New South Wales Supreme Court CITATION : Spasovic v Sydney Adventist Hospital [2003] NSWSC 791 HEARING DATE(S) : 03/03/03-07/03/03,10/03/03-14/03/03,17/03/03-21/03/03,24/03/03-25/03/03,27/03/03,28/03/03,31/03/03,01/04/03-04/04/03,07/04/03-09/04/03 JUDGMENT DATE : 12 September 2003 JUDGMENT OF : James J at 1 DECISION : Verdicts for the Defendants CATCHWORDS : Medical Negligence PARTIES : Rajko Spasovic and Kosovka Spasovic v Sydney Adventist Hospital & Ors FILE NUMBER(S) : SC 20408/97 B Donovan QC/E Pike - Plaintiffs COUNSEL : M Bozic SC - 1 Defendant D Higgs SC/L Boyd 2 & 3 Defendants T. Stern - Plaintiffs SOLICITORS : Ebsworth & Ebsworth - 1 Defendant Blake Dawson Waldron 2 & 3 Defendants SPASOVIC v SYDNEY ADVENTIST HOSPITAL 20408/97 INDEX TO JUDGMENT HEADING TO PART OF JUDGMENT PAGE Introduction 1-2 Outline of Non-Controversial or Clearly Established Facts 3-7 Nature of the First Plaintiff's Claim 7-12 The Defence Cases 12-14 Outline of the Evidence 14-18 Were the Defendants Negligent 18-190 Evidence 19-93 The Hospital's Medical Records 19-27 Evidence of the Plaintiffs, their Son Aleksandar and their Relatives and Friends 27-53 Evidence of the Hospital's Nurses 53-69 Evidence of Dr Cutter and Dr Brooks 70-93 Assessment of the Evidence 93-114 The Hospital's Medical Records 93-95 Evidence of the Plaintiffs, their Son, their Relatives and Friends 95-103 Evidence of the Hospital's Nurses 103-105 Evidence of Dr Cutter and Dr Brooks 105-114 Conclusion 114-116 Expert Evidence 116-180 Dorsch 117-132 Brew 132-142 Lance 142-156 Vinen 156-163 Thomson 163-166 Besser 166-169 Terenty 169-174 Morgan 174-178 The Expert Witnesses Generally 178-179 Determination of Whether the Defendants were Negligent 179-190 The Hospital 179-180 Dr Cutter 180-186 Dr Brooks 186-190 Conclusions 190 Did the Plaintiff have an AVM, was there a Sentinel Bleed from the AVM and was the Plaintiff's headache in the Hospital caused by the Sentinel Bleed 191-196 If a CT scan without contrast had been carried out, would it have shown the Sentinel Bleed 196-197 If the Sentinel Bleed had been discovered would the Plaintiff have been advised that he had had a cerebral haemorrhage and that he should remain at the Hospital 197 If the Plaintiff had been advised to remain at the Hospital would he have taken this advice and not have left the Hospital on the morning of Saturday 20 January 1996 197 If the Plaintiff had remained at the Hospital, would he have been kept under close observation, would any deterioration in his condition have been quickly noticed and would he have been operated on for the removal of the major haematoma, earlier than he was, by about 4 or 5 hours 197-247 Evidence 198-239 Dorsch 198-216 Brew 216-220 Lance 220-221 Besser 221 Terenty 221-229 Morgan 229-239 Determination 239-247 Step 8 239-242 Step 9 242-247 Damages 247-255 Proceedings by the Second Plaintiff 255-259 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION JAMES J Friday 12 September 2003 20408/97 RAJKO SPASOVIC v SYDNEY ADVENTIST HOSPITAL & 1 ORS JUDGMENT INTRODUCTION 1 HIS HONOUR: These are proceedings brought by the plaintiffs, Rajko Spasovic and his wife Kosovka Spasovic against the defendants, the Australian Conference Association Limited (the first defendant), Dr Roderick Seymour Brooks (the second defendant) and Dr Geoffrey Christopher Cutter (the third defendant). In the proceedings the first plaintiff Mr Spasovic claims that he suffered personal injuries, because the defendants were negligent in providing medical assessment, treatment and advice for him, while he was a patient at the Sydney Adventist Hospital at Wahroonga ("the Adventist Hospital" or "the Hospital") between Tuesday 16 January 1996 and Saturday 20 January 1996, when he was discharged from the Hospital. The second plaintiff Mrs Spasovic claims that she suffered injury from nervous shock (psychiatric injury) as a result of the defendants' negligence in providing medical assessment, treatment and advice for her husband. Although there are two plaintiffs, Mr Spasovic is the principal plaintiff and it will often be convenient to refer to him in this judgment simply as "the plaintiff". 2 The first defendant has been sued as being the company which in January 1996 controlled and managed the Adventist Hospital. The second defendant is an orthopaedic surgeon, who on 17 January 1996 performed an operation on the first plaintiff at the Hospital. However, the claim that the second defendant was negligent is based, not on the manner in which he performed this operation, but on his alleged failure to exercise reasonable care in providing medical assessment, treatment and advice for the first plaintiff, on occasions after the operation was performed. The third defendant is a general medical practitioner, who in January 1996 held a position at the Hospital described as that of "a career medical officer" ("CMO") and who in that capacity assessed, advised and treated the first plaintiff on 18 January 1996. It is alleged that the third defendant was negligent in so assessing, advising and treating the first plaintiff. It was common ground between the parties that the second defendant and the third defendant were not in January 1996 employees of the first defendant and that the first defendant was not vicariously liable for any negligence of the second defendant or the third defendant. At the hearing the first defendant and the second and third defendants were separately represented, the same counsel appearing for both the second defendant and the third defendant. 3 The plaintiffs' claim against all the defendants, stated very broadly, is that the defendants failed to exercise reasonable care in assessing and treating complaints made and symptoms exhibited by the first plaintiff, and in particular a headache, which were caused by a small cerebral haemorrhage from an arterio-venous malformation (AVM") in the first plaintiff's brain and that in consequence of the defendants' negligence the first plaintiff was discharged from the Hospital on 20 January 1996, without the small cerebral haemorrhage or the AVM having been diagnosed, and that later on the same day the first plaintiff suffered a major cerebral haemorrhage from the AVM, which has caused the first plaintiff to have very serious permanent disabilities. The second plaintiff claims that she suffered injury from nervous shock (psychiatric injury) as a result of the defendants' negligence in assessing and treating her husband. OUTLINE OF NON-CONTROVERSIAL OR CLEARLY ESTABLISHED FACTS 4 It will be convenient to set out an outline of non-controversial or clearly established facts, which will serve as a background or framework for a consideration of the evidence, of the issues, including disputed questions of fact, and of the contentions of the parties. 5 At about 7 o'clock on the evening of Tuesday 16 January 1996 the first plaintiff was cleaning a high window in the foyer of his home at Kenthurst on the north western fringe of Sydney. He was standing on a ladder, which was leaning against a wall. The ladder fell forward to the floor and the plaintiff fell with the ladder. The plaintiff suffered serious lacerations to both of his feet, particularly the left foot. The lacerations were caused by parts of the ladder cutting his bare feet. The plaintiff did not hit his head in the fall. The distance the plaintiff fell was variously estimated in the evidence as being 1.5 metres, 2.5 metres or 3 metres. 6 Mrs Spasovic was not at home when the plaintiff fell. The plaintiffs' son Aleksandar, then seventeen years old, was present. Aleksandar wrapped some tea towels around his father's bleeding feet and telephoned his mother on her mobile telephone. Mrs Spasovic returned to the house. 7 The plaintiffs went together to the Castle Hill Medical Centre. A doctor at the Medical Centre examined the first plaintiff's feet and advised him that his injuries were too severe for the doctor to treat at the Medical Centre and that the first plaintiff should go to a hospital. Mr Spasovic decided that he would go to the Adventist Hospital. He was by occupation a design project manager employed by Fletcher Construction Australia Limited and he had worked as a design project manager for that company on a building project at the Adventist Hospital 8 The Adventist Hospital did not have an emergency department of the type found in major public hospitals. However, it had an emergency service, which provided an after-hours medical consultation service for persons who presented themselves at the Hospital seeking medical treatment. 9 At the Hospital the plaintiff was seen on the night of 16 January by a Dr Greg McDonald, who took a history from the plaintiff and examined his feet. 10 Later that night the plaintiff was seen at the Hospital by the second defendant Dr Brooks, who decided that the plaintiff required surgery to his feet. Dr Brooks would have operated on the plaintiff that night, but for the fact that the plaintiff had not been fasting. Dr Brooks decided that he would operate on the plaintiff's feet the following day. The plaintiff was admitted as a patient at the Hospital. 11 On the following day Wednesday 18 January 1996, in an operation commencing at or shortly after 11 a m. which was performed under general anaesthetic, Dr Brooks debrided and sutured the plaintiff's lacerated feet. 12 After the operation had been completed, the plaintiff was taken to the orthopaedic ward at the Hospital. 13 A drip was placed in the plaintiff's arm, so that he could, by pressing a button, self-administer morphine to himself in limited doses, to control the pain from his feet. This system of self-administered analgesia was referred to in the evidence as "the PCA" (patient controlled analgesia). 14 The plaintiff remained a patient at the Hospital, until he was discharged on the morning of Saturday 20 January 1996. While he was a patient, progress notes were made about the plaintiff in the Hospital's medical records by nurses and by others, including the second defendant and the third defendant. 15 While he was patient at the Hospital, the plaintiff made complaints to the nursing staff of having a headache and certain other symptoms. 16 After the plaintiff had made such a complaint, a member of the Hospital's nursing staff requested that Dr Cutter medically review the plaintiff and Dr Cutter medically reviewed the plaintiff at some time in the mid to late morning of Thursday 18 January 1996. As previously stated, Dr Cutter was a career medical officer at the Hospital who was on duty on 18. January. The Hospital did not have any employed resident medical officers. General medical practitioners such as Dr Cutter were engaged by the Hospital as independent contractors to work twenty-four hour shifts at the Hospital. The functions of career medical officers, only one of whom was on duty at any one time, included medically reviewing patients at the Hospital, when requested to do so by a member of the nursing staff. Dr Cutter made notes of his medical review of the plaintiff in the Hospital's medical records. Dr Cutter formed the impression that the plaintiff's headache was a classic "tension headache". 17 While the plaintiff was a patient at the Hospital, he was seen each morning by Dr Brooks, usually at about 9.30. On the morning of Friday 19 January 1996, while he was being seen by Dr Brooks, the plaintiff complained to Dr Brooks that he had a headache. It was the first recorded occasion on which the plaintiff had complained to Dr Brooks of having a headache. Dr Brooks considered that the PCA might be causing the plaintiff's headache and he directed that the PCA should cease. At about 9.40 the PCA equipment was taken down. 18 While he was a patient at the Hospital, the plaintiff was visited by his wife and his son Aleksandar and by certain friends and relatives and he also had telephone conversations with some of these people, and particularly his wife. 19 On the morning of Saturday 20 January 1996 the plaintiff was discharged from the Hospital. He had been seen by Dr Brooks that morning, before he was discharged. The plaintiff's son Aleksandar drove to the Hospital, picked up his father and drove him back to the home at Kenthurst. 20 Mrs Spasovic did not go to the Hospital on the Saturday morning. She was busy with preparations for a "Slava", a family celebration to be held at the plaintiffs' home, which would be attended by an Orthodox priest and approximately thirty guests. 21 Both the plaintiffs are of Serbian extraction. The first plaintiff was born in Australia. The second plaintiff was born in a part of the former Yugoslavia and migrated to Australia as a teenager. She has a good command of English. 22 After the first plaintiff returned home on Saturday 20 January his condition progressively deteriorated. It is an issue in the case whether this progressive deterioration had already commenced and it was apparent that it had already commenced, before the plaintiff left the Hospital. At his home the plaintiff complained of an increasingly severe headache and he exhibited increasing difficulty in speaking and increasing weakness on the right side of his body. He began to lose consciousness. 23 At 5.38 in the afternoon of 20 January, a time fixed by ambulance records, Mrs Spasovic telephoned the ambulance service. She telephoned the Adventist Hospital and spoke to a male nurse, who advised her that her husband should be taken to Westmead Hospital and not back to the Adventist Hospital. 24 An ambulance arrived at the plaintiffs' home and transported the first plaintiff to Westmead Hospital, arriving at that hospital at 6.42 p m. Mrs Spasovic travelled in the ambulance with her husband. 25 At Westmead Hospital a CT scan was carried out and then an angiogram and it was ascertained that the plaintiff had a large cerebral haematoma. Professor Dorsch, a neurosurgeon, performed an emergency craniotomy on the plaintiff, which commenced at about 11 p m. The purpose, or at least the principal purpose, of the surgery was to endeavour to save the plaintiff's life. In the operation Professor Dorsch removed the cerebral haematoma and the plaintiff survived. 26 For several months after the operation the plaintiff was a patient at either Westmead Hospital or at the Mount Wilga Rehabilitation Centre. During this period the plaintiff suffered a deep venous thrombosis and a pulmonary embolism. The plaintiff finally returned home in about June 1996. The plaintiff has very serious permanent disabilities, including right sided hemiplegia and difficulties in comprehending and expressing speech. NATURE OF THE FIRST PLAINTIFF'S CLAIMS 27 It was not disputed that each of the defendants owed a duty to exercise reasonable care in providing medical services to the first plaintiff. 28 The principal claim by the first plaintiff that each of the defendants had been negligent and that thereby the first plaintiff had suffered loss or damage was based on a number of steps, which were stated in counsel for the plaintiffs' submissions substantially as follows:- 29 1. While he was a patient at the Hospital the plaintiff suffered from a headache, which, it was submitted, had certain features. 30 2. The Hospital by its nursing staff and the second and third defendants were aware, or ought to have been aware, of features of the headache, "which would require steps (to be taken) to exclude possibly sinister intracranial pathology", in order for the defendants to discharge their obligation to provide reasonable care. 31 3. The steps which were required to be taken included, at the least, the taking of a CT scan without contrast. 32 4. The plaintiff in fact had an AVM (arterio-venous malformation), a congenital defect which was located deep in his brain, and had, while in the Hospital, suffered a sentinel or warning haemorrhage or bleed from the AVM and the headache the plaintiff had while he was in the Hospital had been caused by the sentinel bleed from the AVM. 33 5. If a CT scan without contrast had been carried out, it would have shown the sentinel bleed and might have shown the AVM itself. Even if a CT scan without contrast had not shown the AVM, the discovery of the bleed would have prompted further investigations, which would have revealed the AVM. 34 6. If the sentinel bleed had been discovered, the plaintiff would have been advised that he had had a cerebral haemorrhage and that he should remain at the Hospital. 35 7. If the plaintiff had been advised to remain at the Hospital, he would have taken this advice and would not have left the Hospital on the morning of Saturday 20 January 1996. 36 8. If the plaintiff had remained at the Hospital, he would have been kept under close observation, any deterioration in his condition would have been quickly noticed and he would have been operated on for the removal of the major haematoma, earlier than he was, by about four or five hours. 37 9. If the plaintiff had been operated on earlier, the outcome for the plaintiff would have been better than it actually has been; the disabilities the plaintiff would have suffered would have been less severe than they actually have been. 38 A variant of this principal way in which the plaintiff's claim was put, which was put in submissions by counsel for the plaintiff, retained the first five steps of the principal way and then proceeded along the following lines. If the plaintiff, notwithstanding that the sentinel bleed had been discovered, had not been advised to remain at the Hospital (perhaps because of the low risk of a re-bleed from the AVM) or, having been advised to remain at the Hospital, had not taken this advice and had discharged himself (perhaps because of advice to him of the low risk of a re-bleed from the AVM or because of a desire to leave the Hospital in order to attend the Slava celebration), nevertheless he would have been advised that, if he started to fell unwell, he should seek urgent medical attention. If such advice had been given, the plaintiff would have heeded it and would have sought urgent medical attention as soon as he started to feel unwell and he would still have been operated on earlier than he was, with a better outcome for him. 39 A further way in which the plaintiff's case was put in oral submissions was that, even if the sentinel bleed had not been discovered and even if it was not negligent on the part of the defendants not to have discovered the sentinel bleed, nevertheless on the morning of Saturday 20 January 1996 the plaintiff while he was still at the Hospital was exhibiting such florid symptoms that it was negligent to discharge him. If the plaintiff had not been discharged and had been kept at the Hospital, the plaintiff would have been kept under observation and any further deterioration in his condition would have been quickly noticed, so that on this scenario as well the plaintiff would have been operated on earlier than he actually was, with a better outcome for him. 40 A still further way in which the plaintiff's case was sometimes put was that, even if the sentinel bleed had not been discovered and it was not negligent on the part of the defendants not to have discovered the sentinel bleed and even if the plaintiff appeared to be well when he was discharged, nevertheless it was negligent to discharge him, without advising him that the headache he had had in the Hospital might possibly have had a sinister cause and that, if the headache returned, he should seek urgent medical attention. If this advice had been given, the plaintiff would have heeded it and, upon his headache returning, he would have sought urgent medical attention, so that on this scenario as well the plaintiff would have been operated on earlier than he actually was, with a better outcome for him. 41 In my summary of the various ways in which the plaintiff's case was put, I have described the loss or damage which the plaintiff alleges he suffered as a result of the alleged negligence, as being the loss of a better outcome from earlier surgery after the major haemorrhage had commenced. The particulars appended to paragraph 10 of the further amended statement of claim filed on 17 April 2002 suggest a claim by the plaintiff that, if the defendants had not been negligent and the sentinel bleed and the AVM had been discovered, some kind of "operative treatment" could have been performed, which would have prevented the major haemorrhage occurring at all (perhaps by the excising of the AVM). I will return to the subject of possible preventive surgery later in this judgment but I will observe at this stage that such a claim was not ultimately pressed by counsel for the plaintiff. 42 A submission which was sometimes put by counsel for the plaintiff was that, even if the plaintiff had not proved that he had suffered actual damage as a result of the defendants' negligence, in the form of the loss of a better outcome from earlier surgery performed after he had commenced to suffer the major haemorrhage, nevertheless as a result of the defendants' negligence he had lost a chance of the major haemorrhage not occurring at all. It was submitted that, if the plaintiff had remained in Hospital, after the sentinel bleed had been detected and he had been advised to remain in Hospital, he would have remained resting in bed at the Hospital and would not have been subjected to the stress and activities of the Slava celebration at his home, which might have been responsible for triggering the major haemorrhage from the AVM. 43 Against this background of the ways in which the first plaintiff's claims against all the defendants were formulated, I will briefly indicate the claims which were most strongly pressed against the individual defendants. 44 It was submitted that the Hospital was vicariously liable for the negligence of its nurses in failing to take reasonable care in observing the plaintiff and in making notes about the plaintiff's condition in the Hospital's medical records. It was submitted that the nurses had failed to observe, or, if they had observed, they had failed to note, symptoms which were readily observed by members of the plaintiff's family or friends of the plaintiff who visited the plaintiff while he was in the Hospital or who spoke with him on the telephone. 45 It was submitted that, having regard to the symptoms he was then exhibiting, the Hospital was negligent in discharging the plaintiff on the morning of Saturday 20 January 1996. 46 As I have already indicated, it was not submitted that the Hospital was vicariously liable for any negligence of either the second defendant or the third defendant. It was not submitted (and had not been pleaded) that the first defendant had failed to exercise reasonable care in instituting or maintaining a safe system of conducting its operations at the Hospital. 47 It was submitted that Dr Cutter was negligent on 18 January 1996, in not exercising reasonable care in assessing, advising and treating the plaintiff and, in particular, in not forming an opinion that there might be a sinister intracranial cause of the plaintiff's headache such as to require the carrying out of further investigation. 48 It was submitted that Dr Brooks was negligent on 19 January 1996, in the same sort of way as it was submitted Dr Cutter was negligent on 18 January. 49 It was submitted that, having regard to the symptoms the plaintiff was then exhibiting, Dr Brooks was negligent in being a party to the discharging of the plaintiff on 20 January 1996. THE DEFENCE CASES 50 Counsel for the first defendant and counsel for the second and third defendants disputed most of the steps in the plaintiff's principal case on negligence (and the variant of the principal case). 51 It was accepted by counsel for the defendants that the plaintiff had had a headache while he was in the Hospital but it was disputed that it had some of the features, or at least that the first defendant by its nurses or the second or third defendants were aware or ought to have been aware that it had some of the features, which counsel for the plaintiff contended I should find the headache had had. It was disputed that any further steps were required to be taken to investigate the plaintiff's headache than were in fact taken and in particular that the carrying out of a CT scan had been required. 52 It was disputed, at any rate by counsel for the second and third defendants, that the plaintiff had had a AVM or that he had suffered a sentinel bleed from an AVM or that his headache had been caused by a sentinel bleed from an AVM. 53 Although no concession was made, it was less strongly disputed that, if a CT scan even without contrast had been carried out, it would have shown a sentinel bleed, if there was one, and that, if a CT scan without contrast had shown a sentinel bleed, further investigation would have been carried out, which would have revealed an AVM, if there was one. 54 It was also less strongly disputed that, if a sentinel bleed had been discovered, the plaintiff would have been advised to remain at the Hospital and that the plaintiff would have accepted this advice and would not have left the Hospital on the morning of Saturday 20 January and would have been kept under close observation at the Hospital. 55 It was disputed that, whether the plaintiff had remained at the Hospital or the plaintiff had been discharged from the Hospital, he would have been operated on for the removal of the major haematoma any earlier or much earlier than he was, and it was very strongly disputed that, even if the plaintiff had been operated on earlier than he was, the outcome for the plaintiff would have been any better at all than it actually has been, as regards the disabilities the plaintiff would have suffered. 56 It was disputed that while he was still at the Hospital on the morning of Saturday 20 January 1996 the plaintiff was exhibiting any symptoms such as would have made it negligent to discharge him. 57 It was disputed that, if no sentinel bleed had been discovered and if the plaintiff appeared to be well, it would have been negligent to discharge the plaintiff on 20 January 1996, without giving him advice that the headache he had had in the Hospital might possibly have had a sinister cause and that, if the headache returned, he should seek urgent medical attention. 58 It was submitted that, even if an AVM had been discovered, it would have been situated deep in the plaintiff's brain and the risks of surgery to remove it would have been so great as to preclude any surgery which might have prevented the major haemorrhage occurring. The craniotomy which was performed by Professor Dorsch on the night of 20 January 1996 had been performed, only when the plaintiff's condition had deteriorated to such a point that surgery was essential in order to save the plaintiff's life. 59 It was submitted that as a matter of law the plaintiff, in the absence of proof on the balance of probabilities that he had suffered actual damage as a result of the defendants' negligence, was not entitled to rely on the alleged loss of a chance of the major haemorrhage not occurring at all and that, in any case, the major haemorrhage would have occurred in any event, even if the plaintiff had remained at the Hospital. OUTLINE OF THE EVIDENCE 60 A very large amount of evidence was adduced at the hearing. 61 A pre-trial direction had been given that the evidence in chief of witnesses on issues going to liability should be in writing and most of the evidence in chief on issues going to liability was in the form of witness statements or reports. Many of the lay witnesses for the plaintiffs had made two statements, a first statement made at some time in 1996 some months after January 1996 and a second statement made in or about September 2001. Each of Dr Brooks and Dr Cutter had made more than one statement. A large number of nurses at the Hospital had made statements in February or March 1996. All of the expert medical witnesses had made at least one and often more than one report. Most of the witnesses, even if they had made a statement or a report, also gave some oral evidence in chief. Almost all witnesses were subjected to lengthy cross-examination. In referring in this paragraph to "statements" made by witnesses, I am using the word "statement" in a broad sense as including any document in which the author of the document made assertions of fact about what had happened in relation to Mr Spasovic and not necessarily in the more limited sense of a document prepared with the assistance of a lawyer for the purpose of these proceedings 62 The witnesses who gave evidence for the plaintiffs can be divided into the following groups. (1) The plaintiffs and their son Aleksandar. (2) Relatives or friends who visited the first plaintiff or who telephoned him while he was a patient at the Hospital. This group comprises the following persons:- Mrs Avramovic, Mr Bajic, Mr Dobrich, his wife Mrs Dobrich (a sister of Mrs Spasovic) and Mr Duffy. (3) Medical witnesses. This group comprises the following:- Professor Dorsch, a neurosurgeon who, as previously indicated, operated on the first plaintiff at Westmead Hospital on 20 January 1996; Professor Brew, a professor of neurology; Professor Lance, an emeritus professor of neurology; Dr Vinen, formerly head of the emergency department at Royal North Shore Hospital; Dr Thomson, a former surgeon; Dr Schnier, a radiologist; Dr Walden, a psychiatrist, who saw Mrs Spasovic for medico-legal purposes; Dr Selwyn Smith, a psychiatrist, who saw both plaintiffs for medico-legal purposes. 63 All the above witnesses gave oral evidence. There was also brief documentary evidence from some other medical witnesses. 64 None of the medical witnesses for the plaintiffs, apart from Professor Dorsch, had medically treated either plaintiff. (4) Witnesses who gave evidence about aspects of the first plaintiff's claim for damages. This group comprised:- Ms Alach, an occupational therapist, who gave evidence about the first plaintiff's needs for care; Mr Barton, who gave evidence relating to the first plaintiff's claim for damages for loss of earning capacity; Mr Rossetto who prepared calculations relating to the first plaintiff's claim for damages for loss of earning capacity; Mr McHugh, who gave evidence relating to what was submitted would have been a possible career path for the first plaintiff, if he had not been injured. Mr Ridley-Smith, the first plaintiff's present employer, who gave evidence relating to the first plaintiff's claim for damages for loss of earning capacity. 65 A large number of documents were tendered by counsel for the plaintiffs and admitted into evidence. A large volume described as "Plaintiffs' Tender Folder", which became exhibit 1, contained statements made by the plaintiffs, their son and their friends and relatives; the medical records of the Hospital relating to the first plaintiff; the Ambulance Service report about the taking of the first plaintiff by ambulance to Westmead Hospital on the evening of 20 January 1996; the clinical notes of Westmead Hospital relating to the first plaintiff for his various admissions to that Hospital between 20 January 1996 and 5 February 1996, between 12 February 1996 and 27 February 1996, between 8 May 1996 and 14 May 1996 and on 17 November 1996; radiological reports; and reports by medical practitioners including Professor Dorsch who had treated the first plaintiff while he was in Westmead Hospital. 66 Among the exhibits tendered on behalf of the plaintiffs which were frequently referred to during the hearing were the following:- 67 (a) Exhibit 10, being a document with nine numbered paragraphs (i) to (ix) which purported to state, in order, the progression of the complaints and symptoms of the first plaintiff from the time he arrived home on 20 January 1996 to the condition he was in late in the afternoon when the ambulance arrived. 68 (b) Exhibit 29, a copy of an article published in the American medical journal "Stroke", described as being an "AHA (American Heart Association) Scientific Statement" and headed "Guidelines for the Management of Spontaneous Intracerebral Hemorrhage". 69 (c) Exhibit 30, a copy of an article published in the American medical journal "Neurology" entitled "Re-bleeding leads to poor outcome in ultra early craniotomy for intracerebral hemorrhage." 70 A large volume of evidence was also adduced by the defendants. 71 Most of the documentary evidence adduced by the first defendant was in a folder described as "First Defendant's Tender Documents", which became exhibit "1D1". These documents included a statement and two reports by Dr McDonald, the doctor who saw the first plaintiff at the Hospital on the night of 16 January 1996. The documents in exhibit 1D1 also included statements by a large number of nurses and a physiotherapist, who had had some contact with the first plaintiff during his stay at the Hospital. The documents in exhibit 1D1 also included letters of instructions to, and reports from, the first defendant's expert witnesses Professor Michael Besser, a neurosurgeon, and Dr Tanya Terenty, a now retired neurologist. 72 Seven of the nurses who made statements which were included in exhibit 1D1, namely nurses Anderson, Beall, Birrell, Hunt, McClure, Race and Perkins also gave oral evidence. Sister Perkins has since married but it will be convenient to refer to her by the name by which she was known in January 1996 and which she used when making notes about the first plaintiff in the Hospital's medical records. 73 Dr Terenty also gave oral evidence. Professor Besser's medical commitments prevented him giving evidence. 74 Documentary evidence adduced on behalf of the second and third defendants included statements by Dr Cutter, notes made by Dr Brooks on 23 January 1996 and a statement made by Dr Brooks, letters of instructions to, and reports from, Professor Michael Morgan, a neurosurgeon, and Dr Yvonne Skinner a psychiatrist who examined the second plaintiff Mrs Spasovic, and a report from Dr John Stephen, an orthopaedic surgeon. Dr Cutter, Dr Brooks, Professor Morgan and Dr Skinner gave oral evidence. WERE THE DEFENDANTS NEGLIGENT 75 I will now consider the first three steps in the plaintiff's principal case, namely whether the plaintiff has established that the headache he had while he was in the Hospital had features of which the Hospital by its nursing staff or the second or third defendants were aware or ought to have been aware, such that the defendants were negligent not to have taken steps to exclude possibly sinister intracranial pathology, including the carrying out of a CT scan; in short, whether the plaintiff has established that the defendants or any of them were negligent. 76 It is necessary to make findings of fact about what features the plaintiff's headache had or at least what features the plaintiff's headache had of which the defendants or one or more of them were or ought to have been aware, and, more generally, about what happened during the plaintiff's stay in the Hospital. 77 It was submitted by counsel for the plaintiffs that I should accept evidence by the second plaintiff, the plaintiffs' son and the plaintiffs' relatives and friends about their observations of the first plaintiff while he was in the Hospital and on the basis of this evidence find that the first plaintiff's headache had features which were not recorded in the Hospital's medical records and that the existence of these features, in combination with the features of the first plaintiff's headache which were recorded in the Hospital's medical records, showed that the defendants had been negligent. 78 Alternatively, it was submitted by counsel for the plaintiffs that, even if the only features of the headache were the features described in the Hospital's medical records, the defendants would still have been negligent. 79 The evidence as to what features the plaintiff's headache had and, more generally, as to what happened during the plaintiff's stay in the Hospital is to found in:- 1. The Hospital's medical records relating to the plaintiff. 2. Evidence of the plaintiffs, their son Aleksandar and their relatives and friends. 3. Evidence of the Hospital's nurses. 4. Evidence of Dr Cutter and Dr Brooks. 80 I will deal separately with each of these classes of evidence. 1. The Hospital's Medical Records 81 Copies of the medical records of the Hospital relating to the plaintiff occupy pages 53-85 inclusive of the Plaintiff's Tender Folder exhibit 1. Copies of the part of the medical records described as "Integrated Progress Notes" are at pages 74 to 79 of exhibit 1. Although the pages of the original Integrated Progress Notes are not numbered, it is convenient to adopt the page numbers which were put on the copies of the Integrated Progress Notes in exhibit 1. The Integrated Progress Notes were generally referred to at the hearing as "the Hospital notes" and I will use that expression. Because the Hospital notes were repeatedly referred in the evidence and in submissions, I propose to set out the Hospital notes verbatim. The Hospital notes contain a number of standard medical abbreviations, most of which are obvious. A number of persons made entries in the Hospital notes. Almost all of the entries, apart from the entries made by Dr McDonald, Dr Cutter or Dr Brooks, were made by nurses. (Page 74) "16.01.96 PS – lacerations both feet HPI – fell off ladder onto feet landed on sharp end of ladder lacerations both feet PHx – ingrown toenail SHx – meds nil - Cigs 15/day – - ETOH > 50 grams > 3/week Allergies – nil O/E – well looking - obs stable (Diagram of feet) Deep lacerations no tendons exposed - Otherwise well - sore ® heel – no clinical # no swelling – mildly tender only - no pain/tenderness in lumbar spine (Page 75) - D/W Dr Brooks OR in a.m. under GA Dress – o'night c Betadine IV antibiotics Elevate legs ® calcaneus x-ray (F) Last tetanus 1989 tet tox Signature G. McDonald 16/01/96 - 12 midnight History as above Large lac sole (L) foot Small " " (R) " For debridement + repair in O.T. tomorrow a.m. (3rd on my list) (Signature) Rod Brooks (17/01/96) 0030 Pt transferred from day care unit. IV patent. P settled into bed. Pain has eased since IMI analgesia. Some ooze noted through dressing left foot. Foot of bed elevated and feet nursed on pillows. Kept NBM. E King RN (signature) 0300 Pt had not slept and requiring more pain relief – RMO contacted and IMI order changed to 3 hrly. Same given plus Normison 20 mgs – with good effect – E King RN (signature) Has not voided since admission – E King RN (signature) 0900 X-ray performed X-ray of right calcaneum done Signature 1025 Panadol x 2 orally for headaches Signature (Barbara Kennedy) Surgisponge shower + L foot re bandaged NBM HPU U/A NAD. Legs rem elevated. B Kennedy (Signature) 1510 Chaplain Initial visit Arthur Patrick (Signature) 1515 RTW @ 1400. Post op sponge. HNPU. Bandages to feet clean dry intact. Vas obs satisfactory. PCA used sparingly on RTW pain fairly well controlled. IV TKVO. Tolerating water. Feet elevated Signature (B. Kennedy) (Page 76 - 17/01/96) 2200 Patient feeling very drowsy this evening. IV therapy in situ with antibiotics given as per MR 28. PCA insitu with patient using well to control pain – pressing button many times earlier this shift but less towards evening. Vascular observations satisfactory. Post op observations complete. Temp 375 at 2200 hours. Voided 300 mls at 1600 hours. Tolerating clear fluids well O2 sats 97-98% on air. Bandages dry + intact Signature (K Perkins) 18.01.96 Night Report 0025 x 2… Panadol orally for headache Signature (R Reye) Student Nurse Pt slept intermittently. Restless most of night. IV patent and PCA being used adequately. Bandaged feet dry, circulation good. No problems. – Signature (E King) 0630 Pt still complaining of headache - Signature (E King) 0930 ORTHO – Pt satisf. post.op. Continue foot elevation, IV antibiotic. For r/v of wounds Fri am? discharge. Signature (Rod Brooks) 0945 Panadol x 2 given for headache. Signature (K Perkins) Patient states headache is in both sides of head and in lower back of head. CMO contacted re headaches and will review patient later. Signature (K. Perkins) 18/01/96 Cutter (CMO) C/O persistent headache for ? ? 48 hours. Commenced post – accident Occipito-parietal ® = (L) Vision not affected No photophobia, nausea, vomiting Position affects + Variable in severity – mostly mild Avg x 1 headache / month at home – but "different from this" Drinks coffee ++ usually (Page 77) IMP classic "Tension headache" for: fluids analgesia relaxation caffeine Signature (Dr Cutter) 1445 Condition satisfactory. Patient very restless, anxious in early hours of shift. Complaining of headache and concerned re the same. CMO notified and reviewed patient (refer to above notes). Patient given reassurance, fluids encouraged and coffee given to patient. Patient more relaxed in p.m. IV insitu TKVO for antibiotics. PCA in situ – patient using minimally to control pain. Vascular observations satisfactory. Observations – pt febrile 38 at 1000 and 375 @ 1400 hours. Encouraged not to swing legs over bed. Tolerating fluids well and voiding large amounts. Tolerating diet. Bandages to both feet intact. Hygiene needs attended. Patient currently in better spirits today and states he feels "a lot better". Signature (K. Perkins) 2000 Panadol x 2 given orally to relieve pain temperature. Signature (Fiona McClure) 2126 Mr Spasovic has been alert and orientated this shift. Tolerating diet and fluids. Observations stable as per MR2 except temperature 38 C at 1800, 38.8C at 2000 above medication given. Foot dressings dry and intact. Feet remain elevated. I.V. insitu to keep vein open for antibiotics. PCA insitu patient using moderately. Patient left resting Signature (Lipman) 2230 Back rub and pressure care given to settle. Signature (Lipman) 19.1.96 Night Report PT slept in short intervals. IV remains patent. PCA being used adequately. Dressing intact. Signature (E King) 0845 Panadeine Forte x 2 given orally for pain relief. Written in error Signature 0845 Panadol x 2 given orally for pain relief. Signature (Kerryn Chappell) (Page 78 – 19/01/96) 0930 ORTHO – wounds seen – both clean + dry Low-grade temp noted. Headaches + light headed For- cease PCA - Oral antibiotics – Remove IV - Aspirin if still has headaches later this a.m. - up on crutches this p.m. NWB on (L) foot - prob. discharge Sat a.m. Signature (Rod Brooks) 1205 Physiotherapist Mobilisation commenced NWB on (L) ft with FASF and assistance one. Hopped to corridor then returned to bed. c/o throbbing (L) ft. Will try with crutches this p.m. Signature (Karen Van de Schaar) 1230 Mr Spasovic has had a restless morning. Patient complained of headaches and dizziness. Towel bath given. Temperature was 37.8 C at 0815 hours and Panadol given by RN, with relief of high temp. Voiding well. Tolerating fluids and food fine. Bowels unopened. Observations are now satisfactory as per MR2. Patient is now resting comfortably and nil further complaints voiced to me. Signature (Carolyn Race - Student Nurse) 1440 Physiotherapist Has been mobilising with crutches. Managing relatively well. May mobilise indep. short distances. Will try with stairs tomorrow. Signature (Karen Van de Schaar) Addit Patient cheerful and using crutches to mobilise. Signature (Carolyn Race – Student Nurse) 1500 - IV + PCA removed 0940 – Headache gone @ 1100 – Nil c/o pain in feet. Signature (Julie Birrell) Wounds redressed in a.m. Cleansed with hydrogen peroxide. Wounds appear clean. Release applied, velband and bandaged. Signature (K Perkins) 2230 Patient up as desired. Both feet rebandaged. Analgesia refused. Temp 372 C at 2200 hours Signature (Caroline Kalnoky) (Page 79) – 20/01/96 20.1.96 Night Report Patient sleeping when observed. Signature (Pat Tenorio) 0915 Seen by Dr Brooks. Home today see Dr in 2 weeks. Signature (Sandra Hunt)" 2 . Evidence of the Plaintiffs, their Son Aleksandar and their Relatives and Friends (a) The first plaintiff Mr Spasovic 82 Mr Spasovic made two statements which were admitted into evidence, a first statement dated 15 June 1996, that is about five months after his stay in the Hospital, and a second statement dated 5 September 2001, that is more than five and a half years after his stay in the Hospital. 83 The first statement was written by Mr Petar Dobrich, the husband of Mr Spasovic's wife's sister, who is a solicitor "after having discussions and questions with Mr Spasovic". 84 In paragraph 1 of his first statement Mr Spasovic said that he remembered hurting his feet and going "somewhere" where "they looked at my legs". He remembered his feet hurting a lot but "I don't remember anything else hurting". 85 In paragraph 2 Mr Spasovic said inter alia:- "I hated the 'place'. I didn't like the food… 'can't remember if I'd made any telephone calls. I remember drinking drinking orange juice – no milk – no coffee – no alcohol. I can't remember if any doctor(s) came to see me". 86 In paragraph 3 Mr Spasovic said inter alia that he remembered "leaving the place. I wasn't well…I don't remember having pain or not". 87 In paragraph 4 Mr Spasovic said inter alia "I remember my Slava – I remember pain – my feet hurt – can't recall other pain… I remember perspiring profusely and having to change my shirt. When the priest was there I was standing up. I felt pain and very uncomfortable my feet hurt". 88 The second statement by Mr Spasovic of 5 September 2001 was prepared by one of the lawyers acting for him in these proceedings. 89 In paragraph 4 of his second statement Mr Spasovic said that "as to the events of 16 January 1996 and following, my memory for that period is very poor. This is an account of what I can remember". 90 In paragraphs 5 to 8 of his second statement Mr Spasovic gave an account of the ladder slipping at his home, his feet being cut, going to the Castle Hill Medical Centre and then going to the Hospital. 91 Paragraphs 9 to 13 of Mr Spasovic's second statement were in the following terms:- "9. I do not have any recollection as to the events of the next day (Wednesday 17 January 1996). 10. I recall that at some time during my admission to the hospital I was seen by a Dr Brooks on two occasions, and that I had a headache at that time. 11. I remember having headaches during my admission, and that I was crying with the pain. I also remember that I was given morphine. 12. I remember that I was initially in a room with two beds, and the person in the other bed was talking all the time to someone, which I found disturbing, and so I was moved to a private room. 13. I remember that the food was terrible". 92 Paragraphs 15, 16 and 17 of Mr Spasovic's second statement were in the following terms:- "15. Saturday 20 January 1996 was my 'slava', or name day. The slava is an important annual family day of celebration in my culture. My memory of that day is that I was to go home from hospital on that day, and had packed my belongings in preparation for that. I still had a headache, and someone gave me some Disprin to take and some to take with me when I left. 16. Aleksandar drove me home. When I got home I still had my headache. I was greeted by my wife Kris. Family and friends arrived, and later the priest of our church arrived. He held the name day service in our dining room I became really hot and sweaty, and my shirt was soaked through with perspiration. I changed my shirt. 17. I remember being very thirsty, but when I went to drink something I couldn't hold the glass properly and spilled it on the floor. I wanted to go to the toilet, and was helped upstairs by Kris and some others. The last thing I remember that day is being helped to bed". 93 Mr Spasovic gave only brief oral evidence in chief, most of which did not directly relate to his stay at the Hospital. In his evidence in chief the following question and answer occurred:- "Q. Do you have any further memory in hospital? A. No. It kind of looked at heads a lot, strong strong crying, and Sister Raleigh (?) he came to me, and Dr Brooks I had once, I don't know, once and that's all". 94 In cross-examination by counsel for the Hospital Mr Spasovic agreed that between the Court proceedings being commenced in 1997 and the making by him of his second statement he had discussed with his wife what was happening in the case, the evidence his lawyers had collected and the reports which had been obtained from the various medical experts. 95 Mr Spasovic agreed that he had no memory at all of the Saturday morning, when he left the Hospital but then said that "I don't know". As to the time he was in the Hospital on 17, 18 and 19 January "I don't know much at all". He did not remember having any telephone conversations with his wife while he was in the Hospital. The following questions and answers occurred in the cross-examination:- "Q. And you don't remember whether you had a headache or not, do you? A. Yes, I do. Headache, headache and headache all the time. Q. Not when you left the hospital, did you? A. No, no, no". 96 In cross-examination by counsel for the second and third defendants Mr Spasovic, when the assertion in his first statement "I don't remember anything else hurting" was put to him, said "Yes, because of morphine, morphine, morphine". Elsewhere in the cross-examination he said that his wife had told him that he had been given morphine while he was in the Hospital. He agreed that his memory of the events of 16 January 1996 and following was "very poor". However, he asserted that his memory had slowly come back to an extent. Mr Spasovic asserted that he had been crying with pain when a doctor was present, who he thought was Dr Brooks, but he then said that he did not know if he remembered crying in front of a doctor. He maintained "I know I cried, cried, cried, cried". 97 Mr Spasovic said that he remembered Dr Brooks coming to see him but he did not remember Dr Cutter. He remembered telling Dr Brooks that he had a headache but could not remember telling him anything else. 98 Mr Spasovic at first agreed that, after he had gone off taking morphine on the Friday his headaches had gone away altogether but he later said that he could not remember whether this had happened. 99 As regards Saturday 20 January Mr Spasovic agreed that he could not remember whether he had had a headache when he left the Hospital and he gave conflicting answers about whether he had had a headache on the Saturday earlier than about 4 or 5 o'clock in the afternoon. (b) Mrs Spasovic 100 Mrs Spasovic made two statements which were admitted into evidence, a first statement made on 7 April 1996 and a second statement made 1 September 2001. Objection was taken by counsel for the plaintiffs to the first document being described as a "statement" but it is a convenient term to use, without pre-judging the purpose for which the document was prepared. 101 In paragraph 4 of her first statement Mrs Spasovic described events at the Hospital on the night of 16 January 1996. She said that her husband was "tired but fully conscious and did not complain of headache". 102 In paragraph 5 of her first statement Mrs Spasovic said that she had visited her husband on the morning of 17 January before he went to the operating theatre. She said that "he was slightly irritable and drowsy, which I attributed to possible pre-medication. He did not complain of any headache and I stayed with him until he went to theatre at about 11 a m." 103 In paragraph 6 Mrs Spasovic said that she had visited her husband on the evening of 17 January, after his operation. Mr Spasovic appeared "drowsy, withdrawn and confused. He seemed unhappy with his surroundings and when visitors came, he said 'I don't have any food to offer you', further demonstrating his confusion. However, he did not complain of headache…". 104 In paragraph 7 Mrs Spasovic said that on the morning of 18 January Mr Spasovic telephoned her from the Hospital and asked her to bring some coffee to the Hospital, when she came to visit him. "He said he had severe headache and that it had been suggested to him by the resident medical officer that his headache may have been due to caffeine withdrawal…he stated that one of the nursing staff had been able to organise a cup of caffeinated coffee for him for the time being". 105 In paragraph 8 of her first statement Mrs Spasovic said that she visited her husband on the afternoon of 18 January "he complained of being tired and still having a headache. Despite having caffeinated coffee and being on the morphine drip, Rajko's headache persisted…". 106 In paragraph 10 of her first statement Mrs Spasovic said that on the morning of Friday 19 January her husband telephoned her a few times. "Each time he described headache that was severe enough to make him cry". He did not express any interest in the forthcoming Slava celebration, which was out of character for him. Mrs Spasovic told her husband "to tell the Hospital staff of his headaches". 107 In paragraph 11 Mrs Spasovic said that on the afternoon of Friday 19 January her husband telephoned her. Mr Spasovic said that he had spoken to "the resident medical officer. He said that this doctor had suggested the headaches may have been due to morphine or its withdrawal. Rajko was at this time asking about food, which made me presume he was not severely nauseated with his headaches". 108 In paragraph 12 Mrs Spasovic said that she and her son Aleksandar visited her husband on the Friday night. "Rajko stated that he still had headache and even though he was not crying at that point in time, he again said that the headaches had been severe enough to make him cry at times. He did not describe any nausea. He looked pale and seemed darker under his eyes than usual… he was trying to walk with the use of crutches but was unsteady". 109 In paragraph 13 of the statement Mrs Spasovic said that on the morning of Saturday 20 January her husband telephoned three times to remind their son Aleksandar to pick him up from the Hospital. She said "Rajko seemed agitated in each of these telephone calls but did not make mention of his headaches". 110 In paragraph 14 Mrs Spasovic said that after Mr Spasovic arrived home (at about 11.30 a m.) he immediately asked for some Disprin, as he still had a headache. While Mr Spasovic was on his feet he seemed very unsteady, which Mrs Spasovic attributed to his bandaged feet. He seemed uninterested in the Slava celebration. 111 In paragraph 15 and the following paragraphs Mrs Spasovic said that the parish priest arrived at about 12.30. While Mr Spasovic was standing in prayer, he broke into a profuse sweat, which was severe enough to require him to change his shirt. Mr Spasovic sat at the dining table and ate lunch over the next hour or so but he had difficulty coordinating his knife and fork. At about 2 o'clock in the afternoon Mr Spasovic complained that he still had a headache and he lay down on a couch. At about 4.30, after Mr Spasovic had had some rest, he was offered a cup of coffee but he spilt it. Mr Spasovic said that he had a bad headache which was worse on the left side. He was unable to hold a glass of water so that he could take some Disprin. He had to be assisted up the stairs to go to the toilet. After using the toilet he was more unsteady on his feet, could not speak and became semi-conscious. Mrs Spasovic telephoned an ambulance. 112 Much of Mrs Spasovic's second statement is substantially similar to the corresponding parts of her first statement. However, there is some fresh material in the second statement. 113 In paragraph 14 of her second statement Mrs Spasovic said that on the morning of Wednesday 17 January she had a telephone conversation with Mr Spasovic at about 7.30, in which he said "I've had a headache". 114 In paragraph 20 of her second statement Mrs Spasovic said that on the evening of 17 January her sister had also visited Mr Spasovic and she said that she had said to her sister on the evening of 17 January "Rajko is pretty drowsy. He seems withdrawn and confused". She said that on the Wednesday evening her husband, who had been sharing a room at the Hospital, was moved to a single room. 115 In paragraph 22 of her second statement Mrs Spasovic said that on the morning of Thursday 18 January her husband telephoned her several times saying that he had a "terrible" headache and she told her husband to tell "the Hospital staff" about the headache. 116 In paragraph 24 of her second statement Mrs Spasovic said that in a later telephone conversation on 18 January Mr Spasovic said "I've told the doctor about the headache and he told me that it may be due to the morphine". 117 In paragraph 25 Mrs Spasovic said that in a later telephone conversation on 18 January Mr Spasovic had said "the resident doctor's been to see me. I've got such a bad headache that it makes me cry". He said that the doctor had said "it could be caffeine withdrawal". Mr Spasovic said "the nurse has given me a cup of caffeinated coffee but it hasn't made any difference. Could you bring me some coffee when you come?" 118 In paragraph 26 of her second statement Mrs Spasovic said that after she arrived at the Hospital at about 2-2.30 on the afternoon of Thursday 18 January "I had a conversation to the following effect with a male doctor at the Hospital. "I. I'm concerned about my husband. He's not his usual self, and he's complaining of severe headaches. Is that normal 2 days after surgery? He: Look, it's the caffeine withdrawal, he hasn't had any coffee for 2 days. I: But he doesn't drink a lot of coffee normally anyway. Are you sure that's right? He: Look, don't worry, I'm sure it's the caffeine withdrawal and that there's nothing to worry about". I felt reassured by this conversation". 119 In paragraph 27 of her second statement Mrs Spasovic said that when she entered her husband's room on 18 January, he was being seen by a physiotherapist. Her husband said "I'm really tired. This headache is like nothing I've ever had". 120 In paragraph 28 of her second statement Mrs Spasovic said:- "On speaking to him I formed the view that his behaviour was not as it normally was. It was as though he had been drinking. He seemed disoriented. He was starting sentences and not finishing them, and which didn't make sense. What he was saying didn't seem to correlate with anything. He didn't ask how our son was. He seemed totally out of character". 121 In paragraph 29 of the second statement Mrs Spasovic said that after the physiotherapist had left, her husband said words to the effect "I've still got this headache". 122 In paragraph 31 of her second statement Mrs Spasovic said:- "I spoke to the ward sister that evening, as I was worried about Rajko, and we had a conversation to the following effect: 'I: I'm concerned that my husband's headaches have been continuing for such a long time after the anaesthetic. He doesn't get headaches, he's never suffered from headaches, let alone one that lasts continuously for two days She: It's probably caffeine withdrawal. The doctor has been to see him I don't think there's anything to worry about'". 