New South Wales Supreme Court CITATION : Bloodworth v The South Coast Regional Health Authority t/a Gold Coast Hospital and Anor [2004] NSWSC 234 revised - 23/04/2004 HEARING DATE(S) : 3.11.03, 4.11.03, 5.11.03, 6.11.03. 7.11.03, 10.11.03, 11.11.03, 12.11.03, 14.11.03, 17.11.03, 18.11.03, 19.11.03, 20-.11.03, 21.11.03, 24.11.03, 25.11.03, 27.11.03, 28.11.03, 1.12.03, 2.12.03, 9.12.03, 10.12.03, 11.12.03, 12.12.03, 6.04.04, 14.04,04 JUDGMENT DATE : 14 April 2004 JURISDICTION: Common Law - Professional Negligence JUDGMENT OF : Mathews AJ DECISION : I enter verdict and judgment for the plaintiff in the sum of $1,769,391.65. Costs (para 402). I order that execution of the judgment be stayed until judgment is given by the Court of Appeal, or an appeal to that Court be withdrawn, whichever be the earliest, upon the following conditions: first, that payment be made to the plaintiff of $100,000 within 28 days of today, and secondly, that a notice of appeal with appointment be lodged within 28 days of today. CATCHWORDS : Medical negligence - laparoscopic cholecystecomy - anoxic brain damage - whether surgery negligently performed - adequacy of warnings given before surgery - whether plaintiff suffered psychiatric injury - whether plaintiff had pre-existing disorder - epilepsy LEGISLATION CITED : Whitehouse v Jordan WLR 246 at 263 Ainsworth v Levi (unreported) NSWCA 30 August 1995 CASES CITED : Rogers v Whittaker (1992) 175 CLR @ 479 Rosenberg v Percival (2001) 205 CLR 434 Chappel v Hart (1998) 195 CLR 232 PARTIES : Charles Bloodworth - Plaintiff The South Coast Regional Health Authority t/a Gold Coast Hospital & Anor - Defendants FILE NUMBER(S) : SC 20052/95 COUNSEL : A S Morrison SC and D W Elliott - Plaintiff J L Glissan Q C and J A McDougall - Defendants SOLICITORS : Gerard Malouf & Partners - Plaintiff Tress Cox and Maddox - Defendants IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST MATHEWS AJ 14 April 2004 20052/95 BLOODWORTH v SOUTH COAST REGIONAL HEALTH AUTHORITY - T/AS GOLD COAST HOSPITAL & ANOR JUDGMENT 1 Her Honour: The plaintiff Charles Bloodworth is claiming damages for negligence following a surgical operation which was performed by the second defendant at the first defendant's hospital on the 28 January 1992. Introduction 2 The background of the matter, very briefly, is as follows. 3 Mr Bloodworth was born on the 17 June 1957. His schooling was mixed: he obtained good results at the school certificate, but received unfavourable reports about disruptive and surly behaviour. He was a reasonable sportsman, but his real passion was music, particularly the piano. 4 He left school at age 17, without attempting the higher school certificate. He then undertook a number of jobs, most of them relatively unskilled and all of them of quite short duration. In 1984 he went overseas and returned late the following year. Between March 1986 and October 1987 he worked as a bus driver with the Urban Transit Authority. He then went to Coffs Harbour where he registered a business called "Worth Concrete Pumping". The business did well for some time, until a major client went bankrupt owing him a substantial sum of money, which resulted in the collapse of his business. Other personal problems beset him at about this time, and in May 1989 his mother arranged for him to consult Doctor Kay Wilhelm at the Mood Disorders Clinic of Prince Henry Hospital in Sydney. This was the plaintiff's only psychiatric consultation before January 1992. Doctor Wilhelm's report following this consultation featured prominently in later medical and psychiatric assessments, and I shall be discussing it later. 5 At about this time the plaintiff met Wendy Pepper, whom he later married. In January 1990 the two of them moved to the Gold Coast where the plaintiff worked for Mr David Joffe on a number of construction projects. Their son, James, was born in October 1990. 6 On 17 June 1991, his 34th birthday, Mr Bloodworth suffered a bout of severe abdominal pain. He consulted his general practitioner, Dr Brennan, who tentatively diagnosed gallstones, a diagnosis which was confirmed by subsequent investigations. In July of that year the plaintiff went to see Dr Thiele at the Gold Coast Hospital. Dr Thiele referred him to the second defendant, Dr Miller. 7 Mr Bloodworth saw Dr Miller on 19 September and again on 15 November 1991. I will be discussing later what transpired between them on these occasions. One of the heads of claim in this case is that Dr Miller failed to give Mr Bloodworth appropriate warnings, and these meetings are crucial to this aspect of the case. Suffice it to say here that Dr Miller told Mr Bloodworth that he would need a cholecystectomy for removal of his gall bladder. A laparoscopic procedure was recommended. After the second consultation, in November 1991, Dr Miller gave Mr Bloodworth a booking form so that he could undertake the surgery early in the following year. 8 Over the ensuing Christmas/New Year period Mr Bloodworth suffered further severe bouts of pain. He saw Dr Miller again on 21 January 1992 and early surgery was arranged. 9 On the afternoon of 28 January 2002 the surgery commenced. I shall later be giving a detailed description of the course of this surgery, and of laparoscopic cholecystectomies generally, for this is central to the issues in this case. Suffice it to say for present purposes that the surgery commences with the insertion of a needle, called the veress needle, into the abdominal cavity. Carbon dioxide gas is then pumped through the needle in order to distend the cavity and create a working space. When sufficient gas has been introduced, the needle is withdrawn and a larger instrument, called a trocar, is introduced through the same hole. In Mr Bloodworth's case, one of these instruments lacerated the right iliac artery and punctured the left iliac vein. This caused carbon dioxide to enter his venous system which in turn caused a cardiac embolism and cardiac arrest. At this point the surgery was abandoned and external cardiac resuscitation measures were applied. These were successful, and after 12 to 14 minutes blood pressure was restored. However Mr Bloodworth's blood pressure remained low and his heart rate high. Some 40 minutes later signs of haemorrhaging were noted and open surgery was immediately performed. Two to three litres of blood were found in the peritoneal and retroperitoneal space. The injury to the iliac vessels was discovered and a vascular surgeon was called into theatre to repair them. 10 Given the disastrous nature of the surgery, Mr Bloodworth's post-operative recovery was markedly uneventful. He remained in intensive care for some 36 hours and was eventually discharged from hospital on 8 February 1992. 11 After his discharge from hospital Mr Bloodworth continued to suffer severe abdominal pain, both from the gallstones (which had not been removed) and from the effects of the surgery. He had lost a great deal of weight and was unable to stand upright. On 7 July 1992 Dr Peter Van Gelderen conducted an open cholecystectomy and removed the offending gall bladder. Mr Bloodworth's recovery from this surgery was uneventful. 12 It is not apposite here to discuss the details of the continuing physical, psychological and neurological problems which Mr Bloodworth claims to have suffered as a result of the surgery on 28 January 1992. The neurological symptoms are probably the most controversial: the plaintiff's case is that Mr Bloodworth suffered permanent anoxic brain damage which has manifested itself in behavioural difficulties, cognitive deficits and epilepsy. The defendants dispute that Mr Bloodworth has any continuing symptoms as a result of this surgery. In particular they dispute that the incident led to any brain damage at all. The defendants' case, at its highest, is that Mr Bloodworth is a malingerer who has deliberately manufactured his symptoms for the purpose of this litigation. The course of these proceedings 13 These proceedings have a lengthy history. The statement of claim was issued on 27 January 1995. Numerous pre-trial processes followed. These included the taking of evidence in London from two medical experts, Professors Davidson and Boulos, in June 1999. 14 Between 1 November and 2 December 1999 the first hearing of this case took place before McInerney AJ. This occupied 21 hearing days. On 1 September 2000 his Honour delivered his first judgment in the matter. On 6 November 2000 he entered a verdict for the plaintiff in the sum of $1,093,680.45. The defendant appealed from this judgment. The hearing before the Court of Appeal took place in September 2001. On 22 May 2002 the Court unanimously upheld the appeal, set aside the judgment entered by McInerney AJ and ordered that a new trial be held. 15 In July 2003 further evidence was taken on commission in London from Professors Davidson and Boulos. 