Thompson v Dr Haasbroek [2010] NSWSC 111 (29 March 2010)

Last Updated: 30 March 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Thompson v Dr Haasbroek [2010] NSWSC 111


JURISDICTION:
Professional Negligence List

FILE NUMBER(S):
20113/2009

HEARING DATE(S):
16-20/11/09; 23-24/11/09; 27/11/09; 30/11/09 - 4/12/09

JUDGMENT DATE:
29 March 2010

PARTIES:
Sandra Thompson (Plaintiff)
Dr Johannes Haasbroek (Defendant)

JUDGMENT OF:
Davies J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
D E Graham & AGC Stenhouse (Plaintiff)
G B Evans (Defendant)

SOLICITORS:
Maurice Blackburn Lawyers (Plaintiff)
TressCox Lawyers (Defendant)


CATCHWORDS:
NEGLIGENCE - medical negligence - general practitioner - failure to detect and diagnose cervical radiculopathy - Plaintiff goes on to develop myelopathy as a result of undiagnosed underlying pathology – underlying pathology not caused or able to be prevented by the Doctor - causation – whether if diagnosed in due time the Plaintiff would have avoided permanent injury - earlier treatment would have avoided some permanent disabilities - multiple causes of Plaintiff's disabilities - assessment of damages where multiple causes.

LEGISLATION CITED:
Civil Liability Act 2002

CATEGORY:
Principal judgment

CASES CITED:
Ren v Mukerjee [1996] ACTSC 119
Woolworths Ltd v Lawlor [2004] NSWCA 209

TEXTS CITED:
A Graham Apley, Concise System of Orthopaedics and Fractures, (1999) Butterworths, England.

DECISION:
(1) Judgment for the Plaintiff in the sum of $290,542. (2) The Defendant is to pay the Plaintiff’s costs.



JUDGMENT:

- 1 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

PROFESSIONAL NEGLIGENCE LIST

DAVIES J

29 MARCH 2010

20113/2009 THOMPSON v DR HAASBROEK & 2 ORS

JUDGMENT

1 In 2003 the Plaintiff Sandra Thompson consulted a number of doctors at the Leeton Family Clinic for symptoms she was experiencing including headache, neck ache and pain in the right arm. Ultimately in July 2004 she was diagnosed by a specialist neurologist with cervical myelopathy secondary to compression of the cervical spine by osteochondral bars and disc bar protrusions. Although she was operated on fairly soon afterwards and again about 6 months later, she has been left with some permanent deficits in the form of incomplete quadriplegia.

2 The issues in the proceedings concern whether she was properly diagnosed and treated by the Defendant Dr Johannes Haasbroek during 2003 and 2004 and whether, if she had been so diagnosed and treated, she would have avoided the permanent medical problems that she now suffers from.

3 Mrs Thompson’s case, in short, is that Dr Haasbroek ought to have diagnosed her suffering from cervical radiculopathy, particularly when she consulted him on 26 June 2003. Her case is that if that had been identified she would, in a relatively short time, have been sent for a CT scan which would have demonstrated the compression of the cervical spinal cord from C4 to C7. That would have led to her being referred to a neurologist and probably, in turn, a neurosurgeon, for the neurosurgeon to carry out the sort of operation that Mrs Thompson underwent in July 2004 and subsequently.

4 The case was defended, first, on the basis that there was no breach of duty by Dr Haasbroek. Involved in that defence was the very significant factual dispute about what symptoms Mrs Thomspon had complained about each time she saw both Dr Haasbroek and the other doctors. In particular, Mrs Thompson asserted that the medical records containing the contemporaneous computer entries by Dr Haasbroek and the other doctors did not accurately reflect what she had said to the doctors.

5 Dr Haasbroek also defended the claim on a causation basis. It was said on his behalf that, if he had treated the Plaintiff in the way she claims she ought to have been treated during 2003, there would not have been a different outcome even if she had been operated on earlier in 2004 than in fact occurred.

Background

6 Mrs Thompson was born in 1950 and was, at the time of the hearing, 59 years of age. She is the mother of 7 children and she has lived most of her life in Leeton.

7 Only 3 things in her life prior to these events are of any relevance. The first is that she was injured in a motor vehicle accident in 1986 and suffered what was thought to be a whiplash injury. She had episodes of neck pain from time to time over the years which were treated with hot packs, massage, simple analgesia, chiropractic treatment and exercise, as well as swimming.

8 In 1996 the pain from that became so severe that she required admission to Leeton District Hospital for a number of days. At the time the neck pain radiated down her right arm but it responded to aggressive analgesic treatment and physiotherapy. She had x-rays at that time which showed spondylitic changes as well as changes suggestive of an old injury.

9 Mrs Thompson was a hairdresser by occupation and whether for that reason alone, or in conjunction with the injury in the motor vehicle accident, from time to time she experienced neck pain after working as a hairdresser. From time to time the neck pain was such that she had to cancel clients or reschedule appointments for clients.

10 The second event of significance was the loss of her son Clint in the Bali bombing in October 2002. The matter has some relevance to the issues in the present proceedings because of the resultant psychological effects upon Mrs Thompson that were still present during 2003 and 2004. She was taking Zoloft (an antidepressant) at least since October 2002.

11 The third matter of relevance is that Mrs Thompson had osteoarthritis in both her knees. At the time of the events complained of she was intending to have both her knees replaced. Indeed, she had been told by a Dr Kirwan in 2002 that both knees needed replacing. By the end of 2002 she had been prescribed Vioxx (a non-steroidal anti-inflammatory drug, now discontinued) and Tramal (an opioid analgesic) for the pain and discomfort she experienced in her knees by Dr Ross Ingram in the Leeton Family Clinic and also by Dr Haasbroek.

12 The most significant consultation for the events complained of was that of 26 June 2003. This is for a number of reasons, not the least of which is that both Mrs Thompson and Dr Haasbroek agree that on that occasion she reported pain in the neck radiating down the right arm. What was complained of at other consultations was far more contentious and involves the determination of which evidence is more reliable.

13 The case Mrs Thompson makes is that on the basis of what Dr Haasbroek recorded in his notes of 26 June 2003 he should have acted in the way I have referred to earlier, with the result that matters would have turned out differently for Mrs Thompson and, in particular, that she would not be left with the disabilities that she now has.

14 It is necessary, however, to examine the evidence of the other consultations during 2003 and 2004 commencing in February 2003 when Mrs Thompson says that she first complained of problems associated with her neck and arms.

15 The 2 principal conditions under consideration in the present case are radiculopathy and myelopathy. Radiculopathy is a disease, or a diseased condition, of the nerves and nerve roots, particularly the spinal nerves. On the other hand, myelopathy is a term that refers to pathological changes in the spinal cord. In the present case where the 2 conditions have a common cause, namely degenerative disease in the cervical spinal column, it is that common cause which results in compression of the cervical spinal nerve roots (that produces the radiculopathy) and ultimately compression of part of the spinal cord (which results in myelopathy).

The consultations

16 It appears from the records of the Leeton Family Clinic that the first time the Plaintiff consulted a doctor at that clinic was when she saw Dr Haasbroek on 6 October 2002. On that occasion it was in respect of a dog bite to her left hand.

17 She then saw Dr Ross Ingram (whom she had known since childhood, and who is now deceased), and one of those consultations was in respect of problems with her knees. She saw Dr Haasbroek again on 18 December 2002 for problems with her legs.

18 The Plaintiff says that she first attended the clinic with neck problems on 4 February 2003 when she saw Dr Ingram. She said she had a stiff painful neck with the top of her neck being painful as well as the back of the head. At the time she gave her evidence she could not remember how long the pain in the neck had been present. She said it was not responding to the usual measures she took when she had neck pain (described in paragraph 7 above) and she said it was associated with new problems being clawing of the right hand and pain going down to her right arm.

19 She says that she told Dr Ingram:

I am having trouble with my neck. It is aching all the time and my right arm is cramping up. I have to physically unclaw my right hand with my left hand.

20 She showed him how she unclawed the right hand. She further told Dr Ingram:

When my right hand closes up into a claw, it is like a ligament connecting my neck to my hand is being pulled, forcing my right hand to claw. I feel pain from my neck to my hand with this pulling sensation. I have to rub my arm to relieve the pain going down into my hand. It’s happening about 3 or 4 times per day. My usual treatment for neck pain is to use a hot pack, massage and Panadol, but this treatment is not working.

21 Mrs Thompson told Dr Ingram that she had had trouble with the pain in her neck for a long time because of her work as a hairdresser but she said recently the pain had been building up and the usual treatment not working. She also made reference to the pain in her left leg. She said that Dr Ingram examined her shoulders and neck and her legs, hips and knees. He told her that she definitely needed to have knee replacements.

22 Mrs Thompson said that Dr Ingram said:

I think you are suffering from a tension headache relating to the death of your son.

He prescribed Panadeine Forte and Vioxx, but she had already been taking Vioxx for her leg and knee pain.

23 Dr Ingram wrote the following in the computerised notes:

History:

CNS:

Headache. Neck stiffness. 1 week.

Occip to bitemporal

...

Diagnosis:

Tension headache

It was also noted that Panadeine Forte, Vioxx and Monoplus (an anti-hypertensive drug for Mrs Thompson’s high blood pressure) were prescribed.

24 Mrs Thompson said that the neck pain was not relieved by the medication that Dr Ingram prescribed.

25 Her next consultation at the Clinic was with Dr Haasbroek on 27 April 2003. Mrs Thompson said that she told Dr Haasbroek what she had told Dr Ingram on 4 February 2003. She also told him that the painkillers Dr Ingram had prescribed were not working and she said “I have lightning bolts in front of my eyes and I can’t see properly.”

26 She claims that Dr Haasbroek said:

You are struggling with the death of your son. You’re suffering from migraines.

She replied:

If I am, they must be painless because I don’t have any headaches. I have a sensation of lightning bolts in front of my eyes after I have been sitting at a computer for a long time, but I haven’t had any headaches. I am probably not handling the death of my son, but I am still working and doing my job.

27 She claims that Dr Haasbroek responded:

No, you’ve got migraines.

He prescribed Sandomigran (a prophylactic drug for migraines) and said, “take these tablets at night and it will stop you getting migraines.”

28 The notes made by Dr Haasbroek relevantly say this:

Quite depressed and not coping so well with the death of her son.

...

Diagnosis:

Migraine

The notes also disclosed that Dr Haasbroek increased the dosage of Vioxx, increased the dosage of Zoloft, increased the dosage of Tramal and gave Mrs Thompson prescriptions for Livial (a hormone replacement therapy drug), Monoplus and Lasix (a diuretic).

29 Mrs Thompson says that the treatment prescribed by Dr Haasbroek did not remove the neck pain – rather it got worse and was constant. She said the pain going from her neck into her right hand was intermittent but the frequency and pain of it increased. She said the pain was associated with tingling like electric shocks. She said she experienced difficulty undressing, particularly removing jumpers, pullovers, skivvies and the like because of the pain she felt from the neck down to her hand when she moved her arms above her head.

30 In May 2003 she said she attended a training conference for Centrelink in Queanbeyan where desks were set out in a U shape. From where she was sitting she had to turn her neck to see the whiteboard and the neck pain was worse after the conference.

31 She returned to see Dr Haasbroek on 26 June 2003. She claims that she said to him:

The tablets are not working. I am getting pain in my neck radiating down my right arm and into my hands. My neck and right shoulder are aching.

32 She says that she “again told Dr Haasbroek” that her right hand was clawing up and that she had to unclaw physically using her left hand. She said:

Sometimes, my right hand goes into spasm and I can’t mentally unclaw it. I have to use my left hand to manually unclaw my right hand.

33 She said that Dr Haasbroek stood behind her while she was seated and asked her to raise her right arm. She said she could not elevate her right arm above the horizontal. When she tried she felt pain in her neck going down into her shoulder and into her right hand. After he examined her he said to her:

You should have an injection of cortisone into your right shoulder.

She replied that she did not think so because it hurt too much – she had had one in her big toe and it hurt. She says that Dr Haasbroek gave her a prescription for the cortisone but she never got it filled.

34 Dr Haasbroek’s notes disclose the following:

Pain in neck and radiating down right arm. Panadeine does not work.

Migraine gone on treatment. Zoloft working because mood OK.

Examination:

...

Musculo-Skeletal:

Right shoulder OA with cracking and cannot elevate shoulder above 90 degrees

Stiff and tender neck

Diagnosis:

Neck pain with referred arm pain

Management:

Advised to have intra-articular injection into shoulder and neck (soft tissue injection) 2 amps Celestone and 10 mlo (sic) Marcaine

...

It is accepted that OA stands for osteoarthritis.

35 Mrs Thompson said that she subsequently saw a chiropractor, Mark Carter, on 26 and 27 June and 2 July 2003 for treatment of the neck pain. The notes from the chiropractor’s practice show that in fact on 26 June she saw a locum at the practice. The handwritten notes are not easy to read but with the assistance of a typed version of those notes provided by the chiropractic practice it would seem that they read as follows:

Training. Constant R arm ache/pain 2/52 intensely 8 hrf/day + driving c5lpRsh[oulder] ROM [either range of movement or restriction of movement] + home exercises. GP this pm – nsaid

Although there is no express mention of neck pain, the reference to c5 could be the way the chiropractor has noted such a complaint.

36 Mrs Thompson said that after she had seen Dr Haasbroek on 26 June and for the next 6 months she continued to have neck pain going down into her right hand. She coped by taking the painkillers she had been prescribed, using massage, heat packs and going to the chiropractor (in fact in 2003 she only attended on the 3 occasions just mentioned). She said she felt like a hypochondriac because, despite going to see doctors about the pain, they were ignoring it and not acknowledging it. She thought they were focussing on how she felt about her son’s death and problems in her marriage. She felt that they did not believe her when she said she had pain in her neck.

37 The next consultation to which the Plaintiff refers is one on 27 January 2004 with Dr Haasbroek. However, the Leeton Family Clinic records shows that she had consultations as follows: 25 September 2003 (Dr Haasbroek for the removal of skin tags), 4 November 2003 (Dr Gerald Yuen for 4 days of nausea, lethargy and bloating), 7 November 2003 (Dr Haasbroek for Urinary Tract Infection), 13 November 2003 (Dr Haasbroek to obtain a certificate regarding her son) and 2 January 2004 (Dr Haasbroek for sore throat, fever and pain in the pelvic region and in her vagina).

38 Mrs Thompson said that she returned to see Dr Haasbroek on 27 January 2004. She was having pain in her knees but she also had continued pain in her neck going down into her right hand. She said the pain in her knees was different from any pain she had experienced before, and was different from the pain she experienced when Dr Kirwan told her that she needed knee replacements. That pain had been an ache in the front and side of the knees whereas the new pain she felt in January 2004 was sharp and at the back of the knees running down to the feet. Mrs Thompson said Dr Haasbroek ordered x-rays of her knees and her shoulders.

39 The notes of Dr Haasbroek for that consultation relevantly say this:

Severe bilateral knee pain.

Has been told by Dr Kirwan 2 years ago that she needs 2 KRs.

Multiple sun spots cryo’d

Actions:

Diagnostic imaging requested: x-ray – knee (L), knee (R)

It is accepted “2 KRs” is shorthand for 2 knee replacements.

40 Mrs Thompson says that on 2 March 2004 she consulted Dr Yuen at the Leeton Family Clinic. She said to Dr Yuen:

I have neck pain that is going into my right shoulder and down my right arm. I have a very weird/strange sensation on the top right hand side of my chest. If I didn’t know any better I would think that the heart was on the wrong side of my body, on my right side near my shoulder. It feels like I am having electric shocks in that area. I am also having a weird sensation in the back of my throat.

41 Mrs Thompson said that Dr Yuen examined her chest with a stethoscope, looked at her ears, nose and throat and said:

Your heart isn’t on the right side of your chest. I don’t know what it is, it may be asthma.

He ordered a chest x-ray of her lungs which was carried out but she says that nobody ever told her the results.

42 The notes of the Leeton Family Clinic largely accord with this account. They relevantly read as follows:

Getting muscular shoulder and neck pain. Also right chest funny sensation thought it was asthma. Assoc cough and sore throat and funny sensation throat.

The notes say that a chest x-ray was requested. They do not record the neck pain going down her right arm.

