Geysen v Australian Capital Territory [2006] ACTSC 21 (15 March 2006)

Last Updated: 6 April 2006

JAMIE JOHN GEYSEN v AUSTRALIAN CAPITAL TERRITORY

[2006] ACTSC 21 (15 MARCH 2006)

EX TEMPORE JUDGMENT

NEGLIGENCE - personal injury - liability of hospital to patient - failure to detect foreign objects in hand - failure to ensure x-ray report provided to surgeon before surgery

DAMAGES - personal injury - hand pain - no question of principle

PRACTICE AND PROCEDURE - Calderbank offer by plaintiff - judgment sum exceeding offer - exercise of discretion

No. SC 324 of 2003

Judge: Master Harper

Supreme Court of the ACT

Date: 15 MARCH 2006

IN THE SUPREME COURT OF THE )

) No. SC 324 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JAMIE JOHN GEYSEN

Plaintiff

AND: AUSTRALIAN CAPITAL TERRITORY

Defendant

ORDER

Judge: Master Harper

Date: 15 MARCH 2006

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $110,713.54.

2. The defendant pay the plaintiff's costs up to and including 21 June 2005 as between party and party, and subsequent to that date on an indemnity basis.

1. In this action the plaintiff claims damages from the defendant, the Australian Capital Territory, as the body which is acknowledged to have the conduct and management of the Canberra Hospital. His claim is for breach of the duty of care which the defendant acknowledges was owed to him in circumstances where he was an in-patient of the hospital in June 1997 and underwent surgery to his right hand following an injury, there being at the time seven foreign bodies, pieces of glass or gravel, embedded in his hand which were not removed in the course of the surgery, and of the presence of which the plaintiff was not informed.

Factual Background

2. The plaintiff was born in July 1962 and was at the time of the surgery not quite 35 years of age. He is now 43. He is a long-term resident of Canberra. In June 1997 he had been participating in a car rally in the vicinity of Bega in New South Wales when the rally car which he was driving rolled over causing severe injury to his right hand which was caught between the door of the car and the road surface. He was initially taken to Bega District Hospital and treated there by Dr Harteminke, a general surgeon.

3. Whilst he was there, on 23 June 1997, that being 2 days after the accident, an x-ray was taken of his right hand, which read as follows:

There is dorsal dislocation of the base of the 5th metacarpal. There is an undisplaced fracture of the base of the 4th metacarpal. The hamate appears in tact. Multiple opaque foreign bodies are noted in the soft tissues of the hand.

4. The day after the accident and the day before that x-ray was taken, the wound to the plaintiff's hand was debrided and an attempt was made to achieve a surgical reduction of the dislocated 5th metacarpal under general anaesthetic. On 23 June, the day of the x-ray, the plaintiff was referred, by Dr Harteminke, to Canberra Hospital. On the same day, the plaintiff arrived at the Canberra Hospital and was admitted. On the following day he underwent surgery in the form of a skin graft operation and he remained in hospital as an inpatient until 2 July.

5. At 5.54 pm on 26 June, an x-ray was carried out on his right hand. The evidence does not disclose precisely when it was reported upon by a radiologist but it was undoubtedly prior to 6.37 pm on the following day. In the absence of any evidence in the defendant's case about it, I infer that the radiologist's report of the x-ray was prepared within a reasonably short time of the x-ray being taken.

6. The x-ray report read as follows:

There is dorsal dislocation of the base of the 5th metacarpal. This thus overlies the hamate bone. Multiple skin sutures are seen. There are several radio opaque densities seen within the palm. These do not appear to be related to bone and may represent foreign bodies within the soft tissues. Clinical correlation is required.

7. The patient progress notes include a note in the handwriting of a Dr Sethi timed at 6 pm on 26 June 1997, that is, some 6 minutes after the x-ray was taken, which reads as follows; "Seen by Dr Deva. Right hand x-rays, dislocation of 5th metacarpal. For K-wire insertion and dressing change tomorrow. NBM from 12 tonight".

8. On the following day, 27 June, it appears from a registered nurse's theatre report that the plaintiff was taken to theatre at 4.45 pm and that the operation commenced at 4.58 pm. The operation being completed at 5.20 pm, the plaintiff returning to the recovery room and then to the ward a little after 6 pm. The surgeon is shown as Dr Deva and the assistant as Dr Sethi. The description of the operation contained in the report is "Percutaneous K-wires to right 5th metacarpal, redressing of wound".