16 The hearing before me commenced on 4 November 2003 and occupied 24 hearing days. Mr Bloodworth was represented by Dr Andrew Morrison SC, Mr David Elliot and Mr Adam Casselden of counsel. The defendants were represented by Mr James Glissan QC and Mr J McDougall. All counsel were very familiar with the case, having appeared at the previous hearing as well as on the appeal. During the hearing before me there was a high level of co-operation between counsel, for which they are to be commended. In particular, a great deal of evidence was adduced through the tendering, by consent, of the transcripts of evidence taken at the first hearing. This served to reduce the hearing time, but it also increased the bulk of material to be considered by me in a case which was already exceedingly complex. It will not be possible in this judgment to refer directly to all items of evidence which bear upon each issue in the case. However I have in fact perused and noted all items of evidence which counsel have suggested bears any relevance to the issues in the case. The issues in this case 17 The plaintiff claims that the second defendant, Dr Miller, was negligent in three respects: 1. that he negligently performed the operation, thereby perforating the iliac vessels and causing the subsequent injury to Mr Bloodworth ("the negligent performance ground"). 2. that he negligently failed to perform a laparotomy immediately after Mr Bloodworth had been resuscitated ("the delayed laparotomy ground"). 3. that he failed to warn Mr Bloodworth of the dangers inherent in the laparoscopic procedure and of the limitations in his own experience in performing this type of operation ("the failure to warn ground"). 18 It is accepted that, if Dr Miller was negligent in any of the above respects, the first defendant is vicariously liable for his negligence. 19 Before I turn to discuss these grounds, I should give more details of the factual matrix in which these issues arise. I shall commence with a brief history of laparoscopic surgery. I shall then describe the course of this type of surgery, and the risks involved in it. I shall give an account of what happened in Mr Bloodworth's case. Finally, I shall discuss the nature of the medical evidence in the case. History of laparoscopic cholecystectomies 20 Laparoscopic procedures have been used in gynaecological surgery since the 1960s. This procedure, which is sometimes called "keyhole surgery", involves making several small incisions instead of a single large one. In the absence of complications, it significantly reduces postoperative trauma to patients. 21 It was not until about 1989 that laparoscopy moved into the field of general surgery. Indeed it was probably not until 1990 that the first upper abdominal laparoscopic procedures were performed in Australia. The procedure was therefore in its infancy in January 1992, when Dr Miller operated on Mr Bloodworth. Indeed Dr Miller himself had only started performing this type of surgery a few months earlier, in October 1991. By the time of Mr Bloodworth's operation he had performed 15 laparoscopic cholecystectomies either as principal or assistant surgeon. 22 Since then, laparoscopic cholecystectomies have become routine surgical procedures. For example, in the twelve months between July 1999 and June 2000, 36,639 of these procedures were undertaken in Australian hospitals. As Professor Guy Maddern commented, this has resulted in considerable benefits to patients and reductions in hospital and health-care costs. 23 For obvious reasons, most of the literature concerning the risks of laparoscopic cholecystectomies postdates January 1992. Much of this literature was referred to during the hearing of this matter. This literature provides valuable information as to, for example, the incidence of vascular injuries in laparoscopic surgery. However, when considering the reasonableness of Dr Miller's conduct, both in his performance of the surgery and in the warnings he gave to Mr Bloodworth, it is important to apply only the information and techniques which were available at that time. A description of laparoscopic cholecystectomies 24 All laparoscopic procedures involve the injection or "insufflation" of gas into the abdominal cavity (or peritoneum). This so-called cavity is in fact only a potential space. In normal conditions, the peritoneal structures inside the abdominal cavity will lie upon and adjacent to each other. The purpose of insufflating the abdomen with gas is to separate these structures so as to create a working space. In medical terms this is described as obtaining pneumoperitoneum. (literally "air in the peritoneum"). 25 In the early stages of laparoscopic surgery, the gas used for this purpose was air. However, this created a particular hazard if by mischance the gas entered the body's circulatory system. Air takes a considerable time to dissolve, and very serious consequences, including death, can result if air bubbles prevent the normal flow of blood through the heart. For this reason, air was replaced by carbon dioxide (CO2), a soluble gas which dissolves rapidly within the bloodstream. 26 For the purpose of this surgery, the patient is often put into what is called the "Trendelenberg" position. This means that the operating table is sloped downwards, with the patient's head lowered and the feet elevated. The purpose of this is to displace the small bowel into the upper part of the abdomen, thus removing it from the operating area. 27 The procedure utilised in Mr Bloodworth's case routinely commences with the making of a minor incision into the umbilical area. The veress needle is then inserted through the incision. This is a sharp, narrow tube approximately two to three millimetres in diameter. In order to provide counter-traction for the insertion of the needle, the surgeon generally lifts the skin of the abdominal wall in the area of the incision, at the same time pressing down upon the needle. The surgeon will normally know when the needle has penetrated the abdominal wall as it immediately gives way and the sharp end retracts. Certain tests are then carried out in order to ensure that the tip of the needle is where it should be. Once these tests have been satisfactorily performed, the external end of the needle is connected to an insufflating machine which pumps CO2 through the needle and into the abdominal cavity. The amount of gas, and the pressure at which it is inserted, is monitored by the machine. Once a preset level of pressure has been reached within the abdomen (normally 12 to 15 mm Hg), insufflation is discontinued and the veress needle is withdrawn. The trocar (or "port") is then inserted through the incision left by the needle. The trocar is a much larger instrument. It consists of an outer tube which is 13 centimetres long and 11 to 12 millimetres in diameter. Inside this tube is a further shaft with a very sharp trihedral point which protrudes beyond the end of the instrument and enables it to cut through the various layers of the abdominal wall. 28 In spite of the sharpness of this point, the insertion of the trocar can sometimes require a degree of downward pressure, which in turn can cause the internal abdominal wall to "tent" inwards. In order to reduce this effect, some surgeons lift the abdominal wall whilst inserting the trocar, normally with the assistance of clips which hold up the skin in the area of the incision. 29 The trocar is designed so that, once resistance on the tip has ceased, the sharp point will spring back into its protective sheath, thus converting the trocar into a blunt instrument which should be incapable of damaging internal abdominal structures. This springing action is discernible to the operator and serves as an indication that the trocar has penetrated the abdominal wall. 30 Once the trocar has pierced the abdomen wall, the surgeon removes the internal shaft. The external plastic layer ("the cannula") remains in place, enabling instruments to be passed through it into the abdomen. The first instrument to be inserted is usually a camera, which means that the balance of the surgery can be performed under vision. The trocar also has an insufflating device which, when attached to an insufflator, maintains the CO2 pressure within the abdomen at the desired level. 31 In cholecystectomies three further trocars are generally inserted into the abdominal cavity. Through these ports the various instruments can be passed to enable the dissection and removal of the gall bladder. Unlike the original trocar, these trocars are inserted under vision, so that the surgeon can ensure that they cause no internal damage. 