123 In paragraph 35 of her second statement Mrs Spasovic said that when she visited her husband on the night of Friday 19 January, her husband "wasn't speaking normally, he was speaking only one word at a time". Her husband said, "This headache is so bad it's making me cry". 124 In paragraph 36 of her second statement Mrs Spasovic said:- "I went and spoke to the ward sister and had a conversation with her to the following effect: 'I: Look, this is really concerning me. I'm worried that he's got these continuous headaches'. She: Oh, it's the food that he's not used to and the coffee that he's not having that he's used to having, and the effects of the morphine. Doctor has been to see him. There's nothing to worry about. He'll be alright'". 125 Most of Mrs Spasovic's oral evidence in chief at the hearing was concerned with what services she has performed for her husband since 20 January 1996 and with her own claim for damages for nervous shock. 126 Mrs Spasovic was cross-examined by counsel for the Hospital. 127 She said that she had gone with her husband in the ambulance to Westmead Hospital and she had supplied a history to the doctors and nurses at Westmead Hospital. 128 Mrs Spasovic asserted that the document of 7 April 1996 was just like "a diary note" and was not really a "statement". By the time she made this document she was "unhappy" with what had happened at the Hospital but she denied that by then she was seriously considering taking legal proceedings against the Hospital. 129 On 19 February 1996 she had written a letter to the Health Commission but she asserted that this was a letter making enquiries and was not a complaint. In the letter she had written:- "My concern as to his care in the Sydney Adventist Hospital relates to how his changing neurological condition was not acted upon nor properly investigated by that Hospital". 130 By "neurological condition" she had meant her husband's headache. 131 She had been assisted in preparing the first statement by Dr Paul Percy, a general medical practitioner and a friend, who had said to her "I think you should put everything down on paper, as you remember at the time". 132 She had first seen a solicitor (not her present solicitor) in about June 1996. 133 She had received copies of experts' reports from the solicitors as the reports were obtained and she had read and understood these experts' reports. 134 Mrs Spasovic denied that she had discussed with members of her family what might have been done at the Hospital that could have prevented the outcome for her husband. 135 Mrs Spasovic was cross-examined about a passage in a report from Dr Walden, the psychiatrist who had seen Mrs Spasovic in connection with her own claim for damages for nervous shock. In this passage Dr Walden wrote:- "She describes feeling very guilty that she had not spoken to the doctor herself about her husband's headaches at the Hospital and blamed herself for being pre-occupied with the forthcoming family celebrations". 136 Mrs Spasovic said that she had spoken to a doctor at the Hospital, who was a resident doctor, about her husband's headache but she had not spoken to Dr Brooks. 137 The second statement had been made with a lawyer. By the time Mrs Spasovic made the second statement she had seen the Hospital notes. 138 Mrs Spasovic asserted "I knew the headaches were very important. They continued for days on end and nobody did anything about it". 139 Her previous solicitor had taken a statement from her at some stage. There was no evidence about the contents of this statement. 140 Mrs Spasovic asserted that she had a good recollection of the telephone conversation she said in paragraph 14 of her second statement she had had with her husband on the morning of 17 January, because what her husband had said in that conversation were the last words she remembered her husband speaking as a normal person. 141 On the evening of Wednesday 17 January all the visitors, Mrs Spasovic, her two sons, her sister, her sister's husband, Mr Spasovic's godson Mr Bajic and his mother, all had to be moved out of the room Mr Spasovic had been in, so that he could be moved to another room. Later in the cross-examination Mrs Spasovic said that she had been mistaken in saying that the change of rooms had occurred on Wednesday 17 January. 142 With reference to the conversation she said that she had had with the doctor on the afternoon of 18 January, she said that she had asked one of the nurses whether she could speak to a doctor and the nurse had said that the doctor was at the nurses' station. She explained the absence of any reference to this conversation in her first statement by saying that at the time of the first statement she had not thought that the conversation was important. She had not in her conversation with the doctor said that she had observed any confusion on the part of her husband. 143 Mrs Spasovic denied that she might have confused the day on which the physiotherapist had been in her husband's room but later said that she did not know whether she was mistaken and then said that her recollection of the physiotherapist being there on the Thursday might not be accurate. She remembered her husband moving around with the crutches but she did not remember him being enthusiastic or cheerful. 144 As to the conversation she said she had had with the ward sister on the evening of 18 January, she agreed that she had said nothing to the ward sister about her husband's behaviour as described by her in paragraph 28 of her second statement. 145 Mrs Spasovic was cross-examined by counsel for the second and third defendants. 146 She agreed that in paragraph 10 of her first statement she had recorded an attempt by her to ensure that the Hospital staff knew about her husband's headaches but that there was no other reference in her first statement to any attempt by her to ensure that the Hospital knew about her husband's headaches. 147 In paragraph 10 of her first statement Mrs Spasovic had said that in the telephone conversation on the morning of Friday 19 January her husband described a headache "that was severe enough to make him cry". Mrs Spasovic claimed to recall the precise words. They had stuck in her mind "very deeply". However, in the corresponding part of her second statement (par 32) she had said merely that her husband had said that the headache was "severe". 148 Mrs Spasovic was cross-examined about her evidence (second statement pars 26 and 27) in which she put the conversation she said she had had with a doctor as being on the same day as her husband was seen by a physiotherapist. She later conceded that she might have asked to speak to a nurse, and not a doctor. 149 Mrs Spasovic said that on Thursday 18 January her husband had told her that Dr Brooks believed that the headache was due to morphine. 150 Mrs Spasovic denied that she could have told staff at Westmead Hospital on 20 January that her husband had had only a "minor" headache after the fall. 151 In re-examination Mrs Spasovic was referred to various parts of the Westmead Hospital clinical notes at pp 104, 106, 135, 154, 156 and 258 of volume 1 of exhibit 1. She could not remember giving a history at the Westmead Hospital. (c) The Plaintiffs' son Aleksandar Spasovic 152 The plaintiffs' son Aleksandar Spasovic made two statements which were admitted into evidence, a first statement which is undated and a second statement dated 1 September 2001. 153 Although the first statement is undated, it is apparent from an assertion in the statement that Aleksandar was at the time of making the statement a second year university student, that the statement was made some time in 1997. The statement was taken by a solicitor in the office of the solicitor then acting for the plaintiffs. The first statement is divided into paragraphs but the paragraphs are not numbered. 154 In the first statement Aleksandar Spasovic said that his father had not complained to him of any headache on the evening of 16 January 1996 after he had had the fall. 155 Aleksandar Spasovic next saw his father, when he visited the Hospital with his mother on Friday 19 January 1996. He said that he and his mother were with his father for about three quarters of an hour or an hour. 156 A paragraph of the first statement relating to the visit on Friday 19 January was in the following terms:- "My father did not seem himself on that occasion, he was having trouble talking to the nurse, and did not seem comfortable talking to her. Normally he would have been very clear but he seemed tentative and not very clear on this occasion. He complained of headaches to the nurse, I'm not sure what he or the nurse said. Mum spoke to the nurse about coffee and food. The nurse changed the bandages on my father's feet and showed my mother how to change them as well. My father complained more than once and possibly two or three times about headaches and nightmares and his slava or party which was to be held the next day. The nurse came in and dad spoke to her about the headaches. He complained of headaches and nightmares. He also mentioned headaches again whilst we were leaving. The party the next day was our slava day which is a religious festival day". 157 The next and final paragraph in the statement was in the following terms:- "The next morning I went to pick dad up from the Sydney Adventist Hospital between 10.00 and 11.00 a m. When I arrived he was dressed, all packed and lying on his bed. He was anxious to go home. In the room I said how are you and he said alright. I asked him how are your feet, and he said alright as long as I don't stand on them. I said how have your headaches been and have you had any nightmares. He said he didn't sleep well last night, I asked him if he had told the doctor. He said yes, the doctor's given me tablets for it. I found that they were disprin. I then went to get the car and bring it round from the parking lot to the front of the building. When I got back he was in the wheelchair and I said again have you told anyone about your headaches. He said yes, I've told the nurse, the doctor has prescribed the tablet. To the best of my recollection, dad didn't have the tablets when I first went in, I guess someone gave them to him and helped him into the wheelchair. He was on the 7th floor of the hospital in any case, and very restrained. Normally he would be very talkative and would be discussing football or cricket. He didn't mention arrangements for the slava. We got home at about 11 or 11.30 a m." 158 Much of Aleksandar Spasovic's second statement was in substantially similar terms to corresponding parts of his first statement. 159 In paragraph 7 of his second statement he said that on 19 January 1996 his father had not been very clear when he was communicating with the nurse. He asserted that on 19 January his father had said to the nurse "I'm not feeling too well, my head hurts". 160 In the second statement Aleksandar Spasovic asserted that when he entered the Hospital for the second time on the morning of 20 January "He (that is his father) seemed agitated and was holding his head, which was bowed down. He seemed to be in pain". Aleksandar Spasovic said that his father was "very different to his normal self. He also looked a lot paler than usual". 161 In cross-examination by counsel for the Hospital Aleksandar Spasovic agreed that over the years he had discussed with other members of his family and particularly his mother what had happened to his father and how the disaster that had befallen his father might have been prevented. 162 He agreed that the first statement had been made at least a year to a year and a half after January 1996. At the time he made the first statement he was aware that legal proceedings had been commenced or were about to be commenced. Before making the statement, he had discussed events at the Hospital with his mother. He said that he had told his mother what he recalled and she had told him what she recalled. 163 Aleksandar Spasovic recalled the visit to the Hospital on the afternoon of 19 January as being between about 4 o'clock and 5 o'clock in the afternoon. On this visit his father "wasn't forthcoming with conversation. He seemed rather reserved". 164 Aleksandar Spasovic was asked whether his father had actually complained to him of having a headache on the Saturday morning and he replied "No, he didn't" but later he explained that answer by saying that "he (Mr Spasovic) didn't say 'oh, I've got a headache'… he said 'I've still got them'" and he said that his earlier answer had been incorrect. 165 Aleksandar Spasovic had not said in his first statement that his father had said on the Saturday morning "I've still got them" but he had said in his first statement that his father had said that he did not sleep well the previous night, which Aleksandar Spasovic took to mean that his father still had the headaches. 166 Aleksandar Spasovic accepted that on the Friday afternoon his father was able to walk with crutches and that his father was happy that he was out of bed and was "cheerful". 167 On the Saturday morning he had not seen his father having any conversation with any of the Hospital staff. 168 In cross-examination by counsel for the second and third defendants Aleksandar Spasovic said that he recalled his father giving very short, curt, brief answers in conversation after he returned home on the Saturday. 169 The following questions and answers occurred in the cross-examination of Aleksandar Spasovic by counsel for the second and third defendants:- "Q. You have said that he was having chitchat with his guests, trivial conversation in the lounge room. Is that right? A. Yes. He was sitting there having a conversation. Q. And you were there at the time when this chitchat was going on? A. Yes. Q. And after a period of time, you all of a sudden saw him speaking quite differently, missing every third word. Is that right? A. Yes. Q. And all of a sudden you saw him, unlike before, being unable to lift a tumbler at about that time? A. Yes. Q. And when you were in the lounge room before this problem was observed by you, can you give us an idea of how long he was there? Was it half an hour, an hour, a couple of hours? What was it? A. How long he was in the lounge room? Q. Yes. A. About half an hour, less than half an hour. Q. Now, can you tell us – lunch – was it served at about one o'clock? A. Approximately, yes. Q. And the lunch went from – I withdraw that. When he had these problems with his speech and lifting the cup in the lounge room, did he also at the time complain of a very severe headache? A. Yes, he did. Q. Something quite different to the type of headache that you say he complained of earlier on? It was more severe. Would you agree with that? A. Yes. Q. And roughly – unless you can give me an exact time, would you agree that roughly the complaint about the severe headache, the problem with the speech and the difficulty with lifting the glass, was that at round about five o'clock or it might have been a bit earlier or later? A. Yes. Q. What, about five? A. Probably a bit earlier. Q. About half an hour earlier? A. Give or take around that time". 170 Further questions and answers were as follows:- "Q. … an estimate, doing the best you can as to how long he was at the table with his guests, from about one o'clock to four o'clock? A. I would have said 1.30 to four o'clock or, say, two hours, two and a half hours at the table eating. Q. During that time you saw your father speaking to other guests? A. He was sitting there having a conversation, yes. Q. And I appreciate that you weren't there all the time, but the observations that you made of him didn't – you didn't see anything unusual about him at the time that he was sitting at the table with the guests eating and speaking? A. Other than the anxiety of wanting to get up and serve like my brother and I were". (d) Evidence of Relatives or Friends of the Plaintiffs 171 Evidence was given by Mrs Avramovic, a goddaughter of the first plaintiff; Mr Bajic, a godson of the first plaintiff; Mrs Dobrich, a sister of the second plaintiff; Mr Dobrich, Mrs Dobrich's husband; and Mr Duffy, a fellow employee of the first plaintiff. (i) Mrs Avramovic 172 As happened with the first plaintiff, the second plaintiff and Aleksandar Spasovic, two statements by Mrs Avramovic were admitted into evidence. As in the case of those three witnesses, counsel for the plaintiffs relied on the later of the two statements rather than the earlier. However, as in the case of those three witnesses, I will begin my brief survey of some of Mrs Avramovic's evidence by referring to her first statement, which was made in 1996. 173 Mrs Avramovic's first statement is dated 11 August 1996. In paragraph 1 of her first statement Mrs Avramovic said that late on the evening of Tuesday 16 January 1996 she and her husband visited the first plaintiff at the Hospital. She said, "we spoke to Rajko, who was in high spirits and who showed us his injuries to his feet". 174 In paragraph 2 of her first statement Mrs Avramovic said that on Wednesday 17 January she spoke on the telephone to the first plaintiff. She could not recall what was said, "I think he wasn't able to speak". 175 In paragraph 3 of her first statement Mrs Avramovic said that she again spoke on the telephone to the first plaintiff on Thursday 18 January. "He was able to speak to me in a more normal manner, although not clearly… he responded to my questions and understood what was being asked. He said he was tired. I wasn't concerned about his condition as he was probably still on medication after the Hospital". 176 In paragraph 3a of her first statement Mrs Avramovic said that on the evening of Thursday 18 January in a conversation with the second plaintiff she "joked that she (the second plaintiff) should take some food into him as he's only getting jelly (that is not real food as he likes to eat good solid food)". 177 In paragraph 4 of her first statement Mrs Avramovic said that she telephoned the first plaintiff again on Friday 19 January between 10 o'clock and 11 o'clock. The first plaintiff took a long time to answer her question about how he was feeling. The first plaintiff said, "I'm sorry… I can't speak as my head hurts a lot… I told him I was rushing to call him early as I had to go to work. He was speaking much worse than the previous day". 178 Mrs Avramovic said that she was concerned and she telephoned her own husband who said that he would telephone the first plaintiff. That evening Mrs Avramovic telephoned Mrs Spasovic, who told her that the first plaintiff had complained about headaches in the Hospital. The second plaintiff said to Mrs Avramovic that the doctor thought that the first plaintiff was well and she said that the first plaintiff would be coming home on the Saturday morning. 179 In paragraph 5 of the statement Mrs Avramovic said that she and her husband had gone to the Slava, arriving at about I o'clock. When they arrived the first plaintiff looked grey in the face and she made a remark that he looked terrible. 180 Much of Mrs Avramovic's second statement is in substantially similar terms to the corresponding parts of her first statement. Some conversations she said she had had with the first plaintiff, which were narrated in indirect speech in her first statement, are expressed in direct speech in the second statement. In paragraph 5 of her second statement she said that when she telephoned the first plaintiff on the morning of Thursday 18 January, the first plaintiff talked like a person "who wasn't well, 'thick tongued'". She said "Rajko wasn't communicating like his normal self". 181 In paragraph 7 of her second statement Mrs Avramovic said that when she spoke to the second plaintiff on the evening of 18 January, she said that the first plaintiff "doesn't sound right to me". 182 In cross-examination a number of parts of Mrs Avramovic's evidence were challenged. 183 In cross-examination by counsel for the second and third defendants Mrs Avramovic agreed that the conversation she had had with the first plaintiff on the evening of Wednesday 17 January had been a very quick conversation. 184 Mrs Avramovic said that after a telephone conversation with the first plaintiff she had asked her husband to telephone the first plaintiff but she could not recall whether that had happened on the Thursday or the Friday. She could not remember whether her husband had told her that he had telephoned the first plaintiff. 185 In cross-examination by counsel for the second and third defendants Mrs Avramovic said that she had made the first statement to Mr Dobrich at his office. Mr Dobrich had asked questions and she had answered them. They had spoken in Serbian in which they were both fluent. 186 Mrs Avramovic said that she could not remember whether she had talked with Mrs Spasovic about what could have been done at the Hospital to produce a better outcome for the first plaintiff. 187 When she had arrived at the plaintiff's home for the Slava, the first plaintiff had greeted her at the door and she had had a conversation with him. 188 Mrs Avramovic denied that the telephone conversation on the Friday morning had been quick. The conversation could have occurred at any time between 9 and 11.30 in the morning. 189 Mrs Avramovic agreed that in the telephone conversation on the Friday evening the second plaintiff had said to her that "while he (the first plaintiff) had been in Hospital he had been complaining of headaches". (ii) Mr Bajic 190 Mr Bajic also made two statements, a first statement made on 11 August 1996 to Mr Dobrich, and a second statement made on 1 September 2001 to the plaintiffs' present legal advisers. 191 In paragraph 3 of his second statement Mr Bajic said:- "At around 12.30 p m. on Thursday 18 January 2001 I telephoned Rajko at the Sydney Adventist Hospital. We had a conversation to the following effect: 'I: Rajko, it's Djuro, how do you feel? He: Who is it? I: It's Djuro, I'm calling from work, how are you? He: Who is it? I: It's Djuro. He sounded very confused. He: Oh it's you, Djuro, I'm very tired. I: Sorry I couldn't see you in hospital, I've been busy at work. How are you? He: Okay, okay He didn't sound well. He sounded distant and confused, as thought he wasn't really sure of what he was saying. At that point I didn't want to disturb him further, and said words to the effect Don't worry, just rest, I'll see you later. I then hung up". 192 This account of the conversation in direct speech is substantially in accordance with an account in indirect speech in paragraph 1 of Mr Bajic's first statement. In his first statement Mr Bajic said that he thought that the conversation was on the day after the operation. 193 Mr Bajic gave a fuller account in his first statement of what happened at the Slava. He said that when he arrived about midday the first plaintiff looked pale in the face, weak and exhausted, was perspiring in the face and his speech was different from what it usually was. 194 In cross-examination Mr Bajic said that at the Slava the first plaintiff had sat at the dining table for some of the time and had walked around for some of the time, talking to people. Mr Bajic left the Slava some time between 4 and 5 o'clock in the afternoon, at a time when the first plaintiff was lying on a sofa. 195 Mr Bajic said that he was "very close" to the Spasovic family and that at the time of making his first statement he had known the first plaintiff for more than twenty-three years. Between February and August 1996 he had spoken to Mrs Spasovic on many occasions. He had kept closely in touch with the Spasovic family after the first plaintiff was discharged from Westmead Hospital. 196 Mr Bajic said that the telephone conversation he had had with the first plaintiff was on the day after his wife had told him that the first plaintiff had been operated on. 197 Mr Bajic had thought that the first plaintiff should have sounded better on the telephone than he did, because the first plaintiff's operation had not been a major operation. (iii) Mrs Dobrich 198 Mrs Dobrich, the second plaintiff's sister, made only one statement, a statement made on 11 March 2003, that is during the Court hearing. 199 In this statement she said that she had visited the first plaintiff while he was in the Hospital. She said that on the Thursday she had had a telephone conversation with the second plaintiff, in which the second plaintiff had said words to the effect "I've spoken to the doctor about Rajko's headaches". She could not recall any other words that the second plaintiff had used. 200 In cross-examination Mrs Dobrich said that she had not made any notes of the conversation she said she had had with her sister. She asserted that she remembered what her sister had said, because she had become concerned about the first plaintiff when she had visited him on the Wednesday evening and she was glad to hear the second plaintiff say that she had spoken to the doctor. 201 Mrs Dobrich agreed that she had discussed the case many times with members of the Spasovic family, including that the first plaintiff had had headaches while he was in the Hospital and that not enough had been done by the Hospital staff. 202 Mrs Dobrich had been in Court, when the second plaintiff gave evidence that she had spoken to a doctor at the Hospital about the first plaintiff's headaches. (iv) Mr Dobrich 203 Mr Dobrich made two statements which were admitted into evidence, a first statement dated 12 July 1996 and a second statement dated 15 October 2001. 204 In paragraph 4 of his second statement, which was substantially similar to a corresponding part of his first statement, Mr Dobrich said that he had visited the first plaintiff on the evening of Wednesday 17 January. The second plaintiff was already at the Hospital. He had had a very short conversation with the first plaintiff. The first plaintiff appeared disorientated. The first plaintiff tried to speak to a telephone caller but "he sounded groggy and couldn't speak very clearly". 205 On the Wednesday evening the second plaintiff said words to the effect, "he's had surgery on his feet earlier today and needs to rest. He doesn't want to be in a room with another patient. He wants to be in a separate room. He paid for top cover and expects the best service". 206 Mr Dobrich said that he next saw the first plaintiff on Saturday 20 January at the Slava. The first plaintiff became increasingly unwell over the course of the afternoon. Mr Dobrich followed the ambulance to Westmead Hospital and he visited the first plaintiff almost every day while the first plaintiff was in the Westmead Hospital. 207 In his first statement Mr Dobrich gave a long account of events at the Slava. 208 In cross-examination Mr Dobrich said that he had never acted as solicitor for the plaintiffs in the legal proceedings they had brought. The plaintiffs had sought his advice as a solicitor "at a very general level". He was not sure whether it was Mrs Spasovic who had asked, or it was he who had suggested, that some of the facts should be documented. He had had discussions with Mrs Spasovic about the possibility of bringing legal proceedings during the first six months of 1996 and subsequently he had had discussions with Mrs Spasovic from time to time about how the case was going. 209 He had assisted the first plaintiff in making his first statement which Mr Dobrich described as a "file note". He had made his own first statement, because there was a prospect of legal proceedings and in case he was ever called upon to remember what had happened. 210 On 11 August 1996 he had seen Mrs Avramovic and Mr Bajic and had taken their statements. He was not sure whether by then he had seen the second plaintiff's first statement. (v) Mr David Duffy 211 Mr David Duffy gave evidence that he had worked with the first plaintiff at Fletcher Construction Australia Limited. 212 Mr Duffy said that he had visited the first plaintiff once, while the first plaintiff was in the Hospital. He said that the first plaintiff was "as though he had just woken up and he wasn't the bubbly person he usually is… he looked sick". Mr Duffy said that the visit was "towards the end of his stay in Hospital". 213 Mr Duffy had first been asked to recall the visit, two days before he gave evidence, although he said that he had been spoken to several years before that. The visit would have been during a working day at the Hospital but he could not remember what day it was. 3. Evidence of the Hospital's Nurses 214 Statements by the Hospital's nurses who had made entries in the Hospital notes were admitted into evidence as part of exhibit 1D1. 215 Nine of these statements bore dates in February or March 1996. On 31 January 1996 a solicitor had attended at the Hospital and had individually interviewed these nine nurses. On 6 February 1996 the solicitor had forwarded draft statements to the Hospital. These nine nurses, in the order in which their statements appear in exhibit 1D1, were Birrell, Chappell, King, Race, Hunt, Beall, Perkins, McClure and Johnson (a male nurse). Of these nurses all but Chappell and Johnson also gave oral evidence. Chappell attended Court on one occasion but could not then be called as a witness and she ultimately did not give oral evidence. Johnson was unavailable to give oral evidence at the hearing. 216 There were also admitted into evidence as part of exhibit 1D1 statements by other nurses, which had been made in March 2003. These nurses, in the order in which their statements appear in exhibit 1D1, were Kalnoky, Kennedy, Tenorio, Reye and Lipman. A statement by a physiotherapist van der Schaar was also admitted into evidence. 217 I will refer to some of the evidence of all of these witnesses, taking the witnesses generally, but not entirely, in the order of their first contact with Mr Spasovic while he was at the Hospital. Gillian Beall 218 Ms Beall was the nursing unit manager in charge of the orthopaedic ward at the Hospital. She was at the top of the nursing hierarchy within the ward. Each day at the Hospital there were three shifts, which overlapped slightly:- a morning shift from 7 o'clock in the morning to 3.30 in the afternoon, an afternoon shift from 2.30 in the afternoon to 11 o'clock in the evening and a night shift from 10 o'clock at night to 8 o'clock the following morning. Ms Beall did not herself make any entry in the Hospital notes. 219 She said in her oral evidence in chief that she had had experience with patients on patient controlled analgesia. It was a mode of analgesia which had been given for a great deal of her nursing career. She said that patients had varying reactions to patient controlled analgesia. Patients sometimes reported nausea and sometimes reported headache. If patients were taken off the patient controlled analgesia, very often their headaches subsided. 220 Parts of Ms Beall's statement were as follows:- "2. …I first saw the patient when performing a round with Dr Rod Brooks at 9.30 am on 18 January 1996. 3. I was present when Dr Brooks discussed with Mr Spasovic the operation that had been performed. Mr Spasovic told us that his feet were very painful. However he was using a PCA (Patient Controlled Analgesia) for pain relief. Dr Brooks confirmed the PCA should remain in place. I do not recall Mr Spasovic making any complaints of a headache…. I recall that he wanted to go home as soon as possible. Dr Brooks told Mr Spasovic that he might be able to go home on Friday morning once his wounds had been examined. I recall the patient had a low grade fever but was receiving IV antibiotics. 4. Later during that shift after Dr Brooks had left, at around 10.am, Sister Karen Perkins told me that Mr Spasovic was complaining of a headache and I suggested that she rang the CMO in order to ask him to review the patient. I thought that perhaps if the headache was PCA related the doctor could order that the method of analgesia be changed…. 5. Karen rang Dr Geoff Cutter and he agreed to review the patient later that morning. Before Dr Cutter arrived I answered Mr Spasovic's bell. Mr Spasovic complained that he was uncomfortable in the bed and wished to be up and about. However, Dr Brooks had told him to keep his legs up and I therefore advised him to stay in bed. When I entered his room he had swung his feet over the side of the bed and I asked him to put his feet back up. I assisted him to do so explaining that this was to help his vascularity. I made him comfortable….. ." 221 In paragraph 6 of her statement Ms Beall said that after Dr Cutter had reviewed the patient and she had seen Dr Cutter's assessment "I went and offered Mr Spasovic a cup of coffee for which he seemed very grateful". "7. On 19 January 1996 I performed a ward round with Dr Brooks and I recall Mr Spasovic mentioning to us that he still had a headache. I do not recall him mentioning any light headedness. Dr Brooks reviewed the patient's wounds and also asked him if he had hit his head during the accident. I recall that Dr Brooks had already asked him this once and was simply confirming the matter. Mr Spasovic was adamant he had not hit his head. I recall the patient asked again when he could go home. Dr Brooks ordered that the PCA be taken down and ordered that Aspirin be given to the patient at 11.00 am if the headache had not resolved… During the consultation with Dr Brooks I noted by glancing briefly at the patient that both his pupils were equal. Dr Brooks said he would review Mr Spasovic in the morning and that he could probably go home… . 8. Dr Brooks also told Mr Spasovic that he could now mobilise, non weight bearing, on his badly cut foot and partial weight bearing on the other foot using crutches. Dr Brooks advised Mr Spasovic that his headache might improve when the PCA came down. Dr Brooks also advised Mr Spasovic to put his legs up when not mobilising. 9. The PCA was taken down at approximately 9.40am and Sister Julie Birrell came and told me at approximately 11.00am that the patient had said his headache had gone, so she had not considered it appropriate to administer the Aspirin". 222 Ms Beall was cross-examined about the assertions in her statement that she had had a conversation with Karen Perkins "at around 10 a.m." and that Dr Cutter had reviewed the patient "at approximately 10 a.m". 223 In cross-examination Ms Beall agreed that some of the matters of which she had given evidence were not recorded in the Hospital notes. She said that you could not record every conversation you have with a patient. Elizabeth King (now Elizabeth Anderson) 224 Elizabeth King was on night duty in the orthopaedic ward on the nights of 16 – 17 January, 17 – 18 January and 18 – 19 January. 225 She made notes in the Hospital notes at 0030 and 0300 on 17 January, at 0025 and 0630 on 18 January and she made the night report on 19 January. 226 In her statement Elizabeth King said:- "2. On the first night I recall that Mr Spasovic was in a great deal of pain from his feet and I do not recall any complaint of a headache… . 3. On the second night I have no recollection of a headache being mentioned on handover by the previous shift. I do not recall Mr Spasovic mentioning a headache until the morning. I was unaware that he had been given Panadol for his headache earlier in the shift. Just before I went off duty on the morning of 18 January, as I was performing my last ward round, I recall Mr Spasovic saying words to the effect that he still had a headache. He did not offer any description of the headache. He did not complain of dizziness or light headedness. As far as I can recall he did not appear anxious just a little annoyed by the headache. I believe I would have mentioned the headache during handover. The only other thing of significance I remember from that shift was that Mr Spasovic was generally restless. 4. On the third night Mr Spasovic was very quiet. I recall that he seemed to be a light sleeper and whenever I checked on him he would stir but would not generally wake sufficiently to hold a conversation. During this shift I do not recall the headache being specifically brought to my attention". 227 Elizabeth King was cross-examined about her assertion in paragraph 3 of her statement that she was not aware that Mr Spasovic had earlier been given Panadol for his headache, when there was a note to that effect in the Hospital notes. Karen Perkins (now Karen Rodstrom) 228 Karen Perkins made entries in the Hospital notes at 2200 on 17 January 1996, at 0945 and 1445 on 18 January 1996 and on 19 January after the entry at 1500. 229 In her statement Karen Perkins said that she had worked shifts from 2.30 p m. to 11 p m. on 17 January, from 7 a m. to 3.30 p m. on 18 January, from 7. a m. to 3.30 p m. on 19 January and from 7 a m. to 3.30 p m. on 20 January. On 17, 18 and 20 January she was caring for the first plaintiff. 230 She recalled that during her shift on 17 January she gave the first plaintiff two Panadol at approximately 4 p m. for a headache. 231 In paragraph 4 of her statement Karen Perkins said:- "4. On arriving on duty on 18 January I do not recall anything significant being mentioned in handover. However I do recall that Mr Spasovic had not had a very good night's sleep. When I attended Mr Spasovic to wash him he told me he had a headache in both sides of his head and the lower back of his head. He used his hands to show me the position of the headache. He made no mention of light headedness or nausea but seemed generally anxious about the headache". 232 Karen Perkins spoke to a "sister" about the first plaintiff's headache "and the sister suggested contacting the career medical officer". Ms Perkins paged Dr Cutter and told him that the patient had a headache and seemed quite anxious and asked him to review Mr Spasovic. Ms Perkins was not present when Dr Cutter reviewed the patient. 233 On 19 January, although she was on duty, she was not the first plaintiff's carer and did not have much involvement with him. Her only involvement was to re-dress the first plaintiff's feet after Dr Brooks' ward round. 234 Paragraphs 9, 10 and 11 of Ms Perkin's statement were as follows:- "9. On 20 January 1996 when I came on duty in the morning I recall Mr Spasovic telling me that he was feeling good and that he was going home that day. I recall putting plastic bags over his feet to enable him to take a shower. He showered himself and when I returned to assist him back to his bed I discovered he had already returned to his bed on his own. Mr Spasovic made no mention of headache or dizziness during this shift prior to his discharge. He appeared cheerful and alert and I recall that he gave nursing staff a box of chocolates to thank them. 10. I prepared Mr Spasovic's discharge information sheet which listed the medications he was to take. I explained that he was to take the Panadeine Forte for the pain in his feet and Aspirin if he had a headache. 11. I recall Mr Spasovic's son came to pick him up and I ran through the discharge instructions as marked on the discharge information sheet with the patient before he left". 235 In oral evidence Ms Perkins said in relation to the final words of her entry in the Hospital notes at 1445 on 18 January that the first plaintiff must have said the words "a lot better". 236 It was put to Karen Perkins in cross-examination that on the morning of 20 January the first plaintiff looked worried, seemed agitated, was holding his head which was bowed down and seemed to be in pain and she said "I would refute that". She refuted what was put to her, on the basis of her statement. At the time of giving evidence she had no independent recollection of nursing Mr Spasovic. On the basis of her statement, she denied that on 20 January Mr Spasovic had told her that he still had a headache. 237 In re-examination Ms Perkins said that if Mr Spasovic had been presenting as had been put to her in cross-examination, she would have notified the nursing team leader and if that person was not available she would have notified the career medical officer. Barbara Kennedy 238 Barbara Kennedy, who did not give oral evidence, said in her statement of 3 March 2003 that she had made the entries at 1025 and 1515 on 17 January. She had no recollection of caring for Mr Spasovic apart from what was recorded in the notes made by her. Rebecca Reye 239 Rebecca Reye, who did not give oral evidence, said in her statement of 7 March 2003 that she had made the entry in the Hospital notes at 0025 on 18 January. At the time of making her statement she had no recollection of Mr Spasovic. Fiona McClure 240 Fiona McClure made an entry in the Hospital notes at 2000 on 18 January. 241 As team leader she initialled in the margin of the Hospital notes the note made by a student nurse at 2126 on 18 January. She said in evidence that she would have checked this note by the student nurse by reference to the patient. 242 Paragraphs 2, 3 and 4 of Fiona McClure's statement were as follows:- "2. On 18 January 1996, I was working a shift from 2.30 pm to 11.00 pm and was team leader for team two on level 9. Shortly after coming on duty at approximately 3.15 p m, I performed my first ward round. This would have involved visiting all patients being cared for by my team. 3. I recall going to see Mr Spasovic, and I believe he was dozing at the time and woke up as I entered the room. His wife may have been there. I recall that he seemed cheerful and alert. I asked Mr Spasovic how he was feeling and I also checked his IV line to see that everything was running properly. I do not recall Mr Spasovic mentioning that he was suffering from a headache, although I do not have a clear recollection of our discussion. 4. I noted that Mr Spasovic was due to receive his antibiotics at 4.00 p m, so I went to get the medication and administered the antibiotics. At the time I believe he was chatting to his wife". 243 In paragraphs 5, 6 and 7 of her statement Ms McClure gave evidence about the first plaintiff, at his request, being moved to a new room on the evening of 18 January. 244 A student nurse reported to Ms McClure that Mr Spasovic's temperature was elevated. Ms McClure did not believe it was necessary to call a doctor to review the first plaintiff and decided to administer Panadol. In paragraph 9 of her statement she said: "I wrote the note at 2000 hours to the effect that two Panadol had been given orally to relieve temperature. When first making the note I wrote the word ' pain' but meant 'temperature ' and crossed it out immediately ." 245 In oral evidence in chief Ms McClure said that, if she had observed that Mr Spasovic appeared as though he had been drinking, seemed disoriented and was starting sentences and not finishing them and not making sense, she would have made her own assessment and would then have called the career medical officer and would have noted in the Hospital notes that she had called the career medical officer. 246 Ms McClure was cross-examined about whether the change of rooms had occurred on 17 January and not 18 January. She could not at the time of giving evidence recall any details of any conversation she had had with the first plaintiff and did not recall whether she had overheard any of the conversation between Mr Spasovic and his wife. 247 Ms McClure said in cross-examination that she did not recall Mrs Spasovic saying to her that she was concerned about her husband's headaches or herself saying that the headaches were probably due to caffeine withdrawal, that a doctor had been to see Mr Spasovic and that there was nothing to worry about. 248 In re-examination Hospital records were produced, which confirmed that Ms McClure had been correct in saying that the first plaintiff had changed rooms on 18 January, and not 17 January. If Mr Spasovic had seemed disoriented, she would have assessed him and called the career medical officer. Rebecca Lipman 249 Rebecca Lipman who did not give oral evidence, said in her statement made on 16 March 2003 that she had made entries in the Hospital notes at 2126 and 2230 on 18 January. At the time of making her statement she had no recollection of Mr Spasovic. Carolyn Race 250 Carolyn Race was a student nurse who was on duty between 7.30 in the morning and 3.30 in the afternoon on Friday 19 January. She made the note in the Hospital notes at 12.30 on 19 January and the "addit" (ional) note at some time between 1440 and 1500 on 19 January. 251 In her statement Carolyn Race said:- "1. … On 19 January 1996 I was working a shift from 7.00 a m. to 3.30 p m. on level 9. As a student nurse my role would have been to help generally on the ward. Mr Spasovic was allocated to my care and I would have checked everything I did with Sister Julie Birrell 2. I had three other patients to care for that shift but Mr Spasovic was the first I attended to because he needed a towel bath. I recall that the towel bath was delayed briefly as I believe Mr Spasovic had a visitor. I recall at the start of the shift Mr Spasovic had already told me that he was not feeling the best and mentioned that he was suffering from a headache. 3. At the completion of the towel bath I recall Mr Spasovic sitting on the side of the bed and telling me he was feeling dizzy. I advised him to lie back down and I believe I went and told Sister Julie Birrell that the patient was complaining of headache and dizziness. I recall that Mr Spasovic described the dizziness as being worse when he was sitting up and said that when he was lying down he just experienced a headache. I do not recall him mentioning the position of the headache. He did not mention that he was suffering from nausea. I recall taking his temperature at approximately 8.15 a m. after the towel bath and it was 37.80. 4. At approximately 9.30 a m. Mr Spasovic was reviewed by Dr Brooks on a ward round and following this Julie suggested that we give Mr Spasovic some Panadeine Forte. This was later changed to Panadol because the patient was using a PCA (Patient Controlled Analgesia). Dr Brooks also ordered that the PCA be taken down. 5. The PCA was taken down at 9.40a m. and I recall that within half an hour to an hour Mr Spasovic told me he was feeling much better. … (He) told me that the headache had gone and that he was not experiencing dizziness anymore. 7. Dr Brooks left a specific order to give the patient Aspirin later in the shift if the headache did not resolve following the taking down of the PCA. Aspirin was not required as Mr Spasovic felt better. 8. Towards the end of the shift the patient was mobilising enthusiastically on crutches. His observations were satisfactory and his temperature appeared to have gone down". 252 In oral evidence in chief Carolyn Race said that, although she could not remember Mr Spasovic, she did remember that "at the end of the shift there had been a marked change in the man I was looking after". The entry she had made in the Hospital notes at 12.30 recorded her observations from the first time she had seen Mr Spasovic on the shift to the time she made the entry. With regard to her "addit" entry, she said that the first plaintiff "was going quite fast with his crutches within his room". 253 In cross-examination by counsel for the second and third defendants Carolyn Race said that paragraphs 1 to 3 of her statement and the first three lines of the entry she made in the Hospital notes at 12.30 recorded her observations of the first plaintiff up to about 8.15 a.m. The entry "patient is now resting comfortably" recorded her observation of the first plaintiff at the time she wrote the note, that is at 12.30 p m. 254 In cross-examination by counsel for the plaintiffs Carolyn Race agreed that there was no record in the Hospital notes of the first plaintiff telling her, after the PCA was taken down, that he was feeling much better. However, although she had no present recollection, she believed that what she had said in her statement would have been correct. She accepted that the precise words "feeling much better" might not have been used. In writing in the Hospital notes "nil further complaints voiced to me" she had intended to convey that the first plaintiff had not made any further complaints. Julie Birrell 255 Julie Birrell was on duty as team leader during the shift from about 7.30 a.m to about 3.30 p.m on 19 January. She initialled the note made by Carolyn Race at 12.30. She herself made the note at 1500 recording that the PCA had been removed at 0940 and the headache was gone at about 11 o'clock. 256 In her statement Julie Birrell said:- "2. As team leader I generally do a ward round first thing in the morning. On 19 January I recall that I reached Mr Spasovic at about 8.30 a m. after his towel bath. I recall a student nurse, Carolyn Race telling me that Mr Spasovic had a headache. I do not recall any mention of dizziness. I asked Mr Spasovic how long he had had the headache. He told me that he had had it continuously since the previous day. He could not recall the precise duration. I perused Mr Spasovic's medication chart and decided that he should be given Panadeine Forte. I momentarily forgot about the PCA (Patient Controlled Analgesia). Panadeine Forte is contraindicated when using a PCA. I had seen Dr Cutter's notes of consultation and had noted that the patient usually drank a lot of caffeine. I recall asking Mr Spasovic if he would like a cup of coffee but he told me it was not that sort of headache. I also recall asking him if he had hit his head during the accident and he said he had not. Mr Spasovic never indicated to me the position of the headache or gave me any details about how it felt. 3. I told Mr Spasovic that I would organise for him to be given something for the headache and I asked Kerryn Chappell to administer the Panadeine Forte as at that stage I was required to perform a ward round with another doctor. Kerryn Chappell reminded me that Mr Spasovic was using a PCA and accordingly I changed the order to Panadol instead. I remember telling Kerryn that if the headache did not go we would arrange to call the CMO as I was unsure when Dr Brooks would attend the ward to review the patient. 4. However, Dr Brooks arrived on the ward shortly after this conversation. Dr Brooks reviewed the patient with Registered Nurse Gill Beall who later told me that he had advised taking down the PCA and giving the patient 2 Aspirin later in the morning if the headache did not improve. 5. Shortly afterwards at about 9.40 a m, I took down Mr Spasovic's PCA. I recall that within about half an hour he was feeling very much better and we discussed the possible effect of Morphine. I remember that I told Mr Spasovic I would write down the medication he was taking for future reference purposes, but I never did. At this stage Mr Spasovic was very cheerful and on top of the world. Mr Spasovic never mentioned any nausea, visual disturbance, dizziness or other neurological symptoms to me. Mr Spasovic was also mobilising with crutches before the physiotherapist arrived on the ward to assist him". 257 Julie Birrell said in oral evidence in chief that her assertion in paragraph 5 of her statement that within half an hour Mr Spasovic was feeling very much better would have been based, in accordance with her usual practice, on looking at the patient and talking to the patient. 258 In cross-examination by counsel for the second and third defendants Julie Birrell said that her entry in the Hospital notes "headache gone at …1100" indicated that, in accordance with her usual practice, she had specifically asked Mr Spasovic about his headache. She said that between 11 o'clock and 3.30 she would have continued to check with Mr Spasovic that his headache had gone away, by asking him a specific question about the headache. 259 In cross-examination by counsel for the plaintiffs Julie Birrell agreed that she had not made any entry in the Hospital notes about checking with Mr Spasovic after 11 o'clock whether his headache had gone. She said that she had not known that Mr Spasovic had complained about dizziness until she had seen Carolyn Race's note. Kerryn Chappell 260 In her statement Kerryn Chappell, who did not give oral evidence, said:- "1. … On 19 January 1996, I was working a shift from 7.00 a m. to 3.30 p m. on level 9. Mr Spasovic was not allocated to my care. 2. At approximately 8.45 a m, I was doing a towel bath for one of my patients…. Julie (Birrell) asked me to give Mr Spasovic two Panadeine Forte for pain relief. I cannot recall whether she mentioned that Mr Spasovic was suffering from a headache. 3. In accordance with the instructions, I left my patient and went to get the medication. As I was closing the drug cupboard door, I remembered that Mr Spasovic was using a PCA (Patient Controlled Analgesia). I knew that Panadeine Forte was contra-indicated with a PCA, so I checked with Julie and Dr Brooks and they confirmed that I should just give Panadol to Mr Spasovic. I believe they may then have mentioned that it was to relieve headache. 4. Accordingly, I checked the Panadeine Forte back in and obtained two Panadol and proceeded to Mr Spasovic's room. I recall asking him whether he was suffering from a headache and he confirmed that he was. I recall that he was sitting up and appeared alert and oriented. He did not complain of any other problems apart from his headache. I recall asking him if he had been using his PCA a lot, and he said that he had, and that it had been suggested that his headache was due to the anaesthetic". 261 Kerryn Chappell made the entry in the Hospital notes at 0845 on 19 January. Karen van der Schaar 262 Karen van der Schaar, a physiotherapist who did not give oral evidence, made the entries in the Hospital notes at 1205 and 1440 on 19 January. In her statement made on 3 March 2003 she said that she had worked as a physiotherapist since January 1977. At the time of making her statement she had no recollection of treating Mr Spasovic. Carolyn Kalnoky 263 Carolyn Kalnoky, who did not give oral evidence, made the entry in the Hospital notes at 2230 on 19 January. In her statement made on 3 March 2003 she said that the entry "analgesia refused" meant "that Mr Spasovic declined pain relief when I offered it to him". Patricia Tenorio 264 Patricia Tenorio who did not give oral evidence made the night report in the Hospital notes for the night of 19-20 January. At the time of making her statement on 6 March 2003 she had no recollection of Mr Spasovic. Sandra Hunt 265 Sandra Hunt made the entry in the Hospital notes at 0915 on 20 January. She also made some entries on the discharge information sheet including the time "0945" at which the first plaintiff was discharged. 266 In her first statement dated 19 February 1996 Sandra Hunt said:- "1 … On 20 January 1996 I was one of the team leaders on level 9 working a shift from 7.00 a m. to 3.30 p m. My role on all of these days was one of general supervision and coordination. 3. The only note I made in Mr Spasovic's records was on 20 January 1996 prior to his discharge. I recall going to see the patient at approximately 8.30 a m. and I asked him if he would like to go home or stay another day. He said he would like to go home and that he felt good and had had a very good night's sleep. He also said that he had already packed his bags and his family were on the way. I recall giving him his pills from the patient drug cupboard which comprised Keflex, Aspirin and Panadeine Forte. I explained to him when he should take the medication. …. 4. Dr Brooks saw the patient at approximately 9.00 a m. and told him that he could go home. I was present and I recall Mr Spasovic saying that he felt like a new man and had had a great night's sleep. I recall Dr Brooks advising the patient to elevate his feet for 2 weeks and not to go back to work during that time. Mr Spasovic told Dr Brooks that he felt okay to return to work but Dr Brooks advised him firmly that he should not return to work until he had been reviewed in two weeks time. 5. At approximately 9.45 a m. Mr Spasovic's son came up to the ward to collect him in a wheelchair. I did not see his wife. The patient left the ward and seemed happy, alert and normal". 267 In a supplementary statement made on 8 December 2000 Sandra Hunt said:- "2. I recall Mr Spasovic quite well. I was present during Dr Brooks' final review on the morning of Mr Spasovic's discharge. I recall that when Dr Brooks and I entered the room, Mr Spasovic was dressed ready to leave the Hospital. He was eager to leave as his family had a party planned for that afternoon. 3. At no time during my involvement with him did he appear or act in a confused manner. I would have been concerned if he was confused as he was a young man. To the best of my recollection, none of his family or friends complained that he was experiencing confusion". 268 In her oral evidence in chief Sandra Hunt said that in her experience as a nurse headache had been a side effect of the narcotic in the PCA. 269 In cross-examination by counsel for the second and third defendants Sandra Hunt said that as a team leader she would not herself look at the hospital notes for the thirty-three patients in the ward. However, in accordance with usual practice, if any patient had a continuing problem, as reported by the patient to the nursing staff on the previous shift, she would have expected to have been informed of the problem at the handover from the previous shift and there had been no report to her of headaches being a problem for Mr Spasovic after 11 o'clock the previous day. 270 In cross-examination by counsel for the plaintiffs Sandra Hunt said that she did not consider that on 20 January she needed to ask Mr Spasovic whether his headache had returned, before he was discharged. 271 In cross-examination Sandra Hunt conceded that, in the light of evidence given by her in her oral evidence in chief that she had no present recollection of Mr Spasovic, the assertion in her second statement of 8 December 2000 "I recall Mr Spasovic quite well" was not accurate. However, she said that when she made the first statement she did recall the events described in the first statement. At the time of giving her oral evidence she had no recollection of how Mr Spasovic looked when he left the Hospital on 20 January. 272 Sandra Hunt said that in a private hospital such as the Adventist Hospital a patient buys his own drugs, so that after drugs have been prescribed by a doctor and the drugs have been obtained by the nurses from the hospital pharmacy, then, if the drugs have not been used by the patient, the drugs are given to the patient when he leaves the Hospital. 273 In re-examination Sandra Hunt said that, if on the morning of 20 January she had observed Mr Spasovic agitated, holding his head and being bowed down, she would have called the career medical officer. If Mr Spasovic had said to her on the Saturday morning that he had a headache, she would have told Dr Brooks. Frederick Johnson 274 Frederick Johnson, a male nurse who did not give oral evidence, said in a statement dated 26 March 1996 that Mr Spasovic had not been directly under his care but that he had had some contact with him. He recalled Mr Spasovic mentioning at some time that he had a headache. Frederick Johnson said that headaches were not unusual for patients post operatively. 