9. Despite the x-rays and the x-ray reports, it is plain that Dr Deva and Dr Sethi were not made aware of the presence of the foreign bodies in the hand. I infer from the note of their attendance on the patient at 6 pm on 26 June that they had the x-ray films but not the report at that time.

10. It emerged from other evidence by Dr Chris Roberts, an orthopaedic surgeon in private practice, who regularly performs surgery at the Canberra Hospital, that at that time it was not uncommon for there to be some delay in x-ray reports being correlated with the patient file, that is to say, with the documents available to the surgeon at the time of surgery.

11. The plaintiff slowly recovered from the surgery to his hand, which generally achieved an excellent result. He fortunately was entitled to payments from an insurance policy taken out by the Confederation of Australian Motor Sport, which had been conducting the rally, which provided him with full income replacement for the first year and a second year at a reduced rate.

12. In October 1999 he returned to the Canberra Hospital for further surgery in the form of a Z-plasty to the right hand.

13. By trade, the plaintiff is a motor mechanic and also a dental mechanic and he was working in both those capacities at the time of his accident. His evidence is that having got back to work after the surgery, he found during 2002 that lumps which he had already noticed on the palm side of his right hand were becoming more prominent and were causing him pain on the pressure which he necessarily was required to apply with his right hand in the course of his work as a motor mechanic.

14. Whilst generally the hand was not painful at rest, it became at times excruciatingly painful on particular pressure movements in the course of that work. The plaintiff's evidence is that in September 2002 he had to cease work as a motor mechanic because of that pain.

15. There was an issue raised by the defendant as to whether the pain was the reason that he ceased work, and there were called in the defendant's case two witnesses, Mr and Mrs Raymond, the proprietors of the business where the plaintiff had been employed as a motor mechanic. Their evidence was that they had never heard the plaintiff complaining of any pain in the hand and that the reason he left work was that a clash of personalities between Mr Raymond and himself had reached a level where it was impossible for them to continue to work together. There was considerable detailed evidence from the plaintiff and from Mr and Mrs Raymond about both the circumstances of his last day of work and about their relationship and certain events that occurred during his employment with them.

16. Without going into detail about that evidence, it is enough for me to say that whilst I generally found Mrs Raymond an impressive witness, I formed the view that she was working at a sufficient distance from the plaintiff that she would not necessarily have been aware of his episodes of pain in the right hand. As between the plaintiff and Mr Raymond, I preferred the evidence of the plaintiff generally as to the aspects in which their evidence was inconsistent. I was not impressed with Mr Raymond as a witness. He conceded that he had a poor memory for many of the events about which he gave evidence. To an extent I accept that his memory was poor about events, but there were some events where I found it inherently hard to believe that he would not have remembered them.

17. The plaintiff agreed that part of the reason he left was that he thought he was being underpaid and about the time he left he was asking for an increase in pay. Indeed, he conceded that if he had been given an increase in remuneration which he regarded as adequate, he might very well have put up with the pain and kept working there. But the combination of the rate of pay, his unhappiness about various aspects of the way in which Mr Raymond ran the business, and his pain, was such that he terminated his employment on 23 September 2002.

18. He had been working up till then in the evenings as a dental mechanic. He increased his hours somewhat after giving up work as a motor mechanic but he did not look for or find other employment as a motor mechanic either in a more congenial workplace or at a higher level of remuneration. I am satisfied that the pain in his hand was a significant contributing cause of the cessation of his employment at that time.

19. The pain in the hand continued. Until then the plaintiff had taken the view that there was nothing he could do about it. His evidence, which I accept, was that he had been given the impression by doctors that the result that had been achieved with his hand was as good as could be hoped for and that he would be left with some permanent problems which might include the lumps which gave rise to the episodes of pain. He had been told that an injury like the one he had suffered could cause Dupuytren's disease and that this is probably what had happened, and that there was, in practical terms, nothing that could be done about it other than to take painkillers which he could buy at the chemist if he needed them.