32 It is unnecessary for present purposes to describe the balance of this surgical procedure. In Mr Bloodworth's case, the surgeon had just completed inserting all four trocars when signs of CO2 embolism were detected. The surgery was then abandoned. What happened thereafter will be described shortly. Before doing so, however, it is apposite to say something about the anatomical structures which are relevant to this case. The relevant anatomical structures 33 As indicated, both the veress needle and the first trocar are routinely inserted through an incision in the umbilical area, usually in the lower part of the umbilicus. The anterior abdominal wall is at its thinnest at this point. The abdominal wall comprises several layers. These include the linea alba and the peritoneum, both of which are fibrous structures which can constitute a major source of resistance to the introduction of the trocar. Both these layers are quite thin, Professor Davidson estimated a few millimetres each. In addition, there is a layer of subcutaneous fat, the thickness of which depends upon the build of the person. The evidence indicates that there would have been little if any fat in a person of Mr Bloodworth's build. Accordingly, the abdominal wall in his case would have been quite thin. 34 Immediately behind the abdominal wall lies the greater omentum. This is a layer of fat which separates the abdominal wall from the small bowel. Insufflation is designed to take place between the abdominal wall and the omentum. 35 The omentum and the small bowel constitute the major structures in the peritoneal cavity, at least in the area underlying the umbilicus. Further back again lie the retroperitoneal structures, which are separated from the peritoneum by the retroperitoneal layer, a thin membrane-like structure which Dr Miller likened to gladwrap. The blood vessels which were damaged in this case were the right common iliac artery and the left common iliac vein, both of which lie in the retroperitoneal area. 36 The retroperitoneum contains various blood vessels. First, the descending aorta which brings blood from the heart, and which bifurcates or divides into two branches. The two branches are the right and left common iliac arteries. These in turn later bifurcate into the internal and external iliac arteries. The right and left common iliac veins take blood back towards the heart, and join together into the vena cava. At one point the right common iliac artery overlies the left common iliac vein, which means that both vessels can be damaged by a single penetrating event, as apparently occurred here. Alternative methods of commencing laparoscopic surgery 37 The method of surgery described above is the method which was adopted by Dr Miller in Mr Bloodworth's case. At that time it was the standard technique in laparoscopic surgery. However the fact that the veress needle and the umbilical trocar were introduced blind led a number of doctors to brand this type of surgery as extremely hazardous. This was certainly the view of Dr Sheldon, a surgeon who gave evidence for the defendants at the first hearing. Dr Sheldon found it "worrying" that the veress needle, which he described as a "razor sharp instrument", was inserted blindly into the peritoneal cavity. After performing about ten of these procedures, he felt so uncomfortable with it that he abandoned the veress needle technique in favour of an alternative procedure which is commonly called the open or "Hasson" technique. Essentially this procedure involves doing away with the veress needle. A larger initial incision is made, followed by the direct insertion of the Hasson trocar through which the abdomen is insufflated with CO2. This instrument incorporates a camera and thereby enables the whole process of insufflation to be conducted under vision. 38 Professor Maddern gave an interesting account in his evidence of the polarisation of the medical profession between those who prefer to use the veress needle/trocar method of obtaining pneumoperitoneum and those who prefer to use the open or Hasson technique. A number of practitioners, he said, were passionate advocates of the particular technique which they used, and regarded the other technique as inherently unsatisfactory or unsafe. Professor Maddern is Protocol Surgeon and Chairman of an organisation called ASERNIP-S (Australian Safety and Efficacy Register of New Interventional Procedures – Surgical), established by the Royal Australian College of Surgeons. Because of the divergent views in the medical profession as to the respective merits and risks involved in the needle/trocar and the Hasson techniques, ASERNIP-S conducted a major review of these methods, which explored the available literature and studies on this subject from around the world. This review presented its report in October 2001. Professor Maddern described the outcome of the review as demonstrating, in a nutshell, that "both techniques were probably equally valid." No definitive difference was demonstrated between the safety and efficacy of either one. 39 The ASERNIP-S report was tendered before me. It provides some information as to the risks associated with the various techniques of obtaining pneumoperitoneum, a subject to which I now turn. Risks of this surgery 40 We are concerned here only with the risks involved in obtaining pneumoperitoneum. There is ample evidence that the commonest injury sustained in laparoscopic cholecystectomies is injury to the bile duct. However the bile duct is near the gall bladder, and this injury is sustained when the surgeon is attempting to gain access to the gall bladder, a stage which had not yet been reached in Mr Bloodworth's case. Accordingly it is appropriate to examine the risks of obtaining pneumoperitoneum in all types of laparoscopic surgery, not only cholecystectomies. This is what the ASERNIP-S review set out to do. 41 The major risk of laparoscopic surgery is bowel injury. The ASERNIP-S survey found that 56 percent of all major complications related to bowel injury. The risk of this injury was higher with the open access technique than with the needle/trocar technique. A major contributor to the risk of bowel injury was found to be prior abdominal surgery, causing the bowel to adhere to the abdominal wall and thus making it extremely difficult to avoid when the peritoneum is perforated. 42 The rate of vascular injury was almost non-existent with the open technique and ranged from .003 percent to 1.33 percent with the needle/trocar technique. The review concluded that the incidence of this injury was so low in both groups that differences were difficult to discern without exceptionally large sample sizes. It must be remembered also that the classification of "vascular injury" includes injury to a number of other vessels quite apart from the iliac artery and the iliac vein. 43 A review conducted by Molloy and others called "Laparoscopic Entry: A Literature Review and Analysis of Techniques and Complications of Primary Port Entry", which was published in the ANZ journal of Obstetrics and Gynaecology in 2002, compares the rate of vascular injury using the needle/trocar technique in gynaecological procedures and in general surgery. In general surgery, vascular injuries occurred in .7 cases in one thousand. Again, this included injury to other vessels. 44 A French study, conducted by Champeault and others, of serious trocar incidents in laparoscopic surgery, found an incidence of .5 vascular injuries in one thousand laparoscopic procedures. The actual number of vascular injuries was forty-seven, sixteen of which comprised injury to the iliac vein. The iliac artery was not mentioned. 45 Dr Miller, in his evidence, described this as a "rare" injury, occurring in one of three to four thousand cases. 46 Finally, on the subject of risks, it is standard practice if something appears to be going wrong with a laparoscopic procedure, for a surgeon to immediately "convert" to an open laparotomy. Prospective patients are routinely warned of this possibility and are asked to sign consent forms for an open laparotomy if this were to become necessary. 