New South Wales Supreme Court CITATION : McInnes v Ahluwalia [1999] NSWSC 818 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 20150/95 HEARING DATE(S) : 7-10 June 1999 JUDGMENT DATE : 11 August 1999 Katherine Anne Langhorne McInnes (Plaintiff) PARTIES : v K. Ahluwalia (Defendant) JUDGMENT OF : Davies AJ COUNSEL : Mr A T McInnes QC, Mr A L Hill (Plaintiff) Mr P H Greenwood SC (Defendant SOLICITORS : Kenneth Harrison (Plaintiff) Tress Cocks & Maddox (Defendant) CATCHWORDS : Medical negligence; Damages; Value of chance CASES CITED : Malec v J C Hutton Pty Ltd 169 CLR 638 M B P (SA) Pty Ltd v Gogic 171 CLR 657 DECISION : Judgment against defendant; Damages assessed; Costs reserved. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DAVIES AJ Wednesday, 11 August 1999 20150/95 - Katherine Anne Langhorne McINNES v K. AHLUWALIA JUDMENT 1 HIS HONOUR: This is a claim for damages in respect of medical conditions suffered by the plaintiff, Miss Katherine McInnes, which are said to have been aggravated by the failure of the respondent, Dr K Ahluwahlia, to diagnose a condition of bilateral hip dysplasia when Katherine was a young child and also by his failure to advise the plaintiff's mother, Mrs Maxine McInnes, to have her daughter checked again at a later stage. The negligence is said to have occurred in April 1974 when the plaintiff, aged two months, attended with her mother on Dr Ahluwahlia. The existence of the condition, bilateral hip dysplasia, was not identified until 1990, when Katherine was sixteen years of age. Her left hip was operated on on 26 June 1990 and her right hip on 9 November 1990. On 3 October 1991, the pins were removed from the pelvis on both sides. In 1974, the name of the family was Thomas and the medical records of that period use that name. 2 Katherine suffered a condition in which each hip socket, the acetabulum, was steeper and shallower than it ought to have been. With this condition, the femoral head tends in the long term to migrate slowly upwards and there is increased pressure on the cartilage lining, the joint surface between the femoral head and the acetabulum. With the increased pressure over time, the cartilage tends to wear away and the joint can become painful and stiff and subject to osteoarthritis. In a severe case, the femoral head may become displaced. 3 The condition can be, and probably was in Katherine's case, genetically based. Female children tend to suffer the condition more than male children. Katherine's elder sister, Josine, who was born on 14 June 1971, suffered at birth from bilateral dislocation of the hips. She was treated by Dr Gordon Colvin, a specialist in the field, and was placed in a Pavlic harness for fourteen months. This harness encouraged the bone structure to develop normally and Josine suffered no residual consequences. It is a matter of interest rather than of any particular significance that another daughter, Olivia, born to Mrs McInnes in 1988, also suffered from the genetic condition. Her condition was identified shortly after birth and she also suffered no further problems after wearing a harness for seven months. 4 I have said that Katherine was born with bilateral hip dysplasia, not bilateral hip dislocation from which Josine suffered. It is agreed by the medical witnesses that the distinction is important. Dr John P H Stephen, a specialist in paediatric orthopaedics, who operated on Katherine in 1990 when she was sixteen years of age, gave evidence that Katherine suffered from dysplasia of both hips with early subluxation on the left side. He described the subluxation as early dislocation. In his oral evidence, Dr Stephen said that Katherine may at birth have had a dislocation on the left side which subsequently stabilised. However, I think it improbable that that was the case. I think it probable that, had there been a dislocation at the time of birth, that would have been picked up by either Dr Ahluwahlia or the paediatrician, Dr Oldfield, who examined Katherine shortly after her birth and who detected no abnormality. Dr Stephen said that, with dysplasia, the femoral head tends to migrate slowly upwards. He said that subluxation occurs when the femoral head starts to slide outward. 5 Dr Stephen said that when he first saw Katherine on 22 March 1990 she stood without any muscle wasting. She had a very mild left-sided limp and the lower left limb was 7 mm shorter than the right but the Trendelenberg test was negative showing no muscle weakness. Katherine had a good range of movement although there was some mild restriction. The left hip was showing probably the beginnings of sclerosis, indicating early degenerative change. For reasons I shall later mention, I think that symptoms of pain from Katherine's left hip began to emerge in the year before the operation. 6 I do not think it could be seriously contended that, in 1974, Dr Ahluwahlia was negligent in not diagnosing for himself Katherine's hip dysplasia. Evidence has been given that, since 1974, radiography has much improved. Ultrasound is also now used as a diagnostic tool. Even so, the evidence is that it can be difficult to diagnose the condition of dysplasia before the bones have firmed up at about six months. A displaced hip can be more readily detected. 7 The issue on negligence thus turns upon the question whether Dr Ahluwahlia should have given to Mrs McInnes a reference to an appropriate specialist which she requested, and whether, in any event, he ought to have advised Mrs McInnes to bring Katherine back after a few months to be checked again. 8 There was a great deal of agreement between the medical experts; but I should observe that, in this case as in other cases, the process of examination and cross-examination has tended not to resolve important questions about which the evidence differs. Other jurisdictions are adopting the procedure, which was first commenced in the Trade Practices Tribunal, where the experts appear together in a consultation with the court or tribunal. At such a hearing, experts tend to resolve many of their differences and make it clear what are the differences which remain and why each expert holds his or her view. In the present case, we are left with some important issues about which further clarification would have been desirable. 9 I shall set out the substance of the matters in respect of which the experts were in agreement and I shall do that by referring to the report of Dr J S Scougall, who was not cross-examined but who set out in his report a number of principles in very clear and what appear to be fair terms. I incorporate and join together aspects of his report and aspects of his addendum. Dr Scougall said, inter alia: " At the age of 2-3 months, if there had been concern that the hips may not have been normal, then reasonable treatment at that time would have been to physically assess the hips then and at regular intervals, to check for the maintenance of stability, and then to carry out, at about the age of 6 months, a radiological examination. ... The difficulty with interpretation of radiological examinations in a neonate is related to the fact that there is relatively more growing cartilage which does not show up on radiological examination and relatively less bone, which of course does. ... the degree of dysplasia is quite frequently difficult to assess in radiological examination at the age of 6 months. ... It should be pointed out that the vast majority of dysplastic hips usually spontaneously resolve. These days, with the introduction of ultrasound examination in neonates and continuing observation of these hips that are found to be dysplastic, it appears that very few do not resolve ... Genetically determined causes of failure of a child's hip to develop normally are usually more difficult to treat with end results that are less satisfactory. ... Failure of the dysplasia to improve, over the years, enough to be thought to be acceptable, would have warranted discussion on the possible merits of surgical correction. ... By acceptable is meant that the probable risk for the later development of osteoarthritis of the hips is held to be not great enough to justify the risks of surgery for the child. ... I would add ... that hip dysplasia, in the presence of a concentrically reduced hip prior to any subluxation causing osteoarthritic changes, is asymptomatic. " 10 I set out those matters from Dr Scougall's report because I can see no element of bias in them. It seemed to me that Dr Stephen, who was called on behalf of the plaintiff and Dr Stalley, who was called on behalf of the defendant, both tended on occasions to overstate a point. Dr Scougall reported to the defendant's solicitors. 