20. As time went on, he became increasingly concerned. He was ultimately referred by his general practitioner for an ultrasound in April 2003, which showed shadowing suggestive of foreign bodies in the hand. This was followed by an x-ray which disclosed a number of opaque foreign bodies said to be suggestive of gravel or small glass fragments. Following this, the plaintiff was referred to Dr Chris Roberts, orthopaedic surgeon with a particular interest and expertise in hand surgery, to whom I have made reference earlier. On 16 June 2003, Dr Roberts surgically removed seven foreign bodies.

21. He also removed some tissue which he identified as caused by Dupuytren's disease. The plaintiff recovered slowly over a lengthy period from that surgery. By the beginning of 2004 he was able to use the right hand for limited mechanical activities on a part-time basis. It was not until February 2005 that he was able to return to work as a mechanic in the workforce at large.

Medical Evidence

22. In relation to liability, evidence was given both in the form of reports and orally by Dr Roberts. Dr Roberts' evidence was influenced by his view that the plaintiff overall had had an extremely good result with the right hand from his treatment, having regard to the severity of the original injuries. He was personally a little affronted that someone who had had such a good result might complain about one aspect of his treatment and seek compensation for it.

23. Dr Roberts said in a report of 6 August 2003 to the plaintiff's solicitors:

The only area where I believe the medical care has been suboptimal is in failure to have taken note of the x-ray reports which have commented on foreign bodies within his hand on two occasions. It is quite possible that these foreign bodies would have been missed at surgery, and the only clue to their presence is by careful inspection of the x-ray, and the x-ray report.

If the foreign bodies had been noted on x-ray, then they could have been removed during one of his surgical procedures. I do not believe that failure to remove the foreign bodies at an earlier date has led to any long term poor result in this hand. It has led to the pain and discomfort in the palm from pressure over the foreign body, which increased for the last few years. I have also noted in my initial consultation notes that the pain was getting worse over the last few years.

This gentleman has had a severe injury to his hand and after the medical, physiotherapy and Occupational treatment, his hand has regained excellent function.

24. In a subsequent clarifying report of 26 September 2003, Dr Roberts said that careful inspection of the x-rays would have been required to detect the glass fragments and that merely inspecting the x-ray films might have missed the tiny fragments, which were overlapped in many of the x-rays by bone. He also said that he was not sure of the entry points of the fragments into the hand. That is to say, he was not sure whether they had entered through wounds to the back of the hand or to the palm. He said that if it had been the back of the hand, it would have been virtually impossible to remove all of the fragments through their entry wounds. If it was the palm, then a similar approach would have been needed to remove the fragments to that which Dr Roberts performed in June 2003. For that reason he did not feel that the scarring would have been significantly different if the foreign bodies had been removed prior to skin grafting.

25. I interpolate that it seems to me more likely than not that the fragments entered through the palm rather than the back of the hand. I accept Dr Roberts' opinion that surgery to remove them in June 1997 would probably have required a fairly similar incision to that made in 2003 and would have resulted in fairly similar scarring.

26. The plaintiff was referred for medico-legal purposes by his solicitors to Dr Alan Ferguson, a Canberra plastic and reconstructive surgeon. Dr Ferguson was asked to express an opinion as to whether the plaintiff's inability to work between when he ceased work in September 2002 and the end of 2003 was more likely to be due to the foreign bodies or to Dupuytren's disease. In a letter of 19 September 2005, Dr Ferguson expressed the view that that incapacity was more likely than not attributable to the disability caused by the foreign bodies rather than to Dupuytren's disease. He went on to say that early Dupuytren's disease may present as painful nodules in the palm but not usually of such severity as to prevent manual work. One of the submissions in the case made on behalf of the defendant is that if the foreign bodies had been removed earlier, the Dupuytren's disease might nevertheless have progressed to a stage where the lumps might have caused just as much pain as the foreign bodies and might ultimately have led to surgery. That view is not supported by medical opinion and I am not attracted to it.

27. No medical or other expert evidence was called in the defendant's case. In particular the following witnesses who one might have expected to assist the defendant's case were not called: Dr Deva, the 1997 surgeon; his assistant, Dr Sethi; Dr Peter Brown, recorded as the specialist under whose care the plaintiff was admitted to the Canberra Hospital; and Dr Leon Le Leu, a specialist who saw the plaintiff at the request of the defendant's solicitors for medico-legal purposes. I infer that a report by Dr Le Leu came into existence but was not served and I draw the available inference that his report and evidence would not have assisted the defendant's case. I draw a similar inference in relation to Dr Deva and Dr Sethi.