47 I turn now to discuss the course of the surgery in Mr Bloodworth's case. Mr Bloodworth's surgery 48 Mr Bloodworth's surgery commenced at 2.45 pm with the first administration of anaesthesia. The surgery itself probably commenced fifteen to twenty minutes later. At that time, Mr Bloodworth was in a Trendelenberg position, with his head angled downward. Dr Miller said that he inserted the veress needle through an incision in the sub-umbilical area and pushed it at a downward angle of about 45 degrees until he felt the spring inside the needle retract, indicating that it had passed through the abdominal wall. He then performed the normal tests to ensure that the needle was in fact within the abdominal cavity. Having satisfied himself on this account, he connected the veress needle to the insufflating machine and commenced to inject CO2 into the abdomen, initially at a low rate of 1.5 litres per minute, which was gradually increased to five to six litres per minute. The insufflator, which had been pre-set to 15 mm Hg, stopped when that pressure was achieved. This would have taken about two to three minutes. At that point Dr Miller removed the veress needle and commenced to insert the trocar through the same incision and along the same line, namely at an angle of about 45º. Dr Miller said that he felt minimal resistance as he inserted the trocar through the abdominal wall. He then felt it click, indicating that the trocar had passed through the wall and the sharp point had retracted. At this point he removed the insert from trocar, leaving the external cladding (the port) in position. He connected this to the insufflator in order to maintain the carbon dioxide pressure within the abdomen. He next inserted the laparoscope and the camera into the port. The camera showed a normal looking intra-abdominal cavity with normal omental fat and normal small bowel sitting around it. Dr Miller noted a small amount of blood on the omentum immediately below where the port had been inserted. This was not an abnormal finding, as the introduction of the needle and the trocar can cause minor bleeding into the abdominal cavity. 49 Dr Miller proceeded to insert three further ports into Mr Bloodworth's abdomen. The camera showed that they were inserted without misadventure. 50 By now it was approximately 3.15 pm. At this point the anaesthetist, Dr Doolan, noted that Mr Bloodworth's End Title CO2 ("ETCO2") level had dropped from 36, which was normal, to 21. The anaesthetist's notes at this point read: "Following insufflation of CO 2 and initial examination with camera the patient became sweaty and there was a rapid decrease in ET CO 2. " 51 According to Dr Doolan, a rapid decrease in ETCO2 is often an early indication of a venous gas embolism. In Mr Bloodworth's case, because it occurred shortly after the abdominal cavity had been insufflated with carbon dioxide, Dr Doolan immediately suspected a CO2 embolism. He directed Dr Miller to abandon the surgery. Dr Miller did so. He turned the gas off, and pulled out all the ports except the original umbilical port, which he left open in order to vent the abdomen of any remaining CO2 . 52 In the meantime Mr Bloodworth's systolic blood pressure had reduced from 100 to 70 or 75. At 3.20, his carotid pulse became impalpable and Dr Doolan called a cardiac arrest. He replaced the anaesthesia with pure oxygen and external resuscitation techniques were commenced. 53 Some twelve to thirteen minutes later, shortly after 3.30 pm, Mr Bloodworth's pulse returned and his systolic blood pressure went from zero to sixty. This indicated that the heart was functioning again. However things were still not right. Mr Bloodworth's blood pressure remained low whilst his pulse was elevated. Dr Miller said that Dr Doolan expressed concern about Mr Bloodworth's condition and asked if there was any chance that he might be haemorrhaging. Dr Miller said 'no', and continued: "The port went in so easily and the needle and I couldn't imagine that there was any damage to any blood vessels." 54 At about 4.15 an event occurred which alerted the medical team that Mr Bloodworth must be haemorrhaging. Dr Miller said that blood started coming out of the top of the umbilical port. Dr Doolan said that Mr Bloodworth's abdomen started swelling. Whichever it was, it was an immediate danger sign. Dr Miller forthwith commenced to perform an open laparotomy, involving a very long vertical midline incision. This revealed a substantial quantity of blood in the peritoneal cavity. Dr Miller lifted the small bowel and omentum and ascertained that the blood was coming from the pelvis. He compressed the aorta and put a clamp on it in order to prevent any further bleeding. Suction evacuators were used to empty the blood. 55 It was very fortunate that a vascular surgeon, Dr Dinnen, was in the adjacent operating theatre and could be brought in quickly to repair Mr Bloodworth's damaged vessels. The right common iliac artery was found to have a star shaped defect which required resection. The left common iliac vein, directly behind the artery, had a small hole which was sutured. Massive blood transfusions were required. 56 By the end of the laparotomy, Mr Bloodworth had lost approximately four litres of blood. Two to three litres of this had been lost before the laparotomy was commenced. One of Mr Bloodworth's heads of claim is that the laparotomy should have been performed much earlier, thereby reducing the blood loss and diminishing some of the long term complications which arose from this surgery. I shall be discussing this aspect of his claim a little later. 57 It is beyond question that either the veress needle or the trocar pierced Mr Bloodworth's right iliac artery and left iliac vein. The injury to the artery caused most of the blood loss. The injury to the vein caused the CO2 embolism which in turn was responsible for the cardiac arrest. There was a suggestion in the evidence that there might never have been a CO2 embolism, and that the cardiac arrest might have been caused by the blood loss alone. However, the bulk of the evidence strongly supports the proposition that a CO2 embolism occurred, which then led to the cardiac arrest. This was Dr Doolan's analysis of the situation, and he was in the best position to make these assessments. I therefore accept that this was the probable course of events. The real question is whether this denoted a breach of duty on the part of Dr Miller. In order to determine that matter, a number of further issues will need to be addressed. First, I should say something about the nature of the medical evidence in this case. The medical evidence 58 The medical issues in this case are complex, and a number of medical experts gave their opinions on them. I am referring at this stage only to issues relating to liability. A large volume of further evidence went to matters of damages, but it is unnecessary to refer to this here. 59 The plaintiff essentially relied upon the evidence of Professors Davidson and Boulos, from whom evidence on commission was taken in London in June 1999 and again in July 2003. In addition, both these doctors gave evidence by way of video link during the previous hearing in November 1999. Much of the first two weeks of the hearing before me was occupied in watching the video of their evidence, the transcripts of which were exhibits in this case. Both doctors had previously furnished written reports which were also in evidence. 60 The effect of the evidence of both Professors Davidson and Boulos was that the injury to the iliac vessels which occurred in this case was an unacceptable injury which should not have occurred if reasonable care had been taken. In the absence of anatomical anomalies or prior adhesions, the only explanation for the injury was that Dr Miller miscalculated both the angulation and depth of either the needle or the trocar, most probably the trocar. 61 I shall be referring again to the evidence of these doctors when I come to discuss the central question of negligence. In general I place much greater weight on the evidence of Professor Davidson than that of Professor Boulos. Dr Davidson was a most impressive witness and, in spite of his boyish looks, a very experienced surgeon. When he gave his evidence he was Professor of Surgery at the Royal Free Hospital and School of Medicine. He had extensive experience in both general and laparoscopic surgery. His evidence was clear, concise and given in an objective and open manner. 62 Professor Boulos's evidence was less persuasive. Professor Boulos is a very experienced general surgeon specialising in colorectal surgery. He first performed laparoscopic procedures in 1990 and continued to perform them for approximately five years after which he gradually withdrew from this type of surgery. Accordingly, his knowledge of laparoscopic techniques was not as recent as that of Professor Davidson. Moreover, Professor Boulos displayed a degree of rigidity in his evidence. He appeared reluctant to accommodate to other opinions or theories. During his cross-examination by Mr Glissan, in July 2003, he became so angry at what he considered to be an attack on his expertise that he refused to answer any questions until the subject was changed. 63 Mr Glissan objected to the reception of much of Professor Boulos's evidence on the grounds of bias and lack of expertise. I ruled against him on both grounds, and allowed the whole of Professor Boulos's evidence to be admitted. However, the matters which led to Mr Glissan's challenge are highly relevant to the weight to be attached to Professor Boulos's evidence. In the circumstances I cannot and do not accord it the same weight as that of Professor Davidson or, for that matter, the evidence of many of the other experts whose evidence was before the court. 