Wei Fan v South Eastern Sydney Local Health District

Catchwords

Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420[2009] HCA 48 Astley v Austrust Ltd (1999) 197 CLR 1[1999] HCA 6 Dell v Dalton (1991) 14 MVR 158(1991) 23 NSWLR 528 Dobler v Halverson [2007] NSWCA 335(2007) 70 NSWLR 151 Government Insurance Office (NSW) v Rosniak [1992] Aust Torts Reports 81-178(1992) 27 NSWLR 665 Hirst v Sydney South West Area Health Service [2011] NSWSC 664 Hunter Area Health Service v Marchlewski [2000] NSWCA 294(2000) 51 NSWLR 268 King v Western Sydney Local Health Network [2013] NSWCA 162 Lee Transport Co v Watson [1940] HCA 27(1940) 64 CLR 1 Matthews v Dean (1990) 11 MVR 455[1990] Aust Torts Reports 81-037 New South Wales v Doherty [2011] NSWCA 225 Pamment v Pawelski [1949] HCA 43(1949) 79 CLR 406 Paul v Cooke (2013) 85 NSWLR 167[2013] NSWCA 311 Pollard v Baulderstone Hornibrook Engineering Pty Ltd (2008) 172 IR 453[2008] NSWCA 99 Richardson v Schultz (1980) 25 SASR 1 Rogers v Whitaker (1992) 109 ALR 625(1992) 175 CLR 479 Sharman v Evans [1977] HCA 8(1977) 138 CLR 562 Southgate v Waterford [1990] Aust Torts Reports 81-065

Judgment (85 paragraphs)

[1]

TABLE OF CONTENTS Tutor A brief overview of the plaintiff's claim The medical experts Credibility in the plaintiff's camp The plaintiff Ms Wang's credibility David Fan's credibility Duty and standard of care The facts (A) St George hospital from 20 to 23 January 2007 Diabetes Initial diagnosis of cholangitis (not cholecystitis) Removal of gallbladder? (B) Prince of Wales hospital from 23 to 31 January 2007 Evidence of Professor Stephen Riordan Evidence of Dr Gregory Keogh The ERCP Discharge - 31 January 2007 (C) Gastroenterology Outpatient clinic of Prince of Wales hospital on 8 February 2007 (D) Surgical review on 15 February 2007 (E) Prince of Wales hospital pre-admission clinic on 21 February 2007 Was the plaintiff 44 kilograms? Weight loss - SIADH? (F) Cancellation of surgery scheduled for 28 February 2007 Appointment with Dr Chu (G) Admission to Sutherland hospital on 8 March 2007 Did the plaintiff discharge himself against medical advice? Fall after discharge from Sutherland hospital The cause of the plaintiff's fall (H) Transfer and admission to St George hospital from 9 March 2007 to 16 March 2007 The plaintiff's weight at St George hospital The fall from the hospital bed - 11 March 2007 Cholecystectomy - 15 March 2007 Discharge on 16 March 2007 (I) Further admission to Sutherland hospital on 28 April 2007 The plaintiff's further alleged falls Diagnosis of type 2 diabetes and neuropathy Breach of duty of care (1) Failure to investigate, diagnose and manage type 2 diabetes mellitus? (2)(a) Failure to diagnose and treat cholecystitis (2)(b) The delay in performing a cholecystectomy and decision to first perform an ERCP (3) Fall from hospital bed on 11 March 2007 (4) Discharge from St George hospital on 16 March 2007 (5) Information and advice The law on causation Diabetes Diagnosis of cholecystitis Delay in cholecystectomy Information about procedures and costs Fall from hospital bed on 11 March 2007 Discharge from St George hospital on 16 March 2007 Contributory negligence, failure to mitigate and volenti non fit injuria Damages General principles Statistical information Overview of my approach to calculating damages The plaintiff's psychiatric condition and care Interrelationship between the plaintiff and Ms Wang Non economic loss The plaintiff's life pre and post accident Past and future economic loss Future economic loss Out of pocket expenses Future medication expenses Future training and professional services Past and future care Handyman expenses Landscaping and architectural needs and hydrotherapy pool Additional future home maintenance and running costs Additional travel costs Special equipment costs Assistive technology Provision of suitable motor vehicle Exercise (membership of club or gymnasium with membership for his carer) Future medical interpreter fees Childcare past and future Court and legal expenses Wei Fan's hospital debts and Medibank Private statement of benefits paid Conclusion Judgment

[2]

Judgment

HER HONOUR: The plaintiff seeks damages in the sum of approximately $86,000,000 for alleged medical negligence.
The plaintiff is Wei Fan. The defendant is South Eastern Sydney Local Health District. The plaintiff's wife is Yue Wang ("Ms Wang"). During the hearing, Ms Wang sat at the bar table with Qing Zhang Fan (known as and referred to as David Fan in this judgment). David Fan is the son of the plaintiff and Ms Wang. David Fan is in his final year of Law School and acted as an advocate for his father. It was a difficult position for him to be placed in. The hearing of these proceedings was not without its difficulties.
The plaintiff was legally represented up until May 2013. His solicitors drafted the further amended statement of claim and medical reports, instructed medical legal experts and obtained experts' reports on damages.
The plaintiff speaks Mandarin. He is not fluent in the English language, nor is Ms Wang. When the proceedings came on for hearing, the plaintiff did not have an interpreter. No statements of witnesses had been prepared nor served.
This Court arranged and paid for an interpreter for the plaintiff while the evidence was being given. Time was allowed for David Fan to prepare statements. The Court provided David Fan with a copy of each day's transcript. The plaintiff tendered three folders of hospital records but they were not in any particular order. Documents from different hospitals were interspersed with each other, mixed with pleadings and what I think can best be described as written commentary.
The hearing took place over nine days commencing 16 March 2015 and concluding on 28 May 2015. Some months after this Court reserved its judgment, the plaintiff, without leave of this Court and without explanation, forwarded a folder of documents relating to out of pocket expenses, and later, again without leave of this Court and without explanation, forwarded a new occupational therapy assessment report of Anna Everett, of ARW, dated 12 August 2015. In relation to the admissibility of these documents, after the receipt of written submissions by both parties in relation to each, I decided to allow the tender of the out of pocket expenses folder. However, I disallowed the tender of Ms Everett's occupational therapy assessment report. Reasons for these decisions are given under the headings "out of pocket expenses" and "the plaintiff's psychiatric condition and care" respectively.

[3]

Tutor

At the outset of the hearing, there was an issue as to whether the plaintiff still had a tutor acting on his behalf. On 16 March 2015, David Fan repeatedly referred to Ms Wang as "the tutor". This Court sought to clarify whether or not the plaintiff had a tutor. David Fan informed this Court that Ms Wang had been the plaintiff's tutor, but that order had been revoked the week before this hearing.
On 19 March 2015, this Court again raised the issue of a tutor with David Fan, having not been able to locate an order revoking the need for the plaintiff to have a tutor act on his behalf. Counsel for the defendant had also tried and failed to locate the order by looking through transcripts from recent directions hearings. It became apparent that no such revocation order was ever made.
David Fan agreed. I then noted that during these proceedings, the plaintiff had been under no legal disability and a tutor had not been required. As this Court had been earlier told by David Fan that the order for the tutor had been revoked and the proceedings had been conducted on that basis, the order was backdated to 16 March 2015, the first day of the hearing.
As the proceedings continued, I carefully observed the plaintiff while he gave evidence, was cross examined and sat in the back of the court. I have read the transcript of his evidence a number of times. I formed and have continued to hold the view that the plaintiff understood what was being said in court (with the assistance of the interpreter).

[4]

A brief overview of the plaintiffs claim

Between 20 January and 16 March 2007, the plaintiff attended three hospitals, Sutherland Hospital ("Sutherland hospital"), Prince of Wales Hospital ("Prince of Wales hospital") and St George Hospital ("St George hospital").
On 4 April 2012, the plaintiff filed a further amended statement of claim ("FASC") which had been prepared by his former solicitors. The plaintiff separated his claim into two causes of action, headed "Claim in tort of negligence" and "Claim for breach of contract". However, liability based on negligence is determined by the application of Part 1A of the Civil Liability Act 2002 (NSW), which "elides the traditional categorisation of causes of action and instead imposes uniform rules and principles wherever there is a claim for harm resulting from a failure to exercise reasonable care and skill": see Leeming JA in Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 at [41]. Section 5A explains the application of Part 1A, and reads: "5A Application of Part (1) This Part applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise."
The reasoning of Leeming JA in Paul v Cooke makes it clear that "negligence" is not a reference to the tort, "but to a category of conduct, which may be an element of a cause of action in tort, in contract, under statute or otherwise": at [40]. At [41] Leeming JA commented that: "Part 1A of the Act applies uniformly to a class of claims for damage, irrespective of how the cause of action has been formulated, so long as the damage results from a failure to exercise reasonable care and skill." Hence, the plaintiff's two separate causes of action do not need to be distinguished from one another in these reasons. At paragraph [60] of the FASC, the plaintiff alleges that there have been fifteen separate breaches of the duty of care owed to him. While the pleading is not entirely clear, doing the best I can, they can be summarised as follows: Failing to investigate, diagnose and manage type 2 diabetes mellitus ("type 2 diabetes"), with no follow up after initial tests were undertaken in January 2007; Failing to properly diagnose and manage the plaintiff's gallbladder condition, by: Failing to diagnose the condition as cholecystitis and treat it accordingly; and Delaying a cholecystectomy (at various points in time up until 15 March 2007, when a cholecystectomy was performed) and not performing an ERCP first on 30 January 2007; Wrongly allowing the plaintiff to fall from his hospital bed on 11 March 2007; Wrongly discharging the plaintiff from St George hospital on 16 March 2007 when he was not fit to be discharged; and Failing to give the plaintiff information about treatments and the costs involved (considering his Medicare status). The plaintiff alleges that as a result of those breaches of duty, he suffered the following damage and loss:

[5]

The medical experts

Professor Ross Smith, Dr Christopher Vickers and Associate Professor Neil Collier provided individual medical reports, wrote a joint report dated 17 December 2014 (Ex A, Tab F) and gave helpful concurrent evidence at Court on 23 March 2015. Professor Smith was retained by the plaintiff and both Dr Vickers and Associate Professor Collier were retained by the defendant. The medical experts were asked for their opinions on various medical issues. Where they agree on issues I shall refer to them jointly as "the medical experts". Where they do not agree I shall refer to them by name.
Professor Smith is a consulting hepato-pancreatico-biliary and upper gastrointestinal surgeon at the Royal North Shore hospital, St Leonards. His report is dated 8 December 2014. Dr Vickers is a gastroenterologist and
etiologist at St Vincent's hospital, Sydney. His report is dated 17 October 2014. Associate Professor Collier is a hepato-pancreatico-biliary and upper gastrointestinal surgeon at the Royal Melbourne hospital and Airport Health Care, Melbourne. His report is dated 16 September 2014. They are all experts on the hepatobiliary system. However, not being a surgeon, Dr Vickers declined to answer some questions about hepatobiliary surgery.
Professor Smith and Dr Vickers also offered opinions about diabetes despite not being endocrinologists. Dr Vickers provided opinions on diabetes as a specialist consultant physician as he frequently admits patients to hospital for gastrointestinal conditions, with diabetes as a common accompaniment. Dr Collier declined to answer questions about diabetes as it is out of his expertise.
In their individual medical reports, some of Professor Smith's opinions differed from those of Dr Vickers and Associate Professor Collier. In their joint report, the opinions of Professor Smith to a lesser extent differed from those of Dr Vickers and Associate Professor Collier on some issues. However, in cross examination it became apparent that some of Professor Smith's opinions were based on information that had been provided during a conference with the plaintiff and his family. Consequently, when the medical experts gave concurrent evidence in Court, Professor Smith, having been shown the actual hospital records, abandoned some of his earlier opinions and agreed with Drs Vickers and Collier.

[6]

Credibility in the plaintiff's camp

It is convenient that I now also record my observations concerning the credibility of the plaintiff and his witnesses, Ms Wang and David Fan, as it is relevant to my findings on both liability and damages. They all provided statements and were cross examined (the plaintiff's statement is dated 17 March 2015 (Ex E), Ms Wang's statement is dated 18 March 2015 (Ex G) and David Fan's statement is 17 March (Ex F)).

[7]

The plaintiff

The plaintiff made no submissions in relation to his credibility other than a request that this Court "decide upon the facts, and justice according to law". Counsel for the defendant submitted that the plaintiff's evidence is frequently contrary to contemporaneous medical records and where there is a conflict, the objective hospital records ought be favoured over the plaintiff's recollection.
While it is not ideal that disputed evidence is dealt with here out of chronological order, it explains why I have reservations accepting the plaintiff's evidence in relation to various admissions to hospital. I shall refer to a number of examples where the plaintiff gave evidence that is at odds with the medical records. They are:

On 31 January 2007, when the plaintiff was discharged from Prince of Wales hospital, he denied being provided with any advice in relation to the need to see a surgeon (T72.8-29). However, the clinical notes indicate that he was advised of the need to talk to the surgical team (Ex 7, p 78).
On 15 February 2007, the plaintiff denied telling Dr Keogh (a surgeon at the Prince of Wales hospital) that he had not had any further pain (T77.15-25; T77.40-42). In contrast, Dr Keogh recorded that the plaintiff told him that he had no further pain (Ex A, Tab O p 77).
The plaintiff admitted that he did not actually recollect how he felt on 15 February 2007 at the Prince of Wales hospital surgery review clinic (T78.44-46) but could not explain why he put a definitive statement as to how he felt into his statement dated 17 March 2007 (Ex E [6]).
On 9 March 2007, the plaintiff discharged himself from Sutherland hospital against medical advice. He signed the "Discharge From Hospital Against Medical Advice" form. The clinical notes record that there was a medical registrar who spoke Mandarin (Ex 4, 50-57). This is in contrast with the evidence given by the plaintiff where he denied the presence of an interpreter and says that he was told "sign this then you can go" (T82.17-49; T90.33-50). The plaintiff denied being advised that he ought not leave Sutherland hospital on 9 March 2007 and maintained that he was told that he could go. The hospital records are detailed and are supported by the statements of the staff involved in caring for the plaintiff. Dr Aziez (being the doctor who provided the treatment to the plaintiff and gave him the drip) denied telling the plaintiff that he could go home (Ex 17). Associate Professor Warrier (who at that time was a surgical registrar at Sutherland hospital) denied that he told the plaintiff he could go home (Ex 16). Ms Fuchs, (a registered nurse) confirmed her role in relation to the discharge of the plaintiff (Ex 15). The plaintiff did not challenge the evidence of Dr Aziez, Associate Professor Warrier or Ms Fuchs. The plaintiff was aware that an interpreter had been booked for that morning but maintained his view in evidence that he was told that he could go home (T 82.35).

[8]

Ms Wang's credibility

As far as Ms Wang's credibility is concerned, again the plaintiff made no submissions other than a request that this Court "decide upon the facts, and justice according to law".
Counsel for the defendant submitted that the evidence of Ms Wang was of limited assistance to these proceedings and should not be taken as a truthful recount of events. Counsel for the defendant also drew this Court's attention to numerous occasions where Ms Wang's evidence was riddled with inconsistency. When giving evidence and in cross examination, the defendant submitted that Ms Wang was combative and uncooperative in answering questions.
I carefully observed Ms Wang throughout the hearing and in particular when she gave evidence and was cross examined. Overall, my conclusion is that Ms Wang was less than a satisfactory witness. She gave evidence with the assistance of a Mandarin interpreter but her evidence was evasive. She temporised. She gave unresponsive answers to questions. She took notes. The interpreter, at times, expressed difficulty in translating her evidence. After a while, this Court requested Ms Wang to stop taking notes as it thought this was an explanation as to why she was giving unresponsive answers to questions as her note writing may have distracted her from properly formulating her answers. After this Court's request to desist with the note taking, she continued to do so until this Court had to make a further request for her to stop.
On a number of occasions, this Court directed Ms Wang to focus on answering the question and not to volunteer evidence. It was explained to her that if she did not do so, this Court may reluctantly have to reach the conclusion that she was endeavouring to bolster her husband's case. She chose not to heed this instruction.
As previously stated, throughout the hearing, Ms Wang sat at the bar table. She spoke to David Fan. From time to time, she insistently drew David Fan's attention to documents. Throughout this litigation and during this hearing Ms Wang took what can only be described as a very active role. An example of her behaviour prior to the hearing concerned an expert, Ms Joanne Oates, an occupational therapist. Ms Oates interviewed the plaintiff on 10 September 2014 (T277.26-27). Ms Wang was present during this appointment. I shall briefly refer to what occurred. Ms Oates gave evidence that she found it a "difficult interview process in terms of the questioning and the response process" (T262.45-50, T278.28-29). The plaintiff was hindered from providing direct answers to Ms Oates' questions because Ms Wang was "dominating that process" (T278.35). Ms Oates added, "Or, if he sometimes would respond to things, I found that that would then be negated or altered in response from his wife" (T278.35-36). When Ms Wang was questioned in Court about her role in the plaintiff's interview with Ms Oates, she refused to concede that she had been involved in a discussion during that interview, where the plaintiff said he could be left alone (T281.34, T282.2). This illustrates Ms Wang's approach to the pre-litigation process and the litigation process.