43 Mrs Thompson next saw Dr Hassbroek on 24 March 2004. However, prior to that date there is an entry in the medical notes on 14 March 2004 by Dr Hassbroek which reads: “documents saved – both knees, shoulders”. This appears to be a reference to a radiology report of x-rays to Mrs Thompson’s knees and shoulders of 9 February 2004. On that report next to the word “REFERRER” is typed “Dr Belinda BAILEY leetonmc@ promedicus.net”. That has been crossed out and the name Dr Stephankova written in handwriting. No one was able to explain why those doctors’ names appeared on the document, nor how those x-rays might relate to the notes of 27 January 2004 (para 39 above). The report in relation to the shoulders simply says:

The acromioclavicular and glenohumeral joints appear normal. No rotator cuff calcification is seen.

44 Mrs Thompson says that when she presented to Dr Hassbroek on 24 March 2004 she was using a walking stick and he said to her “you look funny on a walking stick”. She replied “I cannot keep my balance and I am aching all over. I am having pain from my head to my toes with a very bad pain in my arm and my left foot is numb and painful.”

45 Mrs Thompson says that she cannot recall Dr Haasbroek examining her, and he certainly did not examine her left foot, nor did he advise her of any diagnosis. She says that he did not tell her that she had depression or anything else.

46 The notes for that day relevantly say:

Aching all over

Examination:

General:

BP (sitting): 130/70

CVS:

Heart sounds: x2

Respiratory: No respiratory distress. No recession. Not using accessory muscles. No wheeze.

GIT: No abdominal tenderness. No distension. No Hepatomegaly. No splenomegaly.

Reason for visit:

Depression

47 As Mrs Thompson makes clear in her statement Dr Hassbroek ceased her prescription of Zoloft and prescribed Edronax which is a different anti-depressant drug.

48 Mrs Thompson then went to Mark Carter’s chiropractic practice on 7, 14 and 21 April 2004, she says, for treatment of her neck pain. The notes for the locum at the practice on 7 April read “CX [cervical]/shoulder p[ain] – tingling both arms.

49 She said the pain did not go away. The numbness in her left leg gradually crept up her leg and she started feeling numb in her right foot. She felt weak in her legs at work. She held onto furniture to help move around the office. She started being woken by a burning sensation across the whole of her abdomen. The numbness seemed to be spreading upwards to her abdomen. She started feeling a tingling sensation in both arms down to her hands as if her arms or legs had gone to sleep and when the pressure was relieved there was a tingling sensation.

50 She said that she went to the Leeton Medical Centre on 23 April 2004 for a flu shot. She attended that Centre again on 24 May 2004 to get a referral to see Dr Carroll, a cardiologist, as she was planning to have a knee replacement and she had to have her heart checked out for that purpose. Her explanation for attending the Leeton Medical Centre on those occasions was that it was across the road from Centrelink where she worked.

51 Mrs Thompson says that she went to see Dr Robert Byrne, a General Practitioner, on 2 and 5 June 2004. She saw him because the Leeton Family Clinic was closed. She said that she told Dr Byrne:

My neck and right shoulder are painful and my right arm is going numb. My left leg is numb and my right leg is painful. The numbness seems to be spreading to my stomach.

52 Dr Byrne examined her on the examination bed. He moved her legs and raised each of them off the bed. He said, “Yes, I can see you need knee replacements.” He then briefly examined her neck and after the examination he said, “I think your stomach is going numb because you have your belt too tight. It is problem with a lot of Coleambally farmers”.

53 Mrs Thompson says that she cannot remember whether the conversation in the examination took place on 2 or 5 June or whether parts of it occurred over both consultations.

54 The notes made by Dr Byrne of these consultations are as follows. For the consultation on 2 June all that is recorded is Mrs Thompson’s blood pressure. For the consultation on 5 June the following appears:

Actions:

Diagnostic imaging requested: US-leg (L) Doppler

Prescriptions printed:

CELEBREX CAPSULE 200MG USE. mdu

? DVT NOT ON ANTIDEPRESSANTS CLINT THOMPSON’S MOTHER

Celebrex is a non-steroidal anti-inflammatory drug often used for osteoarthritis.

55 After consultations with Dr Byrne, she continued to experience pain and numbness, poor balance and weakness. The numbness progressed. She felt numb up to under her armpits and across her chest. She felt tingling in her right leg and numbness in her left leg and right foot. She felt she had numbness and tingling in her arms. She found it progressively more difficult to pass a bowel motion but she never lost control of her bowels. She lost the urge to urinate. This problem first started in March 2004 and became progressively more noticeable.

56 Mrs Thompson says that she saw Mark Carter (the chiropractor) on 26 June to help with the pain. At the end of the consultation he said to her, “Sandra, you really need to go to the doctor and get a CAT scan.”

57 Mark Carter’s notes for that day read as follows:

Walking stick. Feels numbness and pain from T4 down. Prog, worsening last month: C6 pls cc/tptlx/suggest further medical advice.

58 On 29 June 2004 she went to see Dr Haasbroek. She said to him, “I have neck pain radiating to my arms, numbness under my armpits down to my feet, tingling in my arms and legs and I’ve lost my balance.”

59 Dr Haasbroek examined her and said to her, “Your reflexes are alright. I can’t find anything wrong. I think you have depression.” She said that this was the first time Dr Haasbroek had told her that she had depression (cf in this regard paras 4, 5 and 46 above). She got upset and said, “Bernie, I am sad but I am sick. I want a CAT scan.” Dr Haasbroek gave her a referral for a CAT scan but did not say it was urgent. The CAT scan was performed at Griffith Base Hospital on 2 July 2004.

60 Dr Haasbroek’s notes for that consultation are more extensive than earlier notes because they contain the details of the neurological examination that he conducted on that day. Omitting those results (which do not disclose any neurological abnormalities) the notes relevantly read:

Marriage over and quite stressed about it.

Numb from under arms to about hips. Both legs up to feet. No pain but paraesthesiae. Feels off balance and feels like she may fall over.

Has sore neck.

No weakness in hands.

No headaches.

...

Actions:

EDRONAX TABLET 4MG ceased.

Diagnostic imaging requested: CT – spine – cervical, CT – spine – lumbar, CT – spine – thoracic.

61 Mrs Thompson said that she had to see a cardiologist before her knee replacement surgery. She saw Dr Peter Bortz at Griffith Base Hospital on 7 July 2004. He carried out a number of tests and asked who had been looking after her. She told him it was Dr Haasbroek.

62 She then said to him, “I have neck pain radiating to my arms, numbness under my armpits down to my feet, tingling in my arms and legs and I’ve lost my balance. I am having problems with my bowel motions. I had a CAT scan of my neck on 2 July 2004 at this hospital.”

63 Dr Bortz then apparently made some enquiries on the telephone about the CAT scan results and told Mrs Thompson that she needed an emergency MRI scan. He made arrangements for her to see a neurologist, Dr Ron Brooder, in Albury, after the MRI scan which was to be performed the next day.

64 Mrs Thompson had the MRI scan and then saw Dr Brooder. He arranged for her to be taken to Melbourne immediately by ambulance for an operation by Dr Myron Rogers, a neurosurgeon. The operation was an anterior decompression at C5/6 and C6/7, and was carried out on 13 July 2004.

65 Mrs Thompson underwent rehabilitation and was ultimately discharged home on 17 August 2004. She attempted to return to work on 7 and 11 October 2004 but was not successful in being able to complete the graduated return to work programme.

66 Her condition deteriorated and she was sent back to see Dr Rogers by Dr Brooder in November 2004. An MRI was again performed which demonstrated that there was no cord compression at the levels at which the operation had been carried out. However, as she had a congenitally small cervical canal it was decided that she should undergo an posterior decompression of the cervical canal. That was performed by Dr Rogers on 2 December 2004.

67 It seems to be the position that her symptoms and disabilities have stabilised after the second operation.

Assessment of witnesses

(a) Mrs Thompson

68 I did not find Mrs Thompson to be a particularly satisfactory witness and I consider that a number of aspects of her evidence were unreliable. In reaching that view I take into consideration that on a number of occasions during her evidence she was in obvious discomfort and distress which occasionally required an interruption to her evidence by short breaks. I also bear in mind the cautionary words of Miles CJ in Ren v Mukerjee [1996] ACTSC 119 at [90]–[91]:

[90] ... It needs to be said clearly in the light of trial experience that to expect witnesses to remember with precision and objectivity events which occurred so long ago, over so short a period, in circumstances of such stress for some of them and, in certain instances, where some of them have an interest in the eventual findings of the Court, is to expect the humanly impossible. Some of the witnesses were asked to recall the events only recently. Others, including Dr Mukerjee, have almost certainly had the events in their minds over the years more or less continuously, with the virtual inevitability that reflection has built upon perception and that what now passes for recollection may be indistinguishable from belief. Eventually, mistaken belief which is nonetheless genuine may displace accurate data recorded in the mind by way of observation or fill gaps in the mind where no data was ever recorded.

[91] It also needs to be said that allowances may have to be made for what a witness says during long and stringent cross-examination. When a cross-examiner succeeds in confusing or exhausting a witness, with the result that the witness can be induced to give answers which are self-contradictory or against established facts or otherwise plainly wrong, it does not necessarily follow that the rest of the evidence of the witness needs to be rejected.

69 Nevertheless, from almost the outset of the cross-examination by Mr Evans for Dr Haasbroek (which cross-examination was conducted politely and without any aggression) she was unusually defensive. On a number of occasions she repeatedly gave non-responsive answers to questions which had to be repeatedly put. The impression that I gained was that Mrs Thompson did not want to answer those questions.

70 Of much more significance was the fact that Mrs Thompson was clearly confused on a number of occasions in relation to when events occurred or when particular symptoms commenced. On a number of occasions she gave inconsistent evidence about these matters.

71 Another matter which caused me great concern was that the Plaintiff claimed not only that Dr Haasbroek did not accurately record the matters and symptoms she complained about on her various consultations with him, but also that Dr Ross Ingram, Dr Gerald Yuen and Dr Robert Byrne failed to record matters and symptoms of which she complained to them. To a lesser extent, the same issue arose with regard to what was recorded by the chiropractor Mark Carter and his locum.

72 One significant matter in this regard was Mrs Thompson’s assertion that from the time she saw Dr Ingram on 4 February 2003 she complained about her right hand clawing up, necessitating that she or some other person unclaw the hand physically. She had referred to this in paragraph 32 of her main statement of evidence.

73 Her own counsel, Mr Graham, asked her about that paragraph in her evidence in chief and this exchange occurred:

Q. Now just going forward again to par 32, you talk about clawing and unclawing of your right hand. What do you mean by "clawing" of your right hand?

A. Exactly that, and it would be something that I couldn't undo mentally and I'd be working at Centrelink and it would just happen and the pain would come from down my neck, down my arm and sometimes I'd have to say to my customer, oh, quick pull my finger out because I couldn't mentally unclaw it.

HIS HONOUR

Q. So it was your index finger that was becoming bent over?

A. Yes.

Q. In a clawed position?

A. How you can normally mentally do something I couldn't mentally it had to be pulled and I - I wouldn't have the strength here so I'd have to get somebody here, you know, unclaw my hand, pull my hand and I'd feel the pain coming right down here and I'm not a doctor and I'm probably using the wrong terms but it felt to me like ligament pain but that's probably not the right thing, it was coming right from in my neck down and I could not undo that with my mind.

It is to be noted that Mrs Thompson gave evidence that she commenced working at Centrelink on 29 June 2003 (although I note in passing that that was a Sunday).

74 Mr Evans cross-examined about this and the following evidence was given:

Q. When you were giving evidence yesterday to questions that Mr Duncan Graham was asking you, remember giving some evidence about clawing of your right hand?

A. Yes.

Q. And again you were endeavouring to answer the questions as truthfully and as accurately as you could, weren't you?

A. Yes, I did.

Q. And you were asked - page 26 - what you mean by clawing and you told your counsel exactly that and I would be working at Centrelink and it would just happen and the pain would come down from my neck, down my arms and sometimes I would have to say to my customer oh quick pull my finger out because I couldn't mentally unclaw it - remember that evidence?

A. Yes.

Q. And you were endeavouring to be as accurate as you could be giving that answer?

A. Yes.

Q. Your clear recollection was that you couldn't mentally unclaw that hand, that's what you said?

A. That's correct.

Q. And when it happened you would have to say to a customer at Centrelink to help you to unclaw it?

A. That's correct.

Q. And you went on to say in an answer later that again you couldn't mentally do it, you wouldn't have the strength so you would have to get someone to do it, remember that?

A. Yes, that's correct.

Q. And that somebody would be a Centrelink customer, wasn't it?

A. That's correct.

Q. That's your evidence to his Honour, this clawing of your hand used to happen at Centrelink and because you didn't have the strength you needed to rely on Centrelink customers to help you to unclaw it?

A. That's correct.

75 Mr Evans returned to this matter at a later time and the following evidence was given:

Q. At no time when you saw Dr Ingram did you ever make any complaint of your hand clawing up, did you?

A. It had not happened very much with Dr Ingram and the pain was only radiating down, tingling in my arm which (sic) I saw Ross, I had tingling in my arm.

Q. May his Honour assume from that answer you drew the distinction between "only tingling in your arm" as distinct from the clawing I was asking you about and thus the clawing had not happened when you saw Dr Ingram and you did not explain to him about it; is that the picture you seek to paint?

A. No, I don't paint pictures.

Q. Are you telling his Honour because there was only tingling in your arms it was not to Dr Ingram that you complained of clawing in your hand, is that correct?

A. No, it is not correct. I had different symptoms on different days, I would go to the doctors and tell them progressively what was happening to me.

Q. You certainly never told the late Dr Ingram anything about the clawing of your hand, did you?

A. I can't see how you can make these statements, sir.

HIS HONOUR:

Q. Mrs Thompson, you need to answer the questions if you are able to do so. It has been put to you, you never told Dr Ingram about the clawing in your hand, is that right, do you remember?

A. I think I did, your Honour.

EVANS:

Q. When you say you think you did, you are really just guessing, aren't you?

A. No.

Q. You have no recollection?

A. No.

Q. You have no recollection...

A. Yes ...

HIS HONOUR:

Q. Mrs Thompson, you must wait for Mr Evans to finish the question.

A. Yes.

EVANS:

Q. You have no recollection of telling the late Dr Ingram about that symptom of hand clawing, do you?

A. Yes, I am sure I told Ross.

Q. The hand clawing of which you have told his Honour didn't happen at least on your version of things yesterday until you were working at Centrelink, did it?

A. No, I don't think that's true. I said it happened when I was working and customers used to release it. I don't think, your Honour, I said it only happened there. I said it happened when I was at work.

Q. You said it happened when you were at work at Centrelink, didn't you?

A. But I was not time specific.

Q. The precise context in which you put this hand clawing yesterday was it happened at Centrelink, wasn't it?

A. Yes, it did happen in the office at Centrelink.

Q. You said "I would be working at Centrelink and it would just happen", didn't you?

A. That's absolutely a correct statement.

Q. The question you were asked, may I remind you, was: "What do you mean by clawing of your right hand" and the answer you gave was: "Exactly that" and then you identified where and in what circumstances it happened, didn't you?

A. That's correct, your Honour.

Q. You did not add to your answer, no-one interrupted you while you were giving it, that it happened before Centrelink and at other times, did you?

A. No sir.

...

Q. When your Counsel asked you what you meant you took the opportunity to make precisely plain by the words "exactly that" what you could not undo when it happened, and who or the circumstances in which it would be alive yesterday you took that opportunity yesterday, didn't you?

A. Yes, but I had told Ross my arms were tingling and my hand was cramping, tingling.

Q. You never told Dr Ingram, the late Dr Ross Ingram, that your hand was clawing and that this happened in circumstances where you did not have the strength to unclaw it and you needed the assistance of workers or family or relatives to unclaw it, you never told him anything like that, did you?

A. Maybe I didn't use the same terminology but it proceedingly got worse and Ross had died then but it had started when I saw Ross and I had told him about my arm, I had told him about my arm cramping and closing up and by the time as it progressed on it was not cramping, it was clawing and it was clawing like that, your Honour (indicating). But when I was talking to Ross it is tingling, cramping and tingling, and I know I told Ross that it was happening.

Q. Your account of what you told Dr Ingram in your statement - and may I invite you to look at paragraph 32 of your statement; I don't want to be mathematical about it but virtually the whole of paragraph 32 of your statement is taken up with the right arm cramping up, that you have to physically unclaw it, it closes into a claw like a ligament". I won't read it all to you. Virtually the whole of 32 is about your hand cramping, clawing, so you have to physically unclaw it. Do you see that?

A. As I said, I did tell Ross.

Q. Mrs Thompson, do you see it there first?

A. Yes. I did tell Ross.

Q. You say that is the entire symptomatology that you recall relating to Ross Ingram on that date, do you?

A. Well, why would I make that up?

Q. There is nothing there about tingling, is there?

A. I just used another word, I don't use the same words all the time. My feet and arms are tingling today so today I used the word "tingling", other days I say "electric shock".