28. The defendant is not sued solely in respect of breach of duty of care by Dr Deva or Dr Sethi, but rather in relation to breach of duty by the management of the hospital as a whole. It seems to me inescapable that, particularly in the absence of any contrary evidence or explanation, the Canberra Hospital had available to it at the time of the plaintiff's admission the Bega District Hospital x-ray report of 23 June 1997, which I quoted earlier, and also that it had available to it well before the surgery on 27 June the x-ray report of 26 June. The hospital thus had implied or constructive knowledge of the fact that there were, or appeared to be and probably were, multiple foreign bodies in the soft tissues of the plaintiff's right hand prior to the commencement of that surgery.

29. Dr Roberts in his oral evidence said that he thought he would have picked the foreign bodies up from a perusal of the x-ray, although he acknowledged that many less experienced surgeons might not do so, but no medical practitioner could have failed to be aware of the problem after reading the radiologist's reports. Dr Roberts also said in his oral evidence that if he had known about the foreign bodies at the time of the surgery of 27 June 1997 and if he had been the surgeon, he would have removed them.

Liability

30. It seems to me, in those circumstances, inevitable that there be a finding that the defendant as responsible for managing the hospital and liable for its torts must be found to have been in breach of the duty of care owed to the plaintiff to remove the foreign bodies in June 1997, or at the very least to inform the plaintiff of their presence and to permit him to make an informed decision about whether he wanted them removed in the course of that surgery.

31. Whilst there is little evidence about it, and one would have some reservations about evidence given by a layman as to what he might have done if given certain advice many years ago, it does seem to me more likely than not that as the plaintiff was about to undergo surgery under general aesthetic in any event, he would, if given that opportunity, have requested that the foreign bodies be removed at the same time. In those circumstances, the plaintiff must succeed in the action.

Damages

32. It has been agreed between the parties that his damages should include, by way of treatment expenses, $4,859.80, and in respect of past wage loss and superannuation, including interest, the sum of $55,853.74.

33. The assessment of general damages presents some difficulties. It requires a comparison between what has happened and what might have been, the latter being impossible to know and including many imponderables. The period between the breach of duty of care and the corrective surgery was six years, and probably the period during which the plaintiff has been affected by the breach is about six years.

34. I say that because there was a fairly lengthy period of recovery from the original surgery before the plaintiff developed symptoms caused by the foreign bodies, but that is largely offset by a similar period of recovery after the 2003 surgery when the foreign bodies were removed. One is thus looking at a period of about six years of significant effect of the defendant's failure upon the plaintiff.

35. The plaintiff underwent a period of episodes of pain, in some cases excruciating pain, during his work as a motor mechanic up to September 2002. He had attempted to get back to rally driving but was unable to persist with that because of the pain in his hand caused by the foreign bodies. It seems to me more likely than not that if the foreign bodies had been removed in 1997, he would have been able to get back to rally driving, and he would have been able to get back to his work as a mechanic.

36. He went through a period where he controlled his pain with a combination of non-prescription painkillers and alcohol. He had, prior to his rally injury, been a very moderate drinker and he became, during his period of great pain, what might be described as a heavy drinker. Since his surgery in 2003 he has reverted to his pre-accident pattern.

37. I am not satisfied that the scarring to his right hand is any worse than it would have been if the foreign bodies had been removed in 1997, except to the extent that it is perhaps a little worse now because it is six years more recent than it would otherwise have been. That is a factor that is reflected only to a very modest degree in the award of damages.

38. I invited counsel to address me as to an appropriate range for general damages in the event that I found in the plaintiff's favour. Counsel for the plaintiff suggested a range of $50,000 to $70,000, whilst counsel for the defendant, perhaps not surprisingly, suggested a much lower range of $20,000 to $30,000. I found those submissions of assistance, though I appreciate the difficult position in which counsel can be placed when asked to make submissions of that kind in the presence of their clients.

