New South Wales Supreme Court CITATION : ALVES v PATEL [2002] NSWSC 1057 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12957/94 HEARING DATE(S) : 12/2/01, 15/2/01, 16/2/01, 19/2/10, 20/2/01, 21/2/01, 22/2/01, 23/2/01, 26/2/01, 27/2/01, 28/2/01, 2/3/01, 5/3/01, 6/3/01, 7/3/01, 8/3/01, 12/3/01, 13/3/01, 14/3/01, 15/3/01, 16/3/01, 19/3/01, 21/3/01, 22/3/01, 1/7/02, 16/8/02 JUDGMENT DATE : 19 December 2002 Manuel Barata Alves (Plaintiff) PARTIES : v Praful Patel (Defendant) JUDGMENT OF : Adams J at 1 COUNSEL : Mr John Crumpton QC with Mr John Pender (Plaintiff) Mr Alan Sullivan QC (Defendant) SOLICITORS : Gray & Perkins (Plaintiff) Blake Dawson Waldron (Defendant) CATCHWORDS : Damages - successful businessman - loss of business ability - assessment of loss - profit on sale of successful business - whether should be brought into account Malec v JC Hutton Pty Limited (1990) 169 CLR 638; Norris v Blake (No 2) (1997) 41 NSWLR 49 Husher v Husher & Anor (1999) 197 CLR 138 Medlin v State Government Insurance Commission (1995) 182 CLR 1 CASES CITED : Donellan & Anor v Watson & Anor (1990) 21 NSWLR 335 Perri v Flavell & Anor (No 2) (unreported NSWCA 20 September 1995) Hayden v NRMA Limited & Ors [2001] NSWCA, 445 [31] Wilson v McLeay (1961) 106 CLR 523 Griffiths v Kerkemeyer (1977) 139 CLR 161 DECISION : Judgment and verdict for the plaintiff in the sum of $3,470,172 plus costs; I grant a stay to the defendant in respect of $2,000,000 of the verdict; The balance of $1,470,000 to be paid within 28 days of 20 December 2002; As to the $2,000,000, it is to be invested in accordance with the Undertaking to the court except that the account is to be one that pays interest monthly and that such interest is to be paid to the plaintiff; I give liberty to each party to apply within 7 days; These orders are made subject to further order. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J Tuesday 12 November 2002 12957/94 MANUEL BARATA ALVES v PRAFUL PATEL JUDGMENT 1 HIS HONOUR The plaintiff, Dr Manuel Barata Alves, underwent an operation performed by the defendant, Dr Patel, on 2 June 1988. This operation was a cholecystectomy, the removal or excision of his gall bladder. Although the operation must be done with great care, removal of the gall bladder will not usually significantly affect the patient's health. As the history which it is necessary to outline in this judgment shows, the consequences Dr Patel's failure to take adequate care when performing this operation on the plaintiff may fairly be described as catastrophic. 2 Liability is admitted and this judgment is therefore restricted to the issue of damages. The parties were in dispute in respect of two major, though connected, questions. The first of these is whether the plaintiff's history of continuing significant symptoms is reliable both as to their intensity and persistence, and whether, even if the plaintiff's history was substantially accepted, the extent to which the seriously disabling symptoms he describes were caused by the surgery. The second dispute concerns the extent of the plaintiff's economic loss, having regard particularly to the financial returns he made by business activity in Portugal. 3 It is convenient to start with the plaintiff's situation before 2 June 1988. The plaintiff was then fifty-six years of age and was an exceedingly successful businessman. The plaintiff, born in Portugal in May 1932, came to Australia in January 1964 with his wife whom he had married in July 1960. They became Australian citizens in 1969. They have two children, a son, Andre and a daughter, Shirley, both now married. Whilst employed in Portugal, the plaintiff had, though without formal qualifications, developed a practical understanding of engineering with steel. When he came to this country, he commenced working in Whyalla, South Australia for Transfield, a well-known major engineering and construction company. 4 In 1967, the plaintiff, together with a Mr Romano del Bianco, formed an engineering company of their own. Its first contract, as it happened, was with Transfield for the installation of the discharge tunnel for the Blowering Dam. The company has changed the form of its name from time to time and acquired or incorporated various subsidiary companies. For convenience, I will generally refer to it as Allco or Allco Steel. The business went from strength to strength as a constructing engineer, eventually moving from its base in South Australia to Newcastle in New South Wales in about 1969. Although, of course, their work overlapped, Mr del Bianco concentrated on dealing with the company's labour force at site level whilst the plaintiff concentrated on management. 5 The headquarters of the company moved from Newcastle to Tomago just north of Newcastle centre in 1978. During this period the company had been steadily growing and the reason for the move to Tomago was that it was necessary to build a plant there for specialised steel fabrication. That plant was built to the plaintiff's own design and specification. It will, perhaps, give a sufficient indication of Allco's position to note that Allco was given the contract to construct the structural steel component of the Exhibition Centre at Sydney's Darling Harbour project. The Centre is the largest physical component of the project, with five halls each 57 metres by 52 metres in area with a general clear height of 15 metres. The design brief required a completely column-free exhibition centre with a capacity to house the largest possible exhibitions under one roof. This was achieved through the then novel concept of supporting the roof through suspension rods back to the four main columns of each hall using a mast and cable structure utilising solid rods and tubular steel. The major members forming the structure were of a type and size not frequently used in Australia. Almost three thousand tonnes of steel were used, with primary roof trusses and braces fabricated at Allco's Tomago works, the remaining work going to three sub-contractors operating under Allco's supervision. It is unnecessary to say anything more about this project; that Allco was chosen for it demonstrates convincingly to my mind its major status in the steel fabrication business in Australia. Other major contracts over the years involved very substantial works in the electricity generation, food, metal smelting, oil and gas, coal handling/mining, steel making, water treatment, lime and cement and minerals industries together with a very large mechanical plant steel works involving design, fabrication, installation, erection and maintenance. Having been commenced, as I mentioned, in 1967 by the plaintiff and Mr del Bianco, Mr Antonio Parisi joined them in 1970. These three persons controlled, at the material time, something over 90% of the company's issued ordinary share capital. Its annual turnover rose from about $3.5 million in 1977/78 to $75 million in 1986/87. For the purposes of the present case, it is reasonable to accept (and it was not disputed) that Allco was a leading heavy steel fabricator in Australia working in steel fabrication, structural and mechanical engineering and civil engineering areas. Nor is it disputed that the plaintiff had played a very significant, perhaps the major, role in the development of the company. He enjoyed an Australia-wide reputation both as a business leader and a leader in the engineering field and structural steel work. Allco was regarded in the industry as a well-run company; the plaintiff was recognised having played a key role in its success and as a very competent and astute businessman. He was also widely regarded as an innovator. He was a pioneer in the use of computers in the engineering industry and had (amongst other things) introduced technologies for continuous welding of structural steel members, which gave Allco a competitive edge. Such was his reputation that in 1984 he was selected by the Australian Government as a member of one of the first Australian delegations to China, being the only person from the Newcastle area which, of course, contained a number of much larger engineering and steel fabrication works than Allco's. He had a long connection with the University of Newcastle and, in April 1988, was admitted to the degree of Doctor of Engineering Honoris Causa by that University – timing which, as shall be seen, was ironic in the extreme as, regrettably, the results of the negligent surgery giving rise to this litigation had already prevented him from continuing in his profession, though he did not fully appreciate this at the time. 6 Mr Glenn Turner, who became managing director of Allco in February 1987, in circumstances to which it will be necessary to refer, was called on the plaintiff's behalf. I considered Mr Turner to be a fair, balanced and conscientious witness. Indeed, the contrary was not suggested on the defendant's behalf. Mr Turner came to work for Allco in 1983 as General Manager (Administration), becoming a director of the company in 1984 and at one time the finance director. Although an accountant by training and qualifications, he did not practice as such. In early 1986, he was appointed deputy managing director of Allco answering to the plaintiff, then becoming, as I have mentioned, managing director in February 1987, a position from which he resigned following the takeover of Allco in September 1991. Mr Turner described the plaintiff in the period he knew him from 1983 to 1988 as a very determined, driving (I think, also driven), forceful, successful businessman. He said –(838.4) "He was not just a competent manager; he was an extraordinary person in that he was, my experience, one of the very few people that I had met at that stage that exhibited vision, passion and I guess those attributes which had not only made the company successful but which differentiated him from basically just a run-of-the-mill managing director." He said that he did not think he has ever met anyone with more entrepreneurial skill than the plaintiff and that the company which he had established and which he (Mr Turner) took over in early 1987 was "a very dynamic and innovative organisation…due very substantially to" the plaintiff. To Mr Turner's mind, although the other two partners, Mr del Bianco and Mr Parisi, brought very specific and valuable skills to the company, it was the plaintiff's vision and driving force which as he said, "sustained the business and took it forward". 7 I mention now, because it is a substantial issue in the case, that Mr Turner gave very significant evidence about the plaintiff's memory – (841.37) "He had an extremely good memory. He had an ability to get across all aspects of the business and also retain a great deal of information and detail. His attention to detail was quite legendary and I saw it in a number of aspects but particularly in his written word. Whilst English is not his first language, and that is apparent, his written word, when he wanted it to be, was extremely good – extremely good. And his attention to the core detail was very good." 8 Mr Robert Fletcher, by training and qualification a civil engineer, joined Allco in 1982 as chief design engineer and, in about 1984, became marketing manager. He also was an impressive witness. Mr Fletcher also considered that, of the three partners, the plaintiff was the leader and "the one with the ideas and the visions of where the company could go". He said that the plaintiff was extremely skilled at adapting his style to suit the circumstances and the people he was dealing with. He thought he was a natural leader who paid a lot of attention to individuals and was one of the few managing directors who would actually know his day labour workforce by name and could "walk through the workshop and would know individual circumstances behind various tradesmen". 9 It is clear that Mr Fletcher admired the plaintiff's business capacities. Indeed, he described him as "far and away the best managing director I have ever worked with and I have worked closely with at least six now". Mr Fletcher gave particular details of the plaintiff's skills which it is not necessary to set out. It is enough to say that, accepting Mr Fletcher's description of the plaintiff's exercise of his responsibilities within Allco, as I do, the opinion which I have just quoted is completely justified. Mr Fletcher was marketing manager at the time that the plaintiff stepped down as managing director of Allco, to be replaced by Mr Turner, as I have previously mentioned. Mr Fletcher was intimately involved in the proposal in 1987 to purchase an engineering company (for convenience referred to as Babcock Australia) while the plaintiff was in England and described the plaintiff's presence there at the time as "fortuitous" since he was able to undertake negotiations at a high level with Babcock Australia's parent company. In the meantime, whilst the plaintiff was in England and Europe, he was in regular contact with Allco, and Mr Fletcher in particular, concerning the obtaining of technology related licences and linking with European suppliers and designers. Mr Fletcher described the plaintiff's activities in this respect as being "very important". He said that part of the plaintiff's mission in Europe was to facilitate Allco's expansion into design and technologies to permit and enhance the development of competitive advantages in the Australian environment. In this respect, Mr Fletcher considered that the plaintiff's personal communications with senior management of the European and UK connections was of significant importance to Allco's business plans. When the possibility of purchasing Babcock Australia arose, the plaintiff, together with Mr Fletcher, undertook the major responsibility for shaping and finalising this transaction. When Babcock Australia was purchased, Mr Fletcher took the position of executive director of Babcock in a general management role. The plaintiff, amongst other things, had directed that Mr Fletcher and he should have adjoining offices in the company's accommodation and this was arranged well before their return from Europe after negotiating the acquisition. Mr Fletcher was unequivocal that, when the plaintiff returned, he would report to the plaintiff in respect of the management of Babcock Australia although, until this occurred, he reported to Mr Turner. Mr Fletcher said (giving details which I do not need to set out) that the plaintiff's vision and drive was, he thought, going to be a very significant, indeed vital, factor in ensuring the company's success especially in light of what appeared (and, indeed, proved) to be tough times ahead. Much was made in cross-examination of the relatively informal character of the plaintiff's position following his resignation as managing director of Allco. But both Mr Fletcher and Mr Turner explained that the plaintiff was impatient of titles, seeing them as unduly limiting the scope for innovative management. The mere fact that no formal structure had been created in anticipation of the plaintiff's return, or, for that matter, afterwards, does not seem to me to be significant. I am persuaded by both the evidence of Mr Fletcher and Mr Turner that the plaintiff's resignation as managing director in 1987 was for the purposes which the plaintiff stated in evidence (as set out below) and that he was in no real sense relinquishing his predominance over the direction of Allco's affairs. I am satisfied that his actions at this time only amounted to a tactical withdrawal to facilitate the reorganisation of the company's affairs. Furthermore, I am persuaded that, upon the acquisition of Babcock Australia, the plaintiff intended to take control of that company for the purpose of ensuring that the conglomerate of both it and Allco (together called the Allco Group) moved forward as a significant player in the engineering/construction business in Australia. Both Mr Fletcher and Mr Turner at all material times thought of the plaintiff as their boss. I have no doubt that this was the fact. 10 The above account is a very brief summary of the much more detailed material, both oral and documentary, that was tendered as to the plaintiff's business attributes and experience. Except so far as the significance of the plaintiff's resignation as managing director and move to the UK was concerned, its thrust was not seriously disputed. I have no hesitation in accepting that, before his operation, the plaintiff had exhibited skills and capacities as a businessman and entrepreneur at the highest level. I feel bound to say (anticipating somewhat) that the person I saw in the witness box bore very little relationship to the man described in the evidence. Indeed, to state that the plaintiff is now but the pale and feeble shadow of the man that he once was, is sadly in no sense to be guilty of exaggeration. I will return to this matter in due course. 11 At the time of his operation, the plaintiff had been residing in London for some little time. It is convenient now to deal with the circumstances in which he came to be there, not only as part of the relevant history but because the defendant relies upon this as a most significant factor in reducing the damages which might otherwise be payable. 12 What follows is the plaintiff's account of his situation and that of Allco unless specifically stated otherwise. The plaintiff said that in early 1987 he came to the view that it was necessary to look to the succession of executive leadership and also at opportunities for market increase, as the company was then in a position to develop its business significantly. The plaintiff said that he decided to resign his position of managing director in favour of Mr Turner and, in order to enable him, as it were, to demonstrate his competence where he would not be overshadowed by the plaintiff, he decided that he should go to London for a year or so. There seems to be little doubt that both the plaintiff and his partners considered that Mr Turner was indeed a likely successor and that his demonstrated capacity warranted his being given a chance to show that he could be the future managing director of the organisation. The plaintiff regarded his own role at this time as attempting to discover new markets and he thought that London was a good place from which to do this. He said that he thought that, with the expansion of the company's operations, he would return after about a year to Newcastle to take overall control but there was no formal structure proposed by which this would be effected. Mr John Muir was appointed executive chairman of the group at the same time, having been for some years non-executive chairman. 13 On 10 February 1987, the Board of Allco was advised by the plaintiff that he would resign from his executive position at the next board meeting but that he intended to be present for three or four board meetings per year thereafter, it being clear that he intended to remain a director. The Board resolved - "That following resignation from an executive staff position, directors/shareholders could be engaged by the company as consultants and remunerated at the following rate:- Annual Retainer of $20,000 plus $40 per hour worked with a maximum payable in any calendar year of $80,000. … that on resignation from their executive staff position each of the executive shareholders be repaid in cash 30% of their respective Shareholder Loan Accounts." 14 On 21 January 1987, that is to say about three weeks earlier, the plaintiff had prepared and circulated a detailed paper on strategic planning. This involved a brief but comprehensive survey of the prospects and situation of the company. The heart of the document is a detailed consideration of the position of what are described as "the major shareholders", namely, the plaintiff and Messrs del Bianco and Parisi. After having made the point that "Allco Steel is where it is today because of the unconditional commitment of the major shareholders", the plaintiff stated that the company "is today in the excellent position where it can develop further if professional management is allowed to take over from the Major Share Holders management style" and proposed, therefore, that the company's existing management must be reviewed. The plaintiff proposed that the major shareholders would resign their current management positions "as soon as practicable" and provide their skills to the company as non-executive directors and consultants in areas of their expertise. The plaintiff's proposed financial arrangements were the same as those adopted at the meeting of 10 February 1987, referred to above. The plaintiff made the observation that the "major shareholders would be free to pursue other endeavours of their own choice with the proviso that they do not enter into any business that competes with Allco Steel". On 24 February 1987 the Board resolved to appoint the plaintiff as deputy chairman and noted his resignation as managing director, paying "tribute to the significant achievement of Mr Alves in his seventeen years as managing director in building Allco Steel to the successful organisation it is today" and confirming that all Departmental Managers should report to the new managing director. 15 These documents appear to indicate that, although the plaintiff may well have considered that resignation from their executive positions was appropriate for all the major shareholders, he intended to do so unilaterally and that he had no intention at that time of resuming executive responsibility for the company. Not surprisingly, the character of the proposal in the strategic paper and the purpose underlying the plaintiff's resignation were the subject of significant controversy in the trial. Before dealing with the submissions of the parties on this point, I should complete a brief account of the material evidence. 16 Mr Turner who, of course, was taking over as managing director, gave evidence which I regarded as very significant in interpreting the true import of the Strategic Plan in its contemporaneous context. Mr Turner said that he discussed the Plan with the plaintiff at the time. He said that it represented the structure that the plaintiff wished to see operating whilst he was away. He was concerned lest the other major shareholders, who had executive positions, would get in Mr Turner's way and frustrate what he saw was an important management plan (which I do not think it necessary to set out). In substance, Mr Turner thought that the plan was a management model designed to avoid the situation where Messrs Parisi and del Bianco could impede his executive role. Mr Turner said that the plan did not advert to the possibility of the plaintiff's return to an executive role and it was hoped that the proposal would induce the other two shareholders to leave, in part, by receiving substantial sums. Mr Turner pointed out that at about this time the other two shareholders were agitating to "take some money out" of the company. The open-ended departure of the major shareholders from executive control together with the financial inducements including employment as consultants, was designed to secure a management structure which would work according to the plaintiff's design as stated in the Strategic Plan without any impediments being put in place by the other shareholders in the plaintiff's absence. Mr Turner regarded the Strategic Plan as a blueprint for the future development of the business as the plaintiff saw it but (and this is crucial to properly understanding it) it was contingent upon all major shareholders resigning their executive positions. Mr Turner said, in effect, that the plaintiff's own plans were affected by the absence of the resignations of the other two major shareholders from executive positions. I should mention (for later reference) that Mr Turner's evidence was that, so far as the plaintiff was concerned, he regarded the consultancy fees (which were paid) as being significantly less than market rate. 17 Mr Turner's evidence was that the plaintiff's resignation was a planned move which followed his (Mr Turner's) appointment twelve years previously as deputy managing director and appointment as managing director in 1987 on the plaintiff's departure. I accept as accurate Mr Turner's evidence that - "Mr Alves was the major shareholder of this business and its driving force. It never entered my contemplation that he was going to walk away from this business and allow people to manage it and not to have a lifeline whereby he could come back. And in fact we did discuss the fact that he would look for new business." 18 Mr Turner said that the plaintiff went to London for two reasons. The first was to look for opportunities to expand the business (as had been discussed on a number of previous occasions) but particularly to acquire licences and technology which would sustain business growth. Mr Turner said that the plaintiff was adept at uncovering marketing opportunities and that, whilst he was in the United Kingdom, he probably uncovered four or five significant markets. Secondly (and Mr Turner described this as equally important), "the other reason was, as he said, so we didn't have two cockies in the same cage". Mr Turner said that it was planned that the plaintiff should be absent for about twelve months representing the business in Europe, for the reasons I have described. He said that there were no specific discussions about what would happen on the plaintiff's return, although he acknowledged that the plaintiff could have returned as managing director and replace Mr Turner in that role. However, it appeared that both Mr Turner and the plaintiff were confident that significant business expansion would follow from the plaintiff's investigations and that this would provide a new role for the plaintiff in the company's affairs. Indeed, this is precisely what happened in the acquisition of Babcock Australia. Mr Turner's evidence was that, although the matter had been left at large, it became clear in the course of negotiations over the purchase of Babcock that the plaintiff was "the right person to come back and drive that". He added, "that organisation [Babcock Australia] had dimensions of business which, frankly, we had no one in the organisation capable of managing". He described it as "basically tailor-made for Manuel [Alves]". Mr Turner said that he reached an explicit understanding with the plaintiff as to his role following Babcock's acquisition and that this understanding was communicated to the other members of the Board of Allco. Mr Turner said that it was agreed that the plaintiff would return to take over Babcock's business, leaving him as chief executive officer of Allco. Although Mr Turner understood the formal arrangement in somewhat different terms to that described by the plaintiff, he always regarded the plaintiff as "the boss and on his return I would clearly report to Mr Alves". He was unaware that the plaintiff had any intention of taking up residence again in Newcastle and managing the Allco Group but he considered that this was unlikely. As to the suggestion that the plaintiff would create a new position of chief executive to manage the business of the two companies, Mr Turner responded that effectively, although not formally, the plaintiff did this. He pointed out that it was always open to the plaintiff to return as governing director or executive chairman but that he was not privy to such a plan. 19 It will be necessary for me to return to the circumstances of the acquisition of Babcock Australia and what happened when the plaintiff returned to Australia. So far as his departure from the board of Allco and his resignation as managing director is concerned, I am satisfied that he did not intend to retire from active involvement in the company's affairs, let alone from full-time business activities although the precise nature of those activities was somewhat undefined. Because of his predominant role (and close relationship with one, if not both, of the other major shareholders) the plaintiff could afford to react to the circumstances as they unfolded and whose direction he was directly influencing. 20 I thought that Mr Turner was a candid and reliable witness and I accept his evidence without hesitation. In the circumstances, I have not found it necessary to set it out in extenso. The defendant has pointed to a number of contemporaneous documents which, on one reading, appear to be inconsistent with the thrust of Mr Turner's evidence concerning the plaintiff's plans. I have carefully considered that material but do not intend in this judgment to analyse it or Mr Turner's responses to it. I am satisfied that nothing in the documentary material should be regarded as contradicting Mr Turner's evidence on this point. The defendant submits that, more probably than not, when the plaintiff resigned from his position as managing director with Allco in early 1987, he intended to retire, at least from full time work. I do not accept this submission. As Mr Fletcher put it - "[As at 1987] … growth was very important to the business. There'd been a lot of effort put into making the Company grow, moving its centre of balance from Newcastle to Sydney. Manuel was intimately involved in that and was very keen to take it further as it continued. He saw himself as taking … Allco/Babcock or Allco as one of Australia's leading engineering contracting businesses that would expand not just nationally but overseas once we got the right in Asia. Q. At that time – that is, in 1987 – what would you say to any suggestion that Dr Alves was going to retire? A. I wouldn't – I think on my knowledge of Manuel that he was not a retiring type. He lived for work. If there was any problem in his view, he solved the problem by working harder. I certainly didn't believe that he would be retiring from the business." I think Mr Fletcher's evidence in this passage reflects the overwhelming likelihood, taking into account the plaintiff's history with Allco, his age and health, his work habits and the challenges and opportunities then clearly perceived to be present by his business associates and senior management of the company into which he had put the best years of his life. The notion that he intended to walk away from it, let alone from full-time business activity, is, to my mind, fanciful. 21 Mrs Alves (whose evidence I accept) also gave evidence supporting that of the plaintiff so far as his future intentions were concerned - "(772) Q. He resigned as managing director; we know that…what did he tell you, if anything, about why he did that and what his future intention was? A. He didn't talk about the future, but I knew – he told me that he wanted to try to expand the company and he wanted to study the market in Europe, in London where we went. So, if possible, if he could buy another company to associate with Allco, it was his dream to make the company bigger and bigger – prosperous because it was already on top, but he still has ambition to go on and on." 22 Indeed, Mrs Alves added that she and her husband bought a house in Sydney in 1989 because he intended to be managing director of Babcock Australia which meant, the company's operations being centred in Sydney, that it was necessary to live here. 23 The plaintiff, like many businessmen in his position, worked very long hours. He thought – and this does not seem to have been controversial – that he worked on average fifty-five hours a week. He also needed to travel very often. He led an active and extremely successful business life. Allco Steel was obviously of enormous personal interest to him and he had played a major, if not the major, role in creating, sustaining and expanding its business. There is no reason to doubt his evidence that he saw that business as expanding – and needing to expand – even more. When the plaintiff moved to London after his resignation as managing director, he returned about four times a year during which time he would meet with, amongst others, Mr Turner. As well, there were frequent written communications between them, Mr Turner, in particular, keeping the plaintiff informed of Allco's business between board meetings. The plaintiff made regular monthly reports on particular enquiries concerning the acquisition of technology for Allco. A volume of written material was tendered covering this period. For present purposes, it is sufficient to state that it demonstrates the plaintiff's very significant involvement with Allco's business both strategically and as to technical matters of considerable complexity. It presents a convincing picture of the plaintiff's major role in Allco entirely at odds with the defendant's case that he had, in substance, retired from substantial involvement in its affairs. Even having regard only to the plaintiff's history with and involvement in the company, it is difficult to accept that he would, as it were, and as is essentially submitted by the defendant, not only simply have decided to leave but also to substantially retire from active business life. (His hope that his partners would do so was soon shown to be also unreal.) Such an action would be so eccentric as to be unlikely in the extreme. Accordingly, I consider that the accounts of the circumstances of and the reasons for the plaintiff's departure in February 1987 from formal office given by the plaintiff and Mr Turner are, in substance, true. This conclusion depends not only on my assessment of them as witnesses but also on a common sense view of the logic of events. 