11 An issue between the experts was whether Katherine's hip dysplasia would have been identified had an x-ray been taken when she was about the age of six months. Dr Stephen said, "X-ray at about the age of twenty weeks in an infant is pretty reasonable showing either a dysplasia or a dislocation". However, Dr Stalley expressed, as did Dr Scougall, the point that, in 1974 when ultrasound and more modern radiological developments were not available, the diagnosis of dysplasia and of its degree was difficult in the early months and became easier as the child grew older. I accept Dr Scougall's description of the position. 12 That leads to the issue whether, had Katherine been diagnosed at an early stage as suffering from dysplasia, she would have been treated with a Pavlic harness, as had Katherine's elder sister Josine. Dr Stephen said that the harness is the ideal method of treatment and he said that the number of orthopaedic surgeons who would fail to use a harness would be in the minority for the reason that the longer one waits to treat the problem the less is the potential for regeneration. Dr Stalley said, however, that a Pavlic harness is used with either dislocated or dislocatable hips, hips which show a problem on physical examination. Dr Stalley said he had not seen a Pavlic harness used in any instance for progressive dysplasia or for hips that did not dislocate. He said that the use of the Pavlic harness is a hotly debated topic in the circumstances of a child such as Katherine. Dr Stalley gave this oral evidence: " There is no doubt in the literature that success rates of Pavlic harness usage when started in children from four to six weeks of age is around 90 per cent in correcting dislocating and dislocatable hips. But if you have no dislocation or dislocatable hips and you can't … x-ray until the child is older ascertain that they have a dysplastic hip then you would start the use of the Pavlic harness when you can begin to make those radiological estimations around six months that can say this child has significant dysplasia, if you then start to use the Pavlic harness at that age its efficacy is reduced because the ability of the hip to accommodate and change has significantly reduced and the likelihood of something such as avascular necrosis go up so there is a reticence to use the Pavlic harness purely for dysplasia in the older child . " (emphasis added) 13 In his report, Dr Scougall did not mention the Pavlic harness. I infer that his opinion was similar to Dr Stalley's on this point. When speaking of what might have occurred had x-rays been taken at the age of six months and disclosed dysplasia, Dr Scougall stated: " Assuming the hips at that stage were concentrically reduced, which the subsequent history indicates, then continuing observation would have been recommended, with periodic radiological assessments every 6-12 months. " 14 In the result, I conclude that the use of a Pavlic harness was just one of the options that would have been available to a doctor had dysplasia been identified when Katherine was about six months. As Dr Scougall suggested, it would have been appropriate for there to be radiological examination at intervals to ascertain if Katherine had a problem. If those examinations had occurred, then, at six months or a few months thereafter, x-rays would probably have shown that Katherine suffered from hip dysplasia. Whether a Pavlic harness would have been used at that point would have depended upon the view of the doctor as to its possible benefits and the problems to which its use then could give rise. 15 Another option for treating dysplasia was an operation. The experts seem to be agreed that, had an operation been undertaken, it would have been undertaken before the child reached the age of five or six or after the age of twelve, probably at about sixteen when she was actually operated on. Dr Scougall said that, in a pre-school child, the operation frequently discussed is an innominate osteotomy, with some doctors recommending a femoral osteotomy, while, in the older child, twelve years or over, the operation is usually a triple innominate osteotomy. The latter was the operation actually performed on each of Katherine's hips. Dr Stephen said that, had he operated before the age of six, he would have performed a femoral osteotomy. 16 Katherine's birth occurred on 25 February 1974 in the Mona Vale District Hospital. It was noticed that there was a slight click in Katherine's left hip. Katherine was put into double nappies which acted as a primitive harness. Clicky hips may have many causes and are not necessarily a result of hip dysplasia or hip dislocation. Double nappies appear to be of doubtful therapeutic value. 17 The resident medical officer noted for the purposes of a consultant, Dr Oldfield, a paediatrician, that Mrs McInnes' previous child had suffered from severe jaundice and congenital dislocated hips. Dr Oldfield examined the child. He prescribed treatment for Katherine's jaundice. As to the hip condition, he merely noted, "I have discussed problem with mother". Mrs McInnes said that she was informed by Dr Oldfield that he could find no problem with Katherine's hips. Dr Oldfield directed that the double nappies be discontinued. 18 On 3 March 1974, the night nurse noted in the records that Katherine had a slight click in the left hip and that the mother was aware and would consult her own GP in two weeks. Mrs McInnes did not raise the matter with Dr Ahluwahlia when she saw him on 12 March 1974. Her evidence is that she obtained from her obstetrician, Dr Newlinds, a reference to Dr Colvin who had treated Josine. At about that time, Dr Newlinds wrote to Dr Ahluwahlia on 17 April 1974 as follows: " I saw Mrs Thomas today some seven weeks after the birth of her baby girl. I could find no abnormality when I examined the daughter. She has been told by two different Sisters at the hospital that there is a click in one hip but I have not been able to detect it. However, she has a sister who had bilateral marked congenital dislocation of the hip and therefore I feel the matter cannot be ignored. I have taken the liberty of referring her directly to Dr Gordon Colvin who managed the last baby's hips. I suggested he contact you directly. " In the same letter, Dr Newlinds said that he had given Mrs McInnes a contraceptive device and he asked Dr Ahluwahlia to check the position of it in about a week's time. 19 What happened next is a matter of dispute. Mrs McInnes gave evidence that she tried to obtain an appointment with Dr Colvin but could not do so, probably because of Dr Colvin's ill health. She said that she made an appointment with Dr Ahluwahlia with a view to obtaining a reference to another specialist. She said that Dr Ahluwahlia declined to give the reference but examined Katherine himself. He could find no problem with Katherine's hips. In his evidence, Dr Ahluwahlia said that he could not recall the consultation and