64 The plaintiff called no further expert witnesses before me on the issue of liability, although numerous doctors gave evidence on matters going to damages. Amongst the numerous reports tendered by the plaintiff, only one went directly to the issue of liability. That was a report dated 11 June 1993 from Dr V H Cumberland, a surgeon who examined Mr Bloodworth in July 1992. This report gives a concise and precise account of laparoscopic procedures and suggests two possible mechanisms by which these blood vessels might have been damaged during this surgery. However Dr Cumberland did not express an opinion as to whether either of these scenarios indicated a lack of care on the part of the operating surgeon. 65 In short, therefore, the plaintiff's case on negligence is based on the evidence and opinions of Professors Davidson and Boulos. 66 Both Dr Miller and Dr Doolan gave evidence in the defendants' case. Both of them had given extensive evidence at the previous hearing, but neither had furnished any reports. Accordingly, their evidence was, at least in theory, restricted to matters of fact rather than opinion, and particularly to their account of what happened during the course of Mr Bloodworth's surgery. 67 The defendant called only one witness solely on the issue of liability. That was Professor Guy Maddern, a highly experienced surgeon and a very impressive witness. Professor Maddern first became involved in this case in 2003 and therefore did not give evidence at the prior hearing. 68 The defendants also called an experienced anaesthetist, Dr Ross Holland, but his evidence went more to issues of neurological injury than it did to the performance of the surgery. 69 Finally, the defendants tendered both the reports and the prior evidence of three surgeons, Drs Glen, Aroney and Sheldon, none of whom was called to give evidence before me. A further surgeon, Dr Truskett, provided a report but was not called to give evidence at either hearing. 70 Much of the evidence which was tendered by the defendants appeared to be cogent and reliable, but some was less so. Dr Aroney, in particular, was criticised by Dr Morrison for his lack of objectivity, a criticism which appeared to have a solid foundation. 71 In general the defendants' doctors refuted the proposition advanced by Professors Davidson and Boulos, namely that the mere fact of this injury denoted a lack of care. They said that vascular injury is an unfortunate and rare complication of this type of surgery which can occur even with the most experienced surgeon utilizing the utmost care. 72 This is the central matter to be determined under the first ground relied on by the plaintiff. I shall be discussing it very shortly. However there is one further preliminary matter to be disposed of, namely whether the damage to the blood vessels in this case was caused by the veress needle or the trocar. Was it the needle or the trocar? 73 It is beyond dispute that the vascular injuries sustained by Mr Bloodworth were caused either by the veress needle or the umbilical trocar. On one view it might not matter which it was. Both Professors Davidson and Boulos thought that it was probably the trocar which did the damage. However, they both went on to say that even if it was the needle it still denoted lack of care on the part of the surgeon. Both doctors considered that the star shaped breach in the artery was highly suggestive of a trocar injury. Professor Davidson pointed out that the needle is very fine and would be unlikely to cause this type of injury. In any event, the saline test carried out after insertion of the needle would almost certainly have shown if the needle had penetrated the vascular system. The timing also, both doctors considered, was consistent with trocar injury. 74 Professor Maddern essentially agreed with the plaintiff's experts. He considered that the star shaped injury and the timing of events suggested that the damage was caused by the trocar. This was not, however, the view of at least two of the other defendants' experts. Dr Aroney considered that the evidence overwhelmingly pointed to the needle as the culprit. The literature, he said, showed that in only two out of fifteen cases was the trocar responsible for vascular injury. He considered also that the sequence of events supported a needle injury, probably a shearing injury on the side of the artery which then penetrated the front of the vein. Dr Sheldon assumed in his report that the needle was responsible. In his later evidence he said that the timing was more consistent with a needle injury, although the nature of the injury was consistent with either. By the end of his cross-examination he appeared to concede that it could have been either instrument. Dr Glen assumed, both in his report and in his evidence, that the trocar was responsible for the injury. Nothing was put to him in opposition to this view. To the contrary, Dr Morrison asked him a number of questions in cross-examination which assumed that it was indeed the trocar. 75 Dr Miller, it appears, has always believed that this was a trocar injury. In a letter dated 6 March 1992 to Dr Brennan, he referred to the "insertion of the laparoscopic port" as resulting in injury. This was also the assumption which underpinned the whole of his evidence, including his cross-examination. 76 In spite of the evidence of Drs Aroney and Sheldon, I must assume that it was the trocar which inflicted the injury on Mr Bloodworth. This is not only the assumption which underpinned the evidence of a number of the witnesses in the case, but it is also the scenario which is supported by the bulk of the evidence. 77 The question which remains is, in many ways, the central question in this case. Did the injury to Mr Bloodworth occur through a lack of due care on the part of Dr Miller? Or, to put it another way, was Dr Miller in breach of his duty of care to Mr Bloodworth? If the answer is in the affirmative, then Mr Bloodworth will have established the first ground upon which he relies. I now turn to discuss that matter. Was Dr Miller in breach of his duty to Mr Bloodworth? 78 The steps described by Dr Miller when he undertook this surgery appear in all respects to conform to standard surgical practice. Professors Davidson and Boulos both acknowledged this. Dr Gotley, who supervised Dr Miller in the early stages of his laparoscopic practice, said that Dr Miller's description of his technique in this case conformed exactly to the technique he had been taught which was the technique in general use at that time. The course of events, however, incontrovertibly shows that something went seriously wrong with this operation, and the real question to be determined is what this was. 79 It appears from the evidence that the mere fact that this injury occurred means that the trocar must have been inserted both too far and at the wrong angle. 80 The proposition that the trocar was wrongly angled did not receive a great deal of attention during the hearing, but the evidence appears to be all one way. Professor Boulos, in his report dated 21 January 1998, assumed that Dr Miller had miscalculated the angulation and depth required for the insertion of the needle or the trocar. He went on to say that this should not occur if reasonable care had been used. 81 Dr Sheldon was asked by his Honour at the last hearing how it was possible that these injuries occurred if, as Dr Miller described, the instrument was introduced at the midline at an angle of 45º. The doctor replied that, at that angle, neither the iliac artery nor the iliac vein would have been struck. The doctor went on to say: "He has been off course. He must have been off course. The point I have been trying to make, it is easy to go off course. You only have to be a few degrees off, you are that close. I can understand how the injury occurred." 82 Dr Aroney was also asked by his Honour whether, if the needle was placed in the midline at an angle of 45º, it could cause this damage. He replied: "Certainly it should not. It can vary; you can get anatomical variation where the prominence of the sacrum, where it meets the rest of the spine and it is very prominent and pushed the vessels forward in some women, not quite so often in men but it can occur. There can be anatomical variation that can damage these vessels." 83 Professor Maddern was also asked about this matter during his cross-examination. He said the damage to the vessels showed that the line which was taken was not, as he put it, the line that the surgeon would have been setting out to achieve. By definition, he said, Dr Miller was off line. However, Professor Maddern went on to say that it is not always easy to appreciate the angle at which one is going, and it is a mistake that is easy to make. He said: "It alarms me when I see where some of my trocars are going when I think they are in a completely different orientation." 