24 As I have mentioned, whilst the plaintiff was in London, Babcock Australia, a subsidiary of a major English engineering and fabrication company, became available for purchase. The acquisition appeared advantageous because Babcock Australia offered Allco new design skills for the cement, power and chemical industries, thus permitting expansion of Allco's turnkey business. This, in substance, was a business model in which the company sought to tender for the entire provision of a particular works or installation from design through to final completion. It was the plaintiff's evidence that he intended, when he came back to Australia following the purchase of Babcock, to be chief executive of the conglomerate comprising both Babcock and Allco (the Allco Group), leaving Mr Turner as I understand it, with executive control of Allco. The plaintiff agreed that there had been no written or oral communications between him and any of the other directors about his returning to Australia to take the Group CEO role, even though he returned to Australia for board meetings from time to time. He pointed out, however, that in his negotiations with Babcock's parent company in England he undertook that he would become chief executive of the joint business and that it was this undertaking which (in part) induced that company to take 20% equity in Allco Group in exchange for Babcock Australia – for obvious reasons an advantageous arrangement. Although the plaintiff returned to Australia initially as a consultant, Mr Turner said that it had already been arranged that he would take the position of managing director of Babcock Australia, retaining his position on the board of Allco Limited, which was the controlling company. By virtue of his deputy chairmanship of Allco, Mr Turner thought that he would have overall supervision of the Group but not hands-on control of Allco, which was a mature business that did not need his direction; the plaintiff would, however, have hands-on control of Babcock Australia. Mr Turner expected, together with the plaintiff, that the driving force in the Group so far as business expansion was concerned, would be Babcock Australia. At the time that the plaintiff returned, there was no managing director of Babcock Australia, executive responsibility being with Mr Robert Fletcher who reported to Mr Turner. 25 The plaintiff said that, even before the purchase of Babcock Australia was contemplated, he thought that he needed to return to Australia to take back executive control of Allco from Mr Turner because of an adverse view he had formed of some aspects of Mr Turner's management. Considering the whole of the circumstances as the evidence discloses it to be, I think that this evidence was somewhat overstated. I accept, however, that the plaintiff had indeed contemplated return in the short term and that he intended to resume overall control but whether this meant a restoration of the previous situation when he was managing director is doubtful: more probably, this would have depended on unfolding events. To be fair to Mr Turner, I think I should say that the plaintiff's concern may not have meant much more than a perception that Mr Turner's management style was in some respects significantly different from the plaintiff's. I think that the plaintiff found it difficult to cope with the notion that he was not directly in charge of the company's affairs. Thus, despite the plaintiff's views about this matter, during the course of 1987 it is not necessarily the case that, had the Babcock purchase not intervened, he would have actually sought to replace Mr Turner. The plaintiff's position in the company and the status that he had acquired by virtue of his key involvement in its past success both made it difficult for him to step aside and also gave him good reason to believe that he would ultimately have his way if he wished to resume the reins of executive management. But this is not to accept that the position was quite so simple as the plaintiff described it in evidence. I think it highly likely that his recollection has become adjusted by the process of time. In substance, however, I consider that the probabilities are that the plaintiff did expect to develop significant new business and that he saw himself returning in due course to Australia to take charge, in one form or another, of the larger enterprise. 26 In short, I conclude that the plaintiff, although wanting to "move on" as it were, did not intend to retire in any sense. 27 Having regard to the controversy between the parties as to the plaintiff's situation immediately before his operation, it is, I think, useful to set out Mr Turner's view of the company which it was envisaged (with Mr Turner's evident support) the plaintiff would manage. I have taken this brief summary of the position from Mr Turner's evidence, which I accept. The management team at Allco thought that Babcock Australia was significantly under-performing as a result, to a significant degree, of what was regarded as inadequate management. Babcock Australia had been a very substantial company with annual turnover in the 1970s in excess of $100 million, in today's terms equivalent to a turnover in excess of $600 million. During due diligence, Allco management noticed that Babcock Australia had two extremely good years followed by two very poor years. It was this latter factor which had induced the United Kingdom parent company to sell its subsidiary for a substantial equity position in the new conglomerate, an obvious expression of confidence in the business acumen of Allco management and the plaintiff. Allco management considered that the business was "very good" but very substantial changes in management and business culture were necessary to make a success of it. Mr Turner's view was that the plaintiff was particularly suited to achieve this. As I have mentioned, Babcock Australia had its own capability for designing and engineering, which distinguished its character as a business from that of Allco. That Mr Turner and, I think I am entitled to infer, the other members of the board (with the possible exception of Mr Parisi) thought that the plaintiff was capable of managing this company back into success is a most significant tribute to his talents as a businessman. Mr Turner's cross-examination covered all these matters. However, none of the points made in cross-examination, to my mind, significantly qualify the substance of the evidence which I have summarised above and which I accept. 28 Mr Fletcher was in executive control of Babcock Australia and thus held a senior position within the Allco Group. His evidence was unequivocal that he expected that, when the plaintiff returned from the United Kingdom, he would be reporting to the plaintiff, although the precise executive position that the plaintiff was to fill was uncertain. I am satisfied that, having regard to the plaintiff's dominating position within the company, not only as a major shareholder with practical control of the company through his close relationship with Mr del Bianco, but also because of his pre-eminent management and marketing skills, the plaintiff would have returned from the United Kingdom to control, in one position or another, the Allco business although I accept that he would focus on the challenges and opportunities presented by the acquisition of Babcock Australia. Mr Fletcher said, that when he saw the plaintiff after he first returned to Australia in April 1988 before his initial surgery, that he was very well and looking forward to his work as chief executive of Babcock Australia. After Babcock Australia was acquired, its offices were refurbished. Amongst other things, it was planned (as I mentioned) to have Mr Fletcher's and the plaintiff's offices adjoining. Initially, their offices were to be on the top floor but, because the plaintiff thought that senior management "needed to be closer to the action and who came in the door" they were moved to the ground floor. This was arranged by communications between London and Australia whilst the plaintiff and Mr Fletcher were still abroad negotiating the purchase. This evidence indicates, not only that the plaintiff was to play a leading role in Babcock Australia, but also that he made decisions even as to such apparently minor matters as where the offices of senior management were to be situated which, it seems, were accepted without demur and made well before his return to Australia. During the brief five week period after the plaintiff's return from the UK and his disastrous operation, there were matters to which he needed to attend in Newcastle before moving to Sydney. His involvement both with Allco and with Babcock Australia was therefore cut short. 29 Although the plaintiff travelled in Europe during the period after his resignation as managing director of Allco until his return to Australia following the purchase of Babcock Australia, he lived in London during that time with his wife. In 1987, the plaintiff returned to Australia for the June and September board meetings and also for the January 1988 Board meeting. He had hitherto been in excellent health. Indeed, he described himself as "a health fanatic". He played golf once or twice a week although, as I understand it, only, or at least, mainly, in summer. 30 It is self evident that, in order to undertake the very considerable responsibilities of managing director of Allco, together with his other activities, the plaintiff must indeed have been fit and well, both physically and mentally. However, during 1987 he developed what he described as a problem in his liver, suffering severe abdominal pain during his visit to Australia for the September 1987 board meeting. He said that he felt better and returned to London. When he again returned to Australia in January 1988 the pain returned somewhat more severely and the plaintiff was unable to work for perhaps up to a week or so. It is undisputed that it was necessary to remove the plaintiff's gall bladder (a cholecystectomy), which was performed on 2 June 1988. This is usually an unremarkable operation but, regrettably, was conducted negligently by the surgeon. I need to refer in due course to the plaintiff's own evidence about the effects of this upon him but a useful starting point is the evidence of Professor Ham into whose care in the gastrointestinal surgical unit at Prince of Wales Hospital, Sydney, the plaintiff was admitted on 18 June 1988, having been referred by Dr David Walker of the Mater Hospital, Newcastle, to which hospital the plaintiff had been transferred following his operation by Dr Patel. Professor Ham notes that the plaintiff had developed abdominal pain and fever following the operation and was referred to the Mater Hospital with signs of peritonitis. Investigations there revealed a large sub-hepatic collection of fluid. A further laparotomy was performed and drains inserted. Later, a further two drains were inserted, continuing to drain large amounts of bile, in the order of a litre a day. 31 On admission to the Prince of Wales Hospital, Professor Ham noted that the plaintiff was mildly jaundiced, did not look well and had lost weight. He also complained of abdominal pain. X-rays showed, amongst other things, that Dr Patel had placed three surgical clips across the common bile duct just above the duodenum, which completely obstructed it. This was confirmed on surgery carried out on 17 June 1988 by Professor Ham. There was also a second injury to the bile ducts which, as it happened, had a profound effect on the plaintiff's subsequent clinical course. Leakage from this region was noted on a cholangiogram carried out after arrival at the Prince of Wales Hospital. This injury above the completely obstructed common bile duct resulted in leakage of large amount of bile into the peritoneal cavity, associated with excruciating pain. Severe peritonitis ensued, including significant inflammation in the region of the bile ducts, which made subsequent repair of the latter much more difficult. In addition, the leakage resulted in the complete decompression of the biliary system above the common bile duct obstruction (that is, the common hepatic duct was collapsed) and its small size also made the repair difficult. It is agreed that the placement by the defendant of the three surgical clips across the common bile duct was negligent and could only be explained by a failure to accurately identify the relevant anatomy, which can sometimes be difficult in operations of this kind. If, however, accurate identification of the anatomy was difficult or impossible, then the procedure should not have been performed and other options should have been chosen. On the other hand, if the anatomy could have been clearly established, then it was negligent to have placed the clips across the common bile duct. The damage to the small bile duct to which I have referred may have had little or no clinical relevance had it not been for the complete obstruction of the common bile duct. 32 It was clear after assessment on the plaintiff's admission to the Prince of Wales Hospital, that a further operation was essential with a view to reconstructing the extra-hepatic biliary tract which had been damaged. The operation would be a difficult one; it was recognised that later admissions would almost certainly be required and further surgery would also be necessary in due course. The reconstruction was necessary to be done in two phases for reasons which it is unnecessary to set out. Part of the reconstruction was the creation of a so-called "roux-en-Y" loop of a little more than 60 centimetres in length going from the bile duct to the small bowel. It is accepted that the procedures performed by Professor Ham were essential to deal with the very serious, indeed life-threatening, condition in which the plaintiff found himself as a result of Dr Patel's operation. However, the repair undertaken by Professor Ham could not (and was not designed to) entirely restore the integrity of the plaintiff's biliary tract. Indeed, the repair itself, though essential, was likely to cause problems of a greater or lesser extent in the future and did so. In the result, the plaintiff never recovered his former good health. Medically speaking, the plaintiff's post-operative course after 20 June 1988 was without significant complications but, as expected, he continued to drain bile from the site of previous leakage. This gradually diminished, the drain was finally removed on 13 July 1988 and he was then discharged home. 33 There is no question but that this whole experience was horrific from the plaintiff's point of view. It is uncontroversial that his pain and distress were almost unbearable. Even now, the plaintiff becomes distraught when being asked to recall his circumstances following the operation and was markedly distressed when giving evidence about it. I have no doubt that this experience has left lasting scars, not only physical but also in the plaintiff's psyche. He still has distressing flashbacks. One of the number of incidents which he recalled with particular pain and, I think, considerable humiliation, was the necessity to submit to the manual evacuation of his bowel by one of the nursing staff to relieve constipation brought about his condition. The plaintiff describes the sense of helplessness and despair preceding the operation performed on 20 June as being "the most demoralising, the most soul destructive experiences..." I have no doubt that this is an accurate description of what he felt at the time and that these experiences have continued their malign influence on his life to the present time although, as I understand it, the worst, in the sense of physical distress, was over after he was discharged on 13 July 1988. The plaintiff then returned to his home in Newcastle accompanied by his wife. He was still, however, suffering from what he described (and I accept) as "terrible pain". His release from hospital was, unfortunately, of short duration. On 17 July 1988, he was readmitted with fever and low abdominal pain and an ultrasound examination demonstrated free peritoneal fluid. He was discharged on 28 July but again readmitted on 5 August with fever, rigors, abdominal and shoulder pain. He was discharged on 10 August. On 26 August the plaintiff was returned to hospital with a history of abdominal pain for 4 to 5 days with associated fever and rigors for a day and constipation. He was discharged on 3 September. On 16 November the plaintiff was readmitted at the Prince of Wales Hospital with a two week history of intermittent fever and rigors and three days of generalised pruritus (itching), together with jaundice, abdominal and shoulder tip pain and constipation; he was discharged on 23 November 1988. Generally speaking, the crises giving rise to these admissions were symptoms of acute cholangitis. It was necessary to treat each episode with antibiotics which proved effective, at least in the short term. The symptoms indicated a partial biliary obstruction. I accept that they were associated with debilitation, considerable pain and discomfort, not to speak of anxiety and frustration. 34 Cholangitis is an infection in the bile ducts, in most situations involving partial or complete obstruction, often resulting in jaundice, itching (which may be severe) and possibly a number of other systemic symptoms including blood stream infection. The itching occurs all over the body as a result of elevated levels in the blood of certain substances which, in a healthy person, are (as I understand it) removed by the liver. I do not doubt that, though it may be described as itching, it was painful and distressing. The plaintiff complained that on a number of occasions he also suffered from rigors, which is the shaking accompanying very high fevers. As the bile is necessary for digestive functions, disturbance of the bile ducts results in digestive problems as well. As well, the plaintiff suffered – and continues to suffer – from flatulence, wind pain, excessive burping, constipation and general abdominal upset. 35 Professor Ham continued to review the plaintiff, who was suffering from relatively frequent attacks of cholangitis of greater or lesser severity and it became clear that further reconstructive surgery would, indeed, be necessary. The full reconstruction, which was a major procedure, was delayed until the obstruction to the bile duct induced its enlargement. A result of this delay, of course, was the severe pain and discomfort suffered by the patient whilst this dilation developed sufficiently for optimum results. 36 A number of reports from Professor Ham during 1988 indicate a picture of generally improving health with episodic crises. Whilst, in a general way, I accept this as an accurate picture from Professor Ham's point of view, I do think that it very significantly understates the actual suffering affecting the plaintiff during this time. His physical appearance belied his actual state of health, although he had started to put on weight and there was reference to an increased appetite, and I do not think that he was given to complaint at this time. He had developed painful frozen shoulders whilst in hospital, most likely the result of enforced inactivity and this was giving him continuing problems through 1988 in respect of which he received physiotherapy, although with only slight utility it seems. The repeated attacks of cholangitis, especially when they were associated with fever, were extremely painful. I do not doubt the correctness of Professor Ham's description in January 1989 of the plaintiff as being "obviously much better than he was". Given the state he was in but a few months before, this is scarcely a description of radiant good health. Continuing significant digestive and related problems are plainly reflected in the Doctor's somewhat clinical observation that it "is obvious that he has some degree of biliary obstruction". The plaintiff, however, was by no means an invalid, expressing the hope to Professor Ham at this time that he would be able to travel overseas for some weeks late in March of that year. Professor Ham's response was, I think, cautious: "I think he may well be able to do this". Professor Ham reported, following an examination of the plaintiff on 7 March 1989, that the plaintiff had reported intermittent episodes of fever and other abdominal discomfort during the previous two months and that these episodes did not always respond well to antibiotics. He noted that this weight had slightly decreased and also that the plaintiff had itching which was "his most significant symptom". This statement was not so much the opinion that this was the plaintiff's only discomfort but rather it was significant because it indicated that he was developing an obstruction of the anastomosis, which indicated that further corrective surgery may be necessary. Waiting for the bile duct to dilate naturally to permit optimum reconstruction is good practice but from the plaintiff's point of view it was, as Professor Ham described it, "very unpleasant". An ultrasound showed minimal dilatation of the ducts in both lobes of the liver but no evidence of major biliary obstruction. The plaintiff indicated that he had postponed his plans to go to Europe until late April and Professor Ham thought "this is wise". He repeated his advice that a full reconstruction of the plaintiff's biliary anastomosis was necessary but this could not be done at that stage. As is to be expected, this report (as indeed all the reports of Professor Ham) attempts to describe in clinical language both the patient and his history. I am quite satisfied that the phrase "upper abdominal discomfort", whilst perfectly adequate for the Professor's purposes, does not describe the extent of the considerable suffering actually undergone by the plaintiff during these episodes. Professor Ham then saw the plaintiff in early April and noted considerable improvement in his symptoms, a result largely brought about by a change of medication. He noted also that the plaintiff's liver function tests were markedly improved. The plaintiff confirmed that he intended to go abroad at the end of the month for about four or five weeks. 37 Towards the end of June 1989, Dr J A Dickinson, in practice with Dr H Rose who was the plaintiff's usual general practitioner, wrote to Professor Ham that the plaintiff had "really done remarkably well" and noted that during his overseas trip he had "no problems at all" although after his return he suffered an attack of rigors which settled down after only a few hours. As I have pointed out, this is a symptom of high fever and, accordingly, the doctor suggested to the plaintiff that when these episodes occurred and lasted for more than twenty-four hours, he should take antibiotic medication. Dr Dickinson questioned whether the foreshadowed reconstructive surgery was then necessary as the plaintiff "appears to be doing very well" and sought Professor Ham's opinion about the matter. A few weeks after this, the plaintiff was examined by Professor Ham who thought that "he seemed extremely well". However, he was still of the view that a further operation would certainly be necessary in due course. In early December 1989, Professor Ham noted a history that one further attack of cholangitis had occurred since July which was, he said, "obviously quite severe" although he had returned to "normal" as at the date of the examination. However, Professor Ham reported "some tenderness in the right upper quadrant of the abdomen". Two weeks later, Professor Ham reported, on a further attendance by the plaintiff, that "he is certainly worse than he was" with a recent ultrasound demonstrating more duct dilatation. Accordingly, he thought that it was time to undertake the operation which had previously been envisaged and arrangements were made for this to occur in early January of the following year. Accordingly, on 4 January 1990, reconstruction of the anastomosis was performed together with excision of the stricture of the previous hepato-jejunostomy and the plaintiff was discharged a week later and returned home. 38 Professor Ham's report stated, somewhat contrastingly with his previous brief reports to Dr Rose that "in recent months [the plaintiff] had experienced increasing problems with episodes of cholangitis and cholestatic liver function tests". Professor Ham saw him at the end of January for a follow-up examination and noted that the plaintiff "has been pretty well since his discharge, apart from some epigastric (ie in the upper central abdomen) discomfort, together with excessive wind and burping and occasional constipation". Professor Ham noted, on the positive side, that the plaintiff's appetite was good and his weight had started to increase. On examination there was some tenderness in the epigastrium although the wound was soundly healed. Professor Ham thought that the symptoms would subside over the next week or two. 39 So far as doctors' records are concerned, over the period I have been just discussing, the plaintiff was seen for the first time by Dr Rose on 17 October 1988, when he had complained of what was described by the doctor as "a mild recurrent cholangitis" which, however, had given rise to a fever. The plaintiff also complained of a painful right shoulder for which, a few days later, the doctor prescribed Naprosyn, describing the condition as a "shoulder cuff syndrome". I accept the plaintiff's evidence that this had been chronic since his first hospitalisation. About two weeks later, the doctor noted that the plaintiff had a further episode of cholangitis including fever and abdominal discomfort which was then settling. Two days later, however, the plaintiff was still suffering from fever and night sweats with some weight loss being noted. Two weeks later, as I have noted, he was admitted to hospital. Itching had been added to his symptoms, medication was needed for night sedation and antibiotics were continued. On 30 December 1988, the plaintiff complained of further abdominal pain at night, but without fever, and was told to take antibiotics if a fever developed. In mid-February 1989, the plaintiff reported to Dr Rose that his abdominal pain was slowly resolving and he was then putting on weight and starting to exercise more. He expressed a desire to go overseas in April, which the doctor thought would be all right. However, a month later, the plaintiff complained that he had not been well and had suffered continuing fever with itching. It appeared that medication then prescribed had improved his situation and, by the end of April, the plaintiff told Dr Rose that he had put on weight, was active and energetic and felt "very good". However, this did not last long as sometime later (probably a week or so) a home visit was necessary with the plaintiff complaining of episodes of fever for the previous five days and pain in his upper abdomen consistent with cholangitis. Antibiotic and pain relief medication was prescribed. Some time after this, the plaintiff went overseas with no significant symptoms. However, three days after his return, he suffered from fever and sweats with aches and pains. It was agreed that he should take Noroxin for his fever if rigors lasted over twenty-four hours. A little over a week later the plaintiff complained again of fever and abdominal pains and was prescribed antibiotic. 40 The doctor did not need to be called, it appears, for another six months when, in early December, the plaintiff suffered high fever with rigors although with "no real abdominal tenderness". Two weeks later, the doctor noted jaundice and recurrent fever. The plaintiff expressed to Dr Rose his anxiety about his ability to work and the extent to which the illness was interfering with his life. I will return to this matter shortly, but it is obvious that the plaintiff's recurrent, indeed almost chronic, condition with associated anxiety and stress, was adversely affecting other aspects of his life to a significant degree. Two weeks later the doctor noted again the plaintiff suffering a further episode of fever together with severe pain in both thighs on mild exercise. After seeing the plaintiff following his operation in the latter half of January 1990, he did not see him again until early November of that year. The doctor noted, however, that he had been suffering from cholangitis during the year requiring further referral to Professor Ham although it appeared that he had made a full recovery. The doctor noted that the plaintiff was "well now" with increased weight. 41 I accept (and it does not seem to be seriously disputed) that attacks of cholangitis are extremely painful and debilitating. There is some (I consider insignificant) dispute between Professor Ham on the one hand called by the plaintiff and Dr Yeo on the other called by the defendant as to the precise character of a diagnosis of cholangitis. It is unnecessary, however, for me to resolve this. The defendant did not submit that I ought not rely on Professor Ham and it seems to me, especially in light of the fact that the plaintiff has continued to be his patient since the initial operation in the Prince of Wales Hospital, that I should give considerable weight to his evidence. Professor Ham considered that the plaintiff suffered from episodes of cholangitis over the whole of the period between his initial operation and the present time. Following the operation on 4 January 1990, he thought that, although the attacks could last hours or days and sometimes even as long as a week, they were not as severe as the attacks suffered before that procedure and responded fairly rapidly to antibiotics although not all attacks required antibiotics. I readily accept that, considered as a whole, the attacks of cholangitis suffered by the plaintiff after January 1990 were not quite so intensely painful nor so serious as those that had occurred before but I have no doubt that they were, nevertheless, very painful, debilitating and distressing. Professor Ham explained that, as occurred here, where a section of the bowel is taken to be used as a loop to connect with the biliary system, symptoms such as those described by the plaintiff are recognised sequelae of the procedure. A significant minority of patients who have reconstructive surgery such as that undergone by the plaintiff suffer from such attacks. It is believed that a likely explanation is that the loop, or piece of bowel, does not empty properly. This, together with the colonisation of bacteria, causes inflammation, pain, fever and infection. Other factors (which I do not think need to be stated here) may also contribute to this dysfunction. The combination of these factors might well result in abdominal symptoms varying from a mere feeling of discomfort or nausea up to very severe pain and fevers. The plaintiff complained also of pain elsewhere in his body during severe attacks. Whatever might be the explanation for the episodes of severe bowel symptoms (to use a neutral description) after January 1990, there is no doubt that, up to the operation which then occurred, the plaintiff had suffered severe cholangitis. I will need to deal with the post-January 1990 situation in a little detail later, but I regard it as significant that the plaintiff himself considered, as did Professor Ham, that the similar symptoms suffered by him after January 1990 – though perhaps less intensely – were likely to have arisen from essentially the same cause, namely the insult to his biliary system. Although it is true that Professor Ham did not say, in terms, that this was more probably than not the case, I have no doubt that this was the thrust of his evidence and is the best explanation for the plaintiff's symptomatology. Dr Yeo would not, it appears, diagnose cholangitis in the absence of jaundice; however, he accepted that the retention of food and build up of bacteria in the roux loop might well cause symptoms though, in the absence of nausea or jaundice he would not describe them as cholangitis. Subject to these qualifications, which I do not think it important for present purposes, Dr Yeo agreed with Professor Ham's evidence. Dr Yeo raised the possibility, perhaps even the likelihood, that some of the plaintiff's attacks were urinary tract infections or caused by some other condition than the biliary problem but he was careful to qualify these general observations by pointing out that he had not examined the plaintiff on the occasions of these attacks and it is clear that he deferred to Professor Ham as the treating doctor. In the result, I am satisfied that, more probably than not, although from time to time a urinary tract infection may have caused problems for the plaintiff, the disabling attacks which he described were the result of the injury to his biliary system caused by the defendant's negligent operation. 42 It is now necessary to deal with the other evidence as to the plaintiff's situation in this period, namely between June 1988 and the early part of 1990. The business problems that occurred at this time and the plaintiff's practical inability to contribute to their resolution (whether or not he could have effectively done so had he been healthy) was a significant factor in his presentation in this period and subsequently, in at least two respects. The first is that I think he was so anxious to get back to work and return to good health and his pre-surgery level of effectiveness that he tended on the one hand to discount the extent of his problems and minimise his difficulties and, on the other hand, to exaggerate the extent of good health when his symptoms receded – until resurgence of symptoms and events themselves ruthlessly forced him to accept his true situation. To paraphrase Dr Johnson's well-known epigram (Boswell's Life of Johnson, vol ii, p126, 1770), the triumph of his hopes over his experience, though hard won and (more or less convincingly) surviving for some years, was to prove temporary. The second is that, when this happened, he suffered a serious blow to his self-confidence; despair and depression became endemic though mostly controlled. Inappropriate anger, fuelled by frustration, caused a crisis in his marriage and surfaced in his business dealings. He was not helpless, however, and, no doubt, from time to time, his strength of will, together with his accumulated experience, enabled him to function with apparent effectiveness but I am persuaded that this was little more than shadow boxing or the repetition of old routines, no doubt sound as far as they went but only striking the target by happenstance. I am convinced that the plaintiff never in this period or since even approximately approached the level of his pre-surgery business drive and acumen, quite apart from resolving continuing psychological and physical health problems. 