[9]

David Fan's credibility

David Fan also sought to present his father's case at its highest. The plaintiff made no submissions in relation to the credibility of David Fan. David Fan acted as interpreter for his parents during attendances at hospitals and medical appointments. His oral and written English is good. But regrettably I have reservations about the veracity of his evidence.
As I have said, David Fan has been placed in a difficult position. He prepared the statements for the plaintiff, his mother and himself. One of the most hotly disputed topics in the trial was the weight of the plaintiff on 27 February 2007. The plaintiff, Ms Wang and David Fan all say that the plaintiff weighed 44 kilograms on that day. I do not accept the plaintiff's or his witnesses evidence on this issue and that includes the evidence of David Fan. It is not necessary for me to reach a conclusion as to whether David Fan's evidence on this topic is deliberately false or a reconstruction, but it is definitely not a mistake.

[10]

Duty and standard of care

Before I set out the plaintiff's submissions in chronological order, it is necessary to briefly set out the legal principles regarding the duty and standard of care for medical professionals, as throughout the chronology I will make assessments about whether or not the relevant medical professionals met the requisite standard of care. Later in this judgment, I will set out the legal principles relevant to my analysis of breach of duty, causation and damages.
It is not in dispute that the defendant, through its employees, owed the plaintiff as a patient, a duty to exercise reasonable care and skill in the provision of professional advice and treatment: Rogers v Whitaker (1992) 109 ALR 625; (1992) 175 CLR 479 at 483. That duty is a "single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment" and extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case: Rogers v Whitaker at 483.
The duty of a medical professional to provide information was most recently discussed in Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at [8]: "8. … A component of th[e] single comprehensive duty is ordinarily to warn the patient of 'material risks' of physical injury inherent in a proposed treatment. A risk of physical injury inherent in a proposed treatment is material if it is a risk to which a reasonable person in the position of the patient would be likely to attach significance, or if it is a risk to which the medical practitioner knows or ought reasonably to know the particular patient would be likely to attach significance in choosing whether or not to undergo a proposed treatment."
The standard of care owed by a medical practitioner will depend on their relevant skill and it is necessary to give content to the duty in the given case. To ascertain the precise content of the duty in a particular case it is necessary to determine what, in the circumstances, constitutes reasonable care and what constitutes ordinary skill in the relevant area of medical practice: Gaudron J in Rogers v Whitaker at 492. In Rogers v Whitaker, Mason CJ stated at 487: "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."

[11]

The facts

The plaintiff was born in March 1962 in China. He came to Australia in July 2000. In January 2007, the plaintiff was 44 years old. When the plaintiff attended court he ambulated with the use of a walking frame. Outside Court he wears rugby style headgear. He has a hearing aid in his left ear. The plaintiff's submission was that his weight before 20 January 2007 was approximately 70 to 75 kilograms and that when he lived in China his weight had always been 70 to 75 kilos for all his health checks. (T69.29-30). In other words, the plaintiff says that he had consistently weighed between 70 and 75 kilograms.
It is common ground that the plaintiff attended the defendant's hospitals or clinics on the following occasions: 1. From 20 January 2007 to 23 January 2007 - St George hospital; 2. From 23 January 2007 to 31 January 2007 - Prince of Wales hospital; 3. On 8 February 2007 - the Prince of Wales hospital gastroenterology outpatient clinic; 4. On 15 February 2007 - Dr Keogh's Prince of Wales hospital clinic; 5. On 21 February 2007 - the Prince of Wales pre admission clinic; 6. [NOTE: On 22 February 2007 - the cholecystectomy was cancelled]; 7. On 8 March 2007 and 9 March 2007 - Sutherland hospital; 8. From 9 March 2007 to 16 March 2007 - St George hospital; 9. During April 2007 - Sutherland hospital; and 10. From 25 May 2007 to 15 June 2007 - the rehabilitation ward of St George hospital.

[12]

(A) St George hospital from 20 to 23 January 2007

On 20 January 2007 at about 7.00 pm, the plaintiff attended the accident and emergency department at St George hospital seeking medical attention. He was accompanied by David Fan.

[13]

Diabetes

Prior to being admitted, Ms Amy Ashcroft, a registered nurse, reviewed the plaintiff. The hospital records indicate that the plaintiff presented with symptoms of abdominal pain, jaundice and vomiting. A glucometer recording was taken showing the plaintiff's blood glucose level was raised at 10.8mml/L. A urine glucose recording was also taken showing that the plaintiff had glucose in his urine of 250mg/dl.
Dr Laura Cotiga, a resident medical officer, and Dr Melvin Muralidharan, a surgical registrar, reviewed the plaintiff. The plaintiff was admitted to St George hospital under the care of Dr Frances Chu. Dr Chu is a consultant hepatobiliary surgeon at St George and Sutherland hospitals. Dr Chu provided a witness statement (Ex 8) but was not required for cross examination. The plaintiff was not diagnosed with type 2 diabetes when reviewed by Drs Cotiga and Muralidharan, nor was he diagnosed with diabetes during his admission to St George hospital under the care of Dr Chu.
Diabetes is a complex disorder of carbohydrate, fat and protein metabolism that is primarily a result of a deficiency or absence of insulin secretion by the beta cells of the pancreas or resistance to insulin. Patients with type 2 diabetes are usually not insulin dependent but may be insulin requiring, are commonly obese, are generally older than 40 years and often have a genetic predisposition to develop the disease. Type 2 diabetes usually begins insidiously (Mosby's p 513-514).
Professor Smith and Dr Vickers were asked what the glucometer reading of 10.8mml/L and the multisticks 10 sg test result of 250mg/dg indicated, either alone, or in combination. Professor Smith and Dr Vickers agreed in their joint report that the results showed elevated blood sugar, but not necessarily diabetes. They also agreed that the results did not necessitate treatment as and of themselves (joint report Ex A, Tab F, p 2). Dr Vickers in his report stated that the normal course of action would be to monitor the blood sugar and HbA1c during an admission. Where a hospital admission was brief, Dr Vickers said that the patient would normally be told of his elevated sugar level and that it ought to be checked again when he is well. Dr Vickers added that a single elevated blood sugar reading of 10.8mml/L does not necessarily indicate diabetes. Professor Smith in his report stated that it would have been important for the staff to make a comment on the elevation of blood and urine glucose and to monitor it over a period of time. The experts were not cross examined on this issue.

[14]

Initial diagnosis of cholangitis (not cholecystitis)

The plaintiff's evidence is that through his son, he informed hospital staff that he wished to have his gall bladder removed by way of a cholecystectomy [surgical removal of the gallbladder, often due to cholecystitis] and that hospital staff refused this request.
On 22 January 2007 at 12.30 pm an ultrasound was undertaken. Dr Chu reported, "Mr Fan's presenting problem was obstructive jaundice." Dr Chu referred to the ultrasound report. It showed multiple stones in the gallbladder with no evidence of cholecystitis. The report concluded, "Cholelithiasis with no ultrasound evidence of cholecystitis nor of biliary dilation". The plaintiff's common bile duct had multiple stones (Ex 3, p 325). Cholelithiasis is "the presence of gallstones in the gallbladder" (Mosby's p 350). Hence, the results of the ultrasound indicated that there were stones in the plaintiff's gallbladder but no evidence of acute cholecystitis.
The plaintiff was diagnosed with cholelithiasis and cholangitis. However, he was not diagnosed with acute cholecystitis. All three of these conditions occur within the biliary system.
The biliary system involves the gallbladder and bile ducts, which transport bile These are often called the biliary tract. The cystic duct is the duct through which bile from the gallbladder passes into the common bile duct. Gallstones, also known as biliary calculi, are stones formed in the biliary tract consisting of cholesterol or bile pigments and calcium salts. I have reproduced a diagram of the biliary system which shows common sites of biliary calculi (see Mosby's pp 204 and 471):
Acute cholecystitis and cholangitis are complications of cholelithiasis. Cholangitis is "inflammation of the bile ducts caused either by bacterial invasion or by obstruction of the ducts". Acute cholecystitis is "acute… inflammation of the gallbladder". Cholecystitis can be acute or chronic (Mosby's pp 350 and 351).
While cholangitis and acute cholecystitis both involve biliary inflammation, they are very different conditions (see evidence of Dr Collier at T188.28). It is important to keep in mind the differences between the conditions of cholangitis and acute cholecystitis. Acute cholecystitis is usually caused by a gallstone that cannot pass through the cystic duct. Cholangitis is caused either by bacterial invasion or by obstruction of the bile ducts by calculi or a tumour (Mosby's p 350). Acute cholecystitis and cholangitis tend to be separate conditions as it depends on whether the inflammation is in the gallbladder or the bile duct. Dr Keogh said that it is very unusual to get acute cholecystitis combined with cholangitis (T173.35).

[15]

Removal of gallbladder?

The plaintiff wanted to have a cholecystectomy at St George hospital. A cholecystectomy is the surgical removal of the gallbladder. As mentioned above, the plaintiff was diagnosed with cholangitis and cholelithiasis. In patients with severe attacks of biliary pain associated with cholelithiasis, cholecystectomy is recommended to prevent such complications as cholecystitis, cholangitis and pancreatitis. However, surgery may be delayed while acute inflammation is treated.
Initial treatment for acute inflammation from cholangitis, before a cholecystectomy, can occur via antibiotics or by an Endoscopic Retrograde Cholangio-Pancreaticography ("ERCP") to drain the bile duct. An ERCP is an endoscopic test that provides radiographic visualisation of the bile duct through a flexible fibreoptic duodenoscope placed in the common bile duct. It involves inserting the endoscope into a natural opening in the body such as the mouth or anus for viewing (although incisions may be made for specific areas) (Mosby's p 602). An ERCP can be used to remove stones from the bile duct before a cholecystectomy rather than removing the stones from the bile duct at the same time as the cholecystectomy (see evidence of Associate Professor Collier at T181.10). If an ERCP is successful, a cholecystectomy can then be performed to prevent further episodes of cholangitis.
After the ultrasound, the hospital staff, in particular Dr Chu, decided to perform an ERCP as an initial treatment rather than to undertake a cholecystectomy. The plaintiff's evidence is that the hospital staff proposed: "an operation but they [staff at the hospital] did an ultrasound on my stomach and a chest X-ray and they told me there was a stone in my chest area. They told me that the surgeon suggested to remove the stone by some explosives. The plaintiff explained what he meant by "explosives" for treatment as: "It was a doctor or a nurse, I'm not sure on the identities, I was told there is this stone in my chest. They will put in a tablet to explode the stone into pieces. The outcome is after two year GP check ups in Princes of Wales hospital he was told there was no stone in my chest." (T71.32.36).
The plaintiff says that he was told there was a "1% risk of death, that's all" and that the staff did not refer to the word, "ERCP" (T70.28-34). The plaintiff also gave evidence that he knew what an ERCP was, but did not think that the doctors were referring to an ERCP in that conversation. The plaintiff's account conflicts with the clinical notes that record "Discussed: Dr Chu who strongly advises ERCP. Discussed: patient who is now happy to have ERCP tomorrow … Consent completed with son but interpreter will be needed to confirm it tomorrow."

[16]

(B) Prince of Wales hospital from 23 - 31 January 2007

At about 6.00 am on 23 January 2007, the plaintiff arrived at Prince of Wales hospital (T71) where he was admitted under the care of firstly, Professor Stephen Riordan and later, Dr Gregory Keogh. Professor Riordan is a staff specialist physician gastroenterologist/hepatologist at the Prince of Wales hospital and has worked there since 1999. He provided two statements dated 8 April 2013 and 12 March 2015. Dr Keogh is a senior staff specialist upper gastrointestinal surgeon at the Prince of Wales hospital and has worked there since 1995. He provided two statements dated 16 February 2015 and 12 March 2015. Both doctors gave evidence and were cross examined.

[17]

Evidence of Professor Stephen Riordan

On 23 January 2007, the plaintiff presented to the emergency department of Prince of Wales hospital with obstructive jaundice and cholangitis. Professor Riordan described those conditions as: "Jaundice is a build of bilirubin in the blood due to a number of different ideologies. Obstructive jaundice applies to when there's some pathology of the bile duct interrupting bile flow, so obstructive jaundice is that. And Cholangitis is a very important complication of that in which there becomes infection of the bile and hence infection of the bile ducts and a systemic inflammatory illness consequently". (T134.30).
Professor Riordan telephoned St George hospital to obtain the results of the plaintiff's earlier ultrasound report. He gave evidence that the report was significant because it showed that although there were stones in the gallbladder, the clinical diagnosis was a problem with the bile duct. His evidence was: "This is a very important report because the issue in patients that have gall stones in the gallbladder is whether the symptoms and the signs are due to inflammation of the gallbladder itself from the gall stones, or whether those stones in the gallbladder are for the moment incidental and the pathology lies elsewhere. So what is looked for in an ultrasound, and this is done routinely, is to look for signs of cholecystitis. Our clinical diagnosis, as I mentioned, was not a problem with the gallbladder itself, sure there were stones in the gallbladder, but our clinical diagnosis was a problem with the bile duct so gallbladder, cystic duct coming off that and joining the bile duct and the bile duct drains into the bowel and the clinical diagnosis based on the history, the degree of jaundice and the pain, in particular, and the inflammatory element, raised white cell count, low ..(not transcribable).. level in blood the clinical diagnosis was bile duct pathology, Cholangitis, rather than acute cholecystitis and the cause for the bile duct problem was assumed but not proven by this report to most likely be a stone, a small stone that had come out of the gallbladder and passed into the bile duct and got stuck before passing through" (T134.41).
Professor Riordan, as a gastroenterologist and hepatologist, diagnosed cholangitis not cholecystitis. In my view, there was nothing inappropriate about this diagnosis and it was in accordance with competent professional medical practice.

[18]

Evidence of Dr Gregory Keogh

The plaintiff was referred to Dr Keogh, who reviews patients in both the adult outpatients department and within the professional suite of Prince of Wales hospital.
On 24 January 2007, the plaintiff was initially reviewed by Dr Keogh's Registrar, Dr Gandy. Dr Gandy made the preliminary diagnosis that the plaintiff had biliary sepsis and required an ERCP. The clinical notes record that Dr Gandy indicated that it would not have been "advantageous" to perform a cholecystectomy while the plaintiff had biliary sepsis and that a cholecystectomy could be performed at a later date. The plan was for Dr Keogh to review the plaintiff the following day and provide an opinion as to whether he required a cholecystectomy. It was noted that the plaintiff's liver function tests were normalising but his temperature was still high. Dr Keogh was aware that the plaintiff had undergone an ERCP earlier that day but this had been abandoned because his oxygen saturation levels had dropped to 78 % on room air.
On 25 January 2007, the plaintiff was reviewed by Dr Keogh. Dr Keogh's clinical diagnosis was cholangitis. In cross examination, Dr Keogh confirmed that the plaintiff did not have acute cholecystitis, and that this was based on clinical presentation and ultrasound findings (T162.6). Dr Keogh said that "the investigations, the presentation and the subsequent course of the illness were all consistent with an infection in the bile called cholangitis and were not consistent with cholecystitis which is inflammation of the gallbladder". Like the medical staff at St George hospital, Dr Keogh reviewed the ultrasound report and in combination with the plaintiff's clinical presentation, made a decision that the condition from which he suffered was cholangitis, not cholecystitis. This decision was appropriate and in accordance with competent professional medical practice.
Dr Keogh explained in evidence, that an ERCP is the intervention of choice to manage bile duct infection [cholangitis] as it drains the infected bile and usually removes the underlying gallstone cause. If ERCP is not possible, Dr Keogh said that radiological intervention to drain the bile is required, and if this is not possible, surgical intervention to explore the bile duct is then considered.
Dr Keogh's view was that in a patient such as the plaintiff, the decision to perform an initial ERCP was the most expedient and the safest. This is because to try and do an operation for cholangitis can be quite difficult. Sometimes if endoscopy and percutaneous approaches have failed, surgery is the only option. That may require laparoscopy, bile duct exploration and possibly open surgery. Dr Keogh gave evidence that In a man who is unwell systemically with infection, it is better to wait for the infection to resolve and aim to do the operation when they are better (T163.19-26).