had no note of it. 20 However, Dr Ahluwahlia's note taking was deficient. There is at least one entry with respect to Mrs McInnes on the card which he kept for Josine and, although Dr Ahluwahlia kept no record of the consultation with which we are now concerned, there is on the card which he kept for Katherine the date 26 April 1974. Against that date there is no entry. It is the only such circumstance in the record cards which are in evidence. It is probable that Mrs McInnes did see Dr Ahluwahlia on that date to have the contraceptive device checked and that, during that consultation, she discussed Katherine's hips and asked for a referral to a specialist. The fact that both Katherine's hips and the contraceptive device were referred to in Dr Newlinds' letter is a strong indication that both matters would have been discussed during the consultation. Moreover, there is no good reason to reject Mrs McInnes' evidence that she could not obtain an appointment with Dr Colvin and that she asked Dr Ahluwahlia for a referral to another specialist. It is probable that she did so. 21 Dr Ahluwahlia did not disagree that, if Mrs McInnes had asked for a referral, he would himself have examined the child. It follows that, at that consultation, Dr Ahluwahlia examined Katherine and could find no problem with the hips. It is probable that Dr Ahluwahlia was informed that the paediatrician had also examined Katherine and could find nothing wrong and that he concluded that there was no need to refer Katherine to a specialist at that time. 22 At the present day, attitudes in the profession have changed and investigatory techniques have improved. Although Dr Stephen and Dr Stalley agree that it would have been appropriate for Dr Ahluwahlia to refer Katherine to a specialist, I accept Dr Stalley's evidence that, prior to 1980, it was a matter about which a general practitioner would have exercised his own judgment. It is to be kept in mind that Dr Ahluwahlia and Dr Oldfield would have been familiar with the tests to be applied in such an examination and that Katherine was, at that stage, too young for radiological examination. 23 I cannot conclude that Dr Ahluwahlia was negligent in not giving to Mrs McInnes the reference that she requested. General medical practitioners are bound to exercise their own judgment as to whether or not there should be a reference to a specialist. Dr Ahluwahlia made an investigation and could not detect any abnormality or symptoms thereof. I am satisfied that Dr Ahluwahlia would have been informed that the consultant, Dr Oldfield, had looked at the child and could identify no problem. I am not satisfied that, at that stage in April 1974, there were any such symptoms or other circumstances as would have required Dr Ahluwahlia, in the exercise of his duty of care to Katherine, to refer her to a specialist. In his oral evidence, Dr Ahluwahlia said that, in 1974, his view as to the value of seeing an orthopaedic surgeon in circumstances where there was a suspicion of hip dysplasia was that you needed to confirm the diagnosis by x-rays and that Katherine was only two or three months old, whereas x-rays were taken when children were six months or so of age. He said that he would never hesitate to send a patient to an orthopaedic surgeon, for he did not practise orthopaedics. 24 The question remains, however, whether Dr Ahluwahlia should have advised Mrs McInnes to come back for further investigation when Katherine was a little older. I am satisfied on the probabilities that he did not give that advice. That is because, not only has Mrs McInnes denied receiving such advice, but it is probable that, had she received the advice, she would have kept it in mind and would have brought Katherine back to Dr Ahluwahlia or to another doctor for further investigation. Mrs McInnes was well aware of the problem and of its significance. 25 In a written statement, Dr Ahluwahlia said: " 23. If presented with a history of clicking hips I would conduct my own examination. If I could find no evidence of clicking hips I would ask for the parent(s) to return the child to me for review when the child was weight bearing at about 10-12 months. If I was still in doubt at that stage I would arrange an x-ray which would show evidence of dislocation or dysplasia. " In his oral evidence, Dr Ahluwahlia reduced the period of 10-12 months, which appears in his written statement, to six months. Drs Stephen and Scougall said that, if a child is at risk of dysplasia, a doctor should keep the child under review. They are agreed that, if there is a risk, which there was with Katherine because of her sex, her sister's condition and her clicky hips, then from the age of six months onwards, further investigation should be undertaken. Dr Ahluwahlia's written statement accorded with that. 26 It follows in my opinion that, having regard to his knowledge of Katherine and to his receipt of Dr Newlinds' letter, which emphasised the importance of investigation, Dr Ahluwahlia should, on 26 April 1974, either then and there have given a reference to a specialist or have advised Mrs McInnes in clear terms to return to him when Katherine was six months of age. Dr Ahluwahlia did neither. In that, he was negligent. 27 It may be that Dr Ahluwahlia gave advice which was inadequate. In his written statement, Dr Ahluwahlia said he would ask that the child be returned for examination when the child was weight bearing. In his oral evidence, Dr Ahluwahlia said: " Q. And you are going to leave that 10 to 12 months? A. See it is, weight bearing starts at the 9 to 10 or 12 months, some children have problems with the weight bearing or could not stand so you get the x-rays and you check for dysplasia. Q. And you wait 10 to 12 months to check for dysplasia? A. Depends when the child complains . " (emphasis added) 28 These answers suggest that Dr Ahluwahlia would have waited for some complaint from the child or for some problems of weight bearing and it may be that the advice which he gave was to keep an eye on Katherine and to bring her back if that occurred. If that advice was given, and there is no evidence that it was, the advice was inadequate because the evidence before the Court shows that hip dysplasia is usually asymptomatic until there is wear in the joints. Very often a problem of hip dysplasia will not show up until a child is sixteen or eighteen years of age and may not show up until much later in life. The evidence also shows that treatment should commence as soon as is practicable, while the bones are forming. 29 In the circumstances, I am satisfied that Dr Ahluwahlia did not exercise the degree of care towards Katherine which a doctor in his situation ought to have done. The fact that he did not even make a note of the consultation is perhaps one indication that, on that day, he was not exercising due care so far as Katherine was concerned. 30 That brings me to the question of the lost chance. The issue is to assess the prospects that Katherine would not later have had physical problems had Dr Ahluwahlia either sent her off to a specialist orthopaedic surgeon for examination or had he advised Mrs McInnes to bring her back for an examination at about age six months. I think the six months period is the important time for I think that it is improbable that both Dr Ahluwahlia and Dr Oldfield missed any matter that should have been observed in the early months of Katherine's life by a physical examination. Therefore, the issue is as to what might have occurred had either an orthopaedic surgeon or Dr Ahluwahlia examined her again when she was about six months of age. 31 Here the evidence of Dr Stephen conflicts with that of Dr Scougall and of Dr Stalley. I accept the evidence of Drs Scougall and Stalley that, even at six months, the identification of dysplasia from x-rays was an uncertain task. It is probable that, at six months or at least during the 6-12 months period, dysplasia would have been identified. By then, the best prospects of using a Pavlic harness would have passed. Perhaps a harness would have been used, perhaps not. Katherine would have been kept under observation and it may be that an operation would have been performed at least on the left hip when she was about the age of five. This operation would of course have involved Katherine in significant trauma. There is also a possibility that Mrs McInnes would have been advised or chosen to wait to see how the hips developed and that no operation would have been carried out until about the time or shortly before the operations were actually performed. 