43 I have mentioned Mr Fletcher's evidence as to his understanding of what role the plaintiff was to play in the affairs of Babcock Australia after his return from England in April 1988. In Mr Turner's view, the plaintiff's management of Babcock Australia, in the context of Allco's business as a whole was critical to its success. It is clear that this involved a major challenge and that management and entrepeneurial expertise of a very high order was essential to the success of the venture. In his opinion, Allco did not have the requisite management strength in the absence of the plaintiff to undertake this task. By any standards, this was a job that required not only skills and experience but physical and mental vitality of the very highest order. It is clear from the evidence of both Mr Fletcher and Mr Turner (whose opinion as to this matter I accept) that the plaintiff was well able to undertake this task before his operation but that, after it, he could not. According to Mr Fletcher, the plaintiff occasionally came into the office and would work on a tender but would rarely come in for a full day. He described him as very much a changed man. He was not well and this showed, Mr Fletcher thought, in the way he did his business - "He didn't have the persistence. Again, if we were [considering] a large tender, he was always a very challenging man as far as far as, 'Have we looked at this? Have we thought of that?' A lot of that was gone. The innovations that he used to come up with weren't there. He was not a well man, and I think it showed in the way he did his business … it made him less valuable to us because of that." 44 By the time of trial, in March 2001, Mr Fletcher did not recall any specific occasion in which he had seen the plaintiff at all in 1990 but, although his evidence is unclear, I think that he did see him from time to time. I have no doubt that Mr Fletcher's description of the plaintiff's markedly changed character was evident to him from the first occasion (whenever it was) that he saw him after mid-1988 and that it never altered. Although there is no doubt a psychological element in this change in the plaintiff (and I will deal with the evidence of this in due course) I do not think it is beyond the ordinary experience of a lay person (such as myself in this context) to understand that the plaintiff had been through a terrifying and massively painful experience which had commenced, as it were, explosively on 2 June 1988 in Newcastle Hospital and which had carried him along in a horrifying sequence of events, the shockwaves of which in terms of pain and debilitation continued on with only occasional remission until the operation of 4 January 1990, a period of eighteen months. I do not find it difficult to accept the plaintiff's evidence of the effect on his psyche of these events and that his ability to concentrate and that the energy both of body and mind was seriously affected, although it was not for some time that he obtained the insight that his abilities had been seriously compromised. 45 Mr Turner saw the plaintiff frequently after the operation and before the reconstructive surgery at the beginning of 1990, both at work and at his home in Newcastle. He said that, before his surgery, the plaintiff had "an extremely good memory" with an ability "to get across all aspects of the business and also retain a great deal of information and detail", describing this as "quite legendary". However, after the surgery, he thought the plaintiff had "lost the plot". Mr Turner said that the plaintiff had become erratic with a generally heightened irritability, being irrationally suspicious, "almost paranoid" about the motives and behaviour of one of his co-shareholders and generally more distrustful. His ability to deal with complexity was adversely affected. He lacked decisiveness and "on a number of the dimensions that he was outstanding, he became less than ordinary" although from time to time "there were flashes of what was the vision before". At board meetings he contributed much less than earlier and he became rather backward than forward looking. Mr Turner recalled that the plaintiff's physical presentation was also very different. He said that he had clearly lost weight and was obviously suffering and frequently tired. 46 At the end of October 1989, sixty percent of the equity in Allco was sold to EPT, a subsidiary of ASEA Brown Boveri Limited, in substance, to alleviate working capital concerns that had resulted from a very substantial increase in growth, which put great pressure on Allco's working capital. This crisis in the affairs of the Allco Group was not caused by or contributed to (as the case was litigated before me) by the plaintiff's inability to involve himself effectively in the Group's affairs but arose out of matters beyond his control. His need to acquire other work did not result from his ill-health and the impact of Allco's problems on his future employment must therefore be distinguished from the consequences of ill-health. Mr Turner's evidence was that, by this time, it was clear that the plaintiff was neither mentally nor physically capable of undertaking the responsibilities of being managing director of a substantial company, let alone Allco or Babcock Australia. 47 When EPT acquired the remaining forty percent of shares in Allco in May 1990, the plaintiff's final link with Allco was cut, although there was still, as I understand the evidence, some further consulting work. Precisely what the plaintiff's role in terms of direct responsibility was in this respect is uncertain. However, it appears that he could still do some useful work of a limited kind. 48 Taking the period between the June operation and that of January 1990, I am satisfied, in general terms, that the plaintiff made genuine attempts to return to his active role in the affairs of Allco, in particular being involved in re-developing Babcock Australia, attending board meetings and at Babcock Australia's offices. However, I am satisfied that this was at a level of competence much below that which he had previously demonstrated. I also accept that he perceived a change in attitude towards him, especially on the part of his co-shareholders, Mr del Bianco and Mr Parisi. The plaintiff said, and I accept, that he did not appreciate the extent to which he had been adversely affected by his illness. He undertook consulting work during this period, indeed, well into 1990 but I the level of his actual performance was very much reduced and very likely reflected only his erstwhile dominant position; the company was not getting value for money. 49 Since the sale of Allco to EPT, completed in May 1990, the plaintiff has attempted a variety of investments and work. Of course, these activities occurred in the context of his state of health at the time. The defendant's case is, in substance, that although the plaintiff's health had been to some extent compromised, he has exaggerated its adverse effects and that, overall, he has been able to undertake significant business activity, accompanied by a real degree of success. It was also suggested by the defendant that the plaintiff's somewhat idiosyncratic business style may have impacted negatively on his chances of obtaining senior or chief executive positions where he was not an owner or significant shareholder of the employing company, even had he been well. This, together with the continuation of the desire for semi-retirement (if not full retirement) said to be evidenced by the plaintiff's resignation from Allco in early 1987 and his move to London, rather than health problems, was submitted to be the explanation for the plaintiff's failure to find employment at a level equivalent to that which he had with Allco. This submission should not be accepted, especially having regard to Mr Turner's and Mr Fletcher's detailed evidence of the plaintiff's capacities. 50 It was also submitted that Allco was not a profitable business by reference to return on capital and that this would also hinder the plaintiff in seeking alternative employment. I accept Mr Turner's evidence, however, that Allco's profit was acceptable especially in light of the need, not so much to maximise profits, but to expand the business. He said that not only was Allco's profitability within its industry quite acceptable but that the acquisition of Babcock Australia had added "immense value to the business". This also puts in context, I think, the importance of the plaintiff's intended role on his return from the United Kingdom. 51 On the other hand, the plaintiff's case is that he has had continuing problems with his health, varying in intensity from time to time but, overall, causing mental and physical debility, which has significantly affected his ability to earn an income. Certainly, the plaintiff has involved himself in significant business activity over this period and it will be necessary for me to deal with this aspect of the case in due course. I intend, however, to firstly state my findings concerning his health. 52 Before dealing with the plaintiff's evidence and that of his family about his health issues, it is convenient to summarise the evidence of his general practitioner, Dr Rose, who gave evidence and whose clinical notes were tendered. I thought Dr Rose was a thoughtful and candid witness. As it happened, he made a most perceptive observation at the outset of his evidence which, I think, summed up in two sentences the plaintiff's situation. Speaking of the plaintiff when he first saw him in late 1989, and referring to his anxiety which, in retrospect, may well have been pathological depression, noting that he had been very sick and had required multiple surgery, Dr Rose commented: "He survived a lot of what he described as very severe pain. So he certainly had a lot of scars both in his abdomen and his soul, I'd say". I have mentioned Dr Rose's retrospective view about the plaintiff that he may well have had pathological depression at this time. It seems clear that Dr Rose, as the occasion for viewing his patient's history as a whole arose (out of the litigation) felt that he had underestimated the psychological impact of the plaintiff's physical condition. He made the following observation - "Manuel presents himself very well. He's a tall man, a handsome man, with obviously a strong sense of pride and he takes care of his appearance, so that he is somewhat deceiving in trying to assess his emotional state. I don't know if its ethnic or not, but he probably doesn't present his feelings as readily as many of my patients would. I suppose in many ways he's a good deal socially superior to many of the patients I have, so perhaps that might in some ways colour one's judgment and interfere with one's ability to assess how he was feeling at the time." 53 When the plaintiff gave evidence about his health since the operation, he was often and obviously upset. This marked contrast with Dr Rose's description is, I think, cogent evidence of the powerful and destructive effects of long-term chronic illness. Dr Rose's view was, in substance, that the plaintiff tended to significantly understate the extent of his symptoms, a realisation that only came to the doctor relatively late in the piece. In this context it is, I think, relevant to note that the doctor has a significant practice in palliative care. The doctor said that the plaintiff was probably "a deal more ill than I imagined". Dr Rose summed up the plaintiff as not being a patient who volunteered information very readily and needed to be "specifically interrogated about matters". My own impression of the plaintiff was that, in some way, he felt quite humiliated by the fact that he was not well and not functioning well and that this exhibited itself not only in frustration and anger but also in reticence. Dr Rose expressed the same view, stating in a letter to Professor Ham that he thought the plaintiff had a classical depressive illness with associated hypochondriasis which he was satisfied had exhibited itself quite early but which he had not perceived because he was focused on treating particular symptoms. Dr Rose reported in October 2000 that he thought it very likely the plaintiff would suffer from permanent residual disability related to his biliary tract and upper gastro-intestinal changes and the surgery that was necessary for a resolution. In the same report, the doctor said that the plaintiff had "coped very well with what has been quite a distressing illness but I believe that I could not find significant cognitive or memory difficulties on my examinations". The doctor pointed out in his evidence, however, that "significant" (as used in this particular context) was misleading. The doctor's practice comprised care of many demented people. This meant, as he put it, "my judgment of significant dementia is fairly extreme" and that a "significant" difficulty was of the kind that he had seen in these patients. He had not undertaken any formal assessment of the plaintiff's cognitive abilities or memory and thought, indeed, that he had overlooked this aspect of the plaintiff's presentation. In more recent times, as Dr Rose saw the plaintiff more often, he began to recognise that the plaintiff was more ill than the doctor had earlier appreciated. Dr Rose added that his report of October 2000 concerning the absence of "significant cognitive or memory difficulties" was a prognosis for the plaintiff's living skills in the near future (considering that they were satisfactory) and was not intended as an opinion about his cognitive ability compared to what it was in the past. This distinction is important in respect of the task I face in assessing the plaintiff's work capacity following the surgery by comparison to what it was before the surgery. 54 A general survey of Dr Rose's notes shows three attendances in 1991 of which only the last, in November, seems to have been connected with his abdominal surgery, in that the plaintiff complained of intermittent bladder pain and dysuria with nocturnal frequency, apparently dating the condition since his operation of January 1990. The following year the plaintiff saw Dr Rose only once, in May, complaining of episodic fever and right hypochondrium pain lasting some minutes and recovering with weakness for the rest of the day. Dr Rose also noted nocturia and dysuria. 55 The plaintiff saw Dr Rose twice in 1993, in January and July. On the first occasion he reported being well and active with an increase in weight although in July he was reporting occasional bi-monthly transient episodes of colicky pain and wind lasting "minutes" (which I take to be as distinct from hours, not necessarily being very brief). 56 The plaintiff saw Dr Rose only once in 1994, reporting some weight increase and an episode of central chest pain which lasted some days but which appears unrelated to his cholecystectomy. In March 1995, some ten months later, the plaintiff attended once more on Dr Rose, complaining of intermittent epigastric pain over two days with some relief after belching and a low-grade temperature although he had no jaundice. This was likely to have resulted from his biliary problems. It appears that the unpleasant and, indeed, painful symptoms continued for another month or so, with the plaintiff reporting to Dr Rose that although there had been some pain relief on taking the medication prescribed he still had wind and abdominal pain and on 4 May reported a fever with rigors which cleared up over night. 57 In 1996 the plaintiff attended in February, complaining of flatulence and abdominal discomfort with wind and associated pain with occasional febrile episodes of short duration although his health was generally good. He also complained at this time of nocturia but whether this was caused by an incipient prostate problem or was a sequelae of his abdominal surgery is uncertain. Two months later, the plaintiff reported a recurrence of fever, successfully treated with antibiotics. In August and November 1996, further complains were made by the plaintiff to Dr Rose concerning frequency and urgency of micturition. I will return to this problem in due course. 58 During 1997 and 1998, there were further attendances, the focus of which appears to be a bladder problem but the doctor also noted that the plaintiff needed to take Normacol (to assist with bowel motions) continuously and reported episodic severe but transient abdominal pain in the morning if, on morning exercise, he did not burp a lot. In May and August 1998 the plaintiff complained of severe headaches. To exclude possible neurological significance, Dr Rose took a history in which, for the first time, the plaintiff mentioned that his memory was poor. This is the first note of such a complaint in the medical records, but both the plaintiff and other witnesses attest to his difficulties of memory and concentration since the operation. I think that this evidence was reliable, despite the fact that Dr Rose made no note of such a complaint until August 1998. A CT scan conducted shortly after was normal and Dr Rose ascribed the headaches to tension and prescribed medication. I think that it reasonable to infer that the tension suffered by the plaintiff was a result of his ill-health. 59 In January 1999, the plaintiff complained of continuing problems with motility, disturbance of his gastro-intestinal tract with resulting flatulence and wind and episodic right epigastric pain relieved by burping and wind release. It is clear that diet changes were necessary and had, indeed, been made. He was still suffering from fever, although he did not take medication for it unless it persisted for more than twenty-four hours. I infer from the terms of the doctor's clinical note that the plaintiff had conveyed the information that these problems had been long standing with both severe discomfort and debilitative effect but had not always or, indeed, usually resulted in an attendance on the doctor. This inference is supported by the doctor's own evidence about the plaintiff's tendency to minimise his complaints. In April 1999, the plaintiff suffered acute anaphylaxis after taking Ibilex (antibiotic) capsules for fever and it became clear that it was essential he should avoid not only Ibilex but also related antibiotics. These were necessary for continuing attacks described, perhaps loosely, as cholangitis but I am satisfied resulted from the operative procedures of 1988 and 1990. The defendant submitted that the anaphylactic attack was not caused by the plaintiff's biliary problems. In one sense that is true, but his need for and taking of Ibilex did arise from those problems and provides a sufficient causal link to render the defendant liable for the resulting condition, requiring hospitalisation. 60 In January 2000, Dr Rose noted that the plaintiff was depressed and it is clear this occurred in the context of his continuing physical and mental problems. In August 2000, Dr Rose noted a long session with the plaintiff concerning a recent episode of uncontrolled fever. Although its cause was thought by the Doctor to be a probable upper respiratory tract infection, it is notable that it appears that the plaintiff did not attend on Dr Rose for treatment. Notes made in October 2000 refer to continuing gastro-intestinal disturbance, headaches and depression. Similar symptoms were reported in February 2001. 61 Speaking generally of the plaintiff's history, Professor Ham considered that he had a number of episodes of cholangitis between the June 1988 and January 1990 operations with a number of other episodes over the ensuing period until the present time. These latter episodes, as Professor Ham, gathered from the plaintiff, lasted hours or days, sometimes even as long as a week but they did not seem to be as severe as the attacks that he suffered before the January 1990 operation and responded well for the most part to antibiotics, although not all required this medication. Whether or not these later attacks are, strictly speaking, cholangitis is uncertain but to my mind this question does not need to be explored. The crucial matter is whether, accepting the attacks described by the plaintiff occurred, they resulted from the operative procedures to which his biliary and digestive organs were subjected, arising out of the damage caused in the first instance by the defendant's negligence. The plaintiff describes these subsequent attacks as cholangitis and Professor Ham has described them as "mild cholangitis" (which, having regard to the plaintiff's own description of the pain and discomfort suffered during them, which I substantially accept, should be regarded, not so much as a description minimising their seriousness but, rather, showing how extreme is cholangitis strictly so called – from which the plaintiff certainly suffered from time to time). Whilst mindful of the possible diagnostic solecism that I may be committing, I refer to the constellation of symptoms involving epigastric and right upper quadrant pain together with excessive wind associated from time to time with fever as cholangitis. The more severe attacks are associated, according to the plaintiff (which evidence I accept) with widespread pain, fever, headaches, aching and enervation often lasting for a day and sometimes as long as a week or so. Professor Ham said that the reason for these episodes is not absolutely clear, but a significant minority of patients who have undergone bowel reconstruction similar to the plaintiff's do suffer such attacks and thought that they might be caused because the reconstructed loop does not empty properly. Certainly, in the plaintiff's case, delayed emptying from the reconstructed piece of bowel was demonstrated. Moreover, these loops are almost always colonised by bacteria, which might cross the wall of the bowel into the bloodstream and produce episodes of fever which is a typical response to inflammation or infection of one kind or another. Because the reconstructed loop is out of the food stream, the defence mechanisms available to the undamaged bowel may be weakened, although this latter explanation is hypothetical rather than established, as distinct from motility disturbance and bacterial colonisation. 62 In general terms, symptoms such as excessive wind and burping, in Professor Ham's view, are related to the surgery and perhaps also to a pre-existing disorder (such as irritable bowel syndrome) which may be made worse by a cholecystectomy and aggravated or perhaps caused by the corrective surgery. Professor Ham described the sequence of events commencing with the immediate aftermath of the cholecystectomy performed by the defendant and then his (Professor Ham's) initial corrective surgery as "horrific", a description which seems to me to be entirely apt. 63 In considering the reliability of the plaintiff's account – as with any witness in a similar situation – it is of course, important to contrast that evidence with contemporaneous material, in this case, histories taken by the consulting doctors. In a number of significant respects, Dr Ham's notes differed from the accounts given by the plaintiff. Moreover, the plaintiff deposed as to specific incidents involving Professor Ham, which he said he could not recollect but, in substance, I think denied. A great deal of cross-examination of the plaintiff was devoted to confronting him (in effect) with the notes made by Professor Ham and Professor Ham was himself questioned extensively on the reliability of his notes. I do not propose to set out these matters in any detail though, of course, I have considered them for the purposes of this judgment. Professor Ham did say that open- ended questions and lengthy discussions were less common in follow-up visits than in initial visits so that questions would be more focused, in part because of time constraints. Professor Ham pointed out that the major purpose of his follow-up consultations was to pick up early narrowing of the anastomosis – a stricture – because that was the most crucial risk to the plaintiff. At the same time, the plaintiff asserted that he wished to bring matters to Professor Ham's attention and was told by Professor Ham that he was not interested in such things and he wished merely to discuss the surgery. Professor Ham denied ever putting the plaintiff off in this way and I accept without hesitation his evidence in this regard. At the same time, I am willing to accept that the plaintiff may have felt from time to time that Professor Ham was concerned with particular aspects of his case and not with others and hence misread or misunderstood the point of particular questions which were being put to him by the doctor in the course of an examination or consultation. I also think it likely that the plaintiff would have been somewhat overly sensitive to language which might have been perceived by him as not being entirely sympathetic. Time has no doubt worked its distortions on memory over the period since these consultations. Whatever the reason for the contradictions between the plaintiff and Professor Ham, I am satisfied that the plaintiff's evidence was the truth as he recollected it and he was not intending to mislead me. There also may have been some confusion in his mind as to the sequence of events. Accordingly, although I accept Professor Ham's evidence without hesitation this does not lead me to doubt the essential truthfulness of the plaintiff's evidence, although questions arise as to its reliability in certain respects. Overall, I am satisfied that the plaintiff has given an account of his illness which, by and large, is reliable although to some degree he has overstated its seriousness; however, I think this overstatement is a reflection of his actual feelings, which have become more coloured as the years passed. Moreover, Professor Ham's clinical notes and reports used terms which (not unreasonably) were rather imprecise, such as "remained pretty well", "no significant plain", "some discomfort" "and minimal abdominal pain". It is important to bear in mind, when evaluating this kind of language, the base or starting point, as it were, from which these descriptions developed, namely, excruciating pain suffered for an extended period of time which, I have mentioned, had (as one would expect) a massive effect on the plaintiff's psyche. "Discomfort" is a notorious weasel word. Professor Ham said that he would write "discomfort" rather than "pain" if it were mild and not worrying to the patient and phrases such as "pretty well" and "no real problem" indicate some symptoms but neither dramatic nor raising issues from his point of view as a surgeon. Professor Ham used the term "major episode of cholangitis" to refer to life-threatening attacks requiring hospitalisation with intravenous drips and the like. Thus a "mild" attack covered an episode where the patient needed to stay in bed for a few days and take some antibiotics with abdominal symptoms and even quite high fevers sufficient to produce severe shivering. 64 It is important to note, also, that the events in question occurred over a period of twelve years or so during which, and not infrequently, there were episodes of considerable physical suffering and mental anguish. Accurate autobiography is not to be expected in these circumstances, especially where the matter being considered is that very debilitation of mind and body associated with frustration, anger and anxiety and, indeed, confusion of memory. Moreover, I am satisfied that, at least until relatively recently, the plaintiff was extremely anxious to believe that his condition would improve and that he would return to a semblance of his former life. This, I think, is reflected in the work that he sought or undertook since the 1990 reconstructive procedure and to which I will come in due course. In short, I think that he was from time to time, as the argot has it, "in denial". Denial is greatly underrated but it does not enhance accurate history. In part, I also rely on my own impression of the plaintiff as he gave evidence. As I have said, I think that he was very significantly humiliated by his illness and the resulting recognition of significant limitations on his ability to perform at any level of competence that he regarded as remotely adequate, let alone at his previous level of excellence. I have no doubt that, from time to time, his expressions of wellness were optimistic rather than objective and reflected a powerful anxiety to return to his previous good health and high level of functioning. Of course, I do not express these opinions in any sense as an expert. Rather, they are my commonsense impressions of the plaintiff, having regard to the whole of the evidence in the case. In this context, Professor Ham noted the tendency that "on occasions patients will protect their surgeons or their doctors and they won't tell them things that are happening because, I guess, they are grateful for what's happened and they don't wish to make it seem like it isn't as good as the surgeon might think it is" and he agreed that patients also may not want to think that the outcome is not as good as the surgeon thinks it is. These behaviours are part of the ordinary human condition and recognition of them depends upon experience, judgment and insight rather than any particular medical or psychiatric expertise. One way or another, such feelings are common to us all. 65 Professor Ham commented that he was not sure that his records reflected all of the history of complaints given him by the plaintiff and I infer that he meant that he noted matters of particular importance to him as a surgeon, a role very different from that of a treating physician concerned with the patient's overall health. He said that he was not really concerned to get a very detailed history, since the broad outlines were sufficient for him to assess what was happening, in particular, during 1989 when it became evident that a further operation needed to be done and the crucial issue was the extent of bile duct dilation. Certainly, delayed emptying from the Roux loop might be expected to produce discomfort of greater or lesser severity and Professor Ham observed that this was consistently demonstrated on ultrasound scan. The consequences could vary from mere feelings of discomfort or nausea associated with some pain up to a high level of pain associated with serious fever. Indeed, Professor Ham said that even a note of "no fevers" would not exclude a history of mild fever as distinct from a fever of a significant kind which required antibiotic intervention. The plaintiff complained to Professor Ham that there were times when he had pains which he thought would precede a fever but this did not in fact develop. These accounts are not reflected in the clinical notes. 66 The plaintiff gave evidence over six hearing days. Especially when attempting to describe the period between June 1988 and January 1990, he became extremely distressed but even when generally describing his health history after that date he became upset. When distressed, he tended to become somewhat confused and recollection failed. It is clear that he suffers significant problems with concentration and memory. I have no doubt that the intensity of his feelings about his health has also impacted on the objective reliability of his recollection and the history which he recounted to me. Indeed, psychiatric symptoms, largely depression, were demonstrated during much of this period. This is a matter to which I will return in due course. Much was made of this by the defendant. But it is, I think, less significant than is argued in Mr Sullivan QC's thorough and helpful submissions since the general picture that has emerged, discounting for the inconsistencies exposed in the evidence, demonstrates quite clearly that the plaintiff has suffered major injury to all those aspects of his health and personality that made him a success. Tragically, the very force of character that imparted the overweaning drive which, with his other attributes, led to past success, also misled him for some time into believing, despite his experience, that recovery might yet be his. Insight was gradual and painful in coming. It was associated with social isolation, anger and, eventually depression. These elements are still both present and obvious. In these circumstances, the measurement of residual capacity is indeed difficult and the "success" pointed to by the defendant in this regard – namely, his Portuguese investment – may be (and I think is) quite misleading, though the profits were real enough. 67 Taking first, briefly, the position between June 1988 and March 1990, as I have said, the plaintiff was able to do some work. I have already mentioned what Mr Fletcher and Mr Turner thought of his capacity at this time. The plaintiff, also, was conscious of his problems in this area (at least in a general way) and, not surprisingly, was sensitive to the no doubt sympathetic way in which he was treated. The poignancy of his position at this time is clear from the following question and answer - "Q. …Between 1988, when you had your first operation and then 1990, when you had your last operation – in that time, did you do any work? A. I tried very hard. I visited my job and everybody sort of paid their respects. It was a company I formed so everybody was very patient and kind to me; listened to the silly things I was telling them. It was very difficult. But I really took this – I took these things. But it really didn't do for me, unfortunately. I don't know if I answered your question." 