275 In the late afternoon of 20 January Mr Johnson received a telephone call from Mrs Spasovic, who said that Mr Spasovic had collapsed "as soon as he got home". She told Mr Johnson that she had called an ambulance. Mr Johnson asked about Mr Spasovic's signs and symptoms and advised Mrs Spasovic to tell the ambulance to take Mr Spasovic to Westmead Hospital and not to the Adventist Hospital, because the Adventist Hospital was too far away from where Mr and Mrs Spasovic lived. 4. Evidence of Dr Cutter and Dr Brooks Although Dr Brooks is the second defendant and Dr Cutter is the third defendant, it is convenient to take Dr Cutter's evidence first. Dr Cutter 276 Dr Cutter of course made a note in the Hospital notes on 18 January. In this note the abbreviation "C/O" meant "complaining of". The abbreviation " ? ?" 48 hours meant "about" 48 hours. "IMP" was an abbreviation for "impression". 277 Dr Cutter did not make any other note in the Hospital notes and was not on duty at the hospital while the plaintiff was a patient, at any time other than one 24 hour shift from 8 a m. on 18 January 1996 to 8 a m. on 19 January 1996. 278 Three statements by Dr Cutter, the first made in February or March 1996, the second made on 7 May 2002 and the third made on 21 January 2003 were admitted into evidence. Most parts of the latter two statements are substantially similar to corresponding parts of the first statement and I propose to focus on the first statement made by Dr Cutter. 279 In paragraph 1 of his first statement Dr Cutter said that he was a medical practitioner who had gained his basic medical qualifications from a medical school in England. Further parts of Dr Cutter's first statement were as follows:- "2. On 18 January 1996, I was working a 24 hour shift from 8.00 a m. on 18 January to 8.00 a m. on 19 January. I was the only Career Medical Officer on duty in the Hospital. 3. At about 9.30 a m or 10.00 a m, I received a telephone call from registered nurse, Karen Perkins, asking me to review a patient, Mr Rajko Spasovic, on Level 9." 280 At the time of making the statement Dr Cutter did not have any precise recollection of the telephone conversation he had had with Karen Perkins. He said in his statement that he was not given the impression that he was required to attend the patient as a matter of urgency. 281 In paragraph 4 of his first statement Dr Cutter said that he believed that he had attended level 9 of the Hospital to review Mr Spasovic in the middle to late morning. 282 In paragraph 5 Dr Cutter said that he consulted Mr Spasovic's medical notes, before seeing him. Dr Cutter noted that Mr Spasovic was using a PCA. He noted that Mr Spasovic had not given a history of having hit his head during the fall. 283 Dr Cutter's statement continued:- "6. Accordingly, I went to see Mr Spasovic who appeared well, cheerful and smiling, but a little anxious. He looked generally healthy, apart from his bandaged feet. Mr Spasovic told me that he had a headache that was quite bad, at times, but sometimes went away and was generally very variable. I recall asking him if he had hit his head during the accident, and he confirmed that he had not. 7. I asked Mr Spasovic to explain where the headache was, and he indicated that he was experiencing pain at the side of his head. The following diagram indicates the position of the headache as described to me by Mr Spasovic". There is no diagram in the copy of the statement which was admitted into evidence, showing the position of the headache as described to Dr Cutter by Mr Spasovic. Dr Cutter's statement continued:- "8. I recall asking him to describe how the headache felt and he said it was 'like a tightness – like a band around the top of my head'. I asked him when the headaches had commenced, and he was very unsure and had to consider his answer for some time. At first he said that he might have had it the day before the accident, but on reflection, he said he thought that it had come on gradually after the accident, but before the operation. When asked Mr Spasovic also confirmed that he had had no dizziness, light headedness, nausea, vomiting or photophobia. I asked him if his arms and legs felt normal and he said that they did, and he was not experiencing any weakness. I did not formally examine the power and tone of his limbs but noted they appeared normal. I noted that his face appeared normal. I briefly checked his pupil reflexes, which were also normal, as were his cranial nerves. I did not believe it was necessary to perform any other neurological tests, and there was no indication for fundoscopy. I could not comfortably test his reflexes as his feet were bandaged and sore, likewise balance or gait. 9. I asked Mr Spasovic what made the headache worse or better. He told me that he could move his head forwards and backwards without any difficulty, but if he moved his head from side to side, the headache got slightly worse. I did not consider this to be significant. I asked him to put his chin on his chest and he did so without difficulty or discomfort. Had Mr Spasovic said that his neck felt stiff or that if he looked downwards, the headache became worse, I would have been concerned. Mr Spasovic appeared to be lucid and eloquent throughout and was clearly very frustrated at being 'stuck in hospital' – a sentiment he expressed to me. 10. I also recall Mr Spasovic mentioning to me that he usually drank a lot of coffee and he asked me if I could organise a cup for him as he was 'really missing it'. I also recall Mr Spasovic telling me that he had an average of one headache a month, but that he said that this headache was 'different', but he couldn't explain how. He also told me that if he had had a few drinks, he often got a headache and gave me the impression that this might happen quite often. 11. My impression was that Mr Spasovic was suffering from a classic tension headache, and I did not believe that there was any indication for further neurological evaluation or CT scan. I recall Mr Spasovic telling me that he was not drinking very much fluid, and I encouraged him to increase his intake. I suggested that the analgesia as prescribed should be continued and that he should have some coffee and try and relax. 12. I remember telling nursing staff what I thought, and my recommendations. If Mr Spasovic's symptoms had changed, I would have expected nursing staff to contact me. 13. I now note from the records that Mr Spasovic had earlier described his headache to nursing staff as also being in the lower back of his head. This was not how Mr Spasovic described his headache to me. He was very specific about the position when I asked him to describe it. 14. I did not see Mr Spasovic again during my shift or prior to his discharge. If I had thought Mr Spasovic's headache to be significant, I would have contacted Dr Rob Brooks, his Visiting medical officer. However, I thought the matter could wait until Dr Brooks next reviewed the patient". 284 In paragraph 10 of his second statement Dr Cutter said:- "Mr Spasovic was a typical type A personality, a high achiever, a hard worker, very energetic and I assumed that it was for this reason that he was so keen to get out of hospital. He was quite buzzy and fidgety. He was also quite dismissive of his problems, almost apologetic that they had called me to review him which he seemed to convey was not necessary. He played the headache down throughout the consultation. He was obviously very impatient about being in bed. I thought that this impatience added to the likelihood of his having a tension headache. My impression was that the headache was such that if he had been at home he probably would not have gone to see a doctor about it". 285 In paragraph 14 of his second statement Dr Cutter said:- "Coffee ++ means, based on my usual shorthand, that he probably had about one cup of coffee per hour. He made the comment that he was really hanging out for coffee. As Sydney Adventist Hospital is Seventh Day Adventist Hospital, coffee is not allowed and if a patient requires it, it is necessary for the doctor to order it which I did in this case. We laughed about the fact that I had to give an order for him to be given coffee". 286 In paragraph 15 of his second statement Dr Cutter said:- "It was Mr Spasovic who initiated the view that the headache was caused by caffeine withdrawal. He also told me that he was missing the few drinks he had every night and that those drinks were spirits". 287 In paragraphs 17 and 18 of his second statement Dr Cutter again said, with emphasis, that Mr Spasovic had not described his headache as being in the lower back of his head and had described his headache as being like a band around the top of his head at forehead level. 288 In paragraph 24 of his second statement Dr Cutter said:- "Mr Spasovic looked well, he was sitting up smiling, laughing, joking etc. Having had considerable experience in emergency, I have seen many people with migraines and severe headaches. He had none of the behaviour or symptoms which would make me think he had a serious headache." 289 In paragraph 26 of his second statement Dr Cutter said that, if he had thought Mr Spasovic had had a severe headache, he would have spoken to a neurologist on the telephone and asked for a consultation. 290 In paragraph 30 of his second statement he said that, if he had thought Mr Spasovic's headache to be significant, he would have contacted Dr Brooks. 291 There is little, if any, material in Dr Cutter's third statement which is not in either or both of his first and second statements. 292 In oral evidence in chief Dr Cutter said that he had made the first statement by himself, having been asked to do so by the medical superintendent of the Hospital. He had been given to understand that there might be litigation. He made the first statement, with the benefit of having the Hospital notes. He recalled drawing a diagram at paragraph 7 on one copy of his first statement but he no longer had a copy of the diagram. 293 With regard to the position of the headache as described by Mr Spasovic, Dr Cutter said that Mr Spasovic had stated that the headache was from the back and around to the sides of the head. Dr Cutter disputed that there was a difference between that evidence and what he had said in his first statement. He said, "I don't think there is a difference other than potentially of emphasis. If the headache had been confined to the back of the head, that may have put a different perspective on things in some measure". 294 With regard to his note "vision not affected", Dr Cutter said that, if he had followed his usual practice, he would have held up his fingers in front of a bright light and observed whether the first plaintiff's pupils reacted to the light, "also noting that he could fully extend his neck". 295 Dr Cutter said that he asked Mr Spasovic to put his chin on his chest, which Mr Spasovic could do without any discomfort. Dr Cutter said that "if a patient has had a bleed… into the subarachnoid space, you will get neck stiffness". 296 Dr Cutter felt that the headache was explicable by one or more of the things recorded at the end of his note of 18 January but primarily by caffeine withdrawal and by the plaintiff being unhappy about being in Hospital. Dr Cutter had noted that the fluid chart showed that Mr Spasovic had not had much to drink post-operatively. 297 At the time of the consultation on 18 January Mr Spasovic said that his headache was "very mild". 298 Mr Spasovic's facial features were normal. There was no sign of weakness on one side of the face and no slurring of speech or difficulties with speech. 299 If Dr Cutter had suspected something more serious than he did, he would have sought to arrange a neurological consultation, with Dr Brooks' agreement, with a view to the taking of a CT scan without contrast. 300 Dr Cutter said that he did not recall having had any meeting with Mrs Spasovic in which Mrs Spasovic talked about the headache and in which she disputed the diagnosis that her husband's headaches were due to caffeine withdrawal but he was not able to deny that such a meeting had occurred. 301 In cross-examination by counsel for the plaintiffs Dr Cutter said that he had not thought that Mr Spasovic's headache might be a side effect of the PCA, because Mr Spasovic had given a history that the headache had started before the PCA was first given. 302 Dr Cutter accepted that, if Mr Spasovic had been almost apologetic about Dr Cutter having been called to review him, Mr Spasovic might have been under-reporting the severity of his symptoms. 303 By describing the headache as "persistent" in the Hospital notes Dr Cutter had intended to convey that the headache was "one long continuous headache" and by writing "mostly mild" he had intended to convey that there were times when the headache was more than mild. 304 Dr Cutter was cross-examined about what he had said, particularly in his first statement, about how Mr Spasovic had described the position of the headache. Dr Cutter accepted that the description of the headache in the entry in the Hospital notes which he had made "Occipito-parietal ® = ?" did not describe a headache "like a tightness – like a band around the top of my head". The description in the Hospital notes was a description of a headache at the back and the sides of the head. 305 Dr Cutter accepted that as at 18 January he was aware that a headache in the occipital area or even in the occipito-parietal area could be indicative of a serious situation, but, he said, only if the headache had a certain degree of severity and if there were associated symptoms, such as "soreness in the neck muscles, such that it would be very uncomfortable to flex your neck". 306 Dr Cutter was aware at the time he made his first statement that, if there was a headache in the back of the head, that could be a sign of serious problems but he denied that in making his first statement he had been trying to describe the headache as being in a different place from the back of the head. Dr Cutter agreed that the occiput is at the back of the head, just above the neck. 307 Dr Cutter was cross-examined about his repeated assertion in his statements that the entry made at 9.45 on18 January by Karen Perkins "patient states headache is in both sides of head and in lower back of head" was not how Mr Spasovic had described the headache to Dr Cutter. Dr Cutter denied that he was trying to represent that the headache was not in the lower part of the back of the head. He said "my point was that it was not only there". He pointed out that he was aware of the Hospital notes and was aware that they would be in court in any legal proceedings. 308 Dr Cutter said that he did not know why he had not referred to the whole of Karen Perkins' note. He ultimately agreed that the description of the location of the headache Mr Spasovic had given him, as recorded in his own note in the Hospital notes, was the same as the description of the location of the headache, as given to Karen Perkins, as recorded in her note. Dr Cutter said:- "..I think it is really just a question of emphasis, that it was not a purely occipital headache, that it was occipito-parietal and I'm unable to say why I haven't quoted the nurse's comment in full because, as you say, it agrees with what I had written at the time". 309 Dr Cutter agreed that the PCA was not a focused analgesia, that it would tend to reduce the level of any pain Mr Spasovic was experiencing, not merely the pain in his feet, but any pain elsewhere in his body and that in assessing Mr Spasovic's reporting of the degree of severity of his headache, it would be necessary to make an allowance for the PCA. However, Dr Cutter said that Mr Spasovic had been lucid and orientated and able to talk normally, which suggested that he was not "substantially under the effect of Morphine". 310 With regard to the notes he had made, Dr Cutter said that, as the only career medical officer in a three hundred bed hospital, with always a backlog of work, he tended to make "salient" or "positive" notes predominantly. 311 Dr Cutter accepted that restlessness could be a sign of cerebral irritation but there could be many other reasons for it as well. 312 It was put to Dr Cutter that, Karen Perkins having made a note at 1445 that Mr Spasovic had been very restless in the early hours of the shift, it was likely that she would have told Dr Cutter that, in her conversation with him before Dr Cutter reviewed Mr Spasovic. Dr Cutter accepted that the picture painted in the nurse's note made at 1445 was more serious than the picture painted in paragraph 6 of Dr Cutter's first statement that Mr Spasovic "appeared well, cheerful and smiling but a little anxious". 313 In paragraph 10 of his second statement Dr Cutter had described Mr Spasovic as "quite buzzy and fidgety" and Dr Cutter accepted that that description was consistent with "very restless and anxious". Both expressions were potential signs of cerebral irritability, "but generally with other signs and symptoms as well". Dr Cutter said that there were other explanations for these conditions, including that Mr Spasovic was not happy being in Hospital and was missing his coffee and cigarettes. 314 Dr Cutter asserted that a headache in the back of the head was a warning sign, only if it was solely at the back of the head and was not a warning sign, in the absence of other signs and symptoms. 315 Dr Cutter was cross-examined about whether he had in fact tested Mr Spasovic for neck stiffness. Dr Cutter accepted that there was no record in his entry in the Hospital notes of his having tested Mr Spasovic for neck stiffness. He had not asserted in any of his statements that he had asked Mr Spasovic whether his neck was stiff. Dr Cutter denied that the assertions in his statements, that he had asked Mr Spasovic to put his chin on his chest and that Mr Spasovic had done so without difficulty or discomfort, were the product of reconstruction on his part. Dr Cutter said he could not explain why he had not included neck stiffness in the list of things mentioned in his note, as being things he had found not to be present. 316 Dr Cutter said that his usual practice was not to check for photophobia without also checking for neck stiffness. 317 Dr Cutter accepted that a description of the headache in the Hospital notes as "variable in severity – mostly mild" was a lesser picture than the description in his statement of a headache "quite bad at times… generally very variable", in that the description in the Hospital notes could mean "variable from moderate to mild". 318 Dr Cutter was cross-examined about assertions in paragraph 8 of his first statement that Mr Spasovic had confirmed that he had no dizziness or light headedness, when there was no reference to dizziness or light headedness in the entry he had made in the Hospital notes. 319 Dr Cutter was cross-examined about the assertion in paragraph 8 of his first statement that Mr Spasovic had told him that his legs and arms felt normal. Dr Cutter accepted that an ordinary lay person who had just undergone surgery and who was barely moving his legs would not be able to say whether his legs felt weak. Dr Cutter said that he recalled Mr Spasovic using both his arms by way of gesturing, when he was talking to Dr Cutter. 320 Dr Cutter agreed that Mr Spasovic's bandaged, unmoving legs could not have indicated that they appeared normal in power and tone. 321 Dr Cutter did not check Mr Spasovic's cranial nerves but if there had been any abnormality he would have expected to see facial weakness on one side or a problem with moving the tongue leading to difficulty in speaking, and also eye movements. 322 Dr Cutter said that, if when he had seen Mr Spasovic he had had a progressively severe headache, as opposed to a variable headache, that would have been an indication for a CT scan. Dr Cutter was impressed by Mr Spasovic's "overall wellness", apart from his feet, and Mr Spasovic's mood. Dr Cutter said there were none of the features of a headache that might have had a sinister underlying cause. 323 Dr Cutter agreed that a CT scan was readily available at the Adventist Hospital. 324 With regard to the entry "position affects +", Dr Cutter said that the "+" meant "marginal" or "minimal". Dr Cutter said that "people with simple headaches will often have a mild position effect". 325 Dr Cutter had not intended by the final part of what he said in paragraph 10 of his first statement to convey that Mr Spasovic's headache might have been due to alcohol withdrawal. 326 Dr Cutter said that as the career medical officer he reviewed patients, as required. He would have expected the nursing staff to contact him again, if they were concerned. 327 Dr Cutter said that he could not recall Mr Spasovic telling him that the headache at times became so severe that Mr Spasovic was crying and he was confident that Mr Spasovic had not told him that, because that would have altered Dr Cutter's impression or assessment. 328 Dr Cutter knew that Mr Spasovic had had a fall. He had not asked Mr Spasovic how far he had fallen and Dr Cutter accepted that he should have done so. However, he would not have expected an intracranial haemorrhage as a result of a deceleration injury. If there had been a haemorrhage as a result of the deceleration injury, he would have expected a bleed of sudden onset with very definite symptoms. Dr Brooks 329 Dr Brooks made entries in the Hospital notes at 12 midnight on 16 January, at 0930 on 18 January and 0930 on 19 January. Dr Brooks did not make any note in the Hospital notes on 20 January. 330 According to the doctor's medication order sheet, Dr Brooks ordered Panadeine Forte for Mr Spasovic on 18 January and Keflex and Aspirin on 19 January. 331 Dr Brooks, having become aware of Mr Spasovic's major haemorrhage, made written notes on 23 January 1996. 332 Parts of these written notes were as follows:- "It was noted that Mr Spasovic complained of headache during the post-operative period. He was assessed in this respect by Dr Cutter, whose comments I noted in the medical record when I was on ward rounds. Dr Cutter's assessment was that this was a typical tension headache and treatment was along standard lines using analgesics. There had been some associated light headedness and I felt this may have been due in part to the PCA, which was ceased on the Friday morning. There were no other complaints expressed to me indicating that this headache might be anything atypical, such as any particular neurological symptoms. In any case, as Mr Spasovic was still not very well on the Friday morning, it was planned to keep him in hospital a further 24 hours. When I saw Mr Spasovic on the Saturday morning he reported that he was very much better, in fact the comment was made that he 'felt like a new man'. There was no further talk of headache, and I recall discussing with him the post operative plans, advising him to remain quietly at home with his feet elevated, to use his crutches for the first three to four weeks while the left foot healed and to see me in the rooms for follow up for removal of the sutures. There was certainly no indication at the time of any further problem with headache or systemic upset of any other sort". 333 The final three paragraphs in Dr Brooks' notes were as follows:- "There was no history of Mr Spasovic striking his head during his fall, in fact it was clear he had not actually fallen off the ladder, rather the ladder had collapsed and he had landed on his feet, as evidenced by his foot injuries, thus there had been no suspicion that his headaches might be related in some way to his injury. Mrs Spasovic indicated to me that she felt disappointed that nothing had been done to prevent this unfortunate event while Mr Spasovic was in the San. I replied that there had been no indication that such an event was about to occur, and that it did not appear related to his injuries, and was more of a spontaneous event which could not have been predicted or prevented. Certainly his condition on the day of discharge was much improved, with no further complaints of headache or other symptoms. Even in retrospect, there were no particular features of his presentation to arouse suspicion, there being no head injury, no neurological aspects to the headache and also the fact that the headache had settled. Certainly his last night in hospital had been very comfortable and he stated he had slept well and felt fine. In any case he had been well assessed by Geoff Cutter, whom I know to be very reliable, and Geoff had not found any thing untoward which would have prompted further investigations". 334 Dr Brooks made a statement which is dated 13 October 2001. In his statement Dr Brooks said that he had been a visiting orthopaedic surgeon at the Hospital since 1994. Dr Brooks would have operated on Mr Spasovic on the night of 16 January, except that Mr Spasovic had not fasted. 335 The Hospital document "patient controlled analgesia nursing observations" indicated that Mr Spasovic commenced using the PCA at 1243 on 17 January and was at first using a lot of pain relief. 336 At 0930 on 18 January Dr Brooks saw Mr Spasovic. Mr Spasovic did not then complain to Dr Brooks of having a headache. If he had complained, Dr Brooks would have recorded it in the Hospital notes. 337 Panadeine Forte was ordered by Dr Brooks on 18 January. This would have been to replace the PCA and was ordered in anticipation of the PCA being stopped. On 19 January Dr Brooks attributed the headache to the PCA. 338 In paragraphs 24 and 25 of his statement Dr Brooks said:- "I clearly remember seeing Mr Spasovic the day he was discharged. He was in very good spirits and said to me that he felt like a new man. He said the previous night had been comfortable and he had slept well. When I came to see him he had his bags packed ready to go. He was very keen to get back to work. I was concerned about his foot, wanting him to keep his feet elevated and to use crutches. He did not complain of a headache at that stage nor was there any mention of a headache by anyone else. He had no complaints and was enthusiastic to get home. I discussed the post-operative plans with him, advising him to remain quietly at home with his feet elevated, to use his crutches for the first three to four weeks while the wounds healed and to see me in my rooms for follow-up for removal of the sutures. There was no indication at that time of any further problem with headache or systemic upset of any other sort". 339 In oral evidence in chief Dr Brooks said that he had prepared the notes of 23 January, because he had been informed of what had happened to Mr Spasovic and because Mrs Spasovic had expressed anger and dissatisfaction about the care her husband had received at the Hospital. 340 Dr Brooks gave evidence about the PCA. He said that at the Hospital it was the usual post-operative pain regime for most patients, so that most of Dr Brooks' patients had had it. Even with the addition of other drugs to control side effects, light headedness and nausea were very common side effects of narcotic analgesics. At least 50 per cent of patients suffered from these side effects. Dr Brooks said "headaches would be a less common side effect. More of the order of 5 – 10 per cent". 341 The following question and answer occurred in Dr Brooks' examination in chief:- "Q. With the type of operation that you carried out on Mr Spasovic, even if they were not on a PCA regime, is headache a commonly observed side effect? A. Well, I think it is a common symptom in people generally and people that are in hospital, having had surgery are I think more stressed. There are a number of other factors like dehydration, fasting, cessation of habitual things like alcohol, tobacco and so on, it can all cause headache to be more common so it is not an uncommon feature of people in hospital". 342 Dr Brooks said that the amount of morphine Mr Spasovic had administered to himself, according to the PCA nursing observations chart, was an average amount for a male of Mr Spasovic's size. 343 As to the possible effect of the morphine in the PCA on the degree of severity of the first plaintiff's headache, Dr Brooks said:- "I think the effect of that amount of Morphine would have been slight on headache. Morphine isn't it normally given for headache, it's not the most effective treatment for headache anyway but that amount of morphine I don't think would have made a great deal of difference to headache". 344 Dr Brooks said that headache is a known side effect of both morphine and pethidine. 345 Dr Brooks said that it was understandable that the first plaintiff would be "drowsy", as recorded in the note at 2200 on 17 January. The first plaintiff had had a late and disturbed night on the previous night, he had had surgery that day and he had self-administered quite a bit of narcotic analgesic early in the afternoon of that day. 346 Dr Brooks said it would not be rare for a patient to have a headache in the circumstances Mr Spasovic was in on the morning of 18 January. 347 It was quite common for patients to complain of restlessness. Patients in hospital sometimes are not sleeping well, are out of their usual environment, have post-operative pain and their sleep can be disrupted by the taking of observations of them. 348 As to seeing the first plaintiff on 18 January, Dr Brooks said that, if Mr Spasovic had complained of a headache, Dr Brooks would have noted it. The entry he did make in the Hospital notes "Pt satisf (actory) post-op" was a concise way of saying that Dr Brooks had looked at the patient and had asked him how he was and no particular problems had been noted. On 18 January Dr Brooks would not have predicted a possible discharge of Mr Spasovic the following day, as he indicated in his note in the Hospital notes, if Mr Spasovic had looked unwell to Dr Brooks. 349 Dr Brooks said he could recall the consultation on 20 January. Dr Brooks said:- "A. I do recall that consultation, and the reason is I think because of what happened thereafter. Naturally you go back over the, you know, what the patient was like when you last saw him, in particular because of statements that were being made about his condition when he went home and so on, it is quite embedded in my memory what he was like that day. You know, I still have a little picture in my mind of him in the room on that occasion". 350 Dr Brooks said that his consultation with Mr Spasovic on 20 January had lasted about five minutes. 351 Dr Brooks said that, he having prescribed drugs and the nurses having obtained a supply of the drugs from the Hospital pharmacy, the patient was regarded as having bought the drugs and, if the drugs were not used in the Hospital, they were given to the patient when the patient went home. 352 During the time Mr Spasovic was in the Hospital Dr Brooks did not observe any possibility of right sided weakness. 353 Dr Brooks said that he did not give any advice to Mr Spasovic that, in the event of the headaches recurring, it would be necessary to seek medical attention or come back to the Hospital, because the first plaintiff was no longer complaining of headaches. 354 In cross-examination by counsel for the plaintiffs Dr Brooks said that Dr Cutter's assessment of the first plaintiff on 18 January had been a significant factor in how he, Dr Brooks, had subsequently treated the first plaintiff. Dr Brooks said that it was difficult for him to know whether he had read the whole of Dr Cutter's note in the Hospital notes. He thought that he would have looked at Dr Cutter's note briefly and at its conclusion. His impression of Dr Cutter's note was that the headache was not severe. His understanding was that Dr Cutter would have conveyed to the first plaintiff that the headaches were benign and that the first plaintiff did not have to worry about them. 355 Dr Brooks could not recall what he himself had asked the first plaintiff on 19 January but he would have made a brief enquiry about the headache. 356 On 19 January Dr Brooks knew that Dr Cutter's treatments had not resolved the headache but that "didn't mean his diagnosis was wrong". 357 Dr Cutter said that "my feeling was that it was consistent with a tension headache and may have been related to the PCA infusion that he was still on". 358 Dr Brooks had been in Court on the first day of the hearing when Mr Spasovic gave evidence and he said of Mr Spasovic's evidence:- "…his own description, which was really of a striking headache, with crying and holding his head and so on. I mean, that type of severity I think would have struck me as out of the ordinary and also the nursing staff". 359 In cross-examination Dr Brooks gave the following evidence:- "…a headache that is severe at times and lasts for several days is still not necessarily something that would alert you to further … unless there was something else associated with it, particularly any neurological aspect. Q. Do you say that you actually need to observe some neurological feature before you would investigate a headache further? A. Either that, or an unusual degree of severity, or duration. Q. What about if there's a headache at the lower back of the head and round to the sides, does that suggest anything sinister to you? A. No. Q. A headache which is quite different from the usual sort of headache that the patient has had before, does that suggest anything extra should be done? A. No, because again it's still consistent with the type of headache you see in hospital in patients related to all the issues that we have discussed such as the fasting, the stress of surgery and fluid, changes in their fluid balance, the drugs they have been given and so on". 360 The following question and answer occurred:- Q. Don't you think that a symptom which has started after the patient has had a fall, not struck his head, but had a fall, it has lasted for some three days, the prescription which the previous doctor has given hasn't worked, it is in the occipitoparietal area round the back of the head, it is different from anything the patient has had before, and it is very variable in severity and sometimes quite severe. Don't you think that that's the sort of headache that might require further examination? A. Well, you see you put it that way, but I had seen this patient on a number of occasions by then and he'd not mentioned it to me which wasn't giving me the impression that it was a severe headache. You know, I realise that what you are saying is based, is reconstructed now to things he's said to nurses during that time. But seeing as I had seen him myself and he hadn't mentioned it to me, obviously gave me the impression that it wasn't something worrying him very much, or I would have assumed he'd have commented when I'd come by. I had seen him on three or four occasions by then". 361 Dr Brooks did not understand that a headache in the low back of the head and the sides of the head including at the back could be suggestive of a cerebral bleed. He did understand that neck stiffness would be a warning sign of subarachnoid blood. 362 That the first plaintiff might have suffered a jarring injury to his brain as a result of the fall was not a possibility that had occurred to Dr Brooks and would not have occurred to him, in the absence of any traumatic injury to the head, some loss of consciousness or some other symptom. 363 Dr Brooks had seen the first plaintiff at about midnight on 16 January, on the morning of 17 January and on the morning of 18 January, and on none of those occasions had the first plaintiff mentioned a headache to him, which led Dr Brooks to conclude on 19 January, when the first plaintiff did mention having a headache, that the headache was not a major issue for the first plaintiff. 364 Dr Brooks gave the following evidence:- "… I don't recall exactly what I asked him. I didn't undertake a full assessment of him from the point of view of the headache because I understood that had been done by Dr Cutter. I understood that there was a working diagnosis which we have discussed and I had my own impression of a possible cause, which was related to the PCA and rather than, you know, undertaking a full further assessment of the headache, I was treating it expectantly on the basis of Dr Cutter's review and my own feeling about the PCA perhaps being responsible, we are going to disconnect that and see whether that led to resolution of the headache". 365 Dr Brooks said that, if on the morning of 19 January he had known that the first plaintiff had had the headache since early on the Wednesday morning, then, in the absence of other features, he would not have found that out of the ordinary. 366 Dr Brooks said that as an orthopaedic surgeon he was not aware of any possible connection between the fall and the first plaintiff's headache. 367 Dr Brooks said "I wasn't really undertaking myself as an orthopaedic surgeon to diagnose the headache". 368 Dr Brooks accepted that he was the doctor ultimately in charge of the first plaintiff. He said, "I didn't undertake to assess the headache fully. The nurses had asked Dr Cutter about that and I was more or less relying on his assessment". 369 Dr Brooks said that he had not been aware of any great level of anxiety about the headache and referred again to the first plaintiff not having mentioned the headache on any of the previous occasions on which Dr Brooks had seen the first plaintiff. 370 Dr Brooks said that he did not think he knew on 19 January that the first plaintiff had complained of having a headache on 17 January at 10.25, that is before the surgery and hence before the PCA. Dr Brooks said that, if the last self-administration of Morphine from the PCA was at 8 o'clock on the morning of 19 January, the effects of the drug could still have been "in the system" an hour and a half later, at the time Dr Brooks saw the first plaintiff and indeed up to 11 o'clock. 371 Dr Brooks was not saying that the Morphine in the PCA "must be the sole cause" of the headache. If the headache had been present before the PCA started, there could have been other benign causes for the headache. 372 Dr Brooks was asked how he could say that there were no neurological symptoms, without having made a neurological examination. Dr Brooks said that, without a detailed neurological examination, it would have been apparent, if the first plaintiff had had any alteration in speech or in the level of consciousness or if he had had any hemiplegia. Dr Brooks said "I think I would have noticed or Mr Spasovic probably would have reported, if there had been any incoordination of his hands or weakness". Mr Spasovic was "quite alert"; he was "quite conversant". Dr Brooks said there might have been some impairment of consciousness at times while Mr Spasovic was in the Hospital but "there was nothing unexpected about him being a little sedated by the morphine". The first plaintiff's oxygen saturations, as recorded by the nursing staff, were normal "so there wasn't any untoward diminution of his consciousness, because that would have affected his respiration". 373 Dr Brooks thought that, if an otherwise healthy person such as Mr Spasovic had noticed that he felt weak down one side, he would have reported that to a doctor. Dr Brooks would have noticed if the first plaintiff had had any significant weakness on one side. If any weakness was less than "significant", it would be apparent, only if there was a more detailed examination, but one would not undertake such an examination, unless there was a complaint or symptom which made one suspicious of a neurological condition, such as impaired consciousness or a speech problem or a report by the nursing staff that there was a problem. 374 When he saw the first plaintiff on 19 January, Dr Brooks had not observed anything which he thought Dr Cutter had missed. Dr Brooks said "my own observations of him concurred with the conclusion I realised Dr Cutter had come to, which was that it was a benign type of headache". 375 Dr Brooks had considered that Dr Cutter was better qualified than he was to assess the headache. He knew Dr Cutter to be experienced. Complaints like headaches "don't really fall in the realm of orthopaedic surgery" and are best assessed by a general doctor. "What Dr Cutter had said wasn't excluded by the fact that the headache was still present". 376 When he saw the first plaintiff on 20 January Dr Brooks had not asked the first plaintiff about any headache. He said that he was with the first plaintiff for about five minutes and if the headache had still been an issue he would have expected the first plaintiff to have raised it. On 20 January the first plaintiff had said to Dr Brooks that he felt very well and that he felt like a new man. On 20 January the first plaintiff "just appeared so well". 377 Dr Brooks said that when he saw the first plaintiff on the morning of Thursday 18 January, the first plaintiff had not complained of headache. Dr Brooks was referred to a nursing note at 9.45, fifteen minutes after Dr Brooks saw the first plaintiff, in which a complaint of a headache is recorded. It was put to Dr Brooks that the first plaintiff might have complained of a headache to him but that Dr Brooks had not recorded the complaint in a note. Dr Brooks replied:- "I think it is possible but unlikely because I think I would have noted it down.. I said ' the patient is satisfactory'". 378 Dr Brooks thought that the first plaintiff's complaint of "light headedness" would have been a description the first plaintiff himself had given and it was " very suggestive of a side effect of the Morphine PCA". 379 Dr Brooks said that restlessness was a common symptom of patients in hospital post-operatively. 380 Dr Brooks said that, although Morphine is a powerful drug, it does not completely eliminate pain, although it might reduce the severity of a headache from moderate to mild and from severe to moderate. In assessing the headache Dr Brooks would have taken into account that the first plaintiff was receiving Morphine. The first plaintiff had had a lot of Morphine on the first day (that is 17 January) because of the pain in his feet but after that the amount of narcotic the first plaintiff administered to himself was not a high amount. 381 In the notes made by Dr Brooks on 23 January 1996 Dr Brooks had said that light headedness might be due to the PCA. He had not in those notes said that the headache might be due to the PCA. However, Dr Brooks had felt on 19 January that the headache might have been related to the PCA. 382 Dr Brooks said that he was sure that every time he saw Mr Spasovic he would have asked him "how are you?" 383 Dr Brooks said that he had a close working relationship with the nurses at the Hospital. "If they had been concerned, they would have let me know". 384 Dr Brooks said:- "…as with many other things in medicine, you don't necessarily advance to a definite diagnosis, but time usually clarifies things and sometimes you can't make a full diagnosis on day one or day two, but many many symptoms resolve before you've got to a diagnosis and that was really, it didn't seem an urgency to investigate him any further and so that's where I say the treatment was somewhat expectant with relatively simple measures and that was, did seem justified the following morning anyway when he said he felt like a new man". 385 Dr Brooks did not see Mr Spasovic leave the Hospital on 20 January. If Mr Spasovic had not been able to walk using crutches, then Dr Brooks would not have expected that he would have been discharged. If Mr Spasovic had left in a wheelchair, that would not have concerned Dr Brooks. It would be convenient to take the first plaintiff out of the Hospital in a wheelchair, even if the first plaintiff could manage crutches. If the first plaintiff had been agitated and had been holding his head bowed down, that would not have been normal. 386 In re-examination Dr Brooks said that the first plaintiff had had three doses of pethidine before the PCA started and the effects of the pethidine the first plaintiff had had could have been the same as the Morphine. However in further cross-examination Dr Brooks said that he had not, at the time, related the headache back to the early hours of the first plaintiff's admission to the Hospital. ASSESSMENT OF THE EVIDENCE 387 Having reviewed the evidence about the plaintiff's headache and more generally about what happened during the plaintiff's stay in the Hospital, it is necessary to make some assessment of the reliability of the different classes of the evidence. 1. The Hospital's medical records 388 It was submitted by counsel for the first defendant that I should accept the Hospital's medical records and particularly the Hospital notes (that is the Integrated Progress Notes), as reliable evidence and indeed the most reliable evidence concerning the plaintiff's headache and events happening during the plaintiff's stay in the Hospital. 389 As was submitted by counsel for the first defendant, the Hospital's medical records and particularly the Hospital notes have the virtues, as evidence, of being contemporaneous records; of having been made by or under the supervision of trained observers; of having been made, not for the purposes of litigation or out of self-interest or with hindsight, but for the purpose of disinterestedly recording, progressively, what was happening during the plaintiff's stay in the Hospital; and of being, on the face of them, quite detailed and not merely perfunctory. The virtue of having been made without hindsight, that is of having been made without knowledge of the plaintiff's major haemorrhage on 20 January 1996 and its consequences, is a virtue possessed by the entries in the Hospital notes and by very little other evidence, lay or expert, in the case. I have also had the benefit of seeing and hearing many of the nurses who made notes give evidence and I formed a generally favourable impression of them. 390 A criticism was made by counsel for the plaintiffs that the nurses who made most of the Hospital notes had not known the plaintiff otherwise than as a patient at the Hospital and could not compare the plaintiff as observed by them in the Hospital with the plaintiff as he was normally, whereas the plaintiff's wife and son and his friends and relatives had this advantage. I have taken this criticism into account but, having regard to the virtues of the Hospital notes as evidence, I do not consider that the criticism should be given much weight. For reasons which I will give later in this judgment serious criticisms can validly be made of much of the evidence of the plaintiffs, their son and their friends and relatives. Although the nurses could not compare the plaintiff as they observed him in the Hospital with the plaintiff as he had been outside the Hospital, they had the advantage, in observing the plaintiff in the Hospital, of being able to observe him in the context of their observations of many other patients. A number of the nurses observed the plaintiff during more than one shift. For example, Karen Perkins observed the plaintiff during shifts on 17 January, 18 January, 19 January (briefly) and 20 January. 391 I consider that I should in general accept the Hospital's medical records as being an accurate record of the matters purportedly recorded in them. 2. Evidence of the plaintiffs, their son Aleksandar and their Relatives and Friends 392 All of this evidence lacks the virtues possessed by the Hospital's medical records which I have identified. Among other things, I consider that all of this evidence was strongly influenced by the witnesses' knowledge of the plaintiff's major haemorrhage and its consequences for him. 393 In the case of most of these witnesses, the witness made a first statement in 1996, but some months after January 1996, and a second statement more than five years after January 1996, that is long after these proceedings had been commenced and the Hospital notes and experts' reports had been obtained and read by Mrs Spasovic and after (I am satisfied) there had been a number of discussions about the proceedings in which the witness and Mrs Spasovic had participated. The first Plaintiff 394 In his first statement made on 15 June 1996 the first plaintiff said that he had very little recollection of his stay in the Hospital. He remembered his feet hurting but he did not remember any other part of his body hurting. 395 In his second statement made on 5 September 2001 the first plaintiff claimed to remember more things about his stay in the Hospital but still said that his memory of his stay in the Hospital was very poor. He claimed to remember that he had had headaches and that he had cried with pain from the headaches. 396 In his oral evidence in chief the first plaintiff gave the incoherent answer which I have quoted earlier in this judgment, when he was asked "do you have any further memory in Hospital?" 397 I accept that by the time the first plaintiff made his second statement the first plaintiff's memory of what had happened while he was in the Hospital had recovered to some extent but I find only to a very limited extent. 398 Having regard to the evidence the first plaintiff gave which I have summarised earlier in this judgment, I consider that at the time he made each of his statements and at the time he gave oral evidence he had very little genuine recollection of what had happened during his stay in the Hospital and that such recollection as he asserted he had had been influenced by discussions with his wife. The Second Plaintiff – Mrs Spasovic 399 It was obvious from Mrs Spasovic's language and demeanour when she was giving oral evidence that she was (quite understandably) deeply emotionally committed to her husband's case. She was convinced that "the Hospital" (and this included the doctors at the Hospital) had "blundered" in caring for her husband. 400 In assessing Mrs Spasovic's evidence it is necessary to bear in mind that she has worked for a number of years as a "hospital scientist" in hospitals and that she uses medical terms adeptly and knowledgably. 401 Mrs Spasovic described her first statement of 7 April 1996 as just a "diary note". However, it is a document of almost four pages, divided into eighteen numbered paragraphs some of more than ten lines, dealing in order with events of the days from 16 January 1996 to 20 January 1996. It is a quite substantial document. One would have expected her to have included in it any event which had occurred and which appeared to her to be important. 402 At the time she made her first statement Mrs Spasovic had already written a letter to the Health Commission, complaining that the Hospital had not properly investigated her husband's headache. I am satisfied that at the time she made her first statement Mrs Spasovic was already contemplating at least the possibility of legal proceedings being brought against the Hospital. 403 At the time she made her first statement Mrs Spasovic realised the importance of her husband's headache to any legal proceedings against the Hospital. In her first statement she recorded, with respect to each day, whether her husband had complained or had not complained of having a headache. At the time she made her first statement she also realised the importance of whether any complaint had been made to "the Hospital staff" about her husband having a headache. In par 10 of her first statement she recorded that in a telephone conversation on Friday 19 January she had told her husband to tell the Hospital staff about his headaches. 404 Mrs Spasovic made her second statement on 1 September 2001, that is more than five and half years after January 1996. By the time she made her second statement the legal proceedings had been on foot for a number of years, Mrs Spasovic had read the Hospital notes, she had read the reports of the expert witnesses as they were received and, notwithstanding any denial by her, I am satisfied that she had discussed the case often with members of her family and friends. She was well aware of what sorts of evidence might assist the plaintiff's case. 405 In her second statement she asserted that events had occurred which she had not mentioned in her first statement, including that on the morning of 17 January her husband had complained of having a headache, on the afternoon of Thursday 18 January 1996 she herself had had a conversation at the Hospital with a doctor about her husband's headaches, that on the evening of Thursday 18 January 1996 she herself had had a conversation at the Hospital with a nurse (a "ward sister") about her husband's headaches and that on the evening of Friday 19 January 1996 she herself had had a conversation at the Hospital with a nurse (a "ward sister") about her husband's headaches. 406 Mrs Spasovic's evidence about her observations of her husband in certain periods are difficult to reconcile with the Hospital notes relating to the same periods, for example her evidence about the appearance of her husband on the evening of 19 January 1996 and her evidence that he was then unsteady on his crutches. 407 In my opinion, if the first plaintiff on any occasion had been exhibiting symptoms as gross as those sometimes described by Mrs Spasovic, it is unlikely that the symptoms would have escaped the attention of the nursing staff or would have been ignored by the nursing staff. 408 Mrs Spasovic's evidence is clearly incorrect in some respects. For example, she was incorrect in saying that the night on which her husband was moved from a double room to a single room was the night of 17 January 1996 (it was the night of 18 January 1996) and in saying that the day on which a physiotherapist was in her husband's room was 18 January 1996 (it was 19 January 1996). 409 In 1998 Mrs Spasovic told the psychiatrist Dr Walden, according to Dr Walden's report, that she felt very guilty that she had not spoken to the doctor herself about her husband's headaches at the Hospital. I do not find convincing her attempted explanation that all she had meant by this remark was that she had not told Dr Brooks about her husband's headaches and that she had told the "resident" doctor at the Hospital. I consider that the evidence of what she told Dr Walden is inconsistent with her evidence that she had a conversation at the Hospital with a doctor about her husband's headaches. 410 I am satisfied that it was Mrs Spasovic, who went to Westmead Hospital in the ambulance with her husband, who was the source of the history recorded in the Westmead Hospital notes. On 20 January 1996 the following history is recorded:- "3 days ago, a ladder slipped underneath him and he fell lacerating the soles of both of his feet. He was admitted to SAH for suturing and discharged this morning. He had a minor headache after the fall. Well then relatively till severe headache this afternoon, then collapse". 411 Some of the latter parts of this history are inconsistent with some of Mrs Spasovic's evidence. 412 I have taken into account the somewhat differing histories recorded on later pages of the Westmead Hospital notes, including in the discharge report of 5 February 1996:- Admitted WMH 20/1/96 following several days of headache: 2/24 prior to admission – severe headache. 1/24 prior to admission. Collapse". … "Pt has a (history) of 17/1/96 fell from a ladder lacerating the soles of both feet. Pt admitted to SAH for suturing and discharged. Pt had a minor headache after fall 20/1/96 severe headache, followed by collapse". 413 This history indicates that the plaintiff had only a minor headache prior to 20 January and that he had a severe headache for only a couple of hours before his admission to Westmead Hospital. 414 I also find that Mrs Spasovic was the source of the history in the ambulance record:- "Wife states pt c/o severe headache today". 415 I consider that the matters I have referred to and other matters arising in the cross-examination of Mrs Spasovic seriously affect her credibility on contentious matters. Aleksandar Spasovic 416 Aleksandar Spasovic's first statement was made some time in 1997, probably more than a year after January 1996, at a time when he knew that legal proceedings had been commenced or were about to be commenced and after he had had discussions with his mother about what had happened at the Hospital during his father's admission. His second statement was made on 1 September 2001, that is more than five and a half years after January 1996. 417 Aleksandar Spasovic gave evidence that when he visited his father in the late afternoon of Friday 19 January 1996, his father had trouble talking to a nurse, his father complained to the nurse of having headaches and his father had a conversation with a nurse about his headaches. 418 While there are entries elsewhere in the Hospital notes recording the first plaintiff complaining of having a headache, there is no record in the Hospital notes of the plaintiff complaining of having a headache on the afternoon or evening of 19 January 1996. On the other hand, there is a note in the Hospital notes made at 3 o'clock in the afternoon "headache gone at 1100", a note made by the physiotherapist, who I infer observed and conversed with the plaintiff while she was teaching him how to use crutches, that he was "managing relatively well, mobilising with crutches" and there is a note made at 2230 "analgesia refused" meaning, according to Carolyn Kalnoky, "Mr Spasovic declined pain relief when I offered it to him". 419 According to Aleksandar Spasovic his father complained of having nightmares. Mrs Spasovic herself did not make any assertion in her evidence that her husband complained of having nightmares. 420 Aleksandar Spasovic gave evidence that on the morning of Saturday 20 January 1996 his father said that he had not slept well the previous night. An assertion by the plaintiff that he had not slept well on the night of 19-20 January would be contrary to much evidence in the case, including the Hospital note for the night "Pt sleeping when observed" and the evidence of Dr Brooks and Sandra Hunt who saw and spoke to the plaintiff on the Saturday morning. It is also difficult to reconcile with the evidence of Karen Perkins. 421 The plaintiff was discharged from the Hospital on the morning of 20 January 1996. In my view, it is inherently improbable that the Hospital staff would have permitted him to be discharged if, as Aleksandar Spasovic alleged in his second statement, the plaintiff, while still at the Hospital, was agitated, his head was bowed down, he was holding his head and he seemed to be in pain. 422 I consider that the matters I have referred to and other matters arising in the cross-examination of Aleksandar Spasovic seriously affect his credibility on contentious matters. Relatives and Friends of the Plaintiffs Mrs Avramovic 423 Mrs Avramovic made her first statement on 11 August 1996, that is seven months after January 1996. The only time she visited the plaintiff in Hospital was in the late evening of 16 January 1996, when the plaintiff was "in high spirits". 