32 Doing the best I can in this difficult field, I would assess the prospects that Katherine would have achieved a full recovery by reason of an early operation, the use of a harness or other treatment, at 50 per cent. This does not mean that I am satisfied as a matter of probability that Katherine's problems would have been overcome had Dr Ahluwahlia sent her to an orthopaedic surgeon or advised her mother to have her further examined at the age of six months. Rather, my view is that the chance of such recovery was about 50 per cent. 33 The damages issue is complex for, after the operations of which I have spoken, Katherine demonstrated a psychiatric condition of severe depression and social phobia. Dr Lisa Lampe, a consultant psychiatrist, on 29 November 1995 described the condition as follows: " Ms McInnes' psychiatric diagnoses, in accordance with the DSM-IV classification are Axis I: Major depression (recurrent), social phobia Axis II: avoidant personality disorder, borderline personality traits The observable features are anxiety and avoidance of social interaction, recurrent depression, suicidal thoughts and attempts and other self harming behaviour, and an extremely poor self image and low self esteem. " 34 There was a history of depression in Katherine's family at the level of her grandparents. J Parmegiani described her as biologically vulnerable to depression whilst Dr R McMurdo said she had a considerable congenital predisposition to both her depression and her anxiety or phobic condition. Dr McMurdo, who examined Katherine on behalf of the defendant, stated that Katherine would have developed some difficulty psychologically had she not had the difficulty with her hips. He noted that, had she not had any sexual assault nor suffered any problem with her hips and had had a very stable biological family, she might still have developed later depression and anxiety to a significant and serious degree. 35 Dr Lampe also agreed that it was very probable that Katherine would have developed a psychiatric illness whether or not she had had any hip problems. Another factor which played a part was that, when Katherine was aged six and again when she was aged twelve, Katherine was sexually assaulted. I need not mention the distressing circumstances of these assaults except to say that Katherine was so distressed and embarrassed by the second assault, which involved four youths, that she kept it to herself and did not disclose it until she was nineteen years of age. This, of course, tended to affect her underlying psychological condition. Dr Lampe was satisfied that the assaults, particularly the assault when she was aged twelve and before she attended secondary school, were major factors in Katherine's psychiatric problems. Dr Lampe agreed that, in terms of the stressors that were significant in the development of Katherine's psychological problems, the sexual assaults were, "at the very front ... by a long way". 36 However, I am satisfied that Katherine's hip condition contributed to the development of the severe psychiatric illness from which Katherine suffered in recent years. Dr Parmegiani spoke of bilateral hip pain during childhood but, as I shall later mention, I do not think there was any such pain. Dr Lampe and Dr McMurdo were, however, in agreement that the operations and Katherine's post-operative condition played a part in contributing to Katherine's illness. This view finds strong support in the report of Dr Phillip Ridge who had first seen Katherine on 9 March 1990 when she complained of left hip pain for ten days. Dr Ridge gives this description of his consultation on 20 February 1991, after the second operation: " The next occasion I saw Miss McInnes on the 20th February 1991 at which time it appeared she was depressed. She had the second operation on the 9th November 1990 by Dr John Stephen. At the time I saw her she had poor concentration and having difficulty talking to people. She had considered suicide and she had been like this for one month. She said she wanted to sleep all the time and had strange dreams about dying. She has difficulty doing her work especially Maths and she was said to have gone 'hysterical' on the previous Monday. She couldn't control herself and wouldn't accept any help from friends especially her best friend. She had no interest in school. She said she was like this before her surgery but not as bad and she could control things but now she felt she was unable to hold her feelings. She felt she was two people looking at herself with loathing and disgust in that she could not do anything. I suggested she see Dr Mel Bennett, Psychiatrist as soon as possible. " The sequence of events itself suggests that the hip operations, their trauma and their interference with her normal life, played a part in aggravating Katherine's underlying psychiatric illness. 37 Katherine recovered from that episode but had a very severe breakdown when she attended the Queensland Conservatorium of Music in 1993. Dr Lampe explained that development in these terms: " Going to university is a much more demanding proposition than being at school. " Dr Lampe considered that the problems which Katherine had had with her hips and the prolonged absences for hospitalisation would have interfered with her normal social development. Dr Lampe thought, however, that Katherine's problems with her hips were not a major problem at the time she left school in 1992 and that perhaps her hip problems had played a greater part thereafter for, at the present time, it was her pain and disability that was stopping her performing normal activities that her psychological state permitted. 38 Dr McMurdo expressed the view that it was very probable that the interstate move was an aggravating factor with Katherine's social phobia and that moving away from familiar surroundings, support, and family, to a different and competitive environment was very likely to have aggravated the anxiety of the social phobia. He also explained that individuals with Katherine's condition are generally very fragile emotionally and more easily distressed by threats to their efficiency or body image. He said that Katherine's hip problems would, in his opinion, be placed fairly high in the order of the various factors which aggravated her emotional fragility. 39 There was a specific factor related to the hips which played a part in Katherine's breakdown which occurred at the Conservatorium. As part of her studies, Katherine had to undergo a movement course. This course was a demanding one and Katherine found that she was inadequate and that she suffered pain and discomfort. This increased her inability to cope with life at the Conservatorium. In all the circumstances, I am satisfied that the hip problems played an active role, perhaps a small one if Dr Lampe's evidence is to be preferred, but nevertheless a contributing role in the development of Katherine's psychiatric illness. 