which was continued for a period of approximately two months.

310 Approximately four to five weeks after its initial prescription the plaintiff started developing side-effects. Principally these were loss of hearing and a degree of giddiness. On 27 September his hearing was assessed. The assessment showed some hearing impairment which may have been consistent with exposure to gentamicin. The gentamicin continued until the second defendant saw the plaintiff on or about 10 October 2000. The second defendant reported that the plaintiff had developed a degree of oto-toxicity and also a degree of imbalance. The second defendant referred him to Dr Nai Lai, a consultant neurologist. He reported that the plaintiff had told him that midway through his gentamicin treatment he had noticed decreased hearing on the left side with tinnitus as well as a sense of dysequilibrium and with a gait imbalance. Dr Lai said that it was possible that the plaintiff had oto-toxicity, predominantly on the left side, which can be secondary to gentamicin and that he had vestibulopathy to account for the dysequilibrium and gait imbalance. Dr Lai organised vestibular studies. He noted that this type of drug-induced vestibulopathy ran an irreversible course. He also made a referral for the plaintiff to see a physiotherapist for gait assistance.

311 With respect to loss of hearing I accept that the plaintiff has suffered a loss of hearing in left ear and that it is permanent. Although I note, as did counsel for the second defendant, that it was not apparent during his evidence given over many days. Consequently I do not find that it is a significant disability.

312 The plaintiff gave evidence that he had a number of vestibular dysfunction symptoms including nausea, dizziness and ringing in the ears. He said that he had permanent loss of balance but his body has compensated somewhat for that by the use of his eyes. He said it was difficult to get around and he was very clumsy and quite slow. He had to be very careful when driving a motor vehicle. He said that the nausea was not as bad as it used to be. He said that if he was subjected to a lot of stimuli he got disoriented quite easily and quickly.

313 The plaintiff gave an example of the effect of his problems. He said that his eyes found it difficult to track objects if he moved his head quickly. For example, if he moved his head quickly the microphone in the witness box would blur. This meant that he moved his head more slowly. He also said that he could not read things whilst he was walking and consequently he had to stop and read. If he was tired or excited he had great difficulties in remaining upright. He said that if he was rested and not subject to a lot of stimuli and not moving his head he could cope much better.

314 He said that he didn't drive for a while because he didn't think it was particularly safe but then he started driving locally and moved from there. During the trial he drove to and from the Court. However he said that when he was driving he could not move his head quickly and on bumpy roads the road blurred so he had to be careful. He could recognise symbols on road signs but it was difficult to read the signs themselves.

315 If he closed his eyes or he was in the dark he was not able to tell whether he was vertical or horizontal unless he was touching something. Consequently his sense of touch had become a lot more important. As he had one artificial leg which did not have a lot of feeling and his other leg was now in a permanent splint it made it a lot more difficult for him to feel things through his feet. When he was standing he balanced himself with two arm crutches. He said that he could stand with one crutch he had to keep away from crowds as if he was bumped he would fall over.

316 He said he still suffered from tinnitus and he thought that it was constant. However, he now had to listen to it to know that it was there. He said he was also still dizzy any time he stood up or with movement.

317 The plaintiff said that he had used two elbow crutches since he had stopped using a wheelchair after the arthroplasty. His view was that he would stay upright as long as he could rather than revert to a wheelchair. He regarded being in a wheelchair "like giving up". He said that it was his opinion that if he had not lost his sense of balance he would be able to walk without crutches again but that with the loss of balance he thought that that was going to be very difficult to do that, if not impossible. Thus, the loss of balance had been more debilitating than the damage to his leg caused by the arthroplasty. The additional injuries he suffered from the gentamicin have, in his view, been "the icing on the cake".

318 With respect to this issue the second defendant says that as the plaintiff was still using crutches in August 2000 I should find that he would never have been able to do without them, even prior to the antibiotic treatment. Thus the plaintiff is not entitled to damages on the basis that it was the antibiotic treatment which caused his dependency on them.

