New South Wales Supreme Court CITATION : Charles BLOODWORTH -v- SOUTH COAST REGIONAL HEALTH AUTHORITY trading as GOLD COAST HOSPITAL and ANOR [2000] NSWSC 1234 CURRENT JURISDICTION: COMMON LAW FILE NUMBER(S) : SC 20052/95 HEARING DATE(S) : 01/11/99 - 02/12/1999 JUDGMENT DATE : 1 September 2000 Plaintiff- Charles Bloodworth PARTIES : 1st Defendant - South Coast Regional Health Authority t/as Gold coast Hospital 2nd Defendant - Dr Geoffrey Miller JUDGMENT OF : McInerney J COUNSEL : Plaintiff- Mr A. Morrison S.C. with Mr D. Elliott Defendants: Mr J.L. Glissan Q.C. with Mr J. MacDougall SOLICITORS : Plaintiff: Gerard Malouf & Partners Defendants: Cowley Hearne CATCHWORDS : medical negligence - laparoscopic cholecystectomy- hypoxic brain damage - Verres Needle - Trocar - plaintiff malingering - fund management Rogers -v- Whittacker (1992) 175 CLR 479 CASES CITED : Chappel -v- Hart (1998) 195 CLR 232 The Nominal Defendant -v- Gardikiotis (1996) 186 CLR 49. DECISION : Interim Orders Paragraph 473; Final Judgment Paragraph 490 - 198 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION McINERNEY AJ Friday 1 September 2000 20052/95 Charles BLOODWORTH v SOUTH COAST REGIONAL HEALTH AUTHORITY trading as GOLD COAST HOSPITAL JUDGMENT 1 HIS HONOUR: The plaintiff, Charles Bloodworth, sues the defendants, South Coast Regional Health Authority trading as Gold Coast Hospital (the first defendant) and Dr Geoffrey Miller (the second defendant), a staff specialist attached to that hospital, for professional negligence when the second defendant performed an operation on the plaintiff known as a laparoscopic cholecystectomy on 28 January 1992 at the Gold Coast Hospital to remove his gall bladder. 2 There is no dispute that the operation was a failure. In the procedure which required sharp instruments to be introduced in the abdomen blindly, one of which caused a laceration of the common right iliac artery and a puncture of the left iliac vein (see Exh 17 being the second defendant's sketch of where the injury occurred). I accept this caused carbon dioxide (CO2) gas entering the venous system resulting in what is described as a CO2 embolism, resulting in a rapid fall in blood pressure and cardiac arrest. When this occurred the operation ceased, external cardiac massage (CPR) was commenced and other procedures were undertaken to restore cardiac output. After approximately 12-13 minutes, cardiac output returned and blood pressure returned and CPR ceased. 3 Thereafter for some 55 minutes the plaintiff's blood pressure was hypotensive until it was observed that his abdomen began to distend indicating internal haemorrhage. A laparotomy was performed which required an extensive incision from the bottom of the chest to the pubic area and this revealed two to three litres of blood in the peritoneum and retro peritoneum space. A laceration of the right common iliac artery and puncture of the left iliac vein were discovered. A vascular surgeon, Dr Dinnen, who was fortunately present at the hospital, was called into the theatre and he resected the artery and repaired it and sutured the vein. 4 The plaintiff thereafter was in intensive care for some thirty-six hours and recovered and moved to a surgical ward and was discharged from hospital on 8 February 1992. In July 1992 he underwent an operation described as an open cholecystectomy by a Sydney surgeon, Dr Van Gelderen, who removed the offending gall bladder without any complications. There is no dispute that the removal of the gall bladder was necessary, the only dispute is how urgent was such removal. 5 The plaintiff claims that as a result of what happened he has suffered considerable sequelae, both from the failed procedure itself, which he alleges has resulted in abdominal pain, and as a result of the cardiac arrest and in the subsequent period of 55 minutes before the laparotomy was performed, he suffered hypoxic, hypotensive brain damage which has resulted in a number of sequelae including significant memory dysfunction, cognitive difficulties, mild expressive dysphasia, emotional lability with poor planning skills and epilepsy. There is considerable dispute between the parties on liability and damages. Dr Bell, a well known psychiatrist, has alleged that the plaintiff is in fact malingering and there is no evidence to suggest that he has suffered any significant brain damage with sequelae. 6 Professor Holland, a Professor of Anaesthesia, has prepared reports in this case and has set out in some detail the surgery attempted on the plaintiff. In order to understand the plaintiff's case, it is necessary to set out shortly the details of the procedure to determine what went wrong. The cause of the failure of the operation is subject to dispute and many professional witnesses have been called. 7 The plaintiff relies on the evidence of two distinguished British surgeons, Professors Davidson and Boulos. It appears both Professors examined the plaintiff in England on 19 January 1998. Professor Davidson is Professor of Surgery at the Royal Free Hospital of Medicine in London and Professor Boulos was Professor of Surgery at the University College London Medical School. Evidence was taken on commission in London on their opinion as to what went wrong in the operation and the cause of such failure. The second defendant, Dr Doolan the anaesthetist at the operation, Drs Aroney, Sheldon and Glenn surgeons, Pryor and Professor Holland, a specialist anaesthetist all gave evidence on behalf of the defendant on the issue of liability in the case. Many other reports were tendered. 8 The operation is described as keyhole surgery and was devised to overcome the more extensive open procedure in what previously had been the traditional way of dealing with gall bladder removal. It is not disputed laparoscopic cholecystectomy as compared to open cholecystectomy has considerable benefits in reducing the trauma of the operation which reduces the stay in hospital, with a consequent earlier return to work. As will appear, however, there are dangers in the procedure not encountered in the open operation. 9 This type of laparoscopic surgery had traditionally been undertaken by gynaecologists throughout the 1970s. In the late 1960s, gynaecologists in Australia began to use the laparoscope, described as a telescopic device with a fibre optic illumination to visualise the interior of the abdominal cavity by an extremely small incision. At first, in an aid to diagnosis, instruments were invented which enabled simple procedures to be undertaken laparoscopically such as occlusions of the Fallopian tubes to produce sterilisation. Gas is introduced into the abdomen to make pelvic structures more readily accessible by the laparoscope and increase the space available for ancillary instruments to be manipulated. Originally, air was introduced but there was a risk of air embolism and it was replaced by carbon dioxide (CO2). The rationale for using CO2 was that, being soluble, if any gas gained access to the venous circulation, it would quickly dissolve into the bloodstream whereas air bubbles could require a much longer time to be absorbed. 10 During the 1970s gynaecologists were the foremost users of these endoscopic operative techniques and in the mid 1970s video camera technology had progressed to the point where it was possible to replace direct observation through the endoscope by an on-screen display of internal structures. It was said that orthopaedic surgeons enthusiastically embraced arthroscopy of joints, especially for knee surgery. General surgeons however, it appears, did not adopt endoscopic methods until the 1980s and the first upper abdominal laparoscopic procedures, usually a cholecystectomy, performed in Australia occurred in 1990. Consequently many surgeons including in particular the second defendant in the main were not totally familiar or skilled in the procedure at the time the plaintiff's operation took place. 11 Consequently at the time of this operation on the plaintiff on 28 January 1992, many surgeons, including the second defendant, were still on a learning curve and this is not disputed. The initial step in the procedure is to make an incision in the umbilicus and through that incision a needle described as the Verres needle (Exh R) is used to puncture the abdominal wall through the incision in the umbilicus. The needle is pushed through the incision through the abdominal wall blindly into the peritoneal cavity. When this is done, it is then connected to a gas supply and CO2 is introduced into the abdomen at 1-1.5 litres per minute. Gas pressure is monitored and not normally allowed to exceed 15mm of mercury and monitored to ensure there are no regular fluctuations which might indicate it had entered a blood vessel. The necessity for a pneumo-peritoneum is to establish operating space and to give greater access to the area required to be dealt with. 12 The surgeon decides when sufficient volume of gas has entered and then gas flow is again commenced at a higher flow per minute. One of the problems with the procedure is in inexperienced hands it is difficult to establish when a satisfactory pneumo-peritoneum is obtained. After the operating surgeon is satisfied that an adequate pneumo-peritoneum is obtained, the next procedure involves the introduction of a trocar which within its body has a port which is inserted into the abdomen through the abdominal wall. The trocar used in this case has been described as a disposable one, and had a sharp three sided blade with a sharp point (see the type of trocar used Exh S). It was equipped with a protective shield. When the trocar penetrates the abdominal wall the instrument was so designed that a protective shield springs out and covers the blade converting it into a blunt instrument. There is, however, a necessary period of time after penetration of the abdominal wall before the blade is shielded. In an article in the British Journal of Surgery (Vol 1) 1992 (Exh 5) this problem was canvassed. The problem was said to be that the external shield did not shoot forward as soon as the trocar entered the peritoneum but can be held back by loose peritoneum for an appreciable distance and may therefore cause the unshielded trocar to puncture an intra-abdominal structure. The article sets out the desirable technique in using such a trocar. 13 A similar article pointing out the same problem is Exh OO where it was said the most spectacular accidents occur during the insertion of the large trocar. It was noted as in Exh 5 if the incision of the abdomen is not wide enough through which the trocar is pushed the sleeve of the trocar may be caught in the skin margins thus impeding the passage of the instrument requiring greater and usually uncontrolled force. Thus in those circumstances the incision should be wide enough to overcome this problem. 14 The trocar is then withdrawn leaving what is described as a port in situ into which is fitted the lens of a camera thus the internal structures of the area can be visually observed whilst the four other ports are introduced into the body to enable the operation to proceed. See sketch by the defendant of the position of these additional ports (Exh 16). 15 This was the technique said to be adopted by the second defendant. Professor Holland refers to the fact that after several accidents had been reported in conducting this procedure, the Verres needle technique has been abandoned in favour of the Hassan technique which enables a blunt port to be inserted through the opening in the abdomen wall and a camera is inserted to enable a view of the further procedures. Whilst it is said this procedure is more time consuming it overcomes the danger of inserting sharp instruments blindly into the abdominal cavity. 16 Professor Holland said access to the gall bladder is not as easily accomplished as to the pelvis in the case of gynaecologists, therefore intra abdominal gas pressure tended to be higher than for gynaecology. Excessive gas pressure can have undesirable effects such as venous thrombosis. He said the skill and experience of the operator will be influential as to the level of pressure needed. The abdomen wall is inflated to enable the surgeon to gain ready access to the gall bladder. 17 Professor Holland states that when introduced blindly, the Verres needle can cause a bowel perforation or injury to a blood vessel when forcibly used to penetrate the abdominal wall causing what he described as an overshoot. If large vessels overlying the vertebral column are unusually close to the abdominal wall, this combination can result in serious damage. The position of the right iliac artery and left vein can be seen in plates Exh 12. He said if the needle tip lies in the blood vessel when gas begins to flow, gas embolism can occur. If laceration to a large vein occurs, gas under pressure can enter the vessel also producing a gas embolism. Steps were taken in such surgery to determine if the Verres needle was clear of structures by aspirating it to determine if there was blood or other contaminants contained within the needle. If not it indicates the needle is free of obstructions, although it appears such a test is not infallible. A saline solution is then used to flow into the needle when the needle is in the peritoneal space to ensure the needle was in fact in that space. 18 Professor Holland states damage to a major vessel can cause significant bleeding, but he says that the right common iliac artery and left iliac vein are situated retroperitoneally and a haemorrhage may not be detected by the laparoscope which cannot observe retroperitoneal events. 19 Where there is a penetration of a vein at a point of time when the peritoneal cavity contains CO2 it is likely to enter the venous system causing the gas to travel to the heart, resulting in a CO2 gas embolism. 20 This is a very serious complication and the least amenable to treatment. If, it is said, the CO2 reaches the heart it creates a foamy mixture of blood and gas, resulting in output to the right side of the heart falling dramatically, with hardly any reaching the lung on that side. In turn that results in hardly any blood coming back and eventually lack of output on the other side causes the cardiac arrest. 21 Professor Holland said the most difficult situation, as occurred here, is a combination of a serious haemorrhage and gas embolism, which is harder to diagnose and treat particularly if the bleeding as in this case it appears was retroperitoneal. He said under these circumstances, quite large volumes can be shed but remain undetected under the laparoscope. Fortunately it is said to be a vary rare event. Both Professors Davidson and Boulos despite their extensive experience have never had this happen in any such operation performed by them, neither does it appear any other surgeon called in the case. 22 Professor Davidson is not sure whether a CO2 embolism or blood loss caused the cardiac arrest. I am satisfied on the balance of probabilities that the plaintiff did experience a gas embolism and it was that that caused the cardiac arrest. The basis of that opinion is that the majority of expert witnesses accept a gas embolism occurred, including the anaesthetist Dr Doolan who was called upon to deal with the problem and who had some personal experience of such a problem. It also appears logical to me, given the fact that Dr Doolan's resuscitative measures designed to overcome a CO2 embolism were successful in returning blood pressure even though the blood pressure was hypotensive. It is obvious the reason why the blood pressure was hypotensive was the internal haemorrhage. 23 The background history of the matter is the plaintiff consulted Dr Brennan, a general practitioner, on 17 July 1992 having attended previously complaining of right hypochondrial pain. (See Exh A, report 17 July 1992). A previous ultrasound it appears had been performed which disclosed stones in the gall bladder. Dr Brennan noted he was unwell and off his food and had lost half a stone in weight in a week. He prescribed pain killers and was referred for specialist assessment to the Gold Coast Hospital. He first of all saw Dr Theile, the second defendant's surgical registrar and was then referred to Dr Miller, a general surgeon, when he saw him in September 1991. 24 A deal of criticism has been directed at Dr Miller when it is said he informed the plaintiff that the surgery was urgent. It is said that there could have been delays for some weeks. In fact he delayed the operation from September 1991 until January 1992 after he had been again approached by the plaintiff to perform the operation . I accept that it was proper advice to the plaintiff that the operation was urgent. If someone was sick and off his food and lost half a stone in a week it is sufficient in my view for a surgeon to state that surgery should be undertaken. Further a statement made by the plaintiff in May 1992 (Ex 33) sets out the problems he was having with severe, recurrent attacks of pain when he was advised by Dr Brennan to have the operation brought forward. Dr Glenn, a highly qualified general surgeon, prepared a report for the defendants (Exh 20, 23 July 1997) and noted the plaintiff was having recurrent attacks of biliary colic and his need for a cholecystectomy was relatively urgent. 25 I note Dr Van Gelderen's operation in July 1992 found the gall bladder obstructed in Hartmann's Pouch by a large stone with very thick viscous bile. The gall bladder was very tense and too thick to aspirate satisfactorily. 26 The plaintiff consulted the second defendant on at least three occasions before he underwent the operation. 27 When he first consulted the second defendant in September 1991, he alleged Dr Miller told him about the laparoscopic procedure stating there was less trauma, less stay in hospital and earlier back to work, and that it was the way of future surgery. This was important to the plaintiff as he alleged there was an offer of employment overseas commencing in February 1992. He decided to have the surgery at the Gold Coast because it is where the family was living at the time and did not have to travel to Sydney. 28 The plaintiff in his evidence stated he was not told of any disadvantages of such surgery, but was told in some situations it may be necessary to revert to open surgery because of blood on the camera. He told the plaintiff, according to the plaintiff, that he had done some 15 procedures and he had to revert to open surgery in two or three because of too much blood on the camera. 29 The plaintiff had satisfied himself of the second defendant's experience. He had an honours degree from Sydney University (in reality University of New South Wales) and he was "as happy as Larry with that", concluding the doctor was a highly qualified surgeon and I accept that as a fact. 30 His complaint is however, that nothing negative was conveyed to him about the surgery and denied that the second defendant told him that he was on a learning curve. He believes the second defendant was eager to perform the surgery (T24) and I accept this to be the case. He told the plaintiff that it should be done as soon as possible, because of the possibility of bursting gall bladders and stones getting stuck in the biliary ducts. He said he was told also: "all our surgeons have done the same amount of operations. We have all had the equipment the same amount of time" (T25). 31 The plaintiff said he raised the possibility of using a family friend, the general surgeon Dr Van Gelderen, attached to Liverpool Hospital. He was then asked a leading question by his counsel, Dr Morrison: "Q: Had you been aware of the risk of what actually happened to you, that is, the surgery going, in Dr Miller's words, horribly wrong would you have agreed to have laparoscopic surgery as distinct from open surgery? A: No" 32 I would not expect him in the terms of that question to answer any other way. In my view there was no requirement on the doctor to warn the plaintiff in those terms. 33 The plaintiff complains he was not warned of the dangers in this procedure and as I understand his case if given appropriate warning by the second defendant and told of his inexperience in the procedure he would have had it performed elsewhere by a more experienced surgeon. 34 There is considerable dispute between the parties as to what conversations took place and in what sequence. In his answer to interrogatories (Exh U, paragraph 1B) the second defendant states the plaintiff asked a number of questions about the new procedure, its benefits and risks, noting the plaintiff was thoughtful and pondered the responses. He emphasised that he couldn't recall what the questions were the plaintiff asked at this point of time. The events took place several years earlier. The second defendant swears that at the first consultation in September 1991, he would have explained the benefits of laparoscopic cholecystectomy and so on, and at page two of the interrogatories he sets out what he alleged he told him about the procedure. He then said, and this is denied by the plaintiff, that he said there could be problems with identification of the plaintiff's anatomy and excessive bleeding and thus may have to convert to an open procedure. He then says that he told the plaintiff that the new procedure had only been available for two years and that "we had been performing it at the Gold Coast Hospital since May 1991" and that "we were still on a learning curve". He also alleges he told the plaintiff because he was having an acute attack of cholecystitis the chance of succeeding with such an operation of this type was lessened. In the light of Dr Van Gelderen's finding on operation that advice was correct. 35 As it has turned out, however, this sequence of events is inaccurate. It is quite clear now that it was not until October 1991 that the first laparoscopic cholecystectomy was performed by the second defendant and thus his answers to the interrogatories cannot be relied upon but I do not believe those answers were deliberately false but resulted from faulty recollections unassisted by medical records at the time. I would have thought, however, the second defendant would have attempted to consult the records before he swore his answer to the interrogatories. 36 In his answers to the interrogatories he referred to his normal practice which of course may have changed since his increasing experience in the procedure. He also said that he could not remember what was discussed at the three consultations that he had with the plaintiff and put them in sequence. The plaintiff was similarly unable to do so. 37 In order to determine what really took place after this period of time, there is some material in a statement made by the plaintiff in May 1992 (Exh 33) some three months after the operation. I must say, however, as will appear later I found the plaintiff a most unsatisfactory witness and prone to exaggeration. He stated that when he first saw the defendant in September about a new procedure, known as laparoscopic cholecystectomy, he was told, according the statement, that the apparatus for such surgery was just coming to the Gold Coast, and that the plaintiff should wait for about two months, until around Christmas or after Christmas 1991, to have the surgery done, so all the new equipment could be in place. 38 He further stated he was also told by the second defendant he was a prime candidate for this type of surgery because he was fit and healthy and did not carry much excess body fat at all. The second defendant, as I understand it, accepts that he told him that. The statement goes on to say that the second defendant could not guarantee the operation would be 100 per cent successful and also at the same time obtained permission to perform the open procedure if problems occurred. The plaintiff further stated that at a later consultation the second defendant kept emphasising the plaintiff was a good physical specimen and an ideal candidate for such surgery. 39 It is clear from that statement when the conversation took place the fact was the second defendant indicated to the plaintiff that there was no equipment available at the Gold Coast Hospital to allow this surgery to be undertaken and was told to wait until that equipment was available at Christmas or after Christmas 1991. 40 I would infer therefore that an intelligent person, as the plaintiff undoubtedly was, would understand that the second defendant in those circumstances had had little, if any, personal experience in this type of surgery. 41 The second defendant gave evidence that before he attempted such surgery he attended a symposium in Melbourne, sometime late in 1990 or early in 1991, on how to perform this laparoscopic cholecystectomy. This included seeing the operation performed and then with other surgeons he operated on a pig. After that symposium he then attended Royal Alexandria Hospital at Brisbane, on five half days, to observe five such operations, and on one occasion held the camera used in the procedure. The second defendant commenced performing this surgery before he had done such surgery under supervision. 42 The evidence from the second defendant was that he and Dr Borten the first defendant's senior surgeon then performed two procedures, but as they were unsure of what was happening they converted to the open procedure. Exh QQ sets out a chronology of laparoscopic cholecystectomies in which Dr Miller was part from 7 October 1991 to 28 January 1992 when he operated on the plaintiff. On 7 October together with Dr Bennett Dr Miller was the principal surgeon and Dr Borten was the assistant surgeon and that operation apparently was successful. On 14 October Dr Borten was the principal surgeon, Dr Miller the assistant surgeon and that was converted to open surgery. On 28 October 1991 Dr Miller was the principal surgeon assisted by Dr Hansen. This was not converted. On 28 October Dr Miller was assisted by Dr Gotley. On 4 November Drs Miller and Hansen were principal surgeons assisted by Drs Borten, Hanson and Hare which was converted. On 11 November Dr Miller was principal surgeon and Dr Harte was assistant surgeon. This was not converted. On 12 November Drs Borten and Miller as principal surgeons and Dr Sanders as assistant, converted. On 18 November Drs Miller and Hansen, which was converted. On 29 November Drs Bennett and Miller as principal surgeons and Dr Morley as assistant was not converted. On 3 December 1991 Dr Miller was principal surgeon and Drs Hansen and Kane assistant surgeons, converted. On 13 December Drs Miller and Hansen, not converted. On 24 January Drs Miller and Field which was not converted and then the operation on the plaintiff which was converted. 43 The evidence discloses that after their unsure start Dr Gotley, a specialist surgeon from Princess Alexandria Hospital, came to the Gold Coast Hospital to give training to the plaintiff to enable him to perform this procedure. The second defendant gave evidence that two operations were performed with him assisting Dr Gotley (T633) and then he did one with Dr Gotley assisting on 28 October 1991. 44 When one examines Exh QQ the only reference to Dr Gotley was on 28 October 1991 in which he was the assistant surgeon to Dr Miller. Exh QQ disclosed three operations between 7 October 1991 and 12 November 1991 in which the second defendant was involved as the principal surgeon. He performed a further three as co-principal surgeon. Three were converted to open surgery, at a percentage rate of around 50 per cent, which it is submitted tends to show the inexperience of the second defendant in this procedure. 45 By the time he had operated on the plaintiff he had performed eleven operations, either as principal surgeon or as a co-principal surgeon, four of which had been converted to the open procedure which is said to be a high rate of conversion. The evidence as to the content of the conversations between the plaintiff and the second defendant and the sequence they took place is most unsatisfactory. The second defendant's answers to interrogatories cannot be relied upon as I have pointed out earlier and I have found the plaintiff a very unsatisfactory witness prone to exaggerations that cannot be attributed to his brain damage. Thus any material emanating from the plaintiff must be carefully scrutinised. 46 The plaintiff alleges that he was mislead about the experience of the second defendant as to the number of procedures he had undertaken at the time. Doing the best I can it is clear that, when the plaintiff first saw the second defendant, the second defendant had not performed any such operations and I believe that was clear to the plaintiff as he was asked to delay the operation until the equipment arrived to enable the operation to be performed. In respect to the second consultation said to have taken place on the 13 November 1991 it was alleged that he was told that everyone had done the same amount in Australia because the equipment had been available for the same time and that of the last 15 patients he had to convert to an open on three because of too much blood on the camera. 47 I do not accept that was the conversation that took place at that time. The second defendant at that point in time had only been involved in four such operations and I accept his denial that he spoke to the plaintiff in the terms referred to. I believe such conversation probably took place in January 1992 at the last consultation before the operation. I accept that he had told the plaintiff that at that conversation he had performed some 10 to 15 such procedures and that is in accord with the fact. I do not accept that Dr Miller would be deceitful to the extent suggested by the plaintiff. 48 It is suggested that he tried to have the plaintiff consent to this operation as a matter of urgency and I have dealt with that matter. In the plaintiff's answer to interrogatories at paragraph 2A it was alleged there was a discussion of waiting on the public operating list for a period of approximately 12 months or being admitted as an independent patient in which case the surgery would be performed when he required it and he left the decision up to the plaintiff. Exhibit 33 further does not suggest he was forcing the plaintiff into this laparoscopic cholecystectomy. 49 There is also reference in Ex 33 paragraph 8 to a conference with Dr Van Gelderen who it is said commented on the fact that the second defendant may not have done more than 15 laparoscopic cholecystectomies. The plaintiff went on to say he was totally shocked and amazed when he was given those figures. I cannot accept that evidence and I believe that is another example of his exaggeration in this case. As stated earlier I believe, however, he was well aware the second defendant had only just commenced doing this procedure. I also fail to understand what information Dr Van Gelderen had about the second defendant's experience of these operations and there is no evidence to suggest Dr Van Gelderen and the plaintiff discussed these matters. I should also note that Dr Van Gelderen, according to the plaintiff, told him that he had done some 800 of these laparoscopic procedures. This is not in accord with his letter (Ex FF) where Dr Van Geldren said he had performed 15 operations under supervision and had performed 19 such procedures as the principal surgeon. 50 I cannot, therefore, accept the plaintiff's allegation in the statement that he was totally shocked and amazed that he had only done some 15 procedures. I am of the view, as I stated earlier, that he was fully aware of how much surgery the second defendant had undertaken. 51 The second defendant himself accepts that he did not warn the plaintiff of any adverse problems that may arise from the operation. He did not warn him of vascular injury and he did not warn him that, as a thin person, the operation would be more difficult. 52 Dr Miller gave detailed evidence of how he conducted the operation. He first made a cut of about one inch in the umbilicus in the 6 o'clock position, he cut into the subcutaneous fat, through the facial layers including the linea alba. 53 This he said is the thinnest part of the abdominal wall and allows instruments to pass easily (T666). He then lifted up the abdominal wall as hard as he could to remove it as far away from the internal structures as possible, and inserted the needle on the midline at an angle of 45 degrees to the midline in order to avoid the structures underneath. A syringe was then attached to the needle and aspirated, and only air came out. He then removed the plunger and observed the saline to flow freely into the body cavity, and from that he inferred the needle was in the peritoneal cavity and not connected to any viscera. He then connected the CO2 gas to the needle and began an insufflation commencing at 15 mm of Mercury pressure per minute, and holding the needle he observed the abdomen (T670) to determine if the needle was struck in any internal structures. 54 Whilst his assistant held the needle in position, he percussed the abdomen to ascertain any tympanic sounds indicating pneumoperitoneum had been obtained (T671). He said there were no indications of any problems at that point and he increased the flow to 5 or 6 litres per minute. 55 When the pressure of the insufflation, preset at 5, corresponds with the gauge, the gas flow automatically stops (T671). He was satisfied he had pneumoperitoneum. 56 The Verres needle was then removed and a trocar was then armed which enabled the protective shield to retract after it passes through tissue, shielding the cutting edge and thus protecting it from doing further damage should it be inserted too far. After the trocar was inserted at the same direction and angle as the Verres needle, the trocar portion is removed, leaving the port in situ. He noted minimal resistance on the insertion of the trocar (T673). He felt it click as it passed through. Having removed the introducer, he then left the port in position. He then connected gas to the port to enable ongoing gas supply to keep up appropriate pressure because some CO2 can escape around the ports (T674) and it is necessary to maintain an adequate pneumoperitoneum. 57 He then produced to the Court a video tape of the new instrument called an optiview which he uses now which takes away the blindness of insertion (T685) and is designed for the operator to see the tip of the port. He described how it works (see exhibit 15). 58 He described the cardiac arrest and thereafter being directed by Dr Doolan to commence external cardiac resuscitation (CPR) which he did. Dr Doolan put the plaintiff in the head down position and continued the CPR for some 10-15 minutes. When he was told the blood pressure had returned he ceased CPR. Dr Doolan then said the blood pressure had not come up high enough and was asked if there was there any chance of a haemorrhage (T692) and the second defendant said he did not think so. He said the trocar went in easily and he could not imagine any damage to the blood vessels. After some time the second defendant noted some blood coming out of the umbilicus port, just dribbling over the edge of the port (T693) and it was at this point that the laparotomy was performed as obviously there was an internal haemorrhage (T694). The necessary instruments were on hand in the operating theatre because of the possibility of having to convert to open surgery in the process of laparoscopic cholecystectomy. He then opened the abdomen from top to bottom and there was blood in the intra-peritoneal cavity which is described as "quite a lot". It turns out to have to be two to three litres. He then clamped the aorta in the upper iliac position. When he lifted the peritoneum forwards, there was blood coming out the retroperitoneal cavity into the peritoneal cavity. He was not sure at that point in time where the damage was. 59 The clamping and stopping the flow of blood down the aorta was designed to direct blood to the heart and brain to maintain adequate flow to those vital areas. 60 Blood was sucked out to determine what was going on and then a vascular surgeon, Dr Dinnen, was called in and he opened up the retro-peritoneum over the injured area and dissected out the damaged artery and placed a clamp on the lower part of the aorta at the point of that vessel's bifurcation. It was at this point, Dr Miller noted a star-shaped defect in the artery and a small hole in the vein directly behind the artery. 