40 Two further matters flow from this description of Katherine's illness. The first is that I cannot accept as accurate all the problems that Katherine now alleges she encountered as a result of her hips. The second is that there is disagreement as to how the damages issue should be approached. The case put by Mr A T McInnes QC, with him Mr A L Hill, for Katherine was that, as the hip condition contributed to the depressive condition which developed, the fact that Katherine was likely to have developed a psychiatric illness in any event is irrelevant. Mr P H Greenwood SC, counsel for Dr Ahluwahlia, submitted that the damages issue must be approached on the footing that Katherine would in any event have had a severe psychiatric condition which would have interfered with her life. 41 Mr Greenwood relied upon Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 in which it was held that where questions as to the future or hypothetical effect of physical injury or degeneration arise, the degree of probability of the occurrence of associated future or hypothetical events must be evaluated by the Court. What had to be evaluated in that case was the plaintiff's future earning capacity and the prospect that his deteriorating back condition would have precluded him from engaging in gainful employment had he not contracted the disease of brucellosis from his employment. As was said in Malec at 639-640, 642-643, past facts should be determined on the probabilities whilst, when the Court is considering future facts, it must conjecture about the hypothetical. 42 The significance of this discussion is that, in the present case, Katherine's underlying psychiatric condition, her depression and social phobia, and the possibility or probability that because of that condition she would not have gained employment as an opera singer, the profession to which she aspired, notwithstanding that her voice and her appearance qualified her to do so, is a factor which must be taken into account in assessing the effect which the bilateral hip dysplasia has had on her life. 43 I turn now to deal with the question of damages as if liability for the whole of the damages were established. 44 During her early years, Katherine had some pains in her legs. I am satisfied by the expert evidence that these would have been normal "growing pains" not related to her hip condition. I am satisfied that Katherine suffered no relevant symptoms until she was a boarder at Kinross Wolaroi School in Orange. She commenced at that school when she was about twelve after the second assault which I have mentioned. Katherine gave evidence that both at primary school and at the Kinross Wolaroi School when she undertook sport she had a lot of pain afterwards unless the sport was swimming. She gave evidence that she had a problem with walking after a lot of exercise, that her gait would change and she would start to get a rolling motion which worsened as she got older. Such a description did not find support with the experts called on behalf of either party. I think that much of Katherine's complaints have their source in her psychological problems and in a disinclination which she had to engage in active sports. On the evidence, particularly of her mother, Katherine tended to sit rather than be active. She tended to be overweight. 45 Katherine's mother gave evidence that Katherine was "a clumsy, perhaps overly clumsy, uncoordinated child" and that her condition did not improve as she grew older. Mrs McInnes said Katherine has led "a very soft, quiet life as a child" and that when she went to the Kinross Wolaroi School she was a bit overweight, did not do a lot of exercises and seemed to read a lot. Mrs McInnes said that when Katherine came home on holidays she would occasionally, after exercise, have a bad night after walking up the hill or doing any more than she was used to doing. 46 It is a feature of Katherine's life that she has tended to be sedentary and to have complaints of pain after exercise. However, there is no medical evidence which would support a finding that these problems resulted from her hip dysplasia. The evidence is that hip dysplasia tends to be asymptomatic until wear occurs in the joints. All the doctors rejected the view that the pain which Katherine described in her early period resulted from her hip condition. The conclusion I draw is that Katherine had an inherent dislike of activity and a tendency to be sedentary and, accordingly, that when she did exercise she felt discomfort which arose from the inadequate use of her muscles. I shall later mention the report of Dr R Laurent who considers that much of the pain and the problems which she is now encountering is arising from reduced movement and weakness in her muscles. 47 At the end of February 1990, Katherine complained of a sharp pain in her left hip. She saw a sister at the school and at Mrs McInnes' request was referred to a physiotherapist. On the physiotherapist's advice, she was sent to see Dr Phillip Ridge, a general practitioner. He saw Katherine on 9 March 1990 and took a history of left hip pain for ten days. He also noted, "She had occasional hip pain with running". Dr Ridge considered that x-rays should be performed and possibly orthopaedic review should be undertaken. 48 Katherine thereafter saw a Dr Meachin and then Dr John P H Stephen, a specialist in paediatric orthopaedics. He saw Katherine on 22 March 1990. He found that she had a very mild left-sided limp and that the left limb was 7 mm shorter than the right. She had good range of movement in her left hip. After examining x-rays, Dr Stephen concluded that Katherine's right hip was dysplastic whereas the left hip was dysplastic with early subluxation. Using a Trendelenberg test he found no weakness in the hip muscles. He considered that the left hip was suitable for a triple osteotomy procedure in which the acetabulum would be realigned. He undertook the operation on the left hip on 26 June 1990. After the operation, Katherine was in traction for six weeks before mobilising and on crutches for another four weeks. On 9 November 1990, Katherine's right hip was treated in a like manner and again Katherine was in traction for six weeks and in a wheelchair and on crutches for another four weeks or so. She described the pain while she was in traction as agonising. A good correction of the acetabular angle was achieved in both hips. A year later, on 3 October 1991, the pins were removed from the pelvis on both sides. Dr Stephen expected a good result. 49 Notwithstanding her operations in 1990, Katherine passed through her six years of secondary school without having to repeat. Her school reports from 1992 are favourable although her marks seem to have been slightly under the average. A reference given by the principal included the comments, "We have found Kate to be a capable, conscientious student who has excellent communication skills ... Kate is a responsible young lady with an excellent sense of humour, who is very trustworthy and reliable". 50 In addition to her school activities, Katherine undertook a good deal of classical singing. In Year 12, she won a scholarship for vocal tuition which was the Godfrey Turner Memorial Prize in Star Quest, an instrumental and vocal competition in New South Wales and the Australian Capital Territory. She won a prize in an eisteddfod held at Orange and was soloist at an opera workshop which put on an opera in Sydney. At school, she was involved in productions of Iolanthe, The Mikado, Hawaii, and Pyjama Game and was a member of the Madrigal Singers, senior and junior choirs and the junior ensemble. It does not appear that Katherine's hips were, during 1992, holding back her general development. Her great interest was singing, for she had an outstanding voice and in that field she did very well. Mrs McInnes gave evidence that Katherine was very much alive on the stage, perhaps more alive there than anywhere else. 51 LM Paix, Director of Music at the Kinross Wolaroi School has written in glowing terms of Katherine's potential. He said that her potential astounded many people on the staff of the school and that that potential, with her diligence and great determination, had reached the highest peak he had known in any school student in his twenty-six years as a music educator. He said that her vocal clarity, power, maturity and rich timbre made listening to her perform a great joy and privilege. He said that her achievements to date were outstanding but only illustrative of the potential of greater things to come. 52 In 1993, Katherine was accepted into the Queensland Conservatorium on the strength of her ability. She attended there for only four months before becoming severely depressed. She sought psychiatric help and has been under psychiatric treatment ever since. 