319 No expert evidence was led as to whether a person with the plaintiff's pre-antibiotic treatment disabilities and injuries would have been able to walk without crutches. The plaintiff has shown himself over the years to be a very brave, courageous and determined man. Prior to the arthroplasty he walked without any aid other than his prosthesis. If any man of his age with these disabilities were going to be able to walk without crutches, the plaintiff would be able to. I also note that his evidence was that he thought he would be able to. This may be an optimistic assessment but the plaintiff alone knew the extent and effect of his disabilities. I accept his evidence in this regard. However I also accept that it would have taken time for him to learn to walk without crutches and that he had not commenced this process at the time the antibiotic induced injuries occurred. Further there would have been times when for reasons unrelated to the antibiotic caused injuries he would have had to use either a wheelchair or crutches, for example when he was recovering from surgery. Further I accept that there may have been times or their may be a final time when he decides for reasons unrelated to his antibiotic caused injuries that he is more comfortable with using crutches or indeed a wheelchair. I do not accept that his antibiotic caused injuries are going to result in him using a wheelchair.

320 Dr R Edis, a neurologist, was called by the plaintiff in relation to his antibiotic caused injuries. He confirmed that the plaintiff's impairment would result in him getting abnormal signals on head movement which in turn created the sensation of imbalance, movement, vertigo or giddiness. He also said that the vestibulopathy would make it more difficult for the plaintiff to walk, particularly if tired or distracted and he would be less safe in any crowd or in the dark. Dr Edis acknowledged that it was very unfortunate for the plaintiff to have his problem when he was already walking with two prostheses. He said that the fact that he was using those prostheses certainly contributed to his imbalance.

321 The plaintiff described difficulties he had in living in his home in the hills in Darlington. His home is a colonial wood and limestone house built on the side of the steep hill. It is two storeys and the entrance is on the upper storey. He does not go down the stairs to the lower storey because he believes his balance is not up to using the stairs. However, he said that he had not used the downstairs of the house since he had left hospital after the arthroplasty, that is before the administration of gentamicin.

322 He said that the main problem around the house was that he could not carry things any more and he could not do things like push a wheelbarrow or clean the swimming pool. If there were to be any resistance he would just go over backwards. As a consequence the things that he could do around the house were greatly limited. However it was necessary to get people in to do maintenance on the house, garden and pool.

323 The plaintiff was a credible and generally reliable witness. I accept his evidence in relation to the nature and effect of his vestibular injuries. The only issue is to what extent some of his problems are related to the his land mine injuries and the arthroplasty and its complications as opposed to the antibiotic related injuries. Most of the loss claimed is related to that part of the plaintiff's claim for which the second defendant is not liable. However in addition to making an award for general damages there is a justification for making limited awards under some heads of damage in relation to antibiotic caused injuries.

324 In Medlin v The State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 at 3 the majority of the High Court said that a claim for loss of earnings imposes upon the plaintiff an obligation to satisfy the Court of two things:

"The first of those requirements is the predictable one that the plaintiff's earning capacity has in fact been diminished by reason of the negligence caused injury. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that the 'diminution of...earning capacity is or may be productive of financial loss'." (Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 437).

325 I am satisfied that the antibiotic caused injuries have diminished the plaintiff's earning capacity. It is the plaintiff's case that the arthroplasty related injuries caused him to give up his permanent employment on 25 August 2000. I accept this. However he did continue to work from home by doing part-time consultancy work through a partnership with his wife.

326 The plaintiff had incurred his antibiotic related injuries by the beginning of September 2000. Since December 2001 to December 2002 he estimated he had earned $15,000. The partnership's tax return for 2001 shows a net income of $15,357. The partnership's tax return for 2002 shows a net income of $13,006. I find that this income was earned through the plaintiff's personal endeavours. It is not possible to compare this income with what he earned in 1999 and thus determine his past economic loss. This is because the plaintiff was up until August 2000 still in receipt of an income from the Department of Commerce and Trade.

327 What is clear from the evidence is that the plaintiff retained some earning capacity after the arthroplasty and retains some to date. Nonetheless that earning capacity has been reduced since he received his antibiotic related injuries. It is plain that his use of crutches at all times and his vestibulopathy have reduced his earning capacity, for example, by reducing his speed, mobility and concentration.