76 Mr Evans then put questions based on the absence of any reference in the various doctors’ notes about hand clawing, and then the following evidence was given:

Q. That could be the same reason why it's not on Dr Ingram's notes on 4 February 2003 because you never told him either?

A. No, that's not true.

Q. It could be why it's never on Dr Haasbroek's notes in April 2003 or June 2003 because you never told him in the first place?

A. No, your Honour, that's not true.

Q. See, if this clawing business happened in the circumstances in which you told his Honour yesterday at Centrelink it couldn't possibly have happened at the time you saw Dr Ingram on 4 February 2003, could it, ma'am?

A. How many times? Your Honour, I - I'm getting confused because I'm answering the same questions over and over. Could you repeat that question as a Yes or No answer?

Q. A Yes or No answer? Given that you didn't start working at Centrelink until 29 June 2003 and the account of this clawing that you gave yesterday happened while and during your work at Centrelink?

A. It was also happening...

Q. Bear with me please, Mrs Thompson, I just want to put your precise words to you. It happened while you would be working at Centrelink and it would just happen?

A. That's correct.

Q. And it would come down your neck, your arm and sometimes you would have to say to a customer to pull it out. If this happened in those circumstances given that you didn't start working at Centrelink until 29 June 2003 it is quite impossible for you to have made any such complaint of any such symptom to Dr Ross Ingram on 4 February 2003, isn't it?

A. No, it's not, your Honour, because my office at Riverina Community College is right next door to Centrelink and my job at Riverina Community College was to deal with Centrelink so I was actually in both offices in and out, in and out, in and out. So if I've used the word Centrelink and not Riverina Community College half the time I was in one office, half the time I was in the other office and it was obviously by the dates happening when I was at Riverina Community College and the whole jobs were all intermittent with JobNetwork so if I've said one over the other it would be just a mistake. Not one that was a lie, just a mistake.

Q. Mrs Thompson, you'll say anything...

A. No, that's not true...

Q. ... you'll say anything to justify your version of what you told ...

A. No, that's not true...

Q. ... of what you told Dr Haasbroek from time to time, won't you?

A. No, that's not true. When I say next door I really mean next door in a small country town.

...

Q. So the place at which you say this clawing happened so badly when you needed clients to unclaw your fingers was Riverina Community College, was it?

A. I can remember it happening at Centrelink.

Q. But you are telling his Honour you can remember it happening at Riverina Community College?

A. No, you said that. I was going by dates and correcting something by dates, your Honour, it's not my intention to - to be incorrect on dates because dates are factual and all of this was just happening over the time and the dates for Riverina Community College when I worked there. I started with Centrelink in May of 2003 and I can remember distinctly it happening in Centrelink. I was with - went and saw Ross in February and it was happening in February. I don't remember anybody having to help me at the beginning in February. I could undo it myself but later on I would have to get somebody to help me.

...

HIS HONOUR

Q. Doing the best you can, Mrs Thompson, when do you think it was for the first time you had to ask somebody else to unclaw your hand?

A. I don't think it was till early 2004.

Q. And did it concern you that it had got to that point?

A. It was horrifying. I was - I didn't know what was happening. I thought, as I've stated I thought it was a ligament and my dad, who's a barber by trade when he was in his early 20s, he even said to me some time ...

...

Q. My question was do you think the first time you had to get somebody else to unclaw your hand and that you think might have been early 2004 and then I asked you did that concern you and you said, yes, you thought it was a ligament?

A. From holding scissors.

Q. And did that send you back to see Dr Haasbroek or a doctor when you were concerned about that?

A. Yes, it did, sir.

Q. And is that when you told Dr Haasbroek for the first time that you had to get somebody else to unclaw your hand because you couldn't?

A. In 2004 I'm pretty sure of that, not 2003.

Q. Can we be any more specific about when in 2004?

A. I don't, I can't, I'm sorry.

Q. Well, bearing in mind that you had the first operation in June or July 2004 can you relate it back from that? Was it perhaps a few months or a few weeks?

A. No, I think it was a few months at least but that's not a reliable answer I know.

77 Mrs Thompson was also asked about having told the chiropractor of the hand clawing problem. The following evidence was given:

Q. And from time to time you would see the chiropractor about your neck and your shoulders and your hips and your spine and various other things over the years, didn't you?

A. Yes, as previously stated.

Q. And if there was a specific problem or a specific onset of a symptom that worried you you would tell Mr Carter or if he wasn't there the locum who was attending you, wouldn't you?

A. Of course.

Q. And you would expect in the ordinary course a brief note of the symptoms related by you to that practitioner?

A. Yes.

Q. And you tell his Honour that this hand clawing as early as February 2003 and then getting more serious in the first half of 2004 was a serious matter to you?

A. Yes.

Q. You never told the chiropractor about it, did you?

A. Yes, I think I did.

Q. When do you think you did that?

A. When did I go to the chiropractor in 2003?

Q. When do you think you told the chiropractor about this particular serious symptom?

A. When did I go to the chiropractor in 2003?

Q. Mrs Thompson, are you playing games with me?

A. No, I'm not, sir, but I don't know when I went in 2003 and that was when it started.

Q. Well, ma'am, you are the patient. It's your chiropractor. You are telling his Honour you told the chiropractor something. I'm asking you when you say you did that?

A. When I went in 2003.

Q. And you saw the chiropractor three times in 2003, do you accept that? That's what's in your statement anyway, para 52, if I may assist you?

A. Thank you. Yes, I've got that I went there for the neck pain, going down my arm so, yes, I would have told him about that.

Q. What you've got there exactly in para 52 is neck pain, not neck pain going down your arm. That's the fact, isn't it?

A. Yes.

Q. Just taking your statement accurately, you went for treatment of the neck pain. That's what you have got there, isn't it?

A. I didn't normally go to a chiropractor.

Q. Please, Mrs Thompson, I'm just asking you to look at your statement in fairness. You've got in your statement I saw the chiropractor on those dates for treatment of the neck pain; that's the fact, isn't it?

A. That's what the statement says, yes.

Q. And you were asked at the opening of your evidence whether you wanted to change anything in that statement, weren't you?

A. Yes, I definitely was.

Q. And you didn't seek to change para 52 of that document, did you?

A. No, I did not.

Q. And there's nothing there about telling the chiropractor about a clawing symptom, is there?

A. No, there isn't. You go for the whole body.

Q. And that's because you never told the chiropractor anything about a clawing symptom on any of those three dates for treatment of the neck pain?

A. You go for the whole body.

Q. Mrs Thompson, my question is the reason there's nothing there about telling the chiropractor anything about clawing is because you did not tell the chiropractor any such thing; that's right, isn't it?

A. I previously stated that when I go to the chiropractor he treats my whole body.

HIS HONOUR

Q. Mrs Thompson, I'm afraid that isn't an answer to Mr Evans' question. He's asking about whether you told the chiropractor about the hand clawing.

A. And as I just said, your Honour, yes, I did.

EVANS

Q. You have looked at Mark Carter's typing up of his handwritten notes, haven't you? You got your solicitors to get a copy of it. He wrote to them, typed out and you've looked at it, haven't you?

A. Yes.

Q. And you not only read the dates on it but you read the entries on it, haven't you?

A. Yes.

Q. And you know perfectly well that neither Mark Carter nor his locum for any of the dates identified in para 52 of your statement have made any notation whatsoever of any hand clawing symptom, have they?

A. I really can't remember what the notes said but do you want me to answer that fully or is that enough?

...

Q. And you've certainly, may I suggest to you, told him nothing whatsoever about a clawing of the hand, have you?

A. I'm not denying but that doesn't mean that it wasn't happening.

Q. And nor at least from your chiropractor's notes and we're back to Mr Carter on the following day, 27 June, is there any notation by him of you telling him anything about a clawing of the hand, is there?

A. And there's not any that says it didn't, wasn't happening either.

Q. And on what appears to be 2 July nor is there anything there about a clawing of the hand, is there?

A. There's not any that says it's not happening either.

...

Q. There's no record whatsoever by this man Carter who has been treating you on and off for ten years of you telling him anything about hand clawing, is there?

A. There's not any that says I didn't either.

HIS HONOUR

Q. Mrs Thompson, I just want to understand, do you say that you did or you did not tell the locum chiropractor on 26 June that you had hand clawing?

A. I probably didn't use that word, your Honour, but I know that I said it was neck and arm pain, arm going into my hands, but I - whether I used clawing or just my hands were tingling I cannot be specific, your Honour.

78 There was also an issue of when Mrs Thompson first went to see either Dr Haasbroek or the chiropractor using a walking stick. She maintained that she had been on a walking stick the whole time from March 2004. In that regard the notes of the chiropractor refer to her using a walking stick when she visited on 26 June 2004. The following evidence was given in cross-examination:

Q. Can I come back to the original question? You didn't use a walking stick when you attended Mark Carter's chiropractic practice any earlier than 26 June 2004, did you?

A. Yes, I did, your Honour.

Q. Can you offer any explanation why he specifically notes it for the first and only time on 26 June 2004?

A. No, I can't offer an explanation, your Honour. Perhaps I had left it in the dressing room.

HIS HONOUR

Q. Was there some point where you used a walking stick whenever you went outside your home?

A. Yes, when I lost my balance.

Q. When was that?

A. I think it was about - about March.

Q. What enables you to remember it was about March?

A. Nothing specifically but except that I remember talking to my girlfriend out the front of Centrelink and she said to me "Sandra, what is wrong with you?" and I said that I felt like I was slowly dying and it was cold and I was on a walking stick and she was one of my hairdressing friends and she said "What are you doing on a walking stick?" I said "I feel like I'm slowly dying".

Q. How do you relate that to March?

A. Because it was cold and I had winter clothes on, we had just changed over to our winter uniform.

EVANS

Q. On that basis it may have been April, may it not?

A. No, because my son's born in April, the 22nd.

Q. So it doesn't get cold in April?

A. It's already cold.

Q. So in March you're in your winter uniform in Leeton, are you?

A. You can you be in a blazer - and I remember I had my blazer on. Leeton's a funny place, it can be summer one day and winter the next and it can change, and I just remembered that I had the blazer on talking to Roxanne. But I could have been in - it could have been 40 degrees the next day too.

HIS HONOUR

Q. How does that enable you to remember it was March?

A. I don't know, your Honour, I just - it just comes to my mind it was March.

EVANS

Q. It might have been a cold day in April with a warm day the following day just as easily, couldn't it?

A. It very well could have been but March comes to my mind, your Honour.

Q. And equally it could have been a cold day in May?

A. It could have been a cold day in December.

Q. It could have been a cold day in May 2004 and a warm day afterwards and another cold day and another warm day just as easily...

A. We have had the fire on in December.

Q. On that basis you might have been using your walking stick in December 2002?

A. That's why I said that I really remember March.

79 Another unsatisfactory aspect of Mrs Thompson’s evidence was her assertion that every time she saw Dr Haasbroek throughout this period it was about her neck or her legs. The following exchange occurred during cross-examination:

Q. Do you remember seeing Dr Haasbroek on 26 June 2003?

A. I hope it's written down that I saw him.

Q. But you don't remember what happened between you and he on that day, you don't remember what he said or what you said?

A. Every time I went to Dr Haasbroek was about my neck, pain in my neck because that was from the first time I went to him.

Q. So every time you went to see Dr Haasbroek it was about your neck pain, is that what you are saying?

A. Yes, or the change in my legs, my numb foot, the change in the pain of my knee; that was totally different to the knee replacement pain, it was very different. My body was changing.

Q. Can his Honour take it from your last two answers that every time you saw Dr Haasbroek, certainly during 2003 and 2004, it was because of problems with your neck?

A. It was problems with my skeletal, my foot, my legs, my knee being different, my radiating arm, my hand clawing down my fingers.

80 When, subsequently, Mr Evans identified for her particular visits such as those on 25 September 2003, 7 November 2003 and 2 January 2004 (all of which consultations she had omitted from her Statement of Evidence) she agreed that she did see Dr Haasbroek for the matters recorded in his notes which did not concern her neck, arms, hands or legs.

81 She said that she had had “no treatment whatsoever from Dr Haasbroek for depression or treatment for the loss of my son in Bali” yet elsewhere she admitted that she had been on Zoloft and Edronax prescribed by Dr Haasbroek although she claimed not to know that Zoloft was an antidepressant despite admitting that when she saw Dr Haasbroek on 26 June 2003 she told him that her “mood seemed alright so the Zoloft must be working”. In fact, her evidence about why she took Zoloft in the first place was so strange as to be unbelievable. I asked her if she was able to remember what it was that caused her first to be prescribed Zoloft and the following exchange took place:

A. I really don't know because you felt a lot of times you are put on medication, you don't know why people put you on it and it's something I have learnt the hard way, that I must not, and I now have a medical book at home what doctors prescribe you.

Q. Is Zoloft the first you had ever been put an antidepressant?

A. Yes, and I didn't know it was an antidepressant.

Q. What did you think it was?

A. I don't know why I was put on it for, I've never been somebody to have at the depression. I think when Clint died I was grieving and it was terrible but I have always had very high powered jobs, managerial jobs and I had seven children, I didn't have time for depression.

Q. Can you think of any incident or event around 1998 or 1999 that might have led to a doctor saying you should got on Zoloft?

A. Probably it came out on the market and everybody was buying it. I don't mean that to be facetious. I don't know. Nothing major happened; my Mum and Dad and my siblings are still alive, I handle life really well, I've been back to Uni, I did social work, I was a counsellor dealing with Centrelink, I helped many people in Leeton. I loved my welfare work; very well balanced, I don't know why I was on it.

Q. Did you ever ask the doctors who continued to give you prescriptions for it why you were on it?

A. No, because I was really silly and I have learned the lesson the hard way.

82 This matter is of some relevance because of what Dr Haasbroek has recorded in his notes of 24 March 2004 (that she was suffering depression) and also his notes of 29 June 2004 in relation to her stress over the end of her marriage. Mrs Thompson denied ever discussing her marriage with Dr Haasbroek. It was not clear therefore where the information contained in the notes would have been derived by Dr Haasbroek.

83 Her recollection of the prescriptions she was given for some of her tablets was shown to be wide of the mark. She said that the prescriptions for both Tramal and Vioxx were given to her each with 5 repeats. The computer printout from the Leeton Family Clinic shows that on no occasion was Tramal prescribed with any repeats and the prescriptions for Vioxx always came with 3 repeats. That mistaken belief on her part leads inexorably to the conclusion that her evidence about how many Tramal tablets she was taking throughout 2003 and 2004 was wrong. She said she was taking 2 tablets 3 or 4 times a day on a daily basis. However, as she only obtained 20 Tramal tablets each on 18 December 2002, 27 April 2003, 25 September 2003, 27 January 2004 and 24 March 2004 (prior to her operation) she could not have been taking anything like the quantity of Tramal that she asserted. This was a relevant matter because of her alleged pain levels.

84 Of course, she cannot be criticised for not being able to remember the number of repeats on any particular prescription nor, perhaps, even the number of tablets she was taking on daily basis, but her evidence was given without any element of uncertainty and she claimed to have a specific recollection when pressed about the matter. She ultimately agreed that her recollection of when and what tablets she was prescribed in the first instance derived from an inspection of the notes of the Leeton Family Clinic and not from any independent recollection.

(b) Robert Thompson

85 Robert Thompson was Mrs Thompson’s former husband. Although they have been divorced they were endeavouring to reconcile at the time of the hearing of these proceedings. They were living in the same house prior to the December operation although not as husband and wife.

86 His evidence largely supported Mrs Thompson’s evidence about restrictions on her and what tasks were undertaken by each of them prior to the onset of the problems and the operation.

87 In relation to the problems she experienced leading up to the operation, his evidence was that he observed she had problems for about 6 months prior to her first operation. He said she complained to him of pain in the neck, that her body was tired and aching and that she had tingling on her right side. He observed that she put hot packs on her neck in that approximate 6 month period. He gave evidence that in early 2004 he saw her using a walking stick and he saw her lose balance.

88 Although he said nothing about it in his statement (and one might have expected a reference to it) I permitted Mrs Thompson’s counsel to ask questions in relation to the hand clawing. Mr Thompson said that he could recall Mrs Thompson unclawing or pulling back the fingers on her right hand at some time between October 2002 when their son Clint died and her operation in July 2004, but he was not able to be more specific. In the light of the whole of his evidence about his observation of Mrs Thompson’s problems I do not believe that he observed the hand clawing prior to the 6 month period before her first operation during which he observed her other problems.