68 So far as his contribution at Board meetings was concerned, the plaintiff added - "My recommendations were generally commented on as irrelevant for I was sick and could not understand the full implication of the matters being discussed and in many instances [my recommendations to the Board] were not even minuted." 69 The plaintiff said that, at the time, he thought that this treatment was unjustified but in retrospect, he now sees that he was in fact acting somewhat erratically. His appreciation of this matter took some time. Indeed, he said that he first noticed his memory impairment (and, I think, an associated loss of concentration) some time in 1992 or 1993. As I have already pointed out, however, his business associates perceived this problem almost immediately. The effects have intruded into his private life and he finds that notes are now required to remember, as I understand it, even ordinary domestic affairs. Not surprisingly, the combination of the plaintiff's physical problems and the decline in his mental powers, which significantly affected him from the time of his operation, had adversely affected his self-confidence, which, of course, is a significant personal attribute necessary to success in business. No doubt, the adverse affect varied from time to time and for perhaps extended periods the plaintiff was relatively optimistic and feeling capable. But I am satisfied that he was never restored to his pre-operation effectiveness and that his capacity for sustained work was practically destroyed. As I have mentioned, the plaintiff only realised these matters later, saying that, at the time, "I was reluctant to accept the facts of life as they were attacking me". 70 The plaintiff said that he became easily emotional and found it difficult to compose himself. Apart from the difficulty that this created in the working environment, he found that these occasions also affected his memory or concentration for some period afterwards. Generally, he complained that when under stress he felt unable to focus on the work in hand. As mentioned above, this was demonstrated when the plaintiff gave evidence. I accept that events such as this have occurred with varying frequency over the years since the operation, with greater intensity in the early years but never completely absent. It is obvious that behaviour of this kind would markedly affect his ability to carry on even ordinary business affairs. In addition, the debilitating effects of the "cholangitis" attacks further reduced his capacity for business affairs. The plaintiff said that there was no real pattern to these episodes and his recollection of their frequency was, perhaps not surprisingly, vague. As best as I understand it (accepting the plaintiff as an honest, if not entirely reliable historian) for the period after the corrective anastomosis of January 1990 up to 1993 or perhaps 1994, he thought they occurred about four or five times a year, they then became less frequent, perhaps only twice or three times a year but at Easter in 1999 (following the extreme allergic reaction to an antibiotic) they came about every month for perhaps a year although in the twelve months or so prior to February 2001 he seems to have had only two or perhaps three attacks. 71 In support of the submission that the plaintiff has in hindsight exaggerated the extent of his incapacity the defendant relies on substantial efforts made by the plaintiff, within a relatively short time of the sale (or, more accurately, transfer) of the final tranche of shares in Allco to EPT in May 1990, to investigate business opportunities which would, it is submitted, have required considerable capacity to undertake. An example of such an enquiry was the apparently leading role played by the plaintiff in attempting to put together a proposal to take over a well-known and prestigious Newcastle shipbuilding firm known as Carrington Slipways, which had been taken over by a mortgagee following default. The business proposal, signed by the plaintiff, was very substantial indeed involving shipbuilding supported by steel fabrication, maintenance and refurbishing facilities. It was proposed that the shipyard should establish a market niche for vessels between 1,200 and 10,000 tonnes, but also attempt to supply a "volume market" of smaller vessels. A project worth approximately $40 million over a period of two years was already under active consideration with design being well advanced. A number of tenders for other large contracts were also proposed. It is obvious that undertaking responsibility for the management of such a substantial enterprise, especially one which had failed, was an enormous task. Yet the plaintiff had either put himself forward or allowed himself to be put forward as managing director of the new venture. The proposal had been put together by a number of interested parties and it is, I think, likely that the plaintiff was not its instigator. There is good reason for inferring that his involvement was a reflection, not of his actual capacities at the time, but rather of his very substantial business reputation, especially in the Newcastle region. When questioned about this matter, the following evidence was given by the plaintiff - "Q. As at this date you had no problem, did you, committing yourself to a potential investor as taking on the position of a full time managing director of what was a large corporation? A. Yes. It does – it does ring terrible for my particular self-judgment. I did not know at this time in my life if I was coming or going. I was being blinded by the need to raise my self-esteem, my self-respect, to conquer, once again, my inclusion in the community which I left and from which I had been a member. I do know from later experiences, most unfortunately, that I did not know exactly what the hell I was doing…" 72 Having regard to the whole of the evidence in the case, including my impression of the plaintiff as a witness, I have no hesitation in accepting this answer as truthful and correct. 73 The plaintiff pointed out that, in a number of respects, the Carrington Slipways' proposal was somewhat unusual. First, the company was in Newcastle and the persons with whom he was to be working were well known to him; and secondly, he intended to take a substantial interest in the company which would permit a somewhat less rigorous relationship with the board of directors than might otherwise have been the case and who might otherwise require from him a commitment in terms of detailed control which he felt he would not be able to undertake. However, as he acknowledged, he realised in hindsight that undertaking even this level of responsibility was unreal. As it happened, the proposal was never put to the test since it foundered, as it seems to me, on business realities, one of which may well have been the realisation of other potential investors that the plaintiff's capacities had become significantly qualified. The submission of the defendant, however, that it is difficult to accept that at this time the plaintiff subjectively felt physically unable to undertake a serious work schedule is a reasonable one, especially as it appears to be broadly consistent with the (optimistic) evaluations of his position as described in the contemporaneous medical reports, even making allowance for the episodic character of the more serious symptoms. However, taking into account the whole of the evidence, I think it more probable than not that the plaintiff was indeed at this time physically (and, for that matter, mentally and emotionally) unfit to undertake fulltime responsibility for any substantial commercial undertaking, let alone one like Carrington Slipways. The collapse of Carrington Slipways was a major local disaster. A large number of people, including leading local politicians such as the mayor, were keen to see a rescue operation mounted. Not surprisingly, it appears their hopes at some stage or other (I rather think at an early stage) focused on the plaintiff. Considering his state of mind at the time, resistance to these blandishments would not have been easy and all the more readily may have led him into unjustified optimism. 74 Mr Alan Morris, the longstanding Member for Newcastle in the House of Representatives has known the plaintiff for many years. (It will be recalled that Allco's operations were centred in Newcastle.) He regarded the plaintiff as one of the most impressive businessmen that he knew and, of course, he knew many in the Newcastle area, which was a major centre of engineering and steel manufacturing in this country. Mr Morris said that he had not seen the plaintiff when he went overseas in the late 1980s (after he had resigned as managing director). When Carrington Slipways collapsed it was, as Mr Morris said, a calamity for Newcastle. He became deeply involved in attempts to resuscitate the company and a consortium was put together, including the plaintiff, for this purpose. It was then that he met the plaintiff once more. He described him in this way - "…He was terrible. I mean, he was actually, I thought – I mean, I had assumed when I heard he was still ill that he actually had cancer. I guess some of your friends end up with cancer and that's the thing that you don't talk about. Heart attacks you talk about. People have bypasses or a stroke, people talk about it. People have cancer; you don't talk about it – or nowadays HIV. He was part of the consortium trying to put together…a recovery package for Carrington Slipways. I didn't deal with him much at all about it…but Manuel had lost three or four stone in my view. He had fallen away to nothing. Manuel had a very big presence. He was very dynamic…with a very strong presence as a person, ideas and energy. Manuel in '91 was a very ill man. I thought he still had the cancer. I wasn't sure whether he was in remission. I wasn't sure whether he had recovered. But he was – I had known this man. I had got a lot of benefit out of Manuel Alves, and I felt very embarrassed about it. I couldn't talk to him about it. I didn't know what was wrong with him. That wasn't going to work. Q. What do you mean 'That wasn't going to work'? A. The consortium." 75 Over the early 1990s the plaintiff engaged several different business consultants to explore acquisition of businesses but with little success. In October 1992, the plaintiff was considering the purchase of part of a company then in liquidation, which manufactured and sold a mobile heavy vehicle-testing unit. The investment required was in the order of $500,000 with positive cash flow anticipated after something over a year. At this time the plaintiff was in Portugal. The defendant pointed to the submission made to the provisional liquidator on the plaintiff's behalf which commended his experience and business capacity, summarised in the following statement - "Mr Alves is now seeking a new challenge and his experience in building Allco into a viable business coupled with the financial resources developed through his involvement and sale of Allco make him well qualified to make a success of the Truckalyser Division…Through his twenty-five years involvement in Australian industry he has developed wide industry contacts which would enable him to quickly put together a capable team." 76 In his evidence, the plaintiff described this encomium as "a commercial statement" - "The philosophy normally followed by any commercial company producing an advert, embellishing the characteristics of the product they want to sell, embellishing the product to such a way it can be readily accepted and all those – that's commonly used in marketing." 77 With this qualification, however, the plaintiff agreed that he believed at the time he was capable, with astute delegation, of so organising matters that the company would be a successful venture. As with a number of other proposals at the time, this matter did not get very much further than an initial enquiry. 78 The plaintiff became a member of the Board of TUNRA (The University of Newcastle Research Associates Limited) in December 1989 and remained a director until late 1992. The minutes show that the plaintiff attended eleven board meetings in all during this period. He resigned from the TUNRA board on 3 December 1992 but remained an honorary member. 79 In the latter half of 1991 the plaintiff explored the possibility of establishing a plant in Portugal or elsewhere in the EEC to manufacture tapered steel poles and employed a consultant for the purpose of doing so. At the same time, the plaintiff was exploring business opportunities in Portugal although, at this stage, tentative enquiries led nowhere. The light pole proposal did not go ahead when it became clear that the capital investment required was beyond the plaintiff's resources. Nevertheless, it is clear that the plaintiff invested a very substantial sum, as I understand it in excess of $50,000, in exploring the viability of the proposal, which is strong support for the inference that the plaintiff had a fairly high degree of confidence that, if the evaluation supported the initial perception of potential, the he thought he would be able to undertake the work necessary both to finance the business and manage it successfully. The defendant reasonably submits, therefore, that the plaintiff's investment in investigations of this kind implies a significantly greater optimism about his capacity, both mental and physical, than he now describes. The plaintiff said, however, that at this time, namely in the latter half of 1991, he started to appreciate that his abilities and personal communication were significantly affected by inappropriate irritability and, furthermore, that as he tried to identify business opportunities and follow them up he found this and other problems with memory and concentration became evident to him. At one point in his evidence, the plaintiff described it in this way, apropos a memorandum of 20 February 1989 in which the plaintiff expressed his displeasure about matters raised at a previous Allco board meeting, describing his language as inappropriately forceful - "I seem to be hammering away and hammering away without offering solutions and when I used to call myself, on some occasions, Mr Solutions, this is not Mr Solutions talking to anyone. It is Mr Troublemaker talking to someone." Of course, this is prior to the investigations mentioned above and before his further operation which revised his anastomosis. Although his health undoubtedly improved after this procedure, I am quite sure that the plaintiff did not have the capacity to undertake the work implied in the potential business, despite his apparent view at the time that he should be able to do so. Other business opportunities and investments were also explored by the plaintiff at considerable expense. They also came to nothing. They were bound to fail. 80 At this time, the plaintiff was also investigating the acquisition of a Portuguese company, Grupo Metalurgico do Botao Lda associated with two other companies (whose names do not matter; I shall refer to the group as GMB). GMB employed thirty-five staff. Eventually, the plaintiff acquired an 80% interest for AUD140000, with the remaining partner retaining a 20% interest. Of the 80% controlled by the plaintiff, a little over 10% was owned by his son and his daughter but, for all practical purposes, beneficially by the plaintiff. I deal with this matter in detail below. 81 I will return to the plaintiff's work capacity in due course but it is convenient to deal first with his account of his physical symptoms. He described them generally in this way - "After surgery. Well, after surgery, pain has never left me, more or less – first big, then small but has never left me. Still today I have pain. I still have pain today." 82 I do not intend to give a detailed account of the plaintiff's evidence on this point which, at all events, was somewhat confused. However, in substance, the plaintiff said that he periodically suffers episodes of what he called cholangitis. These attacks can last for a week and when this occurs he finds antibiotic medication beneficial. During these attacks the plaintiff suffers pain in his joints and frequently experiences fever. During these attacks, he feels debilitated, somewhat confused, depressed and impatient with people around him. Bowel movements are difficult but regularity is essential to avoid discomfort and he has found Normacol beneficial for this purpose. He has found also that he needs to carefully watch his diet, focusing on fresh food. From time to time he suffers from constipation, and continual flatulence, which is painful and embarrassing. During the attacks of cholangitis, the plaintiff experiences severe pain in the liver area of his abdomen or in the epigastric region. During these attacks the plaintiff suffers also from flashbacks of the experience in June 1988 of the initial cholecystectomy which was, as I have already mentioned, a terrifying and excruciatingly painful event. He frequently has painful, stress related headaches and disturbed sleep. 83 The plaintiff called his wife, Elsa Alves, to give evidence on his behalf. She confirmed that, before the surgery, he was a very healthy and fit person who was physically active and worked very long hours. She corroborated the plaintiff's account of the extremity of pain and suffering following the defendant's operation on him. She was present in hospital with him, giving as much support as she was able. After his physical condition started to improve, Mrs Alves noted changes in his mood; in particular, he was moody and depressed and lacked concentration, exhibiting anger and bitterness even directed at her and the way in which she tried to help him. Mrs Alves described the need to care for him virtually day long and even into the night after he was discharged from hospital on 13 July 1988. He was virtually immobilised at first and she undertook his personal care including personal hygiene, cooking light meals that he was able to digest, and changing the dressings on his wounds. As the plaintiff began to improve, he would take short walks and Mrs Alves accompanied him for physical support at first. Although his condition improved, he was suffering episodes of jaundice with pain and fever and getting worse up to the time of the January 1990 operation. I have already briefly related the plaintiff's frequent return to hospital in this period. It is not disputed that he needed continuing care at this time, although he attended a board meeting on 23 August 1988. Towards the end of 1988, the plaintiff was able to attend some meetings at the offices of Babcock Australia interspersed with attendances on Dr Rose and at the hospital. 84 After some intermittent work in November and December 1988, the plaintiff started more regularly to work at Babcock Australia, although I accept he was not operating either physically or mentally at nearly the same level as prior to June 1988. It is clear that by the first quarter of 1989 the plaintiff's condition had markedly improved and he went overseas from April to June 1989. As I have mentioned, he saw Dr Rose shortly after his return to Australia and told him that he had no problems whilst he was away but fever and sweating had commenced on the previous night. In the second half of 1989 the plaintiff was able to attend to Allco's work fairly regularly despite some continuing residual physical incapacity with occasional episodes of fever and discomfort. In the latter part of this year, it became evident that his condition was worsening as Professor Ham waited for the bile duct to expand to enable biliary reconstruction to be performed. Mrs Alves thought that the attacks of cholangitis were fairly frequent, every two or three weeks or so after discharge from hospital in July 1988, gradually becoming less frequent and then towards the end of 1990 increasing in frequency. 85 Mrs Alves noticed the plaintiff's mood and memory changes after he returned home from the July 1988 operation. I use the term "mood changes" to refer to anger, anxiety, irritability and impatience. This was in marked contrast to his behaviour before the operation, when he was generally calm and not argumentative. After the operation, he would continuously find fault with what she either said or did, even when she was trying to help him. Mrs Alves said that she became very distressed and "would just go to our bedroom and stay there and cry". At times, she was frightened by him. She gave a number of examples of this behaviour. Her perception was that, even after January 1990, he only improved slightly and that each day some problem or other with his health either major or minor occurred, not only involving his physical but also his mental state. The plaintiff still complains of constant pain to a greater or lesser degree, often mild but under stress becoming more painful and sometimes quite severe though short-lived. (These episodes might well be due to adhesions in the general area of the scar, both externally and internally.) Mrs Alves confirmed that the plaintiff's sleep is disturbed because of his headaches. He suffers from continual burping and flatulence with constipation being a daily problem for which he takes medication with his meals and also, on occasions, at night having to take Coloxyl (a faeces softener, as I understand it) and sometimes also glycerine suppositories. Both wind and constipation are a problem for him. The plaintiff said that, from mid-June 1990 onwards, the intermittent abdominal pain had eased and started to resolve itself although it never entirely disappeared and he still suffers from it "now and again". Certainly from about mid-1993, it was markedly less painful, although even in 1994 and from time to time since then he has had continuing episodes. I have already noted complaints made to his treating general practitioner, Dr Rose in this regard. There is significant inconsistency between the plaintiff's present account of the frequency of these episodes, and those in the histories given to doctors over the years and the evidence does not permit construction of a precise chronology of these events. Taking the evidence as a whole, including the histories given to all the doctors, I think the plaintiff has had to live with pain and discomfort of varying frequency and severity over the years since his operation but that at no point has he been restored to full health and, during the whole of this period, his physical condition has imposed substantial limits on his capacity for consistent (let alone hard) work, from time to time (and not infrequently) completely disabling him for work for periods varying from a day to over a week. Never has he been physically fit for work at anything approaching the same level of functioning as before the operation. 86 Mrs Alves said that, although the plaintiff improved physically after his discharge from hospital in January 1990, she thought his mental state became worse. She said that he became more and more impatient and irritated, that he would get very angry over trifles "kicking things around and spreading everything on the floor" even whilst having lunch or dinner. It was embarrassing to have friends visit because of his continual burping and flatulence. After he commenced taking anti-depressants in early 2000 his behaviour improved. Until that time, Mrs Alves said that her husband was continuously unhappy, not taking any pleasure even in his grandsons with whom he cannot find the patience to play. The anti-depressants have enabled him to remain much calmer, not so irritable and anxious and, in particular, no longer so angry with his wife. 87 Mrs Alves summed up the plaintiff's health, I thought fairly, as follows - "Well, since 1990 the health problems remained more or less the same and some they are daily problems. Some that he can deal with and he can cope with, like when he is in constant pain but he tells me that it is pain that he can cope with, headaches that he can cope with, constipation, burping, flatulence. These are daily problems. There are other days, other periods of time where this cholangitis occurs and then he feels very, very sick and the other pain that occurs daily, too – this pain that comes and goes and lasts five minutes to fifteen minutes." 88 As to the plaintiff's memory problems, Mrs Alves said that she has to remind him of practically everything he has to do, like taking his medication and going to appointments. He forgets to lock doors or set the alarm at night and, generally, about domestic matters. Mrs Alves said that the plaintiff complained about headaches after the first operation but over the last two or three years they have been getting worse. He is usually very restless in his sleep since the operation, whilst before that he was calm and would sleep normally. 89 Mrs Alves said before the June 1988 operation, her husband read a great deal, though not novels or for entertainment but matter involved with business, management and financial affairs. Since the operation, however, he appears to have lost interest and lacks concentration, reading only for a few minutes and then putting the paper aside. 90 The plaintiff relied also on the evidence of Mr Stephen Neave, his son-in-law, who married his daughter in August 1991 and first met the plaintiff in 1987 when he (Mr Neave) was an engineering student at Newcastle University. Speaking of the plaintiff as he saw him following the initial reconstructive surgery on 20 June 1988, Mr Neave said - "Q Did he speak at all about business at that time? A Not in the Prince of Wales Hospital. He did when he would come home. There was a big period there after the initial surgery where he would come home for a brief period and then be back in the Prince of Wales Hospital again, backwards and forwards. His focus – previously his main conversation to me was about engineering and business. The topic of the conversation had switched over to his illness. That's primarily what he would talk about. Q I see. Did you notice any change in him as to his capacity to do certain things? A Certainly his physical – his physical capabilities were far less. He couldn't move around. He would often be complaining of pain, holding his stomach or getting up and sitting down very tenderly. Other times he would be completely incapacitated, his wife would be attending to him. That would happen fairly frequently. But also in his mental things, he would always be complaining about the fact he couldn't remember things and he was always losing things. He was also just getting very cranky, just very, very – usually over nothing but I think a lot of it was to do with things he'd forgotten or memory loss or other things that people were doing around him. … Q Not particularly physically, but any other problems he had. A I think it was all just to do with debilitation. I think he was probably really annoyed that he couldn't get back in – I'm sure everybody is aware that he was trying to get Babcock up and going. And I assume a lot of it was just frustration that he couldn't actually get out and - - HIS HONOUR: Q Let's not worry so much about the causes. There are, no doubt, many, and, of course, if he gave those reasons, then report them. But you are being asked more for a description - - A Okay. Q - - than an explanation. Okay? If he expresses it, then that's part of the description? A Okay. Just what I saw. He was in constant pain, he had headaches, he would complain of memory loss and lack of concentration, and he – often you'd see him trying to read something and he'd throw it down, explaining he couldn't read it any – he'd read it three times and still hadn't absorbed it. They were the sorts of things I'd see. Q Of what period are you now speaking? A Pretty much from June 1988 onwards when he was going in and out of Prince of Wales, because I'd see him at his house when he'd come back to Newcastle, I'd be over visiting his daughter. Q So this is the worst period, which was between his first operation and the last operation in 1990? A Sure. Most of those – again, a lot of the symptoms were to do with the – a lot of the things you saw, he would be very irritable and slam things down a lot, or wasn't happy that that was there and he'd get – just still things, just trivial things. With you even – but even that, as the physical symptoms started to clear up – again, when he was very sick, you expect a sick person to behave a little bit strangely. But as physically he started to get a bit better, those sorts of behaviours would continue and that became more obvious. Q That was even after 1990? A Yes, it always still continued and it still continues to the day, sort of thing, but slightly less. It just became more pronounced, it was always there, when the physical symptoms came away, you could see those other things were still there, and that's when you really started to notice them." 91 Mr Neave noticed that the plaintiff would get very upset about trivial things and there were frequent angry outbursts or throwing down of items, as often as once or twice an hour. The main topic of his conversation was his illness, which he would bring up with expressions of bitterness about what had happened. He would act impulsively, which was out of character. Although, throughout the year, the plaintiff would have both good and bad days, he would have particularly long "bad bouts as well, where he would be down for a couple of days not doing anything…lying on his lounge, usually with a blanket over him". More often than not he was in an irritable mood. After the plaintiff's return home from hospital in early February 1990, Mr Neave thought that he appeared to be recovering physically fairly well with some bad days but the percentage of good days started to get higher and he also made an effort to exercise, going for walks and swims, which he enjoyed. However, the plaintiff still complained of memory loss, lack of concentration, was still "always on edge, always very cranky and…would get upset at very small, insignificant things…[which] wouldn't last very long, but still there would be a very brief and angry reaction for no reason." 92 So far as conversation was concerned, the plaintiff was always focused on his illness, although he would discuss business affairs from time to time. The stories about engineering which he used to share with Mr Neave were now repetitious, fragmented and erratic. Mr Neave thought that his business judgment had been affected. For example, he considered purchasing a shopping centre, called Charlestown Square. However, he had not developed a business plan as once he would have and even seriously considered putting his daughter, Shirley, in charge of managing it when she was very young and with no relevant qualifications or experience. Up to the end of 1991 (when Mr Neave was living with the Alveses) he recalls that there would have been at least four or five times, probably six, occasions when the plaintiff was lying down for a few days, with sweats and usually under a blanket. These occasions have diminished in frequency since then and the last time that Mr Neave witnessed a debilitating attack would have been in 1993 or 1994. He was aware, from having been told by other members of the family, including the plaintiff, of other attacks but does not recall witnessing any. 93 The plaintiff's daughter, Shirley, was also called. It is unnecessary to set out her evidence. It is sufficient to say that she corroborated the accounts given by the other members of her family, including the plaintiff, as to his physical and behavioural condition over the period since his operations, confirming the plaintiff's suffering from attacks of acute pain allied with chronic background pain, his frozen shoulder, localised pain in the scar area, frequent severe headaches, indigestion, problems with wind and flatulence and constipation, the debilitating attacks becoming gradually more episodic as time went on. She noticed changes in his emotional and mental well being, namely irascibility, nervousness, agitation, moodiness and depression; he became quite forgetful, did not seem to have the focus that he used to have or the concentration and his conversation was erratic and somewhat confused. She has not observed any improvement in his forgetfulness and lack of concentration. However, Mrs Neave said that over the last two years or so there has been a noticeable deterioration so far as his cholangitis is concerned, especially the lower grade attacks where he would not necessarily have to take antibiotics. In early 2000, when the plaintiff started taking anti-depressants, Mrs Neave noticed that he was calmer and the frequency of his bouts of irritation and temper reduced although his lack of mental acuity did not, she thought, improve. 94 In addition to the plaintiff's treating doctors a number of consultants were called. I do not proposed to deal with these in any detail but simply to mention the more significant conclusions. Professor Lance, a consultant neurologist, concluded that the headaches from which the plaintiff had suffers (but which were not a significant problem between 1990 and 1998) cannot be attributed to his operations. They are caused, in Professor Lance's opinion, by tension and are likely to ease as this is treated by his anti-depressant medications. (I have already expressed the view, however, that the plaintiff's tension is substantially caused by his ill-health.) Professor Lance considered that the plaintiff's functioning mental capacity has been impaired by defective attention and concentration secondary to his anxiety and depression. Dr D Brash, a consultant psychiatrist, concluded that the plaintiff was suffering post traumatic stress disorder from the life-threatening complications of his serious illness and also from a degree of secondary depression related to this, mainly exhibited by marked irritability and difficulties with concentration, improved slightly by the use of anti-depressant medication; his headaches, which are frequent and fairly severe are secondary to stress and anxiety. Dr Brash has been treating the plaintiff since the early part of 2000, having seen him twelve times up to the date in March 2001 when he gave evidence. Dr Brash gave evidence and was cross-examined. I did not think that his conclusions were significantly affected. Mr Sullivan QC tested him on some notes made of his consultations with the plaintiff, which appeared to contrast with the plaintiff's evidence. Some real difference between that history and the plaintiff's evidence emerged but it has not changed my overall conclusions about the plaintiff's condition. 