424 All Mrs Avramovic's subsequent contacts with the plaintiff while he was in the Hospital were telephone conversations. I am satisfied that all these telephone conversations were quite brief. Mrs Avramovic accepted that the telephone conversation on 17 January 1996 was a quick conversation. She denied that the telephone conversation on 19 January 1996 was a quick conversation but the account of the conversation given in her first statement "I told him I was rushing to call him early as I had to go to work" strongly indicates that the conversation would have been brief. 425 Mrs Avramovic's account in her first statement of her telephone conversation with the second plaintiff on the evening of 18 January 1996, including the joking about taking the plaintiff some solid food, is inconsistent with either the second plaintiff or Mrs Avramovic then feeling any real concern for the plaintiff. It is common ground between the parties that the plaintiff was complaining of a headache on the morning of 19 January 1996. Mr Bajic 426 Mr Bajic's first statement was made on 11 August 1996. After the first plaintiff had been discharged from the Hospital and before Mr Bajic made his first statement Mr Bajic had had many conversations with Mrs Spasovic. 427 The only contact Mr Bajic had with the plaintiff while the plaintiff was in the Hospital was one telephone conversation. Mr Bajic was not sure on what day the telephone conversation had occurred but thought it was on the day after the plaintiff had had his operation. I am satisfied that this conversation was quite short. In his first statement Mr Bajic estimated that the conversation lasted three to five minutes. If the account of the conversation in direct speech given in Mr Bajic's second statement is a full account, then the conversation would have been even shorter. 428 Mr Bajic's impression that in the telephone conversation the plaintiff sounded confused seems to have been influenced by an opinion he had formed about whether the plaintiff's operation had been a major operation. Mrs Dobrich 429 I do not consider that I should accept Mrs Dobrich's evidence that, more than seven years later, she could recall her sister the second plaintiff telling her in a telephone conversation, none of the rest of which she could recall, that the second plaintiff had spoken to a doctor about the first plaintiff's headache. Mrs Dobrich had been in Court when the second plaintiff had given evidence that she had spoken to a doctor at the Hospital about the first plaintiff's headaches. Mr Dobrich 430 Mr Dobrich's only contact with the first plaintiff while the first plaintiff was in the Hospital was on the evening of Wednesday 17 January 1996, that is on the evening of the day on which the first plaintiff had had his operation. On that occasion Mr Dobrich's only conversation with the first plaintiff was a very short conversation. Mr Duffy 431 I consider that little weight could be given to the evidence of Mr Duffy that on some day while the first plaintiff was in the Hospital he had visited the first plaintiff and that during the visit the first plaintiff had appeared unusually subdued and had looked sick. 3. Evidence of the Hospital's Nurses 432 The evidence of the Hospital's nurses in their statements (and their oral evidence) necessarily lacks a number of the virtues as evidence of the entries made by the same nurses in the Hospital's medical records and particularly the Hospital notes. The evidence of the nurses in their statements is not a contemporaneous record, the statements were made to a solicitor at a time when there was clearly a possibility of litigation and the statements were made with hindsight and particularly with knowledge of the first plaintiff's major cerebral haemorrhage on 20 January 1996. Nevertheless, the statements made by nurses in 1996 do have the virtue of having been made fairly soon after the first plaintiff's stay in the Hospital, especially when compared with the statements of the plaintiffs, their son and their friends and relatives, which were made months or years after the first plaintiff's stay in the Hospital. Although the statements made by nurses in 1996 bear dates in February or March 1996, instructions for the statements were given by the makers of the statements in separate conferences with a solicitor on 31 January 1996. The statements made by nurses in 2003 are almost entirely limited to verifying that particular entries in the Hospital notes were made by the makers of the statements. 433 Having seen and heard the following nurses give oral evidence, I consider that I should accept the evidence in their statements and oral evidence of:- (i) Gillian Beall, except that I consider it probable that on the morning of 18 January 1996 Dr Cutter reviewed the first plaintiff at some time after 10 o'clock. (ii) Elizabeth King, except that I consider it probable that she was aware, earlier than she said, that the first plaintiff had been given Panadol for a headache early in the night shift of 17-18 January. (iii) Karen Perkins. The careful notes made by her in the Hospital notes at 9.45 and 2.45 on 18 January recording the first plaintiff's complaints and her observations of him strengthen her credibility. (iv) Fiona McClure. Evidence given by her about when it was that the plaintiff was moved from a double room to a single room was confirmed by the production of Hospital records. (v) Carolyn Race (vi) Julie Birrell (vii) Sandra Hunt, except that I do not accept the evidence in her supplementary statement. 434 I also consider that I should accept the evidence in the statements of Kerryn Chappel and Frederick Johnson. 4. Evidence of Dr Cutter and Dr Brooks Dr Cutter 435 The notes Dr Cutter made in the Hospital notes on 18 January 1996 have the same virtues as evidence as the other notes made in the Hospital notes and I accept that, as to the matters referred to in Dr Cutter's notes, the notes, so far as they go, are an accurate record of what Dr Cutter was told by the first plaintiff and what Dr Cutter observed about the first plaintiff and what opinions Dr Cutter formed about the first plaintiff. I reject a submission made by counsel for the plaintiffs that in making his notes in the Hospital notes, and particularly the note "variable in severity – mostly mild", Dr Cutter understated, deliberately or otherwise, the degree of severity of the plaintiff's headache, as reported by the plaintiff to Dr Cutter. 436 It was also submitted that if in fact the plaintiff had an AVM, there had been a sentinel bleed from the AVM and the plaintiff's headache was caused by the sentinel bleed from the AVM, then the signs and symptoms which the plaintiff reported to Dr Cutter or which were observed or observable by Dr Cutter would have been more serious than those recorded by Dr Cutter in the Hospital notes and those asserted by him in his statements. Later in this judgment I will find that in fact the plaintiff had an AVM, there had been a sentinel bleed from the AVM and the plaintiff's headache was caused by the sentinel bleed from the AVM. However, it is quite clear from the evidence generally that the plaintiff's headache, if it was an intracranial headache caused by a bleed from an AVM, did not exhibit many of the typical characteristics of a headache from an intracranial haemorrhage, including that it was not of sudden onset, it was not of continuous severity, it was not of increasing severity, it was not unilateral, it was not accompanied by photophobia, nausea or vomiting and it was not accompanied by any focal neurological symptoms. The explanation offered by the plaintiff's expert medical witnesses Professor Dorsch and Professor Brew for the absence of such typical characteristics of a headache caused by an intracranial haemorrhage was that the sentinel haemorrhage was very small. If the intracranial haemorrhage was very small, the signs and symptoms which the plaintiff reported to Dr Cutter or which were observed or observable by Dr Cutter could well have been no more serious than those stated by Dr Cutter in the Hospital notes or in his statements. 437 A strong attack was made on Dr Cutter's credibility based on his evidence in his statements about what the plaintiff had told him about the position of the plaintiff's headache. 438 In his notes in the Hospital notes Dr Cutter wrote "occipito-parietal ®=(L)". This is clearly a record of a report made by the plaintiff to Dr Cutter that his headache was in the occipito-parietal areas and was experienced by him equally on both sides of the head. 439 There is no doubt that, in medical terminology, the occiput is the back part of the head or more specifically the lower part of the back part of the head and that the parietal areas are the sides of the head. 440 However, in his statements Dr Cutter said that the plaintiff had described his headache as being like a band around the top of his head at the level of his forehead and had expressly denied that the plaintiff had described his headache as also being in the lower back of his head. In his statements Dr Cutter said that the note made by the nurse (Karen Perkins) that the patient stated that his headache was in both sides of his head and in the lower back of his head, was not how the plaintiff had described the position of his headache to Dr Cutter. 441 In his oral evidence Dr Cutter conceded that the occiput is the back of the head and indeed the lower part of the back of the head; that according to Dr Cutter's own note in the Hospital notes the plaintiff had described the headache as being at both the sides and the back of the head; that what he had written in his note was correct; that what he had said in his statements was inconsistent with his note in the Hospital notes and was incorrect; and that the criticism he had made of the nursing note in his statements was unjustified. Dr Cutter also conceded that in January 1996 he was aware that a headache in the occipital area could be a sign of a serious problem, although, he added, only if the headache had a certain degree of severity and there were associated symptoms. 442 It was submitted on behalf of the plaintiffs that Dr Cutter, realising at the time he made his first statement that a headache in the lower part of the back of the head could be a sign of a serious problem, had attributed to the first plaintiff a report that the headache was in a different place from the back of the head. It was submitted that what Dr Cutter had said in his statement was deliberately false and that this seriously affected his general credibility. 443 There is some force in this submission by counsel for the plaintiffs. On the other hand, Dr Cutter at the time he made his statements, must have known that in any legal proceedings or in any inquiry by the Hospital the Hospital notes would be available, that what he had written in the Hospital notes could not be altered and that it would be futile for him to attempt to contradict what he had written in the Hospital notes. I consider that I should accept the explanation given by Dr Cutter in his evidence that in his statement he was attempting (even if clumsily and ineptly) to make the point that the headache the plaintiff had described to him was a headache which was not confined to the back of the head. I do not accept that what Dr Cutter said was deliberately false. Nevertheless, I have taken the submission by counsel for the plaintiffs into account in assessing Dr Cutter's credibility on other matters. 444 Apart from what is stated in the actual notes made by Dr Cutter in the Hospital notes, I consider that I should accept evidence given by Dr Cutter which provides a plausible explanation of any part of the notes or which is rendered more probable by any part of the notes. For example, Dr Cutter made a note "drinks coffee ++ usually" and a note "for.. caffeine". I accept evidence by Dr Cutter explaining these notes that the plaintiff told him that he usually drank a lot of coffee and that while he was in the Hospital he was missing his coffee, that the plaintiff had asked Dr Cutter to organise some coffee for him and that Dr Cutter prescribed coffee for the plaintiff and that both the plaintiff and Dr Cutter found it amusing that, in order for the plaintiff to have coffee at the Adventist Hospital, a doctor had to prescribe it for him. Mrs Spasovic denied that her husband drank much coffee. However, I am satisfied that Mrs Spasovic, perhaps because she was unaware of her husband's habits at work, understated the amount of coffee he was accustomed to drinking. 445 Dr Cutter made a note "vision not affected". I accept evidence by Dr Cutter that, if he had followed his usual practice, he would have held up his fingers in front of a bright light and observed whether the plaintiff's pupils reacted to the light and I find that Dr Cutter would have followed his usual practice on this occasion. 446 A further example is that Dr Cutter made a note "position affects +". I accept evidence by Dr Cutter explaining this note, that the plaintiff told him that he could move his head forwards and backwards without any difficulty but if he moved his head from side to side the headache got slightly worse. 447 Another example is that Dr Cutter made a note "for.. fluids". I accept evidence by Dr Cutter that he noted from the fluid chart that the plaintiff had not had much to drink post-operatively. 448 Some evidence given by Dr Cutter about his review of the plaintiff on 18 January 1996 was of matters not recorded in the notes he made in the Hospital notes and was not an explanation of any matter recorded by him in the notes and was not closely connected with any matter recorded by him in the notes. In deciding whether to accept such evidence I take into account an argument for the plaintiffs that, if a matter had actually occurred and was significant, one might have expected Dr Cutter to have made a note about it. On the other hand, I accept that on 18 January 1996 Dr Cutter was the only Career Medical Officer in a three hundred bed hospital and that there was a "backlog of work", that is other patients were waiting to be reviewed by Dr Cutter, and that in those circumstances Dr Cutter could not reasonably be expected to make more than quite terse notes about his review of the plaintiff or to make a note of everything the plaintiff told him or of everything Dr Cutter did or observed. 449 I do not accept a submission made by counsel for the plaintiffs that it was apparent from Dr Cutter's demeanour when giving evidence that he was an untruthful witness. 450 I will now deal with some parts of Dr Cutter's evidence which are contentious. (i) How the plaintiff presented during the review on 18 January 1996 451 According to Dr Cutter's evidence, the plaintiff looked well and was cheerful and was dismissive of his headache. The plaintiff said that at the time of the review his headache was "very mild". The plaintiff displayed none of the behaviour or symptoms which would have made Dr Cutter think that he had a serious headache. The plaintiff was impatient and frustrated at being confined to a bed in a hospital. 452 In cross-examination Dr Cutter accepted that a more serious picture of how the plaintiff was presenting on the morning of 18 January 1996 is painted in the Hospital notes made at 1445, recording that in the early hours of the shift, which had commenced at about 7 o'clock, the plaintiff had been very restless, anxious and concerned about his headache. However, I do not consider that, on this ground, I should reject Dr Cutter's evidence about how the plaintiff presented at the time he made his review, which took place in the mid to late morning. 453 Dr Cutter said that in assessing the plaintiff he had allowed for the fact that the plaintiff was self-administering morphine through the PCA. Dr Cutter said that during the review the plaintiff was lucid and the plaintiff did not appear to be affected by morphine. According to the nursing note made at 1445 recording the events of the whole shift, the plaintiff was using the PCA only "minimally". 454 I consider that I should accept Dr Cutter's evidence about how the patient presented during the review. (ii) Nature and time of onset of the headache 455 I consider that I should accept Dr Cutter's evidence that the plaintiff told him that he was unsure when the headache had started but, on reflection, thought that the headache had come on gradually after the accident but before the operation. (iii) Whether Dr Cutter made any investigation of whether the plaintiff had stiffness in his neck 456 It was submitted on behalf of the plaintiffs that whether the plaintiff was experiencing stiffness in his neck would have been significant, because stiffness in the neck could indicate that there had been bleeding into the subarachnoid space; that, as was conceded by Dr Cutter, he had not asked the plaintiff whether his neck was stiff; that, if Dr Cutter had tested the plaintiff for neck stiffness, then, however concise Dr Cutter's notes necessarily were, one would have expected him to have recorded his finding on such a significant matter in the notes he made in the Hospital notes; that there was no record in the notes made by Dr Cutter in the Hospital notes of his having tested the plaintiff for neck stiffness, whereas there was a record of other matters such as the plaintiff's vision not being affected and there being no photophobia, nausea and vomiting; and that it should be inferred that Dr Cutter, notwithstanding his evidence, had not tested the plaintiff for neck stiffness. 457 I have taken this submission into account but have nevertheless concluded that I should accept Dr Cutter's evidence about testing the plaintiff for neck stiffness. In his first statement made soon after January 1996 Dr Cutter said that he had asked the plaintiff to put his chin on his chest and that the plaintiff had done so without difficulty or discomfort. I do not consider that the fact that there is no record of this matter in the brief notes made by Dr Cutter in the Hospital notes is a sufficient ground for rejecting this evidence by Dr Cutter. 458 I have accepted Dr Cutter's evidence explaining an entry he did make, "vision not affected". If, as I have found, the test for whether the plaintiff's vision was affected was conducted in accordance with Dr Cutter's usual practice, Dr Cutter would have had an opportunity during the carrying out of this test of observing whether the plaintiff could fully extend his neck and I accept Dr Cutter's evidence that he exercised this opportunity. 459 I have accepted Dr Cutter's evidence explaining the entry "position affects +". Part of this explanation was that the plaintiff told Dr Cutter that he could move his head forwards and backwards without any difficulty but that if he moved his head from side to side the headache got slightly worse. It is unlikely that the plaintiff would have made such a report to Dr Cutter and would not have complained of neck stiffness, if he was experiencing any stiffness in his neck. (iv) Absence of neurological symptoms 460 I consider that I should accept Dr Cutter's evidence that the plaintiff was not displaying any neurological signs, including that his facial features were normal, that there was no sign of weakness on one side of his face and that there was no slurring of speech or difficulties with speech. If any of these had been present, I would have expected Dr Cutter to have noticed them and to have made notes other than the notes that he did. If they had been present, I would have expected the nurse who spoke to the plaintiff to have observed and recorded them. (v) Whether the plaintiff reported crying with pain from headache 461 For somewhat similar reasons I consider that I should find that the plaintiff did not tell Dr Cutter that his headache had at some times been so severe that he had been crying with pain. It is inherently improbable that a doctor would have disregarded such a history. (vi) Dizziness light headedness 462 I accept Dr Cutter's evidence that the plaintiff told him that he did not have any dizziness or light headedness. I note that there is no reference in the Hospital notes for 18 January to any complaint of dizziness or light headedness. (vii) Whether on 18 January 1996 Mrs Spaslovic had a conversation with Dr Cutter about her husband's headache 463 Although Dr Cutter in his evidence given more than seven years later was, understandably, unable to deny that Mrs Spasovic had had a conversation with him on 18 January 1996, he did not recall such a conversation and for reasons which I have already given, I do not accept Mrs Spasovic's evidence that on 18 January 1996 she had a conversation with a doctor about her husband's headaches. Dr Brooks 464 There was not as strong an attack on the credibility of Dr Brooks as a witness to matters of fact as there was on the credibility of Dr Cutter, although, of course, it was still contended that Dr Brooks had been negligent. 465 Aspects of Dr Brooks' evidence on matters of fact which were challenged included his evidence that when he saw the plaintiff on 18 January the plaintiff did not make any complaint of having a headache and his evidence about how the plaintiff presented on the morning of 20 January. It is clear that when Dr Brooks saw the plaintiff at 9.30 on 18 January the plaintiff would have had a headache. However, Dr Brooks' evidence about his consultation with the plaintiff on 18 January is supported to some extent by the note he made in the Hospital notes and the evidence of Ms Beall who was accompanying him on his rounds. Dr Brooks' evidence about how the plaintiff presented on 20 January is supported by the evidence of the nurses Sandra Hunt and Karen Perkins. 466 I accept the evidence of Dr Brooks on matters of fact, including that he had seen the plaintiff each morning while the plaintiff had been in the Hospital, that on no occasion prior to 19 January 1996 had the plaintiff made any complaint to Dr Brooks of having a headache (and particularly not on 18 January 1996), that neither on 19 January nor on 20 January nor at any other time had the plaintiff displayed any neurological signs, such as altered speech, altered level of consciousness or hemiplegia, that notwithstanding that in his note of 23 January 1996 Dr Brooks had referred only to the plaintiff's light headedness as possibly being due to the PCA, Dr Brooks had on 19 January 1996 thought that the plaintiff's headache might be attributable to the PCA and that in his considerable experience with the use of PCA he had observed that light headedness was a common side effect and that headaches, although less common, were sometimes observed as a side effect. 467 I also accept evidence by Dr Brooks that on the morning of 20 January 1996 when Dr Brooks had a conversation with the plaintiff before he was discharged, the plaintiff said the things which Dr Brooks said in his evidence the plaintiff had said and the plaintiff appeared as Dr Brooks said in his evidence the plaintiff had appeared and that, if on 20 January 1996 the plaintiff had been crying or holding his head, that would have struck Dr Brooks and he would have acted differently from the way he did. Assessment of the evidence - conclusion 468 I have now completed my assessment of the reliability of the four classes of evidence. 469 I have indicated that I accept the evidence in the Hospital notes; that, subject to stated exceptions, I accept the evidence of the Hospital's nurses; and that, subject to exceptions which I have indicated, I accept the evidence of Dr Cutter as to matters of fact and I accept the evidence of Dr Brooks as to matters of fact. 470 I have found that the first plaintiff had very little genuine recollection of what happened during his stay in the Hospital. 471 I have found that there are a number of matters seriously affecting the credibility of the evidence of the second plaintiff and Aleksandar Spasovic. I will now indicate some parts of those witnesses' evidence which I do not accept. 472 Without attempting to list every piece of evidence given by Mrs Spasovic which I do not accept, I do not accept her evidence that:- 473 (i) On the morning of Wednesday 17 January 1996 she had a telephone conversation with her husband in which he complained of having a headache. 474 (ii) Her husband was moved from a double room to a single room on the evening of 17 January 1996 475 (iii) On the morning of 18 January 1996 her husband told her that he had a "severe" or "terrible" headache. 476 (iv) On 18 January 1996 her husband told her in a telephone conversation that a doctor had said that the headache was due to morphine. 477 (v) On the afternoon of 18 January 1996 her husband was being seen by a physiotherapist, her husband was displaying the symptoms alleged and that she had the conversations she alleges she had with a doctor and with a nurse. 478 (vi) On the morning of 19 January 1996 she had a telephone conversation with her husband in which her husband said that he had a headache severe enough to make him cry. 479 (vii) On the afternoon of 19 January 1996 her husband said that he still had a headache, that the headache had been severe enough to make him cry, that her husband was unsteady on crutches and that her husband was speaking only one word at a time and that she had the conversation she alleges she had with a nurse. 480 Without attempting to list every piece of evidence given by Aleksandar Spasovic which I do not accept, I do not accept that on the afternoon of 19 January 1996 the plaintiff had difficulty in speaking to a nurse or that he made any complaint to a nurse of having a headache or of having nightmares, or that on 20 January 1996 the plaintiff said that he had not slept well the previous night or that he had a conversation with the plaintiff about headaches or that the plaintiff was holding his head, that his head was bowed down and that he seemed to be in pain. 481 As regards the evidence of the friends and relatives of the plaintiffs I do not accept the evidence of Mrs Dobrich and I regard the evidence of the other witnesses as being of little weight. 482 I accept that soon after the first plaintiff arrived home on 20 January 1996, he began to show signs of being unwell. On the basis of inter alia the history in the ambulance report, the history in the Westmead Hospital notes and the evidence of Aleksandar Spasovic in cross-examination, I do not consider that the plaintiff began to experience a severe headache before about 4 o'clock in the afternoon. 483 Accordingly, I do not accept the allegation in paragraph (iv) of exhibit 10 that as early as 2 o'clock in the afternoon the plaintiff was complaining of a "really bad" headache. I do accept the allegations in paragraphs (vi), (vii), (viii) and (ix) of exhibit 10, which were:- "(vi) At 4.30 pm he had no strength in his right hand and he could not hold his coffee cup. (vii) Shortly after he rubbed his head with his left hand and said that his headache was still bad. (viii) A short time later he was more unsteady, disorientated and could not speak. (ix) He was carried to bed and was semi-conscious, he was rubbing his right arm with his left hand, his right leg was jerking and he had froth on his lips". Expert Witnesses 484 A number of medical witnesses gave evidence of opinions they had formed, based on their specialised knowledge. Some of this expert opinion evidence was relevant to the issue of whether the defendants or one or more of them had been negligent. 485 The medical witnesses who gave expert opinion evidence for the plaintiffs on the issue of negligence were Professor Dorsch, Professor Brew, emeritus Professor Lance, Dr Vinen and Dr Thomson. All these witnesses provided reports which were admitted into evidence and also gave oral evidence. 486 The medical witnesses who gave expert opinion evidence for the defendants, or one or some of them, on the issue of negligence were Dr McDonald, Professor Besser, Dr Terenty, Professor Morgan and Dr Stephen. Of these witnesses Dr Terenty and Professor Morgan provided reports which were admitted into evidence and also gave oral evidence. Dr McDonald, Professor Besser and Dr Stephen provided reports which were admitted into evidence but did not give oral evidence. 487 The opinion evidence of the expert medical witnesses was of course based on factual assumptions which the witnesses were asked to make. It will be necessary in considering the expert opinion evidence of these witnesses to determine whether any of the opinions they formed were based, at least in part, on assumptions which I have found have not been established. 488 The expert medical evidence was very extensive. In this judgment I will necessarily only be able to refer to parts of it. I have, however, taken all of it into account. 489 The expert medical witnesses whose evidence was the subject of most attention in counsel's closing addresses were the plaintiffs' witnesses Professor Dorsch, Professor Brew and Professor Lance. 490 I will now deal in turn with the expert medical witnesses. Professor Dorsch 491 Professor Dorsch is an eminent specialist neurosurgeon of many years of experience. 492 The instructions to Professor Dorsch from the solicitors then acting for the plaintiffs were contained in a series of letters, beginning with a letter dated 17 August 1998 and including letters of 27 April 1999 and 12 May 1999. Professor Dorsch was provided by the solicitors with inter alia a copy of the Hospital notes and a statement of assumed facts. The statement of assumed facts was largely, but not entirely, based on the Hospital notes. I consider that the facts set out in the statement of assumed facts have been proved, subject to the following qualifications:- Paragraph 16 493 The assertion in this paragraph that caffeinated coffee was provided with no effect on the headaches is partly contradicted by part of the notes in the Hospital notes made at 1445 on 18 January 1996. Paragraph 19 of the statement 494 The assertion in this paragraph that at 12.30 p m. on 19 January 1996 the plaintiff complained of headaches is based on a misreading of the note made by Carolyn Race at 12.30 p m. on 19 January 1996. In this note, which summarised events happening in the shift up to 12.30, Carolyn Race recorded that early in the shift the plaintiff had complained of headaches. Paragraphs 21 and 22 of the statement 495 I have found that at his home on 20 January 1996 the plaintiff's symptoms developed more gradually than is asserted in these paragraphs. I have found that the plaintiff's headache did not become severe before about 4 o'clock in the afternoon. 496 Professor Dorsch was provided with copies of the statements so far obtained from the plaintiffs, their son, their relatives and friends and he said in cross-examination that in forming his opinions he had assumed that the assertions in those statements were true. 497 In his only report, which is dated 28 June 1999, Professor Dorsch answered a series of questions. The questions and answers which are most relevant to the issue of whether the defendants were negligent are questions and answers 1, 2, 3, 4, 8 and 9 which were:- "Q1. What, in your opinion, was the likely cause of the headaches experienced by the Plaintiff during his admission? In considering this question, please advise us as to the other possible causes and your view as to the reasons why they were not the likely cause of the headache. A. The most likely cause of Mr Spasovic's headaches during his admission to the Sydney Adventist Hospital was a sentinel or warning intracranial haemorrhage due to his arteriovenous malformation or AVM, much less severe than the haemorrhage that precipitated his admission to Westmead Hospital on the 20th January. Other common causes of headaches are migraine, which is very unlikely in view of the absence of a history of this condition, and tension headaches. The latter is also less likely in that tension headaches are not usually as severe and prolonged as this headache apparently was and that this headache was different from his usual headaches. Q2. When, on the balance of probabilities, did the Plaintiff's cerebral haemorrhage commence? A. On the balance of probabilities, this first haemorrhage occurred when the patient's headache began. This was thus more likely on the morning of the 17th January before the anaesthetic and surgery, although I note that it was recorded on the 18th January that persistent headaches had been present for approximately 48 hours. Assuming that that note on the 18th was written before the next note at 1445, that raises the possibility that the headache did start before the fall from the ladder, although from the rest of the notes and statements that is unlikely. Q.3 Should the possibility of a cerebral haemorrhage have been considered at some stage during the plaintiff's admission? A. Assuming that Mr Spasovic did have persistent headache for over a day, and that it was at times severe, as noted in the Statement of Assumed Facts and in other statements, then I feel that the possibility of something more significant than tension headaches, if not an intracranial haemorrhage itself, should have been considered during the plaintiff's admission. Q.4 If you answer yes to question 3: (a) Who should have considered the diagnosis? (b) When in your opinion should that diagnosis have been considered? (c) What investigations or other steps should have been taken upon that diagnosis being considered? A. a) The diagnosis should have been considered by all the medical staff involved, but in particular the duty CMO. In spite of the absence of other symptoms noted, the persistence of the headache, and in particular the fact that it was different from his usual headaches, should I feel have been given more weight. b) In my opinion that diagnosis should have been considered on the 18th January 1996. c) If such a diagnosis had been considered, the normal steps should be to seek a cranial CT scan (which would need to be sought urgently if intracranial haemorrhage was suspected) or a consultation by a neurosurgeon or neurologist. Q.8 In relation to the diagnosis of ' classic tension headache' made by Dr Cutter, CMO, on 18 January 1996: (a) Was that an appropriate diagnosis to reach given the history at that time? (b) If not, what differential diagnosis should Dr Cutter have considered? (c) What steps should Dr Cutter have taken to obtain a detailed history as to the Plaintiff's background of headaches? (d) What investigations, if any, should Dr Cutter have organised at that time? (e) What other practitioners, if any, should have been consulted by Dr Cutter? (f) Should Dr Cutter have notified Dr Brooks as to the Plaintiff's complaint and Dr Cutter's diagnosis? A. As noted above, I feel the possibility of something other than classic tension headache should have been considered more strongly on the 18th January. Although photophobia, nausea and vomiting commonly accompany these haemorrhages, their absence does not exclude it. The effect of position (it is not noted how position affected the headache, but if it was worse on lying flat the possibility of a cause of raised intracranial pressure needs to be considered) also raises the possibility of something more. No examination to look for neck stiffness appears to have been done – if neck stiffness is present it greatly increases the possibility of an intracranial event such as a haemorrhage, although again its absence does not exclude this. Again, the fact that this headache was different from the patient's other occasional headaches should raise the possibility of some other condition, and the most important differential diagnosis is that of intracranial haemorrhage (fever can also occur in intracranial haemorrhage and did occur in Mr Spasovic's case, although that is also common after anaesthetics and surgery) The investigations and consultations necessary if another diagnosis had been considered are as noted above. If a diagnosis other than tension headache had been considered, then the consultant Dr Brooks should certainly have been notified; it was reasonable not to notify him if the headache was felt to be a tension headache. Q.9 Having proceeded on the basis of a diagnosis of classic tension headache, what steps should have been taken by Dr Cutter to review the Plaintiff's progress and, in particular, to review the Plaintiff's response to the treatment regime put in place by Dr Cutter? A. The patient's response to appropriate treatment, with analgesics and in this case coffee, should have been reviewed. Persistence of the headache, and if there was confusion or light headedness the presence of these additional symptoms, should then have aroused suspicion of something apart from tension headaches". 498 Professor Dorsch was cross-examined at length. I have taken into account the whole of the examination. I will specifically refer only to certain parts of it. 499 With regard to negligence generally Professor Dorsch gave the following evidence in cross-examination:- Transcript p331 lines 33-37) "A. May I say that it is the whole situation that I feel needed to be looked at and one problem with small warning haemorrhages is that very often they do resolve in the course of even one or two days, the symptoms, and that leads in fact to a false sense of security". … Transcript p332 lines 27-44) "A. I think that one does need to look at the whole history of the whole episode of headaches which lasted roughly three days and it is reasonable to say that it's possible it was tension or coffee withdrawal or pethidine for the first day. Reasonable to say that it was something else but one is postulating a lot of possibilities there and I always prefer and think it more reasonable to look at one cause for a problem rather than multiple causes. There are four causes which have been put up at one stage, tension headaches, sorry, tension headaches, pain and starvation, caffeine withdrawal, pethidine and morphine, five possible causes. Each one of these taken separately at a time the patient had a headache is reasonable as a possible explanation. But in the overall picture, I feel that the patient had a headache which was persisting perhaps intermittently, depending on treatment, for those three days and that therefore the whole picture is what attracts me more". … Transcript p334 lines 33-39 "A. In the context of possible subarachnoid haemorrhage, the note immediately before Dr Cutter's notes on page 76, 0945 patient states headache is in both sides of head and lower back of head. Pain that tends to come down the back of the head, possibly even into the neck although that is not mentioned, is, in my view, suspicious again of possible subarachnoid haemorrhage". … Transcript p335 lines 47-49 "A. My own feeling is that all doctors should be aware of the possibility of subarachnoid haemorrhage regardless whether they are GPs, casualty doctors, or whatever". 500 With regard to whether Dr Cutter had been negligent the following questions and answers occurred in cross-examination:- Transcript p280 line 43 – p283 line 33:- Q. Can I ask you this, you've had the benefit, have you not, of Dr Cutter's note to be found at the bottom. Can I ask you this, you've had the benefit, have you not, of Dr Cutter's note to be found at the bottom of page 76 of the hospital notes? A. Yes. Q. Starting with Dr Cutter C/0 persistent headache for about 48 hours? A. That's the one, yes. Q. And then commenced post accident. Occipital parietal R equals left. That is an indication to where the headache was? A. Yes, sort of the back half more of the head on both sides. Q. And the R equals left, between the same? A. The same on both sides, yes. Q. And then vision not affected. That is what it says? A. Yes, that is right. Q. And then no photophobia, nausea, vomiting. They would be, if present, neurological signs that would suggest the need to undertake further investigation. That is right, isn't it? A. Photophobia, this particular, yes. Q. And then there is the position affects plus, I take it that you don't know precisely what that means, just by reference to the note alone? A. You can't say whether that means it was worse sitting up or worse lying down, yes. Q. Well if you were to assume that it was worse, if he moved his head from side to side but not backwards and forwards, is that a sign of any significance? A. I don't think so, no. Q. And then there is the note: "Variable in severity - mostly mild". Is that relevant in order to determine whether to undertake further steps of the type that you suggested? A. Yes, I think it shows that mostly mild means there are times when it wasn't mild and that, in my opinion, if it had been present persisting for 48 hours, that alone is enough. Especially when it says different from normal headache. Different from this. Q. Then you've got average times one headache per month at home. A. Yes. Q. So that's giving a history of him suffering from a headache about once a month at home and then there is but "different from this"? A. Yes. Q. And then there's the note: "Drinks coffee plus plus usually", is that right? A. Yes. Q. Then there is the diagnosis: "Classic tension headache for fluids, analgesia, relaxation, caffeine."? A. Yes. Q. Can I ask you to make this assumption as well. In addition to what is in those notes, at the time Dr Cutter saw Mr Spasovic in hospital, he looked relaxed, comfortable and well? A. Yes. Q. Is that, in your view, relevant? A. If he didn't look restless or sick, there maybe it is relevant, yes. Q. Can I suggest this to you, I want you to assume that when Dr Cutter visited him, Mr Spasovic said words to the effect of: "I'm sorry to trouble you Doc, I don't think it's much of a problem. The headaches aren't all that serious. I'm feeling much better. Don't like the food here. I want to go home". And in giving that history, he looked relaxed, comfortable, happy and from time to time laughed. In particular when it was suggested that the doctor would have to take specific steps to allow him to have a cup of coffee at the San, he indicated that he thought that was amusing and he looked relaxed and laughed. That sort of presentation in a clinical setting, that's relevant, isn't it, to an assessment to how urgently one should go investigating the type of headache being complained of, I would suggest? A. Yes, that is true, yes. Q. Of course it's clear, is it not, from the hospital notes that on the Thursday afternoon, that is the afternoon of the 18th when Dr Cutter saw Mr Spasovic, that if you go to page 77, at least from the hospital notes that when the coffee was given, the patient appeared to be more relaxed in the afternoon. I'm just reading part of the entry for 1445: "Position satisfactory, patient very restless, anxious in early hours of shift. Complaining" I think that's of, is it, headache? A. Yes, "of headache". Q. "And concerned re same. CMO notified and reviewed patient (refer to above notes). Patient given reassurance, fluids encouraged and coffee given to patient. Patient more relaxed in pm." Right? A. Yes. Q. And then IV, that is the intravenous tube that was used? A. Yes. Q. To administer the pain relief and the like. That's in situ, that remains in place. TKVO for antibiotics, what does that mean? A. To keep vein open, I suspect. Q. I think you're right. For antibiotics. PCA in situ, patient using minimally to control pain. Right? A. Right. Q. I don't think I need to read it out to you aloud out of a sense of concern for the shorthand reporter but could you read that note down to the end of the entry: "Patient in better spirits today and states he feels "a lot better"."? A. (Witness complied) Yes, I can read it all. Q. First that indicates, doesn't it, that after the patient saw Dr Cutter, there seems to be an improvement in the headaches? A. Yes. Q. And in him generally? A. Yes, that is true. Q. Would you agree with this, that at least as at the time of this entry, that is at 1445 after Dr Cutter has seen him, that in view of his past history, taking into account that which I want you to take into account, namely him looking better and appearing relaxed and the various observations that are recorded in the notes, that it would be reasonable to wait and see whether the fluids, analgesia, relaxation and coffee that were prescribed by Dr Cutter were likely to work? A. Yes. Q. Is that right? And that at the very least, can I suggest this to you, that it was a reasonable course of conduct to adopt during at least the 18th of January to see whether he would get better, as did occur? HIS HONOUR: That is more than one question. HIGGS: Q. I apologise. I suggest to you that given the assumptions that I've asked you to make and what is in these notes, you would not be critical of the care that was provided to Mr Spasovic at least during the 18th of January? A. Yes, I agree". 501 With regard to whether Dr Brooks had been negligent on 19 January 1996 the following questions and answers occurred in cross-examination:- Transcript p284 Line 50 – p287 line 48) "HIGGS: Q. We know that within ten minutes or ten minutes after this note (Dr Brooks' note) is recorded as having been made, or having related to, the patient went off the patient controlled analgesia? A. Right. Q. Just so that there can be no doubt about it, if you go to page 85, down the bottom right hand corner there is the note: "PCA removed 9.40", and that's alongside the date 19.1.96? A. Right. Q. That sheet there entitled patient controlled analgesia, that is a sheet that records or measures, I think cumulatively, the morphine that the patient administered to himself during the course of his stay? A. That seems to be the case, yes. Q. We know also, don't we, if these notes be correct, that if you read all of that page 78, and in particular if you wouldn't mind concentrating on the 1500 entry commencing with "IV and PCA removed 9.30", that by 11 o'clock that morning, these notes at least indicate that there was a report by the patient of the headache going away? A. Yes, that seems to be the case. It had gone at Q. 11? A. Then there's an add sign presumably means about. Q. Now it was reasonable to at least suspect that the headache that this patient was complaining of was in fact due to the morphine that had been administered. That is so, isn't it? A. That is apparently what was suspected but I'm not an expert on PCA myself to know that's a general thing or not. Q. Do I understand from that answer that you are saying that you are unaware as to whether or not morphine is known to cause a complaint of headache by patients of the type recorded? A. I know that it is listed a one of the side effects of morphine, yes. But I don't know whether PCA patients complain of it a lot or not. Q. I understand. Very well, you make this concession that you know that headache is a known complication of the administration of morphine? A. A side effect is a better term, yes. Q. Sorry, side effect? A. Yes. Q. And that these notes indicate that morphine was administered via the patient controlled analgesia regime whilst the patient was in hospital following his operation on the 17th, up until 9.40 on the 19th of January? A. Yes. Q. And you would agree with that the dosages of morphine that were administered over that period are known to cause or can give rise to the side effect of headaches? A. Well, I have no idea what dosages related to headaches, no. Q. Can I also ask you this, are you aware that pethidine has, as a known side effect, headaches being suffered by patients? A. I can't recall that, no. Q. If headaches are a known side effect of morphine being administered in the quantities that are recorded in these notes, would you agree with this proposition, that on the Friday morning it was reasonable for Dr Brooks to wait and see as to whether removing the patient from the PCA would have the headaches go away? A. Up to a point, yes, but I still feel that looking for other causes of headache like this can be a dangerous thing. Q. Well, you say up to a point. Is it fair to say that although you might have some disquiet, you would at least make this concession, that when Dr Brooks saw this patient at 9.30 on the morning of the Friday, that is the 19th, it fell within the ambit of reasonable practice for him to wait a relatively short time, a couple of hours, to see whether the removal of the PCA would have the headaches go away? A. I don't think that is reasonable if he has, as the nurses record, restlessness, headaches and dizziness, no. Q. Now are you aware as to whether restlessness also is a known side effect of morphine of the type that was administered that goes hand in hand with the headaches? A. Headaches and restlessness together you mean? Q. Yes? A. No, I'm not aware. HIS HONOUR: Q: What was the other matter you mentioned? You mentioned restlessness? A. Dizziness, once, and light-headed on another occasion. HIGGS: Does your Honour see the reference to that in the notes? It's at page 78, the light-headedness is in Dr Brooks' note on the fourth line and the dizziness is in the nurses note, the second line "12.30". Does your Honour see that? HIS HONOUR: Yes, I've got that. DONOVAN: I might point out at although the note is written at 12.30, you will see it's referring back to an earlier period. It written at the end of the shift or thereabouts. HIS HONOUR: Yes, I've got that. HIGGS: Q. Do you know whether light-headedness is a known side effect of morphine being administered? A. I have not, I can't recall reading but it wouldn't surprise me. Q. And can I ask you, are you aware that the type of symptoms that are recorded in this note, these notes, particularly at page 78 dealing with the symptoms that presented to Dr Brooks at the time, are the headaches and light-headedness in particular as recorded in his note, coupled with the record of past complaint by Mr Spasovic at 12.30 of restlessness, headaches and dizziness, are you able to tell us whether that type of symptom is a known side effect of morphine? A. I'm not because in my practice, being mainly head operations, morphine is used very little and particularly PCA is not used much. Q. Can you just accept, if you wouldn't mind assuming that headaches and light-headedness, if I can just take this a step at a time, headaches and light-headedness, that is symptoms of the type recorded in Dr Brooks' note at 9.30 on the morning of the 19th, that that is a known side effect of morphine. If that be so would you agree with me that it fell within the ambit of reasonable practice for Dr Brooks at this time to wait and see before doing anything else, that is to wait and see if those symptoms went away upon the PCA being removed? A. If that was noted as a known side effect of the morphine administered as PCA as against one or two large intramuscular doses, yes. The continuous slow dose, low dose which is designed of course to give much lower dose of analgesics in the hope of having less side effects. Q. So that I understand your answer correctly, you're saying that if that is a known side effect of PCA of the type-- A. Of the type and dosage and timing of dosage that comes with a PCA. Q. Yes? A. Then it would be reasonable to wait, yes. Q. Also, if I can just add to that a slight variation and I'm factoring in as well the note of 12.30 that if Dr Brooks had been aware of headaches, light-headedness, restlessness and dizziness, if that was a known side effect of analgesia being administered of the type recorded in these notes, again would you agree with me that it fell within the ambit of reasonable practice for him to wait and see whether the removal of the PCA would have those symptoms go away? A. Yes". (Transcript p284 line 50 – p287 line 48) Transcript p329 lines 41 – 49 "Q. Please correct me if I am wrong but is it fair to summarise your evidence in this way, that first you were not familiar with the extent to which the morphine or the patient controlled analgesia and pethidine might be an explanation for the symptoms of headaches, restlessness, dizziness and light-headedness that is recorded in these hospital notes? A. Yes, that is right. It's only used on a few patients of mine. Transcript p330 line 47 – p331 line 5 Q. In any event, I was trying to lead you to where we ended up yesterday. I referred you to the evidence that you gave yesterday and I can read it out fully to you if want me to do that, that it's fair, isn't it, that yesterday you made the concession that if you were to accept that headaches, light-headedness, restlessness and dizziness were known side effects of the PCA regime that Mr Spasovic was then on, that is on up to 9.40 on the morning of Friday the 19th of January, that it would have been reasonable for Dr Brooks to wait to see whether the headaches and other symptoms went away by 11 o'clock? A. That is what I said yesterday. Q. And do you want to change that evidence? A. I think in view of the fact that headaches had started before the use of the PCA, I think that is more questionable now". 502 With regard to whether Dr Brooks had been negligent on 20 January 1996 the following questions and answers occurred:- Transcript p288 line 48 – p289 23 "Q. I know that I've directed you specifically to parts but you've taken you through most of it. With the benefit of reading all of that note, that would indicate an improvement in the patient from the time Dr Brooks saw him on the morning of the 19th, would it not, that on the morning of the 20th he was better than on the morning of the 19th? A. Yes. Q. And even by 11 o'clock he was much better? A. Yes, if that's when the headache went, yes. Q. I want you to assume that when Dr Brooks saw Mr Spasovic on the morning of the 20th, he looked well and appeared to be in very good spirits. You understand? A. Yes. Q. And that in fact, indeed he appeared bright and cheerful and had already packed his bags to go home. He was not drowsy or dizzy. He was articulate. He said that he felt like a new man. There were no complaints of headache and he was advised to remain quiet at home with his feet up for the first three or four weeks and to avoid work and to come back and see Dr Brooks in consultation, in his consultation rooms. Given the note that was available to Dr Brooks the previous day and in view of the assumptions that I've asked you to make as to how he appeared and the like, would you be critical of anything in Dr Brooks' management of the patient, assuming those facts? A. That seems very reasonable on those facts. Again, I say that the history of the whole few days should be looked at. Not necessarily just those facts". Transcript p335 line 57 – p336 line 14 "Q. And you're making it plain, aren't you, that in your opinion, because of the history obtained by Dr Cutter of a headache for 48 hours, that even though the headache went away, in your opinion you wouldn't have allowed him to go home without further investigation, even assuming a report by him of feeling better on the Saturday morning. Is that fair? A. Yes. Q. Would you make this concession however, that even though it is different to what you would have done, nonetheless it was reasonable for Dr Brooks in those circumstances to have come to the view that it was alright to allow Mr Spasovic to go home without further investigation? A. I don't think it was reasonable, no. Q. It's your opinion, isn't it, that when Mr Spasovic attended the Sydney Adventist Hospital he was suffering from an intracranial haemorrhage? A. I'm not certain about whether it was there when he first attended. Q. But during the course of the admission? A. During the course of admission most likely that he did suffer this small intracranial haemorrhage, yes, including subarachnoid". Transcript p340 lines 19 – 24 "Q. So had Dr Brooks on the Saturday morning arranged for a neurosurgeon or a neurologist to attend and examine Mr Spasovic, in your opinion that would be a sufficient for him to discharge that which he was reasonably obliged to do? A. Yes". Transcript p342 lines 19 – 51 "Q. Yes, someone like Professor Morgan? A. I would be critical if that was all he did. I would expect any vascular neurosurgeon to question the patient specifically while it's still relatively fresh in his memory, in particular about the onset of the headache. Then if he obtained a history that it was of sudden or rapid onset, I would expect a vascular neurosurgeon regardless of the recovery to go ahead and investigate. Q. Now a headache of sudden or rapid onset is the classic sign of an intracranial haemorrhage, isn't it? A. Yes. Q. It's an important piece of history to elicit? A. Yes. Q. And if there was no report by Mr Spasovic upon questioning of a history of a headache of sudden or rapid onset, would you be critical of him being allowed to go home on the Saturday morning, assuming the other matters that I've already asked you to assume, that he looked well and the like, without further investigation?" A. Sorry, I should have said he would ask the patient about the suddenness of the onset or otherwise and whether the lights worried the eyes at the time or soon after, not 48 hours after, and whether there was any nausea or even vomiting soon after the onset. And assuming if he had done all that and the patient had said the headache came on gradually and started at the front before it got to parietal or occipital and that there were no other symptoms with it, then I would have said it was reasonable in a vascular neurosurgeon to do no further investigation". Professor Brew 503 Professor Brew is an eminent consultant physician and neurologist. He is the head of the Department of Neurology and Neurosciences at St Vincent's Hospital, Darlinghurst. 504 Instructions to Professor Brew from the solicitor for the plaintiffs were contained in a letter of 3 August 2000. Professor Brew was provided by the solicitors with inter alia a copy of the Hospital notes and a statement of assumed facts. The statement of assumed facts was similar to the statement of assumed facts provided to Professor Dorsch and the comments I made about pars 16, 19, 21 and 22 of the statement of assumed facts provided to Professor Dorsch apply to the same paragraphs of the statement of assumed facts provided to Professor Brew. In the letter of 3 August 2000 Professor Brew was asked to assume certain additional facts. Additional facts which Professor Brew was asked to assume, which I have found not to have been established include:- 505 (i) That on the morning of Friday 19 January 1996 the first plaintiff told his wife in a telephone conversation that the headache was so severe that he did not know what to do. 506 (ii) That at 12.30 on 18 January 1996 the first plaintiff complained of headaches and dizziness and that this could be corroborated by the evidence of Mr Bajic. I consider that this assumption was based on a misreading of the note made by Carolyn Race at 12.30 and, in any event, Carolyn Race made her note at 12.30 on Friday 19 January 1996, whereas Mr Bajic gave evidence that he thought that his telephone conversation with the first plaintiff was at around 12.30 on Thursday 18 January 1996. 