Pavic v Australian Capital Territory [2007] ACTSC 97 (3 December 2007)

Last Updated: 24 October 2008

ANTON JAKOV PAVIC v AUSTRALIAN CAPITAL TERRITORY
[2007] ACTSC 97 (3 December 2007)

EX TEMPORE JUDGMENT

NEGLIGENCE – personal injury – liability of hospital for injury to newborn baby – intravenous infusion of calcium gluconate causing burn to back of hand – whether treatment appropriate – failure to monitor and observe

DAMAGES – personal injury – burn to back of hand – abdominal skin graft to burn site – scarring – no issue of principle

Sainsbury v Great Southern Energy Pty Ltd (2000) NSWSC 479

No. SC 276 of 2004

Judge: Master Harper
Supreme Court of the ACT
Date: 3 December 2007

IN THE SUPREME COURT OF THE )
) No. SC 276 of 2004
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ANTON JAKOV PAVIC

Plaintiff

AND: AUSTRALIAN CAPITAL TERRITORY

Defendant

ORDER

Judge: Master Harper
Date: 3 December 2007
Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the amount of $75,744.20
2. The defendant pay the plaintiff’s costs
3. The solicitors for the defendant pay the sum of $60.45 to Medicare direct
4. The balance of the judgment sum be paid into court by the defendant
5. The sum of $1755.00 be paid out of the moneys paid into court to the plaintiff’s solicitors for reimbursement of the amounts paid by MBF
6. The balance of the moneys paid into court be paid out to the Public Trustee for the benefit of the plaintiff