84 An interesting article concerning this matter was contained in exhibit P33. It is called "Three Spectra Of Laparoscopic Entry Access Injuries" by Chandler and others and was published in the Journal of the American College of Surgeons (2001). This recorded that 18.5 percent of all primary entry injuries surveyed in the study were sustained by the iliac artery, and 8.9 percent by the iliac vein or another retroperitoneal vein. More importantly for present purposes, the article contained an analysis of the degree to which a trocar or needle needs to be off target in order to strike both the right iliac artery and the left iliac vein. The area in which the artery crosses in front of the vein is quite small, making it possible to know with reasonable accuracy the precise point at which the injury must have occurred. According to this article, the transverse (or sideways) deviation of the needle or trocar needs be only about 10º to strike these vessels. However the sagittal (or vertical) deviation needs to be 40º, which the authors describe as "considerable". 85 In addition to being off course, the trocar, by definition, must have penetrated too far in order to cause these injuries. Even Dr Miller acknowledged that this had to be the case. 86 It is to be remembered that the trocar contains a safety mechanism whereby the sharp point retracts back into the sheath as soon as pressure is released, which normally means that the trocar has passed through the abdominal wall. Dr Miller said that he stopped pushing the trocar as soon as he felt this happen. Assuming that he did this, and assuming also that it was the trocar which inflicted Mr Bloodworth's injuries, the trocar must already have penetrated well beyond the abdominal wall before this happened. For as soon as the point retracts, the trocar becomes a blunt instrument which would have been incapable of inflicting this type of injury. 87 The trocar used on this occasion was a disposable one and was thrown away by Dr Miller after the surgery. It has from time to time been suggested that the trocar might have been defective, in that the point failed to retract when it should have. However there is no evidence in support of this proposition, and in the end it was expressly disclaimed by Mr Glissan on behalf of the defendant. There remains a possibility, however, even with a properly functioning trocar, of a slight delay between the release of pressure and the retraction of the point. 88 There was a considerable body of evidence in this case as to the distance between the abdominal wall and the iliac vessels. The distance, of course, will vary according to whether pneumoperitoneum has been established. The evidence indicates that in the absence of pneumoperitoneum, there can be a very small distance between the abdominal wall and the major vessels, at least in a thin person as Mr Bloodworth was. This is why, Professor Davidson said, it is of crucial importance that the surgeon lift the abdominal wall whilst inserting the veress needle. This evidence, however, becomes academic if one assumes, as I think I must, that it was the trocar which inflicted the injury in this case. For when the trocar is introduced, the abdomen has already been fully insufflated, thereby significantly increasing the distance between the abdominal wall and the retroperitoneal vessels. 89 Accordingly, the discussion which follows deals only with the evidence relating to the dimensions and distances in a fully insufflated abdomen. 90 The medical evidence varied considerably as to the distance between the abdominal wall and the retroperitoneal vessels in a fully insufflated abdomen. One matter which all witnesses agreed upon was that the space varies according to the age, fitness level and build of the patient. In a young, thin person the space will be significantly less than in an older or fatter person with a lax abdomen. Mr Bloodworth was thirty-four at the time of this surgery. On all accounts he was a thin, fit man, accustomed to manual labour. He would therefore be likely to have fallen into that end of the spectrum which has a relatively low intra-abdominal space. On the other hand, there is no suggestion that Mr Bloodworth had any anatomical abnormality. Accordingly, he fits within the normal spectrum, albeit that he was probably towards one end of it. 91 Even the three surgeons called by the defendant at the last hearing diverged considerably in their assessment of the distance between the abdominal wall and the iliac vessels in an adequately insufflated abdomen. Dr Glen, in his earlier report, had surmised that the introduction of the trocar might have tented the abdominal wall down as far as the blood vessels so that it penetrated them before the resistance to the trocar ceased and the point retracted. However, as Dr Glen later conceded in his evidence, this hypothesis was based on the assumption that there had been inadequate insufflation of the abdomen before the introduction of the trocar. There is no evidence to support this assumption. Dr Glen was asked by his Honour to estimate the distance between the abdominal wall and the iliac vessels in a properly insufflated abdomen. He replied that in his opinion this distance might well be "several inches." He agreed that the trocar had to go "a long way" in order to damage these vessels. 92 The other surgeons who gave evidence at the previous hearing did not agree with Dr Glen's assessment of "several inches". Dr Sheldon estimated that with a thin patient and standard insufflation the distance between the abdominal wall and these vessels might be only 1 to 2 cm. Dr Aroney did not estimate a distance, but he said that even with adequate insufflation, the tip of the trocar can go "perilously close" to the retroperitoneal vessels. 93 Professor Boulos agreed with Dr Glen that with a fully insufflated abdomen the distance from the abdominal wall to the iliac vessels would be several inches. "A long way", he described it. Interestingly, Professor Davidson, without having been referred to Dr Glen's evidence, used precisely the same phrase, "several inches", to describe the distance between the abdominal wall and the injured vessels. 94 Professor Maddern emphasised the extent of the variation which occurs between young fit patients and older obese ones. With a young, fit person the distance from the inner lining of the abdomen to the retroperitoneum, he said, would be in the order of 2 to 3 inches. 95 Professor Maddern was, as I have said, an extremely impressive witness. So too was Professor Davidson, who estimated the distance at "several inches". Of course the word "several" is very imprecise, as Dr Miller pointed out in his evidence. I would take it, however, as meaning more than two. In the circumstances, I think I should accept that, in a young thin person such as Mr Bloodworth, the distance between the abdominal wall and the retroperitoneal vessels in a fully insufflated abdomen would have been in excess of two inches, and probably in the order of three inches. 96 The evidence shows, however, that pressure on the trocar, before it penetrates the abdominal wall, can produce an extensive downward bulging or "tenting" effect on the inside of the abdominal wall which will reduce the distance between the wall and the internal structures. This was illustrated in the videos which were produced by the defendant and shown in court during the course of Dr Miller's evidence. It will be remembered that the veress needle is only 2 to 3 mm in diameter whereas the trocar is much thicker. Even with the trocar's sharp point, the abdominal wall, which consists of fibrous tissue, can be resistant to penetration, particularly in a young fit person. It is for this reason, Professor Davidson said, that counter-traction should be utilised when inserting the trocar, normally by lifting the abdominal wall with the assistance of clips. Dr Miller did not mention adopting this procedure when he described Mr Bloodworth's operation. It would seem unlikely that he did so. However I do not think that I should use this in any way against him. There was considerable evidence in the case that this device can be ineffective in a fully insufflated abdomen. Moreover Dr Truscott said that the use of counter-traction is "not common accepted practice in Australia." 97 This brings me back to the central question, namely whether Mr Bloodworth's injuries were attributable to a lack of care on the part of Dr Miller. 