61 Dr Miller said that when the arterial clamps were on, for the first time blood could be seen coming from the vein behind the artery (T699). Whilst the blood was coming out, the hole in the vein could not be identified. He then drew diagrams (exhibits 16 and 17) and in exhibit 16 he has sketched the position of the four ports that are inserted for the operation of laparoscopic cholecystectomy and in exhibit 17 he has sketched the damage to the artery and the vein and in a further sketch indicated their position in relation to each other. He said he did not see the piece of the artery that was sent to pathology, but he noted the injury to the vein was just below the artery on the same line. 62 Dr Miller not unnaturally said he was devastated at what had occurred and having taken all safety precautions he wondered if the technique was a safe one (T710). He said other general surgeons at this time were thinking the same. It is interesting to note that he never used the Verres needle again (T711) and only inserted trocars under vision by using the Hassan procedure which overcomes the blind insertion of a sharp edged trocar. He then referred to the operative findings of Dr Van Gelderen which indicated there would have been difficulties in any event in carrying out the laparoscopic cholecystectomy. I believe the finding of this is further evidence the operation was necessary when undertaken by the second defendant. 63 In cross-examination the second defendant conceded he did not make any reference in his post operative report of any anatomical variation that could have caused the problem (T716) nor any reference to defective instruments. I infer, therefore, he believed that neither contributed to what had occurred. 64 Dr Doolan, the anaesthetist at the operation, has given evidence and his anaesthetic notes have been tendered. His original notes were marked Exh 8 and there were two post operative notes (Exh 9) and a transcription of the notes was marked Exh 10. It is not necessary to go through this material in great detail as the notes are self explanatory. For the purposes of this judgment administration of the anaesthetic commenced at 1445 hours. Although there was a drop of blood pressure Dr Doolan said this was normal when anaesthetic was introduced. The operation continued uneventfully until 1510 after the first port had been placed in situ. The patient then became sweaty and there was a drop in blood pressure from 100 to 70. The pulse rate increased and other serious problems manifested themselves. At that point Dr Doolan suspected a CO2 embolus. The anaesthetic was ceased because it tends to lower blood pressure and the CO2 gas was released. 65 At 1520 the plaintiff's carotid pulse became impalpable and a cardiac arrest was called. External heart massage (CPR) was commenced and he was given adrenalin. The notes are self-explanatory and there is no dispute that they are not accurate. Further, there is no dispute that the actions taken by Dr Doolan were not in accordance with proper procedure and I have no doubt that his prompt action was responsible for saving the life of the plaintiff. Indeed Dr Watson, a specialist neurologist, called by the plaintiff on reading Dr Doolan's notes described Dr Doolan's efforts as impressive. 66 The purpose of the CPR was to create an artificial pulse but it appears no pulse other than that caused by the CPR occurred for a period of some twelve minutes. During the admission of the CPR from time to time there was a pause in the CPR to enable Dr Doolan to palpate the carotid artery to determine if there was an independent pulse. 67 There was dispute between the parties about his evidence as to the strength of the artificial pulse created by the CPR and he was cross-examined extensively about it by senior counsel on behalf of the plaintiff. In effect it was put that it was a reconstruction made up because of lack of reference to his testing the pulse in the notes. He stated (T911) that the carotid pulse was acceptable during the CPR. It was then put to him without any foundation that he was giving this evidence to cover the so-called deficiencies in his notes (T911). It was also suggested to him his comments at T912 that the artificial pulse was acceptable was a recent construction on his part. 68 I must say that I regard those questions as seriously attacking the probity of Dr Doolan. I want to make it quite clear in this judgment that I regarded him as a very impressive witness and I reject the above suggestions put by Dr Morrison as having no foundation whatsoever (T912). 69 It appears after some twelve minutes the pulse returned and on that basis the CPR ceased, but the plaintiff continued to be hypertensive over a period of some 55 minutes. The blood pressure when it was returned was 50/60 systolic but he continued to be hypertensive and varied between 50 systolic and 85 systolic. He was closely monitored and Dr Doolan continued to inject him with drugs designed to boost the blood pressure such as adrenalins and Dobutamine. At the end of that period it was then noted there was an increase in the girth of the plaintiff's abdomen and I have set out earlier what happened thereafter. 70 After the laparotomy was performed he was still very ill and Dr Doolan decided to keep him ventilated and sedated and transferred to intensive care. He was reasonably happy with the plaintiff's condition at that point of time and he of course survived. 71 At the time this surgery was undertaken there was a number of publications about the hazards of such surgery. In Exh KK, an American publication there is reference to the puncture of the aorta by a Verres needle (January 1992). It is not clear, however, whether this would have been available to the second defendant at the time of the operation. It then went on to say that deaths from major lacerations can be avoided using proper techniques. It was said several reports attributed major vessel laceration to errors in technique. A study in France showed three major vessel lacerations per ten thousand. The Royal College of Gynaecologists reported vessel injury occurred in nine per ten thousand. 72 It was said in the operation identification of landmarks and cautious insertion techniques are imperative because the major vessels likely to be penetrated are the aorta, the iliac artery and vein. The article referred with approval to the Hassan technique. 73 In Exhibit LL the Obstetricians Journal from Scandinavia revealed that laparogenic injuries were common in the western world and it was noted all laparoscopic injuries in the survey related to the iliac vessels. Injuries were most frequently venous and all patients had haemorrhage as the main symptom. Of fifteen vascular injuries surveyed six involved the right common iliac artery and one in the left. The bleeding was discovered during laparoscopic procedure which led to an immediate laparotomy in all patients but one. In four cases the needle was responsible and the trocar in one and the forceps in one. 74 In Exh MM, New York State Journal of Medicine (May 1981) it was said that many structures and organs have been injured in laparoscopic procedures either by needle or trocar. It referred to the use of Allis clamps or towel clips in the case of thin and multifarious individuals. 75 Exh NN is correspondence in the American Journal of Obstetrics and Gynaecology (November 1991) referring to the non-reporting by doctors of a number of these injuries and which stated that accidents of this sort are invariably due to operator error and that injury to the iliac vessels must necessarily occur if the needle or trocar is placed off the midline. The article refers to the aorta which in some persons may be less than one inch below the umbilicus. The said technique of insertion has the risk of thrusting the trocar in a lateral insertion into the common iliac artery and vein. It is said the physician in inserting the trocars may be unaware of the direction in which the trocar is actually pointed and it is useful to have a colleague standing at the head or the foot of the table with a clear view of the lateral view in which the primary and secondary trocars are inserted. It goes on: "a few such observations will correct a physician's inadvertent bad habit of directing a trocar more laterally than he intends and will further minimise the risk of major vessel injury". 76 Professor Davidson (Exh G, p19) under cross-examination stated there was no information given as to how serious any potential complications would be. He noted the incidence of injury from laparoscopic surgery was low. The second defendant believed the incidence was as low as one in three or four thousand. 77 Professor Boulos in his report (Exh C) believes the second defendant, like many surgeons at the time, was keen to develop his experience in such surgery and with that conclusion I wholeheartedly agree. 78 There are many disagreements in the medical evidence in this case which makes it difficult to determine with confidence the issues involved. For example, Professor Boulos believes laparoscopic cholecystectomy is easier for a surgeon when the patient is not overweight. It may be contrasted by evidence that thin persons pose particular problems in this type of surgery because of the possibility that the vital organs are close to the umbilicus. There was little if any uniformity of what the second defendant should have told the plaintiff as to the hazards of such surgery. Professor Boulos is of the opinion that the second defendant should have explained the option of a minimum laparotomy though the midline approach and he believes in effect he oversold the disadvantages of an open procedure exaggerating the benefits of the laparoscopic cholecystectomy and its after effects. Doctors, he believes also should admit to patients the limits of their experience when embarking on a new technique and he believed at the time that the second defendant's experience in this type of surgery was very limited. Other medical witnesses did not accept such disclosure was necessary. 79 Professor Boulos was asked about the defendant's reference to difficulties with the identification of a patients anatomy or excessive bleeding which he did not think in the circumstances was sufficient to alert a patient to the dangers of the procedure because it was indirect information. He was vague on the question as to what should have been told to the plaintiff about the dangers of the operation (T16, Exh F). He said he specified injury to the biliary tree to patients which he said was the commonest injury in such surgery. The injury to the iliac arteries on the other hand he said "is so rare you did not anticipate this will happen and people are careful about it". He said "I think perhaps there should have been more description of injury to a major artery which may require a transfusion or urgent intervention". He said, contrary to the second defendant's practice, he himself undersold laparoscopy as he was not comfortable when it started - a similar view to Dr Sheldon. Professor Boulos believed the plaintiff was not given sufficient information to make a reasoned judgment on this question. 80 Dr Sheldon, a highly qualified general surgeon called on behalf of the defendant, said in his report (Exh 25, 13 June 1997) and affirmed in evidence that there is a significantly higher incidence of major complications in laparoscopic surgery than open surgery and that the patient should be told of the additional risk. He said no surgeon would discuss the pros and cons of laparoscopic cholecystectomy compared to open cholecystectomy. Because of the limitation of statistical information of both procedures as the operation had not been done much at the time it would not be possible to give an accurate detail of such a procedure. 81 Professor Davidson's report dated 29 January 1998 (Exh B) stated the procedure was performed at the time when laparoscopic cholecystectomy was being widely introduced. The fact that it was a new technique should have been clearly explained to the plaintiff as well as the surgeon's experience. He said at the time bile duct injuries were well recognised as was the view of Professor Boulos, but he said it would not be common practice to mention the possibility of a vascular injury. 82 The second defendant told the plaintiff of the benefits of such surgery but said there could be excessive bleeding. He agreed he never mentioned vein or artery damage. He agreed he did not mention the down side because he wished him to have the laparoscopic surgery. He certainly did not tell him it was a "blind procedure" (T829). He justified his failure to tell the plaintiff of the risk of damage to the venous system because it was a rare risk (T830). He said he thought it was true that there was higher risk in thin people although it was suggested that the literature did not disclose that fact. 83 Dr Glenn, a specialist called on behalf of the defendant, believed a patient should be told there are major complications that can occur with the introduction of the trocar over the risks of open surgery. He said although such injuries are not common they had been reported at the time of the operation. Dr Glenn's experience was having been told of such complications patients nevertheless had the laparoscopic surgery. He noted the second defendant (see Exh 20, page 2) did not specifically mention any complication that may arise from the introduction of the trocar. In addition he knows of no circumstances where surgeons have discussed with the patient the number of procedures they have performed. 84 In addition to the failure to adequately warn the plaintiff of the risks of such surgery it is submitted the true level of the second defendant's experience was misrepresented to the plaintiff in order to induce him to undergo such surgery. I have referred at some length to this matter earlier in this judgment. 85 When the second defendant wrote to Dr Brennan after the surgery (Exh A, 140) he referred to three such injuries being recorded in Queensland and went on to state that the injury was quite common in the literature. In his evidence he said in his experience the word "common" was a mistake, what he meant to say was the injury was not unheard of in the literature. It was put to him that he was attempting to gloss over what had happened and was seeking to avoid fault (T833). He also conceded under cross-examination that he had not read any of the literature and when he used the word "research" he meant looking into the matter and discussing it with his colleagues. 86 He also said he believed the literature did state that such surgery was of higher risk to patients and particularly the plaintiff because he was a thin person (T836). He agreed he did not tell the patient that, but in fact it appears told him the opposite. Probably at that time he did not adequately realise the problems in such a procedure with a thin patient. The second defendant agreed he did not give the patient an accurate description of the risk involved (T838). 87 Dr Morrison submitted that having regard to the totality of the evidence in this case in particular the evidence of Dr Van Gelderen (see Exh 18) who had performed 15 such operations under supervision and 19 alone by the 28 January 1992 and Dr Sheldon had done 50 submitted that all surgeons did not have the same amount of experience at this time. Furthermore, it is not easy to accept that the second defendant's explanation about this comment when he alleged in evidence that in that statement he was referring to the surgeons at the Gold Coast Hospital. It was submitted he had told the plaintiff that his record was broadly the same as other surgeons and his success rate was comparable to other surgeons which I believe he did not intend to be taken as referring to the experience of surgeons at the Gold Coast Hospital. 88 On the question of the negligent performance of the said operation it is conceded on the face of the operation report the procedure was carried out in the correct manner and that of itself does not disclose any lack of reasonable care. The second defendant, however, conceded that these operation notes were prepared after the operation and therefore have to be regarded carefully. 89 On the question of lack of care it is necessary I believe to determine so far as possible in the confused state of the evidence before me which of the instruments caused the laceration. 90 The plaintiff's case relies on the fact that it was the trocar that was the offending instrument but submits it matters not because the injury to the vessels with either instrument on the plaintiff's case was unacceptable. 91 There is considerable dispute between the witnesses on this matter and like most issues in this case is not easy of resolution. The second defendant, having seen the wound which he first described as star-shaped or later as a jagged laceration, believed it was the trocar as did Dr Doolan, Professors Davidson and Boulos and Dr Glenn. On the other hand, Drs Aroney and Sheldon, very experienced general surgeons, and Professor Holland, the specialist anaesthetist, for various reasons thought it was likely that the Verres needle was involved. However, as I understand the evidence no doctors were prepared to say unequivocally that either one or other of the instruments caused the lacerations. 92 The opinions of Professors Davidson and Boulos were based fundamentally on the size of the laceration caused to the artery because the Verres needle is very small and if it was responsible they would have expected a smaller laceration but instead there was what has been described as a significant laceration. The trocar is a sharp instrument necessary to enable it to pierce the abdominal wall. It consists of a three-sided cutting edge with a sharp point at its extremity. Professor Davidson said accepting the trocar was a disposable one and was equipped with a shield designed to spring into place when the abdominal wall was penetrated was not determinative because there was a period of time after the trocar penetrates the abdominal wall before the shield closes over the sharpened edge. If it is introduced rapidly the more likely it is to penetrate some bodily structure before the shield begins to operate. Professor Boulos expressed a similar view to that of Professor Davidson. Dr Sheldon called by the defendant was of the view that it was the Verres needle that could have caused the injury but conceded it could well have been the trocar. One of the matters of concern was that pathology of the laceration was found to be a linear split. Dr Sheldon dealt with that by saying it only indicated that the artery had been struck by something sharp. I was concerned how then the small hole in the vein could have been caused by the trocar. He described the trocar as a sharp pointed instrument and he believed the first vessel hit would be the common right iliac artery and then the left common iliac vein. He said it was possible the artery could be hit by the sharp side of the trocar and the point of the trocar hitting the vein. It could have been caused by a sharp needle also, glancing off the artery and continuing to puncture the vein. 93 Professor Holland in his evidence submitted it is only consistent with the Verres needle as he believes cardiac arrest was due to blood loss. As a lay person I do not follow why that must be so. Once there was a penetration caused by the needle I would have expected the CO2 embolus much earlier as the CO2 is pumped into the abdomen under pressure and if there was then a wound in the left common iliac vein it would follow the CO2 would penetrate the venous system quite quickly. It was said because Dr Doolan tried to aspirate gas from the area of the heart and none was detected, this favoured the Verres needle. 94 On the other hand CO2 is used because if it penetrates the venous system it dissipated quickly and in any event it was not clear at what stage Dr Doolan tried to aspirate gas from the area. 95 Dr Glenn (report 23 July 1993, p3) said there could be no real doubt that the introduction of the trocar caused the injury. He felt the sharp obturator immediately traversed the posterior abdominal wall after penetrating the anterior abdominal wall. It was possible, he believed, that the peritoneal cavity may not have been well distended with gas and that the anterior abdominal wall was pushed up against the posterior abdominal wall, thus enabling the trocar to penetrate the posterior abdominal wall and lacerate the vessels before it had time to retract. 96 He disagreed with Professor Boulos that in some cases in order to overcome the pushing and stabbing effect you would screw the trocar into the anterior abdominal wall. Dr Sheldon says that the trocar is designed to be pushed, not screwed. 97 Dr Aroney believed strongly it was the Verres needle that caused the laceration in question. He gave evidence at some length and because of his volubility it was not always easy to follow his evidence. Dr Morrison submits he was an advocate and I should have little regard for his evidence. Whilst he could give that impression I felt Dr Aroney was trying to put up a justifiable theory in the case. 98 He believed that the needle having caused the linear laceration the peritoneum would close over the laceration causing bleeding in the retro peritoneal area. He said that bleeding initially would be slow because of what he described as the tamponade effect which he described as a pressure on the wound because of the insufflation of the peritoneum by the CO2 which would tend to stop or stem the flow of blood. He said then when the CO2 embolus caused a cardiac arrest the CO2 gas was released from the abdomen and that relieved the pressure on the injured vessels which would be followed by a "whoosh" of blood which would tend to open up the laceration, giving it the appearance noted by the second defendant. 99 He said such injuries occur one in nine to ten thousand of this type of operation and he seems to argue if you do such operations long enough you will eventually lacerate the vessels in question. 100 It is submitted on behalf of the plaintiff that the theory above is suspect because Dr Aroney cannot explain why, if the tamponade effect prevented this massive blood loss immediately on injury at the time of the insertion of the Verres needle which caused the laceration, there was no CO2 in the abdominal cavity to suppress the bleeding and this again it is submitted favours the trocar causing the injury. 101 Whilst these are ingenious theories that is all they are and whilst I respect Dr Aroney's opinion they do not accord with the view that I have formed on the totality of the evidence, that is, the injury on the balance of probabilities was caused by the trocar: (1) The fact that the second defendant aspirated the Verres needle followed by the saline test before insufflation commenced is designed to determine if the needle penetrated any internal structure and the results were negative. (2) The drop in blood pressure and onset of arrest more closely follows the time of the trocar insertion than by the insertion of the Verres needle. (3) Drs Miller and Doolan having seen the injury, indicated the trocar. Dr Miller believed he pushed the trocar too far (See letter to Dr Brennan Exh A 6 March 1992). In a letter to Dr Van Gelderen, Exh A, 15 May 1992 it is alleged the trocar failed to retract. (4) The second defendant described the injury as star shaped or a jagged laceration which I believe was more likely to have been caused by the larger instrument. (5) Dr Aroney's explanation relating to the tamponade effect cannot be tested and is based on theory only. (6) Both English professors and Dr Glenn opined the injury was caused by the trocar. (7) The trocar is rather a large 3-sided sharp instrument with a sharp point and can cause a tenting effect of the interior abdominal wall when being pushed through (See example Exhs 5 and 15). (8) On the balance of the evidence I infer more pressure is required to push the trocar through the abdominal wall than the Verres needle and thus has the tendency to shoot forward after penetration more than the Verres needle (See again Exh 15). (9) There is a time lapse after the trocar has entered the peritoneum before the shield operates and the shooting effect together with the tenting effect cause it to more likely penetrate the retroperitoneal space than the Verres needle. (10) Professor Boulos says because of the problems with the trocar it was his practice to screw it in, although other doctors disagreed with this procedure. (11) Dr Glenn said (Report 23 July 1997 p3) (Exhibit 20) the penetration of the posterior abdominal wall was more likely to occur in a thin patient, as the plaintiff was at the time, as in such a person the cavity is shallow and you can thus reach the posterior abdominal wall much more easily. (12) Some abdominal walls are tough and others less so and vary from person to person. Dr Glenn notes the linea alba is one of the obstacles to be penetrated as a major source of resistance which would thus mean a greater tendency to push the trocar harder. 102 On the balance of probabilities I am of the view that the injury was more likely caused by the trocar. 103 On causation it is submitted by the plaintiff that the second defendant was inexperienced in this procedure, and that is why the operation went "horribly wrong". 104 Professor Davidson concluded what happened to the plaintiff was not a reasonable or expected complication from such surgery and there was some inexperience on the part of the surgeons undertaking this procedure (Exh G, T13) and the technique is clearly dependent upon experience (Exh G, T22). The Professor said to determine how far the instruments had gone is dependent upon experience and a careful technique. Fundamental technique is to control how far the instrument goes into the abdominal cavity (Exh G, T22) and in this case the instrument was inserted further than appropriate (T23). It should be noted that English surgeons, contrary to the practice in Australia, used reusable trocars which were unshielded as I understand the evidence and blunter than those used in this operation 105 Professor Boulos (Exh C, T39) believed in the hands of experienced surgeons these injuries do not occur. In his unit they have not had a major injury since commencing this procedure in 1988-89. 106 Dr Glenn who gave evidence for the second defendant whilst he thought the second defendant's training was adequate, in a report (Exh 20) noted it was always difficult for a practising surgeon to become skilful in new techniques. He then referred at the hearing to the learning curve where complications specific to the technique occurred more frequently than in later years. 107 Dr Aroney, a very experienced general surgeon called by the defendant, agreed that attending a seminar in Melbourne of itself would be inadequate to undertake this surgery. He said the current advice at that time was to go and see colleagues do numerous Verres needle insertions together with the production of insufflation and then as assistant surgeon, and then under supervision. 108 The experience of the second defendant, he said, was not the ideal, but it depended a great deal on the circumstances and the surgeons themselves, and he agreed that it was unsatisfactory if he attempted it without being an assistant at the time, or under supervision (T888). 109 Dr Aroney, as I understand his evidence, agreed such an injury should not occur with the trocar. His explanation was that if you are using a sharp guarded trocar you do not need all that much strength to introduce it into the peritoneal cavity. The guarded trocars are sharper and operate with less force and that doctors were aware that they had to be careful with the use of such trocars. 110 Dr Glenn, a specialist called on behalf of the defendant, agreed similarly that the seminar of itself was inadequate, and that you should not undertake such surgery until you have watched four or five done by somebody more experienced and performed two or three with assistance (T735). He agreed the injury suffered by the plaintiff was a life threatening injury and a known risk of this type of surgery. 111 In such a procedure the question of the high conversion rate may have suggested he said that the surgeon was being very cautious and therefore safer (T739) rather than being negligent as I understand his evidence. 112 Dr Sheldon, a specialist surgeon called on behalf of the second defendant was a very highly qualified surgeon and he took by far the most conservative view of this procedure (Exh 25). He described the Verres needle as a razor sharp instrument used to penetrate the abdominal cavity and its use has to be done in a very precise and accurate way to make sure it does not injure intra-abdominal viscera and retro-peritoneum organs such as major arteries and veins. The concept worried him and in the first ten of these procedures he did feel uncomfortable and unsure with the procedure and he abandoned it and instead used the Hassan technique (T294). Furthermore, he said the use of the Verres needle is no longer appropriate teaching at the College of Surgeons (T295). Whilst he believed either instrument could cause the damage he states if the larger trocar struck the artery he would anticipate a massive and obvious intra-peritoneal haemorrhage straightway. He agreed however you could get a shearing injury from a needle. In his report he agreed the laparoscopic procedure has a significantly higher incidence of major complications than the open operation. If the second defendant had had a conversion rate of 30 per cent Dr Sheldon said he should be considering if there was a fault in technique. 113 The English professors emphasised in their evidence that experience is absolutely necessary to know when the abdominal wall has been perforated and the extent to which the instruments have been introduced. Professor Davidson continued to emphasise as the instruments are sharp instruments pushed blindly into the abdominal cavity the ability to determine these matters came from training and experience. He said such an injury resulted from lack of reasonable care and was unacceptable. 114 Under cross-examination Professor Davidson conceded there could be an injury of this type even if the surgery was done carefully but it was unlikely. He did not consider a vascular injury was part of that spectrum. 115 Professor Boulos has gone to the Hassan technique which is safer, he said, because you have to be very careful, have to have extra skill, etc. He dismisses this incident was brought about by misadventure because he said the rules have been developed to avoid this injury (Exh F)(T23.18) His emphasis was on the fact that with an appropriate and proper entry angle of these instruments it should not result in injury and skill and experience are necessary particularly in thin people because the abdominal cavity is shallow. On the contrary the process is easier in a more obese man because the subcutaneous fat keeps the trocar away from the intra-abdominal cavity. He did not see any difference between the types of abdominal walls to be penetrated whether tough or easier to enter. He said if inserted at the right angle it is unlikely, then impossible (somewhat contradictory terms) to cause injury. 116 A surgeon, he said, is to undertake training and accept his limitations and not to do any such operations until he is confident he can do so. Without attempting to unduly criticise the second defendant, because I accept he is a very competent surgeon, I believe in these circumstances he was over confident and I believe as pointed out by Professor Boulos he over estimated his skill in this surgery. Professor Boulos believed in the circumstances there was an error in technique. It is pointed out by the second defendant that viewing what the second defendant is alleged to have done, on the face of it, the technique was in accordance with standard procedure. However, it is a critical part of surgical technique to detect when the instrument has gone far enough and to ensure it does not go too far. 117 One of the aspects I believe not fully considered by the second defendant was the danger associated with the plaintiff who, it was conceded, would come within the definition of a thin person. In such a person the evidence discloses the abdominal cavity is shallow and you are going into the abdominal area much quicker and there is not much room. You have to be careful not to push it too far. If however the abdomen was fully insufflated Dr Sheldon said there are several inches between the posterior wall and the vessels involved, but in any event the trocar should not penetrate beyond half an inch. 118 Further, Dr Glen said insufflation was difficult to assess on clinical grounds (T729) and thus, if there was insufficient gas in the peritoneal cavity the posterior abdominal structure were more at risk. He had done two to three thousand of these operations without any injury of the nature that occurred here. It is also undisputed that the resistance of the abdominal wall can vary in patients. One of the problems is the linea alba, one of the major resistant obstacles to be overcome in penetrating the anterior abdominal wall (T725). That is why the Hassan technique has been introduced, where there is no blind insertion of the sharp instrument. 119 Professor Boulos said in the circumstances error of technique is the only explanation. Even with a shielded trocar he said the doctor has to be careful because it is not always one hundred per cent safe but if you do not forcibly push it you should not have an injury. He said this is sixth sense, only gained by experience and the only excuse is if the patient had an abnormal anatomy or adhesions, etc, but the evidence discloses that those matters did not apply. He agreed an experienced surgeon can injure if he is clumsy (Exh F T38). 120 It is difficult to know what is the appropriate technique in inserting these instruments. There is dispute between the surgeons as to manner and direction of the Verres needle and the trocar inserted blindly. For example, for some unexplained and unexplored reason Professor Davidson says on the insertion of the Verres needle "most surgeons would direct it down towards the right side of the lower abdomen" (Exhibit G p.41) because as I understand his evidence you would want to avoid the sigmoid colon which is situated on the left side. Professor Davidson gave quite extensive evidence as to what should be done with the insertion of the Verres needle (Exhibit G p9-11) and I infer similar procedure should be undertaken with the trocar. He said the needle has to be introduced slowly (Exh G T9). He believes this was the technique involved in this case. 121 This on the face of it seems to be in direct conflict with the evidence of Professor Boulos because in his report (Exh C, p2) he said the safety of the instrumentation is dependent upon the operator's skill, patient stature and abdominal wall relaxation and with the normal anatomy. Unless the instrument is inserted at the wrong angle damage is unlikely. 122 It is Professor Boulos' opinion that the needle should be directed towards the pelvis on the midline "not to go to the left or right". He said that is necessary because "if you go on either side you can injure the iliacs because they run either side of the pelvis. Other than that the angle that has to be considered is the depth of the insertion". (Exhibit F p.42) 123 The literature tendered in this matter is also contradictory as to how the instrument should be inserted. Exh KK, for example, refers to the necessity of attention to anatomical landmarks and cautious insertion technique are imperative if major vessel lacerations are to be avoided. The Major vessels, it is said, are the aorta and the iliac artery and vein, an it was noted the aorta bifurcates at the level of lumbar 4, which corresponds to the summit of the iliac crests. Advantage should be taken of such landmarks. Injuries it is said to major vessels might be prevented not only by safer use of the trocar but by using sharpened trocars after adequately establishing pneumoperitoneum, then elevating the abdominal wall and avoiding perpendicular insertion of the instruments and avoiding lateral insertion of the needle and the trocar. Penfold has in his article "Vascular injuries and Their Management" proposed techniques designed to facilitate controlled insertion and proper placement of the needle and trocar. 