89 Although in his statement Mr Thompson attributed the marriage break up to his wife’s medications and her inability to work and do other things independently there was sufficient other evidence (including from Mr Thompson in cross-examination) that the marriage problems predated that time and were at least partly attributable to their son’s death. I do not consider that that particular belief of Mr Thompson’s means that I should not accept the rest of his evidence which I thought was given in a manner that was intended to be helpful to the Court.

(c) Kaleb Thompson

90 Kaleb Thompson is one of Mrs Thompson’s sons who has lived with her at various times, certainly for some or all of 2004 and for some periods subsequent to Mrs Thompson’s operations. In addition, he is an electrician and has done quite a bit of work in modifying properties in which Mrs Thompson has lived and is living.

91 He gave evidence also about the assistance that he has provided to Mrs Thompson and continues to provide in terms of work around the house and the grounds.

92 Although he was cross-examined quite extensively about the work which had taken place at the properties his evidence was not really challenged.

93 In relation to when Mrs Thompson’s complaints and problems started, his evidence was fairly consistent with that of his father who spoke of the matters in early 2004. In particular he referred to seeing her use a walking stick some months before her surgery in July 2004. He said she started to use a stick a good couple of months before that surgery. At first she did not use it all the time but it ended up that way. He agreed that in the weeks before the operation she always used a walking stick.

(d) Farrah Thompson

94 Farrah Thompson is one of Mrs Thompson’s daughters. She has been her mother’s principal helper in relation to household and other tasks since Mrs Thompson’s second operation. She does a great deal of the cooking, the cleaning, the washing and some of the shopping and other errands that required the use of the car. The amount of assistance has diminished over the period since the second operation in December 2004. At the time she made her statement on 23 July 2009 she said she was helping her mother about 1 to 2 hours a day depending on what needed to be done. When her mother first came out of hospital she said she was assisting her about 4 hours a day, 5 days a week.

95 She gave very little evidence about observing her mother’s problems before the operation but that appears to be because she was largely living away from home in Coogee. She gave evidence that she visited her mother twice in 2004 before her first operation and on both occasions she saw her mother using a walking stick.

96 She was cross-examined about the assistance that she provided to her mother. Her recollection in the witness box of the amount of time she spent performing tasks was rather vague and it cannot be said that she provided any accurate estimates to justify the average times that she said she spent per day in her statement. Nevertheless her evidence demonstrated that she provided considerable assistance to her mother.

(e) Helen Moss

97 Helen Moss is a friend of Mrs Thompson’s. She is employed as a carer for the Department of Aging, Disability and House care and she works with intellectually and physically disabled people.

98 Ms Moss provided a relatively brief statement where she gave evidence about providing assistance to Mrs Thompson mostly in the period after her two operations when she was living at Farm 726 Toorak Road, Leeton until March 2005. Ms Moss thought that she provided assistance of about 4-6 hours per week in that period. The assistance she provided after that time was substantially less. They were old friends, in any event, and the frequent contact between them after the surgery was not new.

99 Ms Moss also gave evidence that she saw Mrs Thompson using a walking stick for about 12 months prior to her surgery in July 2004. She said she used the stick when she had to walk any distance, for example, when they went to concerts in Griffith or Wagga Wagga or if they went shopping. She said she did not use the walking stick all of the time.

100 When pressed in cross-examination about when it was that they went to various places out of town that Mrs Thompson would use a walking stick or even when she would use the walking stick during 2004 she was very vague and could not be specific. Although it is not unreasonable that she would not be able to pinpoint exact dates I thought her evidence about when those events might have occurred was too vague and unspecific to place much reliance upon it. In fairness to her she agreed that the first time she was asked to recall these events was in about October 2009.

101 I do not consider that her evidence takes the matter any further in relation to the use of a walking stick than did the evidence of the members of Mrs Thompson’s family.

(f) Dr Haasbroek

102 Dr Haasbroek said at an early stage in his evidence that he had no actual recollection of consultations with Mrs Thompson and that he was reliant on his notes. It became clear as his evidence went on that he was endeavouring to reconstruct what was likely to have happened by both reading those notes and by applying his medical knowledge and his usual practice of what he said was likely to have been told to him and what was likely to have been done by him during the course of the consultation. This process ultimately led him into speculation and to him giving somewhat inconsistent evidence on very significant matters and, in particular, about how he dealt with Mrs Thompson at the important consultation on 26 June 2003.

103 In a sense, Dr Haasbroek set the bar too high for himself early in cross-examination in these exchanges:

Q. If his Honour accepted that what you have recorded for 26 June 2003, for example, is the totality of the history you obtained and recorded and that you didn't omit to record any other matter, you would accept, wouldn't you, that that history is entirely inadequate for a person presenting with neck pain, would you agree?

A. No, I wouldn't agree with your first premise which is that the record that I recorded on that day is lacking of the important salient features of her presentation.

...

Q. Do you say it is impossible for you in accordance with your normal practice to forget about asking for somebody presenting with neck pain the time of onset?

A. Yes. Yes, I say that's impossible.

Q. It's impossible?

A. Yes.

...

Q. You say it's impossible that you would not ask about time of onset of neck pain?

A. Yes, that's impossible.

Q. And it's impossible that you would not have asked about the circumstances of onset?

A. Yeah, that's impossible.

Q. Likewise it's impossible that you would have omitted to ask about duration of neck pain?

A. Yes.

Q. Is the explanation therefore, according to your usual practice, for those matters not to be there is essentially you didn't think they are of significance in her case?

A. That's correct.

Q. In accordance with your usual practice at that time, that is between 2002 and 2004, if somebody presented to you, you would record to lesser or greater degree the fact that there was a consultation; that's so, isn't it?

A. That's correct.

Q. And what they presented with; you would agree with that?

A. Yes, I would record that.

Q. And in accordance with the usual practice, the history, examination, diagnosis, treatment plan, investigations, whatever was relevant but you would actually make a note?

A. Yes.

Q. That is a computer record on Medical Director?

A. Yes, yes, your Honour.

Q. And in accordance with your usual practice at that time, it just would not be possible for you to omit making a record of somebody's presentation to you along the lines I have just asked, is that right?

A. Yes. (emphasis added)

104 Subsequently, Dr Haasbroek conceded that his record keeping, in terms of the notes he made, may have been “less than ideal in some aspects” but he said that that did not mean that his usual practice in that regard “was less than what’s required”.

105 But a little further on he referred to the impossibility of not noting the purpose of prescribing medication in the following exchange:

Q. And keeping with the questions I asked you yesterday about your usual practice, do you say that it would be impossible in accordance with your usual practice at that time that you would prescribe medication to somebody without it being clear in your records the purpose for which you were prescribing that medication?

A. It would be impossible, yes.

Q. And would it also be impossible in accordance with your usual practice to prescribe medication for someone that was not at the correct dose in accordance with the then prevailing knowledge about that particular drug?

...

WITNESS: A. Yes.

106 Subsequently, he admitted that he may have wrongly recorded dosages of tablets although he suggested either that he would have corrected the prescriptions by hand or that he at least had the safety net that no pharmacist in Leeton would have dispensed a script with incorrect dosing on it. It is also clear that his notes generally do not identify for which condition he prescribed the drugs to Mrs Thompson.

107 Far more troubling was his contradictory evidence about whether he considered radiculopathy in Mrs Thompson’s presentation on 26 June 2003. Mr Graham was asking some general questions about cervical radiculopathy and the following evidence was given:

Q. And going back to first principles, that's why history-taking is so important because it can provide important clues about the cause of a cervical radiculopathy; you agree with that?

A. I would agree, yes.

Q. For example, the history may demonstrate that it's of relatively recent onset and associated with a traumatic incident, correct?

A. Yes, correct.

Q. And in such circumstances you may think, oh, this could be due to an acute disc prolapse causing the radiculopathy, true?

A. Yes. I just want to ask - can I ask a question? Disc radiculopathy, you are talking about what's never really a - wasn't really a problem that Mrs Thompson presented to me. I mean...

Q. Well, that's your view now and the view at the time she didn't have a cervical radiculopathy, is that right?

A. Well, there is no - there is no history of it really.

Q. Well, you didn't make the diagnosis, did you?

A. I did in the end make a diagnosis of myelopathy which is an entirely different problem.

Q. I know you say that but you didn't consider, did you, a diagnosis of cervical radiculopathy at all?

A. I didn't because there wasn't any symptoms indicative of it.

Q. Okay. You didn't consider in that period 2002 to 2004, the condition cervical radiculopathy, is that what you are saying?

A. I didn't consider it because there was no symptoms of it.

Q. The answer is you didn't consider cervical radiculopathy in that period, did you?

A. No, I didn't.

...

Q. She had symptoms of a cervical radiculopathy, not a single complaint of shoulder pain in her presentation, and so you didn't consider a cervical radiculopathy in those circumstances, that's right isn't it?

A. I didn't consider it because the pain that she presented with was in my view at the time compatible with shoulder pain, which very often radiates into the neck and radiates down the arm. (emphasis added)

108 The following day he gave this evidence:

Q. Yesterday you said in answer to Mr Evans - this is at page 290, top of the page, your Honour - that your usual practice for the treatment of radiculopathy was, first, just wait and see, next physiotherapy with traction and, thirdly, perineural injections; do you recall saying that?

A. Yes, I did.

...

Q. If you had considered or diagnosed Mrs Thompson with a cervical radiculopathy on 26 June 2003, regardless of the cause of that you would have treated her in that way?

A. Is this a hypothetical question?

Q. Yes?

A. Well first of all I did not diagnose her on that day with that condition.

Q. If you had?

A. If I had, I would have referred her for also further investigation of her radiculopathy.

...

Q. I know we are dealing with a hypothetical, so on that if you had on that day considered and made that diagnosis you would have done the usual practice, as you said, and done an investigation by way of CT scan to check cause and level of possible impingement?

A. Yes.

...

Q. Which is why when somebody presents with neck pain you have to go through the history taking exercise that we went through yesterday?

A. Yes.

Q. As part of that history taking process it is the neck pain, and then you obtain a history of radiation down an arm?

A. Yes.

Q. That points to this being a possible cervical radiculopathy, isn't that right?

A. It is also on the differential diagnosis if you get a history such as that, yes.

Q. It just has to be on the list?

A. Yes.

109 A little later on he said he considered a number of shoulder pathologies and then this evidence was given:

Q. You said shoulder, and you also said you considered various neck pathologies. Do you say that you considered as one of the differential diagnoses on that day cervical radiculopathy?

A. Most certainly.

...

Q. Based upon your usual recollection and what you have recorded in the notes, you are telling his Honour that most certainly you would have considered cervical radiculopathy as a possible diagnosis, isn't that right?

A. Yes, definitely.

Q. Most certainly you should have, shouldn't you?

A. Yes.

Q. As you said yesterday to his Honour, you didn't consider the diagnosis of cervical radiculopathy, did you?

A. I did. If I said that, that's incorrect.

110 Then when his answers of the previous day were directly drawn to his attention, the following exchange occurred:

Q. Dr Haasbroek, yesterday I asked you a number of questions about whether you considered the diagnosis of cervical radiculopathy at any stage in the period 2002 to 2004 for Mrs Thompson, do you recall me asking you those questions?

A. Yes, I do.

Q. I want to show you on page 310 of the transcript at line 49 a question that I asked. If you could read that and your answer on the following page?

A. Yes, that's correct.

Q. Please read down to line 5 on page 311?

A. Yep.

Q. Were they truthful answers to the questions I asked?

A. I think I would like to change that, in retrospect. There were - the diagnosis of cervical radiculopathy was on my differential diagnosis. However, I maintained there wasn't enough symptoms to make a diagnosis as such.

Q. On page 312 line 3 I asked you a question?

A. "You didn't consider cervical radiculopathy..."

Q. Just read it to yourself, and your answer?

A. Yep.

...

Q. You have read that question from line three and your answer to line five?

A. Yes.

Q. Is there any confusion in that question about what is being sought from you?

A. No.

Q. It is a simple straightforward question, and you answered it in a simple straightforward way, didn't you?

A. Yes.

Q. Was that a truthful response to that question?

A. My response was whether I considered it in a general way. Excuse me, can I start again? My response was whether I considered it as a firm diagnosis and I maintain my answer, no. But I did consider it as a differential diagnosis. So the question didn't really specify whether I considered it as a firm diagnosis or a differential diagnosis. Therefore, I maintain what I said yesterday.

Q. Further down on page 312 at line 18, if you could read the question that starts there, and the subsequent question at line 25 and your responses to yourself?

A. Yes. I thought the question yesterday meant the most likely diagnosis, but as I said today, of course I also considered cervical radiculopathy as part of a differential diagnosis.

Q. You said today that you should have considered it as a diagnosis, didn't you?

A. I - looking at my notes, the fact that I did not only think of shoulder pathology but also neck pathology, I think that reflects that I did consider neck pathology as well as a differential diagnosis.

Q. You anticipated those questions on the basis that I was actually asking you whether you considered it was the likely diagnosis, rather than considering it at all as part of your differential diagnoses?

A. That's correct.

Q. That's what you say now?

A. Yes, but my understanding was that you referred to it as the most likely diagnosis.

111 And then finally this:

Q. Dr Haasbroek, I did ask you at the start of lunch going back to yesterday's questions about radiculopathy and I put to you that you didn't consider a diagnosis of cervical radiculopathy at all in the period 2002 to 2004 and you answered that you didn't because there weren't any symptoms of it. Now I have refreshed your memory about what you said and you have read that question and answer, haven't you?

A. Yes.

Q. You answered that yesterday that you didn't consider it because you didn't think there were any symptoms at any stage of a cervical radiculopathy. Do you now say you did consider it during that period because there were symptoms of a cervical radiculopathy?

A. No. I maintain my position from yesterday. There was no - there was no symptoms of cervical radiculopathy. It was - it's only a hypothetical possibility and had the patient returned and I have - had I dealt with the shoulder issue first, perhaps - perhaps this may have turned out to be radiculopathy but I do not believe there is any - any evidence that the patient complained to me of symptoms of cervical radiculopathy.

Q. And if you didn't at the time believe she had any symptoms of a cervical radiculopathy, it makes sense, as you have said you maintained, that you never gave it a consideration in that period?

A. No, I did consider it to investigate this whole issue further. However she did not return.

Q. When do you say that you considered to investigate it further when you also say she had no symptoms of it?

A. Her symptoms were that in my mind of the shoulder. She - I think any good doctor should have at the back of his mind the possibility even though the patient did not express that that it may be something else but what she gave me to work with at the time did not point to any cervical radiculopathy.

Q. Okay. She had no symptoms of it so you didn't consider it not only a likely diagnosis, you just didn't even consider it on the differential diagnosis?

A. I most certainly did consider it as well as carpal tunnel syndrome which I haven't mentioned before but it was certainly not...

Q. Do you want to?

A. It was certainly not the diagnosis that I made or considered as very likely at that time.

Q. Carpal tunnel syndrome, why did you consider carpal tunnel syndrome?

A. No...

Q. In the differential diagnoses?

A. I did not, as you can see from my notes, but in the same vein as you asked me to consider the neck pathology, I would have considered everything from the shoulder through to the - to the - to the arm, to the - to the neck which we know can all cause pain in that area.

Q. So you say according to your usual practice you would have considered...

A. Yes.

Q. ...cervical radiculopathy despite there being no symptoms of it at any stage in that period and you also would have considered carpal tunnel syndrome in that period as well in accordance with your normal practice?

A. Yeah, I cannot say that I did consider those things but in - in accordance to my normal practice, it would have been at the back of my mind to in due course, in due course exclude all these things.

Q. Why would carpal tunnel have been in the back of your mind in that period for Mrs Thompson's presentation?

A. Because she complained of pain in her arm.

Q. Right. And how does carpal tunnel syndrome cause pain in the arm?

A. It's a common presentation of - of pain in the arm.

Q. Where in the arm?

A. The forearm.

Q. In the forearm?

A. Yes, correct.

...

HIS HONOUR

Q. Dr Haasbroek, if it had been carpal tunnel syndrome, wouldn't the pain have been going the other way?

A. The - the pain would - would - would certainly be going from the wrist up into the arm, yes.

Q. And would it go as far as the neck for carpal tunnel?

A. Probably not, your Honour. That's - that's probably why I didn't look at it as a very likely problem for this patient. Excuse me, I said probably not. I want to say almost definitely not, yeah.