95 Psychometric testing was carried out on the plaintiff by Mr W John Taylor, which demonstrated difficulties with memorising and learning material and impairment in abstract reasoning. Mr Taylor attributed his results rather to organic brain damage causing cognitive impairment than functional problems. So far as the tests themsAlves are concerned, taken in isolation, this may be a reasonable assessment, although I am inclined to think that this is too speculative for me to draw any appropriate conclusions. At all events, the plaintiff did not press this conclusion. Be that as it may, Mr Taylor's psychometric testing does provide some additional support for the conclusion that the plaintiff has indeed suffered a significant degree of loss of functioning associated with memory and concentration, in respect of which there seems to me to be a plethora of lay evidence, the cumulative effect of which is convincing. This testing occurred in November 1993 and early 2000, with the results being consistent. Moderate depression was shown, however, in the earlier test but not demonstrated on a later occasion, due (I understand) to the plaintiff's taking anti-depressant medication. 96 I have mentioned the plaintiff's complaints of bladder dysfunction to Dr Rose. There has been a deal of evidence on this matter, the detail of which it is unnecessary to set out. It seems to be reasonably certain that some significant initial bladder problems were occasioned by the need to catheterise the plaintiff during the operations of mid 1988 but I do not think that this was a significant cause of the continuing problems, at least past mid 1990, except in the sense of hastening his symptomatology. The plaintiff had a prostate problem that was becoming more symptomatic and I think it probable that his bladder problems after mid 1990 were related to his prostate rather than being caused by the biliary operations. Dr J S Taylor, a consulting urologist, first saw the plaintiff in December 1996 when he presented with increased frequency of micturition particularly at night, a poor urinary stream and difficulty emptying his bladder in so far as he had to practise double micturition. The plaintiff had dated these symptoms from his gall bladder operation in June 1998 and said that they had been gradually worsening. In due course, a trans-urethral resection of the prostate was performed in January 1998 with significant improvements in his urinary symptoms. Dr Taylor's view was that the onset of troublesome symptoms was hastened by the cholecystectomy and subsequent complications by a period of the order of five to ten years. Dr Taylor's opinion, expressed somewhat tentatively, was that the operations and accompanying catheterisation had upset what urologists refer to as "the balance of the bladder". An uneventful cholecystectomy would have been unlikely to have this result but, of course, that performed on the plaintiff was anything but uneventful. Dr Taylor said that the plaintiff still had some degree of increased frequency of passing urine at night but this was not undue. The defendant relied on the evidence of Dr Andrew Brooks, a neurological surgeon, whose evidence concerned the aetiology of the plaintiff's bladder problems. His opinion contradicted that of Dr Taylor, concluding that the likely cause of the plaintiff's bladder problems was simply his enlarged prostate and that, although there may have been short term disturbance resulting from catheterisation and, possibly, the major biliary disturbance caused by the surgery, he would have expected this to settle relatively quickly. Both Dr Taylor and Dr Brooks were convincing witnesses, each being concerned to be as objective as possible and both having impressive credentials. On balance, however, I prefer the evidence of Dr Taylor who was the plaintiff's treating urologist and who had seen him on a number of occasions and performed the transurethral section of his prostate. 97 Dr Julian Parmagiani's report was tendered without objection. The history taken from the plaintiff was of lack of energy, concentration and motivation, reduced self esteem, erratic sleep, emotional lability (becoming tearful with minimum provocation), persistent headaches and depression. The substance of Dr Parmagiani's report, as I read it, is that these symptoms developed after and were caused by, the operation in June 1988 with its ensuing complications, favouring the explanation for the plaintiff's cognitive deficits as being residual depression. 98 The plaintiff also consulted Dr Michael Armstrong, a psychiatrist, in connection with his psychological problems. Dr Armstrong also supported the diagnosis of post-traumatic symptoms and depression. The plaintiff, amongst other things, told Dr Armstrong that when he was relaxed his memory worked normally but otherwise when he is stressed or anxious his memory fails him. Dr Armstrong's opinion is summed up as follows - "…Mr Alves was forced to stop working by psychiatric complications of the cholecystectomy since post traumatic features have been constantly present since the operation of 1988, notably in his marked irritability and impairment of memory and concentration, I do not consider that Mr Alves has at any time since 1988 been fit to work in the engineering management areas for which he is qualified." Mr Armstrong was tested in cross-examination by Mr Sullivan QC on behalf of the defendant, especially as to the suggested exiguity of the history which he obtained. Although a counsel of perfection would have suggested that taking a more detailed history might have been appropriate, I consider that Dr Armstrong's judgment about this matter was well within his professional competence and that it is appropriate to place significant weight upon his opinion of the plaintiff's condition. 99 An assessment of the plaintiff was made in July 1993 by Dr Luba Eikens, a rehabilitation physician. She noted his current complaints in order of priority as abdominal pain, frequent eructation and flatulence, memory problems and bladder dysfunction, with abdominal pain occurring approximately once a week and usually lasting about five minutes associated (I think, in the doctor's opinion) with a diet high in fibre. Dr Eikens noted that the plaintiff did not appear depressed and that a clinical assessment of cognitive function showed that (amongst other things) although immediate recall memory was normal, five minute recall was moderately impaired. Amongst other things, Dr Eikens suggested that the plaintiff should undergo formal nueuro-psychometric assessment to document the extent of his memory and cognitive dysfunction which, the doctor thought, might be contributed to by residual depression following his illness. 100 Also in July 1993 the plaintiff was assessed by Dr Peter Anderson, a psychiatric consultant, whose conclusion was as follows - "In summary this man describes life-threatening surgical events and some continuing ill health, attributed to surgical negligence. He is very angry. He attributes business difficulties, and some subsequent mistakes or poor decisions to these difficulties. He believes his fitness to carry out his work has been affected. There is no suggestion that he has suffered from a psychiatric disorder previously and one could say that he has suffered from a reactive nervous state subsequent to these events. A diagnosis of depression reactive to pain and disability is made. No additional treatment is required for this state. Prognosis is largely dependent on the painful and disabling condition to which it is reactive, and surgical opinion is crucial there." 101 About five months later, in November 1993, the plaintiff was seen by Dr William Barclay, also a psychiatrist. Dr Barclay took a very detailed history, broadly speaking consistent with the evidence given by the plaintiff in this trial. Although variously exhibited, the crucial complaints appear to me to be depression, extreme irritability with impaired memory and concentration. The doctor added - "He is aware of feelings in himself of being unable to cope, internal tension and at times irrational behaviour. He is particularly aware of his age and has a strong feeling that his time is running out and yet he is unable, on account of his various psychological symptoms, to be as effective as he feels he should be in re-establishing his business position." I consider that this is a reasonable description of the plaintiff's condition, not only in 1993 but at the present time, with the exception that I have no doubt that he now realises (and has for some time appreciated) that re-establishing his business position in any sense, including gainful employment even as a consultant, is, and has for many years been, beyond him. Dr Barclay concluded as follows - "The psychological symptoms experienced by Mr Alves flow from the complications of his surgical treatment. There was the immediate post surgical depression and fatigue, which accompanied his prolonged illness. That immediate effect has been followed by a psychological reaction which constitutes a moderate post traumatic stress disorder." Dr Barclay thought that the plaintiff would benefit from treatment for his condition and recommended referral to Dr Armstrong, to whose evidence I have already referred, who Dr Barclay described as a psychiatrist with a special interest in the treatment of post traumatic stress disorder. 102 The plaintiff also consulted Dr Robert Hampshire, a psychiatrist, for treatment in connection with his post traumatic stress disorder. Dr Hampshire's report was tendered and he gave evidence. Although Dr Hampshire was strongly of the suspicion (later, as I understand it, dispelled by tests) that the plaintiff may have organic brain damage, he diagnosed the plaintiff as suffering from a low to mid grade depressive illness and a mild to moderate post traumatic stress disorder. Of significance is the history taken by Dr Hampshire at a consultation of April 1994 when the plaintiff told him that, although he had fevers in the past, they had disappeared by the time that he saw the Doctor. Together with other descriptions given by the plaintiff of his emotional state, Dr Hampshire thought that his post traumatic stress disorder was mild although it is clear that he was still quite distressed and emotionally labile. I think that this simply reflects the fluctuating character of his emotional and physical state. However, it is clear from Dr Hampshire's notes that the plaintiff's emotional state presented with varying severity over the treatment period. 103 The plaintiff attended on various medical experts retained by the defendant. Amongst these was Mr Peter Rawling, a psychologist who conducted a neuro-psychological assessment in February 1998. His report concludes as follows - "The current assessment again produced evidence of variability in memory test performance. This variability was evidenced both within and between the assessments and would provide further support for the view that the perceived memory problems were secondary to difficulties with maintaining concentration on the task in hand. His performance on specific tests of concentration was often poor but also variable. While his clinical presentation was more one of anger and bitterness, formal assessment of his emotional state indicated significant levels of depression, anxiety and stress. In addition, the current assessment included a battery of tests designed to assess the patient's test-taking motivation. There was no evidence of simulation of cognitive impairment on three of the four tests but the fourth test produced a positive result." I regard this opinion as generally supportive of the plaintiff's case. In a later report, Mr Rawling discounted the significance of the biliary misadventure on the plaintiff's long term emotional and psychological state, suggesting on the basis of the plaintiff's history as he understood it that a more substantial contributing factor was the unfortunate business developments affecting Allco and Babcock with the consequent loss of Allco to EPT and then the difficulties the plaintiff had in securing a satisfactory business substitute. I do not accept this reasoning. Apart from the rather incomplete picture of the plaintiff's affairs over the relevant period, I consider that it understates to a very substantial degree the extent of the plaintiff's distress at the time of and following the cholecystectomy resulting from chronic though fluctuating pain which included episodes of great severity, significant loss of concentration and very significant emotional lability. No doubt there was some feedback, in that these traits significant affected his ability to undertake business at the required capacity and this failure may have contributed or, more accurately, was perceived by him as contributing to Allco's business difficulties, which in turn put further pressure on his psyche. In the end, I found Mr Rawling's reasoning unpersuasive. Had he been well, the plaintiff's response to the demise of Allco would, I am quite persuaded, have been very different indeed. 104 A further neuro-psychological assessment was conducted by Mr D Cipriani in May 2000. A very extensive report was tendered, which I have considered, but I do not think that it carries the matter very much further. Mr Cipriani, in his evidence, took issue with some of Mr Taylor's assessments and his opinions, but for reasons that I do not think it necessary to dilate on, I do not think these criticisms are, in the end, significant. 105 I now come to the plaintiff's work history since the June 1988 operation. After Professor Ham's life-saving intervention, the plaintiff suffered a series of crises, which I have already related. Even so, from his discharge from the Prince of Wales Hospital in early August 1988, he attended Allco board meetings and to other business-connected affairs spasmodically to the end of the year. I accept the plaintiff's evidence, in substance, that his capacity was much reduced and his contribution was, to say the least, of only slight utility. In 1989, the plaintiff attended Allco/Babcock business affairs with greater regularity and frequency and was able to do so for much of the year, including an overseas trip for some weeks from late April to mid June. I consider that, during this period, the plaintiff's ability to contribute to the company's business affairs was seriously affected by his physical and mental state, though he may not have been entirely aware of the extent of his limitations at this stage. If he was behaving at work as it appears he was behaving at home – which seems inevitable – his productivity and effectiveness must necessarily have been very seriously compromised. At all events, I am satisfied that the plaintiff's physical problems – from temporary eructation and flatulence through to painful episodes of abdominal pain and discomfort lasting a day or more would have been very troubling to him and adversely affected his efficiency. Be that as it may, no claim for economic loss is made in respect of the period up to his anastomosis reconstruction on 4 January 1990. 106 As I have earlier hinted, it became evident in the latter part of 1989 that the Allco Group, although maintaining a substantial turnover, was facing major financial challenges of various kinds with a very serious negative impact on its continued viability. A capital injection was required, which was supplied by EPT, a competitor, in return for 60% of the equity and the acquisition of the balance of the shares over four years. The plaintiff sold his portion of the equity transferred to EPT for something slightly under $2.6 million. This sale was completed in late October 1989. In early 1990 Alco experienced a very major loss in the order of $40 million on a project in South Australia, which had, I think, very significant adverse consequences for its capital position and in March/April 1990, Allco faced insolvency. EPT agreed to fund Allco's capital requirements for the consideration, amongst other things, that the balance of the outstanding equity should be transferred to it for a peppercorn. This offer was necessarily accepted. Loss of the plaintiff's equity in Allco together with his continuing ill health, of course, placed him in a difficult position. The balance of his shares was sold for a nominal sum on 2 May 1990 and he resigned from Allco's board on that date. He concluded work which he had undertaken and ended his connection with Allco on 28 May 1990. I have no doubt that this period was devastating for the plaintiff, with the takeover of Allco and his relationship with that company ending on such a sour note being added to his health problems. The effect of what amounted to the failure of the company to which he had devoted his life and his own departure would have been serious blows for any person, let alone one whose psyche and physical health had been so seriously affected. I have no doubt that his health made the company's demise even more catastrophic for him and seriously handicapped his ability to recover from the blow. Whilst the failure of Allco cannot, of course, be laid at the defendant's door, I consider that the plaintiff's position was made far worse, indeed, irremediably worse, by the physical and psychological effects of the negligent operation. From what I have already said, it follows that I accept that Allco's demise was a significant contributing factor in the plaintiff's troubled psychological state. At the same time, I am strongly of the view that the major contributing factor was the psychological and physical effects of the operation. Taking the evidence as a whole, I conclude that, even if Allco had remained viable, the plaintiff's capacities would have remained significantly affected by the operation's sequelae. The plaintiff had operated at the very highest level of excellence. Even one rung down on that ladder represented a very significant compromise of his business capacity and he was much more than one rung down. To use another metaphor, the plaintiff's illness did not merely push him down a rung: it pushed him over the cliff even if, for a time, he did not appreciate the extent of his fall. The increasing understanding and insight he gained as he attempted to revitalise his business position and recover financial security that he was not able to cope even with operations significantly smaller and simpler than that of Allco's, induced a significant loss of self-esteem, increased frustration and anger and, I am persuaded, a significant level of depression all of which, in their turn, contributed to his incapacity. 107 Following the plaintiff's departure from the Allco Group, the plaintiff made a number of conscientious attempts to seek out further business opportunities, several of which I have described above. I think it was reasonable to do this in the first instance rather than looking for other forms of employment. After all, he knew what he was good at and how he had thus far been able to be spectacularly successful. I do not think that a sudden change of direction was either likely or, indeed, reasonable. Moreover, I consider that the plaintiff's state of mind was such as to inhibit significantly his ability to consider other possible modes of employment, at least with any equanimity. The defendant has submitted that I should not assess the plaintiff's damages, on the basis that, absent his illness, he would probably have obtained directorships and consultancies of significant economic value, arguing that even if he had been healthy he would have looked to companies which he could control for the purpose of ensuring not only job security but also a base from which he would hope to develop another Allco. It is then submitted that the plaintiff's failure to identify appropriate business opportunities was simply due to the general economic situation combined with his mode of selection that happened to be unsuccessful, it being clear that the kind of opportunity hypothesised was relatively rare. The thrust of this argument is that, even had the plaintiff been well, his financial situation would not have been, in the result, very different to what actually transpired. In other words, the fundamental cause of his financial loss was the failure of the Allco Group, not the defendant's operation. The cogency of this argument is more apparent than real. I find it unconvincing. I am quite persuaded, both by the medical and lay evidence including, in particular, that of Mr Turner, Mr Fletcher and Mr Morris that the plaintiff's search for business opportunities was seriously compromised by his health. I consider that, although considerable uncertainties remain (in respect of which some adjustment will need to be made for vicissitudes) a healthy plaintiff would have quickly identified business prospects with considerable potential and, in the meantime, would have used his wide network of connections to obtain other worthwhile employment. The plaintiff, before his operation, had operated at such a high level that he would have been an attractive addition to the board of any substantial company with business interests generally similar to those of Allco and that he would have had the physical and mental energy as well as the flexibility to identify various other opportunities open to him. The defendant concedes there has been a diminution in the plaintiff's earning capacity and accepts that, prior to the initial operation, the plaintiff had the capacity – physical, mental and emotional – to work as the managing director of a corporation of substantial size. Nor is it disputed that, subsequent to the operation or series of operations, probably mainly, but not entirely, for psychological or emotional reasons, the plaintiff had lost some of this capacity. It is also acknowledged by the defendant that, in varying degrees, that loss of capacity has continued throughout the period up to the present day. However, as I have said, the defendant in substance submits that, even if the plaintiff had been fit and well, he would not have continued in a full time executive role either in the Allco group or, after its demise, to seek full time executive or consulting employment of one kind or another since he would have been seeking for companies which he could purchase and develop. If it is more probable than not that the plaintiff, indeed, would have only taken part time consultancy or executive work whilst looking for a company in which to invest for the purpose of developing its business, the question arises whether he would have been successful in so doing and, if successful, the extent in economic terms of such success. One successful entrepreneurial undertaking may have resulted in his making many millions and the measure of damages, if ill-health resulting from the defendant's negligence caused his failure, would be usefully described as the loss of a chance: Malec v JC Hutton Pty Limited (1990) 169 CLR 638; Norris v Blake (No 2) (1997) 41 NSWLR 49. As distinct from the plaintiff in the latter case, the plaintiff here had a very impressive and proved track record which, amongst other things, was a sound basis for inferring that he would be likely to find a business to which he could add very considerable value. (On the face of it, this is what happened with GMB, but I am quite satisfied that the plaintiff's substantial profit on this investment was happenstance rather than due to his contribution to the business or his good judgment.) The ultimate rewards, however, must necessarily be very difficult to calculate. In the result, neither party sought to go down this route. I refer to it for the purpose only of pointing out that the defendant's argument that the plaintiff would not have sought employment of the kind envisaged by the expert witnesses called on his behalf but would, rather, have looked for a company which he could control and build, even if true, would probably not have had a significant effect on the damages that would otherwise be payable if I am persuaded (as is the case) that the chances of success of any such approach would have been seriously handicapped by the plaintiff's condition. The more appropriate approach is that described in Norris v Blake (No 2) by Clarke JA (41 NSWLR at 73), namely "to assess what it was most likely [the plaintiff] would earn during the rest of his working life and adjust this for contingencies including the possibility that he might have done far better". The plaintiff submitted, in essence, that the proper approach is to determine first whether he would have been able to take executive and consultative work had he been well, value that work in accordance with the very substantial evidence on comparable incomes that has been tendered, and then to assess damages upon the basis that the plaintiff would have probably earned an amount of that order but for his illness, whether as a result of seeking employment of that kind or by way of earnings from a business which he had nurtured and developed. Bearing in mind the plaintiff's uninjured capacities, I am of the view that he would have obtained executive or consultative work within a relatively short time of the demise of Allco and would also have looked for businesses in which to invest. He obviously had a very substantial capacity for hard work; indeed, I think that work (as his wife said) was virtually his raison d'etre and the inability to undertake it at a level remotely similar to that which he had spent most of his life doing was catastrophic. Australians, I think, find it relatively easy to understand how calamitous it might be for an outstanding sportsman to be rendered unable to compete by injuries. But this will very likely be true of any person whose life is committed to a particular pursuit and who has achieved a high level of both excellence and recognition. The plaintiff was in this situation. I find it impossible to think that he would have accepted enforced retirement. Of course, as the history of Allco itself showed, business success cannot be guaranteed in the long term but I think it probable that the uninjured plaintiff would have identified a business capable of successful development and would probably have been able to achieve significant success. It is conservative, I consider, to measure that success commensurately with his likely earnings as a senior executive or consultant and director. Thus, I reject the defendant's submission that the plaintiff would probably have chosen, as an alternative to other employment, to seek out, invest in and manage a company which he would control or, at least, the corollary argument that he would therefore had earned less than calculated as his likely earnings from membership of boards of large companies and consultancies in industry or as a CEO or similar in a substantial company. 108 It is with these considerations in mind that I turn to the one business which was purchased by the plaintiff, although the extent to which he actually participated in its operations is subject to controversy: that is, his acquisition of GMB. The plaintiff had investigated a number of businesses in Portugal which, it will be recollected, was his country of birth. Both he and his wife had close relations still resident there. I have already mentioned the difficulties that his marriage was undergoing because of his moodiness, irritability and unpredictable emotional lability. I accept the plaintiff's evidence that a very significant factor in his seeking investment in Portugal was his desire to create some space between himself and Mrs Alves. In other ways, the decision to move to Portugal did not appear to be a wise one. After all, he had spent his business life in Australia with significant success. He was well known and, it appears, both liked and respected with a network of friends and acquaintances who, in the normal course, could have provided significant assistance to him. That this did not occur is, I think, an indication of the changes to his personality and presentation brought about by the illness. At the same time, it seems commonsense that, if he was going to find it difficult to re-establish himself in Australia he was much more likely to have difficulties in Portugal even though, of course, he spoke the language and had the connections and advantages of kin. The doubts expressed about the wisdom of this move by Mr Fletcher seem to me quite reasonable. Be that as it may, in December 1992, the plaintiff bought GMB from a partnership of three persons, one of whom, a Mr Madeira, stayed on to help manage the business. (I interpolate that Mr Madeira gave evidence in the trial. I did not think he was a credible witness.) The plaintiff moved to Portugal to manage GMB, which was located in a town called Coimbra, where the plaintiff had lived as a young man and where his parents' house was situated. For part of the time the plaintiff lived in an apartment, which he had previously purchased in Lisbon. This apartment was bought, the plaintiff thought, in late 1987 when he expected that he would be spending time there for business development, following Portugal's entry in the European Union, although this possibility was excluded after the October 1987 stock market crash. The defendant submitted that this purchase was inconsistent with the supposition that the plaintiff intended to be full time managing director of Allco and/or Babcock Australia. However, I accept the plaintiff's evidence on this point. 109 The plaintiff would usually go to Coimbra on Monday or Tuesday morning, returning to Lisbon on Thursday or Friday and stay in a hotel in Coimbra or otherwise at his parents' home, depending on the availability of staff could be employed to help him. Whilst in Coimbra, the plaintiff attended GMB's office. He examined and assessed the company's marketing arrangements, checked financial estimates and utilisation of resources and advised on more productive approaches to the firm's business. He said that would also spend some of the time sleeping, perhaps reading newspapers and books or walking around. So far as administration was concerned, the plaintiff arranged for the accounting system to be computerised and ensured it was adequate. The plaintiff said that, for the first year or so, he attended GMB's office for two or three hours, five days a week, but by 1994, when he returned to Australia, he was attending less often. When he travelled to Portugal thereafter, he went to Coimbra for about three to four weeks twice a year, once to establish the budget between October and November and then after the first quarter to sign the accounts, pay taxes and attend to other formal matters. His last attendance was 11 July 2000, the day upon which the business was sold. He said that after he returned to live in Australia, he received information on email and attending to the business took about another five hours a month. 110 The evidence shows that between October 1992 and April 1995, the plaintiff spent by far most of the time overseas in Portugal. 111 The plaintiff envisaged that, given his Portuguese background and the extensive marketing skills which he had acquired over the years, he could make a success of a business in Portugal. However, he said that he discovered immediately on his purchase of GMB that he had difficulty with relating to other people and, when his emotions became excited, he was unable to concentrate on affairs at hand. He said that when he discovered that lack of capacity "my dream of ever re-conquering my previous position dissipated and went into the water and sunk". 