124 In an article in the American Journal of Obstetrics and Gynaecology (Ex NN) in November 1980, there was published a letter from a doctor in which it was said major vessel in laparoscopy fortunately is a rare occurrence. It said such accidents are due to operator error. It also made the point that injury to the iliac vessels must necessarily occur if the needle or trocar is placed off the midline. It went onto state that raising the abdominal wall can produce an illusion of safety. 125 Contrary to the article above Exh LL, an article in the Scandinavian Journal of Obstetrics refers to Penfield, "Trocar and Needle Injuries". It was noted that the laparoscopic technique is important. "An off-centre insertion of the instrument is recommended". This article also emphasises the importance of experience and training. Injuries of such a nature, it is said, were greater amongst beginners. It was also noted that failure to identify landmarks of the body can lead to injury. 126 Dr Glenn (T722) said it was always hazardous to introduce a sharp instrument to the peritoneal cavity except under vision. He was referred to the second defendant's evidence about his technique with the Verres needle inserting it just below the umbilicus at an angle of 45 degrees in the midline towards the pelvis (T723) as being standard technique in this type of surgery. It should be noted that directly under the umbilicus in normal anatomy is the bifurcation of the aorta. 127 The plaintiff puts his case on two bases. Firstly, if he had been adequately warned of the hazards of such surgery, he would have elected to have the surgery done by a more experienced surgeon. The plaintiff claims he was not adequately warned of the dangers of this procedure. 128 The second defendant in his interrogatories described the plaintiff as inquisitive and a thoughtful individual who asked questions and pondered the answers given. It is submitted that a full disclosure of information relative to the decision to undergo the procedure was particularly important. Furthermore the inaccurate advice, it is submitted, is particularly relevant in this case as it is submitted in relation to the issue of causation. The plaintiff could have had the surgery performed by a much more experienced surgeon, Dr Van Gelderen, whose father was a family friend of the plaintiff's family or alternatively he could have had the operation in Brisbane with a more experienced surgeon. 129 The second defendant, through his counsel, Mr Glissan QC, submits that I have to approach the issue of what was said between the parties at the respective interviews. In 1991 and 1992 from the second defendant's point of view as was stated earlier, it was based on a recollection without reference to records. I have dealt with that evidence earlier. 130 There is an issue as to the causation of the injury on this issue. The second defendant submits on the present authorities that the plaintiff has to prove causation and establish he would not have proceeded with the surgery had he been given an adequate warning. The plaintiff on the other hand submits he had lost the opportunity of considering having the surgery done by a more experienced surgeon. 131 It was put to the plaintiff in cross-examination that if told there was a risk of one in four thousand of injury to the internal bile duct organ or a major blood vessel and his answer was he believed he would have questioned the system a bit more. He referred to hindsight and said: "I needed to get my gall stones out. I was sick. I wasn't sure whether you died because of gall stones if nothing was done about them". He did not know what he would have done about them, but - "I would have to weigh it up in a different manner this time with a little bit more negative information on the subject. I can't give you a Yes or No". 132 After that evidence in re-examination in a leading form questions were put to him to suggest that one of the options he had was obtaining a second opinion from Dr Van Gelderen at Liverpool Hospital. He added, however, that there were reasons why he wanted it done by the second defendant. He said "I didn't particularly want to go all the way back to Sydney". 133 I am satisfied that the plaintiff was anxious to have surgery to remove his gall stones. I am satisfied also that the second defendant was anxious to perform this operation on the plaintiff to gain further experience in the procedure. I am satisfied he told the plaintiff it was a new procedure for removing gall bladders. The inference I draw is that at the time of the operation it was a new operation and I infer had not been done at the Gold Coast, that the surgery was just coming to the Gold Coast, the plaintiff rather than being rushed into the operation was told to wait until Christmas or after Christmas when the new equipment would be in place as I understand it to enable the surgery to be undertaken. I am also satisfied the plaintiff was told because of his thin stature he was an ideal candidate. I am satisfied on what I might say was the unsatisfactory evidence before me he knew the second defendant was inexperienced in this procedure in the light of what he concedes he was told. I accept he was not told by the second defendant of the disadvantages of the operation including the rare complication of one in four thousand of some damage to the iliac vein and artery. Even assuming he was told what the second defendant alleges, I am not sure that in informing the plaintiff he might have to convert the operation because of blood on the camera, would have alerted the plaintiff to the possible serious consequences. 134 On the whole, whilst the matter is not without doubt, in my view in light of the literature that was available at that time I believe he should have been told of the rare possibility of an arterial artery or vein being punctured and fully explain his experience and the fact the plaintiff was a thin person all posed special dangers. I am satisfied on all the material before me that at that point of time such a complication was known in the literature as likely to occur in 1 in four thousand cases. I should point out in Rogers v Whittaker (1992) 175 CLR 479, the chance referred to in that case was one in fourteen thousand. 135 Rogers v Whittaker is authority for the fact that a risk is material if in the circumstances of a particular case a reasonable person in the plaintiff's position if warned of the risks would be likely to attach significance to it or that the medical practitioner is or should have been aware that the particular patient if warned of the risk would be likely to attach significance to it. In Rogers v Whittaker, as in other cases, the plaintiff was very persistent in seeking answers as to the effect the operation to be performed would have on her good eye. She said, with a degree of conviction, that had she been told of the problem she would not have undergone the surgery. This part of the case was not challenged in the appeal to the High Court so the Court did not have to deal with that issue. 136 In Chappel v Hart (1998) 195 CLR 232 the High Court was dealing with a case which resulted in perforation of the oesophagus during surgery resulting in infection which damaged a nerve causing permanent voice impairment. The patient was also very persistent in obtaining information as to the possible effect on her voice, because the quality of her voice was particularly important in her employment. Gaudron J said the damage suffered was not the loss of a chance valuable or otherwise but the physical injury that she in fact sustained. (p.38) and the foreseeable risk to the patient was the loss of an opportunity to undergo surgery at the hands of a more experienced surgeon and the duty on the doctor would have been to inform his patient that there were more experienced surgeons in the field. Kirby J in his judgment at p277 noted it was true to say that the inherent risks of injury from rare and random causes arise in every surgical procedure. In the particular case he noted the plaintiff spoke about the risks inherent in the operation and questioned the surgeon about them and received no adequate response. When those risks so quickly eventuated common sense, he said, suggests that something more than a mere coincidence or irrelevant cause has intervened. The impression is reinforced once it is accepted that Mrs Hart, if warned, would not have undergone the operation by that particular surgeon. 137 His Honour goes on -(at p.27) "…intuition and commonsense suggest that the higher the skill of the surgeon, the less is the risk of perforation and without perforation she would not have had the consequences the nature of the risk is the same but the degree of risk is diminished." 138 His Honour pointed out that this was not an ordinary patient. She was an inquisitive, persistent and anxious one who was found to have asked these particular questions to which she did not get a proper answer. 139 Gaudron J rejected the argument by Dr Chappel that the respondent had lost the chance and that the chance was not of any value in the circumstances as the operation was necessary and the outcome could be the same and thus the damages should be determined on the basis of loss of some chance. Her Honour stated her loss should be assessed on the basis of the physical injuries she sustained in the operation (p238). The duty was called into existence, her Honour said, because of the foreseeability of that very risk. The duty was not performed, the risk eventuated. Importantly, she said at p239: "Where there is a duty to inform it is, of course, necessary for a plaintiff to give evidence as to what would or would not have happened if the information in question had been provided. If that evidence is to the effect that the injured person would have acted to avoid or minimise the risk of injury, it is to apply sophistry rather than common sense to say that, although the risk of physical injury which came about called the duty of care into existence, breach of that duty did not cause or contribute to that injury but simply resulted in the loss of an opportunity to pursue a different course of action." 140 In a footnote McHugh J, who dissented but pointed out Australian law has adopted a subjective theory of causation in determining whether the failure to warn would have avoided the injury suffered and given that most plaintiffs would genuinely believe that they would have taken another option and that the Court should determine the question on an objective basis. 141 Both Rogers v Whittaker and Chappel v Hart were cases where the patient sought specific assurances that what eventually happened to them would not happen. If they had been warned of such dangers they would not have had the particular surgeon perform the operation. This was not disputed in each case. The plaintiff in this case was not able to say what his attitude would have been other than he believes he would have sought further information. 142 I am not satisfied on the balance of probabilities on the plaintiff's evidence that he would have taken a different course. It may be he would have, but he carries the onus and I am not satisfied he would have either instructed the second defendant to do an open cholecystectomy or would have sought to have it done by a more experienced surgeon, Dr Van Gelderen, whom it is suggested he would have consulted. The plaintiff on the totality of the evidence I accept was a very sick person subject to severe attacks of pain which I infer would have continued and probably would have worsened. This I believe was confirmed if it needed to be confirmed at the subsequent operation by Dr Van Gelderen. He had been advised by his local practitioner to seek specialist advice and he had discussed the matter with the second defendant. It is also important to bear in mind that he was living on the Gold Coast where there was a large and well equipped hospital and a most convenient place for him to have the surgery. He was also satisfied Dr Miller was a competent general surgeon as he undoubtedly was with considerable experience in open gall bladder surgery. It was also urgent not only in the sense of overcoming the problem but was necessary to enable him to be fit in February to take up the prospective offer of a job overseas. He was told of the relative advantages of having the laparoscopic cholecystectomy as against the open cholecystectomy and the fact that the consequences subsequent to the operation would not be as debilitating as that which could occur under the open cholecystectomy. I accept there would be distinct advantages and it would be more likely he would be fit in February to take out the job overseas. Furthermore, he was able to jump the queue in Queensland by becoming an intermediate patient rather than suffer a 12 month delay. He was told if problems arose the procedure would be converted to an open procedure. It is impractical therefore to suggest, in my view, that he would have consulted Dr Van Gelderen which would have meant travelling to Sydney and, if electing to have it done at a public hospital, it was likely he would be on a long waiting list. No evidence was led on behalf of the plaintiff as to when he could have expected such surgery to have taken place in Sydney. 143 Even assuming in all the circumstances he was told that there was a one in four thousand chance of venous injury he would be told such complication was rare and he would know the operation would be converted to an open surgery if problems arose. I am therefore not satisfied that because of the lack of appropriate warning would have caused him to act otherwise. 144 One of the submissions made by the Plaintiff was that I should assess this matter on the basis of the loss of chance to consult a more experienced surgeon. 145 Kirby J in Chappel v Hart (supra) pointed out there were reasons for such an approach but His Honour conceded that the weight of judicial opinion in England and Canada was critical of such an approach in medical negligence. 146 His Honour pointed out in any event it was not pleaded in Chappel v Hart and no evidence was tendered in the case as to the value of that chance. 147 In the circumstances here, even if one assumes that there was an argument on the basis of the loss of a chance to have this operation performed elsewhere by a so-called more experienced surgeon, there is no evidence sufficient to enable me how to determine the value of the loss of the chance. 148 In any event summing-up the whole of the material in the circumstances here I am not satisfied that even if the plaintiff had been warned as I believe he should have been that he would have sought the services of a so-called more experienced surgeon. 149 I now turn to the question whether the operation was performed in circumstances attaching liability in the second defendant. 150 The second defendant accepted at the time of the surgery, as he had to do, that he was a very inexperienced surgeon in this type of procedure. He also agreed he was keen to gain experience (T847). I have set out in detail his experience at the relevant time. 151 The second defendant, I am satisfied, is a very competent general surgeon but was inexperienced in this new procedure. The procedure obviously has difficulties particularly in inexperienced hands and he was not fully alive, I believe, to the problems that could occur in such a procedure. It is noted that in the medical writing it is said that such injuries occur when the surgeon is inexperienced. I accept the evidence that the ability to recognise when the instruments have penetrated the anterior abdominal wall is one that comes from experience. Dr Glenn, for example, said the trocar does not have to go a long way past the anterior abdominal wall in order to damage these vessels. He was of the view that they should not be pushed more than half an inch beyond the anterior abdominal wall but he said the trocar has to go a long way when there is sufficient insufflation before it can damage these vessels retroperitoneum. Contrary to that opinion Dr Sheldon states that in some circumstances these vessels can lie within half an inch under the umbilicus. It is clear that I have concluded the trocar went too far. 152 The question then is whether the second defendant was negligent in performing this operation. If it was the trocar, as I understand the evidence of Dr Aroney, the second defendant should have been aware of the dangers of inserting the trocar too far. The reason for this was that he said doctors were more aware when inserting the first trocar to ensure damage did not occur. His evidence was extensive and not altogether clear because of his volubility but he stated it was necessary to use more force to insert the first trocar and thus the doctor has to be very careful. In order to overcome this problem he places his finger at a certain point on the trocar to ensure it could not penetrate too far. Furthermore, there are tests that can be taken with the Verres needle to determine if it had penetrated a vital structure, not as I understand it was available with the trocar particularly if there was bleeding ante-posterior peritoneum. The second defendant himself agrees with the proposition that the trocar went too far and I can only conclude if it was a fact, as he asserted, that the trocar went in smoothly that he was not aware precisely at what time it had penetrated the anterior abdominal wall. 153 In his evidence the second defendant gave what could be said was a textbook account as to how the operation proceeded and that it was sheer misadventure that the trocar went too far and damaged the artery and vein. This evidence is seen in the transcript at p667 and 694. 154 I am satisfied that this type of surgery had dangers not encountered in the open procedure. Some doctors such as Dr Sheldon abandoned the procedure. I am satisfied at the time the Australian surgeons were comparatively inexperienced in the procedure and on the face of it Dr Miller more than most. The procedure, on the evidence, has difficulties particularly in inexperienced hands. 155 Professor Boulos said that with a normal anatomy the injury is unlikely except when the instruments are inserted at the wrong angle. If the abdomen was shallow forceful injection could mean that the instrument could reach the vascular structures underneath. This as I understand the evidence is more likely in a thin patient as the Plaintiff apparently was at the time. He believed the second defendant miscalculated the angulation and depth required for insertion of the instruments. He said one of the problems is uncontrolled entry when the surgeon applies increasing force whilst attempting to enter the abdominal cavity. He believes the accident was avoidable with caution. Like Professor Davidson he said it was unacceptable injury and it is rare because surgeons are very careful about it. 156 Dr Sheldon who decided not to use this technique in such surgery because of the danger of blind insertion of instruments agreed the thin subject is ideal for the actual performance of gall bladder removal, but risk inherent in the blind trocar insertion technique is higher than in a person whose abdomen is likely to be capacious and whose abdominal wall could well be clear of viscera. 157 The second defendant conceded he was inexperienced in this type of surgery but submits in the circumstances he exercised all due care and what happened was an unavoidable mishap which was intrinsic in the surgery itself. He does not advance any reason why the trocar in the circumstances went too far and penetrated the retroperitoneal space. There is no suggestion of instrument failure as a feature. It was submitted by the Defendant that he performed the surgery in accordance with the guidelines laid down by the Surgical Association. 158 With the second defendant's submission I cannot agree. Without canvassing in detail all the evidence given before me I should point out there is even dispute now as to how, and in what direction, the instruments had to be inserted, which I find extraordinary. This surgery at the time was in its infant stages in Australia and it is clear that a reading of the literature at that time and indeed the very procedure itself should indicate to a specialist surgeon that this was very hazardous surgery. It required two very sharp instruments to be introduced blindly into the abdomen. I am satisfied that in order to do this successfully the surgeon had to be skilful and very experienced in this procedure. Dr Sheldon said a relatively small error could bring about rather disastrous results. 159 I believe the second defendant was anxious to obtain experience in this area. I find the training and experience he had led him to underestimate the dangers in the surgery and his inexperience caused the trocar to penetrate too far. I believe also he was over confident of his abilities. 160 I believe also that he acknowledged when after the operation he spoke to the plaintiff and in effect hinted he was negligent. Whilst there is a great deal of the evidence of the plaintiff I find difficult to accept nevertheless evidence he gave about an interview with the second defendant after he had recovered consciousness in the hospital rings true to me. He said that when the second defendant came to see him he seemed awfully sorry for what had happened. I have no doubt that the doctor was in that state of mind because the plaintiff was lucky to survive. He mentioned to him: "Don't worry about anything. I have insurance to cover this situation, just this kind of situation." 161 The plaintiff went on to say "I remember a figure of 3710 or 3170 he mentioned that were his premiums". The second defendant was cross-examined about that evidence and was reminded that the plaintiff was not tested on that material. He did not deny he mentioned insurance premium to the plaintiff saying he had no recollection of doing that (T864). When asked what his insurance premium was at the time he said he did not know to the exact cent. There is a ring of truth about this alleged conversation. The second defendant, at best I believe, on the whole of his evidence was careful to say he had no recollection of the conversation. I accept this conversation took place at the time and is some evidence to corroborate the fact that the second defendant acknowledged that he had been guilty of negligence. 162 The second defendant himself acknowledged the fact he was inexperienced and was on a learning curve. In my view taking all those circumstances into consideration I am satisfied on the balance of probabilities that on the whole of the evidence the second defendant's training and experience were inadequate to undertake this operation on the plaintiff. It is submitted on the evidence that he performed the operation in the same manner as recommended by the College of Surgeons and therefore was not negligent. In my view even though he knew the appropriate techniques his lack of experience was fatal. 163 Clearly on the literature there is support for the fact that inexperience is the main cause for these injuries. In my view his knowledge and understanding of the procedure at the time was inadequate and before he undertook such surgery he should have read widely and consulted widely and performed many more surgical procedures under specialist supervision. The fact he did not consult the literature at all is a serious omission. Surely if one is undertaking such hazardous new surgery a minimum requirement would be reading and absorbing the medical literature on the subject. Furthermore, I believe he did not have sufficient regard to the fact at the time of the difficulties that would follow from the fact that the plaintiff was a thin patient and that the insertion of the instrument therefore was much more dangerous in such a patient than in other patients. I believe the second defendant was anxious to obtain experience in this area. I find the training and experience was lacking and he needed to do more operations under supervision. I believe his inexperience left him to underestimate the dangers of the surgery and his inexperience caused the trocar to penetrate too far as a result of his inability to determine the position of the trocar after he had inserted it. 164 The Second Defendant was a specialist general surgeon. In those circumstances he had a duty of care to the Plaintiff to exercise reasonable care and skill. The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have the skill of a special general surgeon. I find he failed in the circumstances because of his inadequate skill in carrying out the laparoscopic cholecystectomy and in doing it without pursuing further training and informing himself fully of the hazards of the surgery by reading the relevant literature. 165 Consequently there will be a verdict for the plaintiff because in my view the standard of care required of a specialist general surgeon in these circumstances was breached by the defendant's lack of experience and knowledge of this type of procedure which brought about disastrous consequences. 166 The ability of assessing the plaintiff's damages is a very difficult process. In the words of Dr Dunn, the psychiatrist, in his report (Exh A, 27/1/1994) it is difficult to know where to begin. Whilst I have concluded the plaintiff was an unsatisfactory witness the question to be determined is whether that results from the accident or other causes. There are many aspects of his evidence that point to gross exaggeration particularly as to his pre-injury activities and life style. 167 The defendant submits that the plaintiff has failed to call a number of witnesses who should have been called. Dr Maguire (Exh 26) saw two copies of a report from a Dr Mann (13 May 1994, 20 September 1994). They are also referred to in Exhibit HH. Dr Glenn also, in his report (Exh 20), has read the report from Dr Mann. 168 I am asked therefore to infer from that material that Dr Mann is a medico-legal consultant who reported twice but has not been called. I have no information about Dr Mann. The plaintiff was not cross-examined about how he came to see Dr Mann. Criticism was also levelled at the plaintiff for not calling Dr Van Gelderen to give evidence of his findings on operation particularly in respect to the question of minimal adhesions. It is noted also Dr Van Gelderen reviewed him on 29 July 1992 when his wound had apparently healed without problems and the doctor indicated he would like to see him again in one month. There is no evidence about whether he was seen again by Dr Van Gelderen and if so what were his conclusions. 169 Criticism was also levelled at the failure to call Dr Wilhelm, who saw the plaintiff prior to the operation in 1992 and to whom he demonstrated a number of psychiatric problems in the history she obtained. 170 Dr Brennan who saw him after the failed operation was not called. I presume he was not required for cross-examination and no doubt the reason was he said by the middle of March the Plaintiff's main symptoms of general pain and back pain had subsided which is not consistent with the plaintiff's complaints since the operation. 171 At the start of this analysis I referred to the report 17/5/89 (Exh 27) of the psychiatrist, Dr Wilhelm, who saw him on 10 May 1989 prior to the operation. Dr Wilhelm was attached to the Mood Disorders Unit at The Prince Henry Hospital and she is able, I believe, to provide a window into the plaintiff's background prior to the operations and what I consider to be the only reliable indicator of the plaintiff's problems prior to the operation. 172 I have no doubt, despite his attempts to establish to the contrary, he gave an accurate history to Dr Wilhelm. I do not accept the plaintiff's evidence in which he said he gave her an untrue history. I am confident he knew to say that in an attempt to explain away the history Dr Wilhelm alleges he gave to her which I believe is inconsistent with his evidence before me. I formed a very clear impression that he was fully aware of the issues in this case and Dr Wilhelm's evidence was damaging to that case. Other medical witnesses have expressed views that he was well aware of the details of his history and the possible implications of much of it (see in particular Dr Pryor's report, Exh 11). 173 The plaintiff gave evidence in chief (T16 et seq) that he had this interview with Dr Wilhelm early in 1989 before he went to Queensland. It was organised by his mother and he said he went 'to keep her happy'. At this time business was not going well, his partner was a rascal, there was a break up with his girlfriend and he had just taken up with his present wife. He said at the time he was greatly upset and when asked did he give an accurate account of his background to the doctor he answered, 'I don't think so'. He justified this because he did not think there was anything wrong with him and he was being pressured by his mother. All the more reason one would think to give an accurate history to put at rest any suggestion there was anything wrong with him. In cross examination when reminded of this evidence (T129) he thinks he answered no on the question of giving Dr Wilhelm an accurate history. He denied he thought it was all right to lie. He then unsuccessfully in my opinion challenged Dr Wilhelm by stating she had not properly represented him in the report. He went on to say he did not know whether it was her fault or his and he was totally bamboozled about it (T130). Her report, he says, seems totally out of character. It should be emphasised that Dr Wilhelm's report was admitted by consent and she was not required for cross examination. If Dr Wilhelm had misrepresented what she was told then I would have expected her to be challenged. 174 Various parts of the history were given to Dr Wilhelm were put to him, some of which he had to agree she had accurately recorded. He told Dr Wilhelm that he toured with rock bands. The plaintiff believed there were a lot of wrong things in the report, namely, he had told her that he had paid off the share in the property that he then lived in. He admitted he told that he had smoked marijuana, but denied he was smoking it at the time he saw her. (T131). The question of drinking alcohol to excess, he said, was only for a period of two weeks in New York because of problems of depression over his former girlfriend's death. He believed when seen he did not have any psychiatric problem and this was the position up to the time of the operation (T132). When questioned why he did not mention Dr Wilhelm's consultation to other doctors when a history was being taken he said he was surprised that he did not remember the interview (T133). He then at one point said he has no memory of seeing Dr Wilhelm. If he had no memory of seeing her it is difficult to understand how he can be critical of the history she obtained. 175 He agreed he told Mr Taylor, the psychologist, that he had no previous psychiatric history having forgotten he had seen Dr Wilhelm. He told Dr Mayne he had no previous psychiatric history He vaguely remembers suggestions, and he did not deny that Dr Wilhelm recommended he should see a psychiatrist, Dr McIntosh, at Coffs Harbour to help him deal with the problems with his mother. He does not recall, he said, her suggestion he was to provide him with cognitive interventions that could help with depression and emotional instability. 176 He agrees he has told other people that his mother was dominating and eccentric, and he was again angry as he believed at his age of 31 his mother was yet again telling what to do with his life (T150). 177 In respect to the many family fights referred to in the history given to Dr Wilhelm such as loaded dinner plates being thrown he said thinking now what he thought was fights were quite normal. He now says he can only recall one dinner being upturned on the table. 178 Dr Wilhelm, he believed, did not record very much correctly at all (T153). This does not seem to suggest he had deliberately misled her. Once again it is difficult to accept much of what he says. 179 She has also recorded that he was given to head banging and he denied this. (T154) His explanation was that Dr Wilhelm might have been mistaken because he may have been talking about head banging music or rock and roll (T154). He denies he stabbed his brother with a pen knife. Therefore, one must assume from that answer that the doctor made it up. He then said he is not sure whether it was wrong because of what he told her or whether it was misconstrued (T155). 180 It is interesting to note the answer about being expelled from primary school (T155) when he answered he did not think so. I realise that his father and mother asserted that this was incorrect. Whilst they were not cross examined on this subject and I have regard to that fact but where did Dr Wilhelm get this information from? It is not likely she made that up. I accept that for whatever reason he told her that. 181 He told Dr Wilhelm he was not expelled from Shore and this was because of the strong family tradition and this seems to be the fact because of his uncle's association with the school. 182 Despite his so-called lack of knowledge of the interview with Dr Wilhelm he referred to her as Kay Wilhelm (T163). Then eventually he had to agree that what he told her was broadly speaking correct (T166). 183 I have come to adverse conclusions against the plaintiff as to why he has, I believe, unsuccessfully tried to explain away the history he gave Dr Wilhelm. On the question of breaking windows in the house it is now suggested that he only broke one louvre. If that were true it would not rate a mention. I accept the doctor's history is accurate. There is no other way she would have obtained such a history unless she was told it. 184 I am fortified in this because he was told many untruths to various doctors who have seen him. These accounts have been exaggerated, I believe, in order to deceive the doctors as to his background. There are many instances of this. Some examples are: Miss Caine (Exh A, 16 Dec 93) he told he obtained his Leaving Certificate; had worked primarily in his own construction business in Coffs Harbour and more recently on the Gold Coast, hardly a true indication of his background. He told Dr Dent in a medico-legal interview (Exh A, 8 May 96) that he had been a builder and then in the concrete business working at a high level of competence capable of managing a project where 30 or 40 other men were employed and finding it a 'breeze'. He then said in hospital he was told he had an offer to work overseas 'whereby it was a big break about to unfold'. What this break was was never disclosed. 185 His wife described him as happy go-lucky, supremely confident, cool, calm and collected, about to launch into a proper career and life was on track. I should add that the plaintiff at the time was aged 35 years and other than his concrete pumping business had shown little activity likely to launch him into a career. She went on to say life had gone 'from flat out to full stop'. When one examines his working career for some years prior to 1992 the phrase 'flat out' does not come to mind. I note his time as a part time caretaker at the Gold Coast for some considerable time prior to this operation. His activities are not suggestive of being flat out. It is once again not only an exaggeration by his wife but typical of other evidence given as to his background. I note he also told Dr Dent he went nervously to his old school's first 20th reunion which compared his limited capacities now to what they had been before. I do not doubt he went nervously as he never played in the team. 186 Dr Dunn who saw him in January 1994 (report 27 January 1994 Exh A) noted 'he was a fairly elusive and difficult historian who spoke in a tangential and overinclusive manner' that the doctor believed was perhaps a reflection of the 'pedantic quality to his personality' rather than the effects of brain damage. I believe Dr Dunn's assessment is probably correct. 