39. It seems to me, on reflection, taking account of all of the factors which I have outlined, that an appropriate award for general damages is $45,000. That amount attracts interest. The rate which I am required to apply is 4% per annum, but it is also necessary to decide what proportion of those general damages relates to the past and how much, if any, to the future, and also how the figure reflects the varying effects of the defendant's breach of duty of care at different times since.

40. It was well after the 1997 surgery that the plaintiff first noticed symptoms arising from the foreign bodies. By giving up work in September 2002, he was able to remove himself from a position where he was unavoidably applying pressure to his hand and causing himself excruciating pain from time to time. I do not find it necessary in this case to perform an apportionment of general damages as between past and future, simply saying that virtually all if not all of the general damages relate to the past and that the amount applicable to the future, limited really to the scarring to the palm of the right hand, is almost negligible.

41. In those circumstances, it seems to me that a general allowance of $5,000 for interest accurately reflects the plaintiff's entitlement in that regard. The individual components of the plaintiff's damages are therefore as follows: general damages, $45,000; interest, $5,000; treatment expenses, $4,859.80; and economic loss $55,853.74; a total of $110,713.54. There will be judgment for the plaintiff for that amount.

Costs

42. Counsel for the plaintiff has informed me of an offer made in Calderbank terms by letter of 7 June 2005 in which the plaintiff offered to settle for $62,500 plus costs, the offer to be open for 14 days, and noting that full particulars of the plaintiff's claim had been provided. The offer clearly was not accepted. I am not informed as to whether there were any other negotiations thereafter, but it is apparent that there were none relevant to the present application.

43. The offer having been made and not accepted, counsel for the plaintiff seeks an order that the defendant pay the plaintiff's costs until the period for accepting the offer, and thereafter that the defendant pay the plaintiff's costs on an indemnity basis. In relation to the latter, the plaintiff relies on an affidavit by his solicitor which annexes a retainer agreement between the plaintiff and his solicitors, and which sets out the basis on which counsel's fees are agreed to be payable.

44. I comment in passing that it does not appear to me that the basis of either solicitors' costs or counsel's fees is particularly different to the party-and-party scale. I acknowledge that there may be other disbursements which are more than might normally be allowed. I also acknowledge that there may have been work done which would not be regarded as recoverable as between party and party. Having said that, it appears to me that the difference we are speaking of in this case, between party-and-party costs and indemnity costs, is unlikely to be great.

45. Nevertheless, the Court encourages the making of such offers with a view to resolving litigation amicably between parties and minimising expense to parties, as well as court time. Settlement generally is to be encouraged and the Calderbank letter has become accepted as a mechanism to achieve that end.

46. The offer, as I say, was made on 7 June 2005. By that date the pleadings had been closed and affidavits of documents filed on behalf of both parties. A statement of particulars had been filed and the solicitors for the parties had signed and filed a certificate of readiness. Counsel for the defendant now submits that the letter should not be given effect to in the way sought on behalf of the plaintiff, for the reason that the case which went to trial was fundamentally different to the case of which the defendant was aware when the offer was made. I am not satisfied that that is the case.

47. True it is that further medical reports were served and oral evidence was given of which the defendant could not have been aware earlier, but that is likely to be the case in almost every action in which reliance is placed on a Calderbank offer other than one which is extremely recent. There have been cases where courts have declined to give effect to a Calderbank offer because it was made so early in the piece that it would have been unreasonable to expect its recipient to make an informed decision about it, but this does not seem to me such a case, bearing in mind that the solicitor for the defendant had signed a certificate of readiness acknowledging that the case was ready for trial shortly before the offer was made.

48. In the circumstances, I am satisfied that the orders sought by the plaintiff should be made. I order that the defendant pay the plaintiff's costs up to and including 21 June 2005 as between party and party, and subsequent to that date on an indemnity basis.

I certify that the preceding forty-eight (48) numbered paragraphs are

a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 23 March 2006

Counsel for the plaintiff: Mr S Hausfeld

Solicitors for the plaintiff: Stacks with Snedden Hall & Gallop

Counsel for the first defendant: Mr G C McCarthy

Solicitors for the first defendant: ACT Government Solicitor

Dates of hearing: 8, 9, 15 March 2006

Date of judgment: 15 March 2006