GRAHAM

Q. But also carpal tunnel would have the pain or may have pain going down to the hands and fingers as well?

A. Yes, there would be other features certainly, yes, yes, of course.

Q. Tingling?

A. Tingling, yes, yes. (emphasis added)

112 The reference to carpal tunnel syndrome in the last passage was a good example, in my opinion, of Dr Haasbroek entirely reconstructing by later consideration and analysis of what he might have done but did not in fact do. When it was put to him that pain would have been running in the opposite direction if it had been carpal tunnel syndrome he first of all said that that was “probably why” he did not look at it as very likely and then changed that to say he “almost definitely” did not.

113 In another crucial area involving his differential diagnosis, Dr Haasbroek gave inconsistent evidence about particular aspects of shoulder pathology that may or may not have been present on 26 June 2003.

114 On the 4^th day of the hearing the following exchange took place in cross-examination:

Q. She presented with no complaint of shoulder pain, even with your history taking, and she had neck stiffness, that is decreased range of movement and tenderness in her neck. Those two things pointed to some type of neck pathology, isn't that correct?

A. That presentation with that examination most commonly points to shoulder pathology. With shoulder pathology such as osteoarthritis or subacromial bursitis, which is much more common than neck pathology.

Q. When somebody has subacromial bursitis, where is the tenderness, if any?

A. Over the shoulder.

Q. Where?

A. Over the point of the shoulder.

Q. Where did you record the tenderness in the shoulder?

A. Well, I didn't record it as such, I suspected shoulder pathology.

Q. You didn't find any tenderness in the shoulder, did you?

A. I did find stiffness and crackling, she couldn't lift her shoulder above 90 degrees, which is enough pathology, I think.

Q. You did not find on your examination any tenderness in the shoulder, did you?

A. I don't know, because...

Q. You didn't record any, did you?

A. It wasn't recorded, however the findings that I did record are, I think, overwhelmingly sufficient to point to a shoulder problem.

Q. Do you have any idea where somebody experience (sic) tenderness when they have subacromial bursitis?

A. Subacromial bursitis, I didn't think that was the issue here.

Q. You have said that was part of your diagnosis, even though you haven't recorded it. Where do you get tenderness?

HIS HONOUR: I must say he didn't say so much as part of his diagnosis that that and something else...

GRAHAM: Osteoarthritis.

HIS HONOUR: Was more common.

GRAHAM: I misunderstood, your Honour.

Q. Are you saying now to his Honour that your diagnosis was in any way, or in part subacromial bursitis of the right shoulder?

A. No, I'm not saying that.

Q. Have you ever said that?

A. No, no, I don't think so. I said that was one of the two common conditions of the shoulder that she may have had.

115 On the following day this exchange occurred:

Q. It is highly improbable that some degeneration of the cartilage on the surface of the joint of the shoulder is going to cause both neck pain radiating down the right arm, and an inability to elevate beyond 90 degrees, isn't that right?

A. I disagree.

Q. Was that on the top of your list of differential diagnoses on that occasion?

A. No, degeneration of the shoulder joint, no. I was thinking in terms of a few other shoulder conditions such as subacromial bursitis.

Q. To stop you there, you already said yesterday that you weren't thinking of that?

A. If I did, I'm in error. I thought about the possibility of quite a few shoulder and in fact neck conditions which I have not categorically excluded.

Q. Okay. The shoulder one, subacromial bursitis, yes. What else?

A. Acromioclavicular joint arthritis.

Q. Yes?

A. Impingement of the subacromial back, the impingement of the supraspinatus tendon, biceps tendonitis. There is a whole range of other conditions pertaining to the shoulder. One other one, a rupture of any of the rotator cuff muscles.

Q. A rotator cuff injury?

A. Not necessarily injury, it may be degenerative.

Q. Pathology?

A. Pathology, yes.

Q. Rotator cuff pathology. Yes?

A. So how many have I got?

Q. You have got a few.

A. Yeah. Then osteoarthritis of the actual shoulder joint, capsulitis of the shoulder joint.

Q. Frozen shoulder, you mean?

A. Yeah, yeah.

Q. Those various shoulder pathologies, it would be highly unlikely, wouldn't it, that someone with any of those ones you have listed would have painless internal or external rotation of the shoulder joint, you'd agree with that, wouldn't you?

A. Yes.

Q. It would be highly unlikely also that there would be no tenderness in areas around or of the shoulder joint on palpation, you'd agree with that too, wouldn't you?

A. Yes.

116 These 4 matters (the impossibility that he would not have done certain things, whether or not he thought of radiculopathy, considering the carpal tunnel syndrome, and considering subacromial bursitis) all indicated to me that it was unsafe to rely on Dr Haasbroek’s evidence about what he would have done or (even as he said) did consider, notwithstanding his lack of actual recollection, and that it was only safe to rely on the contemporaneous notes to draw inferences about what happened at the consultations, but in particular at the consultation of 26 June 2003.

117 Although, as I have said, there was a great deal of reconstruction on Dr Haasbroek’s part, I consider that a combination of what is recorded in his notes together with the evidence he gave shows that he was entirely concentrating on shoulder pathology after his examination of 26 June 2003. I think the answers he gave, that she demonstrated no symptoms of radiculopathy and that was why he did not consider it, was what he really considered the position to be when Mrs Thompson consulted him on 26 June 2003. I consider that it was only when he reflected upon the symptoms, particularly as matters were put to him in cross-examination, that he realised that radiculopathy ought to have been on his radar on 26 June 2003.

118 A further strong indication that not a great deal of faith could be placed on Dr Haasbroek’s reconstruction of events arose from answers he gave to interrogatories as follows:

13A. Why did you examine the Plaintiff’s respiratory system on 26 June 2003?

13B. In order to rule out respiratory causes for shoulder pain: any condition that may cause irritation to the diaphragm and subsequent shoulder pain, such as spontaneous pneumothorax.

14A. Why did you examine the Plaintiff’s gastrointestinal tract on 26 June 2003?

14B. In order to rule out gastrointestinal causes for shoulder pain: any condition that may cause irritation of the peritoneum or gallbladder, such as acute cholecystitis or biliary colic.

When asked about these answers in cross-examination Dr Haasbroek said:

I think that’s interpretation or speculation on my part as to why I examined the respiratory system. The truth is I don’t know.

And he agreed that his answer about the gastrointestinal tract was speculation on his part and he really did not know. He said he was trying to be helpful but it was speculation, and he ultimately agreed that they were not truthful answers to the questions.

(g) Dr Yuen

119 Dr Yuen frankly admitted that he had no independent recollection of Mrs Thompson (he doubted he would even recognise her if he saw her) or the consultations he had with her. He was entirely dependent on the notes he made at the time. I formed the view that Dr Yuen was a fairly careful and diligent doctor.

120 Because of his complete inability to recall anything about the consultations his evidence, of itself, does not enable a resolution of what was said at the consultations Mrs Thompson had with him. His significance is that he is yet another health professional who Mrs Thompson alleges did not properly record her complaints.

(h) Dr Byrne

121 Dr Byrne was the only one of the doctors who claimed to be able to remember what happened at the consultations he had with Mrs Thompson. There were unsatisfactory aspects to his recollection, not the least being the length of time he recalled the consultations having lasted compared with the Medicare charges he made for those consultations. He ultimately accepted that the consultations must have been longer than he said, but it is not necessary to determine precisely what happened at those consultations.

122 The main significance of Dr Byrne is that he, too, is one of a number of doctors to whom Mrs Thompson claims to have complained about matters, in particular her neck, shoulder and arm pain, although there is no note of that made by Dr Byrne. I consider it most unlikely that Dr Byrne would have said that he thought her stomach was going numb because she had her belt too tight, and that was a problem with a lot of Coleambally farmers. Mrs Thompson cannot recall whether he said that on the first or second occasion she consulted him. If it was the first it seems highly unlikely that she would have returned to see him 3 days later since the explanation that he allegedly gave for her problem was so bizarre. If it was the second occasion it seems very unusual that Mrs Thompson did not consult another doctor until 29 June 2004 despite the fact that she said after she saw Dr Byrne she felt that she was slowly dying and that the numbness progressed up to her armpits and across her chest. She said she also found it progressively more difficult to pass a bowel motion and lost the urge to urinate.

Determination of the factual disputes

123 A resolution of the conflicting evidence, principally between Mrs Thompson’s statement and oral evidence on the one hand and the notes made by the doctors on the other hand, cannot be determined on the basis of demeanour. I have already made reference to the fact that I did not find Mrs Thompson to be a satisfactory witness and that she was unusually defensive. There might be a number of reasons for that quite unrelated to the reliability of her evidence. Some people react in a defensive fashion when any challenge is made to their account of things because they have difficulty accepting that there can be more than one point of view.

124 Of much more significance in finding Mrs Thompson’s evidence unreliable are the matters I have detailed earlier in this judgment concerning her evidence.

125 I do not believe that Mrs Thompson was being deliberately untruthful in the evidence she gave about what was discussed in the consultations. The impression I formed was that she had conflated the consultations and the time period in which they occurred between February 2003 and June 2004 so that she had come to believe that her condition was very much worse at an earlier time than it actually had been.

126 The evidence about the hand clawing is of some significance here. The expert neurologists and neurosurgeons were unanimous in their view that it was either not a symptom of radiculopathy or myelopathy or that there was not enough known about it to link it to radiculopathy by what is known as dystonic posturing, that is, an impaired or disordered tonicity of the muscles. (This was the only possible link, they said). Clearly, Mrs Thompson was able to remember that at some point she had experienced this problem and she may well have associated it with the pain she experienced in her arm or even the more extreme symptoms from which she suffered from at a time close to June 2004. In her own mind she came to believe that this clawing had taken place as early as February 2003 when she saw Dr Ingram. The more she was pressed about the matter the later it appears the problem developed. But even with hindsight the experts were not able to relate it to the myelopathy that she was found to have.

127 It seems to me to be of some significance that no doctor or either of the chiropractors recorded the hand clawing symptom. The symptom is scarcely an insignificant one. If it was reported to any of the doctors or chiropractors it would be very surprising (even taking into account certain deficiencies in note taking by Dr Haasbroek that I will deal with presently) that none of these persons would have recorded it if it had been reported at the time.

128 I am strengthened in this view (about the later development of her beliefs) by 2 related matters. First, if she was experiencing the more extreme symptoms that she complained about for as long as she suggested one might have expected to see more frequent consultations with the doctors not to mention more frequent reference to the problems associated with her neck and arms. Secondly, if she was taking the various analgesic medications at the rate prescribed there would have been long periods between consultations when she had no relief from pain by that medication – see the discussion in para 83 above. Either she would have returned to doctors for more prescriptions more often, or her pain was not nearly as bad and did not extend over as long a period as she now claims.

129 In many respects (as I have noted earlier), Dr Haasbroek was not a very satisfactory witness. But since he said that he had no independent recollection of the consultations the issue becomes whether what he has recorded in his notes is an accurate summary of what Mrs Thompson told him on each occasion she saw him.

130 In my opinion, his note taking left a lot to be desired. The entry of 27 April 2003 is a classic example. Although he notes (presumably on the basis of what she told him) “Quite depressed and not coping so well with the death of her son” he diagnoses migraine and greatly increases the dosage of anti-inflammatory and analgesic tablets she was taking and introduces a prophylactic anti-migraine drug. For him to have diagnosed migraine she must have told him of other matters that he has not recorded. Contrary to what he said would have been impossible for him to do, he has not disclosed on that occasion or, for that matter any other occasion, what he prescribed Vioxx and Tramal for and why he increased the dosage. On the one hand, it might be assumed the Vioxx and the Tramal were merely repeat prescriptions for what Mrs Thompson had been given previously (probably for the problems in her legs and knees) but since there is no complaint on 27 April 2003 about increased pain in those parts of her body, the reason for the increase in the dosages is hard to determine.

131 Contrary to what he said it would have been impossible for him to do, he failed to record the onset and duration of the symptoms that led him to diagnose migraine and the circumstances of their onset. Similarly and significantly, on 26 June 2003 he failed to record these matters in relation to the complaint of neck pain and the radiation down the arm.

132 In my opinion, and based on my assessment of Mrs Thompson’s evidence and Dr Haasbroek’s evidence and note taking discussed above, the following conclusions can be safely reached and I find:

(a) Mrs Thompson did not complain of neck, arm and/or leg pain and problems each and every time she saw Dr Haasbroek;

(b) she did not mention to any of the doctors the problem with clawing of the hand until (probably) 26 June 2004;

(c) she complained of some sort of pain or discomfort in the head or neck area at consultation of 27 April 2003 and may well have mentioned lightning bolts in front of her eyes;

(d) she did make complaints to Dr Haasbroek on 26 June 2003 of pain in the neck and pain radiating down the right arm with stiffness and limitation of movement. Those symptoms were symptoms of the cervical radiculopathy and the complaints on that day represent the first time that Dr Haasbroek could reasonably have identified that Mrs Thompson was suffering from radiculopathy;

(e) the next time she complained to Dr Haasbroek about any pain or discomfort in the neck or arm area was, on balance, the consultation of 24 March 2004 although her complaints on that day were non-specific. She did not attend his clinic on that day on a walking stick and there was nothing in particular about her complaints that on that occasion ought to have alerted Dr Haasbroek to radiculopathy, had she not made the complaints which I have found she did make at the consultation on 26 June 2003;

(f) the fact that no further complaints were made by Mrs Thompson to doctors about problems with neck or arm pain until March 2004 or even later is not inconsistent with the symptoms described in June 2003 being symptoms of radiculopathy. All of the specialist experts agreed that the pain might have gone away for 6 months or even a year but would eventually return;

(g) she attended the consultation on 29 June 2004 on a walking stick, and the first time she had attended the chiropractor with a walking stick was 3 days earlier on 26 June;

(h) the first time some early possible symptoms of myelopathy manifested themselves and were complained of were those in the consultation with Dr Yuen on 2 March 2004. The expert neurosurgeons and neurologists (whose evidence I will come to presently) accepted that these may have been early myelopathic symptoms but they would not have expected a general practitioner to have been able to recognise them as such; and

(i) what might be regarded as reasonably clear symptoms of myelopathy (including the symptoms noted by Dr Haasbroek on 29 June 2004) are likely only to have emerged some time between April and June 2004 and after her consultation with the chiropractor on 21 April 2004. They probably did not develop until either just before she saw Dr Byrne or, more likely, in the weeks leading up to 26 June when she first complained of them to Mark Carter and to Dr Haasbroek.

133 In coming to those conclusions I have had considerable regard to the contemporaneous recording of complaints not only in Dr Haasbroek’s notes (which I have accepted are in some respects deficient) but also the notes of the other doctors and of the chiropractors.

Breach of duty

(a) Expert evidence - general practitioners

134 Five general practitioners provided reports and gave evidence in the matter. They had met in conclave prior to the hearing and reached a small measure of agreement.

135 The conclave and the concurrent evidence did not produce unanimity on all matters. However, there was agreement on a number of important matters and, to the extent that some doctors held a different view, it seemed to me that a pattern emerged that assisted me in coming to a view about whether Dr Haasbroek breached his duty of care to Mrs Thompson. Of the 5 doctors it was Dr Walsh (who had been retained by Dr Haasbroek) who more often than any of the others took a different view about what was required of a general practitioner in Dr Haasbroek’s position. Whilst I did not consider Dr Walsh’s opinions generally to be unreasonable (subject to what follows) or not to be genuinely held by him on the basis of his long experience as a general practitioner, I consider that the opinions of the other general practitioners on some significant matters (discussed later in the judgment) are to be preferred.

136 Part at least of the reason that Dr Walsh may have taken a different view was that it became clear that he did not understand that the expert neurologists and neurosurgeons were of the view that the disc bar protrusions had in fact caused both radiculopathy and ultimately the myelopathy. Dr Walsh said that it was extremely unusual to have dual pathology.

137 I did have one particular concern about Dr Walsh’s evidence and that was that he appeared to doubt that Mrs Thompson had radiculopathy in June 2003. In the light of the evidence given by the expert specialists that the first signs of radiculopathy were the report of pain radiating to the arm in June 2003, Dr Walsh’s opinion about what Dr Haasbroek ought to have done and ought to have diagnosed in June 2003 has to be treated with caution. Whilst that hindsight view does not inexorably lead to the conclusion that Dr Haasbroek was negligent in what he did or failed to do in June 2003, if Dr Walsh with the benefit of hindsight was still prepared to doubt that the symptoms were symptoms of radiculopathy that view would undoubtedly colour his opinions about what was a reasonable level of care and diagnosis by Dr Haasbroek at that time.