112 During 1993, the plaintiff spent about 177 working days in Portugal, attending the office three to four days a week. In 1994, however, the plaintiff spent only 97 working days in Portugal. In 1995, this increased to about 116 days but this was reduced in 1996 to thirty seven days. From about 1996 to when he sold GMB in 2000 the plaintiff spent, all in all, about twelve hours a month on GMB business. This is no more than an average but it does represent my view of the sense of the evidence. In 1997, the plaintiff was in Portugal for only nine working days, increasing to thirty three days in 1998, then forty eight days during 1999 and thirty three days in 2000, when, as I have mentioned, GMB was sold. 113 I note at the outset that Mr Sullivan QC for the defendant expressly eschewed any suggestion that the plaintiff or his witnesses (with the exception of Mr Madeira) did not give their evidence bona fide, and confined his criticisms to a submission of unreliability in light of the objective evidence. One of his principal attacks depended upon a comparison of the plaintiff's evidence of attacks of cholangitis with the medical records showing supply of antibiotics, the plaintiff maintaining that these attacks were almost invariably associated with fever and required antibiotic medication. If the use of antibiotics does coincide with most of the cholangitis attacks, then it is clear that they occurred far less frequently than as asserted by the plaintiff and Mrs Alves. I accept that there was a real degree of unreliability about their evidence in this respect and that they did overstate the number of occasions when attacks occurred requiring antibiotics and also, I think, attacks which did not require antibiotic treatment. However, the defendant's submission somewhat over simplified the evidence about medications which, I think, significantly understated the plaintiff's use of this medication. I am far from satisfied that records of prescriptions for antibiotics are complete; it is obvious that prescriptions are missing for 1989 and I am inclined to think that they have not all been kept during the ensuing years. At the same time, I think that the general tenor of the lay evidence, including that of the plaintiff, that he was subject to relatively frequent upsetting illness of greater or lesser intensity and which significantly compromised his weekly, if not his daily, life presents a fairly accurate picture of the plaintiff's situation. Leaving aside the question of care, the congeries of unpleasant, disconcerting and painful symptoms were, in themselves, sufficient to produce significant incapacity. The intensity and frequency of his problems fluctuated, sometimes considerably and it is clear that perhaps for months at a time the most serious symptoms largely settled. However, I accept the plaintiff's evidence that he felt unable to take on long term responsibilities for which he was accountable to a board of directors independent of his control was not a viable option. When there is added to this the stress of unpredictable health and of continuously coping with the risks of constipation and other bowel unpleasantness, the limitations on the plaintiff's capacity to undertake business responsibilities is made even clearer. To this must be added the psychological effects of his illness and its effect upon his life and self-esteem. I also bear in mind the statements made by the plaintiff from time to time to doctors as recorded in the various histories that acknowledge he is doing well and the like. I have not thought it necessary to set these out in detail. It is sufficient to say that I think that the defendant's submission to the effect that the evidence of the plaintiff and his wife as to the frequency and intensity of significantly debilitating attacks appears to be considerably gloomier than the contemporaneous records imply has a reasonable basis but, in the end, this has not been decisive. 114 The submission of the defendant, in substance, that the plaintiff's illness (so far as work capacity was concerned) simply removed his edge, as it were, is completely inconsistent with the picture which the evidence as a whole presents, bearing in mind the contemporaneous material to which Mr Sullivan referred. I have no doubt that the plaintiff suffered a massive loss of capacity which rendered him incompetent for any significant management responsibility including that which could be regarded as relatively minor. Leaving aside his physical problems the plaintiff's irritability, lack of concentration and obsession with his physical state and, I think also, his knowledge of his shortcomings made him, in my view, virtually unemployable in any position having management responsibility. Moreover, he had no realistic capacity for any other kind of work. It must have necessarily been in a lowly position and could not have been fulltime. He would have been answerable to persons formally very much subordinate to him. I accept Dr Baz' opinion that this was simply not practicable or reasonable: I think it would have substantially exacerbated his psychological and emotional problems. 115 The defendant did not dispute that the plaintiff suffered from a post traumatic stress disorder and did not cross-examine either the plaintiff or his witnesses to suggest that there were not significant changes in the plaintiff's behaviour. Mr Sullivan QC submitted, with some justice, that it is necessary to take into account the possibility or even likelihood that there would have been some very real emotional upset resulting from Allco's problems and that general damages should be discounted slightly for this reason. Furthermore, it is necessary to take into account that there would have been in all likelihood a temporary drop in earning capacity as well as actual income, whilst the plaintiff was re-establishing himself. In all the circumstances, however, it seems to me that the defendant conceded that these adjustments would be relevantly insignificant. 116 So far as the plaintiff's memory loss is concerned, it was not submitted by the defendant that I should not accept the lay evidence on this point although reliance is placed on the lack of contemporaneous complaint to the doctors to argue that it was only episodically of concern. The plaintiff particularly suffered from problems of lack of concentration when he was feeling emotionally stressed. Of course, the plaintiff must necessarily have been under considerable stress and anxiety from time to time during the course of his business activities before his operation. Although there was no direct evidence on this point, I think I should infer that he did not have any problems with memory or concentration during these times. Whatever the mechanism, it seems to me common sense that the plaintiff's problem in this area should be attributed to the operations and their sequelae, physical or psychological. The mere fact, therefore, that on psychometric testing he was able to show above average intelligence on tests which require memory is not a useful indicator of his capacity in the work situation. 117 The defendant submitted, accepting that the plaintiff had an exceptionally high capacity in the area in which he was working before his operation in June 1988, it is likely that he would have been successful in continuing in employment at that level until the age of sixty-five had it not been for that operation. The defendant conceded that, although perhaps some doubts attend the matter, irrespective of the plaintiff's intention in 1987 (the defendant contending that the plaintiff intended, in substance, to retire from full time business activity) by June 1988 his intention was to return to Australia and undertake full executive responsibility for Babcock whether he had the formal title of managing director or not. The defendant submits, however, that the plaintiff's case that he intended to return to take overall management control of the conglomerate of Allco/Babcock is unlikely to be the case although his alliance with at least one of the other founding partners would have given him control of the board and, therefore, control of the conglomerate. Even if this characterisation of the plaintiff's intentions as at June 1988 is accurate, and there is much to commend it, I do not think that it is significant for the purpose of measuring the plaintiff's economic loss. The defendant did not dispute that, in either event, his economic position would have been adversely affected to a significant degree. It is important, however, to bear in mind that the plaintiff does not seek damages for economic loss, except for days of total incapacity, up to 2 May 1990, the date upon which Allco was taken over by EPT. 118 The plaintiff called Mr John Fitzgerald who was the managing director from 1983 to 1998 of the major engineering company Goninan, which manufactured, amongst other things, mining equipment, rolling stock and the Tangara trains and known the plaintiff in a business context since 1981. He sits on a number of boards and gave evidence of the remuneration received from these activities. He said that the plaintiff "was seen as a business leader and certainly a leader in the engineering field and structural steelwork". Allco Steel was regarded as a "well-run… reasonably competent and capable company", which was in the 80's compared to Transfield in the way it was expanding. Mr Fitzgerald said that the plaintiff was recognized as a leader of the company and a very competent astute businessman and that, had he been available for other work, would have been sought after, certainly as managing director, chief executive or on a board. He would also have been able to get consultant's work. He said that there was no question that prior to 1990 "he was a leader in the business community in engineering". He was an innovator and introduced new technologies that gave Allco a competitive edge. Mr Fitzgerald lost contact with the plaintiff when he became ill and did not see him for about two years, making his acquaintance again in the early 1990's. He said that it was obvious that he had been very sick. He had lost weight and had a bad colour. He was obviously depressed and in constant pain. His characteristic enthusiasm and constant inquiries had ceased: "he was very introverted man, not at all outgoing or energetic or alert and vibrant". As it happened, the plaintiff and Mr Fitzgerald spoke in very general terms about the possibility of becoming involved in rescuing Carrington Slipways. Although his recollection about this was vague, Mr Fitzgerald said that he "would have been surprised" at the plaintiff's enquiry, given the state of his health and did not think that he was capable of playing a leading role in the management of a company of that kind. When he saw the plaintiff in the last year or so, he thought he looked a lot better but complained of constant pain and discomfort, with some good days. 119 Both parties adduced extensive evidence from experts dealing with the plaintiff's economic loss. For convenience, I propose to deal with their evidence in the order in which the witnesses were called. 120 Mr Peter Ross of Bayle Management Services carried out a salary review for a person at managing director level for 1989 and 1997 based upon the assumptions that the person had been managing director at Allco Steel where the turnover and employee numbers had continued to grow from approximately $75 million and 600 people respectively in 1987, the company was profitable and it was located in New South Wales. The evidence discloses that these were reasonable, correct and appropriate assumptions. The assessment involved base salary, superannuation, company car, incentives and commissions and health/medical insurance. Mr Ross concluded that the managing director salary level for 1989 was $161,260 and for 1997 $281,120. These figures do not include a number of other usual items such as general allowance, telephone, low interest loans, parking, leave loading, discretionary expenses and fringe benefits tax which could add about $46,000. On the assumption that, after 1997, when the plaintiff reached the age of 65, he would have worked as an executive director of a company of the same size three days a week, Mr Ross assessed his earnings at between $900 to $1000 per day. There is no issue that Mr Ross was qualified to give the opinion to which he deposed. The data upon which he relied was I think, in substance, conventional and adequate for the purpose. In evidence, Mr Ross agreed that in respect both of a managing director and an executive director, if the employing company had a turnover in the order of $30 million with a proportionate reduction in employees, in all likelihood, the figures would be less than those he has specified. However, as these assumptions had not been put to him, he had not made those calculations. In the absence of ownership of substantial equity in the business, Mr Ross thought it unlikely that a person between the ages of 65 and 75 would be employed as an executive director of any substantial business for three days per week. He thought it more realistic that such a person would be appointed as, perhaps chairperson or non-executive director of a board although (again, in the absence of substantial equity in the business) he though that such a position would be less likely than not to be obtainable, in part because a director of a public company must be aged less than 72 years and in general because it is relatively rare even in private companies for a person to be appointed to a board or chair of a board after the age of 65 years, although the probabilities of such employment would be greatly increased if the assumption were added that the hypothetical person was part of an extensive business network such as that which the plaintiff had. Mr Ross also considered that the plaintiff's experience would have made him ideal for employment as a consultant both in private industry and to government. He could also have worked as an adviser, project manager or mentor which latter role is becoming increasingly significant. Mr Ross estimated that, depending of course on the market, in 1988 he could have charged between $45 and $80 per hour. He did not report on a figure for a later period. 121 The next witness was Mr Peter Rastoka, specialising in remuneration recruitment and assisting CEO's within William Mercer Cullen Egan Dell (MCED). In dealing with this witness's evidence, I think I should state at the outset that I considered him the most impressive of the experts called on this question by either party by virtue of his experience, the depth and sense of his analysis together with the data and resources available to him for the purposes of his report. Amongst other things, MCED was more optimistic about the probability that someone in the plaintiff's position would be able to obtain positions for example as executive director or chairman between the ages of 65 to 75 years. Mr Rastoka said that there were a significant number of chairmen of that age in listed and privately held organisations. Indeed, data collected by MCED indicated that least thirty per cent of directors and chairpersons are aged 60 and above. 122 MCED was informed (rightly) that the plaintiff had held the position of managing director at Alco Steel which, in 1987, had a turnover of $75 million and staff of 600. An examination was made of base salary, employment cost and total employee reward data for organisations in the $40 to $100 million turnover segment. The analysis looked at base salary, defined as annual salary excluding allowances or additional payments, employment costs, defined as annual salary, allowances, annual leave loading, superannuation, company cars and the value of other benefits provided by the employer (inclusive of fringe benefits tax) and total employee reward (TER), defined as employment cost plus actual annual incentive/bonus or commission payments. The most common form of comparison, especially over the last decade, has been at total employee reward level for positions such as managing director. This seems to me to be the most appropriate figure to use for calculating the plaintiff's economic loss. The data provided by MCED shows the market median, 75th percentile and market average. The report states that an organisation such as Allco would position itself within this market range having regard to profitability, market demand for scarce talent and peer industry positioning, amongst other considerations. The MCED report states (and I accept) that it would be fair to assume that the market average figure would be a minimum and that an organisation with continuous profitability seeking to retain a high profile incumbent or on a strong growth path led by the key executive would be more likely to assess remuneration towards the market's 75th percentile and beyond. Complexity and other challenges facing a person in the role are, of course, significant variables for setting remuneration levels and even a small organisation may pay a premium for a level of expertise which the role requires. The TER for an organisation of the posited scale was in 1988 an average of $168,318; the 75th percentile was $201,008 with the median at $162,776; for 1997 the respective figures are $274,539, $300,000 and $244,194. For organisations in the $100 million plus turnover segment, in 1998 the average amount was $201,635, the 75th percentile $244,860 and the median amount $183,449 whilst in 1997 these sums respectively were $351,890, $410,953 and $305,952. Although data was provided for organisations in the $300 million plus turnover segment, I do not think that the evidence justifies the conclusion that the plaintiff would be likely to have secured a position of managing director in an organisation of that size, although it was certainly far from unlikely. So far as employment and consulting prospects are concerned, MCED provides some useful information, sufficient for me to be able to find that, on the assumption that the plaintiff was well and functioning at his pre-June 1988 capacities, he would have had no difficulty, or relatively little difficulty, in obtaining employment as a managing director of an enterprise of about the same scale as Allco Steel. MCED conclude, so far as the plaintiff's situation is concerned – "Mr Alves' experience and achievements to 1988 are of a depth and calibre to present him as a very competitive candidate for managing director appointments and consulting assignments depending on the specific requirements of the role. Increasingly, executives are looking across national boundaries when building their careers. Mr Alves has a skill set that would make him an attractive candidate for overseas as well as in Australia." 123 MCED also considered the plaintiff's potential earning capacity. 124 MCED also reported on potential earnings from contract appointments. These appointments typically command a premium of between 20% and 50% in addition to the corresponding TER associated with the position if it was filled through a conventional staff arrangement. The premium provides an offset for conventional benefits associated with such an appointment. It appeared that the typical contract was of three months' duration with successful contractors able to renew. MCED concluded that it was reasonable to expect that the plaintiff had the capacity to earn at least an equivalent level annual remuneration (on an hourly rate basis) had he pursued contracting assignments, with a possibility of increasing his earnings by the order of 20% to 50%. Contracting arrangements, it is said, are becoming more frequent as they provide flexibility to an employer without the necessity to commit resources to engaging an executive for the long term which is associated with the need to provide administrative support. 125 MCED noted that consulting fees as reported by their sources varied greatly. On a daily basis, mainstream consulting rates as at early 2001 range from $1,600 to $6,000 a day with what are called "name players" as able to command fees of between $10,000 and $15,000 a day. In annual terms, a conservative estimate of the plaintiff's earnings based on the assumption that his services were engaged on a 60% basis for 48 weeks of the year yielded (in round figures) between $230,000 and $865,000 a year. However, MCED considered that the plaintiff, if not quite a "name player" was not far short of this standard and thus with a potential of earning annually on an engagement estimate of 60%, $1.44 million to $2.16 million. Dealing with remuneration for the role of chairman and non executive directors of boards, MCED noted that, for the period 1988 to 1995, this moved closely in line with the consumer price index with increases being passed on every three to four years adjusted to a level reflecting CPI changes in the interim. From 1995, market forces have played a greater role in determining remuneration as a result of greater levels of accountability and a scarcity of director talent. The assessment of annual fees for a chairman for 1988 is, at the median, $44,183, the 75th percentile $66,274 with an average of $53,548; in 1997 these figures were respectively $60,000, $90,000 and $72,718. For non-executive directors, in 1988 the median amount was $20,619, the 75th percentile $29,455 and at the average annual fees $22,290 with the figures in 1997 being respectively $28,000, $40,000 and $30,270. MCED considered that the plaintiff would have been a highly sought after candidate for company Boards and notes that it is common practice for directors to hold multiple appointments. 126 A major criticism of MCED's report as the starting point assumption of turnover and employee numbers based upon Allco Steel's situation in 1987-88, having regard to the plaintiff's actual executive responsibilities at the time focused, as they were (on his return from the United Kingdom) on Babcock Australia, as part of the Allco Group rather than having general executive responsibility for the Group. However, I think it appropriate to take an overall perspective. Quite apart from the plaintiff's continuing role as deputy chairman of the Board of the Group and his commanding equity position with obvious involvement in a direct, if unspecified, way in both management and policy of the Group as well as particular responsibilities for Babcock Australia, an assessment of his talents and where he would be positioned for employment must inevitability have placed great significance on his dominant role as managing director of the Group immediately before his departure for the United Kingdom. Accordingly, I do not think this criticism is valid. At all events, the difference between remuneration for a company of the size posited by MCED and one with an annual turnover of $40 million to $100 million is relatively slight. 127 A number of other criticisms were directed to Mr Rastoka in cross-examination but I do not consider that they disclosed any error in reasoning or shortcomings in the data upon which he relied. It is obvious that both MCED and Mr Rastoka personally had very significant sources of information available, some of which was in a public arena (more or less) but a significant part of which came from the firm's own internal sources, more than ample, in my view, to justify the opinions expressed in the report. 128 The defendant relied on the evidence of Mr Stephen John McClintock of Pricewaterhouse Coopers, in respect of the plaintiff's economic loss. Although this report was useful as far as it went, Mr McClintock proceeded on a number of assumptions, some of which he was instructed and others he inferred from information he was given about the plaintiff, which differed in significant respects from my view of the plaintiff's likely career had his operation not resulted in the injuries which I have described. Furthermore, Mr McClintock's expertise so far as employment opportunities and income levels is concerned, although perfectly adequate to justify the opinions he expressed, was not as substantial or convincing as that of the plaintiff's experts, whose evidence about these matters I regard as more reliable. 129 Before stating my conclusions about the plaintiff's likely career path had it not been for the disabilities caused by the defendant's negligence, I should set out in general terms my view of his character and attributes so far as they impinge on this issue, though this risks repetition of points made earlier in this judgment in dealing with the various arguments addressed by the parties. The plaintiff was an extremely successful businessman operating at a very high degree of excellence, if not at the very peak. He enjoyed success; indeed, I think it likely that business success was the major driving force in his life, in terms of which he measured his own self-worth. It was far more to him than mere financial security. He had achieved much and valued that achievement and his potential for further achievement very highly. I do not interpret his resignation as managing director of Allco as an indication of a wish to lessen the dominance which business played in his life. Rather, I consider that (as in essence he said) he wished to move on and achieve even more. Contrary to the submission that the plaintiff was looking for an easier life, I consider that vacating the office of managing director as he did was a mark of confidence in his ability to move Allco into new and expanded areas of work. Whatever nominal position he may have taken in due course, I do not doubt (certainly by the time of his operation) that he saw himself at the helm, even if responsibility was shared, although he intended to focus direct executive responsibility on Babcock Australia as part of the Allco Group. In the result, Allco's business was overtaken by events and the plaintiff could not retain his interest in it. I consider it certain that the plaintiff, had he been well, would have aggressively sought new business ventures which would provide an opportunity for the exercise of his talents and, of course, a substantial economic return. There is much in the defendant's submission that the plaintiff would have looked for a company in which he could take a substantial, if not controlling, equity interest, no doubt for a number of obvious reasons amongst which control of the affairs of the company would probably have been the most significant. However, whilst exploring such a plan, I consider that the plaintiff would have undertaken other work, in all probability consulting work and would have done so on a fulltime basis. Whether the plaintiff would have been successful in identifying a business in which he could take a substantial equity position is of course uncertain. I am quite sure, however, that the plaintiff would not have been willing to forego the rewards of assuming responsibilities of a moderate to reasonably large company if it appeared to him that investment in a smaller business (inevitable because of the funds available to him) would not yield comparable or superior rewards. Furthermore, on the assumption that his health remained sound, I think that the plaintiff was likely to have worked full time until he was virtually forced to reduce this commitment. In June 1988 the plaintiff was 56 years old and had taken significant steps towards what he hoped to be a substantial expansion in Allco's business. I am satisfied that the plaintiff would have worked full time until the age of 70 and thereafter, as long as he was able, part time. Amongst other things, the defendant submitted that I should infer that, even uninjured, it would have been likely that the plaintiff would have gone to Portugal and invested in a business such as GMB following EPT's takeover of Allco. I do not accept this submission. I think that the primary motive for the plaintiff's move to Portugal arose from his illness, especially his difficult domestic situation. He had been unsuccessful in attempting to re-establish himself in Australia, which would not have occurred, in my view, had his health been good. GMB had been suggested to him by a family friend, he had family in Portugal and hoped, I think, to make some sort of a fresh start. His investment in GMB, however, does indicate that the plaintiff was not ready to give up work entirely, indeed, that he was unable to do so. I accept his evidence that his level of actual management control was significantly limited although not so slight as he described it. The earnings of GMB and the profit that he made on its sale are some indication of what the plaintiff would be able to earn had his capacity been unaffected by his illness, in the sense that I am confident that his earnings would have been significantly greater. The plaintiff's involvement in GMB was caused by, and is indicative of, significant incapacity that resulted substantially from his injury caused by the defendant's negligence. 130 The report which I regard as most useful for the purpose of calculating the plaintiff's economic loss is that of Mr Jansen (of Ernst & Young), although I have also had regard to the evidence of Mr Linz and, to a lesser degree, Mr McClintock. I do not propose to set out here a comparative analysis of their reports. The main reason for this is that the inherent uncertainties of the likely course of events from June 1988 to the present make it inappropriate, in my view, to undertake a nice comparison of the comparable arithmetic. It is necessary to take a broad view which takes into account, not only the plaintiff's particular position, but the business and economic context in which he was working, insofar as these aspects are disclosed in the evidence. 131 It is, I think, reasonable to infer that, had the plaintiff managed to acquire an appropriate business which enabled him to exercise to the full his very considerable abilities as an entrepreneur, his financial gain would have been very substantial; of course, so were the risks. Thus, he could well have earned, one way or another, considerably in excess of the salary and emoluments of a managing director of a moderately sized company (by which I mean one with something between $40-$100 million in turnover and employees of the order of six hundred) but an appropriate discount for risk must significantly qualify any appropriate award under this head. On balance, therefore, I think that a fair assessment of an appropriate figure should be based upon the inference that, overall, he could have earned (one way or another), a sum towards the top of the range payable to a managing director of such a company. This was not really disputed by the defendant whose main submission on this point was, as I have indicated, not so much that the plaintiff would not have earned a sum of this order had he undertaken this work but, rather, that he was unlikely to have worked as a managing director or otherwise undertaken equivalent executive responsibilities even in his own company. However, the defendant's argument in this respect seems to me, as I have said, to be completely unreal. 132 Dealing first with the plaintiff's loss of income whilst in hospital, as to which there is little, if any, dispute. On the assumption that the plaintiff would have been appointed as managing director or an equivalent position in Babcock Australia and held that position until 2 March 1990, it seems to me that Mr McClintock's assessment of $23,288 (net of tax but with interest added to 28 February 2001) is the appropriate figure. Mr Jansen's calculations did not deduct the period that the plaintiff would have spent in hospital in any event and thus is overstated. If this adjustment is made to Mr Jansen's calculations the figure would, I think, be very close to that of Mr McClintock's. It seems to me, therefore, that I should accept the latter's calculations. 133 The plaintiff expressly conceded that, in respect of the period up to and including 2 May 1990 – which was the date upon which EPT acquired 100% of the shares in Allco – his only claim for economic loss is that income that he would otherwise have earned on the days he was hospitalised. Although it appears to me there were other days of complete incapacity, I do not need to consider these, in light of the concession. 134 As to economic loss from 2 May 1990, Mr Jansen's report (Exhibit AF) splits past and future components as at 1 January 2001. For simplicity, I will set out the figures so calculated but it will be necessary in due course to adjust up to the date of judgment. So far as the past is concerned, Mr Jansen's assumption is that the plaintiff would have worked as a managing director to the age of 65, thus, for practical purposes, to 30 June 1997. I have already indicated that I think that the plaintiff would have been likely to have worked fulltime past that age and most likely in a managing director role in a company in which he had a substantial equity. On the other hand, if he were employed as managing director of another – though most likely much larger – company, this employment would be likely to cease at the age of 65. It is unnecessary, for the reasons I have given, for me to attempt more certainty about his employment prospects. Each alternative was, I think, of much the same order of likelihood and each would have yielded, broadly speaking, the same economic return once adjustment for relative risk is made. Although, of course, the expert evidence proposes figures which are calculated with considerable precision, this exactitude is obviously unrealistic and gives a somewhat false impression of the nature of the exercise. Even so, I have used the figures (which are set out below) to yield an appropriate indicative sum reflecting the order of loss and at the same time providing an appropriate control. Mr Jansen assumed that the plaintiff's earning capacity was equivalent to the average of the remuneration levels for managing directors as indicated in the reports of Mr Ross and Mr Rastoka. I accept this as a reasonable assumption in the circumstances. Although Mr Jansen's figures cover salary levels, I think that the appropriate level of earnings is that represented by the TER. The annual amount, so defined, in respect of a managing director of a company with $40-$100 million turnover is calculated at between $178,933 for the year ended 30 June 1990 to $274,539 for the year ended 30 June 1997. I consider this calculation to be conservative, having regard to the skill level possessed by the plaintiff, to which I have already referred. I accept that some time may have been taken up by the plaintiff seeking a company in which he might have a significant investment and which he proposed to manage and that whilst he undertook this process, it is likely that he would have taken up consultancies to give him an income in the meantime and also to expand or reinforce his business network. Having regard to the plaintiff's position, just short of the very top talent, I think he would have been in a position, more probably than not, to charge towards the upper end of the range specified by Mr Rastoka. Accordingly, accepting that he would not have been working full time as a consultant, his income would not be substantially different from that which he would have earned as a managing director, especially at the average level assumed by Mr Jansen which, as I have said, I regard as conservative. Furthermore, I accept the evidence that demand for the expertise able to be offered by the plaintiff would have been sufficiently high as to avoid any substantial hiatus in obtaining employment of one kind or another. As it is, as no allowance appears to have been made for income between 2 May 1990 and 1 July 1990, an adequate cushion (from the defendant's point of view) is allowed for in respect of any such gap. Mr Jansen also assumed that the plaintiff would have reduced his working hours from age 65 to age 75. For the reasons I have already given, I think that this is a very conservative estimate. I think that the plaintiff, for the reasons I have already given in relation to his attitude towards and his need for work and business success, would have worked as hard as his health permitted for as long as his health permitted. There is no reason to think that he would not have been fit and well and operating at a high capacity well into his seventies. Mr Jansen assumed that the plaintiff, during this period, would have engaged in one of the following alternative roles - (A) Consultant: 3 days a week (B) One Chairmanship: 2 days a week; Three non-executive directorships: one-third day per week per directorship (C) Consultant: 1 day a week. Having regard to the plaintiff's own experience in management and his predilection for control, I think the most likely of these three alternatives is (B). Taking into account the conservatism of the assumption about working days, I think that there is already built into this assessment the need to take into account possible gaps in employment. Mr Jansen's figure as at 31 December 2000 of after tax earnings but for disabilities is estimated at $1,260,621 and the present value at 1 January 2001 of the total after tax future earnings but for disability is estimated at $677,369. Overall, I consider that a significant, although of necessity incommensurable, allowance for vicissitudes has been built in to these figures by their very conservatism. The plaintiff submits that a discount of no more than 15% would be appropriate for future loss of earnings and does not urge me to allow a lesser discount. In the circumstances, I think that 15% is fair but that it should apply to $553,825 of the amount allowed for "future" loss, a deduction, therefore, of $83,074. 