98 It is axiomatic that there must have been an error of technique on Dr Miller's part, or this injury would not have occurred. The trocar went in at the wrong angle and it went in too far. The real question is whether this was a mere misadventure, an inherent risk of this type of surgery which can occur notwithstanding that all due care is taken; or whether, on the other hand, it was an avoidable error which denoted a lack of appropriate care. 99 At this stage it is apposite to refer to the following passage from Whitehouse v Jordan (1981) 1 WLR 246 at 263, which was quoted by Ipp J.A. in his judgment in this case (insert citation of appeal judgment) "The true position is that an error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have a standard and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligent". 100 As I have indicated, there is a sharp division between the medical experts on this matter. Both Professors Boulos and Davidson considered that this was an unacceptable and avoidable injury. Professor Davidson described it as "extremely unlikely" that this injury would occur if due care was taken by the surgeon. As Professor Davidson put it, "there are some injuries which might occur in laparoscopic cholecystectomies despite excellent technique and a very high standard of care". However he did not consider that major vascular injury fell within that spectrum. 101 The surgeons called by the defendant at the last hearing did not agree with this assessment. Drs Sheldon and Glen considered that injury to the iliac vessels was an intrinsic risk associated with the blind introduction of sharp instruments into the peritoneal cavity. Even with an experienced and careful surgeon, they said, this type of injury can occur. Professor Maddern, in his report dated 28 May 2003, made the following comment about Professor Davidson's assertion that this was an unacceptable injury. "I find it difficult to accept, given that trocar injuries do occur and have been reported to occur widely in the literature from careful surgeons. It is an unfortunate and rare injury, but to state that it is unacceptable shows little regard for problems of mechanical failure, unusual anatomy or accepted misadventure which occurs with any surgical intervention." 102 In this particular case, we can put aside the possibility of mechanical failure or unusual anatomy. There is no evidence of any malfunction in the disposable trocar used by Dr Miller which was thrown away immediately after this operation. Nor was there any suggestion that Mr Bloodworth had an "unusual anatomy." His only previous surgery was an appendectomy. The evidence indicates that this is unlikely to leave adhesions in the area where the iliac vessels lie. Indeed Mr Glissan expressly disclaimed the suggestion that Mr Bloodworth had any relevant anatomical abnormality. 103 The third category mentioned by Professor Maddern was "accepted misadventure", and the central question here is whether Mr Bloodworth's injury was indeed an accepted misadventure, or whether it was an unacceptable one which denoted a lack of appropriate care. The onus, of course, lies upon the plaintiff to establish the latter, so that if I am unable to say which it was, then he must fail. 104 As discussed earlier, this injury is an extremely rare one. The incidence of vascular injury generally is very low in laparoscopic surgery, and this is only one of the vascular injuries which can occur. If anything, this probably weighs in favour of the plaintiff. If the risk of this type of injury is an ever present feature of this type of surgery, as the defendants' experts say, why does it happen so rarely? 105 It is to be remembered that the fact of this injury inevitably denotes a two-fold error on Dr Miller's part. Not only was the trocar inserted too far, but it was inserted at the wrong angle. 106 I acknowledge the evidence of the defendants' experts that the misangulation of the trocar is an easy mistake to make. Nevertheless, it is an extremely dangerous mistake which a careful surgeon should seek at all costs to avoid. It was suggested in the evidence that an operating surgeon might become disorientated by the patient being in the Trendelenberg position, thus leading the surgeon to miscalculate the angulation of the needle or the trocar. But, as Professor Davidson pointed out, it is the surgeon who puts the patient in this position, so he or she should not be disorientated by it. 107 This was, however, only one of the errors made by Dr Miller during this operation. The second, of inserting the trocar too far, is even more inherently dangerous. It is also, in my view, an error which can be avoided with the exercise of due skill and care. In this respect it is to be remembered that the trocar passed not only through the fully insufflated abdomen, but it also penetrated through the retroperitoneum and the iliac artery before piercing the iliac vein, which lies behind the artery. Moreover Mr Bloodworth was, as I have said, a thin, fit man. It was likely that he had little if any subcutaneous fat, and his abdominal wall would therefore have been quite thin, as Dr Miller should have known. Yet in order to inflict these injuries, the trocar must have been inserted to a considerably greater depth than would have been required in order to pierce this wall. 108 There are two respects in which I find it extremely difficult to reconcile Dr Miller's account of this surgery with the fact that these injuries occurred. The first, which is probably of little importance to the central question of negligence, is simply this. Assuming that the injury was caused by the trocar, which by definition must have been inserted too far, why did this not become obvious when Dr Miller inserted the camera? Dr Miller said that the camera showed a normal abdominal cavity, with normal omental fat. In other words, when the camera was inserted, the trocar was in its correct position, immediately inside the abdominal wall. There are two possible explanations for this. The first and most likely, is that Dr Miller had already retracted the trocar some distance before he inserted the camera. The only other explanation is that it was the veress needle which caused the injury, and the trocar never penetrated beyond the abdominal cavity. However for the reasons given above I must assume that it was the trocar, not the needle, which caused this injury. 109 The other portion of Dr Miller's evidence which I find difficult to reconcile with the fact of this injury is his description of the insertion of the trocar. In his previous evidence, Dr Miller said that he felt "minimal" resistance as he inserted the trocar into Mr Bloodworth's abdomen. He repeated this on a number of occasions. It was one of the reasons he told Dr Doolan that he thought internal haemorrhaging was unlikely. 110 It is, as indicated, difficult to reconcile an easy entry of the trocar with the fact of this injury. Most doctors assumed that the abdominal wall must have tented downward whilst the trocar was being introduced, thus bringing it closer to the iliac vessels. But the evidence relating to the tenting of the abdominal wall is based on the assumption that the wall is resistant to the trocar, and that the trocar needs to be pushed downward on the wall before penetrating it. If this did not happen in Mr Bloodworth's case, it is difficult to understand how the trocar travelled the distance between the abdominal wall and the iliac vessels without Dr Miller realising it. Why did the sharp point of the trocar not retract in the meantime? 111 These are unanswerable questions on the present state of the evidence. It is always possible, of course, that it was the veress needle that did the damage. But for the reasons already given, the trocar seems to be by far the most likely culprit. 112 It is also more than likely that Dr Miller's account of this surgery is coloured by hindsight. This is no reflection on the doctor's credibility. It can and does happen with the most honest of witnesses, particularly when they are describing an unpleasant and unexpected event. Moreover by the time Dr Miller came to give his account of this surgery, a number of years had already passed since January 1992. 113 in January 1992 Dr Miller was relatively inexperienced in laparoscopic surgery. He was experienced in general abdominal surgery and he should have been thoroughly familiar with the anatomical structures involved in this operation. But laparoscopic techniques were still relatively new to him. He was, as he put it, on a "learning curve". This does not affect the duty he owed to Mr Bloodworth which was a duty to exercise the degree of skill and care that, as a skilled professional, he was expected to have and to take (per Mahony AP in Ainsworth v Levi (unreported, NSWCA, 30 August 1995). But Dr Miller's inexperience provides a likely explanation for the occurrence of these injuries, rare as they were. The evidence strongly indicates that the incidence of penetrating injuries in laparoscopic procedures is higher with inexperienced surgeons than with experienced ones.. 114 In the end, I must conclude that these injuries would probably not have occurred had Dr Miller exercised the requisite degree of skill and care when he conducted this surgery. I make this finding not on the basis of the unanswered questions which I posed earlier. I am well aware of the need for the plaintiff to affirmatively prove his case. And in my view he has done so. This was, as everybody agrees, an inherently hazardous procedure involving the blind insertion of extremely sharp instruments. As such, the operating surgeon was under a duty to take particular care to ensure that the instruments were correctly angled and that they did not penetrate too far. This, on my finding, Dr Miller failed to do. 115 I therefore find in favour of the plaintiff under the first head of negligence. 