328 In my opinion these disabilities have resulted in a further 20 per cent diminution in his earning capacity which I find was already greatly reduced after the arthroplasty. In determining this figure I have taken into account that for some of this time the plaintiff was unable to earn any money due to problems not related to his antibiotic caused injuries. This diminution of earning capacity has been productive of financial loss because if it were not for his vestibulopathy he would be able to devote more of his time and more concentrated time on his consultancy. It is reasonable to express this in dollar figures by saying were it not for his injuries in each year since his injuries he would have been able to earn 20 per cent more than he did. For the year ending June 2001 a further adjustment is required to take into account that he only had the injuries for 83 per cent of the year. I calculate the award for 1 July 2002 to the date of judgment on the basis of the previous year's income. Thus I award damages for past economic loss of $7,751.

329 Interest is claimed at 6 per cent per annum. Although this is relatively high I will allow interest as claimed at $465.

330 In Paul & Anor v Rendell (1981) 34 ALR 569 at 471 Lord Diplock said:

"... the assessment of future economic loss involves a double exercise in the part of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured."

331 It is also necessary to bear in mind the observations of Deane, Gaudron and McHugh JJ in Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 642-643:

"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 to damages to reflect the degree of probability."

332 The plaintiff is well motivated, determined and articulate. I accept that his compensable injuries will continue to be productive of economic loss for the rest of his working life. His loss for the year ending 30 June 2001 was approximately $2600 or $50 per week. This is an appropriate figure to use for the purpose of calculating the plaintiff's future economic loss. The plaintiff is entitled to damages for future loss of income at the rate of $50 per week until the age of 65 (multiplier 299.9), which is $15,000. I appreciate that this figure is actually based on him working until 65 years and 4 months but this is appropriate given his work history and the fact that he is working from home.

333 The second defendant alleges that the plaintiff's future economic loss would have occurred in any event due to the plaintiff's pre-existing disabilities and injuries. The disabilities and injuries upon which the second defendant relies are severe leg pain, progression of arthritis in plaintiff's right knee, recurrent back pain, polyarthralgia, eczema, predisposition to infection in his legs, hyperlipidaemia, coronary artery disease, fibrosis and progression of peripheral arterial disease.

334 There was considerable evidence at trial about these matters but I need not detail it because the plaintiff was suffering most of these problems after the arthroplasty and prior to his antibiotic related injuries. As well he was still in the recovery phase from the arthroplasty and its complications and thus there were significant periods of time he was unable to work. Nonetheless he earned the income upon which he based his loss of earning capacity. Thus the figure I have arrived at, to a significant extent, reflects the impact which these problems have and are likely to have on the plaintiff until the age of 65.

335 The second defendant's submits that it is likely that the plaintiff will have to use a wheelchair in the future. This is because either the polyarthralgia in his arms and shoulders will be aggravated by crutches so that he will not be able to use them or because his arterial disease or predisposition to infection will result in amputation of his right leg or inability to use a prosthesis on his left stump. Accepting this submission, I do not accept that amputation of the leg or use of a wheelchair will affect his earning capacity. Working from home and with the facilities that are available to wheelchair bound people I cannot see how the sort of work the plaintiff does would be affected.

336 I accept that some discount for contingencies should be made from this sum for the chances of premature death or total disability. The evidence from the vascular surgeons, including Mr Baker the plaintiff's treating vascular surgeon in relation to the plaintiff's sever arterial disease persuades me that he is at a higher risk than other people of his age of these matters.

337 Discounting the plaintiff's future economic loss by 10 per cent to take account of these contingencies, I award the plaintiff $13,500.

338 As it was not the plaintiff's compensable injuries that caused this loss, I make no award under this head.

339 The plaintiff claims $68,219 by way of damages for past gratuitous services provided by his wife, friends and relatives and past paid services by people who clean his car, garden and maintain his home and pool. The figure is for the whole period from the date of the arthroplasty.

340 The second defendant submits that this figure exaggerates the amount of services the plaintiff has required because of the arthroplasty and antibiotic related injuries as opposed to being related to his land mine injuries.

341 Any compensation payable to the plaintiff in respect of gratuitous services must be compensation for his incapacity to look after himself as demonstrated by the need for the services provided for him: Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 at 192.

342 I find that the antibiotic caused injuries have resulted in some of these gratuitous services being required for him. In fairness to both parties I am of the opinion that the award under this head should be a percentage of the total claimed. A reasonable figure is 30 per cent of what is claimed bearing in mind that all the tasks covered by the gratuitous services are matters that are affected by the plaintiff's vestibulopathy. Thus I award $20,465 for past paid and gratuitous services. I award interest at the rate of 6 per cent in the sum of $1228.