187 He told Dr Bell (Exh 24 - report 26 July 1999) in an interview that he suggested the thrust of Dr Wilhelm's report as being unfair and he could not understand her report. He went on to say (p41) he could not understand any of them 'the doctors seem to say what they like, like politicians'. Should I comment that it sounds like his evidence namely he seems to say the first thing that comes into his head which he believes might help his case. He told Dr Bell, a psychiatrist called for the defendants, that he was a good scholar (p45) and went rock and rolling in a band for three years in Melbourne, that he owned his own home but it is not in his name and he had made an arrangement if he lost the case he would not have to pay the costs out of his assets. He asked Dr Bell to keep that in confidence. If this is true it does not seem he is a man who cannot organise his affairs because of the effects brain damage. 188 He told Dr Maguire (Exh 26 - report 8 August 1997) that he was living on the Gold Coast where he was running a mini storage centre on 10 acres, whilst waiting for his next big concrete contract. Hardly once again the true situation. He told Miss Occelli (report 10 May 1994, Exh A) that on leaving school he went to Melbourne to study music at Berkeley College and whilst there worked for a legal firm and was employed in a rock and roll band. He said he then left that employment and dedicated himself solely to playing music for the next two years. Note also the exaggerations about his concrete business in the ultimate paragraph page two of the report which history is not borne out in the evidence. He was said to have clerical, sales, management, organisational and practical skills (see page 3 of the report). This continual exaggeration of his skills and background make one very wary of accepting the plaintiff. It also makes one wary of accepting the medical reports based as they are to a considerable extent on the history they obtained from the plaintiff. 189 Dr Grady (Exh A R 27/6 1995) found him rather difficult to assess. Whilst he thought his extraordinary conduct when being interviewed must be attributable to brain damage but the doctor felt at times he was being consciously and deliberately provocative. 190 His wife gave an extraordinary history (page 3 Dr Grady's report) of talking about his reference to aliens - 'he was an alien trapped in his body'. He was originally pure energy, not the impression I have gained from the evidence. He was using marijuana. She then referred to him proclaiming to all and sundry in a restaurant about skinheads and that he was employed by the government to shoot skinheads and so on (see also page 3). I cannot accept these conditions resulted from any minor brain damage nor as I understand the evidence has anyone suggested they do result from minor brain damage. Dr Grady felt that his behaviour could have been marijuana induced or hysterical pseudo-psychosis. He noted he was not manifesting the latter at the time of the interview. Once again a matter that makes one wary of accepting his complaints. It is more likely the doctor thought that his strange behaviour was probably due to marijuana ingestion and perhaps with the other drugs he was taking. It should be noted that all answers he gave the doctors were exaggerations in his favour, a fact that ran through all the histories obtained from him. 191 He told Mr Taylor, psychologist, he had left school at 17 in year 12 (see report 16 Oct 95). He told him further that he had completed two years of a commercial law course at the Technical College and was successful in the studies he undertook - again untrue. He also told him he played in a rock and roll band in Melbourne for two years and taught piano in New York, worked in the theme construction industry in various parts of Australia including overseas alleging he designed and built attractions and was doing this until the operation, again a gross exaggeration of the true situation. 192 He told Dr Pryor, who saw him on behalf of the defendant, that he had reached 8th Grade at piano and was a professional musician for four or five years. (See report 18.8.98 Ex 11) 193 There are other exaggerations in the history he has given to doctors and the above are but examples. It is difficult to accept whatever this witness has to say. I am of the opinion his evidence has been exaggerated in order to obtain a substantial verdict from me. I have no hesitation in accepting the report of Dr Wilhelm as containing a true history and his facile efforts to explain away is an acknowledgment of the fact that he believes it does not assist his case although he denies he attempted to make his case look better. It is a fact that he 'roadied' for the band, driving the truck, setting up and filling it in when other musicians failed to turn up, hardly that he had played in a rock and roll band for two years. He also apparently told Dr Jayasinghe that he had won some scholarships, told Dr Jungfer that he had reached 6th of 7th Grade at music. 194 It was suggested by Mr Glissan that he had told a Dr Goma, a pain specialist, (not called) that he owned income earning properties. 195 The question to be determined in the light of that background is has the plaintiff has suffered brain damage and if so was it permanent and what lasting affect if any it has had on the plaintiff. This is by no means easy of resolution because of the unsatisfactory evidence of the plaintiff and the lay witnesses called on his behalf. There is also considerable dispute amongst the medical witnesses as to this fact. A number of doctors and psychologists on behalf of the plaintiff are of the opinion the plaintiff has suffered hypoxic brain damage of a permanent nature. On the other hand Professor Holland, Drs Doolan, Pryor, Parker, Bell and Maguire on behalf of the defendants are of the view that the plaintiff did not suffer any permanent brain damage. 196 In assessing this difficult problem the starting point must be that the plaintiff did suffer a period of cardiac arrest of some twelve minutes and thereafter was hypotensive for a period of some 55 minutes. Those facts in themselves are suggestive he could have suffered brain damage. He was acutely ill and close to death. The circumstances of what occurred are set out in this judgment on the question of liability and they do not need reiteration any further. Suffice it to say it was a very serious episode and in some way he was fortunate to survive. 197 Dr Watson, a neurologist who gave evidence on behalf of the plaintiff, was convinced the plaintiff suffered brain damage. He said in the course of his speciality he sees many patients who are brain damaged (T248). He referred to three EEG's that had been taken which showed some fast activities bilaterally in the temporal areas and he said the temporal lobes are often affected by hypoxia. Whilst the EEG's showed the abnormalities were minor but because of what had happened to him at the operation they were significant in his view. When he first saw him he believed he had hypoxic brain damage which was slowly improving. 198 When he gave evidence in addition to material he had when he prepared his reports he had access to the hospital notes as to what took place at the operation and thereafter (T252). He also had access to the anaesthetic chart of Dr Doolan and he referred to these matters in some detail in his evidence. He believed the additional of 55 minutes during which he had diminished blood pressure could lead to a very serious outcome (T254). He noted also the fact that during the laparotomy he was close to death. (T255). He said if he had seen Dr Doolan's anaesthetic chart prior to his report he would have been emphatic of the "extremely high possibility or likelihood of some brain damage". In addition he said the plaintiff required artificial support of his circulation until the next day and was given Dobutamine, was ventilated and intubated and at that stage could have gone into a coma and stayed that way. 199 Overall he said taking into account the cardiac arrest and the origin of that arrest, the period of the arrest the fact that massive amounts of various fluids had to be transfused, the fact that the circulation had to be supported with drugs like Dobutamine and the fact a laparotomy had to be performed under circumstances that you would prefer not to do, added to the fact he had became more acidotic he would have expected the probability that the Plaintiff would have sustained some form of hypoxic hypotensive brain damage (T259). 200 He referred to his progress in hospital after the operation (T259). He then said none of the observations made by hospital staff as inconsistent with him having suffered brain damage (T260). Whilst he conceded he was doing well and had a lucky escape he was critical of the fact that no standard clinical neurological examination had taken place let alone a proper mental state examination or a detailed neurophysiological examination. He would also have expected there would have been a record kept of his Glasgow coma score which I gather is a measure of the Plaintiff's consciousness. 201 He was cross-examined at some length by Mr MacDougall, junior counsel to Mr Glisson at page 438 and sequence. Mr MacDougall referred to observations that were made of the plaintiff after the operation. It was put to Dr Watson that when he was intubated at 23.45pm on the 29th January 1992 it was suggested that his Glasgow coma scale was 15 to which the doctor said he did not think it was measured. On the observations made at the time the Glasgow coma score was in a range of 14 -15 with the highest range of 15 but this did not cause Dr Watson to change his opinion. 202 It was put to Dr Watson in cross examination that he had carried out a neurological examination himself and could find no abnormalities. He said he disagreed finding that he was slow and hesitant in his speech at times (T440). It is not easy to appreciate what abnormalities Dr Watson had found. The only problem elicited seemed to be a problem with the alternative hidden key test and he seemed to suggest that because it took two attempts to understand this that showed some abnormality. He agreed he was dependant on history and such evidence should be subject to the closest scrutiny. 203 Dr Watson relied on the findings of Miss Caine, the neuropsychologist, whose specialty was diagnosis of brain damage. Miss Caine was attached to the Neuropsychology Unit at Royal Prince Alfred Hospital (RPA) and she reported to Dr John Walsh on 16 December 1993 (Exh A) and referred to the plaintiff as a "hapless fellow". She obtained a history from him of having completed his Higher School Examination - again incorrect. She concluded he presented with complex disturbance in recent memory functioning and retrieval of newly acquired information. She found word finding, verbal fluency and linguistic discourse were all impaired and that these deficits were suggestive of a degree of fronto limbic dysfunction. I would have liked to have heard from her particularly as it appears other practitioners who saw him later were not able to find a lack of fluency and word finding, some of whom conducted tests within a few weeks of her examination. Once again so much is dependent upon accepting the plaintiff under cross examination. The plaintiff spent considerable time in the witness box and I detected no problems with him in his word finding ability or his ability to express himself. Dr Bell criticises the report of Miss Caine as she has not set out the tests she performed and thus the report is not subject to scrutiny. 204 The plaintiff was then seen by Ms Coffey, a speech pathologist with Commonwealth Rehabilitation Service, on the 11.1.1994 and 4.3.1994. See Reports 18.1.94 and an undated one. She noted like Dr Dunn he was verbose in his expression and often tangential. Contrary to Ms Caine she found he had good insight into difficulties, good problem solving skills, able to think flexibly and logically with good verbal expression and comprehensive skills. She noted he was verbose but was able to express himself well but had at times inappropriate expressions. The latter of course is a subjective finding. His stated to her that he changed the order of words around and felt he could not monitor that successfully. She observed this not occur on her examination and on testing of word finding ability he had no significant problem. Once again complaints are made that cannot be corroborated. There was no problem with comprehension following verbal instructions, understanding complex and lengthy information, understanding vocabulary and no difficulties with grammar, spelling and the use of complex language. 205 He told her that his memory of recalling pictures, faces, names and appointments effected his every day functioning, could not remember daily chores, written or read messages and a lack of concentration, although as will be referred later his concentration was found by Miss Occelli, a rehabilitation counsellor with the Commonwealth Rehabilitation Service, (report 10/5/94, Exh A) to be above average in regard to concentration and attention skills involving immediate memory. These it should be emphasised are all subjective complaints and bearing in mind the unsatisfactory overall nature of the plaintiff's evidence I am reluctant to accept anything about the plaintiff that is not corroborated. It seems in this case as a result of his subjective answers and history he was assessed as having poor memory. Certain recommendations were made as to the future treatment including attending a memory group commencing on the 25th January 1994 to develop memory strategies already in use. 206 The extent to which this assessment was accurate must be doubtful having regard to an assessment 4 March 1994 by Miss Coffey. This was after he had attended the memory group and past group results had indicated there had been no change in the plaintiff's memory following his involvement in the group. This it was said was not consistent with reports obtained and the observations made in the group. He was said to be more aware of the effects of poor memory on his everyday activities and the particular strategies which assist him and the importance of implementing them but said he would only be able to implement a limited number of strategies. 207 The question as to the extent of his memory problems once again are based on what appears to be subjective material. I would have been assisted in assessing Ms Coffey's evidence to have had oral evidence from her to establish in what way his complaints were inconsistent with reports and observations. 208 He was then seen by a Ms Occelli, a rehabilitation counsellor on the 9th May 1994, who had a less than accurate history of his pre injury background. For example the reference to selling his business and obtaining contract work building sets and landscapes for theme parks and museums. He told her he was responsible for hiring and supervising other workers and dabbled as a music teacher throughout the whole of his working career . He was said to pursue job satisfaction rather than security and stability which he described as both personally and financially satisfying. She believed he had a lighthearted attitude to his work. He indicated the need to be independent and creative in his work. These were his important priorities. Large sums of money can be sacrificed in the name of job satisfaction. Further vocational counselling she said would be necessary to arrive at similar vocational options. That would require six sessions of vocational counselling to facilitate the process of defining vocational expectations and establishing a plan for vocational rehabilitation was recommended. 209 Dr Cumberland (report dated 11 June 1993, Exh A) saw him at the request of Dr Salgo and noted his rapid recovery of consciousness following the cardiac arrest which seemed to indicate that he did not suffer any severe cerebral damage. 210 Dr Dunn, (Report 27.1.94 Ex A) said he did not have much of a chance to test his cognitive functions because of his verbosity. He believed he had an impairment of short term memory as well as significant difficulties in organising and manipulating information. This assessment does not seem to accord with Ms Coffey's account. His report on the whole seems to be based to a large extent on what he was told by the plaintiff. He said he could not escape the impression that his embracing the victim role, his need to be in control of the interview, his simmering anger and his tendency to blame his distress on others indicates certain narcissistic personality traits. The Doctor said his personality traits could be elements of his pre morbid personality. 211 Dr Jungfer in her report of 2 April 1998 (Ex A) on the main relies on what she was told by the plaintiff. She seems to indicate to a large extent at that time of his difficulties resulting from the delay in the legal proceedings which she describes as likely to have a detrimental effect on him. It exacerbates his depression, his poor coping skills and he becomes frustrated. She said it would be beneficial to his mental state and psychological treatment to have the proceedings finalised. It also has an indirect effect on his physical health and she referred to bouts of abdominal pain exacerbated by his stress and obviously the longer the process continues the more stress he experiences and thus there is an increase in his abdominal pain. The hearing of this case will reduce the amount of stress. In her diagnosis of him she said he showed anger and cynicism. She found no difficulties in word finding. He complained of anxiety and depression but not the intensity of a major depression and he had a personality style with narcissistic tendencies which in the circumstances she believed he had prior to the accident. She did not have at this point of time much of a chance because of his verbosity of ascertaining his brain damage. She said "it is a little difficult to know where to begin". She arranged his return to complete the assessment. It appears she then began to treat him some years later. 212 The first psychologist he saw was Ms McCready in August and September 1993(Report 14 September 1993 Ex A). She saw him in Queensland. She noted that his vocabulary skills were exceptionally well developed and general knowledge was average, reflecting his pre morbid functioning. Comprehension and abstract reasoning was poorer but still within normal limits. She noted word finding problems on testing and there was considerable variation across the different areas of memory function. Concentration, attention skills well above average and immediate memory good for auditory and visual information good but memory for verbal information particularly poor. She concluded he had a significant memory disfunction in learning and recall of verbal information and poor planning skills. She felt these problems were consistent anoxic brain damage. 213 He was assessed by the Commonwealth Rehabilitation Service (CRS) (Report by Miss Occelli 10 May 1994 Exhibit A) which was once again a long report which does not need reiteration here. I referred in part to this earlier. The past history given by him again is exaggerated. For example reference to his work as a storeman and he believed he became responsible for ordering stock from overseas, all stock control, customer liaison and designing a new warehouse which I believe is difficult to accept as an accurate history of what he did in that job. The plaintiff referred to his interest in creativity and human cultural endeavours. He said he was an analytic person and people orientated. He needed to be independent and creative in his work. The writer then went on to say that earning large amounts of money it appears can be sacrificed in the name of job satisfaction. It was said his varied work history had provided him with clerical skills, sales, management, organisational and practical skills. That is no doubt a eulogistic assessment of his background based on subjective material and not justified by the evidence before me. It was said he should have had vocational counselling to define vocational expectations and to establish a plan for vocational options. There is no evidence of this having taken place. 214 He was interviewed by Miss O'Rourke (Report 23 December 1993 Exhibit A) who noted he was eligible for rehabilitation program with the Commonwealth Rehabilitation Service. In a report of 25 January 1994 there was a suggestion of obtaining reports re him obtaining a driver's licence. In a Report she noted contrary to other reports he had poor concentration. Miss O'Rourke noted he was to attend a communications skills group which he did not complete because of personal/family difficulties. I have no evidence of what this was. He was said to be going to participate in the next group later in the year but there is nothing before me as to whether he did that or not. He was also to attend with his wife at a couples group to look at adjustment and coping strategies, planned in the next eight weeks. There is no evidence of this. He was also said to be seeing a Rehabilitation counsellor to discuss work issues as no clear vocational direction had been determined. He was to go to continual sessions with a rehabilitation counsellor as planned and I know nothing of what took place in this respect. 215 Lastly, he was seen by that well-known medico-legal witness, W. John Taylor, psychologist. He again had an incorrect work history. He told Mr Taylor he believes he had sustained brain damage in the temporal areas of his brain and he was said to be experiencing memory loss and difficulties in concentration and attention. These complaints of difficulties in concentration are not consistent with other findings. 216 Mr Taylor found his functioning was within the above average range, but that he did have significant impairment in areas of memory functioning and new verbal learning consistent with the findings of Miss McCready and Miss Caine. It was said because of his memory and new learning difficulties he would not be capable of achieving academically at the level he was able to prior to the onset of this impairment. His employment potential was limited and he would not be able to work at very complex level due to difficulties he would have with new learning and memory functions. He also added to that would be his emotional problems whatever they may be. 217 He prepared a further report on 3 November 1995 and he was shown his School Certificate results and from them he concluded he was above the average of intellectual ability. He felt his reading would be a great deal better than found on testing and his learning ability was compromised. He concluded he had suffered quite significant from damage and this resulted in a permanent impairment in many areas of his cognitive function. 218 In my view bearing in mind all the material that is before me I believe this is an unduly pessimistic finding on the part of Mr Taylor. 219 It must also be noted that there was no psychological reports or evidence tendered on behalf of the defendants. There was reference to cross examination by Mr Glissan QC referring to a psychological report of Miss Reynolds. I do not know who and on whose behalf she saw the Plaintiff. 220 The only evidence called by the defendant to rebut the psychological and psychiatric evidence of him suffering brain damage was Dr Bell who is a psychiatrist. Dr Maguire stated the possibility of brain damage required further comment by a neurologist who would have to assess the hospital reports. He also recommended the plaintiff undergo psychological examination by an experienced psychologist to compare results with the plaintiff's psychologist. This has not been done in a case fought very hard by the defendants and I can only conclude there was no psychological evidence available that would assist the Defendant's case. 221 The defendants' evidence was to the effect that if the plaintiff had suffered brain damage it was only of a temporary nature. This of course is supported to some extent by his very quick improvement in word finding ability. Dr Pryor, a neurologist, in a report of 18 Aug 98 had a history of strange complaints which make it difficult to assess the Plaintiff, eg, the inability to coordinate his mouth to rinse it when cleaning his teeth and he had just learned to tie his shoelaces. He said he lost balance, got black dots which shoot in his vision when he looks up. This is but another example of the many bizarre complaints complained of by the plaintiff without medical support for their aetiology. 222 The doctor noted that the plaintiff seemed well aware of the details of his history and the possible implications. He noted gaps in details of the seizures which the plaintiff glossed over or ignored. He accepted the plaintiff had suffered a period of ischaemia or hypoxia but did not accept permanent brain injury. Whilst the EEG reports he conceded were consistent with anoxic injury and the psychometric reports are suggestive of recent memory impairments consistent with hypoxic brain damage but all these reports depend on his cooperation. That is the problem. 223 Dr Sheldon believed his intellectual function appeared normal. Dr Bell in a long, discursive report does not accept the plaintiff has any significant type of permanent injury. Parts of his report was ruled by me to be inadmissible. He did make, however, some pertinent observations. He referred for example to Miss McCready finding word finding disabilities not seen by Miss Occelli. He believed when she saw him 20 months after the operation that he having smoked marijuana which can bring about psychometric signs of brain damage and brain damage itself plus the excessive use of various analgesics and other medication in excess in a dependent fashion all tended to make the assessment of these psychologists suspect. 224 He is critical as I have stated earlier of Miss Caine when she did provide any data and thus puts her opinion beyond scrutiny. He noted for example word finding ability only appeared two months earlier which should have manifested itself in January 1992 but there was no evidence of that. He referred to the findings of Mr Taylor (Sep 95) and he revealed on the face of it the psychologists reports appeared to be somewhat consistent. He believed a close examination, however, reveals far from a happy uniformity and the results he said vary more than should be expected. 225 In his comment he concluded the impairment could be consistent with brain damage but he doubted it as a fact. He believed he had a similar disorder before the operation and had he not used drugs excessively since the operation some of the presentation was consistent with hypoxic brain damage. He believes as he pointed out in his report there has been dishonesty on his part. 226 He said he can envisage a minor degree of anoxic brain damage in the circumstances, but some mental confusion after the operation fits in with the after affects of the anaesthetic and the concurrent affects of high doses of analgesia which could have masked his unconsciousness for 24 hours and also his post traumatic amnesia. The psychiatrists were too late he said to connect 'in a decisive fashion indication of impaired memory due to the cardiac arrest'. He believed his drug consumption is the likely cause of his abnormal presentation at interviews and of much of his abnormal behaviour. 227 Dr Maguire (25 Aug 97) also discussed the findings by other doctors. He believes the psychologists' findings must be evaluated on the fact of their unawareness of use of medications during these examinations and the possible use of marijuana which could affect his performance. 228 Dr Maguire noted that when seen by Dr Grady the plaintiff's wife indicated he used marijuana regularly as an analgesic. He believed the psychologists should be able to comment on his attention, concentration and general performance if under the influence of antidepressant sedatives, narcotic analgesics such as Endone. In his report dated 25 August 1997 (Exh 26) he referred to the current medications which in my view as a lay person appears to be grossly excessive bearing in mind the totality of the evidence before me. He denied using illicit drugs despite his wife's statement. He appeared to Dr Maguire to be medicated when he saw him and it was therefore not possible to make a meaningful evaluation. Dr Maguire said, however, his cognitive problem was a matter for neuropsychologists. 229 Dr Maguire in his report referred to Miss Caine's findings which I have referred to previously. She concluded his problem solving appeared to be intact on testing. His capacity for verbal abstract concept formation appeared to be quite intact and I have set out earlier what those findings were. 230 What Ms Caine found as I understand what she said is contrary to his wife's evidence if one accepts her evidence that he cannot perform at any level saying "he tries but mucks up everything". His wife did not indicate to Dr Maguire her awareness of his use of marijuana. Dr Maguire felt this was a matter that was affecting his evaluation. 231 Professor Holland did not have any evidence available to suggest the plaintiff would have suffered brain damage nor would he have expected it in view of the rapidity of the return of neurological functions. 232 Dr Hawken sets out in a report (Exh 28) little of which was referred to me in submissions on behalf of the defendant as to the affects of various drugs taken by the plaintiff. It does appear from her material that certain drugs taken by the plaintiff particularly taken in tandem can result in drowsiness, confusion, agitation, memory impairment and impaired concentration. Sedative drugs taken in conjunction with Temazepam can adversely affect cognitive assessments. She referred to Buscopan together with injections of Pethidine may be related to a withdrawal syndrome. Largactil, a major tranquilliser, can result in withdrawal states when used regularly over several weeks. Epilim, used to control mood disorder etcetera, can commonly cause sedation and thus the combination of these drugs can impact adversely on everyday cognitive mood assessments. Zoloft it is said increases the sedation affects of Temazepam. It is a short acting drug that can result in intoxication with potential to impact on any cognitive mood or mood assessments. 233 There are many problems to correctly assess the extent of the brain damage. I believe that what appears to be an incredible amount and combination of prescription drugs together with the ingestion of marijuana have tendered to make the assessment of his condition extremely difficult. I am also satisfied of the probability he uses marijuana. He is well aware of this case and on the whole it virtually makes it difficult to conclude conclusively his condition in the light of the confusing medical evidence that has been tendered before me and the different determinations made by those doctors. 234 Dr Jungfer who has continued to see him over a period of time has been concerned with his self medication and non-compliance with the drug regime and his use of drugs combination from time to time and they are capable of causing or exacerbating the symptoms being produced (T234). She was asked about Dr Wilhelm's report. She agreed the conclusion reached by that doctor in a sense was similar to hers. When she first saw him he was someone who needed some attention but not ongoing psychiatric help. She was then asked (T237) about some months regime of drugs in 1998. She was asked in particular about the fact that he had obtained 100 X 100mg of Largactil on 13 Oct 98 and a further 100 X 100mg on 25 Nov 98 which she agreed was a significant quantity of the drug. She had given him those on occasions when he was acutely agitated or disturbed. She said it is difficult because he sometimes leaves his medication in the Blue Mountains and it is hard to track down what he takes (T238) but she agrees it can cause agitation. Here again we have to rely on the Plaintiff's voracity. She said Epilim is very effective in controlling his bipolar disorder but failure to take it would not suppress his memory. It was put to her that memory could never rise above the optimum but it depends, she said, whether the tests take place in a quiet room or in a room with distracting noises. It is very difficult to say never. 235 It was put her that between December 1996 and February 1997 he was getting regular prescriptions of Thioridazine and Temazepam both benzodiazepines drugs. Aurorix, an anti-depressant, Epilim, Endone (T240) which taken together could potentiate side effects of the others if taken together. 236 There are many problems in currently assessing the question of the extent of the brain damage. I believe what appears to be a large amount and combination of drugs that tend to make an assessment of his condition almost impossible. I have concluded he is well aware of this case and his unreliability makes it increasingly difficult to assess his real condition. 237 I am satisfied, however, not without considerable hesitation that he suffers a minor degree of brain damage which to some extent has affected his short term memory and has some affect on planning abilities and some minimal difficulties in organising and manipulating items of information but certainly not to the extent as submitted on his behalf. If one, for example, were to examine the statement in Exhibit 33 made within a short period of the operation his memory seems to be intact being able to recount conversations to his advantage. He referred to the medical treatment he received at the hospital after the operation as abysmal. He can remember what treatment he was receiving. More importantly he can remember speaking to the second defendant about the second defendant's professional indemnity insurance with a premium of $3176 per year which I have earlier referred to. From the statement at page 7 (Exh 33) he had a good memory of the conversation. He was also able to remember conversations with Dr Van Gelderen in Sydney. When one reads his statement it is not easy to accept he has a significant memory impairment. Also he has done little to overcome what problems he has and his claims in this regard are exaggerated. I cannot justify the drug taking medication to the extent he is said to do and can only conclude he addicted to some of these drugs. 238 Having determined he has suffered brain damage what is its extent and the effect it has had on the plaintiff? 239 Both Dr Jungfer, his treating psychiatrist, and Dr Watson(report 22 April 1998 Exhibit A) are of the opinion that the delay in the legal proceedings has had a very detrimental affect on his health and on his many complaints. I have referred to these matters earlier. I believe the question of the effect of the legal proceedings have a considerable bearing on his complaints. 240 Dr Watson in his report (6/5/98) he said he was concerned to hear from him that his legal proceedings were likely to be delayed. He believed this was creating obvious stress for the plaintiff and his family and it is also having a significant and detrimental affect on his health and on many of his complaints. He noted it would be in his health interests for his legal proceedings to be brought to a speedy end. 241 I believe this is one of the major factors affecting the plaintiff's psychological and physical health and when this case is over therefore this stress will be relieved and there should be a considerable improvement in his condition. I should point out there is no evidence to suggest that the delay in these proceedings has been brought about by the defendants and consequently this is not a matter in which the defendants should be regarded as liable. 242 Dr Dunn, whom I have referred to earlier in a report (27/1/94 Exh A) noted, that he was at interview angry and cynical. He did not notice any difficulties in word finding. He determined he initially had some classic signs of post traumatic stress disorder and he was told of a panic attack visiting the hospital where his child had been treated. His nightmares and reliving experiences had decreased before seeing Dr Dunn. He then had obsessive sorts of images of medical apparatus according to the doctor. He was depressed but his description was atypical and he did not appear to have a major depression. Because of his verbosity the doctor concluded he was difficult to assess. He did say however that he appeared to have impairment of short term memory function and difficulties in organising and manipulating items of information. 