[19]

The ERCP

After an unsuccessful attempt at an ERCP on 30 January 2007, the plaintiff underwent a successful ERCP performed by Dr Kurtovic, a staff specialist gastroenterologist. Dr Keogh does not perform ERCPs as they are not classified as a surgical procedure and can be performed by gastroenterologists. At Prince of Wales hospital, ERCPs are performed by the gastroenterology service. In other hospitals, ERCPs are performed by both gastroenterologists and surgeons, and in some hospitals, ERCPs are only performed by surgeons.
The ERCP showed no residual bile duct stones. The inspection of the plaintiff's ampulla endoscopically suggested that there had been recent passage of a stone. The bile was draining freely. Clinically, the plaintiff was improving. His liver function tests were improving. His fever settled fairly quickly.
On 31 January 2007, Dr Keogh recommended that the plaintiff have a laparoscopic cholecystectomy as an outpatient.

[20]

Discharge - 31 January 2007

On 31 January 2007, the clinical notes record that there was a discussion between the family and Dr S Jamani, a gastroenterologist. The clinical notes also recorded that the plaintiff's family wanted him to be discharged because he was paying overseas rates. The clinical notes (Ex 7, p 78) record: "1030 pt feeling improved c/o mild pain o/n result of ERCP explained obs stable afeb. (P) will d/w surg team re: cholecystectomy ? take over care … 1215 - d/w family - want to D/C pt today as are paying for overseas rates - advised family of need to talk to surgical team before discharge - family not willing to wait as state pt is feeling well - unable to contact upper GI reg as in theatre, - acute surgical reg in theatre. - d/w gastro reg - refer pt to outpt clinic for arrangement of time for lap chole. - letter faxed to outpt clinic - will contact pt with date/time of appt."
In contrast with these contemporaneous written notes, both Ms Wang and the plaintiff deny that a conversation took place between them and Dr Jamani. Ms Wang said that she, her eldest child (David Fan) and her youngest child went to the hospital together but she did not speak to a doctor because her English was poor. Ms Wang does not know if David Fan spoke to Dr Jamani. While David Fan was not cross examined on this topic, he was the only member of the family present at the hospital who could have interpreted for the plaintiff and Ms Wang and spoken to Dr Jamani.
Ms Wang denied that she is the family member who said that the plaintiff is paying overseas rates. In cross examination, Ms Wang said that the plaintiff was entitled to Medicare because he was married to her. Ms Wang's evidence was that they married on 26 January 2007 (T254.31) (this would have occurred when the plaintiff was an inpatient in hospital).
Despite a marriage taking place between Ms Wang and the plaintiff on 26 January 2007, I find it unlikely that his visa would have been processed in only a few days. As set out earlier in this judgment, I do not accept Ms Wang's evidence, that on 31 January 2007 the plaintiff was entitled to Medicare, as being correct.
The plaintiff gave evidence that when he was discharged from Prince of Wales hospital he was still suffering from persistent stomach pain. He says that he was told that after the ERCP there was "no stone in my chest" and that he could go home (T72.23-24).

[21]

On 8 February 2007, the plaintiff attended the gastroenterology outpatient clinic at Prince of Wales hospital conducted by Professor Riordan. The plaintiff was reviewed by Dr Kim, a surgical registrar. There was no interpreter present. The plaintiff gave evidence that Dr Riordan "only showed his face for a second from a room at the very end of the outpatient clinic" and that he did not exchange any words with Professor Riordan (T73.22; T74). The plaintiff also gave evidence that he told Dr Kim that he had reduced appetite and that he had constant pain in his abdomen, and that the abdominal pain was more severe than before but of a different type. The plaintiff says he did not have severe constant pain, fevers, raised temperature or sweating. The plaintiff also gave evidence that he did not mention unsteadiness or difficulty walking because at that time he did not have such difficulties. However, the plaintiff then stated that over the next few days, he felt "lightness" while he was walking. He described the feeling as"like walking on a cloud". He says he did not tell the doctor about it but that is how he felt. He says that walking was not difficult at that time because he could control himself.
On 8 February 2007, neither Dr Kim or Professor Riordan diagnosed the plaintiff with cholecystitis. Professor Riordan referred the plaintiff to the surgical outpatient clinic conducted by Dr Keogh on 15 February 2007.
The medical experts were asked what degree of urgency there was to perform the cholecystectomy that was recommended on 8 February 2007. Associate Professor Collier in the joint report said that the procedure was not urgent as the plaintiff "did not have acute cholecystitis" and there was a benefit to delay because jaundice, after stones are removed or passed from the bile duct, can take several weeks to resolve. It was better, he concluded, to let the jaundice resolve completely before embarking upon surgery. Dr Vickers, in the joint report (Q4, p 7), did not wish to comment, as it was a surgical matter. Professor Smith's comment, in the joint report, is that the surgery was due to be undertaken within 30 days from the outpatient appointment.
As at 8 February 2007, the expert medical opinion was that the plaintiff did not have cholecystitis and that the operation was not urgent. Hence, it was appropriate and in accordance with competent medical professional practice that neither Dr Kim or Professor Riordan diagnosed the plaintiff with cholecystitis, and for the cholecystectomy to be delayed.

[22]

(D) Surgical review on 15 February 2007

On 15 February 2007, the plaintiff attended the Prince of Wales surgical outpatient clinic and was reviewed by Dr Keogh. David Fan accompanied the plaintiff.
It is not disputed that on 15 February 2007, a conversation took place between the plaintiff and Dr Keogh. However, there is a dispute as to whether the plaintiff told Dr Keogh that he was experiencing severe pain. Dr Keogh performed liver function tests on the plaintiff. The plaintiff gave evidence that Dr Keogh did not examine him physically and that he told Dr Keogh that he had severe pain. It is Dr Keogh's evidence that the plaintiff informed him that he had no further pain and he recorded it in his clinical notes.
During cross examination, Dr Keogh gave evidence that when he saw the plaintiff on 15 February 2007, he formed an opinion that the plaintiff did not have acute cholecystitis (T165.35).
The plaintiff's evidence is that by this stage, he had developed difficulty walking, his legs were weak and when he walked he had to hold onto some support. He says this problem was constant. The plaintiff admitted that he did not tell Dr Keogh about this unsteadiness nor about his difficulties when walking. So far as the plaintiff's weight was concerned, Dr Keogh said that there was no obvious malnutrition and no obvious recent weight loss because if there had been significant weight loss, it would have been noted. I accept that based upon Dr Keogh's usual practice, he would normally make a note of weight loss and malnutrition.
The plaintiff agreed that he and Dr Keogh (with David Fan acting as interpreter) discussed the plan for a laparoscopic cholecystectomy. Despite the fact that this was the same operation that the plaintiff had requested be performed on 22 January 2007 at St George hospital, he says that on 15 February 2007, he expressed the view that he was "strongly opposed" to having the operation. As there was no independent interpreter present, Dr Keogh did not obtain the plaintiff's written consent for the operation to be performed. Instead, he directed the plaintiff to attend the preadmission clinic on a later date in order to ensure that he properly consented to having the procedure performed. Dr Keogh completed the "Recommendation for Admission Form" and wrote to Professor Riordan to advising him of the plan for the plaintiff to be placed on a waiting list to have a laparoscopic cholecystectomy. Dr Keogh's letter to Professor Riordan is dated 15 August 2007 (it should read 15 February 2007).

[23]

(E) Prince of Wales hospital pre-admission clinic on 21 February 2007

On 21 February 2007, the plaintiff attended the Prince of Wales hospital preadmissions clinic for a pre-operative appointment in anticipation of his surgery, which was then scheduled for 28 February 2007. He was accompanied by David Fan. Ms Wang was not present.

[24]

Was the plaintiff 44 kilograms?

A critical fact in issue at this hearing, which has to be determined, is whether the plaintiff's weight was 44 kilograms when he attended this pre-operative appointment. It appears that the plaintiff's actual weight had not been recorded in his earlier admissions to both St George and Prince of Wales hospitals. The only reference to weight appears in the clinical notes dated 20 January 2007 where it is recorded, "no weight loss" (Ex 6, p 482). The first time that the plaintiff's weight is recorded in the hospital notes is on 13 March 2007 where it was 61 kilograms. On 14, 15 and 16 March 2007, it was also recorded in the hospital notes as approximately 61 kilograms.
On 10 May 2007, the plaintiff's weight fell to approximately 55 kilograms. On 11 May 2007, it had increased to 60.8 kilograms. On 30 April 2007, the plaintiff's weight was next recorded as 60 kilograms. Weight is usually accurate to within half a kilogram, provided the same scales are used (T186.33). [A chart of the plaintiff's recorded weight appears later in this judgment].
The plaintiff's version of events that occurred on 21 February 2007 is contained in his statement at [8]. It is as follows: "8. I and my son attended Pre-Admissions Clinic (Peri-Operative Unit) at POW Hospital. Upon arrival at the Peri-Operative Unit: a. My son has went to the service desk enquired in regards to my appointment. b. The (sic) we have been directed to follow a line straight down the hall way, into a room for assessment. c. In that room, there was a female staff member, waiting for us, and then I and my son was welcomed into the room by the staff member, and then we all sat down. d. The female staff held a form, and started asking questions to me, then my son translated for me and I responded with answers, which my son then translated into English. In the process, the female staff member wrote down the answers on a piece of form. e. After completion of the form, I and my son was asked to go to another room. f. In this room, there was another female staff member. This female staff has taken some of my blood. g. Then I stepped up to the scale it was 44 kilos. Then I called the female staff member, and then she came and saw the scale, she stated: '44 kilos'. h. Then I saw she wrote the weight 44 kilos on to the form."
David Fan's version of events mirrored the plaintiff's version of what occurred at the clinic. At [8] he says: "8. I and my father carried a letter from POWH dated 19 February 2007, which confirmed his surgery was booked for 28 February 2007. This letter requested his attendance at the pre-operative unit. 9. I and my father attended Pre-Admissions Clinic (Peri-Operative Unit) at POW Hospital. Upon arrival at the Peri-Operative Unit. a. I went to the service desk enquired in regards to his appointment. b. Then me and my father have been directed to follow a line straight down the hall way, into a room for assessment. c. In that room, there was a female staff member, waiting for us, and then me and my father was welcomed into the room by the staff member, and then we all sat down. d. The female staff held a form, and started asking questions. I have translated those for my father, and he responded with answers, than I translated them into English, and responded to the female staff member. i. In the process, the female staff member wrote down the answers on a piece of form. ii. After completion of the form, me and my father was asked to go to another room. e. In this room, there was another female staff member. This female staff has taken some of my father's blood. f. Then my father stepped up to the scale it was 44 kilos. Then my father called the female staff member, and then she came and saw the scale, she stated: '44 kilos'. g. Then I saw her wrote the weight 44 kilos on to the form. h. After this pre-operative unit, me and my father left the unit, and went to a cashier. i. I and my father have paid $500.00 for the surgery on that day, which is due to be performed on 28 February 2007, by Dr Keogh. ii. I remembered the cashier wrote us a receipt, and she stated 'Dr Keogh is a very good doctor …'."

[25]

Weight loss - SIADH?

An explanation for the plaintiff's alleged rapid weight gain following his alleged rapid weight loss was postulated by David Fan. David Fan suggested to the medical experts that the plaintiff was suffering from Syndrome of Inappropriate Antidiuretic Hormone Secretion ("SIADH") which was caused by his brain injury. SIADH is an abnormal condition characterised by the excessive release of antidiuretic hormone ("ADH") that alters the body's fluid and electrolytic balances. It results in various malfunctions. Common signs and symptoms of SIADH are weight gain despite anorexia, vomiting, nausea, muscle weakness and irritability (Mosby's p 1667).
David Fan drew the medical experts attention to clinical notes dated 13 March 2007 from St George hospital (Ex B, Vol 2, p 265) that record "?SIADH - 2 degree to Head injury". David Fan suggested that this syndrome had caused the plaintiff to put the weight back on and bring the plaintiff's weight back to 61 kilograms by 13 March 2007. Dr Vickers explained it this way (T184.5-10): "To a degree anti diuretic hormone is a natural hormone secreted by the pituitary gland in the brain, that's one of the body's protective ways of retaining water in cases of dehydration, but an inappropriate response is an abnormal response and that will be brought on by various drugs and head injuries. And what happens then the body retains water inappropriately and dilutes all chemistry of the body on blood tests."
Professor Smith answered that the effect of SIADH would make the plaintiff heavier not lighter so "I don't know what you are getting at, sorry …" (T186.22).
Associate Professor Collier said that if the plaintiff had the inappropriate ADH secretion he would have retained some fluid which may have increased his weight. However, he stated that the weight increase alleged by the plaintiff was unlikely. The reason for that, he said, was that most people with an appropriate ADH will experience a 5% weight gain. The 10% weight gain alleged by the plaintiff was, in Associate Professor Collier's opinion, not compatible with life (T186.41-50).
Dr Vickers opinion on the SIADH issue was similar to that of Professor Smith and Associate Professor Collier (T187.1). Dr Vickers opined that: "… the treatment of inappropriate ADH is fluid restriction, so if his weight between 13 and 16 March is fairly stable it means that he was receiving proper medical treatment by having fluid restriction. Now, 1 lite of water is equal to 1 kilogram of weight, and if he had gained a little bit of weight from this injury between 9 March to 13 March, it would have only been minimal, perhaps three or 4 kilograms. On the 9 March he was an unknown weight; on 13 March he's 61 kilograms. Now, the most he could probably drink in a day is 2 kilograms or 2 litres of fluid, so the most he could have gained would be two or 3 kilograms per day, because 1 litre of water is equal to 1 kilogram. Nobody could possibly drink 5 or 6 kilograms of water per day or 5 or 6 litres of water per day." (T187.15).

[26]

(F) Cancellation of surgery scheduled for 28 February 2007

On 22 February 2007, Dr Keogh received a call from Mr Gavin Meredith (the waiting list manager) who asked whether the plaintiff's cholecystectomy could be postponed in light of the plaintiff's outstanding debt to the hospital (on the basis that he was ineligible for Medicare).
Dr Keogh considered that it was safe to put off surgery for a period. Hence, the plaintiff's clinical priority was changed from 30 to 90 days. However, even though the form for surgery stated 90 days, Dr Keogh says that there was no intention to postpone the surgery for a period approaching 90 days, and that the plan was to perform surgery within a period of more than 30 but less than 40 days. Dr Keogh's evidence was that there was no clinical urgency to perform a cholecystectomy at that time as the underlying problem had been managed successfully. As there were no gallbladder symptoms that required prompt surgery, the cholecystectomy would be performed within an appropriate time frame and this was deemed appropriate treatment (Ex 2, p 49).
During cross examination, Dr Keogh gave evidence that after he had seen the plaintiff's blood tests from 21 February, he was still of the opinion that the plaintiff did not have acute cholecystitis (T165.43).
On 22 February 2007, the plaintiff was advised that his operation, scheduled for 27 February 2007, had been cancelled.
In my view, it was appropriate and in accordance with competent professional medical practice for the cholecystectomy scheduled for 27 February 2007 to be cancelled by Dr Keogh on 22 February on the basis it was to be performed in the near future.
On 26 February 2007, the plaintiff says that he fell while he was walking from the kitchen to the living room of his family home. He says he did not hit his head. He did not seek medical attention.

[27]

Appointment with Dr Chu

On 27 February 2007, the plaintiff attended Dr Chu's private rooms in Miranda. The plaintiff says that he was still suffering from abdominal pain, jaundiced and vomiting. However, in cross examination, the plaintiff said that when he saw Dr Chu the jaundice had gone. The plaintiff's evidence is that Dr Chu examined him physically and touched his abdomen, which was tender. The plaintiff says he reported to Dr Chu that he had a fall on 26 February 2007.
Dr Chu's evidence (Ex 8 [4]) is as follows: "4. On 27 February 2007 I consulted Mr Fan in my private rooms upon referral from his GP regarding elective laparoscopic cholecystectomy. Mr Fan was no longer jaundiced and his abdomen was soft and non tender. He expressed concern about his lack of a Medicare card and that there was a waiting period of two months under his private health insurance. I provided him a Request for Admission Form for Sutherland Hospital to have an elective laparoscopic cholecystectomy. As his abdomen was soft and non tender he did not warrant an emergency operation. I wrote a letter to Mr Fan's GP dated 27 February 2007."
I prefer and accept the evidence of Dr Chu that on 27 February 2007, the plaintiff was no longer jaundiced and his abdomen was soft and non tender. Dr Chu does not mention the plaintiff informing him of a fall on 26 February 2007.
The medical experts were asked whether, on 27 February 2007, having regard to the plaintiff's condition at that time, there was a degree of urgency to perform the cholecystectomy scheduled 27 February 2007 but cancelled on the 22 February 2007. In the joint report, Associate Professor Collier's view was that it was not urgent as there was no acute cholecystitis and the procedure could be done electively. Dr Vickers said it was purely a surgical matter but that the plaintiff needed to get better with nutrition and antibiotics prior to surgery. Professor Smith held the view that since there were signs of sepsis with a raised white cell count and a decreased albumin and fever, and a question of tenderness and whether or not the plaintiff had an inflamed gallbladder; that consequently, there was more urgency to perform surgery than those treating the plaintiff appreciated. Professor Smith added that the plaintiff did not need to be taken straight to theatre, but that he required treatment in the form of antibiotics and monitoring and to be kept in hospital so that the procedure could be done on the next routine operating list.