138 Although there were times when I thought Dr Jeong took a somewhat inflexible position on matters, in a way that did not leave much room for differences of opinion, I consider him to be thoughtful and thorough in his approach to the issues. His views largely accorded with those of Dr Mann and Dr Kelly. Both of those Doctors have long experience in general practice. Dr Mann was at times zealous for Mrs Thompson’s predicament but I was impressed with the way that she and Dr Kelly dealt with issues raised and the care and analysis that was obvious from the explanations they proffered.

139 True it is that Dr Bismire, of the 5 GPs, was the one that had had the most experience as a country GP. However it did not seem to me that anything in particular turned on the difference between a GP practising in a town like Leeton and a GP practising in a suburb of Sydney. In any event, I found much of Dr Bismire’s evidence given in Court to be helpful. The impression I had from comparing what was contained in his expert’s report with what was agreed at the conclave and during the session of concurrent evidence in Court was that he had shifted his views to some extent towards the position adopted by Drs Mann, Kelly and Jeong.

140 The GPs were all of the opinion that the consultation of 26 June 2003 was a significant one because it was on that occasion when there was undoubted evidence that Mrs Thompson was complaining of neck pain which radiated to the arm. Although the GPs might have had a different order of thinking about differential diagnoses (as between neck pathology and shoulder pathology), on that occasion all were agreed that both should have been on the list for consideration.

141 All of the GPs were of the opinion in the conclave that there ought to have been radiological investigation ordered at that consultation whether to exclude shoulder pathology or to see if there was some basis for a differential diagnosis of radiculopathy. However, Dr Walsh said in the course of giving evidence that he did not consider it below the standard of reasonable care for Dr Haasbroek not to have ordered a plain x-ray. He acknowledged that many GPs would have ordered an x-ray in that consultation.

142 The GPs agreed (with some reservations from Dr Walsh) that if the only investigation of the shoulder done by Dr Haasbroek on that occasion was to test the extent to which Mrs Thompson’s right arm could be elevated (by which they understood abducted) that was an inadequate investigation at least for the purpose of endeavouring to determine if the cause of the radiating pain derived from shoulder pathology as opposed to something else, including radiculopathy.

(b) Did Dr Haasbroek breach his duty of care?

143 I have already held that Dr Haasbroek’s opinion on 26 June 2003 was that Mrs Thompson’s problem was one involving shoulder pathology. He did not consider radiculopathy as a differential diagnosis because, as he repeatedly said, she demonstrated no symptoms of it.

144 The opinion of Drs Mann, Kelly and Jeong, which I accept in this regard, was that regard had to be had for the complaints Mrs Thompson made at the 2 previous consultations as both complaints were recorded in the notes and in conjunction with the medication that she was given on those occasions. What was noted by Dr Ingram on 4 February 2003 was “Headache. Neck stiffness. 1 week. Occip. Bitemporal” and he diagnosed a tension headache. He prescribed Panadeine Forte and Vioxx either or both of which could have been given for that specific problem.

145 On 27 April 2003, without any description of her actual complaints, Dr Haasbroek diagnosed migraine. He quite considerably increased Vioxx and Tramal and prescribed an anti-migraine drug. As Dr Mann put it:

The second thing I would say is that I do think that even though the symptoms may or may not have changed, they are a consistent complaint and the number and the area of the complaint changes and gets worse over time. So whether it's one neck pain or another neck pain, the third consultation is a neck pain plus an arm pain. One way or another, it's there, it's there again and then it's there with something else and I think that's a concern.

146 Both Dr Kelly and Dr Jeong thought that the new symptom of radiation down the arm was an important or dramatic new development. Whilst Dr Bismire did not subscribe to that view in an unqualified way, he acknowledged that if symptoms had been present since February, it would be reasonable to make the assumption that things were progressing.

147 It was Dr Bismire who attached to his expert report some pages from a book by A Graham Apley, Concise System of Orthopaedics and Fractures, Butterworths, England 1999. Under the heading cervical spondylosis the following appears:

Clinical features

The patient, usually aged over 40, complains of neck pain and stiffness. The symptoms come on gradually and are often worse on first getting up. The pain may radiate widely: to the occiput, the scapula muscles and down one or both arms. Paraesthesia weakness and clumsiness are occasional symptoms. Typically there are exacerbations of more acute discomfort, and long periods of relative quiescence.

148 That extract seems to support the view of Drs Mann, Kelly and Jeong, that one had to have regard to the complaints made to Dr Ingram on 4 February 2003, which Dr Haasbroek acknowledged would have been in front of him on the screen on 26 June 2003. It will be recalled that on that earlier occasion there was a complaint of neck stiffness with a reference to the occipital region.

149 All that is known about the consultation of 27 April 2003 (judged by the notes) is depression and migraine. But the considerable increase in the dosage of Vioxx and Tramal, together with the prescription for Sandomigran, suggests that Dr Haasbroek at least thought that “migraine” included pain in the head area. I accept that Mrs Thompson denies that she had headaches as such but that was because she had the view that a headache had to be across the forehead, and that pain or ache in the back of the head would not be called headache but would be called neck ache or something similar.

150 What was clearly complained of to Dr Ingram in February 2003, and what is likely to have been complained of to Dr Haasbroek in April 2003 to have prompted him to record “migraine” and to give Mrs Thompson the prescriptions he did, mean that the clinical features referred to in the extract from Apley were present over the almost 5 month period (even if they were intermittent) and justified the view expressed by Drs Mann, Kelly and Jeong that it was the same complaint in June 2003 with the added factor of the radiation of the pain into the arm.

151 The matter was not made any easier by Dr Haasbroek’s somewhat deficient note taking, particularly on 27 April 2003. Neither on that day nor on 26 June does he record any duration of the pain that was complained of on 26 June 2003 and which must have been complained of on 27 April 2003 to have justified the increase in the dosage of the tablets. What he does record on 26 June 2003 concerning Mrs Thompson’s neck was that it was stiff and tender. Dr Ingram had also recorded neck stiffness in February.

152 Despite the fact that Dr Haasbroek said he did not think matters such as time of onset of neck pain, circumstances of onset and duration of neck pain to be significant (set out in para 103 above) all of the GP experts agreed that such things ought to be enquired about. In the light of what Dr Ingram had recorded in February those matters were of significance in Mrs Thompson’s case, and Dr Haasbroek’s failure either to enquire about them and/or record them has brought about the situation that he was deflected from what should have been the main object of his concern, namely the neck pain radiating down the arm, rather than the question of shoulder pathology.

153 Dr Haasbroek points in particular to Mrs Thompson’s evidence that her neck became stiff during the course of the training conference in Queanbeyan where she was obliged to sit at a table looking at a whiteboard in an awkward position. This matter was put to the doctors and, again, the best response, which I accept, is from Dr Mann who said:

I consider that a person who has had neck pain on two consultations - on two presentations who works as a hairdresser with their arms elevated giving more difficulty and strain to that area and then who adds to the problem by being in this awkward position for some weeks would indeed have more pain, I do think they all apparently stem from the same problem and they are adding up to a problem for this patient that's turning out to be more serious because there's been no identification of the problem and no good intervention to stop things progressing.

154 Dr Jeong thought that what happened at the conference may have acted as an accelerant to her symptoms but that there was a common denominator relating back to the February consultation with Dr Ingram. Similarly, Dr Kelly thought there was a commonality (particularly with no prior history of migraine before April 2003) which meant that the likelihood was that there was a progression of symptoms from February to June.

155 The second thing to be said about Dr Haasbroek’s approach on 26 June 2003 relates to his concentration on shoulder pathology. Mr Graham made much of the fact that the only diagnosis recorded in the notes was “neck pain with referred arm pain” but I do not think the remainder of the notes can be ignored in that regard. Particularly the reference to “right shoulder OA with cracking” under the heading “Musculo-skeletal” cannot be ignored as some sort of diagnosis whether differential or otherwise.

156 Nevertheless, some weight must be placed on what Dr Haasbroek has written under the heading “Diagnosis”, particularly as he does not note anywhere that Mrs Thompson complained of pain in the shoulder. He does not note that there was referred pain from the shoulder to the neck and he agreed that the history he obtained was not shoulder pain radiating up to the neck and down the arm. It seems clear from Dr Haasbroek’s evidence at that point that because shoulder pathology, such as osteoarthritis or subacromial bursitis (which he said was not the issue here in any event), was much more common than neck pathology and that her pain was compatible with shoulder pain, that seems to have set him on the course of investigating shoulder pathology although all he was able to establish from his examination was a cracking and an inability to abduct beyond 90 degrees because of pain and not muscle weakness. Dr Haasbroek appeared to accept that she did not have tenderness in the shoulder because if he had demonstrated tenderness he would have recorded it.

157 Interestingly, in the extract from Apley that Dr Bismire attached to his report, under the heading “Osteoarthritis” the following appears:

Clinical features

The patient is usually aged 50 to 60 and may give a history of injury or previous painful arc syndrome. There is usually little to see, but shoulder movements are restricted in all directions. (emphasis added)

Dr Haasbroek indicated that he only noted positive findings, and that the only restriction of movement was, as I have said, an inability to abduct beyond 90 degrees.

158 Doctors Mann, Kelly and Jeong did not consider that the examination Dr Haasbroek said he would have performed on the shoulder (internal and external rotation, palpation and elevation of the straight arm in front of the body) was adequate particularly if it was intended to inject cortisone into some part of the shoulder. Both Drs Bismire and Walsh thought that it was a reasonable but not a complete examination, and they said an incomplete examination would not give complete medical information. On any view, therefore, Dr Haasbroek was likely to have had incomplete information about Mrs Thompson’s shoulder problem (if that was what the problem was) by the examination he performed. But in any event, I accept the evidence of Drs Mann, Kelly and Jeong that the examination Dr Haasbroek carried out was not reasonable, particularly the reason given by Dr Jeong that an ultrasound would reveal much information about what was happening with the shoulder and an ultrasound would assist in targeting the injection where the pathology has been located.

159 Further, as Dr Mann said, injection into the shoulder was never going to identify what the cause of the neck pain was which Mrs Thompson undoubtedly had.

160 Dr Haasbroek said on a number of occasions that he suspected shoulder pathology but the strongest reason for that appeared to be because it was a more common presentation than neck pathology. Whilst he found cracking and a limitation on abduction that did not, according to the radiation of the pain as he described it, explain the neck pain.

161 In my opinion, Dr Haasbroek breached his duty of care in failing to consider cervical radiculopathy as even a differential diagnosis. He should, in accordance with what all of the GP experts said in conclave, and what all but Dr Walsh said in their oral evidence, have organised a radiological investigation of Mrs Thompson’s neck pain. Dr Haasbroek agreed that if he had diagnosed her with that condition he would have referred her for a CT scan to check what the cause of the impingement on the nerve roots was.

162 Any suggestion that there ought to have been further conservative treatment is answered by the view of Drs Mann, Kelly and Jeong (which I accept) that the symptoms she had complained about to Dr Ingram, and likely complained about to Dr Haasbroek in April 2003, were complaints of similar symptoms that by 26 June 2003 had progressed to include radiation down the arm.

163 Dr Haasbroek relies on s 5O Civil Liability Act 2002 and points at least to the evidence of Dr Walsh and possibly Dr Bismire in submitting that what he did on 26 June 2003 was the provision of a professional service in a manner that was widely accepted by peer professional opinion as competent professional practice. In the light of what I have said about Dr Walsh’s evidence in paragraphs 136 and 137 above and bearing in mind his views on Dr Haasbroek’s approach to the examination of the shoulder (referred to in paragraphs 142 and 158, I do not consider that Dr Walsh’s evidence demonstrates that what Dr Haasbroek did on 26 June 2003 amounted to an examination and diagnosis that would be widely accepted in Australia by peer professional opinion as competent professional practice.

164 In reaching my conclusion that Dr Haasbroek breached his duty of care in the way I have discussed, I have borne in mind the difficulty that any general practitioner is faced with when unusual or rare matters are reported to them. I accept in that regard that a general practitioner would not often be faced with symptoms that might cause him or her to think of radiculopathy. I also bear in mind that sometimes things seem more obvious in hindsight and with the luxury of analysis and consideration at leisure. Nevertheless, in deciding whether Dr Haasbroek fell below the standard of reasonable care I must give considerable weight to the expert general practitioners who gave evidence before me. In the light of that evidence and particularly bearing in mind Dr Haasbroek’s repeated assertion that Mrs Thompson demonstrated no symptoms of radiculopathy, I consider it clear that Dr Haasbroek breached his duty of care.

Causation

165 The issue here is whether, if Mrs Thompson had been diagnosed at an earlier time with either radiculopathy or myelopathy, the outcome for her would have been different from the problems she now experiences. Involved in this issue is the question of the time at which any operation she underwent would have been performed at an earlier time than in fact occurred. Also involved is the question of whether she would have needed 2 operations as she underwent in July and December 2004. The issue does not have an obvious answer because the underlying pathology had existed for some time prior to any symptoms becoming manifest, with the result that some damage had undoubtedly occurred, and because any operation in respect of the problem not only contained serious risks itself but had less than a 100% success rate in any event, and generally does not improve the patient’s symptoms but simply halts or retards progression.

(a) Expert evidence - specialists

166 The specialists who met first in conclave and then gave concurrent evidence were neurologists and neurosurgeons and a professor of spinal surgery, Professor Michael Ryan. Two of the neurologists, Dr Brew (retained by Mrs Thompson) and Dr Watson (retained by Dr Haasbroek) also examined Mrs Thompson. Both examinations were conducted in 2008.

167 There was a very considerable degree of unanimity between the specialist experts both in the conclave and in the concurrent evidence they gave in Court. Given that each of these experts is a leader in their respective fields, this was perhaps not surprising.

168 Matters on which the expert specialists were agreed can be stated as follows (the agreement is in bold type face – comment on the agreement is in ordinary type face):

(a) The first signs of radiculopathy were the report of pain radiating to the arm in June 2003. Although that opinion is expressed with the benefit of hindsight, it provides support for the views of Drs Mann, Kelly and Jeong (which I have accepted) and is to be contrasted with the view of Dr Haasbroek that there were no signs of radiculopathy at the consultation in June 2003.

(b) There is no evidence linking the hand clawing to the radiculopathy or the myelopathy – I have discussed this earlier.

(c) If a CT scan had been performed on 26 June 2003 there would probably have been the same findings as were ultimately found on the CT performed on Mrs Thompson on 2 July 2004. A report of that CT relevantly said:

Osteochondral bars are demonstrated at each cervical level examined [CV3 to TV1]. They become progressively more marked as one proceeds distally.

At the C4/5 level there is moderate central spinal canal stenosis and osteophytic encroachment upon the intervertebral foramina is noted on both sides, more marked on the right, due to the presence of uncovertebral osteophytes.

There is evidence of the spinal cord compression at this level.

Spinal cord compression is virtually certain to be present at the C5/6 level where there is marked osteochondral bar formation which has a right lateral predominance and there is also evidence for encroachment upon the intervertebral bilaterally due to uncovertebral osteophytes.

At the C6/7 level there is once again pronounced posterior osteophytosis with virtually certain cord compression. Focal disc protrusion is not identified but there is some early narrowing of the intervertebral foramina on both sides.

This view of the experts is significant because if Mrs Thompson had undergone a CT scan in about June 2003 she would have been found to have spinal cord compression from the osteochondral bars. Even on the basis of Dr Haasbroek’s evidence that would have resulted in referral to a neurologist and/or a neurosurgeon who would then have taken over her care. The views of the specialist experts about what then would have happened become immediately relevant.

(d) It was more likely than not that compression of the spinal cord at C5 to C7 levels was present by 26 June 2003 and that compression of the right C5 to C7 nerve roots was present by that date also.

(e) Oedema of the spinal cord was present by 29 June 2004. Four of the experts (Drs Brew, Ryan, Darveniza and Stoodley) thought that oedema was likely to have been present by 24 March 2004 but Drs Stening and Watson disagreed. (I note in passing that that division of opinion was not a division depending on who had retained each of the experts with 2 of each party’s experts holding this opinion.

(f) Mrs Thompson’s condition progressed from June 2003 to the time of diagnosis on 9 July 2004 from symptoms referrable to a right-sided cervical radiculopathy to symptoms and signs referrable to a right-sided cervical radiculopathy and a cervical myelopathy.

(g) The progression in her condition was more likely than not caused by further small accretions to the bony osteophytes compressing her spinal cord and cervical nerve roots as well as repetitive microscopic trauma to the cervical spine from normal day-to-day living. They all thought that chiropractic manipulation could be very important in the genesis of the myelopathy. The significance of the last comment is that, if Mrs Thompson had been referred to any of them they would strongly have advised against her seeing a chiropractor at all. Accordingly, the further damage from the chiropractor which may have taken place during 2004 would not have occurred.