507 Professor Brew provided two reports which were admitted into evidence, a first report of 12 September 2000 and a second report of 20 April 2001. The second report is very brief and is not relevant to the issue of negligence. 508 In his first report Professor Brew addressed a number of "issues" which were set out in the letter of 3 August 2000. The issues which are most relevant to the question of whether the defendants had been negligent are issues 1, 2, 3 and 4. These issues and Professor Brew's opinions are as follows:- "Q1. Whether on the balance of probabilities the plaintiff sustained a 'premonitory haemorrhage' as a result of his traumatic injury at some stage between the time of the injury and prior to his discharge from SAH on 20 January 1996. A. I think it is likely that the plaintiff did sustain a premonitory haemorrhage as a consequence of the traumatic injury at some time between the time of the injury and prior to his discharge from the Sydney Adventist Hospital on January 20th 1996. I am of this opinion because the plaintiff began complaining of headache on the morning of January 17th. While at this stage the headache does not appear to be been particularly severe the plaintiff continued to complain of headaches throughout the night of January 17th and the day of January 18th. I note that he was reviewed by Dr Cutter on that day, where the entry was made that it seemed to be a non-specific headache that he thought was most likely consistent with a tension headache. He also considered that there may have been a component of caffeine withdrawal. While the plaintiff apparently had not experienced headaches in the circumstances where he had been deprived of caffeine this does not exclude caffeine withdrawal as a cause of headaches. Dr Cutter states in the entry that headache was variable in severity but mostly mild. At this stage this diagnosis would seem reasonable but there is no record in the chart of a neurological exam. The absence of notation of an examination makes it likely that such an examination was not performed. Therefore, the conclusion that the headache represented a tension headache, whilst being reasonable superficially, may not be justified if in fact no examination was performed. Moreover, caffeine made no difference to the headache and the plaintiff continued to complain of the headache. Indeed, the plaintiff apparently told his wife later that his headache was extremely severe. This would be inconsistent with a tension headache. Furthermore, the headache continued through to January 19th and was associated with a temperature but, again, there is no documented neurological examination. Q2. Even if you are of the opinion that on the balance of probabilities the plaintiff did not sustain a premonitory haemorrhage at some stage prior to his discharge from SAH on the 20 January 1996, should the complaints of severe headache following on from the trauma of the fall off the ladder have been investigated. A. I do think the plaintiff did likely have a premonitory haemorrhage and, indeed, I consider that his complaints of persistent headache over several days should have prompted further assessment. At the very least he should have had a neurological examination performed. Q3. If you believe that they should have been investigated, what was the nature of the investigations which were appropriate. A. As mentioned, firstly, I consider the plaintiff should have been formally examined neurologically. This does not necessarily mean by a neurologist but a neurological examination should have been performed. Secondly, even if the neurological examination was unremarkable the fact that there was a persistent headache of increasing severity spanning several days should have prompted further investigation with brain imaging, either CT or MRI. Q4. Given the nature of the symptoms which have been described in the assumptions at what stage should those investigations have been carried out." A. I consider these investigations should have been carried out on January 18th. On that day he had been assessed for headache by the career medical officer and a tentative diagnosis of possible caffeine withdrawal complicating tension headache was made. Caffeine did not lead to any improvement in the headache and, indeed, the headache worsened. This should have prompted further assessment at this time". 509 In his evidence in chief Professor Brew gave inter alia the following evidence:- Transcript p409 lines 10 - 12 "Q. Assume that the headache was noted to be quite bad at times. Would that be inconsistent with a tension headache? A. It would not be inconsistent. It would be unusual". Transcript 410 lines 11 - 12 "Witness: Well I've interpreted that ("position affect +")to indicate that position does affect the headache to a mild degree". Transcript p410 lines 21 - 34 "Donovan: Q. Assuming that your interpretation is correct, what does that indicate to you about the headache? A. In broad terms, headache that has a positional element to it indicates either raised intracranial pressure or sinus disease Q. Which was the second? A. Sinus. Q. Sinus disease. Are you able to say anything about the issue of sinus disease in the context of these notes? A. There's no record of his having sinus disease. Therefore, I would think it extremely unlikely". Transcript p420 lines 9 - 24 "A. …once a patient complains of a symptom significant enough to require medical review and treatment, that the responsibility of the attending doctors to follow that up and determine the outcome and progress of that particular problem. Rather than assuming lack of complaint equals lack of problem. Q. And what sort of things would that require such doctors to do? A. It would require seeing a patient, asking the patient about their symptoms and according to the response, examining the patient possibly. Q. That last question was related to the 19th, later on the 19th. Do similar responsibilities apply to the 20th? A. Yes". 510 Professor Brew was cross-examined at length. I have taken into account the whole of the cross-examination. I will specifically refer only to certain parts of it. Transcript p549 lines 11 - 20 "Q. Am I correct in assuming that the opinions that you express in your report have been predicated, as referred to on a number of occasions, and I can take you to them if need be, on a history of a headache of increasing severity, spanning several days? A. Correct. Q. And that's quite different to the picture that is painted in the hospital notes that I have taken you to? A. Yes, that's correct". Transcript p530 lines 24 – 33 "Q. Can I ask you to assume that the descriptions to Dr Cutter about position affecting the headache, was to the effect that when the patient moved his head from side to side, there was a mild increase in headache, but otherwise the position did not affect the pain, do you understand? A. I understand. Q. Is that significant in your view? A. No." Transcript p531 lines 4 - 23 … "Q. I want you also to assume that when Dr Cutter saw Mr Spasovic on the 18th, he looked well and said words to the effect that he was sorry that the doctor had been troubled, he didn't think the headaches were much of a problem and that he felt much better when Dr Cutter came to see him. So clinical impression, he looked well and those words were said, I want you to assume that which I have asked you to assume about 'position affects'? A. Yes. Q. And I also, in relation to the notes, want you to assume that Dr Cutter was told that the headaches were variable, but they were mostly mild and there was no report of the pain being so severe as to make the patient cry, anything of that type, an indication that they been bad from time to time, but not in those terms, and that the description was 'mostly mild'. In those circumstances, would you be critical of the treatment that was provided by Dr Cutter at that time for these headaches?" Transcript p531 lines 41 - 58. "Witness: I still have a problem with his assessment, or at least his recommendations for management and that problem is contingent on the fact that whilst the headaches were mostly mild, I'm asked to assume, that has to be borne in mind that that report is in the context of his having been given analgesia of various types, Pethidine and patient controlled analgesia, so the severity – the emphasis on the severity, I think mainly – I would consider would lead to problems, because it's – it would give you false – I would contend that it would have the real possibility of leading to a false sense of security. So I would've suggested that a more, not responsible, but -- Higgs: Q. – prudent? A. Prudent, line of management would be what is suggested, but regular neurological observations and review, medical review at some point". Transcript p532 lines 7 - 27 "Q. Just to understand the criticism that you have, is this fair: that you would not criticise the proposed treatment of, as you understand the note, making sure the patient had fluids, analgesia, that attempts were being made for him to relax and for him to have coffee, you have assumed he was not able to have, because of the policy of this particular hospital up to that point in time, that's something that was reasonable, provided there was a follow-up arranged of another medical review? A. Yes. Q. I will flesh that out in a moment, but is that fair? A. Half fair. Not only medical review, but regular neurological observations by the nursing staff. So not just general observations, neurological observations. Q. What do you mean by that? A. Asking him at defined periods, where he is, how long he has been there, checking his pupils for reactions to a light that's shone in his eyes, checking limb strength." Transcript p538 lines 1 - 43 "Q. So the most likely maximum diameter of this haemorrhage (the sentinel haemorrhage) would be 1 centimetre, maybe a bit more, given one's inability to be precise? A. Yes. Q. Can we proceed upon the basis that in your opinion, it is highly unlikely to be greater than 1.5 centimetres? A. Yes Q. Highly unlikely to be more than 1 centimetre? A. Less likely. Q. Significant probability, no more than 1 centimetre? A. Yes. Q. So we have a sentinel bleed of probably no more than 1 centimetre in diameter, that would stop haemorrhaging shortly after the fall? A. Correct. Q. And if the haemorrhage was any larger than that, given the likely location of the putative AVM, that would in all likelihood press on to the fibres of the internal capsule that we have been over before, is that right, or cause pressure to be applied to those parts? A. Most likely. It is contingent on the actual shape of the AVM. You could, for example, hypothesise if it is, to use an analogy, it is like a garden hose, it depends on where the nozzle is pointing. It could be pointing away from the basal ganglia, so the haemorrhage would shoot out and would not necessarily place maximal pressure back on the basal ganglia. So it's a little bit difficult. Q. The type of neurological examination that you are critical of not having been carried out after Dr Cutter's review, in view of your opinion as to the size of the haemorrhage and those other matters that we have just been over, is that likely, in your opinion, to have revealed anything? A. Probably not." Transcript p542 line 35 to p543 line 16 "Q. Sorry. I want you to assume that he, on the Friday morning, at review, there was a complaint of headaches and light-headedness and that the other symptoms recorded in his note at the top of page 78, that's part of the assumption, right, and I want you to assume that he was aware of the review that had been carried out by Dr Cutter the day before and the description of the headache in the hospital notes and that I want you to assume that the course that he adopted, I want you to assume that the history that he had, was not one of headaches that were very severe and that the view that he took was that he would take the patient off the PCA and just see how he progressed thereafter, with respect to these complaints that he made? A. Yes. I still don't think that his plan of management would be, would have been – I believe his plan of management could have been more prudent and I would find that, given that he is aware of the variable intensity of headaches, despite the analgesia occurring in the context of a fall, I would have liked him to have adopted the same measures that I recommended for Dr Cutter, in other words, at the very least, neurological observation periodically and medical review to determine how effective the intervention that he prescribed, namely ceasing the PCA, and then I'm a little surprised that he would recommend Asprin, given the recent surgery that the patient's had, over and above the issue of the significance of the headaches, since the patient has already been given Panadol and has had variable benefit from that. Q. If the regime that you say would have been prudent to have followed was set in place, the neurological review, again, that is on the Friday with the benefit of the notes that we have with respect to the Friday, would you agree with this: that the type of neurological review that you say would be prudent, in all probability would not have revealed any deficit? A. In all probability, clearly that's a post op (sic but clearly post hoc) judgment". Transcript p543 line 26 p544 line 24 "Q. You have mentioned neurological review and medical review. Can I ask you to assume that Dr Brooks saw Mr Spasovic on the Saturday morning before he was discharged? A. Yes. Q. And at that time he said that he felt like a new man, that is, Mr Spasovic said that, that he wanted to go home, he appeared to be in good spirits, appeared bright and cheerful, had his bags packed, looked well, was articulate had no difficulty in communicating, no complaint of headaches; in that situation, would you be critical of the decision to allow him to go home without any further review? A. Not necessarily, but I would put some caveats, the absence of comment doesn't mean the absence of problem. I think a more optimal management plan would be to have inquired as to whether the headache had disappeared, we are presuming it had, but we don't know that. And second, to advise the patient if the headache returned or if it was still present in mild severity, if it got worse, to seek medical attention urgently. Q. With respect to the prudent plan of management that you advocate on the Friday morning, the medical review that you contemplate in that management would be a review of the type that was carried out by Dr Brooks on the Saturday morning, but with the caveats that you've just imposed? A. Correct. Q. In that medical review on the Saturday morning, the fact of the notes revealing that the headache had gone by 11, would that be something that reasonably could provide comfort to the doctor during the course of that medical review? A. Yes. Q. And also the fact of analgesia being refused on Friday as recorded alongside the bottom of the note at 2230? A. Probably yes, we don't know the reasons for the refusal. Q. And also the fact that, on the assumptions that I've asked you to make, there was the general inquiry as to how he felt and he said that he felt like a new man and that he said he wanted to get home and, I didn't add it before, wanted to go home and get to work as soon as possible; that, in the normal course in response to a query as to how he felt, would be sufficient would it not in these circumstances, or not? A. Again with the caveat, some patients are very keen to leave hospital and not be aware of the significance of what they perceive to be insignificant complaints, or symptoms but which a medical person would interpret differently". Transcript p546 - line 34 to p547 line 2 "Q. …Can I suggest this: though you understandably, as a neurologist, set out here with respect to Mr Spasovic on the Friday, the prudent or optimal management that you have suggested upon the assumptions that I have asked you to make, can I nonetheless ask you to step back from those terms and to see whether you agree with this proposition: that even though what you have suggested be prudent and optimal, nonetheless the management on the assumptions that I have asked you to make on the Friday morning, that the management that was provided by Dr Brooks fell within the ambit of reasonable care? A. I would have a problem with saying it falls within the ambit of reasonable care. Q. What is that? A. Because he would be cognisant of the trauma, the headache, its variable severity, in the context of analgesia and despite the fact that the headache had improved, possibly resolved within a short time of his review, I would at least have expected him to be uncomfortable with the situation. I would not have expected him to reach a diagnosis of a haemorrhage, a sentinel haemorrhage, that's entirely unreasonable, but I would have expected him to have a measure of disquiet which then would be reflected in a management plan that would not be resource intensive." Transcript p547 lines 4 - 13 "Q. I take it from that, that you would disagree with the proposition that despite those caveats that, it nonetheless, albeit different to your opinion, it would nonetheless still fall within the standard of care that can be reasonably expected of an orthopaedic surgeon to have been more confident than you suggest should have been the case, certainly by the Saturday morning, arising from the report in the notes of the headaches having gone away at 11 o'clock? A. I still have the same problem." 511 In re-examination Professor Brew expressed the opinion that the fact that the headache had stopped after the PCA was taken down was not sufficient evidence for a doctor to conclude that the headache was due to the PCA. Professor Lance 512 Professor Lance is an eminent consultant neurologist. He is an emeritus professor of neurology at the University of New South Wales. 513 Instructions to Professor Lance from the solicitors then acting for the plaintiffs were given in a letter dated 19 March 1998. The facts Professor Lance was asked to assume are contained in the body of this letter. This statement of facts included a number of asserted facts, which I have found not to have been established, including the following:- (i) That on the morning of 18 January 1996 the plaintiff was complaining of a headache severe enough to make him cry. (ii) That at 2.45 p m. on 18 January 1996 the plaintiff was still complaining of a headache (this assertion apparently stemmed from a misreading of the Hospital notes). (iii) That on the afternoon of 18 January 1996 the plaintiff was distressed by his headache. (iv) That at 12.30 p m. on 19 January 1996 the plaintiff was complaining of a headache (this assertion also apparently stemmed from a misreading of the Hospital notes). (v) That on the evening of 19 January 1996 the plaintiff was complaining of a severe headache which made him cry. 514 Professor Lance provided three reports which were admitted into evidence, a principal report dated 7 April 1998 and supplementary reports dated 30 June 1998 and 16 March 2001. The questions Professor Lance was asked which are most relevant to the issue of whether the defendants were negligent are questions 1, 2 and 3, which were answered in Professor Lance's principal report. "Q1. Do you consider that the intern (CMO) acted appropriately in the circumstances? What was expected of him? A. Mr Spasovic's condition was diagnosed as a classic tension headache. Against this diagnosis is the fact that the headache was severe on occasions, was unlike any headache that Mr Spasovic had experienced in the past, was associated with dizziness and was worse on movement. The latter always arouses the suspicion of an intracranial disturbance. It would have been prudent at that time for the examining medical officer to have arranged for a consultation with a physician or neurologist. Q2. What investigation should the hospital have instituted at the hospital before discharge? A. It is probable that a physician or neurologist would have arranged for a CT scan of the brain before Mr Spasovic was discharged. A CT scan would most likely have shown the presence of an arteriovenous malformation with some arachnoid bleeding. Q3. What advice should have been given at the hospital before discharge? A. If a CT scan of the brain had been negative Mr Spasovic would have been advised to report again should his headache worsen or should other symptoms develop". 515 In his second report Professor Lance said that a perusal of the Westmead Hospital notes, which had been forwarded to him, had not led him to alter any of the opinions he had expressed in his principal report. 516 In his third report Professor Lance, having been provided with copies of other medical experts' reports, said:- "The fluctuating intensity of Mr Spasovic's headache and the fact that it was mild on occasions could have given a sense of false security. Nevertheless, I think that a CT scan might reasonably have been ordered at that time". 517 Professor Lance was cross-examined at length. I have taken into account the whole of the cross-examination. I will specifically refer only to certain parts of it. Transcript p494 line 39 – p496 line 43 "Q. Can I just take you to the hospital notes again if you wouldn't mind. You see there, don't you, if you go to the note immediately above – it's page 77, your Honour – I have taken you to Dr Cutter's note, if you turn over the page, you see that he suggests fluids, analgesia, relaxation and caffeine, that is immediately after the diagnosis of a tension headache; is that right? A. Yes, yes. Q. And later on the notes indicate, don't they, that he, Mr Spasovic, was given a cup of coffee and there is a record of him: 'Patient more relaxed in PM, IV in situ, TKVO, to keep veins open for antibiotics, PCA in situ, patient uses minimally to control pain'. That's a reference to the PCA? A. Yes, mm. Q. And then please read the whole note, but the whole note for 14.45, including the reference to the patient being 'in better spirits today' and states that he feels a lot better, all of that would indicate, would it not, an improvement following the directions provided by Dr Cutter being followed? A. Yes, it would. Q. Would this be fair: in relation to the patient's complaint of headache, as described in Dr Cutter's notes, a reasonable approach would be, I suggest, to try fluids, analgesia, relaxation and caffeine, and at least see whether or not that brought about any improvement, would that be reasonable to do? A. Yes, it depends on the index of suspicion that one had that one was dealing with something more than a tension headache. If the person, the doctor was convinced that this was a typical tension headache, that would be a reasonable approach. Q. Well, of course in coming to a view as to whether the complaints of pain and the like, as recorded in these notes, were a tension headache, in part they involved the clinician seeing the patient and assessing how well he looks or otherwise, that's part of the art of medicine and diagnosis, is it not? A. Certainly. I'm a bit concerned there is no neurological examination done at the time or if so, it wasn't recorded, whether there was indeed any neck stiffness or anything relevant of that sort. Q. In none of the history that you have been provided with, is there any suggestion of neck stiffness, is there? A. No. Q. Assuming that there was no neck stiffness, can I suggest that the type of value judgment that a doctor, in Dr Cutter's position would need to make, at least would have it as reasonable practice for him to prescribe the treatment that he notes at the top of page 77, the fluids analgesia, relaxation and caffeine and then see if there was any improvement? A. Yes. Q. Provided it was followed? A. Yes, I'm trying to put myself in the position of the doctor examining at that particular time. The only points of concern I would have, the duration of the headache, 48 hours following the fall, and the change on head movement and later his relatives refer to confusion and so on too, that's not clearly emphasised in the case notes. Q. In asking these questions, can I ask you to exclude the other material that you have from the relatives and confine yourself to that which Dr Cutter had available to him at the time? A. Mm. Q. I want you to assume he had available to him at the time-- A. Mm. Q. -- the hospital notes. If you confine yourself to the hospital notes, even taking into account all of the symptoms that are recorded in Dr Cutter's note on 18 January and adding this assumption: that Mr Spasovic looked well when Dr Cutter saw him, and said that the headaches had been severe, had been a problem, but were mostly mild, and that he apologised to the doctor for him being troubled, because he didn't think it was a big problem, when he came to see him, in those circumstances, in that clinical setting, confining yourself to the information that's contained in the note, would you be critical of the treatment that was provided, at least at that time, on the 18th by Dr Cutter? A. Yes, I think you've painted a happier picture of Mr Spasovic. Was he indeed happy at that time? Q. Yes, I want you to assume that. A. And he was apologising to trouble the doctor? Q. Yes. A. Well, that would certainly minimise the significance of his headaches. We are left simply with a 48 hour headache and has Dr Cutter amplified what he meant by 'position plus'? Q. I want you to assume that that meant that the headache was mildly affected by moving the head from side to side but not otherwise? A. Yes. Q. In those circumstances, making the other assumptions of him looking well and being happy, would it be reasonable at least at that time for Dr Cutter to have proceeded in the way he did. A. Probably. I still have an index of suspicion myself, I think, on the story available to me. It is difficult to make a judgment second or third hand, of course, from notes that aren't really full." Transcript p498 lines 40 - 49 "Q. However, from the point of view of a general practitioner, who was acting as a CMO at the Sydney Adventist Hospital during the course of Mr Spasovic's admission over this period from 16 to 20 January, the classic sign that one would be looking for, exercising reasonable care and skill, would be a severe headache, that would be the main thing, not the only thing, but the main thing. A. The severity of the headache and presence or absence of neck stiffness". Transcript p504 line 10 – p507 line 31 "Q. Yesterday, if I might just recap where we finished off, and I propose to read you from the top of page 496 of the transcript down to your last answer. You don't have that, sir. And might I just, so as to assist the doctor, read it to him. I won't ask him any questions but if I just have him follow the transcript? His Honour: Yes, you can approach. Higgs Q. I will read it and I am simply reading from the top of page 496 down to the last question and answer. I have asked you: "Q. I want you to assume that he, that is Dr Cutter, had available to him at the time. A. Mmm. Q. If you can confine yourself to the hospital notes, even taking into account all of the symptoms that are recorded in Dr Cutter's notes on 18 January and adding this assumption, that Mr Spasovic looked well when Dr Cutter saw him and said that the headaches had been severe, had been a problem but were mostly mild and that he apologised to the doctor for him being troubled, because he didn't think it was a problem when he came to see him, in those circumstances, in that clinical setting, confining yourself to the information that is contained in the note would you be critical of the treatment that was provided, at least at that time, on the 18th by Dr Cutter? A. Yes, I think you've painted a happier picture of Mr Spasovic. Was he indeed happy at that time? Q. yes, I want you to assume that? A. And he was apologising to trouble the doctor?' I take it you meant by that that he was apologising about troubling the doctor? A. Yes. "Q. Yes. A. Well, that would certainly minimise the symptoms of his headache. We are left simply with a 48 hour headache, and has Dr Cutter amplified what he meant by 'position plus'? Q. I want you to assume that that meant that the headache was mildly affected by moving the head from side to side but not otherwise? A. Yes. Q. In those circumstances, making the other assumptions of him looking well and being happy, would it be reasonable, at least at that time, for Dr Cutter to have proceeded in the way he did? A. Probably. I still have an index of suspicion myself. I think on the story available to me, it is difficult to make a judgment second or third hand, of course from notes that aren't really full'. You recall giving that evidence yesterday? A. Very well, yes. Q. Before asking you those questions, I had taken you also, if you recall, sir, to page 77 of the tender bundle, they being the hospital notes for the San, where you have the record of Dr Cutter's impression of classic tension headache and the fluids, et cetera, and thereafter we went over the nursing notes of 14.45 and read again all to yourself, his condition being satisfactory and later on references to a minimal control of the pain relief, the PCA, the fact of coffee being given to the patient and the patient more relaxed in PM and then towards the end of the note, him having been in better spirits today and stating that he felt a lot better. Have you read the whole note? A. Yes. Q. But that note, confine yourself to that note, that certainly suggests an improvement in the patient's condition, does it not? A. The note that I have, 14.45 starts 'Patient anxious in early hours of shift complaining of headache and concerned re the same' then at the end it said, 'Patient in better spirits today and states he feels a lot better'. So there is a difference in the course of that shift between the comments at the beginning and the comments at the end. Q. Yes, and towards the top of that note in the fourth line, it is obviously on a fair reading a history of what had happened in the past, including the CMO, that would be Dr Cutter, wouldn't it? A. Yes. Q. Having been notified and reviewed, reviewing him; and then coffee having been given, that, on a fair reading of these notes would indicate that the coffee was given after Dr Cutter saw him? A. Yes. Q. And thereafter some improvement is recorded therein? A. Yes. Q. I want you to assume, as you responded yesterday, a happier picture, they were the words that you used? A. Mm. Q. I take it by that you meant a happier picture than as you understood it with the benefit of the history that had been provided to you which included these observations of Mr Spasovic, particularly about the headaches having made him cry? A. I'm not sure of the time sequence here. On the record here, he obviously has improved at that particular point. Just when Mrs Spasovic noted these other things, I'm not aware of that. Q. You would have to go back to the letter to refresh your memory about that? A. I don't think that was specific in terms of time, was it? Q. Well -- A. Obviously the headache has been fluctuating in severity. Q. All right, certainly the letter that had been forwarded to you, suggested towards the top of page 2, that at least on the 18th Mr Spasovic was still complaining of headache, severe enough on his wife's account to make him cry, that appearing to be a reference to 6.50 a m.? A. 6.50 a m. on the 18th? Q. So that would have been before, would it not, Dr Cutter saw him? His Honour: What part are you referring to? Higgs: The paragraph 'At 12.25 on the 18 January 1996, Panadol was prescribed for Mr Spasovic's headache. At 6.50 a m. Mr Spasovic was still complaining of headache severe enough on his wife's account to make him cry'. His Honour: Yes. Witness: Yes, that correlates with the hospital notes. Higgs Q. Well, there is nothing in the hospital notes to suggest that the headache was severe enough to make Mr Spasovic cry was there? A. No, it simply states 'Patient still complaining of headache'. Q. So the hospital notes paint a happier picture than your understanding of the description of events that were provided by reference to Mrs Spasovic's account of her observations of her husband, would that be right? A. That is so, yes. Q. When I asked you yesterday about whether in the circumstances of the happier picture 'position plus' means simply moving the head from side to side and only mildly affecting the pain and you said that in response to this question: 'It was reasonable, at least at that time, for Dr Cutter to have proceeded in the way he did'. And you responded: 'Probably, I still have an index of suspicion myself. On the story available to me, it is difficult to make a judgment second or third hand'. Did you mean by that that on the happier picture that I had asked you to assume, that you felt that Dr Cutter probably did act reasonably in the treatment that he provided for Mr Spasovic on the 18th? A. If the situation is as you described, yes". Transcript p508 lines 38-45 A. …On the description as it is here it does paint a picture that would be compatible with a tension type headache, but the worry is that it came on immediately, as we gather, or shortly after the fall, persistent and even the slight variation with position, would suggest the possibility, not the probability, but the possibility of some intracranial problem. Transcript p509 line 28 to line 42 "Q. Can you take into account the nursing notes, take into account Dr Cutter's notes, take into account the way in which I have asked you to flesh out the 'position plus' and how he looked; he looked well, he was only at the time complaining of a mild headache, in those circumstances would you agree with me that the treatment provided by Dr Cutter, as at the 18 January, fell within the bounds of reasonable practice? A. Yes, the onset of a headache of a different character from that previously suffered is usually an indication for investigation, which is why I concluded in my report, saying it would be prudent at that stage to order CT san, but on the picture you painted for me, I think that his action is reasonable, if the headache has subsided at that time". Transcript p575 line 27 – p 577 line 4 "Q. The other day I asked you to take into account these assumptions: first, the nursing notes and Dr Cutter's notes – that's the nursing notes preceding Dr Cutter's notes, and Dr Cutter's notes – I asked you to flesh out the note 'position affects plus' in Dr Cutter's notes by meaning that a change of position only slightly increased the pain that the patient was complaining of, do you recall that? A. Yes, that note is ambiguous of course simply saying 'position plus'. Q. But you understand the assumption that I'm asking you to make? A. Yes. Q. That's to be read or interpreted as a change of position of the head only slightly increased the pain. I want you to assume that when Dr Cutter saw the patient he was only complaining of a mild headache and looked well. Right? A. Yes. Q. And I want you to assume that he complained of a history of headaches from the time of the fall that were severe at times, not severe – there was no report of it being so severe as to make him cry, but that the headaches were mostly mild. Do you understand? A. Yes. Q. In those circumstances, you wouldn't be critical of Dr Cutter's plan of action, the way in which he treated the patient, would you? A. I think I have already expressed my view that given the circumstances that you mention, his attitude and understanding of the situation is understandable. I would still reserve suspicion in view of the 48 hour continuing headache, quite unlike any headache that he had previously had. Q. On Friday I asked this question at page 509. If I could approach, your Honour, just to follow it. At line 28: 'Q. Can you take into account the nursing notes, take into account Dr Cutter's notes, take into account the way in which I have asked you to flesh out the 'position plus' and how he looked; he looked well, he was only at the time complaining of a mild headache. In those circumstances, would you agree with me that the treatment provided by Dr Cutter, as at 18 January, fell within the bounds of reasonable practice? A. Yes, the onset of a headache of a different character from that previously suffered is usually an indication for investigation, which is why I concluded in my report, saying it would be prudent at that stage to order a CT scan. But on the picture you painted for me, I think that his action is reasonable, if the headache has subsided at that time'. A. Yes, that is the view I was trying to express to you then. His Honour: What's the page reference again? Higgs: Page 509, line 28 to 42, your Honour. Q. So if you factor in the fact that the previous headaches had been reported as being severe from time to time, your answer is the same as the answer that you have just given to that question that I have read out to you at page 509 of the transcript? A. Yes, it is. A tension headache per se is not usually a severe headache. It's usually a constant, mild dull pressure like sensation, it would depend entirely on the degree of severity and accompanying symptoms that the patient had, whether one would want to proceed with investigation. Q. The fact of, as you mentioned the other day, having subsided at the time Dr Cutter saw him, that's a significant clinical observation for him to have made? A. Yes, it is. Q. And one that made it within the bounds of reasonable practice for him not to proceed to order a CT scan; is that right? A. Yes. Q. On those assumptions? A. On those assumptions, yes." Transcript p587 line 50 to p588 line 7 "Q. And in the event of this man having suffered headaches that were of the type that I have asked you to assume, namely that they were severe at times but that they were mostly mild, that Dr Cutter's note about 'position affects plus', means that it only slightly increased the headache on movement of the head and that they went away altogether by 11 o'clock on the Friday, as recorded in the hospital notes, in those circumstances you would be of the view, would you not, that those headaches on the probabilities were simply a classic tension headache? A. I wouldn't term it classic tension headache, because it doesn't fulfil the criterion or the criteria for that diagnosis. But, as I mentioned before, I would concede that it was mild enough not to have caused concern to Dr Cutter at the time, on your description". Transcript p588 line 43 to p589 line 30. "Q. Would you agree with this description of a tension headache: the pain is usually dull and persistent in tension headache, and undulates in intensity during the day? A. Yes, yes. Q. It is often described as a feeling of heaviness, pressure, weight on the head or tightness rather than pain and may extend like a band around the head? A. That is a classical description, yes. Q. 'Some patients experience sudden jabs of pain on one side or at the back of the head (ice-pick pains) superimposed on a general background of discomfort'. A. Yes, that almost sounds like a description from my own book. Q. They are your words. And you've also written, have you not, 'About one quarter of tension headache patients, whose headaches become severe and assume a pulsating quality at times, form a group intermediate between muscle-contraction headache and migraine'. A. Yes, that's so, tension-vascular headache. Q. 'Called 'Tension Vascular Headache' by Lance and Curran (1964). About 10 per cent of patients with tension headache are also subject to frank migraine' A. Yes. Q. 'The intensity – would you agree with this – of headache experienced and the reaction of the patient to pain was found to vary with the mood of the patient in a study' that you referred to 'the symptoms being more severe when the patient was depressed'? A. Yes. Q. The type of headache described in these hospital notes, fall within, do they not, the ambit of your very own description of tension headache, that's one possible explanation? A. Yes, I had not appreciated from the hospital notes that it did fall within the ambit of that description. Q. But you agree it does? A. I can't see anywhere mention of it being band-like, or a weight on the head, or any of the characteristics that applied to tension headache". Transcript p511 lines 11-15 Q. Those notes subsequent to the visit by Dr Brooks, certainly suggest, does it not, an improvement in the patient generally, would you agree with that? A. Yes, in the case of recurrence of headache and then the headache ceasing". Transcript p512 line 513 line 30 "Q. I want you to assume that the information provided to Dr Brooks was the information in these notes and in particular that the history of the headache was in terms of its severity, mostly mild; in other words it had been severe, it had been severe at times, but not so severe as to make the patient cry, there was no history of that reported to Dr Brooks, but it was a history of the headaches being variable, but that they were mostly mild, and he had been, that is the patient, had been seen by Dr Cutter. There had been the improvement to a degree, as recorded in the notes after Dr Cutter saw him, and on the Friday morning when the report of headache was made and light-headedness, the view that was taken by Dr Brooks was that it was reasonable in view of there being no complaint of ongoing severe headaches, to at least try the course of removing the patient from the PCA regime to see if that would work? A. He would have been – I'm sorry. Q. Is that reasonable? A. He would have been reassured by Dr Cutter's notes, yes, as an orthopaedic surgeon, I don't think it would be up to him necessarily to pursue the headache question further, unless it was obviously severe. Q. And so do I take it that if you confine the history of the headaches to being as described in the hospital notes, you would not be critical of the treatment provided by Dr Brooks on the morning of the Friday, the 19th? A. No, I would not". Transcript p514 line 5 -15 "Q. So the crucial factor in your view, in terms of the reasonableness or otherwise of Dr Brooks' treatment is whether or not there had been reported to him a degree of severity in the headaches over and above that which is contained in the hospital notes, would that be right? A. Yes, I think the responsibility for the treatment, investigation of the headache lies with the general physician or practitioner, the career medical officer who examined him before and the orthopaedic surgeon could reasonably rely on his judgment as outside the field of orthopaedics". Dr Vinen 518 Dr Vinen was formally head of the Emergency Department at Royal North Shore Hospital. 519 The instructions to Dr Vinen from the solicitor then acting for the plaintiffs were contained in a letter dated 6 August 1998, with which copies of a number of documents were enclosed, including copies of witness statements by the plaintiffs, their son and their relatives and friends and copies of reports by other medical experts which had been obtained for the plaintiff but most of which were not tendered in these proceedings. 520 Dr Vinen was asked to assume the facts asserted in a part of the letter of 6 August 1998 which was headed "Background". This statement contained a number of asserted facts which I have found not to have been established, including that "Mr Spasovic complained to several people aside from the Hospital staff about his headaches (statements of these persons are enclosed in the brief)". 521 The questions which Dr Vinen was asked to answer were set out in a letter dated 12 May 1999 from the solicitors to Dr Vinen. Dr Vinen answered these questions in his report dated 8 June 1999 in which he set out both the questions and his answers. The questions and answers which are most relevant to the issue of whether the defendants were negligent are questions and answers 1, 3, 4, 8 and 10. "Q1. What, in you opinion, was the likely cause of the headaches experienced by the plaintiff during his admission? In considering this question, please advise us as to the other possible causes and your view as to the reasons why they were not the likely cause of the headache. A. It is possible and in fact very likely that Mr Spasovic's headache was due to his intracerebral haemorrhage which in all likelihood occurred at the time of his injury on 16 January 1996 at approximately 1830 hrs. Whilst he did not strike his head or lose consciousness a sudden deceleration such as falling approximately 2.5 metres can result in tearing of blood vessels in the cranium resulting in an intracerebral haemorrhage. His assessment on admission is very brief and does not follow the accepted practice of assessing a patient who has sustained a traumatic injury. This approach, as espoused by the Early Management of Severe Trauma (EMST) Programme by the Royal Australasian College of Surgeons requires medical staff to thoroughly assess each and every patient including situations where patients appear to have an obvious injury. Q3. Should the possibility of a cerebral haemorrhage have been considered at some stage during the plaintiff's admission? A. Given that Mr Spasovic had sustained an injury secondary to a 2.5 metre fall associated with sudden deceleration when he struck the ground, consideration should have been given to the possibility that his headache was due to an intracerebral problem arising as a result of his fall. At the very least it should have been considered that he had intracerebral pathology due to the fall and a neurosurgery review and CAT scan should have been arranged immediately. Q4. If you answer yes to question 3: (a) Who should have considered the diagnosis? A. This diagnosis should have been considered by the doctors caring for Mr Spasovic including Drs Cutter and Brooks under whose care Mr Spasovic was admitted. (b) When in your opinion should that diagnosis have been considered? A. The diagnosis should have been considered at the time Mr Spasovic first complained of headache. As I indicated above Mr Spasovic should have had a thorough review based on EMST Guidelines when he first presented, this may have in fact identified the problem earlier. (c) What investigations or other steps should have been taken upon that diagnosis being considered? A. Once Mr Spasovic had complained of a headache consideration should have been given to the fact that it may have been due to his fall and a neurosurgical consultation and a CT arranged immediately. Q8. In relation to the diagnosis of 'classic tension headache' made by Dr Cutter, CMO, on 18 January 1996: (a) Was that an appropriate diagnosis to reach given the history at that time? A. Whilst it is possible that Mr Spasovic had a 'classic tension headache' the fact that he had a headache subsequent to a significant fall should have raised the question as to whether there is a relationship between the headache and the fall. A traumatic cause of his headache should have been excluded. To describe a headache following a fall such as that sustained by Mr Spasovic as a 'classic tension headache' is fraught with danger. 'Classic tension headache' may have been one of the causes of Mr Spasovic's headache. There are a number of other causes including intracerebral haemorrhage. (b) If not, what differential diagnosis should Dr Cutter have considered? A. The major differential diagnosis Dr Cutter should have considered in relation to Mr Spasovic's headache was that of a traumatic injury secondary to his fall. This would have been the most important differential diagnosis to have considered and exclude. (c) What steps should Dr Cutter have taken to obtain a detailed history as to the plaintiff's background of headaches? A. A detailed history of Mr Spasovic's headaches should have been taken by Dr Cutter, this would not of necessity have excluded the possibility of other causes including intracerebral haemorrhage secondary to a traumatic injury. (b) What investigations, if any, should Dr Cutter have organised at that time? A. Dr Cutter should have organised an urgent CT scan of Mr Spasovic's brain in order to exclude a traumatic cause for his headache. (c) What other practitioners, if any, should have been consulted by Dr Cutter? A. Dr Cutter should have arranged, after consultation with Dr Brooks, for a neurosurgical consultation of Mr Spasovic. (d) Should Dr Cutter have notified Dr Brooks as to the plaintiff's complaint and Dr Cutter's diagnosis? A. It is the responsibility of doctors caring for patients to ensure that the Admitting Consultant, in this case Dr Brooks, is aware of the patient's condition. Dr Brooks should have been appraised by Dr Cutter of Mr Spasovic's headache and the fact that it was persistent. Q9. Having proceeded on the basis of a diagnosis of classic tension headache, what steps should have been taken by Dr Cutter to review the plaintiff's progress and, in particular, to review the plaintiff's response to the treatment regime put in place by Dr Cutter? A. The fact that Mr Spasovic's headache did not resolve should result in Dr Cutter seeking other causes including intracerebral haemorrhage given the fact that Mr Spasovic had fallen off a ladder prior to the headache commencing. Q10. In relation to the attendances by Dr Brooks on the plaintiff at 9.30 a m. on 19 January 1996: (a) What possible diagnosis should Dr Brooks have considered? A. Dr Brooks should have considered that Mr Spasovic's headache was due to intracerebral haemorrhage or other pathology related to his fall. (b) What investigations or other steps should Dr Brooks have taken? A. I believe it was appropriate that Mr Spasovic have an urgent CT scan and a neurosurgical consultation". 522 Dr Vinen annexed to his report of 8 June 1999 a specimen copy of the Royal North Shore Hospital Emergency Department Trauma Record. 523 Dr Vinen devoted most of his second report of 14 November 1999 to stating his qualifications and experience. In the part of this report headed "Opinion" Dr Vinen, having received copies of reports by Professor Besser and Professor Morgan, reiterated his opinions and particularly his criticism that no detailed examination of the plaintiff, based on the Early Management of Severe Trauma programme, had been carried out at the time of his admission to the Hospital. 524 Dr Vinen was cross-examined at length and I have taken all of his cross-examination into account. 525 There are matters which, in my opinion, diminish the weight which should be given to Dr Vinen's opinions. Dr Vinen was for a long time the head of the Emergency Department of a large public hospital where patients were often brought suffering from severe trauma. The Royal North Shore Hospital Emergency Department Trauma Record, a detailed eight page document based on the Early Management of Severe Trauma programme of the Royal Australasian College of Surgeons, a specimen copy of which was annexed to Dr Vinen's principal report, would be an appropriate document for a medical practitioner to complete when a patient arrived at a hospital suffering from severe trauma. I do not accept that it would be an appropriate document for a medical practitioner to complete when a patient such as the plaintiff arrived at a hospital with lacerations to the soles of his feet and no other apparent injury. I do not accept, as was advocated by Dr Vinen, that the plaintiff should have been submitted to a thorough neurological and physical examination at the time of his admission. In fact, it was not a part of the plaintiff's case that the Hospital had been negligent in not conducting such an examination at the time of the plaintiff's admission to the Hospital. 526 I do not accept that, as Dr Vinen asserted, a medical practitioner must always consider the possibility of intracranial pathology, whenever a patient has had a fall, even if the patient has fallen only about a couple of metres, landed on his feet and did not strike his head in the fall and is not displaying any neurological symptoms. 527 Towards the end of his cross-examination Dr Vinen made some concessions. The following questions and answers occurred in his cross-examination:- 528 Transcript p675 1 676 line 46 "Q. Can I suggest this to you: in relation to Dr Brooks's examination of Mr Spasovic on the morning of the 19th, as set out at the top of page 78 of the hospital notes, you see, don't you, based on the assumptions that I have asked you to make about the interpretation of these notes as to the progress of Mr Spasovic, that after the patient was taken off the patient controlled analgesia regime, his headaches went away? A. He didn't complain of headaches afterwards. Q. Well, a fair reading of the notes, the assumptions that I have asked you to make, that the nurses make express reference to the topic of headache, that's so, isn't it? A. Yes. Q. And the only fair reading of these notes in light of the nurses having directly applied their minds to the topic of headache, is that the headaches went away at 11, on the assumptions that I ask you to make? A. Yes. Q. Would you agree with this: that in light of the actual improvement that is seen in these notes on the assumptions I've asked you to make, that that always was a possibility, in the event of the patient being taken off patient controlled analgesia regime; that's so, isn't it? A. Yes, it is possible. Q. Because although uncommon, the fact is that a known side effect of the patient controlled analgesia is headache? A. Yes. Q. And it is also a known side effect of Pethidine? A. It is. Q. And in the event of a headache having gone away, it would be reasonable to conclude, would it not, that the headaches were in fact due to the patient controlled analgesia? A. It could have been the cause. Q. And it would be reasonable, would it not, if you could just exclude the criticisms you make of Dr Cutter at the moment, it would be reasonable, would it not, for Dr Brooks to try to see whether or not the headaches did go away on the Friday morning after he saw him at 9.30, following the cessation of the patient controlled analgesia regime? A. Yes. Q. That would be reasonable for him to do, wouldn't it? A. Yes. Q. And in the event of the headaches having gone away by 11, it would be reasonable for him, at least on the Friday, to do nothing more? A. Apart from some sort of review process and subsequently - I think that was reasonable. Q. Assume he next sees Mr Spasovic on the Saturday morning, that's the morning that he is discharged? A. Yes. Q. And at the time Dr Brooks sees him on the Saturday, I want you to make these assumptions: that he looked well, he was in good spirits, the patient said that he felt like a new man, that he slept well the previous night, he'd had - the previous night had been comfortable and he had slept well. When Dr Brooks came to see him he had his bags packed and said he was keen to go home and get back to work. He made no complaint about headache; advice was given that he should keep his feet elevated and not go back to work too soon, that he should remain quiet at home with his feet elevated, use crutches for the first three to four weeks while the wounds healed and he should come back for follow-up consultation and removal of the sutures thereafter. Assuming that history, that was a reasonable course of conduct on the part of reasonable treatment by Dr Brooks, wasn't it, assuming the previous day as well, namely the headaches having gone away by 11 o'clock and the like, after removal from the PCA regime we have been over before? A. Yes, and also I expect him to give advice about concern, if the headaches concerned or if some other problems occurred that he should seek, you know, medical advice. Q. That is the only qualification that you would make, is it, to the question that I posed, namely whether Dr Brooks's treatment fell within the bounds of reasonable practice? A. I think you need to follow up your patient and make sure the follow-up arrangements are appropriate and in somebody who is - forgetting orthopaedic side of things-- Q. I think you are being asked if there is any other qualification? A. No, if there is no other qualification, no". Transcript p676 line 48 to p677 line 10 "Q. Can I suggest to you that in relation to Dr Cutter's consultation of the Wednesday (sic) that we have been over beforehand, that's during the course of the 18th? A. Yes. Q. That if a period of time was allowed to 11 o'clock the following day, to see with appropriate follow-up by Dr Brooks as to whether the headaches would go away, despite the evidence that you have given a little while ago, which I perceive to be to the contrary of what I am about to suggest to you, that a regime of follow-up by Dr Cutter as would have permitted the patient to have been observed up to about 11 o'clock the following day to see whether further treatment could bring about the headaches going away, would fall within the bounds of reasonable practice? A. So long as you, the patient was reviewed, so long as you revisited the issues, that is in particular the headache and symptoms, over a period of that sort of period of time, I think it would be not that unreasonable". Dr Thomson 529 Dr Thomson described himself in his report as a "medico-legal consultant surgeon". 530 Instructions to Dr Thomson were contained in letters dated 22 June 2000 and 11 July 2000 from the plaintiffs' solicitors. 531 In the letter of 22 June 2000 the solicitor set out what were asserted to be "The Brief Facts". Parts of this statement which I have found not to have been established include:- "The plaintiffs allege that Rajko: i) continued to have severe headache and indeed headache of such severity that it was disabling and sufficient to reduce him to tears; and ii) that by the Friday he was observed by a workmate to appear to be confused in his speech. The plaintiffs allege that they informed the nursing staff of the headaches and their severity". 532 According to the letter of 11 July 2000 a statement of assumed facts was enclosed with the letter. In fact, no copy of a statement of assumed facts was tendered but I have assumed that there was a statement of assumed facts and that it was similar to the statement of assumed facts that was sent to Professor Brew at about the same time. 533 In the letter of 11 July 2000 Dr Thomson was asked to assume certain additional facts, which were the same as the additional facts Professor Brew was asked to assume. The comments I have made in discussing the additional facts which Professor Brew was asked to assume are equally applicable here. 534 The questions which Dr Thomson was asked to answer were set out in the letter of 11 July 2000. In his report of 18 September 2000 Dr Thomson expressed opinions critical of Dr Cutter and Dr Brooks. 