[28]

(G) Admission to Sutherland hospital on 8 March 2007

On 8 March 2007, at approximately 11.00 pm, the plaintiff was admitted to Sutherland hospital. He was accompanied by Ms Wang. David Fan was not present. The plaintiff complained of abdominal pain, jaundice, vomiting and persistent reduced appetite.
Ms Wang (statement [14]) says that after the plaintiff saw the doctor in the emergency department, he gave his admission letter for his cholecystectomy, scheduled for 30 March 2007 at Sutherland hospital, to the doctor. As Ms Wang and the plaintiff do not speak English, the doctor found a member of hospital staff who did speak Mandarin. At that time, Ms Wang said she spoke to the doctor and informed him that "since February, Wei Fan's eating capacity has been progressively reduced." Ms Wang also said "Patient feels hunger all the times; after dinner tonight, he had vomited a few times; it's progressively worse one after another. Last vomit, is consist of coloured liquid." Ms Wang says that the female person said "she will interpret it and inform the doctor who is looking after Wei Fan."
At approximately 3.30 am on 9 March 2007, Ms Wang says that the plaintiff was on the bed with the IV drip next to him. He was still vomiting sometimes. In addition, Ms Wang saw that the liquid consisted of a small amount of blood. Ms Wang took the bag with the vomit and gave it to the nurse. The plaintiff was seen by a doctor and given an IV injection. The emergency nursing assessment records from 3.30 am (Ex 4, Vol 3, p 52) indicate that when that injection was given, the medical registrar who spoke Mandarin was present. The clinical notes record: "0330 Pt placed in bed by RMO. Pt speaks NO English. Med reg speaks pt's language - nil known allergies, decrease oral intake and vomiting.? Bloated feeling in central abdomen. Bowels not opened for 2 days. Nil anagesea taken today. Denies urinary symptoms. Hx of Gallstones. Given 10mg IVI maxalon, N/saline, 1L commenced STAT. Pt transferred to MID. Await further instructions."
Dr Syed Aziez, a registrar; Associate Professor Sanjay Warrier (who is now a surgeon, but who at the time was a surgical registrar); and Shannon Fuchs, an emergency department registered nurse, were involved in the plaintiff's care at Sutherland hospital during this admission. They all provided statements (Exs 17, 16 and 15 respectively) but were not required for cross examination.

[29]

Did the plaintiff discharge himself against medical advice?

On the morning of 9 March 2007, the emergency nursing assessment records record: "0730 Pt alert. Pt denies pain when asked. Awaiting surg R/N. 0810 Pt wishing to D/C self. Med reg interpreting for pt to surg Reg. Pt not wishing to pay for admission, attempting to contact Area Health interpreter service, have now been on hold 25mins, pt has signed form to D/C self against medical advice as explained to him by med Reg, pt keep holding this form up to staff, pt is now changed into own clothes. 0845 Interpreter booked 0930 with surg reg. Pt not interested in staying and seems to understand the meeting has been arranged. 0855 IVC out as pt stated he would go home with it in. 0905 Pt left hospital after phoning wife."
Ms Fuchs wrote the above progress notes. She deposed that she did not have any actual recollection of the plaintiff attending Sutherland hospital on 9 March 2007. She relied on the progress notes in preparing her statement. She observed that those notes were particularly detailed. She said that it is not her usual practice to record notes in such detail unless she is concerned about a particular issue. Her view is that in a situation such as this, where a patient was emphatic about discharging against medical advice, she would record detailed notes to make it clear that appropriate medical advice was offered and that the patient was assuming full responsibility for their own health.
As referred to in the progress notes, shortly after 8.00 am on 9 March 2007, there was a discussion between the plaintiff and Associate Professor Warrier (Associate Professor Warrier was the "surg Reg" referred to in the 0810 entry). Dr Aziez was present. At that time, Dr Aziez was aware that the plaintiff had been reviewed by a surgical registrar and that the intention was for him to undergo a cholecystectomy on 12 March 2007. Dr Aziez's recollection was that a member of the hospital staff was interpreting, and that at the same time another member of staff was attempting to get in touch with the interpreter service. Dr Aziez heard Associate Professor Warrier tell the plaintiff that he needed to have an operation. The plaintiff, through the staff member interpreting, said words to the effect, "I am not willing to pay for the admission" and "I have signed the discharge form". Dr Aziez recalled the plaintiff holding the discharge form up and showing it to Associate Professor Warrier. An official interpreter was booked to attend at 9.30am, but the plaintiff said that he was not willing to wait for the interpreter to come. Dr Aziez said that throughout the course of the discussion between Associate Professor Warrier and the plaintiff, the plaintiff was able to repeat back the information he had been told, indicating that he understood it.

[30]

Fall after discharge from Sutherland hospital

On 9 March 2007, after the plaintiff had discharged himself against medical advice from Sutherland hospital, he took a taxi home. Apparently, when he was exiting the taxi he fell outside his home. All that is known about this fall is where the plaintiff (statement [16]) states "I have been discharged from SH 9th March 2007; I have a fall outside my home when exiting the taxi." No witness, such as a neighbour, was called to give evidence and no other statements were produced that would have shed light as to what the circumstances of the plaintiff's fall were. It is not known whether the plaintiff tripped, fainted, experienced muscle weakness or whether there is any other explanation for the fall. What is clear is that, as a result of that fall, he suffered a base of the skull fracture which is a significant injury. He was taken back to Sutherland hospital by ambulance. When Ms Wang saw the plaintiff at 10.00 am on 9 March 2007, he was already in the ambulance. In cross examination, she expanded on this and said "The time on the March the 9th the year 2007 when I was downstairs and my neighbour said - called me and I saw on the floor lots of blood on the floor and Wei Fan was already - he was already in the ambulance. And then I went together with the ambulance to Sutherland Hospital" (T241.36). The plaintiff arrived back at Sutherland hospital at 10.24 am on 9 March 2007
On 9 March 2007, Dr Sean Gomes, a resident medical officer at the emergency department of Sutherland hospital, reported (Ex B, Vol 2 p 236): "Unfortunately he [the plaintiff] decided to discharge himself against medical advice this morning and had a fall sustaining a confined BOS #. [base of skull fracture] On presentation he had bleeding from his left ear canal but that has since settled. He has been alert and responsive while in the department with no objective neurological findings. …"

[31]

The cause of the plaintiff's fall

The plaintiff's submission was that this fall was caused by a peripheral neuropathy secondary to undiagnosed type 2 diabetes. A peripheral neuropathy is an impairment of the peripheral nervous system as a result of disease (Mosby's p 1323).
The defendant submitted firstly, that there is no coherent evidence available to link the plaintiff's discharge from hospital to the fall, other than the mere fact of chronology; and secondly, that Professor Smith does no more than suggest that there was a possibility that the plaintiff's physical condition at the time caused the fall.
The medical experts were asked about the possible causes of this fall, and other subsequent falls (detailed later in this judgment). Professor Smith, in his report, was of the opinion that the plaintiff's significant weight loss was causative of the falls. In his report, Dr Vickers indicated that a medical neurology registrar on 1 May 2007 (a date later in time) had written that the plaintiff had lower limb stiffness, which could indicate a pre-existing central or spinal cord problem where the muscle tone is one of stiffness. Dr Vickers explained that patients with stroke or spinal damage have stiff limbs. But simple joint disease and muscle spasm could do the same, predisposing the patient to falls. He opined that stiffness is not entirely consistent with a severe diabetic peripheral neuropathy where the limb muscle tone is either normal or flaccid. Dr Vickers expressed the view that it is possible that the plaintiff may have had an unrelated syndrome of postural hypotension, where there can be a significant fall in blood pressure when standing from a sitting or lying position. This often occurs in the older population, particularly if they sit or lie for prolonged periods, resulting in falls or dizzy spells. Dr Vickers noted that the registrar also reported symptoms of worsening postural dizziness. Dr Vickers' conclusion was that the plaintiff probably had a postural hypotension syndrome, unrelated to diabetes, that was made worse after his sickness and surgery.
During the conclave (from T217.8), the medical experts were asked about the cause of the falls. Counsel for the defendant directed the medical experts to a review conducted by Dr Golding. He then asked them to make the assumptions, as set out in the history given to Dr Golding by the plaintiff, namely that the plaintiff had had seven episodes of collapse since February 2007, that his legs did not obey commands, that the episodes lasted hours with no warning, that there was no loss of consciousness and that there were no sensory changes. He also asked the medical experts to assume that in answer to a question (T81) the plaintiff was asked, in relation to the period of time the problem would last for: "But then the next day it would be perfectly better, that's true isn't it?" that the plaintiff answered "Correct". In summary, counsel for the defendant asked them to assume the correctness of the history in the medical records coupled with the fact that the next day the plaintiff would be better. He then asked the medical experts whether those assumptions were indicative of anything that might have been causative of the falls. Dr Vickers opined that since the falls were intermittent episodes lasting hours with normal function of the plaintiff's legs or lower limbs in between, they could not be caused by a myopathy or a neuropathy "because that would add more permanence to the symptoms, and … they wouldn't recover without any defect".

[32]

(H) Transfer and admission to St George hospital from 9 March 2007 to 16 March 2007

On 9 March 2007, the plaintiff was transferred from Sutherland hospital to St George hospital where he remained until 16 March 2007. David Fan was at school when the plaintiff was transferred to St George hospital.
The plaintiff says that after he was admitted, he told the doctors he needed to have the operation for his gallbladder, but that one of the doctors said "let's see how you go with the head treatment first, and then talk about the operation".

[33]

The plaintiff's weight at St George hospital

The plaintiff's evidence is that he was not weighed while at St George hospital in March 2007. The reason he gave for that was that he could not have been weighed was because he was always lying in bed. However, a document headed "Fluid Balance Summary" (Ex B, Tab O at 290) in the clinical notes indicates that the plaintiff was weighed on 13 March 2007, 14 March 2007 and 16 March 2007. As previously stated, the clinical records record that the plaintiff's weight on those days was 61, 61 and 60.44 kilograms respectively. Also, the clinical records of 15 March 2007 indicate that the plaintiff was weighed prior to his operation, and was approximately 61 kilograms.
As previously stated, the plaintiff's evidence is that on 21 February 2007 his weight was 44 kilograms and from then on he could not eat anything; and that is the reason that he was admitted to St George hospital in March 2007. The plaintiff disputed that his weight was 61 kilograms on 13, 14 and 15 March 2007 because it could not have changed from 44 to 61 kilograms if he was not eating at all.
The table below shows that the plaintiff's weight from 13 March 2007 to 16 March 2007 averaged between 60 and 61 kilograms. Date Weight Source Pages 20 January 2007 No weight loss St George hospital - Clinical Notes Ex 6 p 482 12 March 2007 Plan: daily weight St George hospital - Clinical Notes Ex 6 p 445 13 March 2007 61 kg St George hospital - Clinical Notes/Fluid Balance Summary Ex 6 p 442 14 March 2007 61 kg St George hospital - Fluid Balance Summary Ex 6 p 442 15 March 2007 61 kg St George hospital - Clinical Notes/Procedure Checklist Ex 6 p 405,413 16 March 2007 60.44 kg St George hospital - Fluid Balance Summary Ex 6 p 442 30 April 2007 60 kg St George hospital - MRI Referral Ex 4 p 186 1 May 2007 Approximately 55 kg Sutherland hospital - Clinical Notes Ex 4 p 210 3 May 2007 58 kg (estimated) Sutherland hospital - Clinical Notes Ex 4 p 231 4 May 2007 54.5 kg Sutherland hospital - ICU Flow Chart Ex 4 p 365; 367 5 May 2007 54.5 kg Sutherland hospital - ICU Flow Chart Ex 4 p 369; 371 6 May 2007 54.5 kg Sutherland hospital - ICU Flow Chart Ex 4 p 361; 363 7 May 2007 54.5 kg Sutherland hospital - SESIAHS Patient Transport Booking Form/Clinical Notes/ICU Flow Chart Ex 4 p 187; 245; 357 8 May 2007 54.5 kg Sutherland hospital - ICU Flow Chart Ex 4 p 373; 375 9 May 2007 54.5 kg Sutherland hospital - ICU Flow Chart Ex 4 p 381; 383 10 May 2007 54.5 kg Sutherland hospital - ICU Flow Chart Ex 4 p 377; 379 11 May 2007 60.8 kg Sutherland hospital - Clinical Notes Ex 4 p 261 17 August 2007 72.8 kg Sutherland hospital - Clinical Notes Ex 4 p 443 28 December 2007 71 kg Sutherland hospital - Emergency Department Assessment Plan/Emergency Department Observation Chart Ex 4 p 109; 112

[34]

The record of 60.44 kilograms on 16 March 2007 can only have arisen from the plaintiff being weighed. The plaintiff denied he was weighed on that date and said he could not stand yet (T95.15-20). In my view, this is yet another occasion where the plaintiff has created a version of events to support his claim. I do not accept his evidence that he was not weighed at St George hospital between 13 and 16 March 2007. I make findings that on 13, 14 and 16 March 2007, the plaintiff's weight was between 60 and 61 kilograms.

[35]

The fall from the hospital bed - 11 March 2007

On 11 March 2007, the plaintiff, while still an inpatient at St George hospital, had a fall. It is important to appreciate that this fall occurred only two days after the plaintiff had fractured his skull and any further injury to the plaintiff's head could have had serious consequences. I have carefully read through the hospital notes of 9 March 2007 to 11 March 2007 which refer to the plaintiff's admission to Sutherland hospital on 9 March 2007 with a fractured skull, to ascertain whether there was any advice given by the doctors and/or nursing staff as to whether precautions should be taken, as the plaintiff was at risk of falling from his hospital bed. I was unable to find any notes to this effect.
On admission to St George hospital on 9 March 2007, Dr Gomes recorded that the plaintiff was alert and responsive with no objective neurological findings. The clinical notes similarly record that on arrival the plaintiff was "alert and oriented, no distress, grossly normal neuro?" (Ex B, Tab 0, p 262).
The plaintiff gave evidence that when that he tried to reach out for the telephone he fell from his bed. The clinical notes from that day (Ex B, Tab 0, p 262) record: "Pt was found on floor in room. Neither other occupants of room, nor nurses were able to describe mechanism of fall. Pt is NESB and very difficult to communicate with. He is however, alert + oriented - No LOC. … O/E Afebrile; [indecipherable] stable Pt has two old lacerations [indecipherable] crusted over blood Pt has two old lacerations over blood 1) From (L) inner ear 2) Occipital region (L) side. The latter has some very small fresh blood - scab appears to have been picked. … NURSING: Pt. found sitting on the floor near the bed, pt. said he was trying to reach the phone but slipped and landed on his buttocks. Obs stable and within normal limits, all limbs moving. Pt. denies any pain on his body…"
Once again, the clinical notes conflict with the plaintiff's version of events, although it is common ground that the plaintiff did fall from his hospital bed. The plaintiff gave evidence that he did not slip, that he did not reach the phone, but that he ended up falling off the bed and that when he fell, four or five nurses at the door saw him fall and his head bump into the wall. Later in his evidence, the plaintiff conceded that when the fall occurred there were no nurses in the ward because it was sudden, but that other patients in the ward saw the fall. Any injury that occurred as a result of that fall on 11 March 2007 would have occurred if, as the plaintiff said, he "hit my head in the wall". The plaintiff was cross examined about the extent of that injury (T93.30): "Q. You landed on your buttocks and you did not hit your head; that's true, isn't it? A. I hit my head, yes, and also the wound I got from 9 March was bleeding again. Q. That's because you'd picked at the scab, isn't it? A. No."