53 Katherine's breakdown was a severe one and she has not been able to continue with her singing since that time. She returned to Sydney and was admitted to the Northside Clinic at Greenwich under the care of a Dr Diamond. She was admitted to the Northside Clinic on three occasions. Subsequently, Katherine was referred to Dr Lampe at the Eversham Clinic where she has been admitted on about eleven occasions. Over the years, Katherine has been treated with antidepressants, psychotherapy, hospitalisation and electroconvulsive treatment. Her few attempts to work at remunerated employment have been unsuccessful. She suffered awful personal problems which I need not detail. For some years, she was an alcoholic and at one stage she suffered a conviction for an alcohol induced offence. During 1993 to 1996, she was greatly depressed and attempted suicide with drugs on three occasions. Her relationships have been unhappy. In brief, she has undergone some terrible years. 54 It is a striking feature of this case that, although the medical experts are agreed that the condition of hip dysplasia is asymptomatic until there is a wearing out of the cartilage lining and ultimately the development of osteoarthritis, Katherine's evidence gives a picture of constant problems with her legs from an early age and her evidence as to her condition after the operations was to similar effect. The following are extracts from Katherine's evidence as to her condition in earlier years: " Q. You have had aches and pains in your body? A. Yes. Q. What is your first recollection of those? A. When I was five or six, whenever I did any exercise, I would always have aches and pains in my hips and thighs, and down to my calves afterwards. ... Q. Were they worse at some time of the day than at others? A. After exercise in the evening, I wouldn't be able to sleep at night, and mum and dad would give me Panadol and make me walk to try and relieve the pain. ... Q. After you commenced sporting activities, how long did it take for the pain to come on? A. Ten minutes, fifteen minutes. ... Q. Did you find something about running? A. I would fall over, I couldn't - in 1989/1990 it got to a stage where I just couldn't run, I couldn't pick up speed. Sometimes I would fall over with severe pain. ... Q. By 1990, was your physical condition getting worse? A. Much worse, yes. … Q. When were you sore? A. It would - it only had to be a short walk, any sort of walking or standing for any length of time. Staying in any position, even sitting for any length of time in the one position. " 55 This evidence does not fit the medical evidence as to the effects of hip dysplasia. I have already set out an extract from Dr Scougall's report. Dr Stephen reported on 2 September 1996: " Almost certainly these severe leg pains, about the age of six, at night before bedtime and after she had been in bed for a while, were the pains of so-called "painful legs of childhood" or "growing pains". These would in no way be related to any hip condition. It would appear that the left hip may have been symptomatic on and off prior to Dr Meachin's referring her to me on 15/3/90 although the aching which drove her to see him had only been present for about two and a half weeks beforehand. " In his report of 8 May 1996, Dr Stalley said: " Over the next years, up until the age of 16, Katherine complained, apparently, of bilateral leg pain, radiating down to and involving the shins such that her Mother during the evening was required to massage her shins to relieve the pain. I do point out that that particular symptom is not consistent with pain coming from the hip joint. ... It was not until the age of 16, when she complained of increasing groin pain, that a further X-ray was taken. I do note that the patient is unable to distinguish between the pain that was getting worse at the age of 16, and the leg pains that she has had all her life. All she can say is that the severity got progressively worse and that was why she sought further help. " In his oral evidence, Dr Stalley said that the pain which Katherine said she suffered over the years was grossly atypical of hip pain. 56 Dr Stephen undertook the operation expecting to give Katherine two good hips which would last for many years. However, Katherine's complaints have been similar but worse. She gave this evidence: " Q. What about your hips and knees after walking, you told us earlier that you were having problems. What about the present time? A. Ten to fifteen minutes I start to feel pain in my hips and knees, and then afterwards referred pain in my thighs and calves. ... Q. What about sitting, does that cause any problem? A. Yeah, I have to switch positions quite regularly, because I get sore. Q. What kind of pain is it in the hip, can you describe it? A. It is a burning pain. Q. Is it on the surface? A. In the socket. Q. Your back? A. My lower back, I get an aching pain in my lower back. Q. Is there any particular time that you get it? A. When I have been lifting, or I walk too far. ... Q. At one time you had a limp, has that gone now? A. It has - when I have walked for an extended period of time, it comes back. But normally I'm okay." 57 In his reports, Dr Stephen tended to ignore the problems of which Katherine was complaining, presumably because he considered that there was no organic basis for them. In his report of 19 February 1997, Dr Stephen concluded: " Currently, Kate still gets some hip pain. When I saw her in 1996 (in March and subsequently on 2.12.96) she still had some hip pain but the hips were well covered and there was as yet no sign of any degenerative change in either hip. " In his report of 10 May 1999, Dr Stephen said: " Currently Kate has low-grade pain in both hips, easily controlled by low doses of analgesics, activity modification, and moderate doses of anti-inflammatories. Her x-rays shows no deterioration since 1996. There is as yet no clear evidence of any degenerative change. That is, there is no joint space narrowing. " 58 Dr Stalley pointed out that, in the pre and post operative x-rays, the joint space and the articular cartilage of the hip joint were normal and symmetrical. He said that there appeared to be some increased sclerosis of the superolateral margin of both acetabulae in the immediate pre-operative x-rays in 1990 and that this was unchanged in subsequent films. The lack of change in Katherine's condition led him to query whether the osteotomies may have been necessary. He said that the osteotomies appeared to have produced no symptomatic improvement in her hips whatsoever and that Katherine was still complaining of the sort of pain which she said she had had from the age of five. In his oral evidence, Dr Stalley said: " Q. What about when you saw her recently, at the end of 1998? A. Her symptoms at that stage were bilateral groin pain, worse on the left than the right with referred pain in both knees and ankles, so once again we have pain going all the way down