(h) Had Mrs Thompson been referred to an ordinary skilled neurosurgeon, spinal surgeon or neurologist it is likely there would have been close monitoring of her condition but not necessarily surgery. If an MRI showed cord oedema then surgery would be performed.

(i) Close observation by a specialist would have led to earlier detection of myelopathic symptoms and signs.

(j) Decompression for a cervical myelopathy has a greater than 50% chance of leading to recovery of function and improvement although not complete resolution of neurological symptoms.

(k) On the balance of probabilities decompression of the spinal cord at an earlier point in time with close observation, including advice about chiropractic manipulation, would have meant Mrs Thompson would have avoided permanent cervical spinal cord damage.

(l) A patient with cervical myelopathy may develop a central neuropathic pain syndrome even after decompression.

(b) Would the Plaintiff have come to operation earlier?

169 I have already held that if Dr Haasbroek had considered that Mrs Thompson might have radiculopathy he would have referred her for radiological examination. The expert specialists all agree that if a CT scan had been performed on or about 26 June 2003 there would probably have been the same findings as were ultimately found on the CT scan performed on Mrs Thompson on 2 July 2004. They also agreed that it was more likely than not that compression of the spinal cord at C5 to C7 levels was present by 26 June 2003.

170 If Dr Haasbroek had radiological evidence in June 2003 of a spinal cord compression he would, acting reasonably, have referred Mrs Thompson to a specialist neurologist or neurosurgeon. The experts agreed that under a skilled specialist it is likely there would have been close monitoring of her condition, and close observation and monitoring would have led to earlier detection of myelopathic symptoms and signs than July 2004.

171 They agreed that the timing of surgery was always a difficult matter, particularly because of the risks involved in the surgery itself. However, they all agreed that once oedema of the spinal cord was present, on the balance of probabilities, she would have come to an operation. Four of the specialists thought that oedema was likely to have been present by 24 March 2004. That obtains support also from the fact that the matters about which she complained to Dr Yuen on 2 March 2004 were probably early myelopathic symptoms which a specialist was likely to appreciate but which a general practitioner could not be expected to know.

172 Professor Stening said that it was possible Mrs Thompson might have come to surgery in 2003 but that would only have been if the pain from the radiculopathy was so bad that she could not bear it. He offered that view as a theoretical possibility for an earlier operation. However, the facts do not support a conclusion that the pain Mrs Thompson was suffering during 2003 was such that she satisfied that need for an operation. Even if she was suffering more pain than the various notes of consultations with the doctors suggest, it would appear that the painkillers that she was being prescribed from time to time were sufficient to control the pain, certainly at a level below which an operation would be required.

173 I accept the opinion of the 4 specialists (2 retained by Mrs Thompson and 2 retained by Dr Haasbroek) that oedema was likely to have been present by 24 March 2004.

174 There was also discussion amongst some of the experts about whether signs (matters that might be elicited on a proper neurological examination) would manifest themselves before symptoms (physical matters or complaints of which the patient complained). A number of the experts thought that those signs might present themselves before the myelopathic symptoms. Given, therefore, that the matters she complained of to Dr Yuen may well have been early myelopathic symptoms, I accept that close monitoring by a specialist during this period was, on balance, likely to have elicited early signs that would have given rise to a consideration for surgery.

175 The result is, therefore, that on balance of probabilities, Mrs Thompson was likely to have been operated on some time in or shortly after March 2004 if properly diagnosed in June 2003. I conclude that the view of the specialists that oedema was present by March 2004 was not dependent on accepting Mrs Thompson’s evidence that she was by 24 March 2004 using a walking stick when she saw Dr Haasbroek. I have already found that she was not using a walking stick on that occasion.

(c) Would an earlier operation have had a better outcome?

176 The specialists who were asked to express an opinion in their reports about whether an earlier operation would have made a difference were agreed that an operation at the end of March 2004 would have made a difference (Dr Watson, Dr Brew, Dr Stening and Professor Stoodley). When asked to review Dr Stening’s report, Professor Ryan said he agreed with it. In addition, Professor Ryan said that if diagnosis for spinal cord compression had been made earlier Mrs Thompson’s rehabilitation after surgery may not have been as extensive. Professor Ryan does not specify the point at which that might have occurred.

177 Quite what the difference would have been is difficult to determine. Dr Watson spoke only of a better outcome.

178 Professor Stoodley thought there would have been a significant reduction in radicular pain of approximately 70-80%. In relation to the myelopathic symptoms he thought that surgery would have prevented development of any symptoms she did not yet have by the date of the surgery.

179 Dr Stening agreed that her pain might have been relieved and that she would not have deteriorated to the point where her walking was as severely affected as it was after the operations she underwent. He agreed that her condition would not have improved from the position she was in at the time of the operation.

180 Dr Stening explained during the concurrent evidence the reason for that. He said that earlier intervention does not necessarily improve outcome because the cord compression itself causes permanent damage to the cord. This is why (and a number of the experts made the point) the operation, with the exception of improving pain, is unlikely to improve symptoms that already exist at the time of the operation. Its purpose is more particularly to prevent deterioration.

181 The most detailed assessment is to be found in Dr Brew’s report of 8 August 2008. He says:

If Mrs Thompson had undergone decompression surgery around the 2^nd or 24^th March 2004 it is likely that she would have avoided significant cervical myelopathy and avoid (sic) significant central neuropathic pain syndrome. Given that she had already started by that time to complain of a funny sensation in the chest I am not certain that surgical intervention at that time would have necessarily led to resolution of all her deficits. She may have been left with some mild deficit, possibly pain, although it is likely that a degree of pain, if it were present, would have been relatively mild.

182 However, the matter of the central neuropathic pain syndrome is not so easy to resolve. Both Professor Ryan and Dr Watson expressed the view that it is not really known what the cause of that syndrome is and that it is certainly not known to be linked to cervical myelopathy. Further, as the experts all agreed, a patient with cervical myelopathy may develop a central neuropathic pain syndrome even after decompression of the spine.

183 The specialists all ultimately agreed that earlier surgery would have meant that she avoided permanent cervical spinal cord damage but the timing of the earlier surgery in that regard was not specified, and in any event has to be balanced against the risks involved in the surgery and with the fact that it is not successful in all cases.

184 The experts were largely agreed that it was less likely that she would have needed a second operation (as in fact happened) if she had been operated on at an earlier point and certainly by March 2004. The reason, as Dr Stening explained, was that the longer the wait for the first operation the more the spinal cord is likely to be swollen and therefore more likely to re-injure itself after the first operation.

185 Determining precisely what disabilities have been brought about by the delay in operating is compounded not only by the fact that the very nature of her condition (the advancing osteoarthritis impinging upon the nerve roots and ultimately the spinal cord) would have left her with permanent deficits in any event, it is also compounded by the fact that the osteoarthritis had affected other parts of her body to a significant extent, and in particular her knees and the lumbar spine. There can be no doubt on the medical evidence that a number of her difficulties associated with leg pain and walking that manifested themselves in the first half of 2004 were as a result of the osteoarthritis in the knees and have been relieved to some extent by the first knee replacement operation she underwent in March 2007. Her own evidence confirms the improvement from that operation.

186 She was asked how her left knee was after that operation and she said:

It took 6 weeks but the pain has been - the lack of pain has been terrific. It used to keep me awake. I couldn't walk. I could not walk properly at all. Since I have that done, I'm not awake all night with it. I haven't had my right leg, my right knee replaced. Now, I'm back to being able to, at least walk normally and have bearable pain whereas before that, my knee was just terrible.

187 In addition, Mrs Thompson already had a condition known as rectocele which is a bulging of the rectum into the wall of the vagina. A report from Dr Scott Giltrap (who Mrs Thompson ultimately remembered seeing in Albury) of 3 September 2002 said this:

Thanks for sending up Sandra who has had pain and dragging sensation and has trouble with defecation. ...

On examination she had a small enterocele but minimal cystocele and minimal rectocele, or virtually no rectocele. It appears that she doesn’t have much sensation with to (sic) respect to bowel movement and has to use a lot of pressure. ... (emphasis added)

188 Whether the lack of sensation with respect to bowel movements was an early symptom of the myelopathy or was related only to the matters referred to by Dr Giltrap, an early operation in respect of the myelopathy could not, on the basis of the expert evidence, have been expected to improve the bowel problem.

189 Even putting aside pain and discomfort associated with arthritis in the knees it is clear that Mrs Thompson is suffering other pain from matters unrelated to her spinal surgery or to her cervical myelopathy. For example, she saw Dr Richard Parkinson, neurosurgeon, in October 2006 complaining of radiating pain in the lumbar region and in the hips. She said that produced a burning feeling in her upper lumbar region which was exacerbated by walking or standing. Both rehabilitation experts (Professor Jones for Dr Haasbroek and Professor Faux for Mrs Thompson) agreed that the pain in lumbar region was not related to the surgery in her neck and probably relates to the degenerative disease of her lower back.

190 A useful summary of a number of Mrs Thompson’s problems and their relationship to the myelopathy was provided by Professor Faux during the concurrent evidence he gave with Professor Jones. The Doctors were asked to consider a report from Professor Siddall from Northern Sydney Central Coast Health of 5 February 2008 reporting on a visit from Mrs Thompson to the Pain Management Centre at North Shore Hospital on 5 February 2008. That report described a history of her complaints. The experts were asked if the matters complained of related to the myelopathy and Professor Faux answered as follows:

In terms of the coccygeal pain and the left leg pain, I don't think that that would relate to the surgery. The paranesthesia all over the legs may or may not relate to her myelopathy. The poor balance and tripping over easily may relate to the myelopathy. The neck pain may relate to the myelopathy. The radiation of pain may relate to myelopathy. The left leg pain is unlikely to relate to myelopathy. The described burning sensation in the abdomen is likely to be related to myelopathy.

Professor Jones did not disagree with that.

191 Of course, that only relates particular complaints to the myelopathy or not as the case may be, but says nothing about what of those complaints might have been avoided with an earlier operation. In particular, all of the specialist neurologists and neurosurgeons thought that Mrs Thompson would still have had some radiating pain in the neck area even if an earlier operation had taken place.

192 Overall, the evidence does not permit me to conclude with any degree of specificity what of Mrs Thompson’s disabilities are present because of the delay in her coming to surgery for decompression. Indeed, my understanding of the medical evidence is that none of the experts was able to be certain, beyond the general statements that I have made reference to already, about what condition she would have been in if the operation had not been delayed.

193 My conclusions, therefore, about which of Mrs Thompson’s problems could have been avoided by an operation in or about March 2004 are these. First, she would have been spared a great deal of her central neuropathic pain syndrome but not all of it. Secondly, the radicular pain from the neck into the arms would have been reduced significantly but not eliminated. Thirdly, her balance and walking would have been better but she would have continued to have significant problems in relation to her walking not only from the osteoarthritis in the knees but from problems associated with the lumbar spine. Fourthly, the pain and paresthesia in the legs is unlikely to have been relieved by the earlier operation because it is related to the lumbar spine problems and the problems with the knees. Fifthly, she would have had some numbness and burning sensation in the abdomen and chest area but not as much as she now experiences. Sixthly, the bowel problems would not have been improved by an earlier operation. Seventhly, although there was not a great deal of evidence about it, she was unlikely to have had the bladder problems that she now experiences. Further, had the operation taken place in or about March 2004 it is unlikely that she would have needed a second operation.

194 For these reasons, Mrs Thompson establishes negligence on Dr Haasbroek’s part in his treatment of her at the consultation of 26 June 2003.

Damages

195 Mrs Thompson gave evidence in her statements of her disabilities and restrictions and what she was able to do before the first operation in July 2007. This evidence was not directly challenged and it is appropriate to set out the relevant paragraphs from her first statement:

[124] Prior to my first spinal surgery in July 2004, I would usually wake up at about 7 am, have a shower and get dressed. I would then mop the floors every day and then put a load of washing on. I would do the gardens and water the plants and hose down the verandas I would also clean the swimming pool as needed.

[125] Prior to my first spinal surgery, I drove a Holden Commodore with power steering. I drove to and from work, to and from the shops, to and from appointments and to Canberra for training through work and as needed.

[126] After I had my first spinal surgery, I was still able to drive in Leeton, however, my daughter Farrah, or a friend, would have to drive me to medical appointments outside of Leeton, including medical appointments in Griffith and Albury. I am now able to drive to Griffith for medical appointments. I am not able to drive for over 45 minutes due to the pain in my neck and back. I have driven once to Albury, but I had a friend in the car because after this return trip I was very tired and sore from sitting. My car now is automatic, has power steering and cruise control. I have a Disabled Parking Sticker that enables me to park in more accessible spots reducing the amount of distance I am required to walk to my destination.

[127] Before I had my first spinal surgery. I prepared my own breakfast, would usually purchase lunch at work and then would cook dinner at home for myself and my family. As my right arm function got worse towards having my surgery I found it difficult to cook dinner and would sometimes have lunch as my dinner. After I was discharged from Olympia Rehabilitation Hospital in August 2004, I had great difficulty with meal preparation. I was able to make porridge in the microwave and a cup of tea or coffee. I could make a sandwich. I could not do anything more than this.

[128] After I came home from Olympia, my daughter Farrah, moved home to look after me and she prepared my dinners, did the washing, cleaning and all other household chores. In around March 2005 as my marriage was breaking down I moved in with my mum and dad. I would purchase pre-cooked meals that only needed to be heated in the microwave. Farrah would come over every day to help with washing, vacuuming, general day to day maintenance of the house.

[129] I moved into the Birch Avenue house in June 2007 My daughter, Farrah, assists me with the preparation of meals and I am able to make tea or coffee, a sandwich and porridge. I have trouble lifting heavy pots and bending during cooking. This is as a result of the reduced strength in my hand grip, the fact that I tire easily, and because I find it difficult to lift and carry heavy items.

[130] Before my surgery, I would do all the laundry, including loading and unloading the washing machine. I would hang the washing on the line and do the ironing. Since my first surgery, Farrah and Mary Tasker have helped me with laundry activities. Also, I have had an attendant carer from Home Care Service NSW to help me. I can't hang the washing due to the restriction in movement of my shoulders. I also find it difficult to lift the heavy wet washing from the machine.

...

[132] Prior to my surgery, I was living in a house on an acre with a large garden and a pool. I did all the indoor house cleaning and window cleaning. I would clean the windows at least once per month because of dust storms. I would also mow the front lawn and the lawn around the swimming pool area. I would wash my car and attend to the acre of gardens. Since my first surgery, I need assistance with house cleaning, maintenance of my car and gardening activities. Mary Tasker helps me on Mondays and Home Care NSW provide 2 hours of assistance per week with house cleaning tasks such as vacuuming, changing bed linen and cleaning the bathroom. Kaleb or Farrah mow the lawn and Farrah makes the bed on days that Home Care does not come. I am unable to perform these cleaning and maintenance tasks because of my inability to lift heavy things, my inability to bend and the limited amount of movement in my trunk area. I am able to dust and tidy.

[133] Prior to my surgery, I would do all the household shopping and bill paying in either Griffith or Leeton.

[134] After my first surgery, Farrah did the shopping and bill paying until about March 2007 when I started to accompany her with some shopping. I use the shopping trolley as support and Farrah selects the items from the supermarket and carries the shopping to the car, then from the car to the house, and then unpacks the groceries I have tried to do the shopping alone, however, I am unable to do this as it makes me physically exhausted. I am able to do top-up shopping, bill paying and shopping for personal items.

[135] Presently, I am living with Kaleb. I try to get out of bed by 9am and then I have a shower and get dressed. I find it difficult to dress and it usually takes me around 1 hour to shower and dress. Farrah usually arrives at 10am in the morning and helps me to make the bed and tidy the house. I make my own breakfast. On Thursdays, I attend appointments, do grocery shopping with Farrah. In the evenings, I usually watch television.

...

[138] I am unable to take care of myself and my home as I used to, I have found it very difficult as I feel I have lost my independence I am unable to do things for myself such as shopping and cooking which I used to enjoy. I also enjoyed taking care of the garden and now I cannot take care of my garden properly.

[139] I have difficulty with my bowels and bladder I feel like I have lost the urge to go and have had periods where I manually had to operate my bowel.

[140] Dr Kirwin performed a left knee replacement in March 2007 at Albury Wodonga Private Hospital. The pain I experience in the left knee has decreased after the operation.

[141] Although I experienced pain in my knees prior to my spinal surgery, I was able to perform all my household chores including walking to the shops, gardening, heavy indoor cleaning, vacuuming, doing the laundry, and mowing an acre of lawn. I also travelled overseas and was able to walk around the cities and places I visited.