[36]

Cholecystectomy - 15 March 2007

On 15 March 2007, Dr Mark Davies diagnosed the plaintiff as having, "gallbladder - chronic cholecystitis". As at 15 March 2007, I accept that the plaintiff was diagnosed with chronic cholecystitis for the first time. However, it is important to note that he was not diagnosed with acute cholecystitis.
Dr Vickers and Associate Professor Collier were both of the opinion that as at 15 March 2007, the plaintiff did not have acute cholecystitis. I agree with their opinion.
On that same day, the plaintiff underwent a cholecystectomy. The cholecystectomy was performed by Dr Chu.
Later that day, Dr Chu sent a letter to Dr M Lau of Hurstville Medical Centre, providing an operation summary of the cholecystectomy and the findings from it. That letter relevantly reads: "FINDINGS/PROCEDURE: Acute cholecystitis".
The medical experts were asked to comment on Dr Chu's finding of acute cholecystitis in the operation summary. Professor Smith said that "when you look at the gallbladder at the scope you can see whether it looks inflamed or not and my presumption is that if Dr Chu was a good biliary surgeon, made an assessment that there was acute cholecystitis and… tissues around it would have been swollen" (T201.24). He added that "it's amazing how the findings you see at operation don't always match the findings that are before, and pathology reports are not always absolute". (T201.32-34).
Associate Professor Collier's opinion was that in Dr Chu's assessment of the surgery, Dr Chu does not say why he thought the plaintiff's condition was acute cholecystitis and so "we don't quite know what that means". He explained that: "If a patient's got an abscess in the gallbladder and it's distend and there's puss in it then you say well that's obviously acute cholecystitis; there's no evidence that that was the case… Acute cholecystitis is a range of things from very mild to severe, so we don't really know what the surgical description really means, and I would [take] more notice of the final histological diagnosis that he ‑ it seems from the histology that the lining of the gallbladder, the mucosa, was intact and there were no stones seen so that suggests the stones have been passing and it all passed. But normally with cholecystitis you would find, or acute cholecystitis, you would find laceration of the lining of the gallbladder, or some evidence of acute infection and there was none of that. So I think on ‑ and the diagnosis on histology of chronic cholecystitis, if you remove someone's gallbladder and send it to the histologist if they've got stones in the gallbladder the report nearly always says chronic cholecystitis. That means there are some inflammatory, chronic inflammatory changes which is concomitant with the presence of gallstones. You never get ‑ I don't think I've ever seen a report come back in a patient with gallstones saying normal gallbladder. … So the chronic cholecystitis again can be a range of things from very minor chronic inflammatory changes to dramatic thickening and scarring and changes and we don't quite know from these two documents which of those we're dealing with. But my ‑ putting this together I think this is more consistent with the presence of stones causing some chronic inflammatory changes in the gallbladder rather than acute cholecystitis." (T201.43).

[37]

Discharge on 16 March 2007

Despite the plaintiff's evidence that "I was not weighed in hospital in March. I could not stand." He was discharged that day and able to walk out of hospital.
The medical experts were asked, in their joint report, whether it was in accordance with competent medical professional practice to discharge the plaintiff from St George hospital on 16 March 2007, the day after surgery. Associate Professor Collier said the discharge was standard practice and that there was nothing to keep the plaintiff in hospital, from the surgical prospective. Professor Smith agreed with Associate Professor Collier. Dr Vickers did not comment as it was a surgical matter. The medical experts were not cross examined on the issue.
In his report, Professor Smith said that at the time of discharge on 16 March 2007, the plaintiff had undergone a cholecystectomy, been reviewed by a social worker, a neurosurgeon and by an endocrinologist, and it was considered that there was no reason why the plaintiff should not be discharged at that stage. He appeared to be fit, alert and stable. In summary, the medical experts agreed that the plaintiff's discharge was in accordance with competent medical professional practice.
I accept the medical experts' opinions that on 16 March 2007, the plaintiff was fit to be discharged from St George hospital and that this was in accordance with competent medical professional practice.

[38]

(I) Further admission to Sutherland hospital on 28 April 2007

Between 16 March 2007 and 24 April 2007, the plaintiff alleges he had another three falls in his home. On 25 April 2007, he alleges that he fell on the kitchen floor.
On 28 April 2007, the plaintiff was re-admitted to Sutherland hospital. The plaintiff says he was weighed twice. After he was first weighed, he says the dietician told him that he was too weak, so added cheese between his morning tea and afternoon tea. The plaintiff says that the second time he was weighed his weight had increased to about 50 or 51 kilograms. The hospital records show that on 30 April 2007, the plaintiff's weight was 60 kilograms. On 1 May 2007, his weight is recorded at approximately 55 kilograms. The plaintiff's recollection of his weight on 28 April 2007 and 1 May 2007 is inaccurate.
On 29 April 2007, the plaintiff says that he told a doctor that he had had seven episodes of collapse since February 2007 and that his legs did not obey commands. He says it would last for hours, but that the next day it would be better.
As outlined earlier in this judgment, as at 1 May 2007, according to the expert medical opinion, the plaintiff did not have diabetic peripheral neuropathy. Hence, that was not the cause of his falls between 16 March and 25 April.

[39]

The plaintiff's further alleged falls

Between 24 August 2007 and 30 September 2010, the plaintiff alleges that he had a series of falls. They are outlined in his statement as follows:

On 24 August 2007 the plaintiff fell at home and hit his head against the wall. He was later taken to Sutherland hospital.
On 26 February 2008, he fell at home. On 3 November 2008, he had another fall at home.
On 14 January 2009, he fell in his bedroom. On 31 March 2009, he fell at home.
On 9 January 2010, he fell while walking at home. On about 21 January 2010, the plaintiff fell on the street near Jannali train station. On 1 July 2010, he fell at home. On 30 September 2010, he had a fall at Sutherland hospital.

These falls were not included in the plaintiff's FASC. No submissions were made about these falls and there was no evidence that any treatment of the plaintiff was inappropriate in relation to the falls. No medical records were provided after 4 January 2008, when the plaintiff had an assessment at Sutherland hospital. Hence, there is no connection between these falls and the defendant's treatment of the plaintiff.

[40]

Diagnosis of type 2 diabetes and neuropathy

On 15 May 2008 the plaintiff underwent motor nerve conduction tests. Those tests showed abnormalities, which Dr Peter Brimage, neurologist at Miranda Neurology, noted were "consistent with a significant generalized sensori-motor peripheral neuropathy" (see the report of Dr Brimage dated 15 May 2008, Ex A, p 62). On 16 May 2008, Professor Michael Anthony, neurologist wrote to Dr Nasreen Sultana (Ex A, p 63) indicating that "the EMG/Nerve Conduction Study demonstrates a moderately-severe widespread sensorimotor peripheral neuropathy". Professor Anthony recommended that the plaintiff have a glucose tolerance test due to the "extreme thinness of the muscles of his arms and calves".
On 20 May 2008, the plaintiff had a glucose tolerance test at Sutherland hospital which was diagnostic of type 2 diabetes. That test showed a fasting glucose of 20.8mm/L and a two hour value of 32.8mm/L (see the report of Dr Carter, Ex A, p 177). Professor Anthony was of the view that the peripheral neuropathy diagnosed on 15 May 2008 was secondary to the plaintiff's type 2 diabetes (see Ex 3 pp 469-488).
In his report, Dr Carter agreed with the view that the peripheral neuropathy diagnosed on 15 May 2008 was secondary to type 2 diabetes. However his conclusion was that "the development of peripheral neuropathy in 2008 is unlikely to have been avoided".

[41]

Breach of duty of care

Section 5B of the Civil Liability Act sets out the necessary, but not sufficient, pre-requisites for civil liability to arise. Although headed 'duty of care' it is directed toward questions of breach of duty: see Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; [2009] HCA 48 at [13]. S 5B reads: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm."
The inquiry is directed toward a consideration of what a reasonable person would have done, looking forward from a point of time before the injury, rather than retrospectively at what could have been done to avoid the injury: see Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 at [126]-[129].
It has always been the common law on foreseeability that it cannot be judged with the benefit of hindsight. Section 5B of the Civil Liability Act requires the same approach: see Adeels Palace at [31].
As outlined at the beginning of this judgment, the plaintiff alleges that the defendant breached the duty of cared it owed him by: 1. Failing to investigate, diagnose and manage type 2 diabetes mellitus (type 2 diabetes was diagnosed on 20 May 2008); 2. Failing to properly diagnose and manage the plaintiff's gallbladder condition, by: 1. Failing to diagnose the condition as cholecystitis and treat it accordingly; 2. Delaying a cholecystectomy until 15 March 2007, and performing an ERCP first on 30 January 2007; 1. Wrongly allowing the plaintiff to fall from his hospital bed on 11 March 2007; 2. Wrongly discharging the plaintiff from St George hospital on 16 March 2007 when he was not fit to be discharged; and 3. Failing to give the plaintiff information about treatments and the costs involved (considering his Medicare status).

[42]

(1) Failure to investigate, diagnose and manage type 2 diabetes mellitus?

At FASC [12] the plaintiff pleads that "at all material times Mr Fan had type 2 diabetes which the defendant's servants or agents, including Dr Cotiga and Dr Muraliharab, did not diagnose" and that the defendant was negligent in not doing so.
It is not in dispute that the plaintiff had developed type 2 diabetes by 20 May 2008, when it was first diagnosed. The question for this court is whether the defendant acted in accordance with competent medical professional practice in its management and monitoring of any potential diabetic condition.
So far as the plaintiff's initial admission to St George hospital is concerned, Professor Smith, Dr Vickers and Dr Carter were of the opinion that the blood and urine glucose test results taken on 20 January 2007, although indicative of elevated blood sugar levels, were not necessarily indicative of diabetes. As previously mentioned, Dr Carter indicated that a diagnosis from blood glucose levels can be made if the reading is above 11mm/L and other symptoms of high glucose levels are present. No such symptoms were present on 20 January 2007. Professor Smith and Drs Vickers and Carter were of the opinion that the normal course of action would be to monitor those blood sugar levels. As indicated earlier in this judgment, in my view the medical staff, Dr Cotiga and Dr Muraliharab, acted in accordance with competent medical professional practice when responding to those test results.
Following the plaintiff's discharge from St George hospital, his blood sugar levels were consistently monitored. On 9 March 2007, while at Sutherland hospital, the plaintiff's blood sugar level was 7.9mm/L, and on 12 March 2007 (still at Sutherland hospital) it was 5.1mm/L. On 28 April 2007, again at Sutherland hospital, his blood sugar level was 6.7mm/L. From 1 May 2007 to 15 May 2007 the plaintiffs blood sugar levels were monitored multiple times and ranged from 4.8mm/L to 9.3mm/L. On 24 August 2007, at Sutherland hospital, the plaintiff's blood sugar level was 9.5mm/L. On 31 December 2007, at St George hospital, the plaintiff's blood sugar was 7.3mm/L. The plaintiff's blood sugar levels did not rise above 11mm/L until mid May 2008, when he was diagnosed with diabetes. In the joint report, Dr Vickers commented that the plaintiff's blood sugar levels were normal until just before his eventual diagnosis.

[43]

(2)(a) Failure to diagnose and treat cholecystitis

The plaintiff submitted that the defendant was negligent in diagnosing and treating him for an alleged condition of cholecystitis. The plaintiff pleaded that specifically, the defendant, failed to diagnose his cholecystitis promptly; wrongly excluded cholecystitis on the basis of an ultrasound performed 22 January 2007; and failed to treat his cholecystitis promptly and properly (FASC [60(b), (c) and (d)]).
As outlined throughout the chronology of events, I am of the view that the defendant, in its diagnosis of cholethiasis, cholangitis and eventually chronic cholecystitis, acted in accordance with competent medical professional practice. The plaintiff alleges that at some point between 22 January 2007 and 15 March 2007, he should have been diagnosed with acute cholecystitis. The initial ultrasound in January 2007 did not show acute cholecystitis and the plaintiff's symptoms supported this conclusion. Following that diagnosis, on repeated occasions up until 15 March 2007, the plaintiff's condition was reviewed and the possibility of acute cholecystitis considered. As discussed throughout this judgment, on 22, 23, 24, 25 and 31 January; 8, 15, 22 and 27 February and 9 March 2007, medical specialists examined the plaintiff and found no evidence of acute cholecystitis.
On 15 March 2007, Dr Davies diagnosed the plaintiff with chronic cholecystitis for the first time. However, the plaintiff was never diagnosed with acute cholecystitis. There is scant mention of acute cholecystitis in the medical records. Dr Chu mentioned acute cholecystitis in his operation summary of 15 March 2007. However, Dr Vickers and Associate Professor Collier were of the opinion that the plaintiff never, at any stage, suffered from acute cholecystitis. Their opinion was that there is insufficient information in Dr Chu's operation summary to make a conclusion that acute cholecystitis was present, and that the operation summary is inconsistent with the histopathology findings after the cholecystectomy.
I agree with and accept the opinions of Dr Vickers and Associate Professor Collier. The plaintiff never suffered from acute cholecystitis. In my view, the conclusions of the doctors on diagnosis at various stages, as recorded above, were appropriate and reasonable and I am satisfied on the balance of probabilities that there was no breach of duty of care in not diagnosing acute cholecystitis. Nor did the doctors or the defendant breach their duty of care by failing to diagnose chronic cholecystitis until 15 March 2007.

[44]

(2)(b) The delay in performing a cholecystectomy and decision to first perform an ERCP

I am also of the opinion that the defendant acted appropriately and in accordance with competent medical professional practice when it delayed the cholecystectomy. Although I have found that the plaintiff did not have acute cholecystitis, and therefore did not need an urgent operation, it was common ground between the medical experts that a cholecystectomy was still required to be performed at some stage to treat the plaintiff's ongoing gallbladder complications. On the 22, 23, 24, 25 and 31 January 2007; 8, 15, 22 and 27 February 2007, the plaintiff was reviewed and the urgency for a cholecystectomy considered. As outlined earlier in this judgment, in my view, and adopting the opinions of the medical experts, there was nothing inappropriate about the defendant's decision to perform an ERCP first, nor the medical specialist's decisions to delay the cholecystectomy. Those decisions were in accordance with competent medical professional practice.
On 9 March 2007, the plaintiff was scheduled to have a cholecystectomy on 12 March 2007. However, on 9 March 2007 he discharged himself against medical advice, and on his return home, fell and suffered a skull fracture. Due to this injury, the cholecystectomy was unable to be performed until he was well enough, on 15 March 2007. This delay was also in accordance with competent medical professional practice. Overall, I am satisfied on the balance of probabilities that all of the decisions to delay the cholecystectomy were consistent with competent medical professional practice. There is no breach of duty here.

[45]

(3) Fall from hospital bed on 11 March 2007

The plaintiff pleaded that the defendant was negligent in "wrongly allowing him to fall from his hospital bed on 11 March 2007" (FASC 60). So far as the fall from the hospital bed on 11 March 2007 is concerned, as outlined in the chronology of events, I accept there is no evidence that the hospital acted contrary to competent medical professional practice. I am satisfied on the balance of probabilities that there was no breach of duty here.

[46]

(4) Discharge from St George hospital on 16 March 2007

The plaintiff pleaded that the defendant was negligent in wrongly discharging him from St George hospital on 16 March 2007, when he was not fit to be discharged (FASC 60).
Similarly, there is no evidence indicating that there was anything inappropriate about the plaintiff's discharge from St George hospital on 16 March 2007. As mentioned earlier in this judgment, the medical experts unanimously agreed that that decision to discharge the plaintiff was in accordance with competent medical professional practice. I accept and adopt their opinions on these issues. I am satisfied on the balance of probabilities that the defendant did not breach its duty of care to the plaintiff when he was discharged the day after the cholecystectomy was performed.

[47]

(5) Information and advice

The plaintiff also alleged that the defendant failed to provide him with information and advice concerning the options for diagnosis and treatment, and the time and costs involved in the various options; failed to provide him with the cheapest form of treatment for his cholecystitis, namely, removal of his gallbladder rather than requiring him to have an first; and failed to take into account when planning the management of the plaintiff the fact that he was not insured, was categorised as a private patient and would be required to pay the cost of hospital admissions, medications, investigations and specialists.
As outlined above, I am satisfied on the balance of probabilities that the duty or duties owed by the defendant to the plaintiff did not extend to having to give him his demanded "one step" treatment or having to consider his costs, being a person ineligible for Medicare. So far as a duty to provide the plaintiff with information about procedures is concerned, from the evidence outlined above it appears that at all times appropriate information was given. Effort was made to obtain the services of interpreters, and caution was taken where hospital staff suspected that the plaintiff did not understand or fully consent. There are several examples of this, an important one being Dr Keogh's decision on 15 February 2007 to refer the plaintiff to the Prince of Wales hospital preadmission clinic on a later date in order to ensure he properly consented to having a cholecystectomy performed. Dr Keogh was of the view that if the plaintiff urgently required a cholecystectomy, it would have been performed regardless of his Medicare status.
Overall, I am satisfied on the balance of probabilities that the defendant did not breach its duty of care to the plaintiff in its treatment of him by the medical specialists and hospital staff at Sutherland, Prince of Wales and St George hospitals in any of his hospital admissions or preadmission clinics. In the event if am wrong and that the defendant breached its duty of care in failing to promptly diagnose and treat diabetes and cholecystitis, delaying the cholecystectomy, allowing him to fall from his hospital bed on 11 March 2007 discharging him on 16 March 2007 or failing to provide adequate information, I will consider whether any of these alleged breaches of duty of care were causative of the plaintiff's injuries.