243 Mr W. John Taylor, to whom I have already referred, concluded that he would not be able to work at a very complex level due to difficulties in new learning and memory deficits together with his irritability as he is said to have an explosive temper. The question of explosive temper is a matter on which the witness has to rely on the subjective remarks of the plaintiff because he noted this did not emerge through the interview. I noted also that there was no manifestation of it in the prolonged evidence in the witness box over some three days of persistent questioning. In a further report (3/11/95 Exh A) Mr Taylor reaffirmed that his memory problem for recent events was affected. He concluded he had suffered quite significant brain damage with permanent impairment in many areas of cognitive function. I am doubtful that the conclusions of Mr Taylor are justified in all the circumstances. 244 Dr Maguire in his report (Exh 26) could find little wrong with him except there as 'a vulnerability to interpretive difficulty with retrieval which suggests he said a frontal component to this memory problem. He said there were no problems with the higher order cognitive function and problem solving. They appear intact. His capacity for verbal abstract concept appears intact and ability to generate appropriate strategies even for novel tasks appears unimpaired in a structured setting. Then there are competing demands on his attention. This appears contrary to his wife's evidence Dr Maguire commented his wife did not indicate her awareness of his then current medication and cannabis uses as it possibly affects performance. 245 He apparently was also seen by a Dr Wright, a psychiatrist, in January 1993 twelve months after his injury and once again I have no report from this doctor. It appears, as far as I can ascertain, according to Dr Maguire, Dr Wright obtained a history of mood changes and he noted he was "a pleasant, somewhat uninhibited man who held strong opinion… he exhibited a wide, affective range and still has a very good and sharp sense of humour… has good insight into his situation" concluding "I do not feel Charles is suffering from a major psychiatric disorder. I see him primarily suffering from an adjustment disorder with disturbance of his emotional state and feelings predominantly of anger". Dr Maguire comments there is no reference to "absences" in his report. 246 He has come under the care of Dr Jungfer, and she reported on 25 March 1994, 2 April 1998 and 19 October 1998. The latter report seeks to refute criticisms of her treatment by the defendants' medico legal expert, Dr Bell, and she has given extensive evidence. In her first report (25/3/94 Exh A) the plaintiff complained of memory difficulties and a marked degree of hostility to the medical profession. She said he tended to overreact to situations, had difficulty sleeping which he described as initial and terminal insomnia. This apparently had continued despite being tried on multiple medications. One can but wonder why this is so. Once again these are subjective complaints as just about all his complaints are. He was said to lose his temper with minimal provocation. This, as I have stated earlier, was not apparent in his evidence earlier before me. He was said to have poor concentration although contrary to other medical reports. He is said to have had no sustained disturbance of appetite but he has lost significant weight since the injury. This seems to me to be paradoxical. She noted some severe problems other than from the operation (see page 2 of her report). She noted he was seen by a multiple of different psychiatrists and multiple different doctors and just wanted some answers and apparently he did not get any. 247 It appears he was referred to her by Dr Bryant of the Parramatta unit of the Commonwealth Rehabilitation Service (13/1/94) in which he had given a history of four days coma after the operation. This is an important matter on assessing brain damage. Dr Jungfer agreed it was important to know when he regained full function after the operation. She agreed he had had anaesthetic drugs and pain management. It was put to her that certain observations were noted such as regaining consciousness the following morning, some 12 - 14 hours later opening his eyes to speech and obeying commands and moving all limbs all which suggested to her that he was recovering. She agreed such material was a powerful contradictor of severe brain damage (T215) once again this points to the difficulty of determining the true state of facts of this Plaintiff. The length of coma is just again one of the plaintiff's many exaggerations and no doubt was important in assessing the Plaintiff. It is also noted in Dr Bryant's report he had been receiving private counselling from a counsellor in Queensland, relating to non-trauma issues. What these were are unexplained. 248 In her second report to the Solicitors who requested a report for the legal proceedings (22/4/98 Ex A) she noted he had been in intensive treatment since 1996. The treatment, it is said, assisted him to deal with his problems and to have appropriate pharmacological treatment. She believed he had sustained periods of depression and I have referred to her views on the effect of he legal proceedings. She has not advanced any explainable diagnosis as to why he has abdominal pain other than the stress. In her evidence (T206) she said he had marriage problems and she recommended he and his wife see a marriage counsellor but 'they have chosen to defer that because of the issue involved in the litigation currently'. The claim is against the Defendants that they are living apart as a result of his behaviour since the operation. Am I to assume that after the case they will patch up their differences? Is this but another example of his awareness of the importance of this litigation? 249 In her lengthy evidence, Dr Jungfer said that prior to the accident he had been able to function and had a stable relationship, work, travel and maintain friendships (T200). She said there weren't any significant signs of a previous psychiatric illness She says since the operation he has highs and lows, nightmares and epilepsy, and was using substantial amounts of medication. In 1994 there were no observed characteristics of bipolar disorder. He was taking Donnatab (abdominal spasm), Maxolon (nausea), Buscopan (muscle relaxant), Endone (narcotic analgesic), Durolax (constipation). He was taking Endone with Anafranil a narcotic analgesic which was capable of causing confusion and some physical dependence (T225). 250 In addition to the above he had tried Temazepam, Prozac, Prolodone and Endep (T219). She agrees that that combination of drugs were a powerful cocktail and, if taking them at the one time, would be capable of producing a range of epileptic like symptoms producing ataxia and disturbances of behaviour. 251 She saw him initially at three to four weekly intervals and then up to weekly intervals. Currently it is monthly or four monthly. She concluded he had had cyclic mood disturbances aggravated as a result of the surgical procedure, which she described as a bipolar mood disorder but it has features of a personality disorder T241. She was asked about his previous attendance at a mood disorder clinic to which she replied one visit to a psychiatrist was not important but conceded it did support the tendency for mood disorder. (T201) 252 She believed he had an underlying predisposition to bipolar disorder and it had become more severe as a result of the accident and the stress of continual abdominal pain, the operation and its outcome, added to no doubt by the stress of the court case.(T204) 253 The plaintiff is, she said, no doubt a difficult person to manage in that there have been multiple factors operating throughout that time.(T205) 254 She said she herself had observed sustained disturbances of mood, being either elevated or depressed, and he was using Epilim otherwise known as sodium valproate which is used for mood stabilisation and depression, and Zoloft, an antidepressant that is well tolerated in people. She said she has not prescribed drugs of addiction. She sees a number of people who abuse narcotics and his behaviour is not consistent with that abuse (T205) and he has never pressed her for drugs of abuse. She said most of his drugs are provided by his general practitioner and he often told her he does not need any medication. This is inconsistent with being drug addicted. She also allows him in her meetings to ventilate his problems, and she has conducted behavioural therapy and relaxation training with techniques to manage his stress (T205). 255 She believes that there has been a very large reduction in medication in the past eighteen months to two years although this is not evident it appears from Exhibit JJ that he continues to take large quantities of drugs costing $251.91 per month. She noted he had a number of treating clinicians. At the time of giving evidence she seems him every month and charges $150 per visit. She hopes he could reduce the frequency of contact, but he would have to remain on antidepressants and he should seek marriage counselling. He is waiting for this case to be over before he seeks marriage counselling. She said in the next twelve months, she would expect to see him six to eight times, and then three or four times per year for life. If, however, there was a significant life event affecting him, there is likely to be an exacerbation, and that would bring about three additional visits per year. 256 She said he was capable physically and psychiatrically of doing manual work such as managing a concrete pump but he would not be able to control employees. (T208). 257 She has personal experience in brain injury (T208). She has held a number of honorary positions (T209) and she has given him talking therapy providing him with interpretations about his behaviour. She said "it's two way traffic" and you build up a relationship, but not a personal relationship. You have to be sure that you do not encourage dependence. She said therapy can help brain damaged people teaching them strategies about dealing with life. 258 If you believe the lay evidence this has not had much effect. He was not severely brain damaged. She described it as mild to moderate. She referred to his complaint of a word finding problem which other medical witnesses say do not exist. She said his speech is somewhat digressive and lacks goal direction but he has no difficulty in understanding (T211). There is no evidence of substantial brain damage and she agrees the MRI and EEG result could indicate a perfectly normal result (T212). She believes the brain damage was mild but because of its effects on his psychological state she determined it was moderate. (T223) 259 She agreed she was influenced and guided by what Dr Bryant had told her regarding the Hypoxia and cognitive deficits but she said, however, she looked for mood disorder when she saw him but didn't record it in high detail (T217). She believed at that time he was either recovering or was well managed.(T218). She had indicated earlier in her evidence that at the time she had not seen any evidence of bipolar disorder. She was asked by Mr Glisson about Endep which she agreed was a sedative antidepressant and is also known as Tryptanol. It can cause ataxia or loss of control and alteration in EEG patterns. If he was using marijuana in sufficient quantities she agreed it could affect his cognitive performance. 260 Anafranil, which he was taking 100mgs at night, she said was a tricyclic antidepressant and, depending on dosage, was capable of producing anxiety or occasional confusion, and agitation and hypomania (another word for bipolar problem) (T224). But she said this would not cause the bipolar condition to happen unless there was some evidence of pre-existing propensity for a bipolar condition (T224). She agreed there was material in his history which established a tendency to him having a bipolar disorder or at least mood swings in his middle teens. 261 She agreed she was entirely dependant on the history he gave her, but the history provided suggested he had sustained disturbance of memory. 262 She was asked about the incident with the tool kits when he selected a 125-piece tool kit in a local store at Katoomba and exchanged the bar code on that set with the bar code on a much cheaper set and paid the lower price at the register. When asked the reason why he did that he said he did not know and when asked what he intended to do with it he said nothing. All he says he remembers is taking the plastic off the box. He has an interest in tinkering with motor vehicles. 263 He attempted to explain it away by saying that at the same time he was charged with stealing he could not distinguish between fact and fantasy,(T227) was irritable, abusive, in emotional turmoil, problems with anger and throwing things in garbage bins, smashing letter boxes and going about looking for trouble. I should add there is no independent evidence of this material and no suggestion in the lay evidence of this type of behaviour. It appears she was told he was not taking Epilim at the time (T228) which she was again dependent on his say so. He was depressed and she said people who are depressed often do things because they want to be punished. She agreed there was no evidence of a seizure perse on what she was told (T227) Once again it is important to note when she saw him in November 1996, after the stealing case was dismissed, he was bright and chirpy and not depressed (T228). She agreed his mood could be explained in the fact that he had committed an act of dishonesty, had been caught, and had manipulated his way out of it . 264 She was asked did she attempt to check independently the history she was given by the plaintiff but she said as it was supportive therapy she was giving him it was not necessary because you accept the patient as much as possible. In addition it was difficult to corroborate the history. He had spoken to his mother and wife to try and check the facts. (T229) 265 He was not severely depressed and had no symptoms of bipolar disorder in 1994. With a mood disorder stress exacerbates and influences the fluctuation of the condition, so she said you try and help the person manage the stress. The suicide of his brother she agrees could have precipitated an episode as the operation itself could have and from which he could completely recover (T230). However, she said prior to 1992 he did not require pharmacological management, subsequently he has required such treatment and he has been hospitalised for depression so the severity of his condition changed. 266 It was put to her that Dr Wilhelm suggested Tegretol in 1989 (T231). The Epilim she was providing was to control mood but she agreed its primary use is as an anticonvulsant in epilepsy although it can be used to control mania and aggressive disorders. She based her diagnosis on the history that before the accident he could cope with stressors to a reasonable degree doing a fairly stressful job and supervise people and he is now less able to manage that. She said he tried to work eighteen months ago but can't manage stress as well, and gave a history of nightmares and anxiety-type symptoms not associated with the litigation itself but with his experience. Stress has been precipitated by the litigation that has been involved, and his anxiety (T233). He said he cannot cope with the children and feels it constantly. His stress was not in the normal sense of managing children, which develops during the day but he cannot deal with their conflicting demands. If he is stressed he cannot react with them. It must be said that her diagnosis is based on his history what he has told her which is a shakey foundation on which to base a diagnosis. 267 Dr Salgo, a GP has been seeing him regularly since 1992 mainly to prescribe pharmaceutical drugs, counselling and allowing him to ventilate his anger and anxiety. In his report (1 June 1995 Exh A) Dr Salgo has referred to his multiple symptomatology. It is not my task to be critical of doctors but I am required in this case to determine on the evidence as I see it whether the medical treatment he has received is appropriate. I find it impossible to justify the attendances on this man by Dr Salgo over the years. Exhibit EE records from June 1992 until April 1997 he visited Dr Salgo on 138 occasions. Some visits happened daily and on a number of occasions he has been seen twice on the one day, eg, 9 Dec 93, 2 Sep 94, 5 Sep 95, 14 Feb 96, 22 Aug 96, 13 Nov 96, 20 Nov 96, 29 Nov 96, 13 Dec 96 and 16 Dec 96, 17 Mar 97, 26 Mar 97. The plaintiff had moved back to Queensland for a period and he saw him less frequently as a result. In addition there are numerous examples of him having been seen on consecutive days over that period. He has been seen by neurologists, psychologists, psychiatrists, gastroenterologists, vascular surgeons, cardiac physicians, rehabilitation specialists. I do not recall having seen a report from a rehabilitation specialist and there was nothing in those medical examinations that could confidently establish any condition he claimed he was suffering from. 268 Dr Salgo concluded in his report that he had developed a post traumatic reaction which has taken a few years to improve.(P3) I note no reference to epileptic fits or pseudo-fits in his reports. Despite the so-called improvement he continues to see Dr Salgo regularly, four times last October 1999, five times in September 1999, five times in August 1999, three in July 1995 and five in June (T330). Dr Salgo describes himself more or less as the plaintiff's advocate in the medical system, an appropriate description I believe. 269 Dr Salgo said that the plaintiff is undoubtedly better than when he first saw him in August 1992. Thereafter he did not see him again until April 1993. He did not believe there was any reason why he would have a sensitive scar after the laparotomy (T335) and the severity of the wound is not related to the number of times the wound is opened up. He said in 1992 the plaintiff was anti-doctor although it appears to me he did not have any objections in attending them quite regularly (T336). 270 Dr Salgo referred to a long counselling session with regard to his approach to health and medico-legal issues. There was reference to the plaintiff's belief he may have suffered heart damage at the operation and Dr Salgo recommended he have a cardiac echo done (T338). No abnormality was found. On 8 December 1993 he ventilated his frustration and he was sent to see Dr Wong for muscular-skeletal pain and he was also referred to a psychiatrist, Dr Dunn. Then there was the question of Temazepam unmasking possible depression (T338) which he described as endogenous depression which he in turn he described as severe underlying depression (T339). 271 Dr Salgo said he had predominant anxiety in June 1992 and perhaps he thought it a great idea to see a psychiatrist and he thought there was a possibility he may have been depressed. He saw him on 8 December 1993 and the next morning he was back again complaining of leg problems, was concerned about one of the arteries in his leg may have been affected by the surgery and was referred to a vascular surgeon because he wanted another opinion (T340). Dr Harris saw him and believed the vascular repairs had been done very well (T340) and found no deficits (Exh A, 10/12/93). At that time he complained to Dr Harris of painful paraesthesia affecting both legs and arms, particularly at night, increased by leaning forward. What caused this is unexplained. Dr Harris could not point to anything wrong but said he would review him. There is no further report so I take it he had not been reviewed or, if he had, any such review did not assist the plaintiff's case. 272 Dr Dent, who saw him in a medico-legal context on 6/5/1996 (part of Exh A), noted he had been provided with 31 reports. He concluded on one interview that he had a chronic pain disorder that related to his abdominal injuries but he is not sure of the causation. I would have thought causation in such a case is important before a diagnosis can be made.. He recommended due referral to a pain management physician e.g. Dr Ditton but I have no evidence whether this happened. He believes there are residual elements of post traumatic anxiety and depression resulting from brain damage that the Plaintiff describes very well. 273 Notwithstanding the multitude of treatment and consultations this man has had with medical practitioners over the years together with his prodigious quantities of medication taken over a time Dr Dent believes this is less than optimal treatment of the plaintiff (P10). 274 One of the real issues of the case relates to the pending litigation. As I have said earlier I believe the plaintiff knows he is playing for high stakes in which he claims some four million dollars in damages. Dr Dent, I believe, acknowledges this when he added, 'one realises the difficulties that are always in place with anybody with litigation pending in ensuring adequate intervention in such a complex matter'. He refers to certain treatment including rehabilitation treatment and pain management treatment none of which has been undertaken so far as I am aware. Dr Dent went on to state that if the integration of his treatment was not undertaken until the finalisation of these proceedings he expected a consolidation of his difficulties and he may be less manageable. He believes a settlement would relieve some of the stress but not resolve the physical problems in the psychological sense. After all it must be stated that the plaintiff is required to mitigate his damages. So we have a constellation of symptoms and opinions none of which satisfies me as to his condition. 275 I have been overwhelmed with medical reports but there are others relating to his complaints in the early years after the operation which I have not seen. There appears to have been a culling of the reports on behalf of the plaintiff to put forward only the ones sympathetic to the plaintiff. I note in Dr Maguire's report Ex 26 his reference to having been seen in Queensland by a psychiatrist Dr Wright in January 1993. Dr Wright apparently concluded he was not suffering from a major psychiatric disorder being primarily an adjustment disorder with disturbance of his emotional state with feelings predominantly of anger. 276 A report of Dr Jonathan Phillips was prepared by him after seeing the plaintiff on behalf of the defendants was tendered in the plaintiff's case (Ex GG). I assume therefore the plaintiff was prepared to accept Dr Phillips' opinion, The doctor described an assessment of any neuropsychiatric changes that flowed to the Plaintiff an extremely difficult task. He believed it was more than likely the plaintiff had significant personality problems and behavioural difficulties prior to 1992. I believe this is an accurate observation. The doctor has said he would have been disposed at the time of any future brain insult to further personality changes and behavioural difficulties. He accepted the plaintiff had suffered some brain damage. 277 Dr Phillips noticed, however, the plaintiff provided little relevant information about his past and said "It is essential to consider what is known about his personality up to that point of time plus the operation plus additional stresses over that period". This is the cause of the problem because once again he exaggerated his background to Dr Phillips including a statement that his concrete pumping business continued almost up to the time of the operation (P5). He noted Dr Wilhelm provided a rather different picture regarding the Plaintiff's childhood and adolescence. 278 Dr Phillips also referred to a number of doctors who had seen him including a Dr S. Boland, Dr Jayasinghe (10 August 1993) without finding any neurological deficits. There was also reference to a Dr Mayne, a psychiatrist (4 August 1992), who noted some minor symptoms of post traumatic stress disorder and anger and anxiety in relation to recent medico-legal examination (9). His observations would be at a time when his brain damage was at the highest do not suggest a serious problem. Dr Phillips also referred to records from Nambour Hospital in Queensland when the Plaintiff was assessed on 29 January 1995 for right-sided mid-abdominal severe colicky pain. He apparently presented again on 22 May 1995 with a three day history of severe abdominal pain. There was a differential diagnosis which included 'sub-acute small bowel obstruction, pancreatitis and psychogenic overlay'. 279 He was further assessed at the neurology clinic on 27 February 1995 with cognitive problems, abdominal cramps and turns. The issue of pseudo seizures was raised for the first time. He was again assessed on 8 June 1995 when he presented with different symptoms described as a band-like upper abdominal pain radiating to his central back and other complaints. 280 Dr Phillips in his report has set out the diagnoses of various doctors who have seen the plaintiff over the years. He believes the various observations suggest he has suffered a mild to moderate deterioration of higher cerebral functions plus symptoms of post traumatic stress disorder but probably not all the syndrome in its full expression. He believes also there has been a moderate disturbance in mood control probably exacerbated by his brain injury and perhaps abnormalities in modulation of pain. 281 Dr Phillips believed there were a number of other stressors in his life that have affected him, namely the suicide of his brother (HIV), his mother-in -law's death, his father's by-pass operation, his mother's stroke, the struggle of his wife with an anorexic syndrome and financial difficulties. He also, like others, referred to the ongoing stress of litigation and he believed this played a moderately important part in the causation of non-organic symptoms. 282 He also referred to reports of a Dr Walsh (Exh A, 25 August 1993) Dr Vignaendra (29 September 1993) and Dr A. Mohamed (7 April 1997). I have not seen any reports from these two latter doctors. 283 Dr Phillips concluded he had suffered brain damage which affected memory and difficulties with planning and his discursive, inefficient style of interaction are secondary to cerebral dysfunction. He felt these symptoms would restrict him to straight forward, non-cognitive work ex. House painting gardening or simple carpentry. 284 Dr Phillips believed the trauma suffered by the plaintiff at the time of operation was mainly of a physiological nature, and he appeared to downgrade the psychiatric problems. He refers however to existing problems such as complex noises in his head, neurological and quasi-neurological events suggestive of epileptic seizures, difficulties in planning tasks and paroxysms of abdominal pain. 285 Dr Phillips found at the time of interview he had no symptoms of post traumatic stress reaction but he accepts he could have had such a condition in the past including significant lability of mood exacerbating a previous condition. He was unable however to substantiate a diagnosis of bipolar disorder conceding the medication may be masking the condition. 286 He did not accept the information available, particularly the non-specific EEG abnormalities, demonstrated the plaintiff had frank epileptoid activity and he felt he was suffering from pseudo seizures rather than true seizures but to be cautious he should not work at height. He noted his paroxysms of abdominal pain posed a diagnostic difficulty. He did not agree with Dr Selby's conclusion 'his pain was due to hypoxic brain damage because he has had significant improvement with sodium valproate' but he did not rule out the possibility that some localised physiological problem could be the cause for pain. 287 Dr Bell concluded unfavourably against the plaintiff although he agreed that some of the observations would be consistent with the effects of brain damage at the time of the cardiac arrest. He said if he did not have a similar disorder before the operation and had not used drugs excessively since then some of his presentation would be consistent with the effects to a minor degree of hypoxic brain damage. He went on to say, however, that the preponderance of the mental symptoms and disturbed behaviour observed since the laparoscopy cannot be explained in that way and he said certain behaviours reflect dishonesty alone. He said that perhaps genuine disorder lies behind the effects of his personality disorder and dishonesty but contributing a very small amount. He believed that his drug consumption had a considerable impact on his mental condition and he regarded it as the likely explanation for much of the abnormal presentation at interviews and behaviour Mr Bloodworth has shown in recent years. He believed that marijuana is the likely explanation for his episodes of psychosis and in any case like so many other phenomena in this case have no likely connection with the failed operation. 288 In many respects I believe Dr Bell's view of the plaintiff is more accurate than that of the other medical witnesses in this case. As I have found earlier in this case I accept the plaintiff has suffered a minor degree of brain damage which has affected his recent memory and has some affect on his ability to efficiently plan his life. The damage, however, I emphasise is only minor but I am prepared to find it has an affect on his every day life. I am concerned, however, that he has not in reality done much to rehabilitate himself but rather has been prepared to adopt the role of an invalid. I have referred to comments of Miss Coffey on his attendance at the memory group and the contradictions in the fact that his failure to improve was not consistent with observations made of him. I should point out that this is a recurring theme. On many occasions doctors have referred to subjective complaints but at the time of examining him no such complaints were found to exist. 289 I accept the diagnosis of Dr Wilhelm that he had a serious mood disorder prior to this accident. I accept that he suffered a major psychological blow as well as physical trauma at the failed operation and this was particularly important in a person who had mood disorders and personality disorders prior to the operation. I accept as a result of this condition his mood and personality disorders have been aggravated in the failed operation. I believe he has had and still to some extent bears considerable anger to the defendants for the treatment he received at their hands but one would expect that to have disappeared or at least substantially disappeared at this point of time. I accept, however, he is still anxious but a great deal of that must be attributed to his litigation neurosis. I accept that over the years he has suffered from what appears to be some manifestation of post traumatic stress disorder but I have referred to the various doctors reports who doubt the severity of that condition. I accept Dr Phillips that when he examined him that there was no evidence of that existing when he saw him in 1998. 290 I have endeavoured to point out the inconsistent diagnoses of the various doctors both for the plaintiff and the defence. I have also pointed out that I believe there has been a selective tendering of medical reports. In particular I have little by way of medical information about his subsequent treatment in Queensland after the second operation. This evidence I would have regarded as vital to determine the history and manifestations of symptoms at that point of time. 291 In addition to that the real problem here is I have difficulty in accepting the subjective complaints of the plaintiff as I believe he has deliberately exaggerated his problems to the various doctors. They all seem to agree they have to accept what he says. Of course that is their role. I have referred to his many serious and wilful exaggerations in his history to these doctors prior to 1992 and I believe that was done with deliberate intent. Why then should I accept his subjective complaints to the doctors over the years none of which can be reliably corroborated? 292 I have referred to many of his alleged symptoms which in my view cannot be related to this operation and I am doubtful if they in fact exist but if they do they cannot be explained by a minor degree of brain damage. I am referring to, for example, to his belief he was an alien trapped in his body and his license to kill skin-heads etcetera. I accept the evidence of Dr Bell that these complaints cannot be accepted as resulting from a minor degree of brain damage. I accept Dr Bell's evidence that the overuse of drugs and marijuana have contributed to his condition. 293 I am asked to accept his parents and wife. With greatest respect the best slant I could put on their evidence is that they are seeing him through rose coloured glasses, eg, Mr Bloodworth snr was satisfied with his progress at Shore school. An examination of the reports and remarks of teachers and headmaster would make any parent very concerned about a son's progress at school in those circumstances. 294 The plaintiff's mother, Mrs Bloodworth, was a witness who like others tended to ramble and whose answers on many occasions were not in response to the question asked. In addition she was vague in the evidence she gave. She said that when he went to Shore he was an average student and very sporty. He had trouble juggling his musical interest with his sporting activities (T393). It was suggested by her that the problem at Shore was that the headmaster, Mr Travers, who took to flogging him rather than having a discourse with him (T394). In the absence of further material and in the light of comments by his teachers and form masters, whilst there may have been particular problems at Shore with the headmaster, all those problems could hardly result from that cause (Exh H). 295 She could not give an explanation as to why he left Chatswood High (T395), except saying his father wanted the Plaintiff to join him in the bank which he did not do, and she is vague about what she knew about what he did when he went to live in Melbourne. She said when he lived with her she was aware of herself as a mother, did not interfere too much because she said "I want a friend long term" (T395). There was a question of him stabbing his brother in the leg. Again her evidence was very vague as to this incident. She said she was surprised when he became a bus driver (T396). 296 She explained why they went to see Dr Wilhelm because there was an occasion when a girlfriend of many years was killed in an accident. This added to his business problems caused him to become very distressed. She 'thought it might help to talk about what was underneath it' (T397). In his school years he was destructive of school boaters and was caned for throwing them out of the train. When asked did he attack a refrigerator with an axe she gave a dissertation on removing an old refrigerator that had to be demolished and taken away at the house in the Blue Mountains (T397). She said he and Wendy, his wife, prior to the operation appeared to be perfectly happy and both were very affectionate parents (T398). She said when she first saw him after the operation she was shocked. For a while he could not straighten up, had to be held up by the nurses if he went walking and he appeared to be in a good deal of pain. 297 The plaintiff and his wife came to live in the Blue Mountains at a small holiday home owned by his parents. He was very angry and their job 'was to be a neutral available family' (T400). He had many visits to hospital sometimes being taken by ambulance. 298 He complained of pain a great deal. His wife saw that his meals were prepared and was very patient with him. She had a lot more washing up to do. He was able to manage showering but it took him longer (T401). She said he was a very different person. 