535 I have concluded that I should give very little weight to Dr Thomson's evidence. I will mention only some of the criticisms which could fairly be made of Dr Thomson's evidence. 536 Dr Thomson's qualifications were less than those of the other expert witnesses. Although he described himself in his report as being a consultant surgeon he had never taken a Surgical Fellowship, had not had a hospital appointment since 1974 and had not had an operating list since the late 1980's. He has been for a number of years a medico/legal consultant. 537 In both his report and his oral evidence his language and his manner were those of an advocate rather than an independent expert. 538 He made a claim that a neurologist such as Professor Lance was no better qualified than he was to decide what sort of investigation should have been carried out. He gave evidence:- "A sentinel bleed is not the exclusive domain of neurologists, I mean people outside of neurology know all about sentinel bleeds". 539 Dr Thomson was then asked a series of questions about AVMs and sentinel bleeds and his answers revealed his almost complete ignorance of the subject. 540 Dr Thomson had misread the opening lines in the entry in the Hospital notes at 14.45 on 18 January 1996 as recording events which had occurred after Dr Cutter had seen the plaintiff. When it was put to him, as is obviously the case, that the entries in the Hospital notes alongside the time "14.45" related to the progress of the patient over the whole of the shift, he said "I don't agree with that… most nursing notes are strictly contemporaneous". 541 Some of the opinions he expressed in his report concerning Dr Cutter would appear to have been based on an incorrect belief on his part that Dr Cutter had seen the plaintiff twice on 18 January 1996. 542 Dr Thomson asserted that by using the PCA the plaintiff had become "self-saturated with morphine", the plaintiff was "full of morphine". This evidence is contrary to other evidence, which I accept, that, apart from the first few hours after the operation when the pain from his feet was severe, the plaintiff had used the PCA moderately or minimally. When asked why, if the plaintiff's use of morphine was so significant, he had not mentioned it in his report, Dr Thomson said "it actually escaped my attention when I made the report". 543 Contrary to the views of Professor Dorsch and Professor Brew that the plaintiff had had a small sentinel bleed from the AVM which had resolved and had then suffered a major re-bleed, Dr Thomson expressed the opinion that while the plaintiff had been in the Hospital he had had a continuously expanding intracranial haemorrhage "filling his brain up with blood" and he sought to explain the absence of any neurological signs on the basis that no one had examined the plaintiff neurologically. 544 There are a number of other criticisms which could fairly be made of Dr Thomson's evidence. Professor Besser 545 Professor Besser is an eminent neurosurgeon. 546 Instructions to Professor Besser were contained in letters from the first defendant's solicitors dated 4 August 1997, 11 August 1997, 8 October 1997 and 28 April 1998. 547 In his report of 27 May 1998 Professor Besser answered a number of questions. The questions and answers which are most relevant to the question whether the defendants were negligent are:- "a. Whether Dr Cutter failed to diagnose the plaintiff's haemorrhage A. There is no indication that the plaintiff suffered an intracranial haemorrhage during his stay at the Sydney Adventist Hospital. Dr Cutter therefore could not possibly diagnose something which had not yet occurred. b. Whether the plaintiff would have been suffering from an intracerebral haemorrhage prior to his discharge from hospital A. There is no indication whatsoever, in either the medical reports or nursing reports or attention from the physiotherapist, that there was any indication that serious intracranial haemorrhage had occurred prior to his discharge from hospital. In fact there is nothing to suggest in any way that any intracranial haemorrhage took place prior to discharge. c. Whether there were any further possible diagnostic procedures which should have been undertaken to ascertain the cause of the plaintiff's signs and symptoms A. The plaintiff did not have any significant signs and his symptoms seemed entirely related to his accident in terms of mild to moderate headache related to the trauma, in addition to symptomatology which I believe was related to his morphine infusion. Therefore I do not feel that any diagnostic procedures should have been undertaken in response to this man's headache. d. Whether the significant improvement after the removal of the PCA was of any significance A. I believe that this is highly significant and it is not uncommon for patients, who are on a morphine infusion with patient controlled analgesia, to suffer from headache, dizziness and nausea. Is clearly documented in the notes by the nursing staff that he felt very much better once the PCA was removed and was free of headache. If there had been any significant intracranial haemorrhage prior to discharge from hospital the opposite sequence of events would have occurred and his headache would have been much worse once the PCA was removed. g. Whether Dr Brooks should have discharged the plaintiff when he did A. There was no reason whatsoever that I could see from the notes why the plaintiff should not have been discharged when he was. Dr Brooks' decision in regard to his discharge was perfectly reasonable and there was no indication that he should have been kept in hospital". 548 Professor Besser concluded:- "Overall, there is certainly no evidence whatsoever of any negligence on the part of Dr Cutter, Dr Brooks or the Sydney Adventist Hospital, in my view". 549 In his report of 9 August 1999 Professor Besser said, with reference to Dr Vinen's original report:- "With all due respect to Dr Vinen this matter is entirely outside his area of expertise. I entirely disagree with his comment that the intracerebral haemorrhage occurred at the time of his injury on the 16/01/96. He did not show any of the symptoms or signs associated with intracranial haemorrhage and there was no report of loss of consciousness, photophobia or neck stiffness that would be present with subarachnoid haemorrhage. Any significant intracerebral haemorrhage would reveal focal neurological deficit or alteration of the level of consciousness as in fact Mr Spasovic did demonstrate when the haemorrhage occurred subsequently. The rest of the report follows on from his assumption that an intracranial haemorrhage occurred at the time of the fall. I disagree with these comments. Patients who have not struck their head, or had any alteration of level of consciousness related to a fall, and who are neurologically quite normal with no alteration in the level of consciousness, do not require a CT scan. The only patients who would fit into this category are the spontaneous sudden headache suggestive of subarachnoid haemorrhage from a ruptured intracranial aneurysm". 550 Professor Besser was subsequently provided with copies of Dr Thomson's report and Professor Brew's principal report. With respect to Professor Brew's report Professor Besser said inter alia:- "It must also be remembered that the patient was seen by a physiotherapist, who stated that he was mobilising well and managing satisfactorily. It should also be noted again that the headache had gone with removal of the morphine infusion and at 11 p m. that evening the patient refused any analgesia when it was offered to him by the nursing staff. The night report indicated that he slept well during that evening and was seen by Dr Brooks the following morning and discharged. He did not have any analgesia following removal of the PCA until the time of discharge. That is not to say that analgesia was not prescribed and I would imagine that this was for his deep sole laceration" 551 I have taken into account that Professor Besser did not give oral evidence and was not cross-examined. I have also taken into account that Professor Besser's opinions as to whether any of the defendants had been negligent were affected by his opinion that the plaintiff had not suffered an intracranial haemorrhage before he was discharged from the Hospital. Dr Terenty Dr Terenty is a now retired former specialist neurologist. 552 By a letter of 10 September 1998 from the first defendant's solicitors Dr Terenty was requested to examine Mr Spasovic, take a history from him and provide a report. 553 Dr Terenty furnished a report dated 17 November 1998. In her report Dr Terenty noted that Mrs Spasovic had attended the examination with her husband and it was she who had given most of the history. 554 In her report Dr Terenty noted that Mrs Spasovic had confirmed that on arrival at the Adventist Hospital on 16 January 1996 the first plaintiff had not been confused, had not complained of a headache and had not given any history of having suffered a head injury. 555 Dr Terenty also noted in her report that Mrs Spasovic said that she believed that her husband had had a severe headache throughout the period of his admission to the Adventist Hospital. In her report Dr Terenty expressed the following opinion:- "It is most likely that this man had an undiagnosed intracerebral arteriovenous malformation. This is a developmental anomaly in which a clump of abnormal and often fragile blood vessels exist, in this man's case, presumably within the depths of his dominant hemisphere or in the Sylvian fissure. Although there was a temporal connection between the onset of the symptoms and the jarring fall of 16 January 1996, it is highly unlikely that, in the absence of direct head trauma, the fall itself caused the arteriovenous malformation to bleed. However, for whatever reason, the headache present three days before the catastrophic bleed, was due to the premonitory bleeding as often happens before the major event. A further catastrophic bleed occurred on the afternoon of 20 January 1996. I do not believe that this situation could have been predicted or could have been handled in any other way. Although Mrs Spasovic was very adamant that she could not guarantee that her husband did not hit his head, he was conscious and alert and, if he gave no history of having hit his head, I do not believe that the doctors looking after him would have had any suspicion, nor would they need to have any suspicion, that he had any intracerebral pathology. It is not uncommon for patients to have peri-operative headaches. People with a migrainous tendency, not necessarily having had migraine in the past, can develop severe headaches due to a combination of fasting, stress and the effects of anaesthesia. Dr Cutter who attended Mr Spasovic on 18 January 1996 took a very detailed history. He considered various reasonable causes. The management at that time was quite appropriate. From the information that is contained in the Sydney Adventist Hospital notes and the information Mrs Spasovic gave me, if this man were reviewed by a physician or a neurologist, and I do not believe that there was any indication for such a review to be requested, the management could have been the same. His headache while in hospital, while undoubtedly in retrospect a premonition of what was to come, was not a particularly severe headache, on the basis that Mr Spasovic reduced his own morphine and his headache was being treated with simple paracetamol. He required no further analgesics for the twenty four hours prior to discharge. I do not believe it is unreasonable for the treating doctors to have managed him in the way they did." 556 A later report by Dr Terenty of 16 September 1999 is mainly concerned with other issues. 557 In oral evidence in chief Dr Terenty gave the following evidence:- Transcript p1347 line 11-41 "Q…In relation to what is contained in the nursing notes, was there any indication for a CAT scan at any time during Mr Spasovic's admission to the Adventist Hospital? A. I do not believe that there was an indication for a CT scan during that period. Q. And shy do you have that view? A. Mr Spasovic complained of a headache. He was seen by a doctor. He had a past history of headaches, he had a number of reasons related to his admission why it would be reasonable for him to have a headache – it would be not unusual for him to have a headache. He then improved, as far as the headache was concerned. These factors, together with the fact that his reason for being in hospital had nothing that could have alerted you to any intracerebral pathology, I think it is perfectly reasonable that the doctors who saw him at the time made what was the most appropriate, clinically appropriate diagnosis. Q. Bearing in mind that we are talking about January 1996, at that time what would have been the indications that were required for a doctor to consider doing a CAT scan? A. A severe and unremitting headache, focal neurological signs. Q. Is a CT scan a screening test or do you need something specific before it is ordered? A. You need a reason to do it…." Transcript p1351 line 53-p1352 line 8 "A. …The fact that the headache improves or shows a tendency to be improving, is reasonable evidence against there being any serious intracranial pathology because you would expect the pain of something more serious such as meningitis or intracerebral bleed or a subarachnoid haemorrhage to have persistent and increasing pain in exactly the way this man's headache evolved on the Saturday at home. In other words, it started, it became more and more severe. He didn't exhibit that in hospital and therefore, in my opinion, the assessment of this being a benign headache related to the circumstances of his hospitalisation, his history of a tendency to headache, albeit mild ones, was not an unreasonable conclusion to draw". 558 In cross-examination Dr Terenty's credit was attacked on the basis that she had been accredited to the Adventist Hospital as a consultant between 1978 and 1996. 559 Dr Terenty said in cross-examination that in forming her opinions she had accepted the history given by Mrs Spasovic that the headaches had at times been severe. 560 Dr Terenty was cross-examined about the part of Dr Cutter's note reading:- "(headache) different from this". Transcript p1371 line 33 - 44 "Q. ..Could that have raised the suspicion level at all in your mind? A. Absolutely. That was probably the only unusual factor. However, I would have taken into account the context, at the time that this was for him a most unusual situation. He was a man who was in extreme pain from his foot, he'd had a bad night, he hadn't slept, he was in the hospital, he hadn't had his coffee. So a man with a history of tension type vascular headaches in that situation could well have a much worse or different headache to what he was normally used to…." 561 With regard to the use of the PCA by the plaintiff the following question and answer occurred. Transcript p1371 line 54 – p1372 line 10 "Q. Did you take into account the fact or possibility, however one puts it, that the PCA may have been masking the severity of the headache? A. I did, except that was a very important point and that was why my report – I actually drew attention to the amount of analgesics the patient had taken, and if you go through the nursing notes they have to report how much is left in each ampule at the end of each period of time. You will see that the first ampule was completely used up. The second ampule was incompletely used up, and the third ampule had very little taken out of it at all. In other words, his headaches were improving, not at a time when his analgesic intake was high but were actually improving as his analgesic intake was withdrawn". 562 Dr Terenty said in cross-examination that the length of the plaintiff's headache would not be unusual, given the circumstances, for a benign headache. 563 In cross-examination Dr Terenty accepted that the fall the plaintiff had had might have had a jarring effect on his brain and might conceivably have damaged abnormal blood vessels. 564 With regard to the position of the headache Dr Terenty said:- Transcript p1375 lines 33 - 36 "A. You can have that distribution of headache with a number of – with a wide variety of benign headaches. That is not an uncommon position for migrainous, vascular, or tension type headaches". 565 With regard to Dr Cutter's note "position affects +" Dr Terenty said:- Transcript p1375 line 40-41 "A. Similarly, headaches due to benign causes can be made worse by changes in head position…". 566 Dr Terenty said that the most important factor in determining whether a headache is sinister is whether the headache is getting worse with time. Professor Morgan 567 Professor Morgan is a Professor of Neurosurgery and an eminent cerebrovascular neurosurgeon. 568 In his report of 23 February 1999 Professor Morgan, after referring to Dr Cutter's notes in the Hospital notes, said at page3. "Given the mild nature of the headache, Dr Cutter's assessment of the patient, noting that he normally consumes a great deal of caffeine and the presence of the fever whilst in hospital, these combination of factors certainly would suggest no further explanation need be sought for the headache at this point in time. Given that there was no record of head injury whatsoever in association with the fall, there is no reason to assume that trauma may have played a role in the genesis of the headache. In my opinion, given the facts that have been presented to me, I would have assumed that the headaches were associated with caffeine withdrawal and the fever. As such I would not have thought that further investigation of the headache was indicated. 569 In a report of 7 July 1999, which was given after Professor Morgan had been supplied with a copy of Dr Vinen's report, Professor Morgan said:- "Dr John Vinen has been asked a number of questions but the premise of what he has to say relies on the assumption that Mr Spasovic's intracerebral haemorrhage arose as a result of trauma. In my original report I thought a traumatic origin to the intracerebral haemorrhage was unlikely and I have no reason to change my mind from this. Firstly, an alternative cause for the intracerebral haemorrhage was suggested by the pathology ie. That an arteriovenous malformation was present. Secondly, the intracerebral haemorrhage was deep. The tearing of blood vessels from deceleration (falling approximately 2.5 meters but not striking the head) can indeed occur – the blood vessels can tear but the blood vessels are torn where they connect to the cranium. This is a relative change ie. The brain moves relative to the overlying skull. This can tear vessels but they are vessels on the surface of the brain and tend to be associated with subdural haematomas rather than intracerebral haematomas". 570 In a report of 9 March 2001 referring to Professor Brew's report and Professor Brew's opinion that there should have been a neurological examination of the plaintiff, Professor Morgan said:- "Regarding the issue as to whether the patient should be formally examined neurologically, I am not entirely sure what this would entail, whether this means that she should be examined by a neurologist or have recorded what were her neurological findings. Irrespective, it would seem likely, given the absence of the Accident and Emergency room, subsequent doctors and nursing notes and also observation by the family that there was no abnormality at this time. The patient was complaining of the headache but I cannot find any evidence suggesting that another abnormality may have been present that may have been detected by a neurosurgeon or a neurologist". 571 In oral evidence in chief Professor Morgan said that he would not be critical of the treatment the plaintiff had received at the Adventist Hospital "as long as there was no neurologic deficit" and that there would have been nothing subtle about any neurological deficit. If the plaintiff had been attempting to use crutches (as he was), any neurological deficit would have been even more apparent. 572 In cross-examination Professor Morgan's credit was attacked on the grounds that he was accredited to the Adventist Hospital and that he had not referred in his reports to the expert witness code. However, the code had not been in force when Professor Morgan made his first report. 573 In cross-examination Professor Morgan was asked whether it would change his opinion that the plaintiff had said to nurses "the caffeine's not helping" (with the headache) but I have not made any finding that the plaintiff did say that. Nor have I found that the plaintiff was crying with pain from the headache, as Professor Morgan was asked to assume at one stage in the cross-examination. 574 Professor Morgan accepted that something more should have been done, if there was a constantly severe headache lasting some time. 575 Professor Morgan accepted that the PCA could reduce the experienced severity of a headache but he said the position was complicated because the PCA could actually cause a headache as well. 576 A headache different from any headache the plaintiff had previously had might cause concern, "if it was associated with a sudden onset" but not as much concern if it was of more gradual onset. 577 Professor Morgan said that an occipitoparietal headache causes concern but before doing any neurological examination he would ask the patient questions about the nature of the headache. 578 The following question and answer occurred at transcript p1299 line 35-40:- "Q. Any change of the patient's position affects the headache and the recording is 'position affects plus'? A. I'm not entirely sure how that fits in with any pattern of headache that's of concern, but certainly it would justify exploring. I mean, if the headaches are severe it justifies exploring". 579 Professor Morgan said that the factor of the headaches varying with position suggested to him "that it was a musculoskeletal problem with the occipito-cervical junction more than a problem with the brain" – it would not suggest to him a possible bleeding in the brain. 580 Professor Morgan accepted that an examination for any stiffness of the neck could help to delineate the nature of any problem. 581 Professor Morgan accepted that symptoms such as manifestations of restlessness, complaints of dizziness and light-headedness would be factors which would cause concern but were more likely related to other problems rather than brain problems, in the absence of focal neurology. 582 The following questions and answers occurred at transcript p1301 lines 51 to 1302 line 16:- "Q. I want you to take into account all those other features that I have mentioned to you already and then we add to that, in the scenario we are looking at, that the patient who is complaining of the headache has had it for some time after they had fallen from some 2.5 metres in bare feet on to their feet, and the headache had come on some reasonably short time after that, say within a few hours, or is noticed within a few hours? A. It was the same nature, that is occipito-parietal? Q. Yes, all those types of things? A. And variable? Q. Yes, and they have the restlessness, dizziness, fidgetiness, all those sorts of things? A. From the headache point, that would seem to be related to the axial loading of landing on the feet and am I to assume that the head was not struck and there was no loss of consciousness at the time? Q. Yes. A. I would be fairly – my number one hypothesis there would be some sort of cervico-occipital problem causing that pain". At transcript p1303 lines 36 – 45 the following questions and answers occurred:- "Q. The headache in this case has remained for nearly three days, never gone away, fluctuated, very variable as I said, would the length of time cause you concern? A. Well, if it had gone within four or five days, I would be fairly comfortable with that. Q. You wouldn't be concerned that it had been around then, in the scenario I have given you, for some three days? A. No". 583 The following question and answer occurred at transcript p1303 line 51 to 1304 line 1:- "Q. And does the fact that you have come to that view that there is no AVM, influence you about how you see the treatment should have been while he was in the Sydney Adventist Hospital? A. Not really. The pathology, the AVM, if it was an AVM certainly doesn't cause trouble before it bleeds and the concern really, and the problem is really the intracerebral haemorrhage. Now, that can come from a number of sources, AVM is one". THE EXPERT WITNESSES GENERALLY 584 I have already stated my conclusions that I should give little weight to the evidence of Dr Thomson and that I should give less weight to the evidence of Dr Vinen than to the evidence of the other expert witnesses. 585 I have taken into account that counsel for the plaintiffs did not have the opportunity to cross-examine Professor Besser (or Dr McDonald or Dr Stephen). 586 Of the principal remaining expert witnesses Professor Brew, Professor Brew and Professor Lance and Dr Terenty and Professor Morgan I consider that all the witnesses were well qualified and were endeavouring in their evidence to assist the Court. I do not consider that such connection as Dr Terenty and Professor Morgan had had with the Adventist Hospital was likely to have influenced their evidence. I note that all of these witnesses were eminent neurologists or neurosurgeons and were accustomed to dealing with patients with serious conditions rather than patients with unremarkable headaches. 587 I do not consider that I should find that I should generally accept the evidence of any one or more of these witnesses to the exclusion of the other witnesses. 588 Insofar as expert witnesses for the plaintiffs expressed opinions based on facts which I have found not to have been established, that weakens the basis of their opinions. For example, Professor Brew's initial opinions were based on assumptions that the plaintiff's headache had lasted several days and had been of increasing severity. The plaintiff's expert witnesses did express opinions on bases which were limited to facts which I have found have been established. In some of these opinions the plaintiff's expert witnesses, in my opinion, made some concessions favourable to the defendants. DETERMINATION OF WHETHER THE DEFENDANTS WERE NEGLIGENT The Hospital 589 On the findings of fact I have made, there was no failure by the Hospital's nurses to take reasonable care in observing the plaintiff or in making notes of their observations of the plaintiff in the Hospital's medical records. 590 On the findings of fact I have made, the Hospital was not negligent in discharging the plaintiff on the morning of Saturday 20 January 1996. On the morning of Saturday 20 January 1996 the plaintiff was not exhibiting at the Hospital the florid symptoms described by Aleksandar Spasovic in his evidence. I have found that the plaintiff was presenting at the Hospital, as described in the evidence of Dr Brooks and Sandra Hunt. The actual decision that the plaintiff should be discharged was made by Dr Brooks. 591 On the findings of fact I have made, I do not consider that the Hospital was negligent in discharging the plaintiff on the morning of Saturday 20 January 1996, without advising him that the headache he had had in the Hospital might possibly have had a sinister cause and that, if the headache returned, he should seek urgent medical attention. 592 It is common for patients in hospital to have headaches and a great majority of these headaches have quite benign causes. The plaintiff's headache had gone by 11 o'clock on the morning of the previous day and, I am satisfied, had not returned. On the Friday afternoon the plaintiff had successfully mobilised on crutches, a task which would have revealed any right sided weakness, if it had been present. I have found that on the Friday afternoon and evening the plaintiff did not make any complaint of having a headache to anyone. On the Friday night the plaintiff refused analgesia, when it was offered to him. The plaintiff slept well on the Friday night. On the Saturday morning he looked well and said that he felt like a "new man". The plaintiff did not display any neurological symptoms. He was eager to leave the Hospital and go home. There was nothing significant in his being given to take home the amount of Aspirin which he had already purchased and which belonged to him. 593 In these circumstances I do not consider it was negligent not to advise the plaintiff that, if the headache returned, he should seek urgent medical attention. I consider that the expert opinion evidence that such advice should have been given was influenced by the witness's knowledge of what had in fact happened to the plaintiff later on the Saturday. Dr Cutter 594 On the findings of fact I have made I do not consider that on 18 January 1996 Dr Cutter failed to exercise reasonable care in assessing, advising and treating the plaintiff and, in particular, in not forming an opinion that there might be a sinister intracranial cause of the plaintiff's headache such as to require the carrying out of further investigation. My reasons for reaching this conclusion include the following. 595 It is common for patients in hospital to have headaches and the great majority of such headaches have quite benign causes. 596 The plaintiff gave a history of having had a fall. However, it was a fall of no more than 2-3 metres. The plaintiff had not hit his head in the fall. The plaintiff had not suffered any loss of consciousness from the fall. At the Hospital on the evening of Tuesday 16 January the plaintiff did not make any complaint of having a headache and did not display any neurological symptoms. 597 Some of the expert witnesses, such as Professor Lance and Dr Vinen, attached importance to the fall on the basis that it should have alerted Dr Cutter to the possibility that the plaintiff had suffered an intracranial haemorrhage as a result of a deceleration type injury. However, Professor Dorsch, while he thought it was "possible" that the intracranial haemorrhage was linked to the fall, thought that any such link would have been indirect, by the fall causing pain and stress and an increase in blood pressure. Dr Terenty in her report considered it unlikely that the fall itself would have caused the AVM to bleed. Professor Morgan in his report of 7 July 1999 considered that, if blood vessels were torn in a fall, they would be on the surface of the brain and would be associated with a subdural rather than an intracranial haematoma. I do not consider that Dr Cutter should have suspected that the plaintiff's fall might have caused an intracranial haemorrhage as a result of a deceleration type injury. 598 The plaintiff told Dr Cutter that he was uncertain when the headache started but that, on reflection, he thought the headache had started after the accident. I am satisfied that the headache was of gradual, and not of sudden, onset. It was not a "thunder clap" headache. 599 Dr Cutter wrote in the Hospital notes that the plaintiff complained of having had a persistent headache for "about" forty-eight hours. In fact, if Dr Cutter saw the plaintiff late on the morning of Thursday 18 January 1996, as I find he did, only about forty hours had elapsed since the accident and only about twenty-four hours since the first reference to a headache in the Hospital notes (at 10.25 on 17 January). I am satisfied from inter alia the evidence of Mrs Spasovic in her first statement and Mrs Avramovic that the plaintiff was not suffering from a headache on the night of 16 January. It is clear that the headache had not lasted "several" days. 600 Dr Cutter recorded in the Hospital notes that the plaintiff reported that the headache was "variable in severity – mostly mild". In his first statement Dr Cutter said that the plaintiff told him that the headache was bad "at times". During the consultation the plaintiff appeared well and was dismissive of his complaints and joked with Dr Cutter about having coffee prescribed for him by a doctor. The plaintiff reported that at the time of the consultation the headache was "very mild". I have taken into account that the plaintiff was self-administering morphine by the PCA as a means of pain relief and that this may to some extent have reduced the degree of severity of the headache as experienced by the plaintiff. However, in the nursing notes made at 1445 summarising the events of the whole shift the plaintiff was recorded as using the PCA only "minimally". The plaintiff was quite lucid during his conversation with Dr Cutter. The headache was not a headache of continuous or of increasing severity or a headache severe enough to make the plaintiff cry or to render the plaintiff unable to know what to do. 601 As recorded in the Hospital notes, Dr Cutter ascertained that the plaintiff's vision was not affected and that there was no photophobia, nausea or vomiting, which, if present, could have been indications of a more serious cause of the headache. 602 I have found that Dr Cutter did carry out a test for neck stiffness and found that there was no neck stiffness. There was no complaint of neck stiffness. If there had been any neck stiffness, it would be likely to have become evident to the plaintiff and to have prompted a complaint. 603 The headache was recorded by Dr Cutter as being "occipito-parietal", that is partly in the lower back of the head. However, it was also in the sides of the head as well as at the back of the head and it was equal on both sides and not unilateral and there were no focal neurological symptoms. The plaintiff did not have any difficulty in speaking. 604 I have accepted Dr Cutter's explanation of the entry "position affects +" In his statement Dr Cutter said that he did not consider this was significant but in cross-examination he accepted that it was significant. When Dr Cutter's explanation of the entry was given to Professor Dorsch, Professor Dorsch said that he did not think it was a sign of any significance. In his evidence in chief Professor Brew said that, interpreting the entry as meaning that position affected the headache to a mild degree, the entry would indicate either raised intracranial pressure or sinus disease, and the latter would be unlikely. However, when in cross-examination Dr Cutter's explanation for the entry was given to Professor Brew, Professor Brew said that the entry would not be significant. Professor Lance considered that if the headache was worse on movement, even with only a slight variation of position, there was a possibility of an intracranial problem. He took this matter into account in expressing his opinions. 605 I accept that restlessness in a patient in hospital could be a sign of cerebral irritation. However, it could be due to many other, quite benign, causes. In the case of Mr Spasovic it could quite reasonably be attributed to his impatience at being in a hospital and especially the Adventist Hospital. 606 The plaintiff reported to Dr Cutter that he had on average one headache per month at home, so that having a headache was not a novel experience for the plaintiff. The plaintiff did report to Dr Cutter that the headaches he had had at home were "different from this". There were a number of likely explanations for the plaintiff having a different sort of headache in the Hospital from the headaches he had had at home. He was in a unfamiliar environment, he had undergone surgery and had had a general anaesthetic and drugs administered to him, he was suffering pain from his feet, he was being deprived of his usual food, coffee, alcohol and cigarettes and he was impatient and frustrated at being in the Hospital. According to the history taken on his admission to the Hospital he was accustomed to smoking fifteen cigarettes a day and drinking alcohol more than three times a week. 607 There are a number of reasonably likely benign explanations for the plaintiff's headache to some of which I have already referred. Another was that the plaintiff had taken in little fluid post-operatively. I have accepted Dr Cutter's evidence, corroborated by the note he made, that the plaintiff told Dr Cutter that he normally drank a lot of coffee and was missing his coffee while he was in the Hospital. 608 Dr Cutter was on duty for a single twenty-four hour shift as the sole CMO in a three hundred bed hospital. I do not consider that Dr Cutter acted unreasonably in relying on his expectation that the nursing staff would contact him, if they considered that he should further review the plaintiff. Dr Cutter was aware that the plaintiff would be seen by Dr Brooks before the plaintiff would be discharged from the Hospital, so that there would be an opportunity for a further medical review of the plaintiff. 609 In fact, according to the nursing note made at 2.45 on the afternoon of 18 January, there was clearly an improvement in the plaintiff's condition after Dr Cutter had seen him and the plaintiff had been treated in accordance with Dr Cutter's prescriptions. If any further neurological testing of the plaintiff of the kind advocated by Professor Brew had occurred on 18 January, it is improbable that it would have revealed any neurological deficit. 610 The actual sequence of matters and events which the plaintiff alleges occurred was quite extraordinary, including that a person admitted to hospital as suffering lacerations to his feet had an unusual cerebral condition an AVM deep in his brain, that while the person was in hospital there was a small sentinel bleed from the AVM which was not accompanied by many of the usual characteristics of an intracranial haemorrhage and that the sentinel bleed was rapidly followed by a major haemorrhage. It is, of course, true that, at least theoretically, there could have been some other sinister cause of the plaintiff's headache. 611 Substantial concessions were made in cross-examination by the plaintiff's expert medical witnesses. At transcript p284 line 50-p287 line 48 Professor Dorsch, on assumptions which closely correspond to the facts I have found, said that he would not be critical of the care that was provided to the plaintiff on 18 January 1996. 612 Professor Brew's principal report was partly based on assumptions he was asked to make, which I have found not to have been established, including that the headache was "a persistent headache of increasing severity spanning several days" and that the plaintiff had told his wife that the headache was severe. Even so, the opinion expressed in Professor Brew's report was that Dr Cutter's diagnosis of a tension headache would seem reasonable but might not be justified, if no neurological examination was performed. In cross-examination Professor Brew said at transcript p532 lines 7-27 that Dr Cutter had acted reasonably, provided there had been follow-up by another medical review and provided there were regular neurological observations of the plaintiff by the nursing staff, asking him questions, checking the pupils of his eyes and checking his limb strength. However, at transcript p538 lines 1-43 Professor Brew said that the sort of neurological observations he considered should have been carried out probably would not have revealed anything. Professor Morgan said in his report of 9 March 2001 that he could not find any evidence suggesting that another abnormality (apart from the headache) might have been present that would have been detected by a neurosurgical or neurological examination. 613 Professor Lance's reports were partly based on assumptions he was asked to make, which I have found not to have been established, including that on the evening of 19 January the plaintiff had a headache which was severe enough to make him cry. At transcript p504 line 10 to p507 line 3 Professor Lance on assumptions which closely correspond to the facts I have found said that Dr Cutter had acted reasonably on 18 January. See also transcript at 509 lines 28-42 and at p575 line 27 – p577 line 4 where Professor Lance agreed that, on the assumptions he was asked to make, it would have been reasonable for Dr Cutter not to have ordered a CT scan. At transcript p587 line 50 – p588 line 7 Professor Lance said that the headache would have been mild enough not to have caused Dr Cutter concern. The headache, on the facts I have found, satisfied most at least of Professor Lance's own criteria of a tension headache. Dr Brooks 614 On the findings I have made I do not consider that on 19 January 1996 Dr Brooks failed to exercise reasonable care in assessing, advising and treating the plaintiff. Some of the reasons I have already given for not finding Dr Cutter negligent also apply to Dr Brooks. However, there are a number of special considerations applying to Dr Brooks. 615 Dr Brooks was, of course, an orthopaedic surgeon and not a neurologist or a general practitioner. However, the plaintiff was his patient and, notwithstanding the evidence of Professor Lance and Dr Stephen, I do not consider that Dr Brooks was absolved from responsibility for the assessment and treatment of the plaintiff's headache by the circumstance that he was an orthopaedic surgeon. If Dr Brooks did not feel appropriately qualified to assess and treat the plaintiff's headache, he could have advised that the CMO on duty on 19 January or a neurologist should be asked to review the plaintiff. 616 Dr Brooks had seen the plaintiff each morning during his stay in the Hospital, including the morning of 18 January, and the plaintiff had not made any complaint to Dr Brooks of having a headache. I consider that Dr Brooks could reasonably have thought that, if the plaintiff had not made any complaint when he had had the opportunity of complaining, the headache was not a major issue for the plaintiff. 617 On 19 January Dr Brooks did not make a full assessment of the plaintiff's headache. However, Dr Brooks was aware that there was no history of the plaintiff hitting his head in the fall and the plaintiff was not exhibiting any neurological symptoms. I am satisfied that if the plaintiff had been manifesting any neurological symptoms, that would have been apparent to Dr Brooks, without Dr Brooks having to conduct a neurological examination. I consider that Dr Brooks acted reasonably in placing some reliance on Dr Cutter's assessment as recorded in the Hospital notes, even thought the plaintiff's headache had continued. 618 Dr Brooks, unlike the plaintiff's medical experts including Professor Dorsch and Professor Lance, was very familiar with the use of Patient Controlled Analgesia and its side effects. He knew that light-headedness was a very common side effect of PCA and that headache, although less common, still sometimes occurred as a side effect of PCA. Dr Brooks' evidence about headaches being a side effect of PCA was supported by the evidence of the experienced nurses Beall and Hunt. It was also supported by the evidence of Professor Besser that it is not uncommon for patients who are on a morphine infusion from PCA to suffer from headache and dizziness. Dr Brooks considered that the plaintiff's complaint of light-headedness was very suggestive of a side effect of the PCA. It is true that the plaintiff had first reported having a headache by 10.25 a m. on 17 January, that is before the operation and before any use of the PCA, but there were quite a number of likely benign explanations of the plaintiff having a headache on the morning of 17 January, including the pain from his feet, the disturbed night he had had, the drugs which had been administered and the fact that he had had nothing to eat for many hours. Professor Dorsch accepted that there would be nothing about the headache on the morning of 17 January, which should have aroused suspicion. 619 When Dr Brooks saw the plaintiff on the morning of 19 January, the headache had continued for a day longer than it had when Dr Cutter saw the plaintiff on the morning of 18 January. However, on any estimation, the headache had not lasted "several days", it had lasted much less than three days. 620 Dr Brooks decided to treat the headache "expectantly". Dr Brooks knew that the plaintiff would not be discharged from hospital for at least another day and that he would be seeing the plaintiff again before he was discharged from the Hospital. Because of the opinion he had formed on the basis of his past experience of PCA, that the headache might be related to the PCA, he decided to have the PCA taken down and see if that led to a resolution of the plaintiff's headache. As it transpired, by 11 o'clock that morning the headache had gone. According to the nursing note made at 12.30 the plaintiff was then resting comfortably. I have not accepted evidence that the headache continued after 11 o'clock on the morning of 19 January. 621 At transcript p284 line 50 – p287 line 48 Professor Dorsch agreed that it would be reasonable for Dr Brooks to wait and see whether removing the PCA would cause the headache and other symptoms such as dizziness to go away provided that Dr Brooks knew that headache and the other symptoms were known side effects of PCA of the type and dosage the plaintiff was administering to himself but later at transcript p329 lines 41-49 he said that he thought that the opinion he had previously expressed was more questionable, because the headache had started before the PCA. 622 At transcript p542 line 35 to p543 line 16 Professor Brew said that he would have liked Dr Brooks on 19 January to have adopted the same measures as he had recommended for Dr Cutter on 18 January, namely neurological observation and medical review. Professor Brew agreed that neurological observation, if it had been carried out, would probably not have revealed any deficit. Dr Brooks himself saw the plaintiff again on the morning of 20 January, as he knew that he would. 623 Professor Lance was not critical of Dr Brooks. In his opinion, an orthopaedic surgeon was not required to pursue a complaint of headache by a patient, unless it was obviously severe. 624 As regards whether Dr Brooks failed to exercise reasonable care on 20 January 1996 Professor Dorsch said at transcript p288 line 48-p289 line 23 that, on the assumptions he was asked to make about 20 January itself (which I find have been established) Dr Brooks' management of the plaintiff on 20 January would seem very reasonable but it was necessary also to take into account the history of "the whole few days". At transcript p340 Professor Dorsch said that it would have been sufficient for Dr Brooks to arrange for a neurosurgeon or neurologist to attend and examine the plaintiff. Professor Dorsch said that such a specialist would have asked whether the headache was of sudden onset. I have found that the headache was not of sudden onset. Professor Dorsch said that the specialist should also have asked whether there had been any photophobia, nausea or vomiting at or soon after the onset of the headache. I am satisfied from Dr Cutter's note and the nurses' notes that there had not been any nausea or vomiting while the plaintiff had been in the Hospital. Dr Cutter tested the plaintiff for photophobia, at a time which was not at or soon after the onset of the headache but was closer to 24 hours than 48 hours from the time of the onset of the headache. Professor Dorsch said that the specialist should also have asked whether the headache had started at the front of the head and whether there had been any other symptoms with it. It is the case that there is no evidence about where in the plaintiff's head the headache started. It is unclear what would be comprehended within Professor Dorsch's expression "any other symptoms". 625 I have already stated my conclusions that the evidence of the plaintiff's expert witnesses about how the plaintiff should have been treated and advised on 20 January was influenced by hindsight, by the witnesses' knowledge of what had happened to the plaintiff after he was discharged from the Hospital. 626 For reasons similar to the reasons I have given for not finding the Hospital negligent on 20 January 1996, I do not consider that on 20 January Dr Brooks failed to exercise reasonable care. Conclusions 627 As the first plaintiff has not succeeded in establishing that any of the defendants were negligent in assessing, advising or treating him, I should find a verdict for each of the defendants as against the first plaintiff. As the second plaintiff cannot succeed in her action against any defendant, unless it is established that that defendant was negligent in assessing, advising or treating her husband, I should find a verdict for each of the defendants as against the second plaintiff. 628 Having found verdicts in favour of all the defendants as against both plaintiffs on the ground that the plaintiffs have not succeeded in establishing that any of the defendants were negligent, it is strictly not necessary for me to consider the further steps in the first plaintiff's principal claim. I will, however, now proceed to consider, rather more summarily, those further steps. DID THE PLAINTIFF HAVE AN AVM, WAS THERE A SENTINEL BLEED FROM THE AVM AND WAS THE PLAINTIFF'S HEADACHE IN THE HOSPITAL CAUSED BY THE SENTINEL BLEED 629 The two questions of whether the plaintiff had had an AVM and whether, while he was in the Hospital, he had had a warning bleed from the AVM and the further question whether the headache he had had while in the Hospital was caused by a warning bleed from an AVM were frequently dealt with together in the evidence. 630 Professor Dorsch considered that the plaintiff had had an AVM and that while in Hospital he had had a warning bleed from the AVM and that the headache he had had while in Hospital had been caused by the warning bleed from the AVM. As II have already stated earlier in this judgment, in his report of 28 June 1999 Professor Dorsch said:- "1. The most likely cause of Mr Spasovic's headaches during his admission to the Sydney Adventist Hospital was a sentinel or warning intracranial haemorrhage due to his arteriovenous malformation or AVM, much less severe than the haemorrhage that precipitated his admission to Westmead Hospital on 20 January. Other common causes of headaches are migraine, which is very unlikely in view of the absence of a history of this condition, and tension headaches. The latter is also less likely in that tension headaches are not usually as severe and prolonged as this headache apparently was and that this headache was different from his usual headaches." 631 Professor Dorsch had formed an opinion that the plaintiff might have had an AVM at the time of operating on the plaintiff at Westmead Hospital on 20 January 1996. In his operating report he wrote as his operative diagnosis "L (left) post-frontal ICH (intracranial haemorrhage)? AVM". 632 Professor Dorsch sent a specimen consisting of a piece of blood clot he had extracted during the operation to the pathology service at Westmead Hospital. In his operating report Professor Dorsch wrote after the printed words "Specimen to Pathology" the words "Clot ? AVM". The pathologist Dr Bilous reported that "the overall appearance (of the specimen) would be consistent with an arteriovenous malformation" and Dr Bilous made the diagnosis of "arteriovenous malformation". 633 Dr M Rodriguez, a specialist neuropathologist, re-examined the original pathology material, on instructions from the plaintiff's solicitor. In paragraph 6.2.1 of his report of 21 November 2000 Dr Rodriguez said:- "The vessels noted in the sections examined are histologically unremarkable and do not show the changes commonly observed in arteriovenous malformations. It is possible that many of these vessels may represent leptomeningeal vessels. However, histologically normal vessels also occur in arteriovenous malformations". 634 In paragraph 7.1 of his report Dr Rodriguez said by way of summary:- "While the histological findings in isolation are not diagnostic of an arteriovenous malformation, on the balance of probabilities, and taking into account the clinical, radiological, operative, and histological, features in this case, the intracerebral haemorrhage is most likely due to rupture of a cryptic or occult vascular malformation". 635 In his report of 12 September 2000 Professor Brew expressed the opinion that it was likely that the plaintiff had sustained a premonitory haemorrhage prior to his discharge from the Hospital on 20 January 1996. 636 In his report of 27 May 1998 made to the Hospital's solicitors Professor Besser expressed the opinion that there was no indication in the Hospital's medical records that the plaintiff had suffered an intracranial haemorrhage during his stay at the Hospital. 637 On the other hand, Dr Terenty in her report of 17 November 1998 to the Hospital's solicitors said at pages 3 - 4 of the report:- "It is most likely that this man had an undiagnosed intracerebral arteriovenous malformation. This is a developmental anomaly in which a clump of abnormal and often fragile blood vessels exist, in this man's case, presumably within the depths of his dominant hemisphere or in the Sylvian fissure. Although there was a temporal connection between the onset of the symptoms and the jarring fall of 16 January 1996, it is highly unlikely that, in the absence of direct head trauma, the fall itself caused the arteriovenous malformation to bleed. However, for whatever reason, the headache present three days before the catastrophic bleed, was due to the premonitory bleeding as often happens before the major event. A further catastrophic bleed occurred on the afternoon of 20 January 1996". 638 In his report dated 23 February 1999 made to the solicitors for the second and third defendants Professor Morgan said at pages 1 - 2:- "Two possibilities clearly arise as to the potential cause for haemorrhage. These are: · An underlying small vessel arterial disease, such as lipohyalinosis which is often associated with hypertension. · An arteriovenous malformation. Whilst the pathology report concludes that the overall appearance would be consistent with an arteriovenous malformation, I believe that this needs to be more carefully dissected. The specimen that was thought to be arteriovenous malformation was as fact labelled as such in the operating room and the request form stated from the operating room 'Query secondary to arteriovenous malformation'. What was found was blood clot together with some small fragments of fibrovascular tissue containing several small arterioles with some hyalinized stromal tissue and collections of neutrophil. The conclusion was that the overall appearance would be consistent with an arteriovenous malformation and I believe that this conclusion was the question that was posed. However, the sample of tissue that this came from is clearly very small, measuring 13mm by 10mm by 8mm, the majority of which is likely to have been blood clot. Against the diagnosis of arteriovenous malformation is the fact that no abnormal veins were identified, it is unusual to be able to identify arterioles as such and an arteriovenous malformation, only a small amount of tissue was sent to pathology, and there was no evidence of arteriovenous malformation on either of the two angiograms, either before or after surgery. If this was an arteriovenous malformation it was clearly extremely small or in fact the underlying pathology was not an arteriovenous malformation at all. Given the absence of venous type tissue in the pathology and the absence of other characteristics of arteriovenous malformation, I believe that the histopathology is likely not to be conclusive. An alternate cause for the haemorrhage is a spontaneous haemorrhage in the vicinity of the basal ganglia. It fits well with the CT scan finding and the angiogram finding which demonstrated no evidence of underlying vascular abnormalities. The usual underlying pathology is either chronic hypertension or acute rises in blood pressure. Given the fact that Mr Spasovic's blood pressure was not abnormal on his presentation at the Sydney Adventist Hospital it is unlikely that he had uncontrolled chronic hypertension and if this were an explanation it would have to be an acute event". 639 The plaintiff's medical experts and especially Professor Dorsch and Professor Lance were cross-examined at considerable length on these issues. Some of the evidence given by these witnesses is collected in appendix 5 to counsel for the plaintiffs' written submissions, which I have carefully considered. 640 It was submitted by counsel for the second and third defendants that I should not find that the plaintiff had had an AVM or a sentinel bleed from an AVM. On the foundation of evidence given by one or other of the medical experts, various submissions were made. AVMs are uncommon. If the plaintiff had had an intracranial bleed from an AVM, one would have expected the plaintiff to have exhibited different signs and symptoms from those he did, including a headache which was more severe and unilateral and neurological signs such as right sided weakness. One would have expected the investigations which were carried out at the Westmead Hospital before the plaintiff was operated on to have revealed any AVM, if it existed, yet the report of the angiogram carried out before the operation stated that no evidence of an aneurysm or an AVM had been demonstrated. In the light of Professor Dorsch's evidence that he had attempted during the operation to remove all of what he suspected to be an AVM, one would have expected more definite pathological evidence of the existence of an AVM. It was submitted that in persons of Mr Spasovic's age the most common cause of an intracranial haemorrhage is a hypertensive small vessel haemorrhage. It was accepted that there was no evidence that Mr Spasovic suffered from chronic hypertension. However, it was postulated that Mr Spasovic, having returned home on 20 January, might have had an acute episode of hypertension. 641 The plaintiff's medical experts gave evidence that a small bleed from an AVM could have caused signs of the kind the plaintiff exhibited; the major haemorrhage which occurred on 20 January could have "obliterated" or "squashed" the AVM, so that it was not detected by the angiogram; although Professor Dorsch had attempted to remove all of what he believed to be an AVM, most of what he removed had "gone down the sucker" during the operation and had not been sent to pathology; and the pathologist's reports did provide some support for the opinion that the plaintiff had had an AVM. As regards the attempted explanation that the intracranial haemorrhage the plaintiff had suffered on 20 January 1996 was a hypertensive small vessel haemorrhage, there was no evidence that Mr Spasovic had suffered from chronic hypertension and the attempted explanation derived no support from the pathology reports. 