[48]

The law on causation

The common law test for causation is no longer relevant. It has been replaced by s 5D of the Civil Liability Act: Adeels Palace at [41] and [44].
Section 5D of the Civil Liability Act provides: "5D General Principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation'), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability'). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b); and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."
Section 5E of the Civil Liability Act deals with the onus of proof: "In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."
In order to succeed the plaintiff must show that it is more probable than not that, but for the breach, "particular harm", would not have been suffered. This involves two elements: "factual causation" and "scope of liability": Adeels Palace at [42]; Wallace v Kam at [12].
Determination of factual causation under s 5D(1)(a) is a statutory restatement of the "but for" test of causation. That determination is "entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E": Wallace v Kam at [14]. To prove that a change in circumstances might have made a difference does not alone prove factual causation: Adeels Palace at [50].

[49]

Diabetes

The question for this Court is whether the plaintiff's diabetes had been monitored, diagnosed and treated sometime during his admission to the defendant's hospitals, would that diabetes have been exacerbated and would he have developed complications, including peripheral neuropathy, myopathy, cataracts and vascular disease, and would the plaintiff had fallen and fractured his skull on 9 March 2007, leading to various other disabilities?
So far as the exacerbation of diabetes and the development of further complications are concerned, it is not in dispute that the plaintiff had developed diabetes by May 2008, and that as a consequence, there was a diagnosis of diabetic peripheral neuropathy. However, the medical experts were of the opinion that treatment of his diabetic condition in early 2007 would not have prevented that development and complications. In his individual report, Dr Vickers said that "Any damage to the nerves must have been slowly evolving over some years and not clinically detectable. It was only in 2008 that years of insidious damage may have culminated in a frank clinical presentation. If his diabetes were known and treated [in early 2007] that would not reverse pre-existing nerve damage". Dr Vickers' view was that the plaintiff "probably had a silent diabetic tendency present over many years in an insidious form. At some stage, he may have had either a tiny brain stem or spinal stroke to account for the limb stiffness. He then later developed fully blown complications of overt diabetes during a period of considerable weight gain. This brought out his diabetes and nerve damage in forme-fruste [a term that is used in medicine sometimes to express the absolute flowering of disease in all its glory] a presentation rarely seen in clinical practice." (T227.2-3).
Dr Carter was asked whether the development of peripheral neuropathy in 2008 could have been avoided. In response, Dr Carter noted that the plaintiff was taking Seroquel tablets at the time diabetes was diagnosed in May 2008, and that there is an increased incidence of diabetes in people who have developed schizophrenia and also in people who are taking anti-psychotic drugs such as Seroquel. His view was that the plaintiff had a genetic predisposition for diabetes and that the development of his mental illness, plus his taking of Seroquel may well have played a significant role in the marked increase in his glucose levels between March 2007 and May 2008.

[50]

Diagnosis of cholecystitis

The plaintiff alleges that but for the failure of the defendant to promptly diagnose and treat his cholecystitis he would not have suffered from "progression of cholecystitis to a severe state". He also alleges that he would not have lost such a large amount of weight between 20 January 2007 and 15 March 2007 (30 to 40 kg), would not have suffered from nutritional deficiencies which made him weak, and consequently would not have had a fall on 9 March 2007, which caused a skull fracture. He also alleges that the failure to diagnose cholecystitis led to diabetes.
So far as the alleged "progression of cholecystitis to a severe state" is concerned, I assume the plaintiff means either chronic or acute cholecystitis. When the plaintiff was diagnosed with chronic cholecystitis on 15 March 2007, he was operated upon on that same day.
So far as the plaintiff's alleged weight loss and consequent fall is concerned, I have made findings earlier in this judgment that the plaintiff did not lose a large amount of weight nor did he suffer from significant nutritional deficiencies. It follows that the plaintiff was not made "weak" and the alleged loss of weight and nutritional deficiencies did not cause him to fall on 9 March 2007, nor did they aggravate that neurological condition.

[51]

Delay in cholecystectomy

Despite the fact that the plaintiff did not have cholecystitis until 15 March 2007, there was no dispute about the fact that he needed treatment for his gallbladder illness, whether by ERCP, cholecystectomy, or both. The plaintiff's submission on this topic was that "due to the delay of surgery caused the plaintiff to suffer weight loss, which eventually caused neuropathy, which led to disabilities". In other words, the plaintiff alleges a complex causation chain which hypothesises weight loss, causing a neuropathy/myopathy, causing falls, causing base of skull fracture and causing ongoing significant disability. The question for this Court is whether it has been established on the evidence that, had the plaintiff been given a cholecystectomy at an earlier time than he did, would he still have lost weight, developed a neuropathy/myopathy and fallen and fractured his skull?
The defendant submitted that it is clear that various links in this chain that form this hypothesis do not exist. The medical experts were carefully asked about the timing of the cholecystectomy, the decision to perform an ERCP first, and the impact of the cancellation of the cholecystectomy. Initially, Professor Smith was of the opinion that an earlier cholecystectomy could have prevented the plaintiff's weakness and falls. In their individual reports, the medical experts were asked whether the cancellation of the scheduled cholecystectomy, and the further delay of the cholecystectomy, was causally related to any of the plaintiff's disabilities. While Associate Professor Collier and Dr Vickers said no, Professor Smith was of the opinion that the most efficient way to have managed the plaintiff would have been for him to undergo a cholecystectomy when he was first admitted to either St George or Prince of Wales hospitals, and that as a result of the delay, he lost weight, became weak and developed complex neurological conditions that resulted in his fall and subsequent skull fracture. Professor Smith continued to say that the cancellation of the cholecystectomy on 28 February 2007, "one month after the initial onset of cholecystitis", was an important factor and contributed greatly to the plaintiff's deterioration after that stage.
However, as discussed earlier in this judgment, this opinion was based upon a version of events given to Professor Smith by the plaintiff. As a consequence, Professor Smith gave those opinions based on an incorrect assumption that the plaintiff had been diagnosed with cholecystitis. After being shown the plaintiff's accurate admission history during the conclave, that showed no diagnosis of cholecystitis, Professor Smith understandably resiled from his earlier opinion. The result of that was that there was a consensus between the medical experts that the delay in treatment made no difference to the plaintiff's condition. In fact, the medical experts were of the opinion that it was a favourable course to delay the treatment, due to the risks involved in operating on a patient with cholangitis too early.

[52]

Information about procedures and costs

While the plaintiff contended that the duty owed by the defendant was to provide to him with a "one stage treatment" (considering his status as a person ineligible for Medicare) I do not agree. If the plaintiff is alleging that the defendant breached its duty of care to provide appropriate information about procedures, none of the medical experts suggested that any information that was given was inappropriate nor deficient. The plaintiff gave no evidence on this issue nor was there any evidence about how this alleged lack of information was causally linked to the damage suffered by him.

[53]

Fall from hospital bed on 11 March 2007

The plaintiff alleges that but for the negligence of the defendant in allowing him to fall out of his hospital bed on 11 March 2007, he would not have suffered "further injury to his skull or brain".
The hospital records from that day (Ex B, p 262) state that an old laceration crusted over with blood had "some very small fresh blood". The hospital notes also record that he fell on his buttocks. Earlier in this judgment, I have referred to the plaintiff's conflicting evidence about this fall.
I am not satisfied that there is a causative link between the fall from the plaintiff's hospital bed on 11 March 2007 and any damage allegedly suffered by him. Even if I am wrong and the hospital and nursing staff should have monitored the plaintiff more closely or taken other precautions, no significant injury was suffered by the plaintiff as a result of the fall.

[54]

Discharge from St George hospital on 16 March 2007

The medical experts unanimously agreed that there was nothing inappropriate about the discharge on 16 March 2007. No other evidence was presented by the plaintiff to the contrary. Hence, I am not satisfied that the discharge is causally linked to any injury or damage suffered by the plaintiff.
The plaintiff has not established on the balance of probabilities that the defendant breached its duty of care to him. Nor has the plaintiff established on the balance of probabilities that if the defendant had breached its duty or duties of care to him it caused the plaintiff to suffer any injury or damage. The plaintiff's case against the defendant in negligence and breach of contract fails. I enter verdict and judgment in favour of the defendant.
However, in case I am wrong, I will briefly outline the submissions and give a brief overview of how I would approach contributory negligence, failure to mitigate, volenti non fit injuria and damages, but I acknowledge that this reasoning is dependent upon the particular findings of breach of duty of care and causation.

[55]

Contributory negligence, failure to mitigate and volenti non fit injuria

Counsel for the defendant submitted that if this Court was to find that there was a breach of duty before 9 March 2007 by delaying the cholecystectomy, and that the plaintiff's damage occurred because he left the hospital on 9 March and suffered a further fall on 11 March 2007, then such loss was caused entirely (100%) by his own contributory negligence as the plaintiff deliberately chose to leave the hospital against medical advice. Contributory negligence consists of a "failure of a plaintiff to take reasonable care for the protection of his or her person or property": see Astley v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6 at [21].
Specifically, the defendant submitted that the plaintiff was negligent by:

Failing on 31 January 2007 to remain at Prince of Wales hospital to have his medical condition managed and/or monitored;
Failing to attend an appointment scheduled with Professor Riordan on 12 February 2007;
Failing on 3 March 2007 to remain at Sutherland hospital to undergo a cholecystectomy and have his medical condition managed and/or monitored;
Failing on 9 March 2007 to remain at Sutherland hospital to obtain treatment and have his medical condition managed and/or monitored.

Alternatively, the defendant submitted that any injury, loss and damage was caused or contributed to by the failure of the plaintiff to mitigate his loss by failing to remain at hospital on 31 January, 3 March and 9 March 2007 and by failing to attend the appointment on 12 February 2007.
Section 5R of the Civil Liability Act deals with the standard of contributory negligence: "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributory negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time."
In Richardson v Schultz (1980) 25 SASR 1 at 20, Williams J distinguished between contributory negligence and failure to mitigate on the basis that: "contributory negligence is concerned with negligence of the plaintiff before the cause of action has matured by the occurrence of some damage; after damage has occurred and an action in tort is vested in the plaintiff, he has a duty to take care to mitigate his loss" (referring to Street, the Law of Torts (4th Edition) p 448).

[56]

General principles

An assessment of damages is to be done in accordance with the provisions of Part 2 of the Civil Liability Act. The burden upon the plaintiff to establish matters on the balance of probabilities is a reference to the legal onus of proof: see New South Wales v Doherty [2011] NSWCA 225 and Hirst v Sydney South West Area Health Service [2011] NSWSC 664.
Damages are awarded as compensation for the damage suffered. It is accepted, and clearly understood, that it is impossible to use money to restore to a condition of physical wholeness a person who has suffered great personal injury. Therefore, all the law can do is to restore the person who has suffered so far as money can do.
Damages cannot be perfect. In Lee Transport Co v Watson [1940] HCA 27; (1940) 64 CLR 1, Dixon J stated at 13-14: "No doubt it is right to remember that the purpose of damages for personal injuries is not to give a perfect compensation in money for physical suffering. Bodily injury and pain and suffering are not the subject of commercial dealing and cannot be calculated like some other forms of damage in terms of money."
Damages are not intended to insure the plaintiff against every possible eventuality, nor to compensate for every loss the plaintiff may possibly have sustained: see Pamment v Pawelski [1949] HCA 43; (1949) 79 CLR 406 at 408-9 per Dixon J; Sharman v Evans [1977] HCA 8; (1977) 138 CLR 562 at 585 per Gibbs and Stephen JJ.
Actual loss must be determined. The determination of actual loss is made even more difficult when the disabilities consequent upon the injuries suffered by a plaintiff are not clearly defined: see Government Insurance Office (NSW) v Rosniak [1992] Aust Torts Reports 81-178; (1992) 27 NSWLR 665 at 676.

[57]

Statistical information

The plaintiff is approximately 52 years old. The medium life expectancy for a man of the plaintiff's age is approximately another 32.5 years.
The 5% multiplier for 32.5 years is approximately 850.
The plaintiff has approximately 14 years until the statutory retirement age.
The 5% multiplier on 14 years is 529.3.

[58]

Overview of my approach to calculating damages

The plaintiff has claimed damages that total $85,951,215.25. Some of the plaintiff's claims for damages can best be described as aspirational. The plaintiff has relied on presumptions and calculations set out in his experts' reports and other material. However, there are often gaps, and in some areas, there is no actual evidence at all. Some examples are the absence of any wage records, tax returns and proof of the plaintiff's obtaining of a university degree in China.
It is common ground that the plaintiff is disabled as a result of a peripheral neuropathy secondary to type 2 diabetes, diagnosed in May 2008. However, as previously stated, there is no medical evidence to support the proposition that any of the defendant's actions caused the plaintiff to develop that diabetic neuropathy. Also, as previously mentioned, any treatment of the plaintiff's diabetic condition in early 2007 would not have prevented its development and complications, and any damage to the nerves must have been slowly evolving over some years and was not clinically detectable.
The plaintiff's current condition is stable. His type 2 diabetes is controlled, and his secondary peripheral neuropathy only affects his legs (and to a limited extent). Professor Anthony was the plaintiff's treating neurologist from 2009 onwards. He prepared reports dated 2, 14 and 16 May 2008, 14 November 2008, 6 February 2009, 27 March 2009, 10 July 2009, 4 December 2009, 30 April 2010, 6 August 2010, 5 November 2010, 4 February 2011, 22 July 2011, 11 March 2011, 15 December 2011, 6 May 2012, 4 September 2012, 15 December 2012, 3 August 2013 and 22 December 2013 (Ex 3 pp 469-490). By 6 May 2012, Professor Anthony was of the opinion that the plaintiff's diabetes was under "excellent control". Professor Anthony's opinion was that the plaintiff's "only problem was his walking because of the Diabetic peripheral neuropathy" and that "the patient can walk around the house unaided by supporting himself with walls, but if he goes outside the house he needs the walking frame." (report 22/12/08).
Before I assess the plaintiff's specific claims for damages, it is convenient that I address two main issues that will impact on claims under various heads of damage. They are firstly, the plaintiff's psychiatric condition and need for care; and secondly, the interrelationship between the plaintiff and Ms Wang, and the effect that that relationship has had on the plaintiff's life and his independence. This overview is based on the assumption (which is not in accordance with my findings and has been rejected) that the defendant's treatment of the plaintiff caused him to develop diabetes that has been exacerbated by the development of peripheral neuropathy. To make it clear, as I have entered judgment in favour of the defendant, the plaintiff is not entitled to any damages at all.

[59]

The plaintiff's psychiatric condition and care

The plaintiff claims that his psychiatric illness was caused by the negligence of the defendant. The plaintiff relied upon the opinions of Dr Klaas Akkerman, psychiatrist (report dated 12 May 2009) (Ex A, p 120), Dr Stephen Buckley, rehabilitation physician, (report dated 12 January 2010) (Ex D, Tab R) and Ms Lauren Alach, occupational therapist (report dated 23 December 2013) (Ex D, Tab R). It should be noted that Dr Buckley's latest report dated 4 November 2011 was prepared some years ago. Ms Alach relied upon Dr Buckley's opinions. Dr Akkerman, Dr Buckley and Ms Alach did not give evidence, nor were they required for cross examination.
As mentioned at the beginning of this judgment, after judgment was reserved, the plaintiff, without leave of this Court, and without explanation, forwarded an occupational therapy assessment report of Ms Everett dated 12 August 2015. I directed the parties to provide written submissions as to whether this report should be tendered and admitted into evidence. The defendant objected to this course of action. The plaintiff submitted that "he has lost capacity to provide childcare for his stepson Su Fu Garana (born in 2003). In respect for caring of a child, he would have addressed but is unable to address because of his disabilities".
At the hearing, the plaintiff relied upon the report of Ms Alach. The defendant relied upon three reports of Ms Oates, occupational therapist, dated 14 February 2015 (part of Ex 3), 19 May 2015 (Ex 10) and 26 May 2015 (Ex 18). On 25 May 2015, the plaintiff closed his case (T274.6-12). Prior to closing his case, the plaintiff gave no indication that he intended to seek to rely upon further evidence. On 26 May 2015, Ms Oates gave evidence and was cross examined. Obviously, she was not cross examined in relation to the contents of Ms Everett's report.
The defendant objected to the report of Ms Everett being admitted into evidence for numerous reasons. They are that it would necessary to further cross examine the plaintiff, further cross examine Mrs Wang, further cross examine David Fan, cross examine Ms Everett, have the plaintiff reassessed by Ms Oates, recall Ms Oates; and consider whether any further evidence was required.
Counsel for the defendant submitted that in these circumstances it is clearly inappropriate for the plaintiff to be granted leave to reopen his case and to rely upon the report of Ms Everett.