the leg to the feet which is most unusual for hip pain. Q. Is there any organic basis for that pain resulting from the hip condition as apparent to you after the operation was performed? A. I would again be very perplexed that pain profile as coming from the hip. If a patient complains of pain in a specific distribution and you accept only half that distribution i.e. the pain from the groin to the knees as being significant and dismiss the rest of the description of the pain, that is, to me, invalid so I would find it very difficult to put an organic specific diagnosis on the description of the pain that I had seen when last seen in 1998. " 59 I conclude that there have been substantial functional or psychosomatic elements in Katherine's condition both before and after the operations. Her condition while at school centred on the growing pains and on her physical discomfort which resulted from her being overweight and sedentary rather than upon any aspect of her hip dysplasia. I accept as likely that there would have been some niggling symptomatology going back for up to twelve months before Katherine saw Dr Stephen and there was, of course, the period of pain which she had for two or more weeks before seeing a doctor. 60 After the operations, the organic symptomatology should have been, at worst, as described by Dr Stephen, namely low-grade pain in both hips, controlled by low doses of analgesics, activity modification and moderate doses of anti-inflammatories. However, her complaints, some of which are set out in the evidence above, have been serious. Dr M Baz, an occupational physician, summarised Katherine's complaints as follows: " She has continued problems including restricted mobility, pain in the hips, and radiated pain in the knees and low back which she feels is muscular. There has also been intermittent pain in both shoulders which is attributed to strain while using crutches. She described constant pain in both hips. The pain in the knees is related to activity. There is always pain in low back. Shoulder region and back pain is related to lifting and carrying. She has limited walking and standing, estimating she is limited standing for 5 minutes. After sitting she feels stiff and sore, so she must keep changing her position. Walking is limited to about 500 meters at most, and even 200 meters causes pain. She has more problems on rough and uneven ground. She avoids extended walking and also lifting or carrying which aggravates back pain and also causes shoulder discomfort. If she increases her activity level or walking she has increased pain over the next few days. She estimates her pain level, at usually about 6.5 out of 10, where 10 is the worst imaginable. With exercise it is 8 to 9 out of 10, for example after walking a long distance, or increased domestic activity. At rest in bed it may be less than 6.5. " 61 Although there is clearly a functional or psychosomatic element in Katherine's condition, there are also two organic bases for some of her complaints. One is that, for many years, starting perhaps even before the first operation, Katherine has favoured her left leg. This has caused problems with her gait and may have given rise to some pain in her back and in her knees. Another is that Katherine has not exercised as she should have done. Dr Laurent has recommended, as have other doctors, that Katherine undertake an appropriate exercise programme and that she improve the range of movement in her hips and also improve her gait. He has reported that this should reduce her pain and her requirement for analgesics. He has reported that it is important for Katherine to try to keep her back and hip muscles as fit as possible to support these joints. At one time, she swam quite a lot and she used an exercise bike. However, when Dr Laurent saw her in 1999, she had reduced the amount of swimming and the use of the bike because of pain and she did not have a regular exercise programme. 62 It is clear that Katherine's physical condition and her psychological state each tend to worsen the other. Her exercise tolerance is low, in part because of her psychological state. As Dr Lampe has reported, her experience of physical disability with its concurrent limitations on her physical capabilities causes her to feel different from others and this has had an impact upon her personality development and has contributed to a reduced ability to cope with the stresses in life, which in turn has made her more vulnerable to becoming depressed. Dr Lampe reported that exercise would be likely to contribute to an improvement in mood and social function and it would provide a more appropriate means of weight control than dieting excessively and erratically. 63 Under the direction of Dr Lampe, Katherine has been undergoing treatment for her social phobia and it is thought both by Katherine and by Dr Lampe that there has been considerable improvement and that Katherine is showing signs of recovery. Katherine is now working voluntarily at WIRES for half a day a week and is able to cope with that. One of the factors which has inhibited Katherine's recovery has been the pain which she feels in her hips, legs and back. I have already given a sample of her evidence on this point. It has been retarding her recovery. Katherine in her evidence said that she felt she was improving in recent times, that the pain was less and that she could move more freely. Dr Lampe thought that Katherine would be fit for normal activities in about two years. 64 Dr McMurdo said that when he examined Katherine on 7 October 1998, he saw a remarkable difference from the girl he saw in 1993. He said that, on the day of the examination, she did not appear to be clinically depressed and there was no evidence of psychosis nor cognitive impairment. Dr McMurdo reported: " On her presentation today, the plaintiff presented as quite optimistic about her future and was not currently depressed but she is continuing with antidepressant therapy and psychiatric management. She is continuing with cognitive behaviour therapy to cope with her anxiety and again was optimistic that she will improve considerably and eventually hopes to develop a singing career, but I cannot see that being in the very near future. She has certainly been very depressed in the past on the notes I have read, and at this point in time she seems to be doing quite well. The prognosis for depression and anxiety when it has been so severe in a younger person is generally not good. This is regardless of other external factors, so that a long term prognosis is not favourable but that could have been the case had she not suffered the aggravating factors of problems with her hips, or the sexual abuse." 65 Dr Lampe expressed a slightly more optimistic view. She said that it was unfortunately highly likely that Katherine will suffer episodes of depression in the future and that the odds are more than 50 per cent that she will have another episode. However, Dr Lampe said that in Katherine's case there was a good understanding of treatments that work effectively for her. Dr Lampe hoped that she could limit the time during which Katherine suffered depression during episodes in the future. 66 Dr Parmegiani was the most optimistic, taking the view that Katherine's psychiatric symptoms had improved considerably over the past ten months. He said that he expected her mental state would continue to improve and that she would need to be under the care of a psychiatrist for another 12-18 months. Thereafter, she would need to continue taking antidepressant medication, probably on an indefinite basis. 