642 Although it is by no means clear, I consider that I should find on the balance of probabilities that the plaintiff had an AVM and that while he was in the Hospital he had a sentinel bleed from the AVM, which caused the headache he had while he was in the Hospital. I consider that I should give weight to the opinion of Professor Dorsch, who, as an experienced neurosurgeon, performed the craniotomy on the plaintiff and actually observed the vessels which he believed constituted an AVM. It was an opinion formed by Professor Dorsch at the time he performed the operation. Professor Dorsch's opinion is lent some support by the pathological evidence. Professor Dorsch's opinion is supported by Dr Terenty, an expert retained by the first defendant. It would be remarkable, if it was merely a coincidence that the plaintiff had a headache for about two days while he was in the Hospital and then suffered a major cerebral haemorrhage on 20 January. The view that the plaintiff had an AVM and that while he was in the Hospital he had a sentinel bleed from the AVM which caused the headache he had while he was in the Hospital and that the major haemorrhage was a re-bleed from the AVM, provides an explanation of how the two matters, of the headache and the major haemorrhage, could be related. I consider, however, that I should find that the sentinel bleed was only a very small bleed, which caused a headache having only the features I have found the plaintiff's headache while in the Hospital to have had. IF A CT SCAN WITHOUT CONTRAST HAD BEEN CARRIED OUT, WOULD IT HAVE SHOWN THE SENTINEL BLEED 643 The expert medical witnesses offered a range of opinions on whether, if a CT scan had been carried out, it would have shown any sentinel bleed (or any AVM). However, the only radiologist who gave evidence on this issue was Dr Schnier. In his report of 23 February 2001 Dr Schnier, having been asked whether a CT scan would have revealed a small haemorrhage from an AVM, stated the opinion that "CT scanning is extremely sensitive to intracranial haemorrhage, even a tiny area of bleeding". 644 In his oral evidence Dr Schnier said that he had specialised in neuroradiology since 1988. He explained that what CT scans do and are very good at doing is showing subtle differences in density between various soft tissues and that tissues where there has been a haemorrhage have a greater density than adjacent tissues. "It is particularly easy to see if it's in the brain substance". 645 On the strength of Dr Schnier's evidence I consider that I should find on the balance of probabilities that, if a CT scan without contrast had been carried out, it would have shown a sentinel bleed from an AVM. IF THE SENTINEL BLEED HAD BEEN DISCOVERED WOULD THE PLAINTIFF HAVE BEEN ADVISED THAT HE HAD HAD A CEREBRAL HAEMORRHAGE AND THAT HE SHOULD REMAIN AT THE HOSPITAL IF THE PLAINTIFF HAD BEEN ADVISED TO REMAIN AT THE HOSPITAL WOULD HE HAVE TAKEN THIS ADVICE AND NOT HAVE LEFT THE HOSPITAL ON THE MORNING OF SATURDAY 20 JANUARY 1996 646 I consider that on the balance of probabilities the answer to both these questions is "yes". IF THE PLAINTIFFF HAD REMAINED AT THE HOSPITAL, WOULD HE HAVE BEEN KEPT UNDER CLOSE OBSERVATION, WOULD ANY DETERIORATION IN HIS CONDITION HAVE BEEN QUICKLY NOTICED AND WOULD HE HAVE BEEN OPERATED ON FOR THE REMOVAL OF THE MAJOR HAEMATOMA, EARLIER THAN HE WAS, BY ABOUT 4 OR 5 HOURS IF THE PLAINTIFF HAD BEEN OPERATED ON EARLIER, WOULD THE OUTCOME FOR THE PLAINTIFF HAVE BEEN BETTER THAN IT ACTUALLY HAS BEEN 647 These two questions can conveniently be dealt with together. 648 The first two parts of the first of these questions should clearly be answered in the affirmative. There was a great deal of evidence by expert medical witnesses about the remaining part of the first question, that is, whether the plaintiff would have been operated on earlier than he was, and the second question. I will now refer to some of this medical evidence, all of which I have taken into account. Evidence Professor Dorsch 649 In the letter of 12 May 1999 from the solicitors then acting for the plaintiffs Professor Dorsch was asked the following questions, to which in his report of 28 June 1999 he gave the following answers:- "Q6. If the investigations revealed a cerebral haemorrhage, what would have been the appropriate treatment regime to implement? A. Following the diagnosis of an intracranial haemorrhage, the management that necessarily follows includes cerebral angiography, which would most likely have revealed the presence of a small AVM (no AVM was seen on the angiogram done at Westmead Hospital after his admission there, but this is recognised to be a common problem when there has been severe bleeding and a large intracerebral haematoma is present, as the pressure from the haematoma compresses the vessels of the malformation to make it more difficult or impossible to detect; that would not have been the case on the 18th January after a smaller haemorrhage). If an AVM was demonstrated, the normal procedure would then be to do a craniotomy and excise the vascular malformation. Q7. Had the treatment regime been instituted at that time, on the balance of probabilities, what difference (if any) would have been made to the ultimate outcome? A. It is less certain what difference would have been made to the ultimate outcome had the above been done on the 18th January. While haemorrhage from a cerebral aneurysm is generally treated as a neurosurgical emergency, and once an aneurysm is demonstrated appropriate surgery is done usually on the same day, this is not necessarily the case with an AVM. The reason for this is that the risk of recurrent haemorrhage is on average much less in the first few days with an AVM than it is with an aneurysm. It is likely that the timing of surgery in Mr Spasovic's case would have depended on other factors such as the speed of his transfer to a hospital with the specialised unit necessary, and what other operations, either emergency or routine, had been planned for the rest of that week. However, if the diagnosis had been made at that time, and even if surgery was not planned until say the next week, Mr Spasovic would have been kept in hospital and at bed rest until the time of the surgery. On the balance of probabilities, the second haemorrhage would have been therefore less likely to occur on the 20th January, since he would not have been home with the excitement and tension of an important day of the year…" 650 In oral evidence in chief Professor Dorsch gave the following evidence:- Transcript p264 line 37 – p265 line 37 "Q. Assuming that the AVM then is detected and you've done the arteriogram, what would the next step be? A. The next step would be possibly to operate and excise the AVM, depending on its location, or if that was felt not to be the best option, to do some other treatment such as radiosurgery where the focus irradiation is used to try and obliterate the malformation and at least initially during those periods while that was going on, the patient would have been kept more or less at rest. Q. And was radiosurgery something which would have been available, I don't mean at the Sydney Adventist Hospital but in Sydney hospitals to treat an AVM of this type? A. Yes, it was. I think it came in the mid '90s. Q. The next thing is this, you mentioned surgical procedure itself depending upon where the AVM was. In this case, taking into account whatever memory you have of it, and perhaps now more reliably the CT scans where you've had a chance to see where the clip is, are you able to indicate whether that would have been an option in the period before the major haemorrhage? A. It would have been an option but against that in general is that with AVMs, in contrast to aneurysms, the surgery is not usually done so immediately. Q. When you say not usually done so immediately, can you give me an indication of how long one might wait? A. One might wait until the next convenient operating list, even if it was next week or even more than one week later. Q. Would the position of this particular AVM be considered deep by neurosurgeons? A. Certainly on the deep side, moderately deep, yes. Q. Are you able to indicate whether that would mean that if surgery was carried out, there would be likely to be some cerebral damage caused in any event? A. It is quite a possibility that surgery could have caused damage, yes. Q. How would that damage, insofar as you can tell us, compare with the damage which in fact Mr Spasovic suffered? A. One would certainly hope that it would be considerably less in that his damage has been due to the very large blood clot and surgery carried out under the right conditions would be less likely to disrupt the brain to nearly that extent. Q. Well now, the next thing I wanted to deal with is supposing surgery was not carried out before the major haemorrhage, were there things that could be done to treat the AVM or make it less likely that it would bleed in the period between finding it was there and the time when surgery would be carried out? A. I think that bed rest would certainly have made it less likely to bleed again in a few days after the initial haemorrhage, yes". Transcript p266 line 33 - 57 "Q. …Assuming that he remains in hospital during the Saturday afternoon and evening and these things are observed at those times, what is the position about surgery being carried out earlier than it was in fact carried out by you at Westmead at about 11 p m.? A. I think in this case that surgery could well have been carried out earlier, particularly if the facilities were there at the hospital he was in. Q. When you say could well have, are you able to say whether or on the probabilities it would have? A. Almost certainly it would have. Q. And if it had been carried out earlier, would the plaintiff have suffered the same damage that he suffered, or something less? A. Almost certainly it would have been less than the damage he did suffer. Q. Are you able to say in what way it might have been less? The specific things that might have been less? A. I suspect most likely it would have been in his speech disturbance. If he still had the haemorrhage deep in the basal ganglia, that would have probably caused the right sided weakness to be much the same". 651 Professor Dorsch expressed the opinion in his oral evidence in chief that the extent to which the plaintiff's speech would have been saved would have been "probably medium". 652 Professor Dorsch was subjected to a lengthy cross-examination, all of which I have taken into account. 653 Professor Dorsch said in cross-examination that a haemorrhage of the type he believed had occurred while the plaintiff was in the Hospital (a sentinel haemorrhage) would usually occur without warning and without the patient being involved in anything other than his usual activity. 654 Professor Dorsch agreed in cross-examination that, if there is a bleed from an AVM, then the risk of a re-bleed is only about 1 per cent per month in the year after the first bleed and he agreed that, in the event of a re-bleed, only about 50 per cent of re-bleeds result in a bad outcome, that is an outcome other than transient clinical symptoms. 655 The following questions and answers occurred in the cross-examination:- Transcript p350 line 41 to 351 line 6 "Q. If you were to assume that an intracranial haemorrhage was diagnosed when Mr Spasovic was at the Sydney Adventist Hospital of the type that you have opined, small one but no focal neurological signs, can I suggest to you that the preferred course of treatment would be radiation therapy? A. Depending on the location of the AVM, yes. Q. Well, assume the AVM was located near the basal ganglia and sylvian fissure as we've been over before, would a deep AVM of that type and a small haemorrhage, wouldn't you agree that a reasonable course, a reasonable preferred course would be radiation therapy rather than surgery? A. I think I would prefer to leave that to an AVM expert. Q. Would you agree with this proposition, even if an operation was being considered, assuming there was a small haemorrhage of the type that you opined, that you would wait for at least two weeks, probably a bit more, before undertaking the operation so as to ensure that the small bleed resolved or the swelling resolved, is that right? A. This I understand is usually the case with AVMs. Depending partly on how the scan looks and how the patient is". 656 In cross-examination Professor Dorsch repeated the view that, if the plaintiff had been kept in the Hospital, the risk of a re-bleed would have been less but he agreed that purely mental stress would have been less for a patient at home than in the Hospital. 657 Professor Dorsch said in cross-examination that with radiation therapy it took between two to three years before any AVM was cured and he added that any radiation therapy for the plaintiff would not even have been started before the major haemorrhage occurred. 658 Professor Dorsch gave the following evidence in cross-examination about whether the plaintiff would have been operated on by 20 January 1996 (in advance of the major haematoma occurring):- Transcript 357 line 26 - 34 "Q. It's almost certain, isn't it, given the need to allow the haematoma to at least partially resolve, that by the 20th of January this man wouldn't have been operated upon for an evacuation of the haematoma, that is by the 20th of January? A. That is right" 659 Professor Dorsch said that, if the plaintiff had remained in the Hospital and had had a re-bleed, the outcome for the plaintiff would have been different "because he would have been almost certainly operated on much earlier before 11 p m.". Professor Dorsch considered that there was every chance of a better outcome, the earlier you operate. 660 The following questions and answers occurred in cross-examination at transcript p359 line 30-42: "Q. And if I can put this to you, first I would suggest to you that the likelihood is, given that we know that he suffered this further, on your view, this further rebleed on the Saturday, the likelihood is had he remained in the hospital at the San, the rebleed would have occurred anyway? A. We can work on that assumption, yes. Q. And that is the likelihood, isn't it? It's the Saturday, he's only just gone home. Even if he remained in hospital, the probability is that he would have suffered a rebleed on your theory? A. It's probable, yes, I agree with that". 661 Professor Dorsch said that if a CT scan had been taken on Saturday 20 January, it would also have been necessary to take an angiogram, before operating. 662 The following questions and answers occurred in cross-examination:- Transcript p365 line 38 - 50 "Q. Do I understand correctly that the operation that you carried out, the craniotomy, that was an emergency operation? A. Yes. Q. And the purpose of it was to decompress the pressure caused by the large haematoma? A. Essentially, yes. Q. That is the type of operation that you would only carry out on a suspected AVM in this location in the event of there being first, a life threatening situation? A. Yes". 663 The following question and answer occurred in cross-examination:- Transcript p366 line 13 - 16 "Q. And a life threatening intracranial pressure in a lesion of this type is always going to cause right sided hemiparesis? A. With this location, yes". 664 Professor Dorsch gave evidence in cross-examination that one can have haemorrhages during sleep from AVMs, with no apparent increases or surges of blood pressure. 665 Professor Dorsch gave evidence that it was unlikely that the small bleed he considered had occurred had been caused by a deceleration injury in the fall. If there had been a deceleration or shearing type of injury resulting from the fall, one would have expected the shearing to have occurred on the outer casing of the brain. 666 In further evidence in chief Professor Dorsch was shown the Ambulance Report. The ambulance had arrived at the plaintiff's home at 5.57 on the afternoon of Saturday 20 January 1996. The ambulance report recorded "Pt apparently cerebrally irritated, writhing around, nil verbal or motor response from Pt. Pupils equal and reacting Pt appeared to have weakness to ® side". The following questions and answers occurred:- Transcript 843 line 15 - 25 "Q. …if he was operated on at the stage that he'd reached as set out in the ambulance report, would there have been a better outcome than if he was operated on later? A. Yes, at that stage in the ambulance report he was cerebrally irritated, writhing around, though still conscious enough to be doing that, even though he had no, nil verbal or motor response, but his pupils were equal and reacting, so at that stage the pressure was not devastatingly high. Very high, but not devastatingly so". 667 Professor Dorsch was also shown part of the Westmead Hospital notes recording the condition of the plaintiff at the time he was admitted to Westmead Hospital at about 7.05 on the evening of Saturday 20 January 1996 as being:- "Pt cerebrally irritated GCS (Glasgow Coma Scale) 7. Eyes responding to pain. Nil verbal response and withdrawing from pain. PEARTL (Pupils equal and reacting to light)". 668 The following questions and answers occurred Transcript p845 lines 1 - 25 "Q. If the patient was operated on then, would there have been a different outcome to being operated on later, when I say "operated" I mean for the craniotomy and the evacuation? A. Yes, I believe so. I believe that at all points once a haematoma of that size is present, an earlier operation is invariably better than a later one. Q. I will come back to this page in a minute, just while you said that, bearing in mind that this bleed was quite deep, is there any basis for waiting until the patient becomes - I will ask you about, completely unconscious before operating, in order to avoid side effects or adverse damage from the surgery itself? A. No, not at all. Q. Is there any basis for waiting until the patient becomes semi-conscious, and let me be more precise. Let us assume number (ix), or the conditions in exhibit 10, the assumptions on the 20 January, and in particular the stage at stage (ix)? (Document shown.) A. No. I think if he had been operated on earlier, even than at that stage, there is a very good chance that his outcome would have been better than even operating an hour after that stage". 669 In further cross-examination Professor Dorsch said that the purpose of the craniotomy he had performed was to gain access to the major haematoma, in order to evacuate it. 670 Professor Dorsch said that if the plaintiff had remained in the Hospital and if, as alleged in exhibit 10, at 12.30 the plaintiff had been complaining of a headache and sweating profusely, then a CT scan without contrast, if it had not already been done, would have been done, then a CT scan with contrast and/or an angiogram would have been done. 671 The following questions and answers occurred in the further cross-examination:- Transcript p858 line 39 "Q. And you have the symptoms listed in pars (i) to (viii) (of exhibit 10) slowly unfolding as indicated there? A. Yes. Q. As those signs unfold there would be the possibility, would there not, of the progression of neurological signs stopping before reaching (ix)? A. It is possible, but decisions in this situation would also depend on what a CT scan about that time showed and if it did show a 7-centimetre haematoma, then one would not wait to see if the symptoms were progressing or not". Transcript 858 line 52 "Q. Can I suggest to you that that might be so, if the putative AVM were more superficial, but one of the dilemmas that you face in making a decision as to whether or not to proceed to craniotomy in this case, with a deep seated AVM, is the damage that the surgery itself is likely to cause? A. Certainly this is the case if there is not a large haematoma. But in the situation where there is a large haematoma, as in this situation, then the haematoma becomes the overriding problem, rather than the AVM and in addition, one is aware, if one was aware beforehand that there was a deep AVM related to the haematoma, then one would also realise that by going through the haematoma cavity to get to the AVM, one would not cause any additional damage. Q. I think that you gave evidence about this beforehand, and please correct me if I'm wrong, the result of the operation that you propose should have been carried out earlier on, is almost definitely right sided hemiparesis of the type Mr Spasovic suffers from? A. Yes. Q. And you say that there would have been about half the impact upon the speech; is that right? A. That's my feeling yes. Q. And you can't be definite? A. No. Q. Precise about it? A. No. Q. It is doing the best that you can? A. Yes". 672 Professor Dorsch explained that it was not the operation itself, but the haematoma, which had caused the hemiparesis by reaching the basal ganglia and the fibre tracts, although the operation itself, without there having been a haematoma, could have caused the hemiparesis. 673 Professor Dorsch said that with a smaller haematoma it would have been necessary to balance the advantages and risks of surgery but in the case of the plaintiff's haematoma it was necessary to operate to save his life. 674 Professor Dorsch said in cross-examination that a surgeon might possibly wait until the patient was semi-conscious before operating, because of the risk of the operation causing damage and the chance of the intracranial bleeding resolving more quickly than had in fact occurred in the plaintiff's case, but one would be worried about doing that, would want to keep the patient under close observation and would be prepared to step in at a moment's notice. 675 Professor Dorsch then said it would have been reasonable for a surgeon to wait to 5 p m. before operating, when the plaintiff was scoring 7 on the Glasgow Coma Scale. 676 Professor Dorsch gave the following evidence:- Transcript 864 line 42 - 55 "Witness: If, say I saw Mr Spasovic at presumably at 4.30 when he had no, when he had focal signs, could not move his right arm and so on and if, say, a CT scan at that time only showed a 3 centimetre haemorrhage, but he was still fully conscious, as far as you could tell, then I would not have operated. As I say, I would have kept close observation and then at 5 p m. when he – presumably 5 p m. when he deteriorated to the GSC of 7, at that stage I would have asked for another CT scan, if it had been easily available and then, seeing the 7 centimetre haematoma, operated; or if, say, on the Saturday evening it was not readily available, I would have assumed expansion of the haematoma and gone straight to surgery with an hour". 677 Professor Dorsch gave evidence that he "would not have begun to proceed to craniotomy until the coma, as opposed to the headache". According to the history in the Ambulance Report the plaintiff had collapsed, that is had become comatosed, at some time after 5 o'clock. 678 At transcript p868 line 13 – 22 Professor Dorsch gave the following evidence:- "Q. However, whilst you waited to see whether or not a craniotomy was needed, I take it that having – in this hypothetical situation, you would be nearby on call? A. Yes. Q. And once the state of semi-consciousness occurred, assuming that he was in hospital when this happened, steps would be then taken to have the operation undertaken? A. Yes". 679 At transcript p868 line 40 – p869 line 29 the following questions and answers occurred:- "Q. In an emergency situation such as this, where the patient has lapsed into a state of semi-consciousness, can I suggest that steps of the type that were ultimately undertaken by the ambulance officer and officers at the hospital on admission, would be undertaken in terms of intubation and the administration of drugs so as to stabilise him? A. Yes. Q. At best, as we have been over beforehand, one would hope that in the hypothetical situation that you have envisaged as a possibility, that some of the CT scans and the like would have been undertaken beforehand? A. Yeah. Q. Nonetheless, in order for the operation to proceed, you would need to assemble an emergency neurosurgical team? A. Yes. Q. And given the resources that are available, that is something that takes some time, does it? A. Yes. Q. And can I suggest to you that a hospital in a situation such as this, where there is the prospect of having to undertake an emergency craniotomy, if events unfold to a degree where the patient becomes semi-conscious, that given the resources available and the like, the reasonable response time to set up an operating theatre so that the emergency craniotomy can be commenced, following the stabilisation of the patient and the like, is somewhere normally within the vicinity of 2 hours? A. Yes, I would say one to three hours, probably. Q. That's exactly the range I was going to suggest to you. So one to three hours is a reasonable time for an emergency craniotomy of the type that you envisaged, to be undertaken; is that right? A. Yes. Q. So can I suggest this to you: that we know here, if I have recalled correctly, that the anaesthesia for the purposes of this operation, was administered at, I think, 11 o'clock at night, is that right, anaesthetic at 23.00 hours and the operation began at 23.20? A. Right". 680 The cross-examination continued:- Transcript p869 line 41- "Q. Just to pick up the note in the ambulance records about the semi-consciousness occurring at 17.00? A. Yes. Q. Assuming that that is an accurate time when there was semi-consciousness and he was in hospital and the emergency craniotomy was undertaken of the type that you have contemplated, you would have, adding on the one to three hours, the operation being carried out somewhere between-- A. Six and 8 p m.? Q. Six and 8 p m.? A. Yes." 681 Professor Dorsch was cross-examined with respect to the progression of symptoms shown in exhibit 10, including that (par(vi)) at 4.30 p m. the plaintiff had no strength in his right hand and could not hold a cup, (vii) shortly afterwards the plaintiff rubbed his head with his left hand and said that his headache was bad, (viii) a short time later the plaintiff was more unsteady, disorientated and could not speak and (ix) he was carried to bed and was semi-conscious, he was rubbing his right arm with his left hand, his right leg was jerking and he had froth on his lips The following questions and answers occurred at transcript p870 line 41 – p871 line 16 "…..By the stage you come to embark upon the craniotomy, or contemplate that, you've got a significant amount of pressure within the brain that has caused the symptoms in paragraph (viii), namely the unsteadiness and the disorientation and the inability to speak. That's so, isn't it? A. Yes. Q. And superimposed on that, you have the pressure that then causes the semi-consciousness and more obvious right hemiparesis, consisting of, amongst other things, right leg jerking and the like? A. Yes. Q. And pressure to that degree causing those symptoms of difficulty with speaking, to say the least, right hemiparesis and semi-consciousness, that has a significant impact on the viability of brain cells, does it not? A. Yes. Q. And pressure to that degree certainly can cause a significant amount of death of brain cells? A. Yes. Q. Permanent problems? A. Yes. Q. And that would be, despite all of the steps taken at the hospital, in terms of intubation and the like, that would be damage that would be continuing for so long as it takes for the craniotomy to be undertaken? A. Yes, it is certainly time dependent". 682 Professor Dorsch accepted that there would have been pressure caused by the major haematoma such as to cause "a degree of death of those brain cells affecting speech" and that, pending the operation, there would have been a continuation of the death of brain cells governing speech. Because of the permanent death of brain cells, even if the operation had been carried out at 7 o'clock, there would have been a permanent disability in terms of the plaintiff's ability to speak, there would have been a significant problem with speech. The centres of the plaintiff's brain controlling speech would have been compromised by pressure from about 4.30 onwards. Even if the operation had been performed within half an hour of the plaintiff lapsing into semi-consciousness, the plaintiff would have sustained a significant problem with speech. 683 Professor Dorsch added "it is time dependent and that is why I think the extra four hours is vitally important… I think that all brain cells that are impacted by pressure, the sooner it is relieved the better". 684 At transcript p874 line 52 to p875 line 9 Professor Dorsch gave evidence about the two kinds of deficit the plaintiff had sustained and particularly his right sided weakness:- "Q. Well we've got the pressure affecting the centres of the brain that control right sided strength? A. Yeah. Q. And speech. They're the two? A. Well, I suspect the right sided strength was more from the haematoma in the basal ganglia area, not necessarily due to the pressure. Q. Right. We don't have to worry for this debate about the right sided hemiparesis, that's a given, that's there, anyway. A. Yes. Q. And could never be saved? A. On balance, no." 685 At transcript p876 line 20 - 877 line 13 the following questions and answers occurred:- "Q. Can I now gauge the extent to which it can help, on these assumptions? A. Oxygenation alone? Q. Oxygenation and the various other things that you say you would be undertaking? A. Mm-hm. Q. Pending craniotomy? A. This is where one cannot say with 100 per cent certainty whether it would have been 50 per cent better, 20 per cent better or 80 per cent better, no. Q. Can I suggest this, however: that once you have pressure to the extent that occurred here as demonstrated by these, unfolding symptoms as outlined in exhibit 10, you only have a fairly small window of opportunity to save the speech by undertaking the craniotomy; that's right, isn't it? A. That depends again on the severity of the effect of the pressure. And experimental studies, I think it was reported in 1980, have shown a whole spectrum of severity of lack of oxygen versus time, even after several hours, that cells will die within a few minutes if there is no oxygen supply, but can last for several hours, even after they have lost function, if there is sufficient oxygen supply. I'm sorry, but it is a whole spectrum of severity. There is no - and it wasn't until this sort of study was done that it was realised there was a whole spectrum of severity that once the cells have lost their function, the chance of recovery depends on both the severity and the duration of the lack of oxygen to those cells. Q. The severity and the duration of the lack of oxygen? A. Yes and the lack of oxygen is due either to insufficient oxygen in the blood, which is why one intubates the patient to make sure the blood is properly oxygenated, or to pressure decreasing the blood flow. Q. Is it not a fairly oft repeated maxim that craniotomies undertaken in a situation of this type, are for the purpose of saving lives, rather than achieving a better neurological outcome? A. That is the primary purpose, and a secondary purpose is to, one hopes, improve outcome. Q. The spectrum of outcomes to a significant degree relies upon the extent of the pressure that is applied to particular parts of the brain; is that right? A. The extent and duration". 686 Professor Dorsch said that in the present case there had been severe pressure to the part of the brain governing speech. However, that part of the plaintiff's brain was "not completely dead. He can talk". By the time the plaintiff was exhibiting the symptoms in paragraph (ix) of exhibit 10 he was probably being subjected to severe pressure. 687 At transcript p880 the following questions and answered occurred:- "WITNESS: Sorry, if it had been in - around 5 o'clock is when one would have decided to do the craniotomy, yes, yes. HIGGS: Q. That would take between one to three hours to set up? A. Yes, yes. Q. So the unfolding of events in that way, if you were to have the patient in a hospital, as opposed to at home, it is your view that there has been, by dint of the patient not being in hospital, a delay in the craniotomy commencing at 11 o'clock, as opposed to it having been undertaken somewhere between 6 and 8? A. Yes. Q. If, say, the operation was carried out at 7 o'clock? A. Yeah. Q. That's the-- A. The mean, yes. Q. Assuming that he was in hospital and those other things were undertaken? A. Yes, were all possible, yes. Q. Can we at least agree on this: that it is very difficult to express an opinion as to whether that delay of four hours would have made any significant difference to the ultimate outcome with respect to Mr Spasovic's speech? A. No, I definitely have the opinion that on balance, it would have, in that as it turned out, he was compromised by pressure or whatever, for six hours and may have been compromised by the same things for only two hours if he had been in hospital when it happened. Q. You said a little while ago, if I recall correctly, that an earlier operation, it is difficult to know whether he would have lost 25 per cent of his speech or 50 per cent of his speech or 80 per cent of his speech? A. Yes. Q. That exposes, does it, your reasoning as to the likelihood of a better outcome occurring, had he been operated on at, say, 7 o'clock as opposed to 11 o'clock as we have been over. Is that fair? A. I can't say whether the speech would have been any of those figures better, but I believe it would have been significantly better, yes. Q. And you've settled upon in your previous evidence, to "about 50 per cent", if I recall correctly as being the likely, doing the best that you can? A. Yes. Q. As to the extent to which the speech would have been saved?" 688 A little later in the cross-examination at transcript p881 lines 15 – 25 the following questions and answers occurred:- "Q. Given the figures that have been stated by you, 25 per cent, 50 per cent, 80 per cent, there is a significant degree of uncertainty about it. It is a difficult thing to call? A. It can't be called exactly, no. Q. And the basis for your opinion is your recall of the 1980 studies; is that right? A. That's part of the basis, but again in general principle the sooner something severe is relieved, the principle the sooner something severe is relieved, the better". 689 The following questions and answers occurred in relation to the study or studies Professor Dorsch had mentioned. (at transcript p881 line 47 – p882 line 14):- "Q. And you specifically referred to these 1980 studies? A. Yes. Q. And they are studies that you, if I recall correctly, describe in substance in this way: that the studies revealed the better opportunity of saving these types of brain cells, as opposed to the previous knowledge that was generally available? A. Yes, in general it was thought that once the cells had lost their function, that was that; but this study, or studies of this sort did show that it depends both on the severity of what is affecting the cells and the duration and that even after they have apparently lost their function, they can still recover their function. Q. Can you remember what the study was, where it was published? A. It was in the Journal of Neurosurgery. It was an experimental study on monkeys and I think it was with temporary occlusion of arteries to cause a stroke-like thing and then release of the occlusion, so that the oxygen supply was back. It was published by Morawetz and I think Jones, Richard Morawetz. Q. It was published in about 1980? A. In about 1980". 690 Professor Dorsch said that he had a copy of the article and that he would fax the article to the parties. He was not aware of any other relevant article. He relied on "the general principle that the sooner the better". Professor Brew 691 In the letter of 3 August 2000 from the plaintiffs' solicitors Professor Brew was asked the following question (question 8), to which in his report of 12 September 2000 he gave the following answer:- "Q8. If an appropriate neurological referral had been made at the right time do you think there would, on the balance of probabilities, have been a difference in outcome and if so what. A. It is very difficult to know if a different outcome would have been likely in the context of an earlier diagnosis. However, on the balance of probabilities, I think it would be reasonable to expect that a more favourable outcome may have been possible. I base this on the reasoning, firstly, that it is likely that imaging would have shown a degree of intracerebral haemorrhage and that in this context drugs that would be likely to increase the risk of haemorrhage would be avoided. Of particular note in this instance is that he would not be allowed to have aspirin. Secondly, he would have been very closely monitored especially in regard to his blood pressure. Any increase in blood pressure would have been detected early and treated appropriately. Thirdly, with more intensive monitoring a change in his clinical state would have been detected at an earlier stage and this would have prompted neurosurgical intervention. By and large, removal of an intracerebral haematoma is carried out only in the context of a deteriorating clinical condition". 692 As regards the reference to the taking of aspirin, I note that, although Dr Brooks wrote in his note "aspirin if he still has headaches later this a m.", the plaintiff did not in fact take any aspirin. 693 In his brief supplementary report of 20 April 2001 Professor Brew said:- "I wish to clarify my previous statement in response to issue 8 of my report dated 12th September. The statement should read: 'On the balance of probabilities, I think it would be reasonable to expect a better outcome'". 694 In oral evidence in chief Professor Brew gave the following evidence at transcript p413 line 21 to line 46:- "DONOVAN: Q. So assuming neurosurgery of the type required is available at the San, I got to the point of coming to when you thought such surgery would take place. A. Yes. It's my opinion that because of the neurological progression over a short time frame, neurosurgery, operative neurosurgical intervention would occur. I might add that in my capacity as a neurologist, I look after patients with headaches of all descriptions and I look after patients who have haemorrhages. It's a policy of the St Vincent's Hospital that patients who come in with haemorrhages are looked after by the neurologist in conjunction with the neurosurgeon. Neurosurgical intervention is a neurosurgical call but it's one made in conjunction with the neurologist. So I am experienced in the call for neurosurgical operative intervention. Q. You didn't actually give me a time frame when you thought that might take place in your opinion or a range of times if I'm trying to be too precise? A. Given the practical difficulties in arranging imaging and neurosurgical review and operative theatre availability, I would think that the late afternoon, maybe 5, something of that nature. Q. You mean for the surgery? A. Correct". 695 Professor Brew then gave evidence at transcript p414 that if the Adventist Hospital did not have facilities for carrying out this type of surgery, so that the plaintiff would have had to be taken by ambulance to the Westmead Hospital, then the difference in the time frame would have been perhaps somewhere between one and two hours. 696 Professor Brew then gave evidence at transcript p414 line 31 – p415 line 7 about whether, if there had been earlier surgery, there would have been a better outcome:- "Q. In terms of earlier surgery, what effect, if any, would that have on the extent of his neurological injuries, in particular the hemiplegia and the speech defects? A. I have to use guarded speech again, still. Precisely because the causation of the deficit is twofold. One, it's related to death of the relevant tissue. Second, pressure on that tissue causing deficits. If the predominant pathology is one of death of tissue, then there is no reversibility. Conversely, if the predominant pathology is one of pressure on the sensitive tissue, then there is reversibility. So in this case, I would think that it's more likely that pressure related deficits are playing a significant role. I cannot say that they are playing a dominant role but I think they are playing a significant role. Therefore, with appropriate surgical intervention and the release of the pressure, the deficits would be, early release would lead to better outcome. The longer there is pressure causing deficit, the more likely that pressure related deficit on the tissue leads to death of the tissue. Q. Have you got any way of telling us the degree of difference? A. Given that point (ix) (in exhibit 10), he goes to bed and is semi-conscious, that you can only have a disturbance in conscious state if you have pathology in both sides of the brain, or one side of the brain that is causing so much pressure that it then affects, called the - if you have pathology on one side of the brain, it can affect a conscious state by pressure on particular part of the brain deep inside the brain called the reticular activating system. So based on that reasoning, I think pressure is certainly, as things progressed, more a dominant pathology and therefore earlier intervention would have led to less deficit. Which I think would be significantly less". 697 In cross-examination Professor Brew disagreed that a decision to perform an emergency craniotomy would not have been made (if the plaintiff had remained in the Hospital), until the plaintiff was manifesting the symptoms in paragraph (ix) of exhibit 10, including semi-consciousness. Professor Brew gave evidence at transcript p551 line 7 – 16:- "A. …I would be astonished and astounded if there was conformity of view in surgical opinion that the only indication of intervention would be in the context of an unconscious patient, because by which time the patient is on death's door. My understanding is that neurosurgical intervention is strongly considered and most often done in the context of clinical deterioration and that can sometimes include disturbances in conscious state, but doesn't have to". 698 Professor Brew said that a decision whether to operate would be made in consultation with a neurologist such as himself; the ultimate decision whether to perform an emergency craniotomy would be made by the neurosurgeon but "persuasion to reach that ultimate decision is certainly in the neurologist's hands". Later in the cross-examination at p558 line 9 – 18 the following question and answer occurred:- "Q. …Well, if after you express the opinions that you do, as a neurologist, as to the subtle signs, if a neurosurgeon were then to come to the view, well, having taken that opinion into account, nonetheless because of the difficulty of the procedure and the risks involved he would prefer to wait until after the manifestation of symptoms as serious as those set out in paragraph (ix), that would be a neurosurgical decision that you would defer to, would it not? A. Correct." 699 As to how much better an outcome the plaintiff would have had from earlier surgery, the following question and answer occurred at transcript p558 line 48 – 52:- "Q. In terms of predicting the better outcome you've said less deficit, but significantly less, that's the best you can do, isn't it, you can't be any more precise than that? A. Sorry, I can't be". 700 In further cross-examination Professor Brew confirmed that his view that surgery would have taken place at about 5 o'clock was predicated on the surgery being done at the Adventist Hospital and, if the surgery could not have been done at the Adventist Hospital, the time of the surgery would have been moved forward "at least an hour, likely more". 701 Professor Brew said that although approximately four hours had elapsed between the plaintiff reaching the Westmead Hospital and the commencement of the surgery at the Westmead Hospital and he made no criticism of the plaintiff's management at the Westmead Hospital, there would have been less delay between the making of a decision to operate and the actual operation, if the plaintiff had remained at the Adventist Hospital, because certain procedures such as the taking of a CT scan would have been carried out earlier. Professor Lance 702 In the letter to Professor Lance of 19 March 1998 Professor Lance was asked the following questions (questions 5 and 6), to which in his report of 7 April 1998 he gave the following answers:- "Q5. When should surgery have been scheduled? A. On the demonstration of a bleeding arteriovenous malformation neurosurgical consultation would have been obtained and early operation scheduled. Q6. What probable material difference would the earlier surgery have made to the outcome? A. The outcome of surgery would depend on the situation and extent of the arteriovenous malformation. If this was superficially situated it might have been possible to have removed it without causing any neurological deficit. If it was situated more deeply its removal could have led to the same outcome as the final haemorrhage from this lesion". 703 In oral evidence in chief, when Professor Lance was asked to comment further on the answer he had given to question 6, he said at transcript 466 lines 50 – 54 "A. I think that's a question that should be put to a neurosurgeon who would have much greater knowledge of the method of approach and how the lesion could be excised without causing the damage that was eventually caused by the haemorrhage." Professor Besser 704 In his report of 27 May 1998 Professor Besser stated the opinion that, if the plaintiff had had a serious intracranial haemorrhage whilst in the Sydney Adventist Hospital, then surgery would have been indicated. 705 In his later report of 14 May 1999, which was given after Professor Besser had seen Professor Lance's initial report, Professor Besser stated:- "The haemorrhage was very deep in the brain affecting the basal ganglia and internal capsule. Once this deep massive haemorrhage had occurred I do not believe that surgery would have altered ultimate neurological outcome and the purpose of surgery is essentially to preserve life rather than improve the long term neurological outcome". Dr Terenty 706 In her report of 17 November 1998 Dr Terenty said:- "The other question that should be addressed is, would anything different have been done if this lesion had been diagnosed, for example, earlier than it was? …It was located either deep within his dominant hemisphere or in the Sylvian fissure. It would certainly not have been an easy surgical proposition and in fact it may have been inoperative (inoperable) without a great risk of rendering the patient hemiplegic and dysphasic. One would have waited until such a time as progression occurred. That progression occurred extremely quickly…" 707 In her second report of 16 June 1999 Dr Terenty said:- "…If there was a premonitory bleed it would have been deep within the basal ganglia and would have been in operable. One would have just helplessly stood by and watched him have a more extensive haemorrhage. The evacuation of the haemorrhage was to reduce the pressure that had built up inside his head. As Professor Morgan and Dr Besser state, neurosurgical intervention prior to his massive haemorrhage would not have been appropriate and while surgery was a life saving procedure it did not otherwise alter the neurological outcome". 708 In oral evidence in chief Dr Terenty was asked about parts of the oral evidence give by Professor Dorsch and Professor Brew, the transcripts of which she had read, in which Professor Dorsch and Professor Brew had expressed the opinion that an earlier operation could have brought about a better outcome and, in particular, an opinion on the part of Professor Dorsch that, if there had been an earlier operation, the speech deficit would not have been as severe. Dr Terenty said that she disagreed with that opinion "because the dysphasia appeared quite early, he was dysphasic at the same time as he had his right sided weakness". Dr Terenty gave the following evidence at transcript p1349 line 53 – p1350 line 6:- "A. Well, according to the list of events that occurred after he was discharged from hospital, the evolution of the weakness down one side and the loss of speech occurred pretty well concurrently and before he became semi-comatose and therefore requiring surgery. He already had speech impairment. In other words, his speech centre was affected, as you might expect, by the size of the haemorrhage. He basically had, by that stage, damage quite extensively to his dominant cerebral hemisphere. I do not know on what basis Dr Dorsch or Dr Brew could have suggested that one was less likely to improve, or more likely to improve than the other". 709 Apart from giving as a reason for her opinion that the loss of speech and the hemiparesis had occurred concurrently and early, Dr Terenty said at transcript p1350 line 29 – line 37:- "…All of the evidence from a really huge number of studies now has shown that removing the clot doesn't improve the outcome. It saves life but doesn't improve the outcome from the point of view of disability. In other words, if you remove the clot, the patient is more likely to live, because you've taken the pressure off the vital structures in the brain stem. But the damage that has occurred to the brain does not get any better". 710 Dr Terenty said at transcript p1350 line 43 – 48 that a most important study had been published since she had retired, "which showed that patients undergoing ultra early operations, in other words operations within four hours from the onset of symptoms, actually did worse than the patients who were operated on up to 12 hours after the onset of symptoms". 711 Dr Terenty had been shown and had read an article entitled "Thresholds of Focal Cerebral Ischemia in Awake Monkeys". It was not disputed that this was the article that Professor Dorsch had referred to in his evidence. Dr Terenty said of this article at transcript p1351 line 6 - 18 "A. That article has nothing to do with this pathology. That article was about cutting off the blood supply by putting a ligature around a blood vessel. That produces neither a blood clot nor a space occupying lesion, the way a haemorrhage does. It doesn't produce pressure; it is of no relevance to this. This situation, in which you've got a combination of factors, direct tissue trauma is due simply to the force of the blood being delivered into brain tissue which is very soft; secondly the toxic effects of the breakdown of blood; and thirdly, the increased pressure inside the head because of an extra space-taking mass". 712 At transcript p1351 line 26 – 43 the following questions and answers occurred:- "Q. If you assume that the operation could have been carried out at some time between 6 p m. and 8 p m., in your view, would that have made any difference to the ultimate outcome? A. The overwhelming weight of medical evidence, and this is a question that has been addressed – people have been trying to address it for many years – is that in terms of residual disability, the only thing that predicts how severely disabled you will be is the size of the haemorrhage. Q. So in terms of an earlier operation making a difference -- A. I do not believe it would. There is no evidence to suggest that it would and no evidence to suggest that if you can wait longer to allow the clotting mechanisms to stabilise, the more likely you are to have a better outcome". 713 In cross-examination Dr Terenty was asked about evidence she had given in chief that all the evidence from a "huge" number of studies had shown that removing a blood clot did not improve outcome. In cross-examination Dr Terenty qualified this evidence by saying that there had been some small studies which had raised the possibility of a better outcome. 714 Dr Terenty cited two studies in support of her opinion that removal of a clot had no effect on outcome in terms of disability. These two studies were:- 715 (i) An article published in the American medical journal "Stroke" entitled "Guidelines for the Management of Spontaneous Intracranial Hemorrhage (which became exhibit 29). 716 (ii) An article published in the American medical journal "Neurology" by Morgenstern and others, entitled "Re-bleeding leads to poor outcome in Ultra-early Craniotomy for Intracranial Hemorrhage" (which became exhibit 30). 717 Dr Terenty said that of these two articles she considered the Morgenstern article the more important. Dr Terenty provided copies of these articles to counsel for the plaintiffs. 718 A number of passages in the text Principles of Neurosurgery (second ed) by Grossman and Loftus were put to Dr Terenty. Dr Terenty said that a passage in Grossman and Loftus at page 391 was "the state of knowledge in the early nineties" and "on the face of it, this sounds, the quicker you get it out, the better off you will be". Dr Terenty said that she would have once agreed with that view but did not now agree with that view, because of the two later articles and especially the Morgenstern article. 719 The following passage in Grossman and Loftus was put to Dr Terenty:- Transcript p1378 line 23 "When medical treatment alone is ineffective, haematoma removal may be needed to preserve the patient's life and increase the chances of neurologic recovery" 720 Dr Terenty said "that was the case then, but it was subsequently shown that if you do that it doesn't work". 721 Dr Terenty asserted that the two articles she had referred to "did not show any benefit to surgical intervention in terms of neurological deficit". 722 Dr Terenty was cross-examined about parts of the Guidelines article (exhibit 29), including the first paragraph on p905 of "Stroke", which reads:- "Intracerebral hemorrhage (ICH) is more than twice as common as subarachnoid hemorrhage (SAH) and is much more likely to result in death or major disability than cerebral infarction or SAH. Although >315 randomized clinical therapeutic trials for acute ischemic stroke and 78 trials for SAH were complete or ongoing (oral communication, Cochrane Collaboration, May 16, 1995) as of 1995, only the results of 4 small medical trials (513 total patients) of ICH had been published. In these small randomised studies, neither surgical nor medical treatment has been shown conclusively to benefit patients with ICH". 723 Dr Terenty was also cross-examined about the last paragraph on p913 of "Stroke", which reads: "In the Future The efficacy of any medical or surgical treatment has yet to be proved in a large randomised trial. We hypothesize that ultra-early treatment will be critical for patients with ICH, as it is for patients with ischemic stroke who are candidates for thrombolytic therapy. Animal studies are needed to define the therapeutic window for surgical and medical treatment of ICH. Innovative surgical techniques to remove the hemorrhage quickly with minimal associated brain injury or re-bleeding must be pursued. We hope that future large, multi-center, randomised studies will demonstrate that very early clot evacuation coupled with aggressive medical treatment of ICH may improve the dismal outcome of most patients with ICH after present therapies". 724 Dr Terenty accepted in her evidence that the authors of the Guidelines article were stating that the question was open, whether early surgery would improve the outcome of patients with intracerebral haemorrhage, and that the authors hoped that future studies would establish a better outcome from surgery. She said that none of the studies referred to in the Guidelines article had answered the question "if you got at the patient quicker, would it have made a difference?" She asserted that "the paper by Morgenstern answered the question of whether earlier surgery was of any benefit". 725 Dr Terenty was then cross-examined about the Morgenstern article. I have already referred to the title of the Morgenstern article "Re-bleeding leads to poor Outcome in Ultra-early Craniotomy for Intracerebral Hemorrhage". The abstract of the article at the commencement of the article reads as follows:- "Article abstract – Background: A modest benefit was previously demonstrated for hematoma evacuation within 12 hours of intracerebral hemorrhage onset. Perhaps surgery within 4 hours would further improve outcome. Methods: Adult patients with spontaneous supratentorial intracerebral hemorrhage were prospectively enrolled. Craniotomy and clot evacuation were commenced within 4 hours of symptom onset in all cases. Mortality and functional outcome were assessed at 6 months. This group of patients was compared with patients treated within 12 hours of symptom onset using the same surgical and medical protocols. Results: The study was stopped after a planned interim analysis of 11 patients in the 4 hour surgery arm. Median time to surgery was 180 minutes; median hematoma volume was 40 mL; median baseline Stroke Scale score was 19 and Glasgow Coma Scale score was 12. Six month mortality was 36% and median Barthel score was 75 in survivors. Postoperative rebleeding occurred in four patients, three of whom died. A relationship between postoperative rebleeding and mortality was apparent (p=0.03). Rebleeding occurred in 40% of the patients treated within 4 hours, compared with 12% of the patients treated within 12 hours (p=0.11). There was a clear correlation between improved outcome and smaller postsurgical hematoma volume (p=0.04). Conclusions: Surgical hematoma evacuation within 4 hours of symptom onset is complicated by rebleeding, indicating difficulty with hemostasis. Maximum removal of blood remains a predictor of good outcome." 726 Ultra-early craniotomy is craniotomy performed within four hours of the onset of symptoms. 727 Dr Terenty asserted in her evidence that the Morgenstern article "does give information that will affect the timing of surgery after four hours" (at transcript p1386 line 53 – 54). 728 Dr Terenty said that the critical information from the whole study was in a paragraph on p 1296 of "Neurology", which reads:- "Reableeding was more common in patients who underwent surgery within 4 hours (40%) compared with 12 hours (12%) (rate ratio, 3.4; approximate 95% CI, 0.75 to 15.30. One of the 4 hour surgery patients died soon after surgery and no follow-up neuroimaging was performed. The 40% rebleeding rate was therefore calculated based on the four cases of rebleeding among 10 patients with follow-up neuroimaging. The median time to surgery in the patients who underwent surgery within 12 hours was 8.3 hours. There was a relationship between rebleeding and mortality in the 4-hour surgery group (p=0.030). Four patients had rebleeding three of whom died. Those who bled had a median time to surgery of 172 minutes, whereas those who did not bleed had a median time to surgery of 182 minutes (p=0.61)". 729 In the present proceedings it was not, of course, the plaintiff's case that he should have had ultra-early surgery but that there would have been a better outcome for him, if he had been operated on at about 7 o'clock, which would have been more than four hours after the onset of symptoms and which would have been about four hours before the time of the actual operation. 