[142] My overseas travel is now limited because I can't stand in the lines to get on and off the plane and I can't sit for long periods of time, i am also limited in my walking so it would be difficult to do sight seeing.

[143] I used to love to shop for clothes but now I can't do this because of physical injuries.

[144] My social life is limited as I am no longer able to do dance. I used to love to dance to bands and this was part of my social life.

[145] I can't carry my grandchildren, or any other children, because I don't have the strength in my arms.

196 I have omitted from that statement paragraph 136 because in a later statement signed 4 days before the commencement of the hearing Mrs Thompson updated the position in relation to the pain and difficulties she experiences as follows:

[4] I currently get a sore, painful neck. The pain often goes down both my arms into my hands. I get tired very easily and find sitting for long periods difficult. My arms become heavy after I use them for prolonged periods, I get pins and needles and numbness in my hands. I have a corset-like area of burning pain in my torso particularly at the back. I take medication for this pain. It is reduced in intensity by Topomax, Duatrol/Panadoi Osteo, Efexor, and Tramal when necessary. My legs feel weak. Standing or walking for long periods is difficult. The pain I experience in my neck and trunk increases in severity with increased activity. The more I use my arms, hands and fingers, the heavier they become. Sometimes, when they become weak, I drop things unexpectedly, If I flex my neck forwards or extend it backwards, the pain in my neck is aggravated. My legs become weak if I walk or stand for prolonged periods. The pain I experience in my torso goes down my legs if I sit for longer then 20 to 30 minutes. I need to change my posture frequently so that I do not develop pain. Because of all of these complaints, I do not think I can do any work that requires typing, computer work, filing, or repetitive tasks with my hands or prolonged periods of sitting or standing.

197 The other significant development from what appeared in paragraph 126 of her earlier statement is that she gave evidence that she is now able to drive from Leeton to Albury and back on the one day.

198 I accept that Mrs Thompson suffers from the matters set out in her statements and has the restrictions on her that she there details. However, because of the matters I have discussed in paragraphs 176 to 193 above Mrs Thompson would have had many of these disabilities and restrictions whether or not she was diagnosed and treated earlier as I have held she ought to have been. This is either because the problems are not related to the cervical myelopathy (pain and restriction of movement in the legs and knees, pain in the lower back, bowel problems to the extent they are associated with the rectocele) or because they were myelopathic related problems that had developed prior to March 2004 when the operation ought to have been performed (some of the neck and radiating pain into the arms, some of the discomfort in the abdomen and trunk area and the bowel problems to the extent that they were related to the myelopathy). In relation to the latter group of problems she would have been afflicted with these in any event because, as the specialist experts agreed, the operation was unlikely to have improved the symptoms she already was experiencing except to the extent that a good deal of pain would have been relieved.

199 The task of determining what damages should be awarded under each appropriate head of damages is a difficult one when a number of causes brings about the total state of Mrs Thompson’s disabilities and restrictions. For example, it seems to me that the condition Mrs Thompson found herself in after the surgery necessitated the modifications to the properties she was living in. However, only some of the need for those modifications is causally related to Dr Haasbroek’s breach in failing to diagnose the radiculopathy in or about June 2003.

200 The way the rehabilitation specialists have approached the issue is to fix a percentage of Mrs Thompson’s disabilities that are related to the myelopathy. It is then necessary to fix a further percentage of those disabilities that result from the myelopathy which would not have eventuated had the operation been performed in or about March 2004.

201 Professor Jones took the view that 50% of matters were related to the myelopathy. Professor Faux thought that 75% related to the myelopathy. During the course of the concurrent evidence I raised with the 2 doctors the division between them in that regard. Neither was prepared to alter their assessment. Indeed, Professor Jones said that he felt he was being very generous in allocating 50% to the myelopathy.

202 In my opinion, Professor Jones did take a generous view of the apportionment. This is borne out by what I have discussed in paragraphs 176 to 193 above and particularly in the light of what Professor Faux said as set out in para 190 above. I bear in mind in that regard that he was largely addressing issues of pain but, as can be seen, the matters discussed went beyond pain to include balance and tripping as well as paresthesia. In these circumstances it seems to me appropriate to deduct a further 10% being the disabilities and restrictions associated with the myelopathy which were already present at the time the Plaintiff sought to have been operated on and would not have been improved as a result of the operation.

203 The approach I intend to take, therefore, is to assess the damages based on the whole of Mrs Thompson’s present condition and to apply a figure of 40% to those damages which will constitute the compensation to which she is entitled as a result of Dr Haasbroek’s negligence.

Non-economic loss

204 In my opinion, Mrs Thompson should, for the whole of her condition, be assessed at 75% at the most extreme case. This would entitle her to damages of $355,000. However, 40% of that results in damages for non-economic loss of $142,000.

Past out of pocket expenses

205 Excluding the cost of home modifications and travel expenses, these are agreed at $15,246.13 (including $719.50 for past medications) but subject to a determination of what relates to the breach. 40% is $6098.

206 The items in paras 81-83, 85 and 86 of the Final Scott Schedule for travelling are recoverable. In relation to items 84 and 87, Mrs Thompson gave evidence that she flew to Sydney on these occasions. It is reasonable to allow $300 per return trip for the plane fare for each occasion. Travel expenses are therefore allowed at $2136.

207 In relation to the home modifications there is evidence of an invoice from J & J Spratling for $24,145 for supplying and fitting a kitchen and supplying and fitting a laundry. There was also evidence that Mrs Thompson’s son Kaleb had carried out quite a bit of work in relation to modifications of the property and particularly the 2 bathrooms in the house. There is no evidence that he charged Mrs Thompson for this work or intended to charge her for it.

208 Modifications, particularly in the kitchen and bathroom area were recommended by Glynis Flanagan, an occupational therapist.

209 Mrs Thompson gave evidence that the property concerned had been owned by her and her husband since the early 1990s and had never been renovated. The interior of the house was redesigned and the kitchen was entirely gutted with a new kitchen and laundry installed. There is no doubt, and the Plaintiff accepts, that not all of the costs associated with the modifications can be sheeted home to Dr Haasbroek’s breach of duty. Mrs Thompson needed to renovate because of the state of the property and acquired a new kitchen with appliances. The Plaintiff says that $5000 is a reasonable proportion attributable to the myelopathy. Dr Haasbroek says that $1000 should be allowed.

210 Even allowing for the fact that Mrs Thompson obtained a new kitchen and laundry, and even allowing for the fact that the need for modifications is not solely related to Dr Haasbroek’s breach, I think it is fair to accept the Plaintiff’s claim of $5000 as a fair proportion of the amount expended being related to the needs resulting from the breach of duty.

Interest on past out of pocket expenses

211 The total is $13,234. Interest is allowed at 2.75% (being half the applicable interest rate) for 5.75 years amounting to $2093.

Past domestic assistance

212 Farrah Thompson gave evidence in her statement that she moved back to Leeton to look after her mother after her mother’s second operation. She said that she helped her mother out about 4 hours per day, 5 days per week in relation to household matters. In addition, she spent about 5 other hours per week doing the shopping and running other errands.

213 At the same time, her brother Kaleb assisted with some household tasks including mowing the lawn, gardening, assisting with meals and washing and cleaning.

214 The Defendant says that the thresholds in s 15(3) Civil Liability Act 2002 (not less than 6 hours per week and for not less than 6 months) have not been met. In my opinion, even taking into account the 40% that I have held is referable to the breach, Mrs Thompson exceeds the thresholds. Nor are the damages precluded by the restrictions in s 15(2)(b) and (c): Woolworths Ltd v Lawlor [2004] NSWCA 209 at [28]- [29].

215 The Plaintiff’s claims for past gratuitous care are set out in paragraphs 113 to 120 of the Final Scott Schedule. The items can be summarised as follows:

[113] Heavy cleaning from 13 July 2004 until 17 March 2006 (89 weeks x 2.5 hours x $22.90) $5095.

[114] Assistance with gardening from 13 July 2004 until 1 August 2007 (158 weeks x 1.25 hours x $22.90) $4523.

[115] Assistance with gardening from 1 August 2007 until 16 November 2009 ($3377.75).

216 Mrs Thompson accepts that these items need to be discounted for conditions unrelated to the myelopathy and submits that the discount should only be 25% in accordance with Professor Faux’s opinion. The evidence justifies these claims but they should be discounted by 60% for the reasons I have given. The Plaintiff is entitled to $5198.

217 The Plaintiff claims the following amounts but says they should not be discounted at all because these matters reflect what both Professor Jones and Professor Faux agreed up to mid-2006 was required in relation to the spinal condition. The items were as follows:

[116] Assistance with personal care for 3 months after knee surgery (12 weeks x 5.25 hours x $22.90) $1443.30.

[117] Assistance with shopping from 18 August 2004 to 30 November 2004 and 24 December 2004 to 2 May 2006 (181 weeks x 2 hours x $22.90) $8298.

[118] Assistance with showering and personal care from 16 August 2004 to 30 November 2004 and 24 December 2004 to 2 May 2006 (85 weeks x 5 hours x $22.90) $9733.

[119] Assistance with meal preparation from 18 August 2004 to 30 November 2004 and 24 December 2004 to 2 May 2006 (85 weeks x 7 hours x $22.90) $13,626.

218 I do not read the joint report as providing support for items 118 and 119 but this appears to be an oversight. In any event, the rehabilitation experts did not distinguish between what conditions were related to the myelopathy generally and those that would have been present in any event even if Dr Haasbroek had not breached his duty of care. In my opinion, what is claimed in these items is justified on the evidence taking into account the whole of the Plaintiff’s condition. Like the earlier items they should also be discounted by 60%. The Plaintiff is entitled to these items to $13,240.

219 For past domestic care the Plaintiff is entitled to $18,438.

Future domestic assistance

220 There are 2 aspects to this and they are found in items 121 and 122 of the Final Scott Schedule. Item 121 is now agreed at 2 hours per week for heavy cleaning at a rate of $32.30 per hour. The Defendant says that should be discounted by 50% attributable to the myelopathy whereas the Plaintiff says it should only be discounted by 25% (in accordance with Professor Faux) or 37.5% (the average of Professor Jones’ and Professor Faux’s discounts). But for this agreement I would, in accordance with what I have already discussed, have discounted the amount by 60%. In the circumstances, the amount is discounted by 50% in accordance with the Defendant’s submission. The Plaintiff is entitled to $26,150 in relation to this item.

221 Item 122 seeks assistance with gardening and handyman work for 3 hours per month at an agreed rate of $38.70 per hour. In my opinion this claim is a reasonable one in accordance with the Occupational Therapists’ reports. The total sum of $23,499 should similarly be discounted by 50%. Mrs Thompson is therefore entitled to $11,750 for this item.

222 The total for future domestic assistance is $56,338.

Past economic loss

223 Mrs Thompson had been employed by Centrelink as a personal advisor (trainer) since 5 May 2003. She worked in that position until 29 June 2004. Thereafter she ceased employment by reason of the problems associated with the myelopathy and the operations. There is very little evidence about Mrs Thompson’s employment. Most of the information is to be found in the report of the Vocational Assessor, Mr Ross Girdler, of 24 August 2007. He reports that she worked in a part-time position of 22 hours per week at Centrelink. She had applied for a full-time personal advisor position and had been informally advised that she had been successful.

224 It seems to me appropriate to award past economic loss on the basis of her existing part-time position. She was required to give up work in fact because of the operation in July 2004, her condition and the further operation in December 2004. On a part-time basis the agreed loss per week net is $404.95.

225 In addition, the rehabilitation experts agreed that she would not have been able to work for a 2 year period from July 2004 but thereafter could have worked in a clerical capacity. Her capacity for that sort of work was agreed by the vocational expert Mr Girdler at the time he saw her in August 2007.

226 Although, even if there had been no breach on Dr Haasbroek’s part, the Plaintiff would have been absent from work as a result of one operation, she would not have been absent from work as a result of a second operation. Further, because she would have had myelopathic symptoms which would have prevented her from work in any event regardless of Dr Haasbroek’s breach, I consider the appropriate way to deal with past economic loss is to discount the 2 year period by the 60% I have discussed above.

227 Her past loss at $404.95 per week for 2 years amounts to $42,115. When that figure is discounted by 60% she is left with a figure of $16,846 and I allow that sum for past wage loss.

Past superannuation loss

228 The Plaintiff is entitled to 9% of her past loss of wages amounting to $3790.

Interest on past economic and superannuation loss

229 Although the Plaintiff was not entitled to access her superannuation during the period for which the award has been given, she was deprived of the ability to pay that to a fund to earn interest in the ordinary course. She ought, therefore, to be allowed interest at the usual rate on that sum as for the past economic loss itself. Interest is therefore allowed on $20,636 ($16,846 + $3790) for 5.75 years at 2.75% totalling $3263.

Future economic loss

230 A claim is made for future economic loss. However, the 2 rehabilitation experts and the vocational assessment expert all agree that Mrs Thompson is capable of working as a clerk or in some other sedentary or like position.

231 The Plaintiff is not entitled to recover under this head.

Future medical expenses

232 The rehabilitation specialists agree that the Plaintiff should have bladder ultrasounds every 2 to 3 years, a review by a rehabilitation specialist every year and an MRI every 2 to 3 years. Whilst these matters are clearly related to Mrs Thompson’s myelopathy there is no evidence from the rehabilitation specialists or elsewhere that they are necessary because of the delay in diagnosis by Dr Haasbroek. Because I have concluded that the bladder problems are problems the Plaintiff has arising from the delay in diagnosis it seems reasonable to allow the claim for the bladder ultrasounds every 2.5 years. I accept the rate of her ultrasounds claimed by the Plaintiff at $235. At $1.88 per week x 809.6 the Plaintiff is entitled to $1522. The other items are disallowed, not only because there is no evidence linking them to the delay in diagnosis but because it seems inherently likely that the Plaintiff would need rehabilitation review and the MRIs because she has the myelopathy and not because of the delay.

233 A claim is also made for neurosurgery for the placement of a syringoperitoneal shunt. However, both rehabilitation experts say there is only a 2-5% chance of the need for this. Further, there is nothing relating this to the delay in diagnosis and I disallow this item.

Future medication expenses

234 Of the future medication expenses claimed Professor Faux identifies the need for Microlax 5 ml tubes for constipation relief, Efexor for depression, Duatrol for pain relief and Topamax for headache prevention as being necessary. I have held, however, that the constipation problems predated the consultation with Dr Haasbroek in June 2003. Microlax is therefore not needed because of Dr Haasbroek’s breach.

235 The tablets for depression were needed in any event although it can be accepted from what a number of doctors have said that the depression has been prolonged or made worse by the events which have happened and the ongoing pain, some of which would have been avoided by earlier diagnosis. Some of the pain relief was necessary in any event although it is accepted that a good deal of the neuropathic pain is referable to the breach. The amounts claimed for Efexor ($9585.66) and Duatrol ($6727.77) should be discounted in the ordinary course by 60% with the result that the Plaintiff is entitled to $6525 for those items. There should be a small discount for the Topomax claimed at $30,076.64 on the basis that the Plaintiff would have been spared much of her neuropathic pain had diagnosis been made earlier. I allow $25,000 in respect of the Topomax.

236 The Plaintiff is entitled to $31,525 under this head.

Future aids and equipment

237 The Plaintiff claims for the following items: a hairdryer stand, a shower stool, a long-handled washer, a kitchen trolley, a combined front loading washing machine/tumbler dryer, a walking stick, a jar opener and a draw type dishwasher all of which total $3732 when discounted over 29 years. These are items which the rehabilitation specialists say should be allowed. They are all matters where the appropriate discount should apply and I allow $1493 under this head.

Summary

238 I summarise the heads of damages recoverable by Mrs Thompson as follows:

(i) Non-economic loss $142,000

(ii) Past travel expenses $2136

(iii) Past home modifications $5000

(iv) Other past out of pocket expenses $6098

(v) Interest on items (ii), (iii) and (iv) $2093

(vi) Past domestic assistance $18,438

(vii) Future domestic assistance $56,338

(viii) Past economic loss $16,846

(ix) Past superannuation loss $3790

(x) Interest on past economic

& superannuation loss $3263

(xi) Future medical expenses $1522

(xii) Future medication expenses $31,525

(xiii) Future aids and equipment $1493

$290,542

Conclusion

239 I make the following orders:

(1) Judgment for the Plaintiff in the sum of $290,542.

(2) The Defendant is to pay the Plaintiff’s costs.

**********

LAST UPDATED:
29 March 2010