67 I accept the descriptions given by Dr Lampe and Dr McMurdo and there is probably little between them. They consider that Katherine is doing well and that within another two years she will be functioning with reasonable normality. They consider that there will always be severe limitations upon what Katherine can do. They are of the view that Katherine will suffer episodes of depression in the future. I accept Dr McMurdo's comment that, having regard to the severity of the illness from which Katherine has suffered, she is likely to suffer severe episodes in the future. However, I also accept Dr Lampe's view that Katherine has arrived at a good understanding of the treatments that work effectively for her and that she should be able to limit the impact of future episodes. 68 With respect to Katherine's future, Dr Baz has expressed the view that, with further management of her pain and psychiatric condition, Katherine may be able to undertake further studies which could enable her to undertake office and administrative tasks or possibly some limited occupation associated with music, such as private teaching. I think that this prognosis accords with the view of Dr Lampe. Katherine will not be able to undertake a career as an opera singer, however, she may well make use of her voice in a lighter musical field as she has an interest in that area. Or she may undertake some entirely different employment. She is a good looking young woman and should be able to obtain employment. 69 Katherine's hips are not yet showing signs of osteoarthritis but Dr Stephen thought that it was likely that, in about twenty years, at least the left hip would need to be replaced. Dr Stalley also referred to the possibility of the development of osteoarthritis and the need for further surgery. It is probable that, at some stage, both hips will need to be replaced. 70 It is unlikely that Katherine will be able to achieve the same success that she might have, had she not had the very severe breakdown. However, as I have already mentioned, Dr Lampe considers that, whether or not she had had problems with her hip, Katherine would have suffered a psychiatric illness. Dr McMurdo thought she would have developed some difficulty psychologically. I am satisfied that this would have limited the opportunities available to her and that she would not have withstood the discipline and strain involved in becoming an opera singer. 71 I assess the general damages at $120,000, which takes into account the pain and discomfort Katherine has suffered, the past and future disruption to her life and the depression, anxiety and social phobia which she has suffered and will again suffer episodically in the future. As I have already said, she has undergone a terrible time in the past decade. I attribute three quarters of that sum to the past. 72 Interest at the rate of 2 per cent per annum should be added in accordance with the principles discussed in M.B.P. (S.A.) Pty Limited v Gogic (1991) 171 CLR 657. The calculation is: $90,000 x 2% x 9 = $16,200. 73 Counsel for Katherine has calculated past economic loss as at 10 June 1999 at $75,766, using the net wage for a chorister level 1 and assuming that Katherine would have studied for three years. Brought up to date the figure is $79,214. I am content to accept those figures. The result is appropriate whether one looks at the matter on the hypothetical basis that, without her hip problems, Katherine would have successfully completed her singing studies and would have commenced an operatic career or on the basis that Katherine would in any event have had a depressive illness of some severity and that her earning capacity would have been affected thereby. The figures adopted are appropriate for a female commencing work. If one assumes that Katherine would have had a significant depressive episode, even had she not had the hip injury, that episode would not have been as severe as the episode she has undergone, but she may well have missed some years' employment. 74 Adopting an average rate of interest over the period of earning of 10 per cent, the calculation will be: $79,214 x 5% x 2.5 years = $9,902. 75 Counsel for Katherine has calculated future economic loss as follows: Future Loss Loss of earning capacity to age 65 - plaintiff's age as at 10 June 1999 - 25 years 15 weeks. Assume the plaintiff would work as a singer/chorister level 8 to 65 years of age, equalling a future working life of 39 years and 37 weeks. To 65 years of age, 2065 weeks @ $550.00 per week = $1,135,750.00. Present value of future loss at 3 per cent per annum discount and rounding down to 39 years, $550.00 net per week x 1207.9: $664,345.00 Less 15% for contingencies 99,651.00 Total of future loss of income $564,694.00 This calculation assumes, however, that, but for her hip problems, Katherine would have been in constant employment in the field of opera to age sixty-five and also that she will not be able to engage in remunerative employment. I would not put that prospect at more than 10 per cent. 76 Another way of looking at the matter is that it will be some years yet before Katherine is able to return to a normal life and, even then, she may have to take training in some field to qualify for whatever form of earning she chooses to pursue. Then there were two additional factors. One is that she is likely in the future to have bouts of depression which will interfere with her income earning. These will not be as severe as her past depression has been, but they are likely to be significant. Some period of time must be allowed for that. Moreover, her ability to earn income is likely to be reduced because, in the future, she will be unlikely to show the confidence that she would have displayed had she not had the psychiatric illness over the past decade and had she entered the workforce a good deal younger than she will now be able to do. These factors suggest that we should take into account at least five years loss of employment in the future and also an overall reduced ability to earn income. The calculation would be: Five years loss of income at $480 per week discounted at 3% $116,640 Reduction in income 34.6 years x $100 per week discounted at 3% $113,000 Less 15% for contingencies $195,194 I consider that these figures adequately replace the reduction in Katherine's future earning capacity. 77 Past out-of-pockets have been agreed at $252,149.00. Interest thereon may be calculated as follows: $252,149 x 7% x 10 = $176,504. 78 No figure has been given to me for future out-of-pockets but taking account of Katherine's present need for psychiatric and other assistance, particularly in the field of rehabilitation exercise and podiatry, the likely need for hip replacements in the future and the need for substantial psychiatric treatment from time to time in the future, I think I should allow a further sum of $50,000 which I discount over seven years using the 3 per cent tables. The result is $40,655. 79 No Griffiths v Kerkemeyer claim has been made. 80 The summary of damages is as follows: General damages $120,000 Interest on general damages $ 16,200 Past economic loss $ 79,214 Interest on past economic loss $ 9,902 Future economic loss $195,194 Past out-of-pocket expenses $252,149 Interest on past out-of-pocket expenses $176,504 Future out-of-pocket expenses $ 40,655 Total $889,818 81 I am of the view that the total sum arrived at by the addition of these elements would amount to fair compensation had it been established that Dr Ahluwahlia's negligence resulted in the problems I have described. 82 Having regard to my view that the chance that Katherine's hips would have fully recovered had Dr Ahluwahlia sent her to a specialist or advised her mother to bring her back in six months time is only 50%, the total damages must be reduced by one-half. 83 There will be judgment against the defendant in the sum of $444,909. 84 Costs are reserved. ********** Last Modified: DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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