730 Dr Terenty propounded a linear relationship argument from the paragraph on p1296 of "Neurology" which I have quoted. She said at transcript p1389 line 30 – 36:- A. "Those who bled had a median time to surgery of 172 minutes, whereas those who did not bleed had a median time to surgery of 182 minutes, indicating that your risks of surgery was a linear relationship, from which it would be reasonable to infer that at four hours your risks would be greater than at eight hours, or at five hours your risks would be greater than at eight hours". 731 Dr Terenty was cross-examined about the part of the article abstract which stated that a modest benefit had previously been demonstrated for haematoma evacuation within twelve hours of intracerebral haemorrhage onset. 732 Dr Terenty was cross-examined about a part of the article on p1296 of "Neurology" reading:- "…It seems that the critical window for rebleeding is the first few hours after symptom onset, because rebleeding was rare in our patients who underwent surgery within 12 hours. This was confirmed by investigators who demonstrated that the most critical time for rebleeding is the first few hours following initial ICH". 733 However, Dr Terenty repeated that "the evidence suggests a linear relationship between a risk of bleeding and the time of surgery and that the earlier you operate the more likely you are to cause re-bleeding". 734 At transcript p1400 lines 19 –22 Dr Terenty said:- "…what the authors are saying is that early surgery, the earlier the surgery, the more likely you are to re-bleed. I don't think they say anything more than that". 735 Dr Terenty was also cross-examined about a passage on p1297 of "Neurology":- "Although the patients treated surgically within 4 and 12 hours did not have better outcome than medically treated patients, patients with the smallest postoperative hemorrhage volumes had the best outcomes. This finding is similar to data from studies that found that volume is the best predictor of ICH outcome and argues that removal of hemorrhage may ultimately be beneficial. The best strategy to remove the hemorrhage is uncertain. Six randomised, controlled trials (including a total of 414 patients) have examined surgical benefit for ICH. No clear benefit was established for surgery in any of the studies, or in meta-analyses". 736 In re-examination Dr Terenty referred to parts of the Guidelines article referring to the lack of proven benefit from surgery to remove intracranial haemorrhage. Professor Morgan 737 In his reports Professor Morgan expressed the opinion that there was no AVM and that no haemorrhage had occurred while the plaintiff was in the Hospital. Professor Morgan did not in his reports deal with the question of whether, if there was an AVM and if there had been earlier surgery, the plaintiff would have had a better outcome. 738 In oral evidence in chief Professor Morgan was shown exhibit 10 and the following questions and answers then occurred at transcript p1265 line 54 to p1267 line 12:- "HIGGS: Q. By reference to that unfolding progression of symptoms, are you able to say when there would be an indication for a neurosurgeon to arrange for a craniotomy? A. Yes. The indications for surgery would be after someone was semi-conscious or unconscious. Q. And why is that-- HIS HONOUR: Q. What paragraph is that, what numbered paragraph is that, doctor, that you can see there? A. Paragraph (ix), your Honour. The reason for that is that there is basically two things evolving when you have a intracerebral haemorrhage. You've got the local damage to the brain caused by the haematoma, tearing through the fibre tracts, the white matter fibre tracts and you've got the secondary response to the build-up in blood in that location which causes the brain to shift. The damage caused by the blood tearing through the brain is not something that can be reversed by taking the blood clot out; but the brain shift, which is the life threatening component is - it can be reversed by taking the blood clot out, excepting the neurologic deficit that would follow. The source of the unconsciousness is a reflection of that brain shift, so that what we see with the development of unconsciousness is a distortion of the brain stem. It's separating the brain stem from its blood supply and the sequence of events is very, very characteristic. You initially become unconscious, then you develop pupillary abnormalities, then you get motor changes, so that you develop fairly characteristic responses in your response to pain. In the first instance we see evidence of the tearing effect of the blood through the white matter tract, and probably that starts very characteristically when there is evidence of particularly (viii), where he is unsteady, disorientated, could not speak, presumably he was weak at that time and was dysphasic, so that's evidence of the local tearing of the fibre tracts, if you like, from the haematoma. But the consciousness was - he was obviously disoriented from the aphasia, but it doesn't say that he wasn't alert. He wasn't semi-conscious until paragraph (ix) or item (ix). HIGGS: Q. If you go to paragraph (vi), 4.30, no strength in right hand, does that have any connection with the process you've just described of the haemorrhage tearing through the brain matter? A. Yes, it does. Q. Is there any contrary indication in undertaking an emergency craniotomy before the symptoms had reached the stage here outlined in paragraph (ix)? A. Well, the contrary indications are that, you know, it's unlikely - well, it's very unlikely to reverse any neurologic deficit, so that if the idea of the surgery was to reverse neurologic deficit, that doesn't happen. We certainly know from - there was a good hypothesis put forward quite a few years ago that ultra early surgery might be of benefit, or very early surgery. But unfortunately, the early clinical trials that we have done to look at that, in fact, showed that there was a worse outcome, because there was an increased incidence of post-operative intracerebral haemorrhage after doing early surgery. So the benefits of early surgery are not there for reversing focal neurologic deficits. It is a different matter, however, if we try and save life, if there is brain shift. 739 Professor Morgan gave evidence about the article "Thresholds of focal cerebral ischemia in awake monkeys" in volume 54 of the Journal of Neurosurgery. This was the article about which Professor Dorsch and Dr Terenty also gave evidence. Professor Morgan was asked whether, taking into account the article, he had an opinion about whether an earlier operation would have produced a better neurological outcome. Professor Morgan replied at transcript p1268 line 26 –31 as follows:- "A. I have an opinion that there would not likely be a better outcome. The article itself is basically an ischemic model of a blocked artery and doesn't really reflect or have much to do with intracerebral haemorrhages. The mechanisms are very different of how damage is caused…." 740 Professor Morgan said that the article dealt with "experiments carried out on monkeys where one of the main arteries in the brain had been ligated in such a way that blood flow could be stopped and resumed at will… and that the suture was tightened and released at various intervals to see whether certain symptoms could be reversed". 741 Professor Morgan said at transcript p1269 line 6 – 24, with respect to Professor Dorsch's evidence about earlier surgery producing a better outcome:- "A. ..Professor Dorsch was alluding to the hope that by reversing the blood clot, taking the mass away, that some neurones on the periphery of the haematoma that might have been idling, but non-functioning, may well have returned to normal. I think that was kind of a theory that was popular in the seventies and eighties, but it really is not the fundamental mechanism of intracerebral haemorrhage or its reversal and certainly hasn't been borne out in any clinical trials to be of any effect. In fact, some trials suggests it is even harmful to the neurologic deficit by removing it very early. The reason for that is the pathological mechanism is not an ischemia, is not a lack of blood flow and the pathological mechanism is that the blood from the source of the haemorrhage goes through the white matter tracts of the brain and separates the white matter tracts and this disrupts the supporting cells, the glial cells". 742 Professor Morgan was examined about Professor Brew's evidence. Professor Morgan agreed that there were two types of potential damage, that is damage by direct tearing and damage caused by pressure and that, in so far as damage was caused by pressure, it was reversible. However, he said at transcript p1270 line 44 – 50:- "A. …the craniotomy, taking out a haematoma to reverse the pressure effect, which I referred to earlier as the brain shift effect, has its benefits by saving life. It doesn't actually reverse neurologic deficits, apart from those associated with consciousness and life itself. It can certainly save life, but in terms of reversing focal neurologic deficit, it doesn't work". 743 Professor Morgan maintained that there is "no local pressure build-up" 744 The following evidence was given by Professor Morgan at transcript p1271 line 16 –22:- "Q. Taking into account the ways in which you say the brain is divided up into compartments, taking that into account, does relief of the pressure earlier on in the event of a craniotomy having been carried out earlier, does that save any degree of hemiparesis or dysphasia of the type that Mr Spasovic suffers from? A. No, it doesn't". 745 Professor Morgan added at transcript p1271 line 27 – 32:- "A. '''the problem that we are looking at, with the focal neurologic deficits, that is the hemiparesis and dysphasia, are caused by the tearing of the haematoma, the toxic effect of the blood that's escaped in the extracellular space; it is not related to any focal pressure problems". 746 At transcript p1272 lines 3 –18 the following questions and answers occurred:- "Q. You understand, don't you, that Professor Dorsch is of the view that, had a craniotomy been carried out earlier on, that in all likelihood, there still would have remained the dense right hemiparesis that Mr Spasovic suffers from; do you agree with that? A. I agree with that. Q. You also understand that Professor Dorsch's view is that, had the craniotomy been carried out earlier on, say at about between 6 and 8 o'clock, take the median, 7 o'clock, that there would have been some improvement in the speech deficit that Mr Spasovic suffers from. Do you agree with that? A. No, I don't agree with that. I believe the speech deficit is created on the same basis that the hemiparesis was created". 747 As regards any studies which had been carried out, Professor Morgan said at transcript p1274 line 17 – 20:- "There has been no study, to my knowledge, that has supported – that has shown that early surgery is of benefit. There are only studies showing that there is either no benefit, or it has been harmful". 748 It seems clear that the study Professor Morgan was referring to as showing that early surgery was harmful was the Morgenstern study. 749 With regard to the time at which an operation would be performed, Professor Morgan said at transcript p1275 line 40 – 50:- "A. If there was an AVM there, it really does significantly increase the complexity of the surgery and you can certainly get into a great deal of difficulty operating on an AVM through the cortex and have a fatal outcome; it is a much more difficult operation. One would be less likely to want to rush into operating on a known AVM haemorrhage, than on a haemorrhage without an AVM and you know, many of these sort of cases have been transferred to us, even in the semi-conscious condition. So that we could do the surgery and I think that the AVM surgeon would be very reluctant to go in early." 750 Professor Morgan has taken a particular interest in AVM's and has treated over five hundred AVM's. 751 The following questions and answers occurred at transcript p1276 line 5 – 51:- "Q. Professor, assume that Mr Spasovic didn't go home, he was in hospital. You understand? A. Correct. Q. And that the symptoms unfolded in the way that he has described in exhibit 10? A. Yes. Q. And assume that a previous CT scan and other investigations had revealed that beforehand he had had a small bleed and an AVM, a small AVM was diagnosed? A. Okay. Q. Near the internal capsule, as described in those CT scans that were taken of Mr Spasovic. You understand? A. Yes. Q. Do I understand your evidence to be that you wouldn't consider embarking upon a craniotomy until those symptoms referred to in paragraph (ix) appeared? A. Correct. Q. And that thereafter there would be this period of between one to three hours that you would expect, ideally, for the craniotomy to be carried out? A. Correct. Q. Do I also understand that the reason for the craniotomy is to save life? A. Yes. Q. It is not to achieve a better neurological outcome? A. Correct. Q. Does it follow from that and from your previous evidence that in your opinion, the operation having been commenced at about 11, 11.20, as opposed to earlier on, made no difference to Mr Spasovic's neurological outcome? A. Correct. Q. And that the reason for the attempt to have the craniotomy carried out within this one to three hour time frame, is because of a concern about the patient dying, as opposed to the operation being carried out for a better neurological outcome? A. That's correct. 752 As to the likely treatment for the plaintiff, if the patient had been diagnosed at the Adventist Hospital as having an AVM, the following questions and answers occurred at transcript p1279 line 54 – 1280 line 26:- "Q. And in circumstances of this case, with the putative lesion near the internal capsule and basal ganglia, is the likely recommendation of treatment, had he had an AVM when at the San, with a small bleed, would that have been treatment by way of focal irradiation? A. Yes, it is a very difficult spot surgically to get to. By definition it would have feeders or feeding arterial supply from branches of the middle cerebral artery, called lenticulo-striate arteries. And these are – AVMs are particularly difficult to deal with surgically and they have a high incidence of post-operative neurologic deficit in studies that we have looked at and reported. You would estimate, you would have to estimate that the morbidity of operating on such an AVM to be of the order of about 20 per cent. Focal irradiation, on the other hand, for small AVMs is quite successful. The risks over – the risks of radiation necrosis are around about 5 per cent and the main concern with focus irradiation is that it doesn't obliterate the AVM straight away. It takes, on average, two or three years to have its effect and during that two or three years, the natural history doesn't change. So that you would estimate that there's the five per cent risk of radiation necrosis by focal irradiation, plus the natural history of the bleed, which would come to probably somewhere of the order of another 5 per cent mortality. So you would be looking at a total morbidity mortality a little lower by focal irradiation". 753 Professor Morgan gave evidence that the chances of an AVM re-bleeding were about 1 per cent per month. If focal irradiation had been selected as the mode of treatment, it would not have avoided the re-bleed. No surgery would have been undertaken before the re-bleed occurred. 754 Professor Morgan gave evidence that at the relevant time there were no neurological facilities at the Adventist Hospital. 755 As to whether the plaintiff might have avoided the re-bleed, if he had remained in the Hospital, the following questions and answers occurred at transcript p1281 line 40 – 53:- "Q. And assuming that you were aware on this hypothesis that Mr Spasovic had an AVM and a small bleed from it whilst at the San, does the fact of him having gone home on the Saturday, increase the chances of him having a re-bleed? A. No, I don't think so. Q. In all likelihood, even if he were to have remained in hospital, is that likely to have avoided a re-bleed, assuming that he had an AVM and a small bleed whilst at the San? A. No, I think that – I wouldn't know what the circumstances were. We don't know what causes the second haemorrhage from AVMs". 756 In cross-examination Professor Morgan said that he did not accept that the cells in the plaintiff's brain associated with speech which had died, had died because of lack of oxygen. 757 During the cross-examination of Professor Morgan counsel for the plaintiffs submitted, correctly, that a number of matters about which Professor Morgan had given oral evidence in chief on the issue of whether earlier surgery would have produced a better outcome, had not been raised in cross-examination of the plaintiffs' medical experts, including Professor Morgan's evidence about the article in the Journal of Neurosurgery relied on by Professor Dorsch and the mechanisms by which intracranial haemorrhages cause damage to the brain. 758 Professor Morgan was cross-examined about the evidence he had given in chief about pressure within the brain from a haemorrhage. The following questions and answers occurred between transcript p1304 line 22 and 1304 line 50:- "Q. I take it you would accept, however, that there is, with a large or moderate sized haemorrhage, increase in pressure that builds up in the brain? A. Correct. Q. The pressure, as long as it remains, can put pressure on the blood vessels and reduce the blood supply to different parts of the brain? A. You are looking at very high pressures to be able to do that. Q. I don't say block off completely, but reduce it? A. You are still looking at high pressures and that can happen, once you have enough pressure, that can reduce blood flow to the whole brain. The pressure, though, is distributed in those situations equally across the brain, so it affects all places at once. Q. Of course, you would have high pressure when you have a brain shift? A. Correct. Q. Is it the high pressure that causes the brain shift? A. Yes, it is. Q. And that's because the bleed pushes, if I can use that lay sort of language, pushes the brain away from where the bleed is, away from the midline? A. Correct". … Transcript p1304 line 56 – p1305 line 1:- Q. Now, you don't accept, I take it, that there can be more pressure in those parts of the brain closer to the bleed? A. No, the pressure is distributed". … Transcript p1305 line 9 line 19:- Q. …in whichever one of those compartments the pressure originates, the pressure is distributed equally throughout that whole compartment at any one time. But because there's a boundary, the pressure in an adjacent compartment will have a slightly lower pressure; the pressure won't be fully transmitted. So the source of the brain shift is this difference in pressures between compartments, but within the compartment themselves the pressure is uniform…" … 759 At transcript p1307 line 25 – 37 Professor Morgan accepted that raised intracranial pressure can cause ischemia "by the brain shift primarily and by affecting the cerebral perfusion pressure", if the difference between the blood pressure and the intracranial pressure were high enough. 760 Professor Morgan said in cross-examination that he was not aware of any studies showing that early surgery (that is surgery within six to seven hours of the onset of symptoms) could reverse neurological deficits. 761 In cross-examination a number of passages in Grossman and Loftus Principles of Neurosurgery were put to Professor Morgan but Professor Morgan did not agree with them. 762 Professor Morgan was shown exhibit 10 and asked, if the progression of symptoms in exhibit 10 was accepted as being accurate, when the first onset of symptoms had occurred. Professor Morgan said that the onset of symptoms had occurred by 4.30 and presumably some time before that and probably at some time between 12.30 and 2 o'clock. Determination 763 After this survey of some of the medical evidence, all of which I have taken into account, I will now proceed to consider the two questions:- Step 8 in the plaintiff's principal case – whether, if the plaintiff had remained at the Hospital he would have been operated on for removal of the major haematoma earlier than he was, by about four or five hours Step 9 in the plaintiff's principal case – whether, if the plaintiff had been operated on earlier, the outcome for the plaintiff would have been better than it actually has been As to 8:- 764 In his report of 28 June 1999 Professor Dorsch, in part of his answer to question 6, said that, if an AVM had been demonstrated on 18 January 1996, the normal procedure would have been to do a craniotomy to excise the AVM. However, even in this report Professor Dorsch said in his answer to question 7 that there could be reasons why there might not have been immediate surgery, even if an AVM had been diagnosed. 765 In his oral evidence Professor Dorsch said that in general surgery on AVMs is not done immediately, the position of the plaintiff's AVM was "on the deep side", that it was possible that any surgery would itself have caused damage and that an alternative method of treatment of any AVM would have been by focal irradiation. 766 In cross-examination Professor Dorsch said that the risk of a re-bleed from an AVM was low and that, even if there was a re-bleed from an AVM, only about 50 per cent of re-bleeds from AVMs result in an outcome other than transient clinical symptoms. 767 When asked in cross-examination whether treatment by focal irradiation would have been a preferred course, Professor Dorsch said he would leave that to an AVM expert. He said that any treatment by focal irradiation would not have begun by the time the plaintiff began to suffer from the major haemorrhage on Saturday 20 January 1996. 768 Professor Dorsch then agreed with the cross-examiner that, if the plaintiff had been diagnosed as having an AVM, the plaintiff would not have been operated on in advance of the major haemorrhage occurring on 20 January 1996. 769 As to when on 20 January 1996 a decision would have been made to perform an emergency craniotomy on the plaintiff, Professor Dorsch initially said that a surgeon would not wait until the plaintiff was unconscious, that is a surgeon would not wait until the plaintiff had reached the stage described in paragraph (ix) of exhibit 10. However, Professor Dorsch then said that a surgeon might wait until a patient was semi-conscious, because of the risk of an operation itself causing damage and the chance of the intracranial bleeding resolving more quickly than had in fact occurred in the plaintiff's case. Ultimately, Professor Dorsch said that it would have been reasonable for a surgeon to wait until 5 p m. before operating and that he would not have decided to perform a craniotomy ("would not have begun to proceed to craniotomy"), until the plaintiff had become semi-conscious, which according to exhibit 10 and the ambulance report had occurred at about 5 p m. 770 Professor Dorsch said that if a decision had been made to perform a craniotomy at about 5 o'clock, then it would have taken between one to three hours to carry out the necessary preparations for the operation, so that the operation itself would have commenced at some time between 6 o'clock and 8 o'clock. 771 Professor Brew gave evidence that, although he is a neurologist and not a neurosurgeon, he had had experience in participating in deciding whether there should be neurosurgical intervention. In his opinion, the decision to operate would have been made in the context of a deteriorating neurological progression exhibited by the plaintiff. In Professor Brew's opinion, a decision to operate would have been made before the plaintiff's condition reached the stage described in paragraph (ix) of exhibit 10. However, Professor Brew accepted that, if a neurosurgeon came to the view that he, the neurosurgeon, would prefer to wait until the plaintiff reached the stage described in paragraph (ix) of exhibit 10, before deciding to operate, Professor Brew would have to defer to the neurosurgeon's view. 772 Professor Brew considered that, if the surgery could have been done at the Adventist Hospital, the surgery could have taken place at 5 o'clock but if (as is the fact) the surgery could not have been done at the Adventist Hospital and the plaintiff would have had to have been transported to another hospital for the surgery, the time of the surgery would have been about 6 o'clock or probably later. Hence, there is in fact not much difference between Professor Dorsch's estimate and Professor Brew's estimate about when, if the plaintiff had remained at the Hospital, the surgery would have taken place. 773 Professor Morgan as a neurosurgeon with particular expertise with AVMs gave evidence that a decision to perform a craniotomy on the plaintiff would have been made after, but not before, the plaintiff became semi-conscious, as described in paragraph (ix) of exhibit 10. Professor Morgan said that operating on AVMs is complex surgery and the morbidity rate is quite high (20 per cent). 774 I consider that I should find that a decision to operate would not have been made until the plaintiff reached the stage of semi-consciousness at about 5 o'clock in the afternoon and that, given the time required to make the necessary preparations for an operation, the emergency craniotomy for the removal of the major haematoma would have commenced at about 7 o'clock, that is about four hours before the surgery at Westmead Hospital commenced. As to 9:- 775 if the plaintiff had been operated on earlier, at about 7 o'clock, that is about four hours before he was actually operated on, would the outcome for the plaintiff have been better than it actually has been. 776 There is no doubt that the purpose, or at least the principal purpose, of the actual craniotomy that Professor Dorsch performed later that night at the Westmead Hospital was, and the purpose of any craniotomy that would have been performed at about 7 o'clock would have been, to attempt to save the plaintiff's life and not to produce a better neurological outcome. However, it is part of the plaintiff's case that, if he had been operated on earlier, the outcome for him would have been better than it actually has been. 777 Generally throughout the trial counsel and the medical witnesses described the plaintiff as having two kinds of deficits as a result of the major haematoma, a weakness on the right side of his body (often referred to as right sided hemiparesis or hemiplegia) and speech deficits. Later in this judgment I will return to the question whether these two kinds of deficits cover all of the plaintiff's disabilities. For the present I will simply say that I have concluded that these two kinds of deficits cover, if not all, then almost all of the plaintiff's disabilities. 778 It was common ground between Professor Dorsch and Professor Morgan that the plaintiff would have suffered the same right sided weakness from which he suffers, even if he had been operated on earlier. 779 However, the plaintiff's expert witnesses and the defendants' expert witnesses disagreed about whether, if the plaintiff had been operated on earlier, the earlier surgery would have produced a better outcome, so far as the plaintiff's speech deficits were concerned. 780 It was difficult to say how much better the outcome would have been but it would have been "significantly better". Professor Dorsch thought, doing the best that he could, the outcome for speech would have been about 50 per cent better. 781 Professor Dorsch justified his opinions by referring to general principle and by referring to the article published in 1980, which was later identified as the article "Thresholds of Focal Cerebral Ischemia in Awake Monkeys" in volume 54 of the Journal of Neurosurgery. 782 As to general principle, Professor Dorsch said that the expanding major haematoma caused pressure on cells in the brain, that the pressure led to the death of brain cells and that, the sooner the pressure was relieved, the better the outcome. 783 Professor Brew's opinion in his first report about whether there might have been a better outcome was expressed in very guarded language ("on the balance of probabilities I think it would be reasonable to expect that a more favourable outcome might have been possible"). In his second report Professor Brew "clarified" this part of his first report, by saying that "on the balance of probabilities I think it would be reasonable to expect a better outcome". 784 In his oral evidence Professor Brew expressed the opinion that a cause of the plaintiff's deficits was pressure on the tissues, that pressure had played a significant role in causing the plaintiff's deficits and that an earlier release of the pressure by surgery would have led to a better outcome. Professor Brew considered that if there had been earlier surgery there would have been "significantly less" deficit but he could not be any more precise. 785 Professor Besser considered that surgery would not have altered the ultimate neurological outcome. 786 In Dr Terenty's opinion the surgery, apart from saving the plaintiff's life, did not alter the neurological outcome. 787 As to Professor Dorsch's opinion that, if there had been earlier surgery the plaintiff's right sided weakness would have been the same but the plaintiff's speech deficits or dysphasia would not have been so severe, Dr Terenty said that the dysphasia and the right sided weakness had manifested themselves concurrently and she was not aware of any basis on which the dysphasia would be more likely to improve than the right sided weakness. 788 Dr Terenty also claimed that the evidence from a number of studies showed that removing an intracranial haemorrhage, while it might save the patient's life, did not improve the outcome from the point of view of disability. 789 In Professor Morgan's opinion, surgery to remove an intracranial haemorrhage does not reverse neurological deficits, apart from those associated with consciousness and life. No study had shown that early surgery would be beneficial. 790 Professor Morgan disputed the mechanism of damage to brain cells by focal pressure postulated by Professor Dorsch and Professor Brew and advanced his own explanations of how damage was caused, including the tearing of blood through fibre tracts, the disruption of glial cells and the toxic effect of blood that has escaped into extra-cellular space. 791 Professor Morgan, like Dr Terenty, queried the validity of the distinction drawn by Professor Dorsch between the plaintiff's right sided weakness and the plaintiff's speech deficits. 792 As regards Professor Dorsch's reliance on the article "Thresholds of Focal Cerebral Ischemia in Awake Monkeys", it was apparent from his own evidence that Professor Dorsch had only a limited recollection of the article. It seems to me that I should accept the criticisms made by Dr Terenty and by Professor Morgan, even though Professor Dorsch did not have the opportunity of responding to those criticisms, that this article, which was concerned with the effects of tightening and releasing a ligation thereby controlling the supply of blood and which was not concerned with intracranial haemorrhage, is of little relevance and offers little support to Professor Dorsch's opinion. 793 I do not consider that Dr Terenty's opinions derive as much support from published studies as she asserted in her evidence in chief. 794 In her evidence in chief Dr Terenty claimed that "all of the evidence from a really huge number of studies…has shown that removing a clot doesn't improve outcome". However, Dr Terenty produced only two studies to back up her claim, the Guidelines article (exhibit 29) and the Morgenstern article (exhibit 30). 795 In cross-examination Dr Terenty conceded that none of the studies referred to in the Guidelines article answered the question of whether earlier surgery would produce a better outcome. 796 As far as the Morgenstern article is concerned, the conclusion in the article was simply that "ultra-early surgery", that is surgery within four hours of the onset of symptoms, was complicated by re-bleeding and this led to a poor outcome. If the plaintiff had been operated on at about 7 o'clock, the surgery would not have been ultra-early surgery, because more than four hours would have elapsed since the onset of symptoms. 797 Dr Terenty propounded a "linear" argument, that there was a direct, linear relationship between the time of surgery and the risk of re-bleeding, even if the time of surgery was more than four hours after the onset of symptoms. However, the basis of this argument, as Dr Terenty expressed it, was that the experimental subjects who had bled had a median time to surgery of 172 minutes, whereas those who did not bleed had a median time to surgery of 182 minutes. Both of those periods of time were less than four hours, that is within the period to surgery regarded as making surgery ultra-early surgery and in the paragraph on page 1296 of "Neurology" on which Dr Terenty especially relied the authors of the article appear to be saying that there was a relationship between the time of surgery and mortality within the group of subjects who were operated on within four hours of the onset of symptoms. In my opinion, the results referred to in that paragraph on page 1296 afford little basis for drawing an inference about the risk of re-bleeding in patients who are operated on more than four hours after the onset of symptoms. The linear argument also appears to be contradicted by part of the article which suggests that the most critical time for re-bleeding is within the first few hours after the onset of symptoms. 798 It appears to me to be correct to say that the Morgenstern article does not show that earlier surgery, provided that it is not ultra-early surgery, produces a better outcome and indeed it does not show that surgery at any time produces a better outcome. However, the Morgenstern article does not show, affirmatively, that removing an intracranial haemorrhage does not improve outcome. 799 In a case where there is a conflict between the evidence of the plaintiff's medical witnesses and the defendants' medical witnesses and especially the conflict between Professor Dorsch and Professor Brew on the one hand and Professor Morgan on the other hand about the mechanisms by which intracranial damage is caused by an intracranial haemorrhage and in the absence of evidence of reported studies showing whether earlier surgery (not being ultra-early surgery) does produce a better outcome, it is difficult to determine whether earlier surgery would have produced a better outcome for Mr Spasovic. However, all that I have to determine, in order to decide whether this step in the plaintiff's case has been established (as distinct from deciding what damages should be awarded) is whether surgery performed more than four hours after the onset of symptoms but about four hours earlier than the surgery which was performed at Westmead Hospital would have produced a better outcome for Mr Spasovic, by however small an amount. I consider that I should find on the balance of probabilities that part of the damage to the plaintiff's brain was being caused by pressure from a large, expanding intracranial haematoma and that, if the haematoma had been removed and the pressure thereby relieved, four hours earlier than it was, the plaintiff would have had at least a somewhat better outcome. Professor Dorsch would appear to me to have attributed the plaintiff's right sided weakness, which he said would not have been any better if there had been earlier surgery, to the location of the haemorrhage deep in the basal ganglia. I accordingly consider that the plaintiff did establish the ninth step in his case. DAMAGES 800 As I consider that there should be verdicts in favour of all the defendants, it is not strictly necessary for me to enter on the subject of the damages which would have been awarded to the plaintiff, if he had been successful in obtaining a verdict against one or more of the defendants. However, I accept that, even though I consider that there should be verdicts in favour of all the defendants, I should at least make some findings of fact on the subject of damages. 801 At the hearing the various issues relating to liability was strenuously contested and were the subject of lengthy written and oral submissions. However, comparatively little attention was paid at the hearing to the assessment of damages. For example, only about three pages of the plaintiffs' written submissions totalling more than one hundred pages were devoted to the assessing of the quantum of the first plaintiff's damages. A schedule of the amounts claimed for various heads of damages was annexed to the plaintiffs' written submissions. 802 Because so little attention was paid at the hearing to the assessment of damages and because, it was suggested, it was possible that the assessment of damages, if I found a verdict or verdicts for the plaintiff, might be affected in some way by the basis on which I found the defendants or one or more of them liable, it was suggested at times during the hearing that I should in the first instance deliver a judgment which was limited to questions of liability only. I ultimately informed the parties that I would not take the course which had been suggested. However, in this judgment I propose only to make certain findings of a general nature concerning damages and I do not propose to assay a full assessment of the damages I would have awarded the plaintiff, if I had found a verdict for him. 803 Before considering the way in which the plaintiff's claim for damages was finally put, it is important to note certain ways in which the plaintiff's claim for damages was not put. 804 As I have already indicated earlier in this judgment, contrary to the particulars appended to paragraph 10 of the further amended statement of claim and notwithstanding certain parts of Professor Dorsch's report and Professor Lance's first report and Professor Dorsch's early oral evidence, it is clear from Professor Dorsch's evidence in cross-examination and from the evidence of all of Professor Brew, Professor Besser, Dr Terenty and Professor Morgan that, even if the AVM had been diagnosed while the plaintiff was at the Adventist Hospital, no surgery to excise the AVM would have been undertaken before the plaintiff suffered the major haemorrhage on 20 January 1996 and his clinical condition had progressively deteriorated until it had reached stage (ix) (or close to stage (ix) in exhibit 10. Reasons why no surgery would have been undertaken any earlier include the depth in the plaintiff's brain of the AVM, the complexity of operating on AVMs, the damage that surgery would itself cause to the plaintiff's brain, the quite high morbidity rate for operations on AVMs, the low risk of a re-bleed from an AVM, the chance of a progression of symptoms spontaneously resolving and the existence of an alternative form of treatment of the AVM by focal irradiation. 805 In his final submissions counsel for the plaintiff abandoned any claim to have damages assessed on the basis of the loss of a chance, that is the loss of the chance that, if the AVM had been diagnosed while the plaintiff had been in the Hospital and the plaintiff had been advised to remain in the Hospital and had taken that advice and had remained in the Hospital resting and had not been subjected to the stress and activities of the Slava celebration at his home, the major haemorrhage might not have occurred. 806 Parts of Professor Dorsch's evidence in his report and in his oral evidence in chief would have lent some support to a claim that the plaintiff had, by not remaining at the Hospital and returning home, lost a chance of not suffering the major haemorrhage. However, in cross-examination Professor Dorsch accepted that it was probable that, if the plaintiff had remained at the Hospital, he would have suffered the re-bleed in any event. Professor Dorsch gave evidence that haemorrhages from AVMs can occur, even while a patient is asleep. 807 Professor Morgan, to whom Professor Dorsch deferred as having greater expertise on AVMs, considered that the plaintiff's going home on Saturday 20 January 1996 had not increased the chances of him having a re-bleed. 808 If I had had to make a finding, I would have found that the plaintiff's going home and not remaining at the Hospital did not increase the chances of his having the major haemorrhage and that the major haemorrhage would have occurred in any event, that is even if the plaintiff had remained at the Hospital. 809 On the question of whether damages can be assessed on the basis of the loss of a chance, I was referred at the hearing to the decision of the High Court in Naxakis v Western General Hospital (1999) 73 ALJR 782. On this subject I would prefer the dicta of Gaudron J at pars 28-36 of her Honour's judgment to the dicta of Callinan J at pars 128-130 of his Honour's judgment. 810 The way in which the plaintiff's case on damages was put in his counsel's final submissions was the way which I have already indicated, that is that, if the plaintiff had been operated on about four hours earlier than he was, the outcome for the plaintiff would have been better, the disabilities the plaintiff would have suffered would have been less severe than they actually have been. 811 While he was in the Westmead Hospital or the Mount Wilga Rehabilitation Centre the plaintiff suffered a deep venous thrombosis and a pulmonary embolus. However, it was not submitted in counsel for the plaintiff's final submissions that the plaintiff was entitled to damages for either of these conditions. It is clear that no causal connection could be established between the delay in operating and the suffering of these conditions. 812 As I have already stated earlier in this judgment, throughout the trial counsel and medical witnesses generally referred to the plaintiff as having suffered two kinds of deficits, namely right sided weakness ("right hemiparesis" or "right hemiplegia") and speech deficits ("dysphasia") see, for example, the further cross-examination of Professor Dorsch at transcript p874 – 875, the examination in chief of Professor Brew at transcript p414, Dr Terenty's report of 17 November 1998 page 3, Professor Morgan's examination in chief at transcript p1271. 813 The terms "speech deficits" or "dysphasia" were clearly being used by all counsel and all witnesses in a very broad sense. As Professor Morgan explained at transcript p1271 line 41 – 47, in an answer he gave when I asked him what he meant by "dysphasia", "…but it's primarily a problem of language, but not a problem of the mechanics of voice production. So it could be a problem with comprehension, it can be a problem saying the correct word. It can be a problem with getting syntax correct. It can be a problem with output. So that it may well be very telegraphic, so it's a problem that is more a brain problem of language rather than a brain stem problem with language". 814 In the plaintiff's written submissions it was submitted that, apart from right hemiplegia and the speech disorder, the plaintiff had suffered a numeracy disorder, reduced intellectual capacity and personal and emotional changes. However, it seems to me that the numeracy disorder and the reduced intellectual capacity are part of the plaintiff's speech disorder, the speech disorder being understood in the wide sense in which Professor Morgan and others used the term "dysphasia". During the hearing the numeracy disorder manifested itself, when the plaintiff was giving evidence, in the plaintiff having difficulty in comprehending a question in which a number was stated or in giving an answer which involved stating a number. The plaintiff's emotional and psychological problems are consequential upon his hemiplegia and dysphasia. In any event, the plaintiff's hemiparesis and dysphasia, even if they do not comprehend all of the plaintiff's disabilities, are the principal disabilities he has suffered. 815 In the statement of particulars of the plaintiff's injuries and disabilities, which I was informed at the hearing was the last statement, the plaintiff's claimed disabilities were listed as follows:- "i. Brain damage; ii. Expressive aphasia; iii. Loss of movement in the right upper limb; iv. Right hemianaethesia in the face; v. Generally, reduced voluntary movement and range of motion in the right upper limb, trunk and lower limb; vi. Increased muscle tone in the right upper limb and lower limb; vii. Reduced temperature control and sensation on the right hand side of the body; viii. Reduced static and dynamic balance; ix. Restricted walking speed and tolerance; x. Restricted visual field; xi. Diminished hearing; xii. Diminished capacity to process information; xiii. Cognitive deficit; xiv. Diminished capacity and, in most cases, incapacity for enjoyment of pre-injury activities across the spectrum including recreation, personal and inter-personal; xv. Incapacity for pre-accident employment on the open labour market; xvi. Diminished capacity to perform certain health care and personal care tasks such as combing the back of his head, changing his contact lenses, putting on a watch, cutting his fingers and toe nails and many other personal tasks; xvii. Psychiatric sequelae." 816 Leaving aside items xiv, xv and xvii, which are consequential disabilities, items ii, xii, and xiii seem to me to be included in the plaintiff's speech deficits or dysphasia and items iii, iv, v, vi, vii, viii, ix, x, xi and xvi seem to me to be included in the plaintiff's right sided weakness. 817 It was common ground between Professor Dorsch and Professor Morgan that, even if the plaintiff had been operated on earlier, his right sided weakness would not have been any better, that is the plaintiff was not any the worse off, so far as his right sided weakness is concerned, because he was operated on about four hours later than he would have been if he had remained at the Hospital. 818 The plaintiff's right sided weakness is severe. I find that it is accurately described in Dr Terenty's first report as follows:- "He has a right hemiplegia with right sided facial weakness, the right upper limb held in flexion with flexion contractures of the elbow and shoulder. There is no useful function in the right hand. He has a very hypertonic right leg with no knee flexion or dorsiflexion. The spasticity and contractures of the right side of the body make the deep tendon reflexes not particularly brisk but the right plantar response is still extensor. There is a right sided hemisensory alteration". 819 I also accept Dr Terenty's opinion that there will not be any improvement in the plaintiff's right sided weakness. 820 I have already held that, if the plaintiff had been operated on earlier, his speech deficits would have been better, that is the plaintiff is worse off, so far as his speech deficits are concerned, because he was operated on about four hours later than he would have been if he had remained at the Hospital. If the plaintiff had succeeded in establishing liability, he would have been entitled to damages to compensate him for the extent to which his speech deficits were worse by reason of a defendant's negligence. I did not, however, in deciding that the plaintiff had established the ninth step in his case on liability, determine how much worse off the plaintiff has been, so far as his speech deficits are concerned, because he was operated on about four hours later than he would have been if he had remained at the Hospital. 821 Counsel for the plaintiffs submitted that in the assessment of damages I should accept Professor Dorsch's evidence that, if there had been an earlier operation, the outcome, so far as the plaintiff's speech deficits were concerned, would have been about 50 per cent better, that is the plaintiff was 50 per cent worse off because there had not been an earlier operation. 822 I have noted that Professor Brew, while considering that if there had been earlier surgery there would have been "significantly less" speech deficit, said that he could not be any more precise about the amount of the deficit. The defendants' expert witnesses considered that earlier surgery would not have produced any better outcome. 823 I do not consider that I should find that, if there had been earlier surgery, the outcome for the plaintiff, so far as his speech deficits are concerned, would have been as much as 50 per cent better. It was apparent from Professor Dorsch's evidence that the figure of 50 per cent which he gave (along with other figures within a wide range) was not a figure about which he felt any degree of certainty. Part of the basis of his opinion was a reliance, which I have found to be misplaced, on the article "Thresholds of Focal Cerebral Ischemia in Awake Monkeys". 824 I find that, if there had been an earlier operation, the outcome, so far as the plaintiff's speech deficits are concerned, would have been significantly better than it has been but not by as much as 50 per cent. 825 The speech deficits the plaintiff has suffered are severe. They were exhibited while the plaintiff was endeavouring to give oral evidence. Although I find that the plaintiff's speech has improved, to a very limited extent, since Dr Terenty saw him on 16 November 1998, I consider that her statement in her report of 17 November 1998 that the plaintiff "still has a great deal of difficulty talking. He can understand simple sentences but complex and rapid speech is not understood" is still true. Even if the plaintiff's speech deficits had been only half of what they have been and are, his speech deficits would still have been serious. 826 In the schedule of claims for damages annexed to the plaintiff's written submissions, claims for damages were made on the basis of a comparison between the plaintiff as he was before he suffered the major haemorrhage and the plaintiff as he has been and is, having suffered the major haemorrhage. It was accepted by counsel for the plaintiffs that this was not a correct basis on which to assess damages and that a correct basis would be a comparison between the plaintiff as he would have been if he had been operated on earlier than he was and the plaintiff as he has been and is, having been operated on at the time at which he was, so as to determine how much the worse off the plaintiff has been and is through not having been operated on earlier than he was. 827 However, it was submitted by counsel for the plaintiff that the figures in the schedule of claims could be used as a starting point in assessing what would be an appropriate award of damages. It was submitted that the plaintiff's dysphasia was more serious for the plaintiff than his hemiparesis, that 80 per cent of his total disabilities should be apportioned to the dysphasia and only 20 per cent to the hemiparesis and that, adopting Professor Dorsch's estimate of the extent to which the plaintiff's speech would have been saved by earlier surgery, 50 per cent of 80 per cent of the plaintiff's total disabilities would have been saved by earlier surgery, so that the plaintiff should receive 40 per cent of the amounts claimed in the schedule. 828 I do not consider that these submissions should be accepted. I have not accepted Professor Dorsch's estimate of the extent to which the plaintiff's speech would have been saved by earlier surgery. However, more fundamentally, as regards many heads of damages, for example past and future economic loss and past and future needs for care and services, the plaintiff is not much worse off as he is, than he would have been if he had suffered all of the hemiparesis he has suffered but only the greater part (or even only half) of the dysphasia. Even if the plaintiff had suffered only the hemiparesis, he would have sustained a very serious loss of earning capacity and would have had many of the same needs for care and services. THE PROCEEDINGS BY THE SECOND PLAINTIFF MRS SPASOVIC 829 The proceedings by Mrs Spasovic for damages for nervous shock fail, because she, like her husband, has not succeeded in proving that any of the defendants was negligent in providing medical assessment, treatment and advice for her husband. 830 If the second plaintiff had succeeded in proving that one or more of the defendants had been negligent and that in consequence of the negligence she had suffered nervous shock, that is psychiatric injury, as distinct from normal grief (see Gifford v Strang Patrick Stevedoring Pty Limited (2003) 77 ALJR 1205 at 1207 (3) per Gleeson CJ), the damages recoverable by her would have been limited to the damages required to compensate her for any additional nervous shock she suffered, because her husband suffered all of the hemiparesis and all of the dysphasia he suffered, as distinct from suffering all of the hemiparesis and only half, or rather more than half, of the dysphasia. Any such additional nervous shock would, in my opinion, have been small. 831 On the question of whether the second plaintiff did suffer, and might in the future suffer, nervous shock as distinct from normal grief, three psychiatrists gave evidence, Dr Walden and Dr Smith (called by the second plaintiff) and Dr Skinner (called by the first defendant). 832 Dr Walden first saw Mrs Spasovic on 8 December 1998 and furnished a report dated 9 December 1998. In the part of her report headed "Diagnosis and Opinion" Dr Walden said:- "After Mrs Spasovic's husband suffered a cerebral haemorrhage, she developed symptoms suggestive of a Major Depressive Illness. She had a marked weight loss of 6 to 7 kilograms and six months of initial and terminal insomnia, and irrational feelings of guilt about her husband's condition. Mrs Spasovic is a resilient woman who pushed herself to manage the events surrounding her husband's hospitalisation and rehabilitation and felt a strong responsibility to keep the family going. She did not seek any treatment for herself at this stage. Her history suggests her symptoms resolved spontaneously over a period of six months or so. As it has become obvious that Mrs Spasovic's husband will not regain his former level of function, she has become increasingly depressed again. She describes feeling depressed with the onset of tearfulness, sleep disturbance, appetite disturbance, poor concentration, the onset of palpitations, loss of pleasure in previous activities, and a reduced libido. She is not suicidal. These symptoms satisfy the DSM-IV Diagnostic Criteria for the diagnosis of Major Depressive Disorder". 833 Dr Skinner saw the second plaintiff on 29 March 2000. In her report of 31 March 2000 Dr Skinner expressed inter alia the following opinions:- "Mrs Spasovic is not suffering from a psychiatric disorder. She is experiencing a grief process as she goes through a period of adjustment to her altered situation following her husband's unfortunate cerebral haemorrhage and ongoing disabilities … Her prognosis is that she will gradually adjust to her altered situation. Mrs Spasovic has strong personality resources and has coped well so far. She has to deal with a tragic situation and there will always be emotional pain as she deals with this situation but she will gradually make the psychological adjustments necessary to cope". 834 The second plaintiff was next seen by Dr Smith on 1 August 2001. In his report dated 7 August 2001 Dr Smith said that in his opinion Mrs Spasovic demonstrated diagnostic criteria for a major depressive disorder. 835 The second plaintiff was finally seen again on 6 June 2002 by Dr Walden. In her report dated 6 June 2002 Dr Walden expressed the opinion that Mrs Spasovic did not then have any psychiatric disorder. Mrs Spasovic did not, when Dr Walden saw her, fulfil the criteria for a major depressive illness. Dr Walden expressed the opinion that Mrs Spasovic had probably had a recurrence of a major depressive illness about six months previously. Dr Walden considered that the major precipitant for the most recent episode of depression had been Mrs Spasovic's difficulty in coping with her husband's condition. Dr Walden considered that it was likely that in the future Mrs Spasovic would have fluctuating symptoms of depression. 836 In oral evidence at the trial Dr Walden said that Mrs Spasovic had had three episodes of a major depressive disorder and, having had three such episodes, the chances of her having a fourth episode were greater than 90 per cent. Dr Walden accepted that Mrs Spasovic has strong personality resources and has coped very well. 837 In her oral evidence Dr Skinner was attacked on what was said to be her incorrect use of the word "grief" as a psychiatric term but she was able to justify her use of the term by reference to the latest edition of a standard psychiatric text. Dr Skinner accepted that Mrs Spasovic had had periods when she was "quite depressed". Dr Skinner pointed out that Mrs Spasovic was an intelligent woman, that she had the support of her sons, that she had been able to continue in work which was intellectually demanding, that she had taken over control of the family and that she had been able to participate in activities and interact with other persons, whereas a person suffering from a depressive illness would lack that sort of initiative and motivation. 838 In oral evidence Dr Smith reiterated that in August 2001 Mrs Spasovic had been suffering from a major depressive disorder, that he would have expected that disorder to have continued at least up until June the following year and, indeed, that he could not see Mrs Spasovic's condition improving. 839 Of the three psychiatrists I was least impressed by the evidence of Dr Smith, who I consider overstated Mrs Spasovic's difficulties. Where Dr Smith's evidence is inconsistent with, or at least difficult to reconcile with, Dr Walden's evidence, I would prefer Dr Walden's evidence. 840 I accept that between 1996 and 2001 Mrs Spasovic suffered three distinct episodes of a major depressive illness, the longest of which lasted about six months. During these episodes Mrs Spasovic was able to continue working and to look after her family. She has not since had any psychiatric disorder. Notwithstanding that Mrs Spasovic will be in continual contact with her seriously handicapped husband and the evidence of Dr Walden about Mrs Spasovic's prognosis, I consider it is unlikely rather than likely that Mrs Spasovic will have any future episodes of psychiatric depression. As all the psychiatrists agreed, she is a person of strong personality who has in general coped well. CONCLUSION 841 I consider that there should be verdicts for all the defendants as against both plaintiffs. 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