299 She noticed he has a vagueness of time more noticeable if he forgets his medication. In these periods he just sits and stares. He may be in the midst of something and just stops and seems to be deep in thought. She said "I don't make an issue of it". She was asked how often this had happened in her presence over the years and she said "Probably a dozen times" over maybe four years, which is fairly rare (T402). She made a strange comment of him taking a fit when looking up in the sun. He told her also 'if he puts his head back on his spine he gets a nasty feeling of dizziness' (T402). She denied he ever drank to excess. But she seemed to know that he smoked marijuana socially over maybe four to five years. She had no knowledge or suspicion that he smoked marijuana when he has been within "cooee" of her (T403), although I have referred to her having told one of the psychiatrists that he did so. 300 There are many examples of her not answering the question, or adding on material not relevant to the question. I note also her confused evidence about an angle grinder. He has been living with the family for the past two years for four to five days per week. She denied he smashed windows and she gave another rambling account saying he is a good cook but now he gets things muddled up if there are too many dishes. His memory she said is not the best. Before the accident he was a happy-go-lucky fellow and is not so now (T404). He is involved as much as possible at the house, looks after himself, does his washing, will cook for himself, visits the local library, does his own room and has a piano which he plays. Asked whether he still complains of pain she said "If he has forgotten. He is very close to his local doctor and that is how they work together." She was not attacked in cross-examination but what her evidence adds up to is not easy to determine. 301 His father, Mr Bloodworth, gave evidence and again it is not easy to know what to make of his evidence. For some apparent reason he wrote in his diary what he observed when he saw the plaintiff in hospital. On examination of the diary certainly it is very full compared with the previous entries. In evidence he said from after the operation from the start he has been in pain, he has seen him doubled up in pain on the floor it used to be very frequent, he seems a bit better now as his medicine is stabilised but he still does get pain (T374). He has taken him to the hospital on three or four occasions. Others have taken him at different times. I have no evidence of who the others were. 302 He says the plaintiff is very vague, forgets little things but is better when taking his medication but he still has to be reminded to take it. He said he gets very vague, stares into space (T375). He loses awareness temporarily and he seems to come back again. You can speak to him and he does not answer you. If he does not take his medication he is moody, stressed and depressed. He said he does not do much housework, might wash a few clothes, and they watch him in case he leaves something on the stove and does not turn it off. He does not mow the lawn. He starts things and does not finish them (T376-7). This in some aspect is contrary to his wife's evidence. He referred to a Dr Youngford who has been tending him and providing medications. This doctor is unknown and there is no evidence as to when he sees the doctor. 303 Mr Benjamin, who described himself as a solicitor, a school friend, said Charles was in the A2 class in year 7 but there I now doubt about that having regard to the reports(T406) as it appears his work deteriorated in year 11. He described him as a radical at school a bit of a larrikin, knock-about, happy-go-lucky sort of character (T407). He said he was caned by Mr Travers whom Mr Benjamin regarded as a fairly conservative headmaster. He has had irregular contact with the plaintiff after school seeing him occasionally at school reunions and weddings. In 1990 he was consulted by the plaintiff for a second opinion over a partnership dispute being managed by N.S.W. solicitors. He said he saw him once in three months during that period. 304 He said ' in many respects he is the same old Charlie, but there are definite changes' (T407). He is more prone to a depressed mood, is forgetful and not quite on the ball as he used to be and is not as self confident as he used to be (T408). He takes pharmaceuticals, carries them around in a little pouch and smokes marijuana regularly. 305 Under cross-examination he did not really see him enough to form a view about him since the accident (T409). He thought he was married at the end of 1980s and, told he was married in 1996 he had interpreted the previous question as to when they started the relationship. He said the marriage apparently broke down 18 months ago because Charlie was seeing another woman and there were difficulties in their relationship. Nothing like this was mentioned by any other witness. The breakdown is alleged to have resulted from the failed operation. He agrees he was a lone gun. He also said he believed the plaintiff was rebuilding houses and selling them. No doubt this information came from the Plaintiff (T411). No explanation has been forthcoming of that evidence. This is another example of his exaggeration of his pre-injury background. 306 His wife, Wendy Bloodworth, gave lengthy evidence and the plaintiff relies on her credibility as supporting his case. She had met him 16 years ago. They were acquaintances until the end of 1988 when they formed a relationship (T450). She was working over the years, rising to an account executive in the advertising industry but apparently wanting a break she went to live with him at Coffs Harbour at the property owned by the plaintiff and his mother. He operated his own business "Worth Concrete Pumping" and she said he was very busy. He was in partnership and his partner was running a swimming pool building company. Charlie at different times employed labourers to help him. She referred to the Opal Cove project as a large job. The developer of Opal Cove went into receivership and the plaintiff was not paid for a large amount of his work resulting in him going broke. She said before this happened, in conformity with other witnesses, everything in the garden was rosy with the plaintiff. He was very excited about new changes in life, very motivated, getting bigger and bigger contracts and was the beginning a new way of life (T452). I treat that opinion with reserve. 307 Mr Joffe offered him some work she believes in 1989, on another resort in Coffs Harbour (T465). They moved to the Gold Coast because the plaintiff had the prospect of more work with Mr Joffe and the prospect excited him greatly. He was putting the past behind him, she said, and moving forward (T466). After the Opal Cove business collapsed she said the plaintiff went through a brief period of depression and he was very angry about it. At their home he broke a couple of louvres in the window and she described this as an isolated incident. She denies that he broke all the windows in the house. 308 She has never seen him using marijuana but she was aware it was an occasional activity for him and she is aware at the present he occasionally smokes marijuana (T466). She is separated from him and lives in the Blue Mountains and when he visits the family on weekends there is nothing to suggest that he is smoking marijuana. He comes up on a Friday evening travelling by train and stays Saturday and Sunday normally and then returns to Sydney by Monday, travelling by train. 309 They live about a kilometre from the station. Sometimes she picks him up depending on his physical state. She referred to the fact that when they moved to the Gold Coast about August 1990 she was very pregnant and the plaintiff had an opportunity to obtain some work through some Sydney friends who were trying to set up a business on the Gold Coast. She described it as a fill-in job whilst waiting for the next David Joffe job to come up. It came to nothing because the Sydney people did not support them. She then added in the last two months of her pregnancy he was enthusiastic about getting something going (T467). The work apparently that was being suggested was cleaning the external surfaces of buildings. He threw himself into that absolutely and was very excited because she said the responsibility of impending parenthood had them both very excited. He just gave it 100 per cent. Their son Jamie was born on 20 October 1990 (T468). 310 They then moved to Burleigh Heads for three months and whilst they were there on the third month, the plaintiff worked again for Mr Joffe she believed at Sea World. They then moved to Nerang in about November 1990 and the plaintiff continued working for Mr Joffe and doing work on his property in Brisbane on a large 3-storey structure that was being built, calling it a barn (T468). 311 She said Mr Joffe was waiting for the Movie World contract and did not know when that would commence and there was a period when the plaintiff was not working they were offered the Gold Coast storage position. His work with Mr Joffe was a stop-start situation, a few weeks work here, a few weeks off which she described as the vagaries of the building industry (T469). At the Gold Coast storage they were caretakers and were given a house to live in, electricity and telephone accounts were paid on consideration that they caretake the premises and undertake general maintenance. They were required to open the gate of a morning and close it in the evening and to deal throughout the day with people who would make inquiries about using the facility (T469). The plaintiff did the lawn mowing and the sweeping out of the sheds. 312 She does not recall how long it was or whether it was weeks or a couple of months before he commenced work with Mr Joffe on the 'Giant Carrots' at Movie World. The plaintiff 's wife felt this was quite a promotion for him because she said he was given several labourers to assist him in the job, so he was very much the foreman of the job with workers for whom he was responsible. He enjoyed it and was challenged by it, she said (T469). 313 She said he saw himself as having a long future because he had finally found an occupation that was creatively challenging, which was reassuring when they had begun a family and were looking for security. There was specific talk of a project in Hong Kong. What this was about I do not know. She said "I can't be more specific than that". There was the Gondwana thing which he described as a huge project. (T470). (Mr Morrison informed me at this point that the plaintiff's case is based upon employment with Mr Joffe generally). I was not impressed by the evidence of Mr Joffe as will be seen later. 314 When asked about him going to Dr Wilhelm she states this was at a time when he was very frustrated over the Opal Cove episode and had a short period of angry depression and his mother was very concerned about it because it was so uncharacteristic of him to behave like that and arranged an appointment for him with Dr Wilhelm. 315 She said apart from that matter he was a very fit and healthy man but she then referred to him having attacks related to the gall stones; she refers to the attack that led him to see Dr Brennan when he was doubled over in pain which seem very similar to the attacks he alleges he is now having. 316 She understood he was to undertake laparoscopic surgery and to her observation and in answer to a leading question he appeared to be apprehensive about it and told her he was nervous (T473). 317 After the operation the second defendant rang her. He told her that there had been a problem, the plaintiff had a cardiac arrest as a result of an artery being damaged, that he was in a stable condition, and recommended that she did not go and visit him that evening. She said he told her, according to her evidence, that it was not an uncommon reaction to general anaesthesia to have a cardiac arrest in the initial stages and they had put him aside for a period to see if he would stabilise so they could continue the open procedure. She did not recall him saying anything about what caused the artery damage (T474). 318 She went up that evening about 10 o'clock. The plaintiff, she said, was in a shocking state, unconscious, tubes up is nose, drips everywhere and on a respirator - "It was a very horrible sight really". She thinks she saw Dr Miller that evening. He spoke about what had happened in the operation (T474). 319 She saw the plaintiff the next night. He was unable to talk but they did make eye contact and he pointed to his stomach. She explained to him about the open procedure (T475). She said he was drifting in and out and did not speak to her at all and he was barely conscious. The next night after that he was able to talk. He was very groggy and slurring and didn't say a great deal, but he made sense in what he said (T476). He indicated he was in a great deal of pain and was distressed about what had happened and was angry. When he realised that he had to have another operation he started to cry" (T476). She said he was not really in a state to understand what had gone on. 320 During his period in hospital, despite medication you could see he was still on pain relief. He was unable to walk unassisted and was bent over double and needed to be helped along to the toilet although this appears contrary to material in the hospital notes. Once again when one seeks independent corroboration outside the family circle of these disabilities none is forthcoming. 321 He was extremely angry with Dr Miller and with the system and the hospital and he was not in a good mental state and she was surprised he was allowed to leave in the state he was when he left. He was walking unassisted but was very stooped and was in a lot of pain (T477). In the hospital notes he was said to be philosophical as to what happened. 322 She said he did not seem to be as articulate as previously, messing up words a bit. He was able to communicate what was going on but there was difference in the words he used (T478). Once again we have the very happy-go-lucky, optimistic sort of fellow before the accident who had become a very pessimistic, angry, depressed sort of person and very different to the Charlie she knew. He had problems with his penis and scrotum which had discoloured and "caused him excruciating pain" (T478). 323 She said he was able to feed himself, he needed to be helped to the toilet, into bed, out of bed, he needed somebody beside him just to steady him because when he walked because he was bent over and unbalanced. He needed help to get into the shower. He would sit on the floor in the shower until he had finished and she would turn the water off and help him out again. There was slow but steady improvement (T478). 324 He was gradually able to do more things, eg, stand for longer periods, and was able to move from room to room by himself. After a month of leaving hospital he gradually became able to take himself to the toilet, to shower and dress himself. He could do little around the house however she said because he was in constant pain and he was not in a good state emotionally. He mainly stayed in bed or sat on a chair. He continued to be extremely angry and disappointed and felt let down (T479). 325 She said prior to this injury he was quite domesticated, a good cook and shared the cooking and generally helped out with Jamie and he was quite useful she said. He would do something he could see needed doing to help out knowing that she was pretty busy with a 15-months-old toddler. He was a generous, caring man. He had a hobby of looking after motor vehicles and he was quite talented in the area of mechanics and he did the mechanical work on their vehicles (T480). 326 She said they left Gold Coast Storage a month or so after the first operation. During the period they were there he was in a shocking state, he was in extraordinary pain. He told her he had a lot of constant pain. This does not seem to be wholly in accord with Dr Van Gelderen's observations before the second operation taking place (see Report 31.3.1992). They were homeless so they stayed with their parents and travelled around North Queensland in a campervan to fill in time. The whole period was for about two to three months (T547). During this period there was slow improvement in the plaintiff's ability to do things such as dressing and showering himself. Toileting was difficult because he was either constipated or incontinent. He always needed help to the toilet, but on many occasions and he had to be cleaned "because of accidents". She said she helped him into the shower when he was able to wash himself but she would never allow him to take a shower without her being nearby in case he had a fall (T548). 327 The trip to North Queensland took three to four weeks, she was not exactly sure. They then drove down to Sydney to have his second operation and stayed with his parents. She then said after the second operation and before they moved to the Blue Mountains they spent a year in Queensland at Eumundi near where her parents were living. He had to again go through the process of healing and coping with the new wound and new scar after the operation by Dr Van Gelderen (T549). Although he was able to shower himself, he was not able to make any other contribution to the work around the house as all his energy was taken up going to the toilet and dressing himself. They were unable to go back to the Gold Coast Storage as the job had been taken. 328 At this time she said the abdominal pain seemed to increase and his abdomen seemed to be very tight and rigid to the touch during one of the abdominal attacks. When he was not having an attack it was always extremely tender. He mostly spent the attacks writhing around on the floor and doubled over in pain and groaning extremely loudly (T550). There is no evidence of this type of behaviour after the first operation. It would have helped if I had had further report from Dr Van Gelderen. 329 As time went on he began to do more and more for himself but he was not able to cook and clean but any contribution he made to the household activities was minimal. This seems contrary to some of the expert evidence that I have previously referred to. Generally he started to take care of his physical needs a little more and by the end of the time he got into the car and drove for short distances. He had a car accident so he did not drive after that (T550). I have noted previously of efforts to obtain a motor vehicle drivers licence but no evidence of anything being done about that question. 330 She noticed he had a very poor memory for instructions he had been given or anything he attempted to do. He was always angry about everything and had a complete inability to deal with the normal minor stresses of life. He had completely and utterly lost the ability to deal with anything at an emotional level. He had periods of depression, being extremely sad or extremely angry. There were occasions when he would drink alcohol, a day here and a day there. 331 In October 1993 they moved to the Blue Mountains and although his abdominal scar was fading his abdominal attacks actually started to increase and he was subsequently in a worse state that he had been before (T551). Again this increase in pain is unexplained. He had a number of medications prescribed, had no ability to remember to take his medication on a regular basis and to add to that was a great deal of anger and resentment at having to take the medication. He needed a great deal of encouragement to have the second operation but he knew there was no choice as he was still sick from the gall bladder condition. He was still having colic attacks and was in a great deal of pain in the area of the gall bladder, bilious attacks and attacks of nausea and vomiting (T552). 332 She said she painted a couple of rooms in the house and Charlie assisted in a haphazard manner, but his help was more of a hindrance. He applied paint to the walls, and a great deal to the floor stating he had problems with the physical process of lifting a brush (T552). Why he would have difficulties lifting a brush is again unclear. He attempted to do things, she said, but nothing was very successful. It was very difficult for him to achieve anything that he set out to do. On the Blue Mountains he might sweep the kitchen floor, might put some dishes away, but was likely to break one or two in the process (T553). If he tried to do any cooking the results were disastrous and dangerous and she forbad him to cook. This is not the evidence of his mother who says he does his own cooking. Why that would happen is not clear. She said they had gone back to Queensland in about December 1994. Ariel was born in Queensland. They decided to renew their commitment to each other and to attempt to retain a family unit for their children (T556) and they married in 1995. 333 He still complained of a great deal of pain in different areas. He was extremely angry and becoming quite unpredictable in his responses, suddenly flare up into rages (T553). He was actually starting to have periods of feeling a little bit better and something would happen and he would enter into a rage that would be uncontrollable and very frightening. His memory was bad. He would have periods when he just did not seem to be present. She would talk to him and he just did not seem to be there. There were periods of strange comings and goings prior to a seizure or abdominal attack. She was asked when she noted the absences. She said it was hard to say, but she would say after Dr Van Gelderen's surgery. Prior to Dr Van Gelderen's operation she said he was taking analgesics and it was hard to judge what was the effect of the medication and what was going on inside him. 334 If he failed to take his medication his mood would destabilise. If she spoke to him he would retort with verbal abuse. She said she reached the point of realising that it was ultimately his responsibility. He still does to this day need daily reminders to take his medication and she was nervous about mentioning it at all. He complained of extreme pain in his penis and scrotum and his sexual relations were a very painful event. One would have thought he would have overcome that problem some 7 years later. He had very low self esteem (T554). 335 The plaintiff's behaviour was becoming increasingly difficult, violent and aggressive and halfway through 1995 he actually started to "go a bit strange". He was apparently hearing voices having unusual experiences, communicating with aliens. He had a perception he was employed by the CIA, by the government. He was threatening and very frightening. He became more frightening and destructive and it became very difficult to live with him. He broke windows, there were occasions when he systematically broke just about every window in the house, threw things, made holes in the walls. It is interesting to note that this is what he stated to Dr Wilhelm. I take it, therefore, there were occasions before the operation where he had exhibited an extreme temper. There was the incident of the CD player (T556). The plaintiff's wife referred to the shoplifting which I have dealt with. It was part and parcel of a particularly bad period he was having at the time. He was ultimately referred to St John of God Hospital and started seeing Dr Jungfer (T557). They separated initially in January 1997 for about six months. For a time he was in reasonably good shape but he reverted to his old behaviour and she had reached the point of complete and utter exhaustion. She separated to provide space and some time out as an investment for the future. She hoped that they would be reunited. She never imagined it would lead to divorce. I note there is no reference to him seeing another person as was referred to by a witness. 336 He now comes up for weekends to the Blue Mountains and it is quality time and he is on his best behaviour. If he takes his medication he is reasonably functional but he occasionally slips into a mood swing. His piano skills have deteriorated and now he cannot sight read as well as before, adding he always had an extraordinary ability to sight read (T558). It is only in the last 12 months that he has started to play the piano and, as expected, he has deteriorated in his ability (T559). One would expect if he had not played it for some five years that would naturally follow. She was continually asked over various periods of his complaints of pain and what he could do around the house. She said he now complains less of pain and he has less frequent abdominal attacks. She kept repeating he will attempt to do everything and occasionally does a reasonable job (T560) but it is best if he does not help. 337 She was cross-examined about his marijuana use and she affirmed she had not specifically seen him smoke marijuana but when pressed she alleged she did not see him using marijuana (T561) She said, however, she has seen him use marijuana from time to time but not in recent times (T562). She had only seen him smoke marijuana from the date of her marriage to the date of the last separation. She agreed there was a time when he was smoking it more frequently. She then agreed between the second operation and the time he began to see Dr Jungfer he told her he had used the marijuana to ease the pain. She was reminded she told Dr Grady that the plaintiff used it regularly when he saw him on 27 June 1995. She was reminded of her telling Dr Grady of him believing aliens were trapped in his body and she thought he was hallucinating. 338 She said it would be an incorrect statement to tell someone that he had broken all the windows in the house. She cannot remember anything about a fridge. 339 She said he found difficulty in coping with the children. A number of questions were asked about his music (T566-567). She agreed that after the business had failed at Coffs Harbour the only work he performed was for Mr Joffe. 340 A series of questions were put to her about him squeezing her hand on the first night referred to in a statement she apparently made which was not tendered. She said "I wouldn't have said it was the first night". This was something she had said in her statement made on 28.1.1992. 341 She does not remember him showering himself at the hospital. She now agrees it was a crazy thing to drive off to North Queensland. She agreed however when they did leave he was able to toilet and wash himself (T572). She said it was just a matter of supervising him so that he did not fall (T573). 342 The pain in his body reminded him that he had not taken his medication (T574). She was asked what was the situation with analgesics between July 1992 and May 1994. She said he was taking strong analgesics at different times. When at Eumundi he was taking valium and they tried to stabilise him with Tegretol and Epilim. She remembers him being mildly sedated by valium. She cannot remember other medication. She did say importantly, however, it was beginning at the time when he started having his abdominal attacks which required strong analgesics (T575). 343 He went to see Dr Grady, in a medico-legal context, in June of 1995 and put on what could only be described as deliberate provocation of the doctor. She said her husband had just come out of a disturbed state which he had been in for the previous three weeks when he had been admitted to hospital as an in-patient for one week with attacks of abdominal colic and he had discharged himself after a panic attack. He screamed "Get me out of this hospital". The day after he was spaced out. He was wandering aimlessly around the house and if the phone rang he would pick it up, listen for a while and then hang up and walk on. Then he started talking about aliens, he had an alien trapped in his body. 344 The Plaintiff told Dr Grady he was originally pure energy but now in a physical body. She thought he was hallucinating. He was using marijuana but he was not drinking. 345 The hallucinating in the history given to Dr Grady strongly suggests to me that these problems, as enunciated there, stem from the use of marijuana not directly or indirectly from the operation performed by the second defendant. 346 Nothing much seems to have changed. She paints a much more serious picture than that of the expert medical witnesses. She said he did not use marijuana regularly (T562). That is contrary to the other evidence in the case. She said it would be wrong to suggest he smoked it more than once per week on a regular basis. She agreed, however, she told Dr Grady he used it regularly as an analgesic and she agreed that when he was talking about aliens he was using marijuana and on one occasion when he had a colic attack he drank half a bottle of rum(T 564). 347 In Coffs Harbour he got up in a restaurant and started shouting at the people, proclaiming about skinheads. It was his job he thought to shoot skinheads. This is bizarre symptomatology for which I do not believe it could be said that the operation performed by Dr Miller was responsible. 348 She said they spent 12 months in Queensland after the second operation and at that time again her husband had numerous attacks of abdominal colic requiring injections. He was extremely angry and would smash things although he never committed any violence upon her. He was seen by a psychiatrist at Nambour Hospital and spoke about his memory problems. He is understood to have had a heart problem, and his pancreas and liver had suffered damage. There is no evidence of this. She said he threatened suicide frequently. He talks about going and shooting up shopping centres. She said they moved back to Sydney in October 1993 where he attended the Parramatta Rehabilitation Service and he felt very connected when they moved back to Queensland he did nothing. 349 Dr Maguire noted that she used a good deal of psychological terminology and inquired about her background. She said she had suffered sexual abuse in childhood and developed an anorexic condition for which she had had a good deal of counselling and treatment. She worked as a secretary in a child psychology unit for some four years. 350 In the light of all this material before me I just cannot accept the plaintiff's condition and manifestation of problems is any way as bad as it is said by his wife. I gained the distinct impression that she had exaggerated her evidence. In any event it does not accord with my views of his past and present condition. 351 I have referred to her evidence particularly as to his pre-operation situation and I cannot accept that he was as she has described in the light of the evidence before me that I have accepted. 352 I find it difficult to accept it has been necessary for him to have the treatment he has received. I want to make it quite clear this is not to be taken as an attack on the doctors who have treated him. I believe he has been able to convince them he is a genuinely sick man but I believe he grossly exaggerated his condition. 353 There are a number of other issues that have to be resolved namely the question of whether he is suffering abdominal pain and epileptic or pseudo epileptic fits. In respect to the epileptic seizures there is considerable dispute amongst the medical witnesses as to whether in fact he suffers true seizures or not. 354 In his first report to Dr Salgo (14/9/94 Exh A) Dr Watson said he was told by the Plaintiff that he thinks he consulted Dr Salgo about eighteen months ago after a blackout led to a car smash. This is not in accordance with Dr Salgo's reports. It appears he consulted him after the first operation and there is no mention of him in Dr Salgo's report being consulted because of a blackout and a car smash. He then referred to the fact that the Plaintiff he had been having blackouts since the operation and to a blackout two weeks later when he was using an angle grinder when a piece flew off and cut his shoulder. It now appears this accident was so minor he did not have to consult a doctor. 355 Dr Watson at that early stage felt he should concentrate on the blackouts and treat him with Epilim and he wanted to review him in four weeks which would give him a chance to obtain his old tests and reports. Once again he exaggerated his pre injury condition to the doctor claiming he won contracts on the Gold Coast. At the time of the accident he was a project manager for Marine World Theme Park. 356 In a further report (19/10/94) he had been able to get his old records (whatever they might be) and felt there were reasonable grounds for trying him on an anti-convulsant and he gave him a schedule for cautious commencement of Epilim. 357 In a report (6/5/98 - Part Ex A) to the Plaintiff's solicitor he said he had been able to have a good therapeutic relationship with him. He felt he had been able to help the plaintiff with his seizures. He felt, however, there was a strong component of anxiety and introspection in them and was concerned about the delay in his legal proceedings to which I have referred earlier. 358 In his evidence in chief he said the plaintiff had been sent to him for blackouts which referred to seizures or pseudo seizures (T251). He said he felt there was an element of epilepsy. As I understand his evidence he felt he suffered from both epileptic seizures and pseudo seizures. He described pseudo seizures as having manifestations which look like an epileptic fit or a convulsion (T251). Most of them he said we conclude are not on the basis of epilepsy so there is a problem as to what to call them. There is also a problem from my point of view as to what causes them. He believed once you call them pseudo seizures it does not mean you have the final diagnosis there may be some underlying condition bringing them on. 359 He was referred to the opinion of Dr Bell, the psychiatrist called on behalf of the defendant, who believed the seizures amounted to malingering and Dr Watson agreed that was a tenable opinion to hold. He was asked did it follow that they were consciously manipulated for financial gain and he said the debate on that issue lies in the area of the psychiatrist. If they are not organically based the task in determining whether they are conscious or unconscious all depends on the psychiatrist. He agreed the essence lies in a psychiatrist coming to a conclusion with no objective to help him or her when a patient was doing something conscious or unconscious. The only psychiatrist who commented on these seizures was Dr Bell. 360 He denied in cross examination that he had prescribed Epilim for mood disorders claiming he was not a psychiatrist (T413). He denied the suggestion that he had not made a diagnosis of epileptic seizures. He denied that he said at T251 they were pseudo seizures but that they could do quite well for epileptic seizures. He believed also that there were real seizures or epileptic seizures. When it was put to him what he said about it being a tenable opinion to hold that the pseudo seizures were malingering, he said that was not what he said (T414). Tempers flared between the witness and counsel at this point as to the doctor's opinion. I agree he never said in his opinion all the seizures the plaintiff was having were pseudo seizures, saying they could be epileptic seizures (T416), but he did agree pseudo seizures could indicate malingering at T215. Dr Watson had to agree that he was dependent on what the Plaintiff told him and he accepted him at face value. When the incorrect history had been given was put to him he had to agree that such misrepresentations would call into question the remainder of his evidence (T424-426). 361 He then went on to refer to some episode of which I have no evidence as reported by either Dr Salgo or one of his partners describing a fit which is said to be descriptive of an epileptic fit. He then referred to some occasion when his mother had written to him. Whatever that is I have no idea. He then in further answer said he came to a clinical conclusion 'they could easily be epileptic seizures'. They might or they might not be. 362 He had to agree not having seen a fit he had to rely on what he was told and he accepted him at face value. He does not know if he has grand mal seizures. He then referred to absences known as 'absence epilepsy' (T419) of course based again on what he was told. He then made a strange comment 'ripping open some packets, that could be an automatism which is another feature of temporal lobe epilepsy'. He was told he was not taking Epilim at the time He then said he was thinking of a fugue attack. He spoke about an occasion when the plaintiff realised he was standing in a line of traffic with a driver abusing him (T420). He felt that behaviour was odd and that he should be back on an anti-convulsant. He felt this incident was significant (T421) and the doctor went into a long explanation as to why he thought it was a seizure. 