[60]

Interrelationship between the plaintiff and Ms Wang

Ms Oates (in her 14 February 2015 report), commented on the overbearing nature of Ms Wang. She reported that when she attended the plaintiff's premises, and attempted to ask the plaintiff questions, Ms Wang repeatedly answered questions for him, interjected when she was not pleased with his responses and disregarded Ms Oates' requests to allow her husband to respond without interruption. Ms Oates stated that Ms Wang "seemed to reinforce Mr Fan's disability and incapacity and seemed convinced that he had a long term need for a high level of care".
When giving evidence, Ms Oates further explained "A. …I felt that it was a difficult interview process in terms of the questioning and the response process. Q. Why was that? A. I found it very difficult to get Mr Fan to directly respond to questions without his wife dominating that process. Or, if he sometimes would respond to things, I found that that then would be negated or altered in response from his wife. And that makes it difficult to form a clear conclusion on some of the information being provided." (T278.28-38).
Ms Oates also drew this Court's attention to recent psychometric testing by Mr Cipriani, who suggested that this was potentially a situation of "Folie a Deux" (delusional symptoms in a partner of an individual with delusional disorder). I shall refer to other examples of Ms Wang's behaviour observed by Ms Oates when the plaintiff's future needs are further discussed.
Ms Oates' view of Ms Wang's controlling behaviour, and the effect it has upon the plaintiff, accords with my own. Not only does Ms Wang have a controlling nature, in so far as the plaintiff's personal life is concerned, she has attempted to create a picture of the plaintiff being far more disabled than he really is. Ms Wang's actions have also impacted on the plaintiff's own view of his capabilities, and have over time resulted in him lacking the confidence to attempt to assert an improved level of independence.

[61]

Non economic loss

The plaintiff claims $572,200.00 for non economic loss (sometimes known as general damages) which is 100% of a "most extreme case". The assessment of non economic loss is governed by the provisions of the Civil Liability Act. The definition of a most extreme case pursuant to s 16 of the Civil Liability Act was discussed in Matthews v Dean (1990) 11 MVR 455; [1990] Aust Torts Reports 81-037 at 68,014; Southgate v Waterford [1990] Aust Torts Reports 81-065; (1990) 21 NSWLR 427 at 440 and Dell v Dalton (1991) 14 MVR 158; (1991) 23 NSWLR 528 at 433. The plaintiff submitted that his injuries are sufficient to qualify for a determination of a most extreme case.
The plaintiff submitted that his psychiatric and chronic physical disabilities qualify him for non economic loss at the very upper end of the range. The plaintiff relied upon the reports of Professor Anthony and Dr Brimage (mentioned earlier in this judgment). Professor Anthony reported that "whilst the EMG/Nerve Conduction Study demonstrates a moderately-severe widespread sensorimotor peripheral neuropathy". Dr Brimage was of the opinion that, "The abnormalities in the nerve conduction studies are consistent with a significant generalised sensorimotor peripheral neuropathy". However, as I have previously stated, it is common ground that the plaintiff is disabled as a result of type 2 diabetes with secondary neuropathy.
Non economic loss means any one or more of the following, pain and suffering; loss of amenities of life; loss or expectation of life; disfigurement: see Sutherland Shire Council v Major [2015] NSWCA 243.
The plaintiff submitted that his non economic loss includes pain and suffering, substantial loss of the amenities of life, severe and significant ongoing disabilities and severe diminution of the quality of life. There is no medical evidence to suggest that there is any loss of expectation of life.
The defendant submitted that firstly, even if it were determined that the entirety of the plaintiff's current condition was caused by the negligence of the defendant, then such an assertion cannot be maintained; secondly, that no matter how one analyses the evidence, it is clear that any injury caused to the plaintiff as a result of the defendant's alleged negligence was of short duration and would not lead to an assessment of non economic loss in an amount of or greater than 15%; and finally, if the totality of the plaintiff's current disability were to be said to be related to the negligence of the defendant, then an assessment of non economic loss in the order of 55% would be appropriate.

[62]

The plaintiff's life pre and post accident

Prior to 2007, the plaintiff said that he was a strong and healthy person and was able to work full time. He gave evidence that his only hobby was photography. When he came to Australia from China in 2000, he studied English at the University of Wollongong for two years but failed that course. The plaintiff said that he also worked part time in a restaurant. For the next three years (2002 to 2005), the plaintiff said that he worked at Blue Pacific Seafood restaurant at Cronulla. The plaintiff said that during 2006, on a typical day at home, he and Ms Wang were learning sewing, as they were planning to open up a home business.
Prior to 20 January 2007, the plaintiff said that he contributed to the family by sometimes walking to Hurstville and back with a trolley that contained 20 kilograms of rice and Su Fu Garana, who was then three years old. When he arrived home, he said he would carry the 20 kilograms of rice by himself from the ground floor to his apartment on level three. He said that he would cook for his family throughout the day and contributed to all other household related work. He also said that he looked after and cared for Su Fu Garana.
The plaintiff contrasted his pre January 2007 life with his life post May 2007. He said that now he mainly stays at home and is unable to contribute to any household related work. He said that he can no longer prepare snacks or any meals. He now has to walk with a walking frame with assistance from either Ms Wang or David Fan. He said that he is unable to shower by himself and requires Ms Wang or David Fan to assist him in and out of the shower. He also said that he needs either Ms Wang or David Fan to put soap on him, rinse and wash and dry him. He said that he needs partial assistance to put his stockings and socks on.
Apparently, the plaintiff can no longer take medications from the refrigerator due to the risk of falling when he turns around. Due to his generalised weakness, he said he is unable to clean or tidy. He said that he is unable to enter or exit the balcony without the assistance of either Ms Wang or David Fan because he believes that there is a risk of falling when he turns around. He also said that he cannot go grocery shopping nor go out for leisure times by himself, because he needs assistance from both Ms Wang and David Fan.
In contrast with Ms Wang's evidence, the plaintiff gave evidence that he can be left alone at home for three hours. The plaintiff said that he uses a computer every day for five hours (T110.6-17), mainly accessing Mandarin news and movies, and watches television and reads the paper. I accept and prefer the plaintiff's evidence over that of Ms Wang. However, overall I do not accept that the plaintiff is as disabled as he makes out. I accept Ms Oates' opinion in relation to the plaintiff's capabilities and needs. They are set out throughout this judgment (under the appropriate heads of damage). I accept that prior to 2007, the plaintiff undertook work in a restaurant from time to time but with no wage records whatsoever, I am unable to say whether this work was on a full time, part time or casual basis. Nor can I say whether there were periods of total unemployment and if so, for how long. During 2006 and 2007, the plaintiff says that he was at home caring for Su Fu Garana, and not participating in any remunerative employment. I accept that post 2007, the plaintiff has had little or no residual earning capacity.

[63]

Past and future economic loss

The plaintiff claims $586,344.77 for past economic loss plus $404,585.92 interest, $64,497.92 for past superannuation benefit loss and $44,504.45 for interest on that superannuation benefit loss. He also claims $1,449,259.60 for future economic loss (loss of earning capacity) and $208,186.14 for future superannuation benefit loss. Interest on past economic loss and the determination of past and future superannuation are calculated from the assessment made in relation to past economic loss and future economic loss. The plaintiff claimed that after the medical treatment he received in 2007, he is totally incapacitated for work. The plaintiff is currently in receipt of a disability pension and Ms Wang receives a carer's pension.
The plaintiff bases his claims for past and future economic loss on average weekly earnings. The plaintiff included an extract from the Furzer Crestani Assessment Handbook dated October 2014, detailing Average Weekly Earnings of Total Employees, New South Wales, for the period February 2004 to May 2014.
The defendant submitted that no allowance should be made for past or future economic loss. While the defendant accepted that the plaintiff cannot do certain things, such as work full time in a fish and chip shop, it submitted that the plaintiff could obtain work if he generally sought to do so, and in so doing, could exercise the capacity and intellectual ability which he asserts.
In the alternative, the defendant submitted that if the court were to find that the plaintiff has suffered some damage as a result of a breach of duty by the defendant then given all of the inadequacies in the evidence and the difficulties of calculations, then the appropriate response would be to allow a cushion in respect of both past and future loss. The defendant submitted that such a cushion ought not exceed $50,000 for the past or exceed $100,000 for the future.
Section 12 of the Civil Liability Act provides for damages for past or future economic loss. It reads: "12 Damages for past or future economic loss - maximum for loss of earnings etc (1) This section applies to an award of damages: (a) for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or (b) for future economic loss due to the deprivation or impairment of earning capacity, or (c) for the loss of expectation of financial support. … (3) For the purposes of this section, the amount of average weekly earnings at the date of an award is: (a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and that is, at that date, available to the court making the award, or …"

[64]

Future economic loss

Claims for future economic loss are governed by s 13 of the Civil Liability Act. It reads: "13 Future economic loss-claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."
Section 13(1) states that the Court cannot award damages "unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury."
As I stated earlier, the plaintiff's future work history for the next 15 years most likely would have involved periods of unemployment, casual, part time and occasional full time work. The type of work he would have undertaken would have included working in restaurants or within the hospitality industry generally. While the plaintiff would have had more opportunity to work longer hours as Su Fu Garana matured, whether or not he would have chosen to avail himself of this opportunity, I cannot say. Taking these factors into account and doing the best I can, I would assess the plaintiff's future economic loss at $117,000.
I have assessed both past and future economic loss as buffers. In these circumstances, it is not appropriate that I make any allowance for loss of past and future superannuation benefits. It follows that I would also not make any allowance for interest on past and future loss of superannuation benefits.

[65]

Out of pocket expenses

The plaintiff claims $71,424.59 for past out of pocket expenses and interest on those expenses. Past out of pocket expenses (excluding past loss of income) include "medical, surgical and nursing attention, physiotherapy, chiropractic, acupuncture, conveyance in an ambulance and hospital treatment. It must be shown that the service was necessarily or reasonably required in consequence of the plaintiff's injuries": see H Luntz, Assessment of Damages for Personal Injury and Death (4th Edition, LexisNexis) at [4.2.1].
Well after judgment was reserved, without leave of this Court and without any explanation, the plaintiff filed a folder including three bundles of documents. The bundles are entitled: (i) Past out of pocket expenses dated 15 July 2015. (ii) Hospital debts, undated; and (iii) Medibank Private statement of benefits paid, undated.
The plaintiff has also filed without leave two schedules: (i) Wei Fan past out of pocket expenses dated 21 July 2015; and (ii) Wei Fan (medico legal) expenses dated 21 July 2015.
The plaintiff submitted that all of the above expenses are as a result of the defendant's negligence and breach of duty of care.
Rather than relist this matter before the Court to deal with this additional evidence, I decided that the most efficient and cost effective way was to deal with it by way of written submissions. The defendant provided written submissions and the plaintiff provided a short reply. Although the defendant's position was that it did not object to the documents "should the plaintiff seek to reopen his case and tender specified documents" it did not object to the amounts contained in specified documents (extracted from the plaintiff's bundle relating to past out of pocket expenses dated 15 July 2015), that it said reflect the entries in the schedule entitled "Wei Fan past out of pocket expenses" dated 21 July 2015. Hence, I decided to accept the plaintiff's additional evidence without the need to relist these proceedings.
The defendant did not object to items that amounted to slightly more than $15,000. The defendant submitted that this Court is entitled to take a broad brush approach to the assessment of past out of pocket expenses, and accepted that the court would be entitled to assess past out of pocket expenses in an amount in the order of $5,000.

[66]

Future medication expenses

The plaintiff claims $54,909.72 for future medication expenses based upon the report of Dr Buckley. However, Dr Buckley (report, p 5) said, "They gave me a list of his medications" and then listed those medications. Dr Buckley did not make any comment as to whether they are necessary, nor the identity of the prescribing medical practitioners.
The plaintiff stated that post 20 January 2007, he takes special medications to meet his needs, as a result of his medical complications and moderately/severe widespread sensorimotor peripheral neuropathy and diabetes (Ex E [30]). The plaintiff listed the costs of his medications as follows. DESCRIPTION GLUCOVANCE 500MG/5MG $20.94 PER BOX (90TABS, 3 TABS/DAY); PER YEAR $254.77 36 YEARS $9,171.72 JANUVIA 100MG $36.90 PER BOX; (28TABS/BOX, 1TAB/DAY) PER YEAR $481.02 ; 36 YEARS $17,316.72 DIONIL 5MG $17.07 PER BOX (100TABS/BOX, 1TAB/DAY); $62.31 PER YEAR; 36 YEARS $2,243.16 OROXINE 100MCG, $29.66 PER BOX (100TABS/BOX, 1TAB/DAY); $108.26 PER YEAR; 36 YEARS* $3,897.36 WARFARIN 1MG $18.09 (50TABS/DAY, 1.5TABS/DAY); $198.09 PER YEAR; 36 YEARS $7,131.24 MEGA B VITAMINS $23.50 PER BOX (75TABS/BOX, 1TAB PER DAY) $114.37 PER YEAR; 36 YEARS $4,117.32 FERRO GRAD C $24.95 (30TABS/BOX; 1/2 TAB PER DAY) $151.78 PER YEAR; 36 YEARS $5,464.08 CALTRATE VIT D TAB 60MG $20.95 (120TABS/BOX, 1TAB PER DAY) $63.72 PER YEAR; 36 YEARS $2,293.92 OSTELIN VIT/D $14.95 PER BOX (60CAPS/BOX, 1 CAP PER DAY) $90.95 PER YEAR; 36 YEARS $3,274.20 GRAND TOTAL $54,909.72

[67]

Professor Anthony (report dated 22 December 2013) (Ex 3 p 490) noted that the plaintiff's diabetes was under good control through the use of Glucovane, Actos, Januvia and Dionil. He recommended that the plaintiff continue on that regime, together with Ostelin and Caltrate as well as Oroxine. On 6 May 2012, Professor Anthony suggested that the plaintiff also continue to take Vitamin D and Mega B vitamins.
The defendant submitted that firstly, the plaintiff's actual medication needs are unclear and in particular it is not clear if the plaintiff requires any pain medication; and secondly, the plaintiff has not adduced evidence from current treating doctors as to any need for medication. The defendant also asserted that the plaintiff is a "concession patient" for the purposes of accessing the safety net provisions of the Pharmaceutical Benefits Scheme ("PBS"). As such, once he expends $366 on eligible items, all further PBS items are supplied free of charge for the remainder of the current year. The same applies in following years: see Part VII, Division 1A and Division 2, of the National Health Act 1953 (Cth); State Government Insurance Commission v Hitchcock (Supreme Court of Western Australia, Full Court, 11 March 1997, unreported) and Hunter Area Health Service v Marchlewski [2000] NSWCA 294; (2000) 51 NSWLR 268 from 278-279. The defendant submitted that the safety net remains applicable even where a person is otherwise regarded as compensable.
I accept that the plaintiff needs medication for his diabetes and that there are a number of drugs for this condition claimed above. I would make an allowance for these items. An additional allowance should be made, on the basis of Professor Anthony's recommendation, for Vitamin D and Mega B vitamins. In assessing the quantum of future medications, the safety net provisions of the PBS should be taken into account.

[68]

Future training and professional services

The plaintiff makes a claim for future training and professional services, some of which appears to be based upon the reports of Dr Buckley and Ms Alach. The plaintiff claims a total of $4,910,031.18. The defendant submitted that based upon both the independent evidence of, for example Professor Anthony and Ms Oates, the plaintiff does not need this type of care.
The plaintiff says that he will require the following (Ex E [29]): (i) A case manager, for any significant arrangements that are to be made; (ii) physiotherapy; (iii) an occupational therapist to assist him with the provision of special equipment for his future and additional assessment and training; (iv) assessment and training done for a scooter; (v) psychological support; (vi) taxi services to and from locations where parking is difficult; (vii) car wash expenses; and (viii) general practitioner and specialists' expenses.
Some of these claims have been dealt with under more appropriate headings, such as physiotherapy and psychological support. The plaintiff does not need a car so he has no need for car wash expenses. Based on the reports of Ms Oates, I do not think that the plaintiff needs a mobility scooter and therefore he does not need the related training.
Ms Oates has recommended a period of in patient rehabilitation and review to address the plaintiff's medication regimen, his mobility and falls strategy, to provide additional training in autonomy for activities of daily living and to assess the suitability of his home environment and his best options of future care to optimise his autonomy. Ms Oates also recommended the appointment of a registered nurse for case management in the community to monitor the plaintiff's medication regimen and liaise with all treating practitioners regarding his care and treatment (Ex 3, p 340, para 6.1).
I would allow for the above amounts recommended by Ms Oates. They are reasonable and necessary due to the plaintiff's disabilities arising from his type 2 diabetes and secondary neuropathy.