343 The plaintiff claims future paid and gratuitous services in the sum of $176,251. This is calculated on such expenses in the past for the balance of his life expectancy being 21.68 years as at 22 February 2003. As I am assessing damages as at the date of judgment, at which time he is 58, according to the Australian Life Table 1997-9 his expectation of life is 22.15 years.

344 I accept that the plaintiff's need for future services is not going to be any less than it has been in the past. Thus using the plaintiff's calculation, I would award 30 per cent of that figure being $52,875. However that figure must be heavily discounted to take into account the plaintiff's severe arterial disease which in the future may well require him to need these services regardless of his compensable injuries. I consider a discount of 50 per cent is reasonable and I award $26,437 for future gratuitous services.

345 The plaintiff claims $102,037.49 for special appliances being everything from electric wheelchairs to a cordless phone. I have examined the list and I am not persuaded that the need for any of those items has been caused by the plaintiff's antibiotic caused injuries as opposed to his land mine injuries or his arthroplasty complications. However there is no reference to the cost of crutches. I accept that as a consequence of his arthroplasty complications he would need to have access to crutches, nonetheless I have found that his complete reliance on crutches is due to his compensable injuries. Therefore I consider it is appropriate that I make an award of damages under this head as the everyday use of the crutches is bound to mean that they need to be replaced more often. I make an award of $2,000.

346 The plaintiff claims $305,500 for external, internal and other costs related to home modifications.

347 The need for these alterations is in my view a consequence of his land mine injuries or the arthroplasty complications. However the vestibulopathy caused the plaintiff to need additional balustrades and hand rails through out his home and I therefore award a global sum of $10,000 for such alterations.

348 These are for consultations with the general practitioner and orthopaedic surgeon. In my opinion these are not related to his antibiotic treatment and I decline to make an award for them.

349 Under this head the plaintiff claims for increased costs associated with holiday travel and accommodation in Australia and overseas in the sum of $54,837.14. This figure principally relates to the cost of a travelling companion, business as opposed to economy airfares, modified accommodation and vehicles.

350 Almost all of these costs relate to the plaintiff's needs caused by his land mine injuries or arthroplasty complications. However when travelling, as I accept he will continue to do, he will need some extra facilities because of his vestibular problems. I will therefore allow a global award of $10,000 under this head.

351 The plaintiff's hearing and vestibular problems are detailed earlier in this judgment. The plaintiff claims that his injuries have affected his ability to participate in social activities. For example the compensable injuries have exacerbated his existing difficulties in socialising outdoors where the ground is uneven. They have also made it difficult for him to go out at night and to socialise in dark or noisy places. I also accept that the injuries have affected his ability to engage in domestic activities such as cooking, gardening and entertaining. Until December 2000 he was unable to drive and now it is more difficult for him to do so.

352 A person's sense of hearing and balance are fundamental senses. Lack or impairment thereof, particularly in a case of existing disability in the lower limbs, is I accept a substantial disability.

353 In addition I heard evidence from Dr Burvill concerning the plaintiff's psychiatric and psychological state. Dr Burvill saw the plaintiff in June 2001 and diagnosed a Chronic Adjustment Disorder with depressive and anxiety symptoms. At that time he had had about 20 counselling sessions in relation to his change of circumstances since 1998. Despite this Dr Burvill found him low in spirits. He was very guarded about the plaintiff's prognosis and believed that he needed to take an antidepressant. He saw the plaintiff again in July 2002 and found that he still had the same diagnosis. Whilst he believed that the plaintiff had a great tendency to bottle up his emotions with much denial he still displayed them in terms of his frustration, irritability, angry outbursts, general depression, lack of enthusiasm, insomnia and loss of libido. After having seen and heard the plaintiff and his wife I accept this opinion.

354 I do not accept that the compensable injuries are the cause of the plaintiff's psychiatric and psychological problems. However I do accept that those injuries have exacerbated his problems in this regard. Unfortunately his experience with antibiotics has increased his reluctance to take antidepressant medication. Consequently the plaintiff has not received the benefit of antidepressant medication.

355 Since 1998 the relationship between the plaintiff and his wife and daughter has deteriorated. Again, whilst the antibiotic related injuries have not been the sole cause of these problems I accept that they have contributed to them.

356 In all of these circumstances an award of $40,000 is appropriate.