363 The facts were then put to him when he was asked would you describe what it is in a epileptic fit. His answer was it depends on who was giving the evidence (T423). There were no observations of him to enable him to make a clinical judgment. I believe Dr Watson was very reluctant to agree it was much less likely to be an epileptic attack. Although he said people having epileptic seizures can on rare occasions carry out purposeful acts he had to agree that was very rare (T423). I found all this evidence very confusing. 364 He had to agree on the description given as to what the plaintiff did would be unlikely to be a epileptic fit (T423-4). He went on however to say the Plaintiff's problem was well established before this particular incident. That is a matter of opinion and other medical experts including Dr Bell disagree. 365 The matter is further complicated because it was then asked about the drugs he had been taking Dr Watson agreed Anafranil, a tricyclic antidepressant, may cause confusion, anxiety, agitation, hypomania, aggressiveness and impaired memory. Temazepam can also cause memory impairment (T424) and abrupt withdrawal can cause epileptic and panic attacks (T428). 366 Dr Watson then agreed if he was taking a large amount of drugs with fluctuating dosage it could explain some of his presentation. Dr Jungfer believed as I have referred to earlier that one of the Plaintiff's problems was self medicating. In March 1999 he was trying to get off Temazepam Dr Watson said because he thought 'he thinks it makes him ratty' and Dr Watson was encouraging him. 367 He was referred to an admission to RPA Hospital on 3/4/97 when he was seen to be twitching but stopped in the middle of the seizure and had a lucid discussion (see the description T430 and the actual exhibit part of Exh A). The principal diagnosis was a pseudo seizure. Dr Watson believed it was a pseudo seizure but he couldn't say whether fictitious or not. I must say I have had some difficulty in completely understanding what is meant by pseudo seizure, for example Dr Bell describes a pseudo seizure as a polite form for a fake fit. 368 There is a lot of missing documentation that would have assisted me in coming to a conclusion on this difficult problem. It does seem to be undisputed that the EEGs taken of the plaintiff show no epileptiform abnormality. According to Dr Bell it depends on how close to the seizure the EEG was performed. He noted the EEG done just after the seizsure in November and December 1994 did not show Epileptiform activity. He said in his second report 29.10.99 p2 in most cases of epilepsy where a post-ictal recording showes diagnostic abnormality. A recording undertaken at the time when the patient is not having fits failed to show an abnormality in a reasonably large number of cases but the yield is far higher when the recording is done within 3 days of the seizure. Dr Bell refers to a number of matters that are not before me which makes my task of coming to any firm conclusions on this man well nigh impossible. The reference to Dr Miller (page one) is not before me. There are references to Nambour Hospital records when he was admitted from 2/12 to 5/12/94 allegedly in respect to a fit. I have no evidence of that material. A report (4/4/97, Exh A) from RPA of an EEG taken at that time showed 'minor generalised abnormalities' and 'no epileptiform pattern' - see Dr Bell's evidence above. This would tend to support Dr Bells opinion that the Plaintiff was faking. 369 There was reference at page 3 in that report of letters to Dr Jungfer which I have no knowledge. It is pointless to go on and examine all these matters of which I have no knowledge. 370 Dr Phillips in his report (Exh GG) is unsatisfied he suffers from true epilepsy. On the information available Dr Pryor, a specialist neurologist, saw him on behalf of the defendant in his report 18 August 1998 (Exh 11) in which it was said by the Plaintiff if he misses his tablets has myoclonic jerking and he immediately takes Epilum. If this does not solve the problem in ten minutes he has his wife give him an injection of diazemals. This history has not been repeated elsewhere. He referred to the EEG reports of Dr John Walsh on 25 August 1993 which showed bilateral temporal abnormalities. Also recorded were bi-temporal which were phase reversed theta activity more marked on the right. Dr Pryor concluded all these reports denoted was a mild non-specific abnormality which is non-conclusive of evidence of epilepsy or anoxic brain damage although they may be said to be consistent with anoxic brain damage. He noted the official report of the MRI examination of his brain on 5 May 1994 was a normal examination apart from a very mild asymmetry of the temporal horns. This is reference to a review by Dr Geoffrey Parker on 2 September 1997 indicates there was no intercranial abnormality. 371 The evidence that he suffers from epileptic fits or pseudo fits is most unsatisfactory. There is no real material emanating from the lay people other than so-called absences that he suffers from any such condition. In the light of the conflicting evidence on this I cannot conclude that he is suffering from epilepsy. Dr Bell, the only psychiatrist who has considered the matter, believes the Plaintiff is faking. I am not prepared to find on the evidence that these fits are genuine and in any event I reject them as emanating from the failed operation. 372 The last matter to be considered is the question of abdominal attacks that he has complained about and for which he has received a considerable amount of treatment. 373 Dr Salgo spoke about the severe abdominal pain of which the plaintiff complains (T331), which causes him to attend emergency departments. He believes the hypoxic brain damage is affecting his digestive tract. This is not in accord with what Dr Selby's opinion . There is no evidence one way or another, other than the belief of Dr Salgo as to the digestive tract problems and he has not advanced any medical reason why that would be so. 374 The plaintiff apparently carries a kit of ampoules of pethidine which can be used when he gets sever abdominal pain. He has narcotic analgesics of various types and the doctor also prescribed Largactil and Zoloft. 375 Dr Salgo was asked whether it was dangerous for the plaintiff to be travelling round with ampoules of pethidine. The plaintiff he said used them infrequently but he always tried to find medical people to do it for him. It was suggested to Dr Salgo by Mr Glissan that pethidine should not be administered unless there was a resuscitation facility nearby and he answered that saying that the drug companies are only covering their hides T333 and he does not think it was necessarily true. He did not believe he was likely to become addicted to pethidine. He referred to sending him to see Professor Harris (T340) in December 1993 and I have referred to this aspect earlier. 376 Dr Salgo saw him again in the p.m. after he saw Dr Harris with a complaint of severe colicky epigastric pain with ++ guarding and thought he might have had pancreatitis because of the previous gall stones and he was sent to Casualty to see Dr Selby and he came back the next day when the CAT scan was required by Dr Selby. 377 As time went on in 1993 there was an ever-increasing need for medical assistance. Why this was so I find difficult to understand. He said Dr Selby thought his abdominal problems related to brain damage. He thought a CAT Scan showed ischaemic brain damage(T341). He said he regarded his role was to accept him as he was and do the best for him and he said ultimately in order to determine the true position, as I understand his evidence, a comparison with him now as he was before the surgery is the test. 378 The problem I face is far different from that of Dr Salgo because I have to test the evidence on whether I accept him or not (T343). He agreed the legal case was one of the things contributing to his anxiety. He believed he had improved, was coping with life better when he started on medication with Dr Jungfer and Dr Watson commenced him on sodium valproate. The visits of the Plaintiff to him he said they tended to be long and he charged $60 per visit (T343). I cannot accept with respect to Dr Salgo that the repetitive long visits were necessary. In addition to seeing Dr Salgo he was seeing other doctors regularly at the time such as Dr Jungfer. 379 Dr Selby saw him at the request of Dr Salgo (see report 9/12/93). He claimed a history of central pain that developed after laparoscopy which was different from the pain he had from the gallstones. It was said the pain began immediately after the operation. He described it as a definite cramp rather than a steady pain which recurs on and off for a few hours at a time. On the assumption that he is referring to the pain after the laparoscopic cholecystectomy performed by the Second Defendant, the question to be determined is 'does it relate to this operation?'. It was said that his bowell habit had been bad since the operation but it doesn't appear to be related to the development of the pain. It was noted he had a number of investigations in the emergency department, including a full blood count, renal and liver function, which were all normal. It was noted there were a number of investigations into the laparoscopy looking for a cause of the pain. Endoscopy and colonoscopy were done in Queensland and the doctor thinks he had a small bowel series at Liverpool. 380 On examination Dr Selby said all he could find was mild abdominal tenderness without rebound, guarding or mass. Bowel sounds were normal and the liver and spleen were not enlarged. The general physical examination was unremarkable. Plain abdominal X Ray was normal. Dr Selby believed when he first saw him his pain sounded intestinal and was most likely due to adhesions following his two operations, but he said it would be nice to see the previous investigations. Pancreatitis needed to be ruled out by an abdominal CAT Scan. He believed it has been reducing in frequency and hopefully it will continue to do so. 381 In a further report (16/12/93, Exh A) his CT Scan showed 1.5cm of low density adjacent to the pancreas, most likely related to previous surgery. He believed he had multiple adhesions and he preferred to wait and see what happened. 382 In his report (15/2/94, Exh A) nothing much had changed and he was still having abdominal pain varying from sharp needles to steady cramping and now contrary to earlier reports he was said to be not eating much. Dr Selby was still awaiting a report from Dr Van Gelderen about the small bowel series. He felt the CT Scan should be repeated. He was tender in the epigastrium but no other abnormality was found. 383 In a report of 28 September 1994 (Exh A) Dr Selby was told by the Plaintiff that he had a history of three episodes of pain over the previous few weeks. In particular abdominal x-rays were normal as was an amylase. He seems to have changed his opinion because he now believes the pain is coming from his small bowel as there is no evidence of adhesions and he wonders if he has a pseudo-obstruction. It is interesting to note the use of the word 'pseudo' as it arises in respect to an allegation that he has epileptic fits or pseudo-fits. The Plaintiff told him of chronic pain and he said codeine gives him relief. Previously, according to the doctor he had told him he thought codeine aggravated the pain, but now he said the reason he did not take it is because it caused constipation. 384 In a report of 15 November 1995 Dr Selby referred to the plaintiff visiting RPA for injections of Maxolon and Buscopan and Pethidine which relieved his pain. The doctor again changed his opinion saying he thought the pain may be due to adhesions contrary to his previous report when he believed there was no evidence of adhesions. On 20 April 1997 he referred to recurrent abdominal pain, he gets relief from intramuscular Buscopan which he needs to inject at home to avoid hospital. 385 In respect to this problem I note certain tests were carried out by a Dr Paul Kerlin, a gastroenterologist in Queensland (Exh A, 28 January 1993) reporting to a Dr Fielding, whoever he may be. Dr Kerlin performed a gastroscopy and a colonoscopy and they showed a normal oesophagus, stomach, duodenum and nothing abnormal could be detected. I notice also a copy of this report was sent to Dr Robert Scanlan again whoever he may be. 386 Dr Selby also had an arterial report from the Camperdown Vascular Laboratory and no lesion could be identified. He also had an ultrasound of the plaintiff's abdomen by North Coast X-Ray Imaging (Exh A, 10 May 1995), sent to a Dr B Holding. I have no evidence of this doctor. There was some suggestion of cardio-pulmonary problems. If it was, it was not related to the failed operation. 387 A test was also undertaken at the Institute of Clinical Pathology and Medical Research (Exh A, 4 August 1992) and he apparently for some unexplained reason had a test to exclude infection with the HIV virus which was said to be negative but it was noted it did not exclude infection with HIV virus and a further test was suggested but there is no further evidence about this matter. In respect to Dr Selby's request from Dr Van Gelderen about the small bowel series (15/2/1994) no further reference was made to that matter. 388 There is a report from a Dr J Davies, ENT (Exh A, 1 February 1994). It appears he was the father of Mr Davies who gave evidence. He referred the plaintiff to Dr Pohl, an ear nose and throat specialist at Royal Prince Alfred where, because of his ongoing problems and litigation he was investigated extensively, mainly in the interests of continuity. I take it nothing was discovered from those intensive investigations as the only report tendered from Dr Pohl refers to some problem with a painful swollen left ear, hardly related to failed operation. 389 He also attended at the medical centre radiology at Camperdown (Exh A, 16 December 1993) which recommended. "Endoscopy may be valuable". There is no mention whether that was done. 390 In his evidence Dr Selby said he first saw him at Royal Prince Alfred Hospital. He later saw him, accompanied by his wife, who he said corroborated everything the plaintiff said (T614). This does not surprise me. All his pain relief was supplied by Dr Salgo and he believed he was not demanding of analgesics. Quite clearly Dr Selby can come up with no convincing diagnosis as to what is happening to this man despite all the investigations that have been carried out. This is but another example of the difficulties in determining the true position with the plaintiff. 391 Dr Van Gelderen found minimal adhesions, but Dr Selby after rejecting the diagnosis of adhesions now says it is possible the pain is related to adhesions (T615). On the balance of the evidence I cannot be so satisfied. 392 Although he was not able to find any possible basis for this pain, he had no doubt that the plaintiff had pain and he believed him and he believed that he had genuine pain. Pain, of course it does not need me to state, is subjective. Dr Selby also, for some reason, believes the pain will continue. Whilst his belief is important I prefer in assessing this matter for concrete reasons to be advanced why he is having pain, rather than belief on the part of the doctor unsupported by any diagnosable condition. 393 The plaintiff last saw Dr Selby in June 1999 and told him he was going overseas. Prior to that he had not seen him since September 1998 when he told him he had been bleeding from the bowel. Dr Selby had to agree there was no pathological cause identified for the pain (T616). All the investigations showed no abnormality. 394 He spoke about pseudo obstructions but said you cannot say the plaintiff has them, all you can say is he has pain. He agrees there is a plethora of symptoms but no basis for the pain. 395 The history he obtained was that the pain commenced immediately after the surgery (T619) and he related the pain to that event. If the true situation was there was no complaint of bowel pain for about five months he agreed it would make the connection harder (T619). He agreed again there was the possibility of adhesions after the second operation (T620) but the dilation of the pancreatic head has disappeared (T621) so therefore that is not the cause of the pain and he was asked about an ultrasound that showed no disability. 396 The evidence of the plaintiff's wife is important in this regard. She said the plaintiff and family moved to Eumundi in Queensland in October 1993 which was close to her parents. This was after the operation by Dr Van Gelderen. She said the plaintiff had to start all over again with a fresh operative scar. She said they stayed at Eumundi for twelve months (T549). She then said as time went by the abdominal pain seemed to increase, and I have referred to this earlier. 397 In cross examination she remembers him being marginally sedated with something like valium while they were at Eumundi. She said she could not remember the specific analgesic medication he was taking other than it was at the beginning of the time during which he started to have abdominal attacks which required strong analgesics in the doctors surgery and the local hospital. Once again it would have been vital for me to have a history, if one is available, as to the onset of these attacks. Importantly she was asked by Mr Glissan in cross examination this question 'And that was during the time at Eumundi that you stated – "did you remember him starting these abdominal attacks?" She answered, 'I do, yes, yes because we went to Nambour Hospital and that's the local hospital' (T575). 398 Dr Selby was questioned about the drugs the plaintiff was taking. He has a view that does not help very much, that is the abdominal pains seem to be pursued from a psychiatric brain damage point of view. As far as I am aware no such pursuit has been undertaken and no reasons advanced as to why such pains would result from brain damage. 399 I am not satisfied of the evidence of Dr Selby. It is based on incorrect information as to the commencement of these pains the Plaintiff complains about. When Dr Brennan saw him one week after discharge from hospital he was in a poor state, as I would expect him to be. He walked stooped, clutching his abdomen with pain. At that point he was experiencing a lot of wind pain. The doctor said by the middle of March 1992 his main symptoms of abdominal and back pain had subsided but he had bilious attacks with nausea and anorexia. This was no doubt resulting from the diseased gall bladder. Dr Brennan felt he could develop pain if there were adhesions and Dr Van Gelderen could corroborate that but he was not called. 400 Another interesting aspect is the report of Dr Van Gelderen (Exh A, 31 March 1992 when he said most of the symptoms seemed to be related to his abdominal incision which was a large one (see photos Exh M). There was no reference to severe abdominal pain. Dr Van Gelderen wrote to the second defendant in an undated letter (Exh 18) in which he stated the Plaintiff should have an open cholecystectomy. He said there was no urgency as the gall stones were relatively quiescent at that time. He noted he had a well-healed midline incision with normal peripheral pulses in the limbs. When he operated on 7 July 1992 the midline incision was reopened to enable an open cholecystectomy to be undertaken. The operation went without any problems and he added hopefully this will be the end of the matter with him. In a further report (part of Exh 18 28 July 1992) when he reviewed the plaintiff he was recovering quickly the wound had healed without any problem and he was to reassess him in one month's time. I saw no further report of complaint to either Dr Brennan or Dr Van Gelderen of him suffering from severe abdominal pain either before or after the operation. 401 In the First Defendant's hospital notes (Exh 8) on 1 February 1992 he was spoken to by an unidentified member of staff about his anger and frustration following post problems. He was said to be very philosophical but would like to talk about it in a few days. On 1 February 1992 at 2130 he was found to be talking and ambulant "pain control good", with a range of 3 to 4. On 2 February 1992 at 0630 "patient slept most of the night", at 1430 "ambulant as desired, patient showered himself". At 2135 he was complaining of wind pain. On 3 February 1992 at 1430 "showered himself, ambulating around ward and out to phone". Analgesia was required. At 2115 "ambulant slowly, given panadol, pain settled in a short time, nil analgesics given." On 4 February 1992 at 1415 "patient mobile and self-caring". At 2130 "self caring, mobilizing, nil complaints voiced". On 5 February 1992 2pm "patient mobile, self-caring"; 7 February 1992 "mobilising but posture poor, encouraged to walk without stoop, encouraged to practise good standing and walking gait". On 8 February 1992 "sutures removed and discharged". On 14 February 1992 he was seen at the private clinic, improving slowly, feeling weak, with occasionally having biliary colic. There was no reference to severe abdominal pain. 402 He saw Dr Salgo in March 1992 who referred to seeing him over the next three years, mainly counselling him. He referred him suffering severe colic pain which he believes was abdominal colic related to his gall bladder disease. He then referred to him seeing Dr Selby but made no reference to when that first occurred. 403 He was referred to Dr Cumberland (report dated 11 June 1993, Exh A) who first saw him on 28 July 1992 who noted the plaintiff had few complaints apart from some residual abdominal wound pain, with slight indigestion with fatty foods. There was soreness of his left thigh. He said the abdominal wound was partly tender but made no reference to the severe abdominal pain. Dr Dent, a psychiatrist, saw him on 21 February 1996 (report 6/5/96 Exh A) in a medico-legal context where he made a number of complaints including pain in the ankle and foot if he walked a lot. In relation to his abdominal pain Dr Dent diagnosed that was due to sub-acute bowel obstruction and impaired circulation of the right iliac artery although he was not sure of the causation. Quite obviously it was outside his specialty and is contrary to the fact that the vascular repair carried out was done expertly. He suggested the plaintiff should be referred to a pain management physician, but that did not take place as far as I am aware. 404 In the light of the material before me and as to the date of onset of these so-called severe abdominal attacks I am not satisfied that the so-called abdominal attacks can be related to the operation by the second defendant on any objective physiological basis. The evidence in favour is postulated on the basis that the attacks of abdominal pain commenced immediately after the failed operation. For the reasons I have advanced I am not so satisfied. Indeed I am satisfied that the first complaint of abdominal pain excluding problems from his gall bladder came from the plaintiff at some unspecified time when at Eumundi after the second operation. He obviously complained about it to the local hospital and the local doctor and I have no information from those sources as to the history when the pain commenced. The plaintiff has an onus to establish that this is related to the failed operation. I believe also on reflection Dr Selby in his report of 9/12/1993 could be referring to the operation performed by Dr Van Gelderen. 405 Dr Salgo believed he had a lot of anger and anxiety which seems to induce the abdominal pain. Dr Phillips believes he had suffered some symptoms of post traumatic stress disorder but probably not a syndrome in its full expression. See also his report p13. Dr Dent believes he had a pain disorder being a residual post traumatic anxiety disorder with depression. 406 I also take into account that he has been considerably distressed by the litigation, a stress which he cannot lay at the door of the defendants. I also bear in mind that he has had other stresses in his life which have been referred to by Dr Phillips which have considerable affect upon him. 407 If he has any pain there is no evidence it is physiological as there is no basis determined for this severe pain. If he has pain it can only result from psychological problems, including stress. I am doubtful whether he has much by way of abdominal pain. I believe the pain he complains of is grossly exaggerated and I believe in part any pain he has is psychological and by no means of such a nature that requires him to writhe around the floor. I am prepared to accept he is subject to anxiety and this could cause stomach problems from time to time but I cannot accept to the extent alleged. The evidence as to this symptom and the cause or causes is at best contradictory and confusing 408 There seems in the evidence to be a suggestion of improvement in his condition. Over eight years have elapsed since this operation and by this time one would expect his symptoms to have gone. I accept he has in the true sense shown such improvement. I accept Dr Phillps there is now no evidence of Post Traumatic Stress Disorder. I believe he will improve to a state where his mood disorder will substantially lighten. I do not accept he has a bipolar disorder. It will not be necessary for him to maintain the role of an invalid which I believe will take pressure off him and it will not be necessary for him to attend medical doctors to the extent that he has. I believe he will be substantially free of the psychological problems. Some minor problems of mood disorder and personality change may remain but they will be of a minor order. He will, however, be left with the affects of the brain damage which will no doubt be a continuing irritant to him in the years to come. 409 In summary I make the following findings. The plaintiff, I accept, suffered a very serious injury as a result of the failed operation. I accept for some time thereafter he suffered quite severe disabling pain but that had settled to a certain extent before the second operation by Dr Van Gelderen in July 1992. 410 I accept he has suffered minor brain damage which has affected his short term memory and has some affect on his planning abilities and some minor difficulties in organising and manipulating items of information. I believe over the years the affect of this brain damage has been obviated to some extent but will remain as an irritant to him for the rest of his life. I believe, however, a lot of those problems can be overcome by his putting into place strategies to overcome them in his everyday life. I am not satisfied he has shown any great willingness to overcome his problem. 411 I accept also he has been left over the years with considerable anger towards the medical profession and this is justified to some extent at this time. I find he is a person who had a personality disorder prior to the injury and had difficulties in coping with life and the making of a successful career. Thus he was more vulnerable to a setback by this type of incident which has resulted in an aggravation in this personality disorder which has caused him psychological problems of depression and a period when he had indications of a Post Traumatic Stress Disorder. 412 I believe he has suffered from an anxiety state which is a major factor exacerbated by the failed operation and this has resulted in an increase lability of mood. I cannot accept his or the lay witnesses called on his behalf as to the extent of the manifestations of these conditions. As I have pointed out he has been seen by a multiplicity of doctors who have difficulties in determining the cause of his condition. I just cannot accept that it has been necessary to prescribe the amount of medications over the years and I believe these medications are responsible for some of the manifestations. He complains of numerous symptoms many of which have not been proved to be related to the failed operation. I believe he has been addicted to marijuana and this in conjunction with the amount of medications he has been taking makes it extremely difficult to determine what is the real cause of his condition . There is also the reference to aliens and skinheads previously referred to that has not been established relating to his brain damage. I believe the ingestion of drugs both pharmaceutical and illegal have had an effect. 413 I have referred at some length to the opinions of what have been described as pseudo abdominal attacks of pain and pseudo fits. I am not satisfied that the abdominal pain results from the operation but I am prepared to accept he has an acute anxiety state that may cause abdominal pain but I find it difficult to accept the extent that he complains of it. This anxiety to a considerable extent results from litigation neurosis and will cease after this case has concluded. I am not satisfied the so-called fits that occur are a related to the failed operation.. 414 I have indicated throughout this opinion that I believe his condition has been grossly exaggerated by him. I find that he has been deceitful in the history he has given to the doctors and this has made my task an extremely difficult one in attempting to evaluate his condition. There is little by way of corroboration of his problems except by his immediate family and I am wary of this evidence. I am also convinced that he has failed mitigate his damages to the extent he should have in the circumstances. 415 I note there is a claim that his marriage has broken up because of this failed operation. Whilst he and his wife are living separately at the moment I believe, as I find he will improve after this case is over, there is a probability of a resumption of married life. I have noted that the question of reconciliation has been left in abeyance until this case is over. 416 I believe, therefore, that his psychological condition will resolve substantially after the case is over. It will not be necessary for him to attend doctors in the manner in which he has over the years and at the intervals he has in the past and I have referred to those examples as far as Dr Salgo is concerned. However, I accept that for a few years he will continue to suffer minor psychological symptoms which will disappear over time. He will of course be left with other disabilities including his brain damage which will not improve in the future and will be as I have said a continuing irritant to him. 417 Overall he has suffered a very severe injury as a result of the negligence of the defendant and substantial damages are called for. 418 As the past claim for hospital and medical expenses, whilst I regard some of those expenses as unnecessary, nevertheless they have been prescribed by the various doctors and I propose to allow the full amount of those expenses. 419 On the question of economic loss, both past and future, this again poses considerable difficulties. Certain of his Income Tax returns were tendered. It appears they were prepared by John C. Malouf who practised on the same floor as his present solicitor. These returns are dubious assistance because they were prepared in 1995. The return for the year ended 30 June 1989 showed a taxable income of $9,607. The return shows his gross earnings from his business of $29804 plus $799 from the sale of a motor vehicle a total of $30603. The net income was $8528. 420 For the year to the 30 June 1990 for the period from the 1 July 89 to the 31 December 89 his gross earnings were $27193 less deductions of $12569 left a net business income of $14624. During the year he also received $3,914 in unemployment benefits. Total net income therefore was $18538. For the year ended 30 June 1991 he was paid $9325 by the Joffe Group. To the 30 June 1991 he only received unemployment benefits of $4771. The return to 30 June 1992 $12978 unemployment benefits was the only income received. 421 He alleged in his evidence after leaving school he was pretty much continually working but again this was an exaggeration. He had to agree under cross-examination from Mr Glisson Q.C. that this was not altogether the true picture. In June 1983 he worked for EVC at Willoughby on videos and was off work for four months (T74). He then took a holiday overseas for one year and three months and during that period took casual work to keep him going (T75). When he returned to Australia it took him six months to obtain a position driving buses for the UTA which he did for one year He was again unemployed intending to set up business in Coffs Harbour but his schemes came to nought. He started the concrete pumping business in about July 1988 and it was closed down in December 1989. 422 He worked in Coffs Harbour with a David Joffe and after Coffs Harbour went to the Gold Coast and did some jobs there for Mr Joffe. As will appear later I was unimpressed with Mr Joffe's evidence. 423 The plaintiff then attempted to set up a cleaning business (T76) but again he was unsuccessful. After the 31 December 1989 until the date of his operation in February 1992 the only work he did was for Mr Joffe and the income he earned was $9155 gross. In August 1991 he went to Gold Coast Storage where he was in a caretaker position without wages but he had been given free accommodation. 424 As far as I can understand on the 10 July 1989 he went on unemployment benefits. Allegedly Social Security put him on unemployment benefits because he and others were suffering from the collapse of the Opal Cove construction. He agreed when he was not working he received benefits but could not remember precise dates. It was put to him he was not receiving benefits from 28 June 1990 to 13 July 1990. He was receiving benefits from 16 August 1990 He did some work for Mr Joffe between November 90 and January 91 (T79) and during that period he earned $480 per week. On the 14 February 1991 he returned to unemployment benefits and remained on them until 28 June 1991. It was suggested he worked for Mr Joffe during part of that period between March to April 1991. He cannot recall if he also received unemployment benefits but added if there is documentary evidence to that effect he would not disagree. It was then put he had worked between the 17 April 1991 until the 26 June 1991, then from 1 July 1991 he went back on unemployment benefits until the date of the surgery. 425 It was also put to him that between 1 January 1988 and 28 January 1992 he was unemployed 142 weeks out of 212 and he agreed he was out of work something like 66% of the time (T84). It was further put him that from 2 February 1984 when he left the video shop until January 1988 he was either unemployed or overseas for 122 weeks out of 204 weeks(T84) a period of unemployment of 59% of the time. He explained that away by saying employment was not as easily available as it was in the 70s. 426 It was then suggested that between February 1984 and the beginning of February 1992 he was out of work five years out of eight. He was not able to produce documentation that that was not correct. This history is to be compared with the history of employment on which doctors used as part of the material on which to base their opinions. 427 Senior counsel informed me his future loss was based on his future employment with Mr Joffe. In relating to Mr Joffe when he gave his evidence in chief a different picture emerged under cross examination. It became clear to me that Mr Joffe had been less than honest in evidence he gave both before me on oath and in the written reference he gave the plaintiff. 