135 More difficult to assess is the amount that should be taken into account in respect of the plaintiff's earnings since the operation. I accept that these earnings represent the plaintiff's actual earning capacity during this period. There can be no doubt that there should be deducted from the amount representing his earning capacity but for the defendant's negligence his actual earnings received by way of income. These are not disputed and comprise his earnings from the M B Alves Family Trust and the salary paid to him by GMB. A substantial question arises, however, as to the extent to which the dividends he received from GMB before its sale and the profit on his shares from that sale should be taken into account. So far as the dividends are concerned, Mr Jansen assumed that the time spent by the plaintiff supervising his investment in GMB should be regarded as "personal exertion earnings" and, as such, a portion of his dividends from GMB should be considered to relate to this time. It was assumed that the value of this time is equivalent to the average hourly rates for managing directors as implied by the total employee reward amounts given in the MCED report thus varying at an hourly rate between $93.46 as at 30 June 1993 to $126.88 at 30 June 1998 (this latter date being the end of the financial year in which the plaintiff received his last dividend payment from GMB). 136 The plaintiff purchased his interest in GMB for $140,000. As I have mentioned, he gave 5.3% (effectively) to each of his two children and their spouses, keeping 69.8% for himself and his wife. It follows that his share of the proceeds of sale of the Alves family interest (to use a general description) amounting to $395,200 should be reduced by the $52,000 comprising the share of his children's families and the $171,600 comprising his wife's share, leaving him with a profit of $31,600. It is submitted on behalf of the plaintiff that this sum, being a purely capital sum, ought not to be brought into account. The defendant's experts omitted to bring these proceeds into account for much the same reason: the true assessment of the extent of the plaintiff's capacity was reflected by the value per hour of the time he actually spent working on GMB's affairs. In submissions, however, the defendant argued that rewards of a capital nature may be relevant if they reflect a plaintiff's capacity to obtain economic rewards. It seems to me that, by parity of reasoning, the cost to the plaintiff of the unsuccessful search for investments – which are rightly considered as the cost of attempting to mitigate his damages – should also be taken into account. Moreover, substantial risks were involved in the GMB investment and thus, to an extent that is obviously not calculable, the profit was fortuitous. As mentioned above, I consider that the plaintiff's profit was happenstance from the point of view of his actual capacity for business judgment at the time of the investment: it was a windfall. I have already explained why I consider that the calculation of the plaintiff's economic loss by reference to CEO's salary levels is conservative. It seems to me that he would also have made profits (and, perhaps, some losses) from judicious investments that he could have managed in addition to his CEO responsibilities, as do many professional persons otherwise fully engaged in the practice of their professions. This is not the subject of specific evidence but is a reasonable common sense conclusion. It will be recalled that the sale of his Allco stock gave the plaintiff a not insignificant sum to invest. If he invested in a company which he managed, he would have had the rewards both of an income and capital kind. If he had taken employment with a large company as CEO or similar, his funds would have been otherwise invested. Overall, therefore, I consider that the profit on the sale of GMB should not be taken into account in calculating the plaintiff's economic loss, whether the appropriate sum is the entire profit or is the amount attributable to the shares of which he had the beneficial interest. 137 So far as the dividends are concerned, I have mentioned that Mr Jansen applied a portion of the plaintiff's dividends from GMB included personal exertion earnings represented by the hours worked calculated at average hourly rates for managing directors as implied by the total employee reward amounts given by MCED. Two obvious difficulties face this analysis. The first is that Mr Jansen appears to have assumed that the whole of what can accurately be described as the Alves family shares in GMB were beneficially owned by the plaintiff so that the plaintiff received all dividends. Prima facie, the plaintiff's share of the dividends would be 34.9%, namely one-half of the dividends payable in respect of the 69.8% of the shares of GMB owned by himself and his wife. The other difficulty is that I do not accept, as is clear, and indeed it is quite contrary to the plaintiff's case as I understand it, that the plaintiff was operating at a capacity reflecting that which would have secured the TER of a managing director of a company with an annual turnover of $40-$100 million. The very nub of the plaintiff's case is that this indeed represented his capacity prior to the operation (which I accept) but not his capacity thereafter (accepted also by the defendant, though submitting that his capacity was somewhat greater than that contended for by the plaintiff). Neither party seems to have appreciated this fundamental problem. Mr McClintock, in his report of 8 February 2001 (at para 126) stated - "I have been instructed that Mr Alves owned 67% of shares in GMB for the period and controlled a further 13% of shares which were held in the names of his children. Mr Alves therefore effectively controlled 80% of GMB in this period". Aside from the fact that effective control is relevant only to the operations of the company and is completely different from the notion of beneficial interest, leaving aside the error that the plaintiff's children (and their spouses) owned 10.6% of the shares, and the balance was owned jointly by the plaintiff and his wife. Again, Mr McClintock appears to have assumed that the dividends disclosed are the dividends paid to the plaintiff although the source material, being a schedule to the answer to interrogatories, Exhibit 19, refers to "all dividends" paid by GMB, albeit supplied in respect of the answer to the following question - Q Please advise the amount and source of all foreign income earned by you or your family trust for the financial year 1 July 1984 to date. A Having made reasonable enquiries the best information which I am able to provide is the amount its sources [sic] from all foreign income earned by me or the Avles Family Trust is set out in annexure B." Without more, this would amount to an admission that the whole of the income disclosed was, that of the plaintiff but, in light of the other documents provided as to the ownership of the shares, I do not think that this is the true or an appropriate interpretation of this document. The plaintiff's taxation returns (Exhibit AG) do not disclose the dividend. However, the plaintiff also tendered without objection a letter from Pricewaterhouse Coopers, the plaintiff's personal accountants, stating that Portuguese income amounts were inadvertently omitted at the time of preparation of the original returns as a result of the plaintiff's misunderstanding of the precise nature of the funds involved. The amounts brought into account in this way relate to the income years 1996 ($337,728), 1997 ($257,410), 1998 ($73,586) and 1999 ($15,423) totalling $684,147. The dividends paid for 1993 ($47,878), 1994 ($33,306) and up to 30 June 1995 (one half of $17,473, namely $8,737), totalling $89,921, were presumably not included in his Australian tax return since he was then regarded as resident in Portugal, although the plaintiff's tax return for the year ended 30 June 1995 shows him as resident in Australia. This is a mystery which I am unable to clarify. I note, however, that Mr Linz who is responsible for the letter concerning income tax return adjustments to which I have referred states in his report of 7 March 2001 (Exhibit AI, para 55) that he has assumed that the plaintiff owned 80% of the equity in GMB, which is at odds with the actual share ownership to which I have already referred a number of times. Mr Linz's calculations also seem to me to be subject to the significant error of assuming that the plaintiff should be regarded as being remunerated at the average posited by Messrs Ross and Rastoka in their respective reports for a (fit and well) managing director of a large company, when on either case the plaintiff could not work at this level. Mr Jansen relied on Mr Linz's report in respect of the gross dividends "paid to Mr Alves." At page 500 of the transcript the plaintiff stated categorically and, I think, accurately, that he acquired 80% of GMB "for me and my family" which appears to have been accepted by Mr Sullivan QC as correct. However, I do not regard Mr Alves's acceptance of the accuracy of annexure B, which was then being shown to him, as indicating that he personally received the dividends referred to as distinct from his family. 138 In Husher v Husher & Anor (1999) 197 CLR 138, the question arose as to the significance for the assessment of damages for loss of earning capacity of the circumstance that the plaintiff was in a partnership with his wife, the profits of which were created substantially by his own labour but which were divided between them because of the partnership, which was determinable at will. Gleeson CJ, Gummow, Kirby and Hayne JJ, dealing with the impairment of a plaintiff's earning capacity, said (at 142-3) - "…A person who is physically injured by the negligence of another may suffer damage in a number of ways. As has long been established, the damages to be awarded to the victim are 'that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.'" Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 39 per Lord Blackburn). If the victim's pursuit of gainful employment is interrupted or affected because of the negligent infliction of physical injury, the victim is to be compensated by an amount that reflects the financial consequences that flow from the impairment. Since at least Graham v Baker (1961) 106 CLR 340 it has been recognised that it is convenient to assess an injured plaintiff's economic loss 'by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss.'…But damages for both past loss and future loss are allowed to an injured plaintiff 'because the diminution of his earning capacity is or may be productive of financial loss.'…Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained. No doubt the past may provide important evidence about the plaintiff's earning capacity and what economic consequences will probably flow from what has happened ( Arthur Robinson (Grafton) Pty Ltd v Carter 1968 122 CLR 649 at 658 per Barwick CJ). What a worker earned in the past may provide very useful guidance about what would have been earned if that worker had not been injured. But the enquiry is an enquiry about the likely course of future events and evidence of past events does not always provide certain guidance about the future…." Their Honours went on to say (at 149) – "The assessment of damages for loss of future economic capacity involves questions of judgment and estimation. Being an attempt to predict what would have happened, the process can never be exact. The fact that calculations are made by multiplying present values of net income by the expected duration of remaining working life should not obscure that the process is necessarily inexact. Even so, the assessment of lost earning capacity requires some care in identifying (as best one can) what net income the plaintiff would have had at his or her disposal…" As was said in Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 4 by Deane, Dawson, Toohey and Gaudron JJ - "…In an action in negligence in this country an injured plaintiff recovers damages for loss or impairment of earning capacity as distinct from the direct recovery of past or future lost earnings…" Amongst other things, it is for this reason that the plaintiff receives a capital sum in respect of economic loss, even though it is calculated in substantial part by reference to posited lost income. It is essential, I think, to bear in mind that this is not an arithmetical exercise. Applying this principle to the problem of the dividends and leaving aside who received them, it is clear that they were not the product of any input by the plaintiff's wife or the other members of his family. However, there is no evidence as to how and why they came to be paid although there is some evidence that the plaintiff regarded them as repayment of a loan, whilst they were treated in the books of GMB as "an expense", whatever that might mean. Of course, dividends on shares are necessarily income and thus assessable even if they were not produced by the personal exertion of the taxpayer except to the extent involved in choosing and effecting the investment. Since it is the extent of impairment of earning capacity productive of financial loss which must be assessed for the purpose of determining the plaintiff's economic loss, where it is clear (as here) that the plaintiff has a residual earning capacity (however slight), it is reasonable to ascertain the amount that he is able to earn and deduct it from the sum that he would have been able to earn in his uninjured state in order to measure the extent of his impairment of earning capacity. This will yield a fair measure if it is established that what the plaintiff did earn reasonably reflected his actual capacity. At the same time, it is necessary to bear in mind (as I mentioned above) that the plaintiff's unimpaired capacity included the undoubted capacity to make profitable investments yielding substantial returns whether by way of dividends or capital appreciation in addition to that capacity measured by the expert evidence in this case with reference to employment as a managing director or similar role in a medium sized corporation. So considered, it seems to me that the dividends from as well as the profit on the sale of the shares in GMB should not be brought into account as measuring the true extent of the plaintiff's impaired earning capacity. Thus one is driven back to the common ground mode of assessment adopted by the experts on both sides, namely to assess the amount of work actually performed by the plaintiff and attribute an appropriate value to it, the product yielding the value of his capacity for work over the period. I repeat, however, that the experts' calculations erred by virtue of their adoption of a value reflecting the capacity of a person who was highly competent, fit and well. It is appears that, whilst working for GMB, the plaintiff was paid a salary. There is no evidence to suggest and it was not suggested to the plaintiff, that this salary was less than an appropriate sum reflecting a conventional reward for the work he actually performed. On Mr Jansen's assumption that the plaintiff averaged 144 hours a year working for GMB, my calculation results in a rate of just over $54 an hour. In this respect, I note that between 1988 and 1990 the actual rate paid to the plaintiff as a consultant was $45 an hour. In the absence of any suggestion to the plaintiff by counsel on behalf of the defendant that his salary from GMB was artificially calculated, I do not see why I should not accept that salary as a fair indication of the plaintiff's actual earning capacity during that period although there needs to be added a further amount in respect of work done by him in 1999 and 2000 for which it appears he was not paid a salary and which I think it would be inappropriate to regard as worthless. Taking those sums into account (set out in Mr Linz's report of 7 March 2001 at para 57) one is left with an average of $43 an hour. I do not, of course, consider that these calculations yield anything more than indicative sums but it does seem to me that such figures are far more realistic than calculations which are based upon an assumption that the plaintiff was capable of working, albeit only for far fewer hours, at the levels of salary proposed for a fulltime managing director of a medium sized corporation with an annual turnover of between $40-$100 million. 139 Expenses during the period relating to Portuguese travel total $30,072 as set out in Annexure B. Since the plaintiff's move to Portugal was substantially caused by his injury and was incurred, in effect, to mitigate his damage, prima facie this sum should be laid at the defendant's door. The plaintiff also incurred airfares travelling between Australia and Portugal whilst involved with GMB. Although the plaintiff went to Portugal in an attempt to re-establish some kind of business life free of the domestic difficulties largely brought about by his illness and, in effect, to mitigate his damage, I do not think that all journeys were incurred for this reason. Furthermore, had the plaintiff been uninjured, it is quite likely that he would take one overseas trip a year for recreational reasons. 140 Mr Sullivan QC for the defendant conceded that the airfares should be taken into account but submitted that they were already accounted for in the expenses noted on Exhibit B. Evidence was given by a Mr Schneider, who operated a travel agency used by the plaintiff. Mr Schneider said that from 1992 to 1996 the plaintiff used British Airways, paying approximately $6,000 - $8,000 per ticket per trip for British Airways. Mr Schneider said that he travelled two to three times a year to Europe. The plaintiff changed to KLM in 1996 and paid between $5,000 and $6,000 a trip. The plaintiff paid by his own American Express credit account. However, these records were not tendered. Mr Schneider usually assisted the plaintiff in relation to travel but in his absence another person in his office would do this. The plaintiff gave evidence that he travelled on a number of occasions with Japan Airlines but Mr Schneider said that, if so, it was not arranged by him. Some computer records were available and could have been produced by the witness on several hours notice, but were not produced in the result. Mr Schneider was shown an exhibit, listing Department of Immigration records for the plaintiff disclosing his travel to and from Australia and said that the twenty journeys there shown between November 1991 and July 2000 reflected the level of travel which he recalled the plaintiff undertaking through his agency. The Immigration records confirm that these trips were overwhelmingly undertaken using British Airways and KLM. The records also show that the plaintiff did not use Japan Airlines after February 1988 and, accordingly, his evidence that, after his operation and consequent loss of income he was unable to pay standard airfares and negotiated deals involving Japan Airlines is incorrect. The plaintiff also said that he "set another deal" with British Airways and KLM. This is accurate as to the carrier, but according to Mr Schneider, no special arrangements were made although from time to time discount fares were available and if possible, he passed those on to the plaintiff. Although the plaintiff's evidence in this respect is incorrect and reflects, of course, upon his reliability as a witness, I do not infer any more than that it was a mistake. Taking the midpoint of Mr Schneider's assessment, the KLM flights totalled $55,000 and the British Airways' flights $56,000 with a Qantas and another unidentified flight being costed at the lower fare adding $11,000. The average fare per journey was, therefore, $6100. These sums bear no relationship to the sums specified as expenses and, I am sure, not included in this description. The total sum of airfares to and from Portugal is $122,000. Of the twenty journeys in the list, eight should be deducted as likely to have been made at all events on vacation, leaving a balance of $73,200. Neither the whole of the (remaining) fares, nor the whole of the expenses were incurred to earn the salary income which represents the plaintiff's mitigation of damages. Although it smacks of neatness rather than logic, I think that an overall just result is achieved by allowing the plaintiff an amount both for airfares and expenses in the same proportion as his salary income bears to his dividends. This proportion is (near enough) 1:15. Applying this fraction to $103272, the product is (near enough) $7000, which should be deducted from total salary (rounded down) of $49,000, leaving $42,000. Considering the whole of the evidence as to the plaintiff's condition over this period, this figure broadly speaking represents my own view of the plaintiff's minimal earning capacity at this time. Accordingly – and despite the uncertainty which is concealed under the guise of apparent precision – I consider that I should adopt it for the purposes of calculating the plaintiff's damages. 141 I now move to the assessment of the cost of the plaintiff's domestic care arising out of his injury. The ensuing discussion sets out the salient medical issues as I understand them to have been over the period since the initial injury. It is obvious from what has already been stated that the plaintiff's physical, mental and emotional health were adversely affected by the negligent operation and it is necessary, when assessing the damages payable under this head, to take into account the needs of the plaintiff considered as a whole, provided, of course that the requisite causal relationship is established. To save repetition, it is convenient to mention at this point that I accept that the plaintiff's general feeling of ill-health and unhappiness (which degenerated into depression from time to time) affected his capacity to care for himself properly, especially in domestic matters, such as cooking, that had always been undertaken by his wife. He was also affected by memory and concentration difficulties, referable to his emotional state and probably comprising elements of post-traumatic stress disorder. The extent of the plaintiff's need for assistance arising out if the latter factors is essentially incommensurable and inextricably bound up with problems more directly occasioned by physical ill-health. Given the inevitable uncertainties, it is unreal (indeed, a pretence) to award a sum calculated by hours a day or even over a week. The plaintiff seeks an allowance of an hour a day "daily supervision" except in respect of days already the subject of a claim for care. My sense of the evidence is that this is an overstatement of the plaintiff's requirements, at least up to 1998. Even so, I consider that, over the years, the plaintiff's need for supervision, though fluctuating considerably, has been substantial. As each period mentioned below is dealt with, I make an allowance for supervision which should be understood as arising from the problems to which this paragraph adverts. That this assessment smacks of arbitrariness cannot be gainsaid. Nevertheless, having regard to the evidence as a whole, the specified allowance reflects. I think, a conservative view of the plaintiff's needs. 142 The plaintiff's claim may be considered as covering four main periods. The first of these is care claimed to have been provided by Mrs Alves whilst he was in Lingard and then Prince of Wales hospitals for the initial corrective surgery from 18 June 1988 to 13 July 1988, and for the journey home to Newcastle. Mrs Alves stayed at accommodation made available at the hospital and visited the plaintiff every day, staying virtually the whole day. During this time she helped shower him and, when he started walking, assisted him to do so. The plaintiff also submits, in substance, that his anxiety was such during this period that his emotional and psychiatric state was such that her presence, as his wife, fulfilled a need for "assistance of a kind that only a close personal relationship could best provide" and that the care of the hospital staff was not enough. I have no doubt that the presence of Mrs Alves was indeed a comfort to the plaintiff. Nor could it be doubted that, as a result of the aftermath of the defendant's operation, the plaintiff had suffered much from the feeling that his complaints of extreme pain were being ignored. It seems to me that, to adapt the language of Taylor J in Wilson v McLeay (1961) 106 CLR 523 at 528, the plaintiff's injuries were so serious "as to call for such comfort and consolation as…[his wife's] reasonable attention could provide". Wilson v McLeay was cited with approval by Stephen and Mason JJ in Griffiths v Kerkemeyer (1977) 139 CLR 161 respectively at 171ff and 191. Even so, the test is whether it is "reasonably necessary to provide the services" (Griffiths v. Kerkemeyer, per Gibbs J at 168). It will not be every case in which the services – which notion can include, of course, mere personal attendance – will satisfy this test. As Mason J pointed out (139 CLR at 193) the loss is "the loss of capacity which occasions the need for the service". Here, the plaintiff's injuries and anxiety were such as to make the attendance of his wife much more than a mere domestic or personal comfort, but a need. The defendant submitted that hospital staff were available to cater to the plaintiff's medical needs and provide such personal assistance as his illness required. Moreover, there was no evidence from the plaintiff, let alone any medical evidence, as to his need for his wife's attendance. However, I am satisfied that the extremity in which the plaintiff found himself, resulting from the defendant's negligence, gave rise to the need for the help and presence of his wife. The measure of this loss is the time spent by Mrs Alves at the hospital and on the journey home in the company of the plaintiff and is compensable at the hands of the defendant. The period involved is ten hours a day for 35 days, a total of 350 hours. 143 In the period between the operation of 20 June 1988 and the biliary reconstruction of 4 January 1990 was, as I have said, the plaintiff suffered a number of disabling episodes, associated with fever, some of which required readmission to hospital. The plaintiff said that, following his discharge on 13 July 1988, he was unable to care for himself and that Mrs Alves cared for him. In effect, he need constant help with all domestic tasks, including eating, showering and dressing, this latter made very difficult by his bilateral frozen shoulders. Mrs Alves also changed his dressings. When he was able to walk, he did so with Mrs Alves' assistance. The plaintiff said that it was about ten months before he no longer needed this level of assistance. This is not to say that he was completely incapacitated for the whole of this period. The plaintiff consulted Dr Dickerson on 24 November 1988 with jaundice and pruritus but was clearly mobile. He told the doctor on 8 December that he was feeling considerably better and the history he gave to Professor Ham a week later did not suggest the need for intensive or continuous care. When he saw Dr Walker a few days after, he seemed fit and well except for complaining of painful restrictions of his right shoulder. On 30 December his complaint was of further abdominal pain and right quadrant tenderness, with no suggestion of immobility. From the beginning of the New Year in 1989, the plaintiff recommenced attendance at work. Dr Martha Baz, an Occupational Physician called by the plaintiff and assessed him on 16 December 1999. In her opinion 24 hours' assistance could reasonably be required for six weeks following discharge from major abdominal surgery of the kind suffered by the plaintiff. Having regard to the whole of the evidence, including especially that of the plaintiff's family, I consider that this is a reasonable assessment. Indeed, the doctor was not cross-examined on this aspect of her evidence. However, the doctor's opinion that assistance for four hours a day for personal care, toileting and dressing would have been required for the 20 months following the initial surgery is, in my view, an overstatement of the plaintiff's needs; so also is her assessment that assistance for an additional six hours per day for three weeks following the plaintiff's short hospital admissions was necessary. The generality of the evidence called by the plaintiff on the care needed over this period, during which his needs clearly changed, makes it difficult to assess the extent of his care requirements with any precision. Overall, I consider that a reasonable allowance in respect of the plaintiff's immediately personal needs, together with his domestic needs (shopping, cooking, cleaning and the like) for the period after the initial six weeks following 29 July 1988 (his brief respite between 13 and 17 July should be seen as requiring 24 hours assistance by Mrs Alves) is an average of about four hours a day up to the end of the year, accepting that, except for some acute episodes on October and November, it was a gradually reducing need. In respect of the short admissions after 29 July, I would allow an additional 5 hours a day assistance – accepting the need for additional attendance – for the week following his return home. I have departed slightly upwards from the arithmetical result to allow about two thousand hours of care at home over this period. From 17 July 1988 to the end of the year, the plaintiff spent 31 days in hospital at various times. He was then obviously quite ill. However, it does not appear – so far as I can tell – that he was affected anything like to same extent as during his initial hospitalisation and I do not think that the plaintiff's needs required the full-time attendance of Mrs Alves. Overall, I think that an allowance should be made of 4 hours a day during these admissions, giving 124 hours. The plaintiff lived in Newcastle at this time and I accept that he needed Mrs Alves' help in travelling to and from Sydney for hospitalisation, a total of 40 hours. An additional 200 hours should be allowed for supervision. 144 From January 1989, when the plaintiff recommenced his attendance at work to January 1990, when he was admitted for biliary reconstruction surgery, he suffered intermittent days of significant debilitation. These cannot be precisely calculated. He attended at Babcock Australia for much of this period, with more or less difficulty and significant impairment. It will be recalled that the plaintiff went overseas for about six weeks at the end of April and returned to tell Dr Rose on 21 June that he had no problems whilst abroad, although fever and severe pain drove him to the doctor on that day and he became ill more often and more severely as the year progressed, leading to the surgery in early January 1990. Some attacks incapacitated the plaintiff for as much as a week, whilst others resolved in a day or so, sometimes less. Over this period of twelve months, I think it reasonable to allow thirty days of illness requiring rest and care, with an average of five hours a day attendance, one way or another. This totals 150 hours. Additional care from time to time of 120 hours over this period, including supervision should also be allowed. 