1. The plaintiff claims damages against the Territory in respect of negligence in his treatment at the Canberra Hospital where he was born on 30 April 1998. He displayed at birth some abnormalities, including a breathing difficulty for which he was treated on the day of his birth with an infusion of calcium gluconate administered through a needle and cannula into the back of his right hand.
2. This line had been in place for about three days when nursing staff noticed a burn injury to the back of the hand. His treatment thereafter included a debriding and full thickness skin graft to the back of the hand performed by Dr Drielsma at John James Memorial Hospital when he was about three weeks old, using skin tissue taken from the abdomen. The surgery has left him with scarring to the back of the hand which is still plainly visible at nine years of age. He has also been left with some relatively minor scarring at the donor site on the abdomen, which I have not observed, but which according to his own evidence and the evidence generally is of little cosmetic or other significance.
3. The unchallenged evidence of a paediatrician and neonatologist based at the Prince of Wales Private Hospital in Sydney, Dr Peter Campbell, is that firstly the use of the calcium gluconate infusion was probably not appropriate as treatment for his breathing difficulties. Secondly, and more significantly, it was known in 1998 that calcium gluconate should not be introduced to the body through a peripheral vein unless absolutely necessary and then only for a short time in life-threatening circumstances. It was well known that extravasation of calcium at an intravenous site could cause severe burns and tissue necrosis, as I am satisfied happened in this case.
4. There are, accordingly, three bases on which the staff of the Canberra Hospital can be criticised in relation to the decision to treat the baby plaintiff in that manner, the first being that the treatment was probably not the appropriate treatment in any event, and the second being that such treatment should have been introduced for a short period and through a major line rather than a peripheral line. The third and most important is that a patient, particularly a baby, who is treated in that fashion should be kept under close observation to ensure that burning and tissue necrosis do not occur.
5. I am satisfied that the plaintiff has made out a prima facie case of negligence against the defendant, being the appropriate defendant in respect of the hospital. The defendant has not adduced any evidence to the contrary. It follows that the plaintiff must succeed in the action.
6. He was discharged from the hospital on 9 May 1998 aged 10 days. I am not able from the evidence to be certain that he spent any longer in hospital than he would have if his treatment had not involved a breach of duty of care. He was discharged home where his parents, in particular his mother, looked after him, with the help of nursing staff who attended daily for nine days to dress the back of the hand.
7. On 20 May, when he was three weeks old, he was admitted to John James Memorial Hospital under the care of Dr Drielsma for the performance of a skin graft. He and his mother stayed in overnight, going home the next day. A week later he was back at the hospital for the removal of the sutures under anaesthetic, again staying overnight with his mother.
8. The severity of these events were largely, so far as he and his parents and those treating him were concerned, overtaken by events in late June 1998. A fracture of his left femur was diagnosed, accompanied by symptoms of osteomyelitis. He spent about a month in hospital. Although he has been seen again by doctors for the purposes of the case, the last treatment to the hand by medical practitioners occurred in about June 1998.
9. I had the opportunity to inspect the hand in the witness box. The scarring is clearly visible because of its colour and because of differences to the surface of the back of the hand. Part of the scarring is raised. I accept the plaintiff’s evidence that it does not cause him a great deal of concern.
10. He is now nine years old and in Year 3 at Telopea Park School in Canberra. He is generally unconcerned about the scarring to his abdomen and not now particularly concerned about the scar to the back of his hand. I am satisfied, however, that it is likely that he will have more difficulties with it as he goes through adolescence from a cosmetic point of view as friends and colleagues of both sexes notice it and ask him about it.
11. I recognise that the scarring has the capacity to cause him some embarrassment in the future. One can expect that he will live for 76 years and one hopes that he will live considerably longer. He will have this with him for the rest of his life. The only significant problem it causes him at the moment is that when he goes out into the sun he applies sun cream to the scarred area rather more liberally than he does to the other exposed portions of his body.
12. I cannot be satisfied on the evidence that the additional sun cream is going to give rise to a measurable expense such as to justify a mathematically calculated award for future expense. The plaintiff’s mother gave evidence on the basis of which I am satisfied that the plaintiff went through, although he was only some days old, an experience which involved him in considerable pain and suffering at the time.
13. Naturally enough he cannot remember that. But that does not mean that he is not entitled to be compensated for his pain and suffering. His mother gave evidence of her estimate of the additional time she was required to spend in providing him with care over and above what would have been required of a mother towards her baby in any event. The plaintiff, of course, had some other problems following birth and, whilst still only a few months old, suffered a fractured femur complicated by osteomyelitis.
14. I accept the plaintiff’s mother as a witness of truth. Her evidence was particularly helpful because she is a trained nurse with a university degree in nursing science and has considerable experience both as a midwife and in neonatal care. At the same time, her evidence as to the number of hours per day she spent looking after her child was given some nine years after the event and was not based on contemporaneous notes or other records. Whilst I accept it as a genuine attempt on her part to recall the events and to arrive at hourly estimates, it is not a task that, on the evidence, I can approach in that mathematical way. As is so often the case in claims of this kind, the court can do little more than to adopt a general approach to the assessment of damages for the care provided to an injured plaintiff by family members.
15. Counsel for the plaintiff suggested a range for general damages of $50,000.00 to $70,000.00. I was referred to a decision of Barr J sitting in the Supreme Court of New South Wales, Sainsbury v Great Southern Energy Pty Ltd (2000) NSWSC 479 a case with more differences than similarities to the present one. That was a severe scarring case, and his Honour awarded $200,000.00 by way of general damages. I have found that decision of some assistance.
16. Counsel for the defendant submitted that an appropriate range for general damages would be $30,000.00 to $40,000.00. It seems to me having regard to the evidence as to pain and suffering and disfigurement and to the fact that this is something the plaintiff will live with for the rest of his life, an appropriate figure for general damages is $50,000.00.
17. Counsel for the plaintiffs proposed, and counsel for the defendant did not argue with, an apportionment of that general damages figure as to 50% for the past and 50% for the future. That ratio seems to me appropriate. On that basis, and bearing in mind that the general damages for the past are slightly more heavily weighted towards the period immediately after the injury, I award $6,000.00 for interest on general damages.
18. Past treatment expenses are agreed at $3,440.20, which I award. Of that sum $1,600.00 approximately has been paid by the plaintiff’s parents and the rest has been paid by Medicare and by the family’s health fund, MBF. The amount paid by the parents attracts interest at the prescribed rate of 9% for the first three years and 10% for the period since 2001. I award $1,300.00 for interest.
19. There is a claim for future treatment expenses. There is no specific evidence that the plaintiff will require any more treatment, although Dr Drielsma, I accept, told the plaintiff’s mother that the fact that the skin on the back of the plaintiff’s hand is now what was originally abdominal skin has increased the risk of skin cancer if the skin is exposed to sunlight. That is not something about which there is any evidence as to probabilities. I am not persuaded that I can put a dollar figure on the additional sunscreen that the plaintiff may have to apply to the back of his hand or to his abdominal scarred area over the years, but it does seem to me that the evidence justifies a small allowance by way of a buffer for the possibility of future expenses, for which I award $1,500.00.
20. The Griffiths v Kerkemeyer component of the claim was the subject of a considerable amount of evidence by the mother, including cross-examination. Counsel for the plaintiff has provided mathematically calculated particulars arriving at a total of $10,440.00 for care provided by the plaintiff’s parents, his mother in particular, for the period up to 29 May 1999, after which there is no claim.
21. There was some challenge by counsel for the defendant in cross-examination and in submissions to the number of hours per day which the plaintiff’s mother estimated she spent. There is no challenge to the claimed rate of $20.00 per hour for the services. It does not seem to me that I can approach the calculation in a mathematical way, but I am satisfied that the plaintiff’s mother spent in the first year or so after the plaintiff’s birth considerably more time attending to his care than would have been the case if the back of his hand had not been injured. I award $7,500.00 for the past Griffiths v Kerkemeyer component of the damages. That component attracts interest at the prescribed commercial rates of 9% and 10%. For interest on the past component to date, I award $6,000.00.
22. The individual components are therefore:
General damages $50,000.00
Interest thereon $6,000.00
Past treatment expenses $3,444.20
Interest on the part of that sum paid by the parents $1,300.00
Future expenses $1,500.00
Griffiths v Kerkemeyer component $7,500.00
Interest on that component $6,000.00
Total $75,744.20
There will be judgment for the plaintiff for that amount.
23. I order that the defendant pay the plaintiff’s costs. I further order that the defendant pay the Medicare charge amount of $60.45 direct and that an amount of $1,755.00 be paid out of the moneys paid into court to the plaintiff’s solicitors for reimbursement of the amounts paid by MBF.
24. The balance of the judgment is to be paid into court by the defendant for payment out to the Public Trustee for investment for the benefit of the plaintiff.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 3 December 2007

Counsel for the plaintiff: Mr DS Stanton
Solicitors for the plaintiff: Dibbs Abbott Stillman
Counsel for the defendant: Ms HL Donohoe
Solicitors for the defendant: ACT Government Solicitor
Date of hearing: 3 December 2007
Date of judgment: 3 December 2007