428 Mr Joffe described himself as a Company Director. In his evidence he said his company was building theme parks, museums, zoos, Aboriginal culture centres and various attractions relating to natural history (T358). He employed the plaintiff at the Pacific Bay resort at Coffs Harbour where his company was building a major rock feature. He said he was first engaged by his site foreman to do the concrete pumping and described what that entailed (T359). He said, "Charlie took to the job generally like a duck to water" and they paid him an hourly rate and he was asked to do the carving work because all his staff he said were busy on other construction sites (T359). He said he was wonderful and the company was lucky they picked up some good staff and he related with other staff in wonderful manner. He had earlier acknowledged, however, that as a Company Director he did not spend much time on the site just dropping in periodically. He then said he wanted him to continue with them. His evidence was vague as to when the job at Coffs Harbour took place. He said he did not remember the dates - it was 1988, '89 or '90 (T360). Then he said the plaintiff worked for him on a number of other jobs, the Looney Tune rides for about two months but he was not the site foreman, the Giant Carrot features at Marine World where he thought he might have been a leading hand for about four or five weeks and at his home building a water tank and other small jobs over a two year period. He made it clear the Plaintiff did not design these constructions and after they had finished there were no other substantial jobs. He said 1991 was spent preparing for the Gondwana project and there was not as much employment as previously. 429 His leading hand, he said, kept eulogising the plaintiff, saying he had a strong creative streak and was fast and efficient. One of the jobs that he had in mind to employ the plaintiff was the Gondwana project and there were plans for him he said a site foreman earning between $50000 and $55000 (T361). He described that project be built on the south bank which was the old Expo site in Brisbane. He was wary to say he might not have been a site foreman prior to that construction. He then said his company had been very busy ever since (T362) and the plaintiff would still be an employee either as a site foreman or as a leading hand. He had to agree however there would be breaks in employment because the fortune of the company moved up and down a little bit but his people have 40 weeks of employment or 76% of the time. 430 This somewhat rosy picture was contrary to the picture that emerged in cross examination (T365) and immediately he was cross examined he conceded the Company had gone through some restructuring. It appears it was more than restructuring. The original company, the Joffe Group, which employed the plaintiff was wound up by the creditors. It appears another company came into existence known as Environment Design and Construction (Exh Y), but it also ceased to trade because the Gondwana project brought it to its knees. They were owed money. He said he did not tell me anything about this in chief because he was not asked (T365). He was also cross examined about his evidence a site foreman would be getting $50,000 to $55,000 per year. He was then referred to Ex Y a letter dated 5 June 1995 on Environmental Design and Construct Pty Ltd signed by Mr Joffe in which he stated a site foreman earning $43,000 plus living away allowance of $4,500. He tried to explain that away by saying that is what a foreman earns now but that evidence related to working on the Gondwana project. He said his first priority was to keep employed the permanents and he does not think the plaintiff was ever employed as a permanent. He was more a salaried person. So it appears the second company was formed to do the work of the first company and it went into receivership (T373). Mr Joffe said he was an employee in that company because as a director he said he did want to continue trading so he sold the company assets about one and a half years ago. Mr Joffe then formed another company called Nature Works. It appears his daughter started the company, Environmental Design and Construction, because he was facing bankruptcy at the time because of the Gondwana project. It appears his daughter had no assets and he said he started the company through his daughter but he was not a shareholder. 431 In the ultimate all that evidence was unhelpful to the plaintiff. I was most unimpressed with this witness. His evidence together with his demeanour was such to lead me to the view that he attempted to mislead me as to the true position of the plaintiff's future employment and his own company's success and the plaintiff's employment with him. I should point out it is not unusual in this case that there are no records to support any of his allegations. 432 On the question of the plaintiff's employability a friend , Mr Davies, was called who purported to give evidence both to his pre and post background and again he was an extremely voluble witness as an examination of his evidence would reveal. He became friendly with the plaintiff as schoolboys although they went to different schools. He referred to the plaintiff as 'Charlie'. He said Charlie always took the lead and recognised the steps to get through to produce an end (T314). He said he impressed him as being good at English subjects and "was always beaten up at football"(T318). He said he was a leader and a colourful personality, knew when to stop, when to start and how far to go and he was never unhappy. 433 He said he sees a fair bit of him now and stated that the plaintiff had lost his edge as a decision maker as the leader he had been (T316). He now seems to be quicker spoken. He kept repeating, if I may say so, ad nauseam Charlie was a leader. When asked about his mood he said it does not bear any reflection to him before injury when he was very positive, a very strong person but is now flat and indecisive (T317). 434 He described himself as running a landscape agricultural service and he went to considerable length about this (T318). He said in order to do his work required skills of project management and put a job from paper on to the ground. He wanted to employ Charlie 'knowing the success he had'. He wanted someone with creativity, management skills, someone who could mix it from a concreter through to multi-million dollar development 'managing money'. 435 He believed the plaintiff had a lot of creative ideas. I can only conclude from this evidence 'Charlie' has exaggerated his ability as he did with various doctors. Mr Davies referred to the creativity demonstrating the ability to do concrete characters, theming in theme parks or creative shapes in swimming pools. Somehow or other he came to the conclusion that he had the skills in managing people - steel fixers, plumbers, electricians, concrete pumpers, council inspectors. None of this on the material established before me shows those abilities. If I understand Mr Davies' evidence correctly he believes he has been designing things when he obviously had not. In my view if he held the view as he volubly explained then he had been mislead and most likely the one to mislead him was his friend, 'Charlie'. 436 He then asked him to do a difficult concept - create what he described as a Hollywood-type environment in a hotel to give it a theme and character to run by. Even he said it sounded like a crazy idea (T319 and T320). He wanted the plaintiff to use all the skills he had developed buildingpools and at Marine World. He wanted Charlie to do business with a new style of client. Not surprisingly Charlie he said was not able to deliver and I have no doubt because he never had the ability or the experience required. 437 Under cross examination he agreed before this time he never employed him (T322). He said he had seen him steel fixing on his property at Coffs Harbour and that was all he ever saw. He also believed he was the project manager on some of the projects. The plaintiff told him Mr Joffe told him that. Need one say more (T324). 438 Despite his close association with him as a schoolboy he did not know he left Shore in fifth year. The plaintiff told him he played in the First XV but he did not believe it because he could not catch a ball even if you paid him (T327). He agreed as a schoolboy he was excitable, aggressive, surly, bloody-minded. He said he spoke quite quickly before the operation but now he does not have the coherence. 439 The evidence adduced including that of his wife when summed up paints a picture completely different from the one I have concluded. If he had shown all these qualities that Mr Joffe and Mr Davies believed he had then one would have expected him to have made a better fist of his career than he had done up to the time of the operation. 440 It is very difficult to believe much of what he says. If he had these abilities why was he content to live as caretaker on the Gold Coast without pay? I would say the chance of him filling continuous employment with Mr Joffe would not be of much value. It seems to me intelligent though he may have been before the accident he lacked drive and ambition and was happy enough to get by with menial jobs from time to time. I reject any suggestion on the evidence I have before me that he had abilities of a project manager or indeed as a site foreman in large construction jobs or that he had the skills to organise employees in large organisations. I believe like most of this case his abilities have been exaggerated out of all proportion. 441 A large claim is made on the plaintiff's behalf. Whilst I concede he was successful up to a point at Coffs Harbour. Prior to that employment his background was very unsatisfactory. I believe he was a man who had considerable talents but he had wasted them. Judging on his employment prior to the operation his likelihood of indulging in steady remuneration work was unlikely. What else do I have to go on? I do not believe his reliance on Mr Joffe was likely to bring any sustained profitable rewards except on a now and again basis. I accept, however, married with two children may be an incentive but future employment projects must be guarded. His work as in the past is likely to be episodic. I allow a substantial discount in that respect for past and future losses. It has been put me by Dr Morrison that he is not putting his case forward as the fact that he is unemployable. However, realistically it seems to me that it is unlikely he will gain any rewarding employment. After this case is over he may improve and I allow a modest sum of $100.00 per week as his present work capacity. 442 The determination of the economic loss side of this case poses particular difficulties. In the past with the possible exception of his work at Coffs Harbour with the concrete pump he had many periods where he was unemployed and in the main as far as I can gather from the material produced before me earned very modest wages. Dr Morrison put his case for past and future economic loss based on the prospects of his employment with Mr Joffe as a foreman. The basis of the claim is that the Plaintiff assuming the operating had been successful would have resumed work on the 14th February 1992 and a claim is made for $500 per week net to the 30th June 1992. That is a period of some 19 weeks, a loss of $9500. A further claim is made to the 30th June 1993 for $500 net per week, a loss of $26000. Thereafter a claim is made to the 13th December 1999 at the rate of $591 per week totalling a loss of $223575. If I were to allow him $591 per week to the 31st August 2000 an additional 37 weeks would produce an additional sum of $21867. A total figure therefore to that date would be the sum of $245442. I have noted his oral evidence differed from the exhibit letter dated 5th June 1995. The figure according to Exhibit HH is $42000 gross (see letter 5 June 1995). Exhibit HH refers to another letter from Mr Joffe dated 25th October 1995 and that letter has not been tendered in evidence. 443 As I understand the submission by Dr Morrison he did not submit that I would allow that claim in toto. He conceded that during a continual part of that period the plaintiff did have an earning capacity. I accept that, but in the circumstances of his background and working expertise together with the brain damage he has suffered and the other sequelae in the circumstances any employment will be difficult to obtain and will be poorly paid menial type and episodic. Doing the best I can I allow a nominal $100 net per week as to his earning capacity. I accept further he would not be likely to have been fit for work and be able to obtain employment until at least 30th June 1993. I therefore take into account an earning capacity of $100 per week from 30th June 1993 to 31st August 2000 the figure of $37400. 444 The difficult question is what he would have earned during that period on the assumption the operation had been successful. I have evaluated the evidence of his past employment history and I have referred at some length to the exaggeration of that past employment history to the various doctors and it does not need reiteration here. In all the circumstances I cannot accept that he would have reached foreman status with Mr Joffe with whatever company Mr Joffe was associated over that period. Furthermore having regard to his background there have in my view been many times when he would be unemployed even allowing for the fact that he had greater family commitments and was older and, one would expect, more responsible. Even so, it is unlikely over that period he would have earned anything like $591 net. A consideration of his income tax return shows a very modest income nothing approaching that type of earnings. 445 Doing the best I can with the material I have available I assessed his weekly earning capacity during that period at $450 per week net. I bear in mind in assessing that figure that there may be occasions when he would earn more but balanced against that there would be occasions when he would earn less. 446 The next question is over what period would he be employed? I would expect having regard to the material before me and his background that there would be many occasions when he would be out of work and I anticipate those occasions would be considerable. His employment like his employment pre injury would be episodic. If I were to allow from 14 February 1992 to 30 June 1992 at $450 net that would produce a figure of $8550 and that figure from 30 June 1992 to 31 August 2000 would be $191250 a total of $199800 less the amount I calculate he would have earned $37400. The sum of $162400 I discount by 25% because of the periods of unemployment I assess would have occurred during that period, a figure then of $121800 for past economic loss. I allow interest for past wage loss at 6% $62483. 447 As to the future loss of earning capacity, the only material I have before me are figures based on average full time adult earnings of $33000 nett per year or $634 nett per week. I cannot accept bearing in mind his pre injury work capacity to allow that figure. Doing the best I can I allow a future loss at $500 nett per week. In addition I have to consider the episodic work and unemployment that would follow from time to time. I have to allow for the fact that there are the adverse contingencies to be allowed. I find further that he would have continued to work episodically for the rest of his working life and that there will be many periods when he would unemployed. He is now aged 43 years. To make allowance for those factors I reduce the figure by 33 1/3% . So for $1 per week for 22 years in the 3% tables is $844.0. So $500 per week multiplied by 844 produces $422000 less 331/3% is $281334. I allow $84400 for his earning capacity over that period reducing his loss to $196934. 448 The next difficult question is one of past and future domestic services. A substantial claim is made in this regard. A claim for past gratuitous services is for $99565 together with interest on 7.8 years of $47194 a total $146759. 449 In addition a claim for future care is made in the sum of $383328 plus an additional 10% for the GST of $38332 a total claim therefore all up for past and future gratuitous services is $568419. 450 This claim requires careful consideration in the light of certain exaggerations about his requirements past and present as a result of the failed operation. It relies on evidence given by the plaintiff's wife and that of Dr Yeo. In his report, part of Exhibit A Dr Yeo concluded he had permanent loss of cognitive abilities including planning and development of normal interpersonal relations. He believed if he were not responsible for the care and upbringing of his children he would require a housekeeper for 2 hours per day which he described as mainly providing an observer to ensure his safety and appropriate completion of normal activities of daily living. In addition it is said he would require a handyman's assistance of 2 hours per week since he said "it is inadvisable for him to use tools or to work at heights or climbing ladders" He also had in mind he was prone to epilepsy a matter of which I am not satisfied. 451 In his oral evidence before me it was quite obvious that he relied on the history of the plaintiff's wife to the effect that he was a markedly changed person and had many areas of cognitive dysfunction. He repeated he would require a person to ensure that he had completed his daily duties for cleanliness and for turning off power and gas and appropriate completion of the normal activities of daily living. 452 His wife painted a very dismal picture which is not in accordance with the evidence I am prepared to accept. In particular I refer to the Plaintiff's mother's evidence at p.120 of the judgment. Her evidence was he did his own washing, could cook for himself and visit the library, does his own room and plays the piano. That evidence in my mind does not suggest a person who has to be looked after to ensure his cleanliness and other matters as referred to by Dr Yeo. 453 Dr Yeo in his evidence was quite frank in saying he was relying on opinions of others and the Plaintiff's wife's history of disturbed cognitive function. 454 I cannot accept in the circumstances that he requires two hours per day domestic assistance bearing in mind all the circumstances of this case. I am prepared not without some doubt to accept that he probably needs someone to remind him occasionally to take his medication and to remind him of matters that he may have overlooked in daily living. 455 Doing the best I can I allow a period of one hour per day for the future. 456 The question of the need of two hours per week handyman allowance because he cannot use tools or work at heights. I do not accept he has an inability to use tools in the household context. There is no evidence that he has been required to climb ladders. I can but speculate. He lives with his parents. It should be pointed out that these days many people live in units and do not have the desirable house on a quarter acre block. It is impossible to be accurate in respect of this assessment but because of the fact that he may not be able to carry out handyman services in the distant future I allow a half hour per week overall as satisfying this need. 457 As to the past gratuitous loss claim this is based substantially on the plaintiff's wife's evidence which I am not prepared to accept in its entirety. I cannot accept, for example, that for twelve months at Eumundi he was slightly only able to care for himself and his contribution was minimal. I point out the fact, of course, that after the operation the Plaintiff and his wife toured around Queensland for a period. One wonders how that could be performed if he was in the state as she would have me believe. I do not accept her evidence that he was not successful in anything he did in the Blue Mountains and I reject her evidence about the house painting. Despite his mother saying he cooks for himself his wife alleges it is dangerous for him to cook. I do not believe that his brain damage is such that there is any great danger in him cooking and I accept that he does in fact cook for himself and in this respect I prefer to accept the evidence of his mother although I have found that unsatisfactory in a number of respects. An explanation of the psychometric evidence I believe on the whole supports my contention. 458 I refer also to the fact that he was said to have required considerable attention after leaving hospital particularly with showering and of similar matters. I refer to the fact that the hospital notes (Exh 8) show that he was ambulant within a short time after the operation. On the 31/1/92 he was showered with assistance. It was noted that on 2/2/92 he was ambulant as desired and showered himself. Again on 3/2/92 he showered himself and was ambulant around the ward and to the telephone. Similarly it was noted on 4/2/92 that the patient was mobile and self-caring and this continued, it appears, until he was discharged on 8/2/92. 459 While there was no doubt he was suffering considerable disabilities after this operation the material from the hospital does not suggest the degree of invalidism as claimed by his wife in this period. I am prepared to accept, however, for the first four weeks after discharge he would require assistance and I allow four weeks at 20 hours per week at $12.00 per hour - a figure of $960.00 - and I allow a further four weeks at 10 hours per week at $12.00 per hour - a figure of $480.00. A claim is then made for 7.7 years at two hours per day at $14.17 per hour. From that point to the present I allow domestic services at 1hr per day at $14.17 per hour a figure of $99.19 per week. The total for past gratuitous services is $45196 460 A claim is made for the services of a handyman for two hours per week at $21.00 per hour. There is very little material to assist me in making this allowance. He has been staying with his parents or living in the Blue Mountains or in rented accommodation. Past handyman services must be speculative. I believe a very modest sum should be allowed for that and I allow a figure of $4,000. For past gratuitous services and handyman activities I allow therefore a figure of $49196. 461 For interest on past gratuitous services I allow 6% on $49196 for a period of eight years and 29 weeks - a figure of $25237. 462 In the future I allow one hour per day for domestic services and half an hour per week for handyman duties during the period of his life expectancy of 35 years. The life expectancy tables 1995/97 for a male aged 43 is 34.97 years. I take 35 years with a multiplier of $1137.9. During the future I allow the following 1 hour per day for 5 days per week at $16.34 per hour = $81.70 per week Monday to Friday. I allow 1 hour on Saturday $25.52, one hour on Sunday $36.68 plus half hour handyman services at $11 per half hour, a total of $153.90 per week based on figures produced by the Plaintiff from an institution described as Macquarie Nursing Services. The total allowance for such services is $175122. 463 The figures provided relate to Nursing services which are not required . He only needs a lay person whose charge should be less than that of nursing services. In order to allow for this I disallow the additional claim made for 10% for Goods and Services Tax. 464 It is said the plaintiff should not drive. It is conceded the plaintiff is very capable of using public transport on occasions. I believe he is capable of using public transport on all occasions. Indeed he is able to travel to and from the Blue Mountains on trains on weekends. It is submitted there will be occasions when public transport is unsuitable, uncomfortable or inconvenient or conflicts with his medical problem and a claim is made for additional costs in this area of $50.00 per week. I believe such claim is excessive. I believe on most occasions he will be able to travel on public transport but from time to time there may be occasions when, if he had a vehicle, he would not use a taxi. I allow $10.00 per week - a figure of $11,379. 465 A series of claims is made for future medical treatment. This includes a claim to see Dr Salgo once per week at $60.00 per visit for the remainder of his life. I have already expressed my views on the number of visits the plaintiff has had to Dr Salgo and I see no justification for a claim of seeing him or any other GP for weekly visits for the whole of his life. A claim is made in respect of this at $60.00 per week because it is said he has a long consultation with the plaintiff. I do not believe at this point that any consultation with the plaintiff should be lengthy. There is little purpose to them. I certainly do not accept that he would be required to see him once a week for the next 35 years. Not without some reservation I allow four visits per year at $37.00 per visit over this period. I believe as time goes on he will not need to trouble Dr Salgo a great deal. I allow the figure of $3238. 466 In the light of my findings that I am not satisfied he suffers from epilepsy I allow one visit per year to Dr Watson at $100 per visit for a check up - a figure of $2188. I allow a yearly to Dr Selby at $78 per visit - a figure of $1706. I allow these visits on the basis of reassurance only. 467 He continues to see Dr Jungfer. As I have stated I am not satisfied he suffers from bipolar disorder but I accept he has suffered an aggravation of a pre-existing personality disorder and over the period a post traumatic stress disorder. To a considerable extent on the totality of the evidence, including that of Dr Phillips, those conditions to a large extent have disappeared. Even Dr Jungfer hoped his contact with her would reduce in the future. She envisaged his next step would be marriage counselling and she would require to see him six to eight times in the next 12 months and three to four times per annum for life. I wish to remind of the evidence that I have referred to when marriage counselling was said to be postponed until after the case. I also do not accept the extent of the counselling required. I believe his condition of anxiety will improve substantially when the litigation is over and his psychological problems will to a large extent disappear. Doing the best I can I allow four visits per year for the next two years at $180 per visit - $1440. Thereafter I allow one visit per year for a checkup $3589. Thus the total allowance for visits to Dr Jungfer is $5029. The total cost of future medical expenses is $12161. 468 The last matter is a substantial claim for medication in the sum of $63 per week. It has been pointed out by Dr Jungfer that he has reduced his medication intake. Despite that evidence a claim is made into the future of $63 per week in total a sum of $75,046. See Exhibit JJ. I have made adverse comments as to what on the evidence I accept as unnecessary prescriptions of medication in the past. In accordance with my findings his need for medication will reduce considerably. Indeed I cannot help but wonder what help it has been giving him. A claim is made in respect to the list Exhibit JJ. I am not in a position to state with any degree of accuracy what medication he will require in the future. I believe after he receives the verdict of this case he will realise a great deal of the medication he now takes is not necessary. I believe the less drugs he takes the quicker he may well reach maximum recovery. For example in the light of my findings and the fact that I do not accept he is suffering from epilepsy one wonders why it will be necessary for him to continue to take Epilum. I believe that in the future he will cease using a great deal of this medication. Doing the best I can I allow a modest one quarter of that sum ($15.75 per week) a figure of $179.21. 469 Whilst I have been critical of the plaintiff and have found on the evidence that he has exaggerated his claim, nevertheless I accept that this was a very serious incident as far as he was concerned and has had lasting results. I believe he was a very vulnerable personality to such an incident because of his pre existing background of what I believe was a personality disorder. I accept that he suffered considerable pain and suffering immediately as a result of that operation. I accept also that he has suffered considerable angst disappoint and anger at the fact that he underwent surgery that almost caused his death. That must have been a tremendous disappointment and setback to him. I take into account further that he had to recuperate from that operation then undergo further surgery. Those facts in themselves merit a substantial award for damages. He is left with permanent brain damage that continues and will continue into the future. He has had over the period psychological problems. In this judgment I have said however that these in the main will disappear. 470 I have set out the matters that I believe he has suffered from and will continue to suffer from into the foreseeable future. In addition I take into account he has an unsightly scar Doing the best I can I award a sum of $175000 general damages. $100000 to be allowed for the past pain and suffering. 471 I allow interest on past general damages at 2% for 8.5 years - $17,000. 472 The out of pocket expenses as agreed at $32929.45. I am obliged to allow that sum even though I have been critical of the extent of such usage. I allow $1000 interest on out of pocket expenses as claimed by the Plaintiff. 473 In addition to the above there is a claim for past and future superannuation. I leave it to the parties in the light of my findings to agree on such a figure or if agreement cannot be made then I will hear further submissions. The verdict therefore will comprise the following: Out of pocket expenses $32929.45 Past Economic Loss $121800 Interest on Past Economic Loss $62483 Future Economic Loss $196934 Past Gratuitous Services $49196 Interest on Past Gratuitous Services $25234 Future domestic services $175122 Taxi fares $11379 Future medical expenses $12161 Future pharmacuticals $17921 General damages $175000 Interest on general damages $17000 TOTAL $897162.45 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION McINERNEY AJ Monday 6 November 2000 20052/95 Charles BLOODWORTH v SOUTH COAST REGIONAL HEALTH AUTHORITY trading as GOLD COAST HOSPITAL JUDGMENT 474 HIS HONOUR: In this matter I delivered an interim judgment in favour of the plaintiff on 1st September 2000. I was not a position however to enter final judgment because of two outstanding matters: · The calculation of loss of superannuation rights based on my findings. · The question of whether I should allow a figure for fund management which had not been argued at the hearing. 475 A claim was made for fund management by the Plaintiff and the Defendants had to have an opportunity to reply to that claim. Having received the parties' written submissions I am now in a position to proceed to determine the amount of the final judgment. 476 I also extended to the parties an opportunity to check the extensive calculations I had made. It appears in respect to calculations relating to future domestic services, taxi fares and future medical expenses and future pharmaceuticals I used a 1995-97 Life Tables when I should have used the 1998 Tables. It is agreed between the parties that the calculations should be based on the 1998 Tables. I have been asked to correct those calculations under the slip rule. I do so although I do not believe it is necessary to revert to the slip rule as I had not come to a final conclusion on the figures. 477 Accordingly the interim judgment will be altered in the following respects: · Future domestic services $182018 · Taxi fares $11827 · Future medical expenses $12640 · Future pharmaceuticals $18628 478 In respect to superannuation loss I allow the following which does not seem to have been disputed by the Defendant: · Past Superannuation Loss $13700 · Future Superannuation Loss $21952 479 The matter that is disputed is a claim by the Plaintiff that in the circumstances of my finding I should allow a figure for future fund management. 480 The principles in determining such an issue are set out in a number of reported cases. In the case of Nominal Defendant -v- Gardikiotis (1995-1996) 186 CLR P.49 McHugh J considered the principles to be applied in allowing such a fund. His Honour said at page 54: "Is the particular expense causally connected to the Defendant's negligence? If so, ought the defendant to have reasonably foreseen that an expense of that kind might be incurred. Those questions arise in the present case. Is the expense of fund management causally connected to the negligence of the Defendant? If so, was the incurring of the expense a reasonably foreseeable consequence of the Defendant's negligence? If either of those questions is answered in the negative the expenses cannot be recovered from the Defendants." 481 Importantly on the same page His Honour said this: " Similarly, if a Plaintiff can no longer manage her affairs with the same skill as before the accident, both the reduction in skill and any expense reasonably incurred in bringing the management of those affairs to the pre accident level are compensable in damages." 482 It is with those principles in mind that I approach the issue here. The Plaintiff submits that the findings of degree of brain damage and associated psychological problems, based on a person with a predisposition towards such problems, compel a finding that the Plaintiff has a diminished capacity to manage his verdict moneys. The Plaintiff pointed out correctly that the test proposed by McHugh J as referred to above in Nominal Defendant -v- Gardikiotis requires only diminution in capacity and not incapacity. 483 Mr Glissan of Senior Counsel in submissions on 24th October 2000, quoting from my judgment submitted that there was no finding in my judgment that would support the Plaintiff's submission that the Plaintiff has a decreased capacity to manage a substantial sum of money compared to his pre-injury level of functioning. 484 Included in my findings at paragraph 410 of the judgment I found: "I accept he has suffered minor brain damage which has affected his short term memory and has some effect on his planning abilities and some minor difficulties in organising and manipulating items of information." 485 There is a substantial sum of money involved. It requires short term memory, financial planning ability and abilities in organising and manipulating items of information. These skills I believe have been compromised in the plaintiff. 486 I have come to the conclusion that the injuries that were suffered by the Plaintiff have resulted in him not being able to manage his affairs with the same skill as before the accident and thus the reduction in skill and the expense reasonably incurred in bringing the management of those affairs to the pre-accident level should be allowed. 487 A sum is claimed in respect to this head of $152336. The Defendants have not contested that sum mathematically. 488 The last matter that I wish to deal with is the question of my allowance of Out of Pocket Expenses as agreed at $32929.45. The Out of Pocket are agreed mathematically as set out in my judgment. I had a problem with the extent of the medical and pharmaceutical expenses incurred by the Plaintiff. I accept at the relevant times that it was reasonable having regard to the medical advice and the state the Plaintiff's mind at the time that the Plaintiff incurred these expenses. 489 Tendered before me was a schedule of the Out of Pocket Expenses (Ex RR). It is not possible from that Exhibit to determine how much of that figure should be disallowed in the absence of submissions from the Defendants as to what percentage of those figures they submit should be disallowed. I believe in any event, having allowed the figure of Out of Pocket Expenses it would not be open for me to redetermine those expenses. 490 In any event having determined to allow the Out of Pocket Expenses it would not be open for me to redetermine that amount at this point of time. Final judgment therefore for the Plaintiff will be as follows: Out of Pocket Expenses $32929.45 Past economic Loss $121800 Interest on Past Economic Loss $62483 Future Economic Loss $196934 Past Gratuitous Services $49196 Interest on Past Gratuitous Services $25234 Future domestic Services $182018 Taxi Fares $11827 Future Medical Expenses $12640 Future Pharmaceutical's $18628 Past Superannuation Loss $13700 Future superannuation Loss $21952 Fund Management $152336 TOTAL $1093680.45 The Defendants to pay the Plaintiff's costs. Last Modified: 12/20/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.