[69]

Past and future care

The plaintiff makes a claim for damages for past care totalling in excess of $4,000,000 and for future care that totals in excess of $48,000,000. The need for such care is based upon the reports of Dr Buckley and Ms Alach.
An award of damages for gratuitous attendant care services is governed by s 15 of the Civil Liability Act. It reads: "15 Damages for gratuitous attendant care services: general (1) In this section: "attendant care services" means any of the following: (a) services of a domestic nature, (b) services relating to nursing, (c) services that aim to alleviate the consequences of an injury. "gratuitous attendant care services" means attendant care services: (a) that have been or are to be provided by another person to a claimant, and (b) for which the claimant has not paid or is not liable to pay. (2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. (3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided): (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months. (4) If the services are provided or are to be provided for not less than 40 hours per week, the amount of damages that may be awarded for gratuitous attendant care services must not exceed: (a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for: (i) in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award that quarter, or (ii) in respect of the whole or any part of any other quarter-the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or … (5) If the services are provided or are to be provided for less than 40 hours per week, the amount of those damages must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4)(a) or (b), as the case requires. (6) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services."

[70]

Ms Oates' costs of the plaintiff's needs for future care, on a commercial basis equipment and therapy case management as follows:

Future care $416.85 per week + $595.50 one off;
Equipment $3.60 per week + $2,256.60 one off;
Therapy/case management $16.11 per week + $1,800 one off.

The total of one off recommendations is $4,651.60. I would allow this amount as reasonable and necessary.
The weekly total for future care, equipment and therapy/case management is assessed at the commercial rate at approximately $450 per week. An allowance of $450 per week at 5% for 32.5 years equates to $382,500.
While I would accept Ms Oates' opinion, it is with some reluctance. It seems to me that future care should be assessed on a gratuitous basis, given that Ms Wang has been undertaking these tasks from 2007 to date. Ms Wang did not give any evidence that she would not continue to do so and there was no evidence to suggest that firstly, prior to 2007, she had been employed and secondly, that she was physically unable to continue to do so in the future. For now Ms Wang is also assisted by David Fan. There is no evidence as to any assistance that Su Fu Garanai may provide in the future.

[71]

Handyman expenses

The plaintiff claims an amount of $309,728.57 for handyman maintenance expenses based upon the reports of Dr Buckley and Ms Alach. Dr Buckley said that the plaintiff would require three hours per week for handyman assistance for outdoor domestic maintenance, should he choose to live in an average size suburban cottage.
Ms Wang gave some evidence about the household duties the plaintiff performed from 2005 to January 2007 (referred to earlier). Neither Ms Wang nor the plaintiff gave any evidence as to the actual handyman work the plaintiff performed prior to 2007. The plaintiff, Ms Wang and their children reside in a unit. They do not have responsibility for any outdoor domestic maintenance. The evidence of Ms Oates does not support the need for the plaintiff to move into a residential house.
The plaintiff stated that prior to the injury, he had pots on the balcony and could water them. However, he submitted that he now requires a green garden because of his disability as he has difficulty accessing the very small balcony of his unit (Ex E [32]).
It appears that Ms Oates has allowed five hours per week for domestic care and that includes assistance with heavy domestic work and property tasks. A proper allowance has been made under the heading past and future care.

[72]

Landscaping and architectural needs and hydrotherapy pool

The plaintiff claims damages in excess of $6,193,159.93 in relation to landscaping and architectural needs and a hydrotherapy pool. He relies on the landscaping report by Mr Peter Glass dated 29 January 2014, building reports of Mr Barry Morris dated 8 November 2013 and 17 December 2013, Mr Michael Hesse dated 9 March 2015 and Mr Ken Whyte dated March 2015 and the report of Dr Buckley dated 12 January 2010.
The plaintiff is currently living in a residential unit. While the current accommodation is reasonably suitable for him, the unit is located on the third floor I agree that it is not appropriate that he has to walk up six flights of stairs. From the evidence of Ms Oates, the plaintiff otherwise is able to cope quite well with his home unit accommodation (Ex 3, p 335).
The defendant submitted that the plaintiff has not in any way established that he needs a "special" residence and it would appear that no attempts have been made to find more appropriate accommodation since the current premises were obtained. The defendant submitted that if the plaintiff could have established that an appropriate unit was available but would cost more than the current unit, then a small allowance could be made. However, it says that there is simply no evidence sufficient to enable the court to make a determination that appropriate accommodation cannot be found at the same cost as that currently being paid by the plaintiff.
Further, the defendant submitted that even if it were to be accepted that the plaintiff needed to be provided with a house, the costs of the additional requirements to suit the plaintiff could not be more than those set out in the supplementary report of Mr Hesse. Mr Hesse calculates the additional costs of modifying a new building at approximately $192,000, but as the report is based upon the need for the plaintiff to be in a wheelchair, this is not correct. There is no evidence to suggest that the plaintiff needs the additional items detailed, such as a ceiling hoist and so on.
It is my view that some allowance should be made for self care equipment including a stable shower chair, long handled equipment, an electric razor and specialised cutlery. On this topic, I would allow the items set out in Ms Oates' recommendations at Appendix 3.2 (Ex 3, p 351).

[73]

Additional future home maintenance and running costs

The plaintiff claims $741,672 for additional maintenance and running costs based upon the maintenance report by Mr Craig of Sydney Building dated 4 March 2014 (not provided). The defendant submitted that this claim is unclear.
I have already decided that the plaintiff does not need a special residence, but some allowance should be made for the difference in rent between his current unit and one in the same area on the ground floor with a larger bathroom. This does not mean that additional maintenance and running costs will be incurred with this change in residence. I disallow this amount.

[74]

Additional travel costs

The claim for additional travel expenses is based upon the report of Mr Ronald J Cook dated 12 July 2013 (Ex D) and the report of Dr Buckley. Mr Cook has calculated the costs of airflights, both domestic and international, the costs of disabled accommodation, meals (including carers) and costs of sightseeing. David Fan has calculated the costs of the additional carers. His calculations are as follows. Domestic travel to Perth $1,224,576, Darwin $746,130 and international travel $963,984, totalling $2,934,696. Dr Buckley does not refer to holidays in his report.
The plaintiff was last in China in July 2000 (T69.29). The plaintiff claims travel costs including two yearly domestic holidays to Perth and Darwin (flying Qantas business class) and one European holiday every four years (flying Qantas first class).
The defendant submitted that no allowance should be made in relation to travel expenditure.
The plaintiff submitted that he requires additional travel costs as he needs to go to Europe and travel domestically. He says that he will require two carers and company to assist him at all times with luggage due to his disabilities and the risk of falling (Ex E [33(a) & (b)]). Ms Alach supported the view that the plaintiff needs three weeks per annum for holiday travel (Ex D p 47).
However, Ms Oates considered it unlikely that the plaintiff would have travelled on holidays for three weeks per annum, particularly overseas, given he was not working in 2007. She also said that if the plaintiff does go on holidays, she would not anticipate that his care needs would vary and that care support would be purchased from a care agency in his holiday destination locale and that this allowance for care has been included under the heading future care (Ex 3, p 341).
The plaintiff gave no evidence of going on holidays between 2000 and 2007. He had limited funds to do so. He had not travelled overseas or visited family in China. I do accept that he would have gone on holidays both in Australia and overseas from time to time, but not with such regularity as set out by David Fan. The plaintiff could travel with Ms Wang who is able to support him. I would make an allowance of a modest sum to compensate the plaintiff as there are some holiday activities he is no longer able to undertake and it would be necessary for him to have accessible accommodation as he uses a rollator frame. He does not require business class or first class flights. He does not require carers to assist him. He would not have travelled to Europe every four years, but he may have travelled a few times over the next 32 years. Based on the past, there is no evidence to suggest that he would take two domestic holidays per year.

[75]

Special equipment costs

The plaintiff claims $8,476,063.66 in special equipment costs based on the report of Ms Alach (Ex D, p 54-55). I have already made an allowance as recommended by Ms Oates for special equipment. No further allowance should be made.

[76]

Assistive technology

The plaintiff claims $522,496.00 for assistive technology based upon the report of Dr Graeme Smith dated 25 July 2013 (Ex D). The plaintiff stated that before 20 January 2007, he was a healthy and strong person but now requires special assistive technology to meet his needs as a result of his medical complications and moderately severe widespread sensorimotor peripheral neuropathy (Ex E, p 9).
The plaintiff currently has a computer. He can use the internet for five hours per day (T110.10-17).
The defendant submitted that it is possible that the plaintiff may need an iPad. The cost of an iPad is approximately $600. The plaintiff's claim for assistive technology totalling in excess of $522,000 should be rejected. Counsel for the defendant argued that there is simply no basis upon which it could possibly be asserted that the plaintiff is in need of the type of assistive technology set out in his experts' reports. The defendant submitted that Dr Buckley had formed the view as to the entire or total disability of the plaintiff as a result of his psychiatric condition, and as that condition has entirely disappeared, there is simply no basis for the plaintiff needing assistive technology, other than for the cost of the iPad.
Ms Oates (report, 19 March 2015, Ex 10) said: "… I do not understand why Dr Smith thinks a desktop computer and a tablet are necessary for Mr Fan and he has not made it entirely clear why a new computer is required at all given one was purchased for Mr Fan in 2011 and he only uses very basic functions. I would not support software licences for Office and related products as these are not recreational in nature and are mainstream need, unrelated to the current claim. I do not support training from a computer buddy or continuing maintenance or other training as a functional necessity. I find recommendations for technician, training and services to be excessive and unwarranted. I do not support environmental control technology because Mr Fan and his family live in rented accommodation and so extensive modification is not reasonable or necessary. Mr Fan is mobile and able to transfer and should be encouraged, not discouraged, to get up and move around. I do support iPad due to peripheral neuropathy and better access using touch screen technology. I have valued this item at $549.00 as a one off purchase. On screen training is available and a one off additional charge of $50.00 for some suitable Apps is supported. Total costs supported = $599.00 one off."

[77]

Provision of suitable motor vehicle

The plaintiff claims $764,222.40 for the provision of a suitable motor vehicle, based upon a report by mechanical automotive engineer Mr Ali Akbarian (report, 14 February 201, Ex D, p 6) and the reports of Dr Buckley and Ms Alach.
The plaintiff gave evidence that before 20 January 2007, he had obtained a green P driver's licence but, as a result of his medical complications and moderately severe widespread sensorimotor peripheral neuropathy, he now needs the provision of a suitable motor vehicle and car maintenance (Ex E [37(a) & (b)]). The plaintiff's green P licence expired in 2009.
The only evidence on this topic was given by Ms Wang. She said that when they were separated, he came and picked her up in a car: "Q. He has never had a car, has he? A. He has a car. He has NRMA Insurance. Also has a licence, P Plate, means a provisional licence. Q. You told her Honour that he had a car and he had a licence. It was a lie that he had a car wasn't it? A. He has a car. He hasn't got a car. He has a car. When you ask whether he has a car or he hasn't got a car, I said that he has a car. Q. That was not true was it? A. Yes, he has a car. Q. When did he have a car? A. Because at a certain stage we were separated, the exact year, which year he has a car I didn't ask him. Q. You don't know if he had a car or not during that period of time do you? A. Yeah, sometimes I was sitting in his car. Q. That's just a lie isn't it? A. No. Q. You're willing to say anything that you think will help this case aren't you? A. Yes, he has a car." (T271.4-27).
Even if I accepted Ms Wang's evidence, then at best, the plaintiff had a car sometime before 2007 for a short while.
The defendant submitted that the plaintiff does not need a suitable motor vehicle because the plaintiff is able to use public transport and an ordinary taxi. The defendant considered that at worst, the plaintiff might need to use a disabled taxi.
Ms Oates' (report, 14 February 2015, Ex 3, p 314) opinion was that while Ms Alach has made recommendations for a motor vehicle the plaintiff has not had a vehicle in the past and Ms Wang does not drive. According to Ms Oates, the plaintiff seems to be able to negotiate community living using public transport. Ms Oates anticipated that he could do so safely in his local area following a period of inpatient rehabilitation. She recommended some assistance for travel outside the local area.

[78]

Exercise (membership of club or gymnasium with membership for his carer)

The plaintiff claims $104,832.00 for membership of a club or gymnasium for him and his carer based upon Dr Buckley's report (dated 12 January 2010, pp 2, 15).
Dr Buckley opined that the plaintiff's brain injury and executive dysfunction is likely to cause considerable difficulty in identifying exercise options which the plaintiff is likely to maintain. Therefore, the plaintiff would require a wide range of exercise options, such as those available in a club or gymnasium, in order to assist his carer to help the plaintiff to maintain an appropriate cardiovascular and strengthening exercise program. In addition, the activities coordinator should have membership of the club or gymnasium, because the plaintiff is unlikely to maintain his exercise program without the direct involvement of his activities coordinator (Buckley report, Ex D, p 15).
The defendant submitted that there is no evidence that the plaintiff would intend, in any way or to any extent, to utilise a gymnasium membership nor is there any basis upon which it could possibly be asserted that the plaintiff requires such a need.
It is my view that Dr Buckley reached his opinion based on the wrong premise, namely the plaintiff's brain injury. I would not make an allowance of $104,832 for membership of a club or gymnasium for the plaintiff and a carer.

[79]

Future medical interpreter fees

The plaintiff claims $198,000 for future medical interpreter fees. He says that he needs to claim these costs due to his disabilities (Ex E, p 10). This seems to be based largely on the plaintiff's assumption that he needs in home physiotherapy intervention three times per week for 36 years, occupational therapy and scooter training.
The calculation is made as follows. Physiotherapy in home intervention interpreter fee, $250 x 3 per week = $750, $39,107.14 per year for a total of 36 years = $1,407.857.04; occupational therapist prescription for equipment interpreter fee $250 x 12 hours = $3,000; occupational therapist assess and training to "max person care IADL" interpreter fee $250 x 18 hours = $4,500; and occupational therapist for scooter assessment and training interpreter fee $250 x 8 hours = $2,000.
The defendant considered that if the plaintiff required specialist medical intervention as a result of a disability caused by a breach of duty by the defendant, then it would follow that he would be entitled to an allowance for damages for future medical interpreter fees, but it is by no means clear how frequently the need would arise. However, the defendant submitted no allowance should be made.
I agree that some allowance should be made for an interpreter to assist past and future medico-legal appointments and for his initial visit to a physiotherapist and home visit by an occupational therapist.

[80]

Childcare past and future

The plaintiff claims $685,955.51 for past childcare for Su Fu Garana and $370,526.63 for future care. This claim is made on the basis that because of his disabilities, the plaintiff says, he can no longer reach or achieve the standard of responsibilities as a father for Su Fu Garana.
Such claims for childcare are governed by s 15(B) of the Civil Liability Act. Section 15(B)(2) provides: "(2) When damages may be awarded Damages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependents, but only if the court is satisfied that: (a) in the case of any dependents of the claimant of the kind referred to in paragraph (a) of the definition of "dependents" in subsection (1) the claimant provided the services to those dependents before the time that the liability in respect of which the claim is made arose, and (b) the claimant's dependents were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and (c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant's dependents: (i) for at least 6 hours per week, and (ii) for a period of at least 6 consecutive months, and (d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances. Note: Section 18 provides that a court cannot order the payment of interest on damages awarded for any loss of capacity of a claimant to provide gratuitous domestic services to the claimant's dependents."
The defendant submitted that no evidence has been provided which would enable the court to determine how the plaintiff intended to provide childcare, and that this is particularly important given that a claim is also made for past and future economic loss. Counsel for the defendant pointed out that the plaintiff has not provided any evidence as to how he would provide significant childcare when he alleges that he would also have been working full time. In addition, the defendant said there is simply no evidence to support the contention that the plaintiff is unable to provide childcare. The defendant also said that the plaintiff is mobile, although with restrictions, and that no evidence was adduced that indicated that he was unsafe to be left with his child.

[81]

Court and legal expenses

The plaintiff claims reimbursement of the legal fees of $19,779.34 paid to Lamrocks solicitors. An order for costs will made after this judgment has been delivered. It is not appropriate to deal with a claim for legal expenses and court costs in this judgment, because they are matters to be taken into account if the plaintiff had a judgment entered in his favour and a subsequent costs order made in his favour. He has not. No allowance for these costs are made in an assessment of damages.

[82]

Wei Fan's hospital debts and Medibank Private statement of benefits paid

The plaintiff claims $9,380.10 for hospital debts owing to St George, Prince of Wales and Sutherland hospitals and $96,371 for reimbursements of Medicare Private fees which have been paid by him. He was treated in hospital between January and March 2007 on the basis of that he did not have Medicare Private insurance at that time. It is not clear what these expenses relate to. Further, it appears that the hospital debts or Medicare private expenses have been claimed earlier. No allowance should be made for these items here.

[83]

Conclusion

The plaintiff's claim fails. I enter judgment in favour of the defendant.
Costs are reserved.

[84]

Judgment (1) Judgment is entered in favour of the defendant. (2) Costs are reserved.

[85]

Amendments 31 August 2015 - Paragraph [240] citation 239 CLR 42 amended to 239 CLR 420. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 August 2015

(1991) 23 NSWLR 528

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