145 The next relevant period commences with the plaintiff's admission to the Prince of Wales Hospital on 2 January 1990 for nine days for the biliary reconstruction. It is reasonable that Mrs Alves should have accompanied the plaintiff at this time and attended on him at the hospital. Overall, I allow forty hours travel and attendance. No doubt this surgery had a generally debilitating effect, but he was able to attend an Allco Board meeting on 23 January and, on 30 January, Professor Ham noted that he "has been pretty well since discharge apart from epigastric discomfort, excessive wind and burping and occasional constipation". He attended and Allco sales meeting on 9 February and a TUNRA Board meeting on 16 February. I do not accept, therefore, Dr Baz' view that the plaintiff needed 24 hours' care every day for six weeks following this operation. Mrs Alves recalled that she needed to give the plaintiff intensive care for about a month following this operation. He found it difficult and painful to move, needing help with showering and shaving and with meals. In light of the plaintiff's ability to attend work and the doctor's reports of their contemporaneous examinations, I think that Mrs Alves' recollection has somewhat extended the period and severity of the plaintiff's incapacitation. I have no doubt that he needed general care, one way or another, for about ten days after his return home and will allow twelve hours a day (as an average) for this period. Thereafter, his strength gradually returned. Doing the best I can, I think that allowance of an average of 4 hours a day for the ensuing 20 days is a reasonable assessment of the plaintiff's need of domestic care at this time. Thus, from 11 January to 4 February, I allow a total of 200 hours. 146 From February 1990 to the end of October 1990, the plaintiff claims for care under this head for one to two hours a day, involving reminding the plaintiff to take medicine, paying bills, preparing meals and taking him to the doctor if an attendance was necessary. I have no doubt that Mrs Alves cared for the plaintiff in these and many other ways over this period – indeed, for all their married lives. However, I do not think that the compensable assistance amounted to the time claimed. He was able to work for some time for much of this period. On 10 July Professor Ham noted that he "has been extremely well over the last six months with mild abdominal symptoms" and increasing weight. From 22 July to 19 September, the plaintiff was in Portugal without his wife and was – I am prepared to accept – helped on occasions by members of his family who were living there. In late September the plaintiff suffered an acute attack of cholangitis and was admitted to Lingard Hospital from 27 to 29 September, then the Prince of Wales Hospital from 2 to 5 October It appears to me that this required fairly intensive care for about three days before admission and after discharge, a total of 50 hours. For the reasons previously given, I think Mrs Alves' presence at the hospitals over this period is compensable, but not for the full period, a total of 15 hours. It took some weeks for his symptoms to settle but he was able to attend a TUNRA Board meeting on 19 October. Overall, I think a fair allowance for the whole of this period is an average of 2 hours a week, with an additional sixty hours for care during cholangitis-type attacks, plus the 65 hours of care between 24 September and 8 October. I do not accept the submission of Mr Crumpton QC for the plaintiff that, during the most serious of these attacks, care or attendance was needed for 12 hours a day. It seems to me that a more reasonable assessment is 8 hours with the less serious attacks needing, of course, less help. This yields a (rounded out) total of 200 hours for 1990. I would add 30 hours for supervision. 147 In 1991 the medical evidence suggests relatively little physical illness requiring domestic or nursing care. The lay evidence, especially that of the plaintiff's daughter Shirley, gives a markedly different picture. I accept this evidence as broadly true – indeed, it was given in somewhat broad terms, which is not surprising having regard to the elapse of time. Shirley lived with her parents until she was married in August 1991 and therefore witnessed her father's condition first-hand. She described the plaintiff's chronic irascibility and moodiness, his nervousness and agitation. She noticed that he seemed depressed and forgetful, lacking concentration and focus. His conversation often did not follow a logical sequence. He suffered attacks of cholangitis of various seriousness, from those which involved fever and almost complete incapacitation, lasting perhaps three or four days, to those which settled in a day or so. Overall, these occurred "between one and four a month". I would accept that, during these episodes, the plaintiff needed care for something from 5 to 9 hours a day. Ms Alves thought that the plaintiff was ill in this way between 30 per cent and 50 per cent of the time. No doubt the plaintiff felt significantly unwell for much of this year, giving due weight to the medical evidence and the contemporaneous medical histories (especially Professor Ham's note of 29 October) leads me to conclude that Ms Alves' recollection – as well as those of her parents – yields in retrospect a darker than realistic picture. Overall, I am prepared to allow 400 hours for domestic and personal care in 1991, with an additional allowance of 100 hours for supervision. 148 The plaintiff was in Portugal from September to December 1992. I consider that the fair interpretation of the evidence, both lay and medical, is that the plaintiff was incapacitated and in need of care to a greater or lesser extent probably for some fourteen days during this year with other episodic requirements. I consider that, overall, an allowance of 120 hours care is appropriate for 1992, with an additional 100 hours for supervision. 149 The length of the plaintiff's Portuguese stays varied from about 40 weeks in 1993 and 1994 to about 13 in 1995 and nine in 1996. The evidence as to the plaintiff's health whilst in Portugal is so general as to make it exceedingly difficult to assess fairly his need for domestic or nursing care at that time. Despite the vagueness of the evidence, I am prepared to accept that it is probable that the plaintiff suffered some debilitating attacks of illness to a greater or lesser extent during this period. However, I think that his assessment that the more serious attacks occurred two to three times a year is a retrospective exaggeration, noting (for example) that, in July 1993, the plaintiff reported to Dr Rose that he had transient episodes of colicky pain and wind about twice a month. In November 1993, Mr Taylor noted, amongst other things, depressive feelings, impaired concentration and memory – which had, I am sure, been present for some years. Dr Barclay, who saw the plaintiff shortly after, was concerned enough to suggest psychiatric treatment. Dr Hampshire diagnosed post-traumatic stress disorder in April 1994. Doing the best I can, I think that a reasonable allowance to cover all the plaintiff's care needs for 1993 and 1994 is sixty hours in each year. In 1995 and 1996 the plaintiff attended for medical care more often and, I think, these years were more difficult for him so far as incapacitating illness was concerned. Allowing 200 hours in each year for these periods, for domestic care, personal assistance and supervision required because of memory and concentration lapses is, I think, reasonable. It appears to me, taking the evidence as a whole, that over 1997, 1998 and 1999 the plaintiff suffered serious cholangitis-type attacks on about ten occasions, with about another fifteen lesser but incapacitating attacks, most of these occurring in 1999. Although this is less than is claimed by him and Mrs Alves, I do not suggest that they are untruthful, as distinct from unreliable, historians. Precision, at all events, is impossible. In respect of these episodes, I consider that an overall allowance for care of 325 hours is reasonable. Other occasional episodic care adds 120 hours and an additional allowance for supervisory attendance of 100 hours is also appropriate. I note that in 1999 the plaintiff spent about eleven weeks in Portugal. During 1999 the plaintiff suffered a severe allergic-type reaction to antibiotic medication, requiring hospitalisation. Since that time, he is anxious when he needs to take antibiotics and needs Mrs Alves to be present in case of an adverse reaction. The medical evidence is that this is most unlikely. However, the plaintiff's anxiety is causally related to his injury and an allowance should be made for this supervision. I have included this in the hours specified. In 2000 the plaintiff spent about nine weeks in Portugal. The plaintiff's histories as given to the doctors have varied as to the incidence of serious attacks in the year or so prior to the trial, although the differences may in part, at least, be explained by the omission to differentiate between such episodes, where the period of incapacitation lasted about three or four days (sometimes up to a week) and much briefer episodes, resolving in about a day. Shirley Alves said that in the twelve months prior to March 2001, the frequency of cholangitis-type attacks had increased to possibly four to six times, with lower grade infections almost doubling (I think – though it is very unclear – to twice a month). I think that, taking the evidence as a whole, I should accept that in 2000 the plaintiff suffered four episodes of illness with cholangitis-type symptoms which lasted, on average, about four days and which required about seven hours a day personal assistance and domestic care. I also accept that there were a number of additional episodes of illness with varying degrees of disablement amounting, overall, to a need for care for an additional sixty hours plus sixty hours supervision. Medication has assisted significantly with depression and thus (I infer) with the plaintiff's general ability to cope with the other continuing symptoms of his condition. There is no reason to suppose that his overall condition has improved or will do so. Accordingly, from January 2001 to the date of judgment (near enough to 22 months) the allowance for care should be calculated on the basis that the plaintiff has suffered eight moderately severe cholangitis-type attacks, lasting on average four days. An average need for care for personal assistance and domestic care of seven hours a day on these occasions yields 225 hours (rounded up). Additional care during episodes of lesser severity – varying from hours to a day or so – yields a further 200 hours. To this should be added 180 hours' supervision and intermittent need for care of a domestic kind, which I have rounded up to 300. This also represents the appropriate care allowance for the future, namely an average of 500 hours (rounded) a year. 150 So far as rates are concerned, the plaintiff relied on an analysis made by Ms Lisa Andrews of Complete Domestic Care, whose report specified varying rates from a number of appropriate providers. The level of care proposed by Ms Andrews was for a carer with Assistance in Nursing experience. The defendant submits that this experience is unnecessary on the ground that the plaintiff had not received such care. I consider that Ms Andrews' opinion is a safer basis for assessment, especially as it depends upon the information gathered by a qualified Occupational Therapist who attended on Mr and Mrs Alves to make an assessment of his needs. I accept Ms Andrews' opinion that the fair and appropriate market rate is the average derived from the rates specified in her report, including the assumption that care will be needed pro rata on weekends and the rest of the week. The hourly rates respectively for 1990 ($15.87) and 1991 ($16.40) are supplied and should be accepted. The plaintiff submits that, using these figures as benchmarks, there should be a reduction of 3% a year for 1988 and 1989, with a corresponding increase for 1992 and the ensuing years. The defendant submits that, in substance, this is inappropriate speculation and argues that the (lower) rates proposed by the Macquarie Nursing Service, which reflect its actual rates over the whole of the relevant period should be accepted. The basis for those rates is not sufficiently set out in the report tendered and this submission cannot, for at least that reason, be entirely accepted. However, they do show an overall annual increase close, on average, to 2%; I think that this rate of increase is reasonable and should be applied to the figures supplied by Ms Andrews. 151 Further claims in respect of gardening and maintenance of two hours a week are made. Although there is some inconsistency between the plaintiff's evidence and what he said to one of the defendant's experts, I am prepared to accept that the plaintiff was mostly unable undertake these tasks. However, the extent to which his difficulties are caused by the injuries resulting from the operation is unclear and there is no useful medical evidence on this point. The most probably correct position is that his general ill-health (physical and emotional) is a substantial cause of his inability to garden and undertake house maintenance. I think that 6 hours a month is a reasonable allowance in respect of this work. The periods spent overseas should be excluded. So far as the applicable rates are concerned, the plaintiff's claim is based on the (in substance, undisputed) average cost of a handyman gardener, with a 3% reduction to the 1990 rate for 1988 and 1989 and a 3% increase over the stated average rate for 1998 for 1999 to judgment. This seems to me to be appropriate. A claim for weeding twice a year is made at $150 each. This is reasonable. So far as lawn mowing is concerned, in respect of the periods spent in Australia, it is reasonable to allow for this to be done 20 times a year (taking into account seasonal changes) for an hour a time at an (averaged) rate of $30 an hour to the date of judgment. The plaintiff is now moving to his 71st year. I have no doubt that had his health been unaffected by the operation of June 1988 he would have carried on with gardening and lawn mowing as long as he was physically able to do so. No doubt in due course his ability to undertake these activities would be reduced. It would be possible to calculate an average figure over his remaining life expectancy, however, I think that an appropriate and convenient way of assessing this matter is to award an amount identical to that applying at the date of judgment for a further five years. 152 I now come to the issue of the plaintiff's out of pocket expenses arising out of the defendant's negligence. The first category concerns a claim for various expenses the plaintiff alleges arose in London because of his inability to return as planned following his gall bladder operation. His evidence was that he had planned to return to London at the end of June 1988, about three weeks after the gall bladder operation. In the result, he was unable to do so until just over a year later in 1989. The expenses of his return to London would have been paid by Allco but this arrangement no longer applied when he did return. The plaintiff claims for rent paid for 25 July to 5 August 1988 ($2,561), being the extra time it took for his London agent to identify, in the plaintiff's absence, his goods from those of the landlord's. The defendant submits that this was payable at all events and hence the fact that the plaintiff was unable to occupy the flat because of the negligent operation is irrelevant. In my view the delay in departure is causally linked to the plaintiff's enforced stay in Australia and, accordingly, this sum is allowed. For the same reason I allow insurance of $53. A claim for a telephone account of $39.24 is disallowed for the reason that there is no evidence that it was incurred by virtue of the defendant's negligence: I reject the plaintiff's evidence on this point as unreliable. The claim for $111.20 for gas used up to 5 July 1988 is rejected since the plaintiff would have incurred it at all events. The claim for $116.50 for electricity cannot be related to the relevant period and is rejected. The claims for removal and storage of the plaintiff's furniture prior to shipment to Australia cannot be allowed as there is no basis for inferring that they would not have been incurred at all events; the claim in respect of the plaintiff's motor vehicle must be rejected for the same reason. Nor is there an adequate evidentiary basis for making the defendant liable for the damage to the plaintiff's computer and printer. The plaintiff's claim for agent's fees of $4,184 seems to me to be referable to his being unable to return to London when he had arranged to do so and thus needing to obtain these services. The total sum allowed for London expenses incurred as a result of the plaintiff's inability to return as planned is therefore $6,798. 153 So far as medical expenses are concerned, these were quantified by agreement between the parties at $20,915. There is a dispute as to $3,987, which was incurred in connection with the plaintiff's prostate problems. As this would have eventually needed attention, regardless of the plaintiff's injuries, this amount is not compensable at the defendant's hand. The plaintiff's claim for $2,274 for psychological and psychiatric treatment is included in the agreed total. The defendant submits that some of this may have been referable to disability that would have arisen at all events from the events surrounding the demise of Allco. I have no doubt that the substantial cause of the plaintiff's need for this help was the impact of his illness caused by the defendant's negligence. The sum of $33 relating to the plaintiff's anaphylactic reaction to the use of antibiotic medication should not be deducted, as this occurred as a consequence of the need to take such medication to treat the plaintiff's illness caused by the defendant's negligence. The defendant submitted that I should also deduct the probable number of medical consultations that the plaintiff would have undergone at all events, by reference to the alleged average number of those consultations that occurred pre-operatively. As the medical records were tendered and clearly show the reasons for the post-operative consultations, the crucial question is whether the actual reason for the consultation claimed is relevant or not. I do not consider that there should be a deduction from the agreed total as submitted by the defendant. Accordingly, the amount allowed under this head is $16,928. Further medical expenses may have been incurred between the date of the agreement with the defendant and the date of judgment. Hopefully, this is a matter which can also be agreed between the parties. Failing this, it will be necessary for me to take further evidence and rule on the matter. 154 The plaintiff is liable to pay his medical benefits insurer (NIB) $17,975. The plaintiff submits that he is at risk of being required to pay interest on this sum under the NIB Rules. I accept the submission of the defendant that the Rules do not give any right to NIB to levy interest on the sum recovered by way of compensation or damages. Accordingly, the defendant is liable to pay the plaintiff $17,975 as claimed by NIB. There is agreement between the parties, not surprisingly, that the defendant is also liable to pay to the plaintiff the difference between the actual medical expenses and the amount defrayed by NIB and Medicare. The parties, however, are at odds as to the quantification of this sum. I have not found the evidence or the submissions easy to follow on this point, but it seems to me that the plaintiff's submission that the true gap is $4,711 plus interest of $4,412 is correct. However, I am willing to receive further submissions on this point, if required by the parties. 155 For the future, the plaintiff claims for medical expenses the cost of four consultations a year with a general practitioner, a monthly consultation with a psychiatrist, an annual consultation with a gastrointestinal specialist, an annual liver function test, biannual biliary study tests, an ultrasound to check for bowel obstruction once every five years, and an assessment and review by an occupational therapist every three years. Having regard to the past frequency of attendances on his general practitioner and to the increasing fragility which comes with age, I consider that allowance for three attendances a year is reasonable, at $35 per consultation. There is a substantial controversy between the parties as to the appropriate number of psychiatric consultations that should be allowed for. Dr Brash, who has been treating the plaintiff since May 2000 recommended that the plaintiff should receive ongoing supportive counselling "approximately every month". Dr Baz, who was called by the plaintiff, recommended fortnightly visits for two months, monthly visits for a year and bi-monthly visits for two years. Ms Fogarty, also consulted by the plaintiff, considered that he needed four to six treatment sessions of 1½ hours each. Mr Cipriani, a clinical psychologist retained by the defendant recommends a total of twelve sessions with a psychologist. The defendant also submits that the plaintiff would have needed psychiatric treatment even had their been no surgery, arising out of the demise of Allco. I reject this submission for the reasons previously given. I am inclined to give greatest weight to the opinion of Dr Brash, who has the considerable advantage of being the plaintiff's treating specialist. However, I do not think that his report should be read as proposing monthly consultations for the rest of the plaintiff's life, although no qualification is expressed. I consider that an appropriate allowance is for monthly attendances on the psychiatrist for eighteen months, bi-monthly visits for three years and twice yearly consultations thereafter. One review in the next twelve months by an occupational therapist is appropriate, but a sufficient basis has not been established to justify further reviews. There is no dispute as to annual review by a gastrointestinal specialist nor, I think, to the abdominal studies described above. I think that they are reasonably necessary. 156 The plaintiff claims the sum of $1,635 for pharmaceutical expenses as to which receipts have been tendered plus the cost of Normacol laxative at 7 kilograms a year at an estimated cost of $34 a kilogram (less that already included in the receipted claim) and twelve boxes of Panadol a year since 1988 at an average cost of $24. These total a claim of $4,831. The defendant points to the medical records specifying the prescriptions actually given by those doctors for antibiotics as demonstrating that many of the prescriptions for medication in the plaintiff's tender bundle did not relate to this medication or to his illness as caused by the defendant. Having regard particularly to the lay evidence, the likelihood of repeat prescriptions and the evidence concerning the completeness of the medical records, I have little doubt that the defendant's submission significantly understates the plaintiff's need for medication. Of course, the plaintiff had other unrelated conditions from time to time that required prescription medication and which is, no doubt, reflected in the tendered bundle. On the other hand, I am satisfied that the plaintiff did not keep anything like a complete record of his medication expenditure, in part because of his emotional state. I consider that the plaintiff's claim for a sum in the order of $1,600 for medication, including antibiotic and anti-depressants for the period to January 2001 is reasonable and was probably incurred for relevant purposes. As with medical expenses, there may well be additional sums incurred since the evidence closed and, failing agreement as to these between the parties, it may be necessary to receive further evidence on this matter. The claim for laxative medication seems to me to be reasonable, having regard especially to the evidence to which I have already referred. The claim for $312 for Panadol use over thirteen years seems to me to be reasonable, although the evidence of its actual use is slight. Accordingly, I allow the sum of $4,800 for past pharmaceutical expenses, subject to clarification of additional expenditure under this head as mentioned above. The claim of $4,000 interest seems to me to be a reasonable assessment. 157 So far as future needs for pharmaceutical products is concerned, The plaintiff claims for (on average) one script a month for anti-depressants and Valium, antibiotic medication every three months, Coloxyl, Normacol (mistakenly calculated), Gaviscon, glycerine suppositories, retinol and paracetamol (one $3 packet a week), costing (as corrected) in all $18.44 a week. The defendant disputes the need for paracetamol, Normacol and antibiotic and proposes the sum of $9.85 a week. I agree that the claim for paracetamol is excessive and allow a packet of Panadol every two months but otherwise consider that the plaintiff's claim is reasonable. The defendant also submits that the defendant should pay only that sum which the plaintiff needs to pay having regard to the provisions of s87 of the National Health Act 1953. These schemes, however, vary from year to year depending on political expediency and the application of the present scheme to the plaintiff's medications is uncertain. I reject this submission. Accordingly allow the sum of $15.94 a week. 158 The plaintiff relies on Ms Fogarty's report to support claims for a dressing stick ($19.50 every five years), an "easy reacher" ($30 every five years), long-handled shoe-horn ($7.50 every five years), shower chair with arms ($74.90 every five years), 45cm grab rail ($47.50), screen raiser ($205) and an ergonomic desk chair ($350). This claim totalling $908 is disputed by the defendant, in part for the reason that "they are all relatively inexpensive items and the plaintiff is obviously a man of some means". A more substantial reason, so far as a safety rail, is concerned is that there is no evidence that the plaintiff suffered loss of movement or from weakness in his legs. However, I accept the evidence that the plaintiff, when he suffers from cholangitis-type attacks is somewhat debilitated. The estimated cost of installation of the grab rail is $300 and a safety rail to the garage in the plaintiff's home is $750 is not supported by evidence but I think I am entitled to take a common sense view of the cost. In all, I allow $1,900. 159 Professor Ham is the plaintiff's treating specialist and it is not disputed that he has a continuing need to consult him, and travel to Sydney for this and related purposes. The defendant suggests that such attendances are not required for the rest of the plaintiff's life but, in the result, does not dispute the claim. The parties agree that the sum of $2,266 should be allowed under this head. The plaintiff submits that there is a possibility that further abdominal surgery will be necessary. The all-in cost of such a procedure is estimated at $10,000, although there is no evidence directed to this issue. The plaintiff submits that and amount of $2,000 should be allowed against the risk of such surgery being required. Although the defendant accepts that it is possible that surgery will be required, it is submitted that, as it is not probable, no allowance should be made. It seems to me that the plaintiff must make prudential provision against the risk and that this is occasioned by the defendant's negligence. The amount sought by the plaintiff is reasonable. I allow it. 160 The parties have agreed on $14,225 as the quantification of the plaintiff's claim for hospital admissions. The defendant, however, contends that the plaintiff's admission to Lingard Hospital in January 1998 should not be compensable, as it related to his prostate surgery. For the reasons previously given as to this issue, this submission should be accepted and, accordingly, $2,170 should be deducted from the total. Although the defendant also contends that the admission relating to the plaintiff's anaphylactic reaction to antibiotic should not be paid by him on the ground that the evidence is insufficient to connect this event with the plaintiff's biliary illness, I am satisfied that it did follow his taking of antibiotic medication for the purpose of allaying his biliary symptoms and that this was probably the cause of the reaction that required hospitalisation. Accordingly, this amount is allowed. There is some further dispute as to trivial amounts, which I do not think it necessary to discuss. A further $116 should be deducted in this respect. In the result, I allow the sum of $11,939 under this head. This sum has been paid by NIB and will have to be refunded by the plaintiff. For the reasons already given in connection with the claim of interest on medical expenses paid by NIB, I do not consider that interest is either claimable or payable on this debt. 161 Although a pleading point is taken by the defendant on the issue of the plaintiff's travelling expenses between Sydney and Newcastle, I am satisfied that this was obviously in issue and the defendant had a fair opportunity to deal with it in the trial. This matter aside, the major dispute between the parties concerns the significance of the plaintiff's purchase of a home in Gladesville in Sydney in December 1989, since it is clear that he continued to live in Newcastle from this date. I am satisfied that the plaintiff spent much of the period between 1989 and 1997 in Newcastle – when, of course, he was not abroad. The plaintiff points out that he has made no claim for travelling expenses related to his many attendances on doctors both in Sydney and Newcastle referrable to his illness. The claim is calculated on the basis of a return trip between Sydney and Newcastle of 330 kilometres at a rate of $0.60 per kilometre. Overall, I consider that this is a reasonable rate, it having been claimed and not controverted by the defendant in respect of future expenses. The plaintiff submits that, having regard to the moderation of his claim as mentioned above, there should be no reduction in expenses for the earlier period, when they may have been less. I think that this is a matter that should be determined in a commonsense way, having regard, of course, to the state in which the evidence has been left by the parties, principally by the plaintiff, upon whom the onus of proof lay. Accordingly, I allow the sum of $2,750 for travel expenses plus interest of $2,000. 162 As to general damages, it is unnecessary for me to repeat the account given above of the plaintiff's painful journey since Dr Patel's operation, the malignant effects of which will affect him for the rest of his life. Not only has his physical health been seriously affected, but also the attributes of personality and mental ability that, in large part, provide the means of coping and, indeed, of rebuilding – even if incompletely and on a humbler scale – that which has been destroyed or damaged. In addition to chronic physical, mental and emotional pain, the plaintiff has experienced the devastating destruction of what had given his life much of its meaning and value, namely his success as a businessman, the reputation and respect it conferred in the community of his peers and the valuable contribution that it made to his adopted country. In the end, the Court can award only money and the relationship between the sum granted and the loss suffered is necessarily arbitrary. I consider that the appropriate sum under this head is $150,000. 163 I have not calculated the total verdict. It will be necessary for the parties to do so, including interest. I direct the plaintiff to draft orders to give effect to this judgment. Failing agreement, I grant liberty to apply on 7 days' notice. The defendant must pay the plaintiff's costs. ********** IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J 10 JANUARY 2003 12957/94 MANUEL BARATA ALVES v PRAFUL PATEL ADDENDUM TO JUDGMENT 164 ADAMS J I referred in paragraph 97 above to the tender of Dr Parmagiani's report. As it happened, the tender of the report was later withdrawn and did not become part of the case of either party. Although I understood Dr Parmagiani's opinion was supportive of certain aspects of the plaintiff's case, I was at all events persuaded by the other evidence, including the psychiatric evidence set out in the judgment, of my conclusions concerning the plaintiff's mental and emotional condition. The error was, accordingly, inconsequential. 165 It will be obvious from the history of the matter that there has been a considerable period between the time of commencement of proceedings and trial. The defendant submits (without descending into detail) that this delay justifies disentitling of the plaintiff to some amount of interest. However, Mr Sullivan QC frankly conceded, "The true principle is that, 'interest is almost invariably to be allowed when claimed.'" Donellan & Anor v Watson & Anor (1990) 21 NSWLR 335 at 345, per Handley JA, quoting Faulkner v Bourke (1990) 19 NSWLR 574 at 576 and "The circumstances in which a claim for interest can be refused are rare": Perri v Flavell & Anor (No 2) (unreported NSWCA 20 September 1995)." In effect, the defendant must be able to show that the true cause of the delay was the plaintiff's fault in the sense of some significant blameworthiness. Mr Sullivan QC did not suggest to the plaintiff in cross-examination any motive or other matter from which any blameworthiness might be inferred. Nor is there any other evidence in place that would justify such a conclusion. Accordingly, although the defendant has taken the point, it must be rejected. 166 The defendant also submits that the Schedule J rates are inappropriate in this case because they do not represent the commercial rates of interest over the relevant period. However, I am bound to apply those rates: Hayden v NRMA Limited & Ors [2001] NSWCA, 445 [31]. Mr Sullivan has taken the point but again it must be rejected. ********** Last Modified: 01/15/2003 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.