116 On one view, this makes it strictly unnecessary to deal with the other grounds of negligence relied upon by the plaintiff. However, given the history of this matter, counsel have suggested that I should deal with all heads of negligence. I shall do this, but I propose to be much briefer in my discussion of the other heads than I would have been had they stood alone. The delayed laparotomy ground 117 This claim is based on the proposition that Dr Miller, as a reasonably prudent surgeon, should have performed an open laparotomy on Mr Bloodworth immediately after he had been resuscitated from his cardiac arrest. This happened at about 3.32 pm. The laparotomy was not performed until after 4.15 pm, when Mr Bloodworth showed signs of haemorrhaging. At that time two to three litres of blood were found in the retroperitoneum and the peritoneal cavity. This was a very significant blood loss, amounting to approximately half of the body's normal blood. Mr Bloodworth urges that much of this blood loss would have been averted had an earlier laparotomy been performed. This might in turn have reduced the long term damage suffered by Mr Bloodworth as a result of this surgery, particularly his neurological damage. 118 The plaintiff's case under this head is based upon the proposition that there is such a strong correlation between a CO2 embolism and major vascular injury that a prudent surgeon would not have waited for overt signs of haemorrhaging, but would have immediately conducted an open laparotomy in order to investigate the source of the embolism and prevent any further blood loss. In this, the plaintiff is again relying on the reports and evidence of Professors Davidson and Boulos. Professor Boulos, particularly in the early stages of his evidence, expressed the strong view that a CO2 embolism was inevitably associated with major vascular injury. This proposition was disputed by a number of the other experts. Professor Boulos also said that a CO2 embolism could result from arterial injury, a proposition which all other doctors described as untenable, given that the artery pumps blood away from the heart at much greater pressure than the maximum pressure of CO2 in a fully insufflated abdomen. The damage to the artery would certainly have been responsible for most of Mr Bloodworth's blood loss, but it was clearly the breaching of the vein which caused the embolism, as it enabled the CO2 to travel up to his heart. 119 The fact that CO2 embolisms are associated with venous, as opposed to arterial injury, is significant, as some of the experts indicated that a CO2 embolism can readily arise from a relatively small venous injury, which will then close up without surgical intervention. 120 There are a number of difficulties inherent in this claimed ground of negligence. Even if I were to find that there had been some lack of care on the part of Dr Miller, the assessment of damages would have been an impossible task. The bulk of the evidence indicates that any brain damage suffered by Mr Bloodworth as a result of this surgery was almost certainly sustained during the period of cardiac arrest. It would not be possible to assess how much, if any, of Mr Bloodworth's subsequent impairment was attributable to the blood loss he sustained in the forty minutes or so after his revival from the cardiac arrest and before the performance of the laparotomy. 121 This difficulty, however, does not need to be addressed. For I am firmly of the view that no lack of care has been demonstrated in relation to this ground. 122 It is to be remembered that Mr Bloodworth's cardiac arrest occurred at about 3.20 pm. At that stage the anaesthetist, Dr Doolan, took over the management of the emergency. It was only after heart function had been restored, at about 3.32 pm, that the possibility of laparotomy could be contemplated. At this time Mr Bloodworth was in a critical condition. Very good reason would be required before a patient in that condition should be subjected to major surgery such as laparotomy. 123 The evidence indicated that Dr Miller, as the operating surgeon, had the ultimate responsibility for deciding whether to perform a laparotomy. This decision would generally be made in consultation with the anaesthetist. Interestingly, the anaesthetist in this case, Dr Doolan, was the only expert involved in this case who had any previous experience of a CO2 embolism during the course of laparoscopic surgery. On this previous occasion, the patient had made a full recovery without the need for surgical intervention. Dr Doolan acknowledged that there was a "significant risk" of internal bleeding from a vascular injury after a CO2 embolism, but he would place the risk factor no higher. He emphasised that, for a patient in a critical condition, as Mr Bloodworth was, a laparotomy was a dangerous procedure which should only be performed for good reason. 124 Dr Holland, an experienced anaesthetist, said that it is common to have a CO2 embolism without severe bleeding. Venous injury is always a possibility, he said. However he did not think it was necessary in this case to perform a laparotomy on the basis only of the occurrence of the CO2 embolism. 125 A number of the experts commented that the techniques used by Dr Doolan and the surgical team in dealing with Mr Bloodworth's emergency were exemplary. The only criticism levelled by the plaintiff, or anyone else for that matter, related to the delay in performing the laparotomy. 126 I do not consider that this criticism is warranted. Still less do I consider that there was any negligence on the part of Dr Miller in delaying the performance of the laparotomy until it was clearly necessary. To the contrary, I think that there would have been a much stronger case against Dr Miller if he had performed an early laparotomy which turned out not to be necessary and which had adverse consequences to Mr Bloodworth. 127 On my finding this ground has not been made out. 128 The remaining ground relates to what were said to be inadequate warnings given by Dr Miller to Mr Bloodworth as to the hazards of laparoscopic surgery and as to his own lack of experience in this field. The adequacy of warnings given by Dr Miller 129 Mr Bloodworth saw Dr Miller on three occasions before the surgery, on 19 September 1991, 15 November 1991 and 21 January 1992. It was after the second consultation, in November 1991, that Mr Bloodworth was booked in for surgery early in the following year. 130 Mr Bloodworth made a statement in May 1992 in which he said that he saw Dr Miller in about October 1991. Dr Miller explained to him that there was a new procedure for removing gallstones, called a laparoscopic cholecystectomy. The statement continued: "Not knowing what precisely this term meant, Dr Miller said the procedure involved making a small incision, of no more than 10 cm in length in my lower stomach and inserting into the incision, an instrument which was similar to a gas valve and could be pumped up externally. This gas valve (for want of a better term) was then used to inflate my abdomen so that surgical instruments could be entered through the incision to get up to the area of my gallstones and remove them. Dr Miller told me that the apparatus for doing this sort of surgery was just coming into the Gold Coast Hospital and that I should wait for about 2 months until around Christmas or after Christmas 1991 to have the surgery done so all the new equipment could be in place. Dr Miller also told me that I was a prime candidate for this sort of surgery because I was fit and healthy and did not carry much excess body fat at all. Dr Miller did mention that he could not give a guarantee that the surgery would be 100% successful. He asked me to sign a form permitting him to do the removal of the gallstones with the usual incision under the rib cage if there were problems that arose using the new laparoscopic method. I signed the consent form which would permit Miller to remove my gall bladder using the "old method" which was essentially an incision under the rib cage. Miller did not tell me of any specific dangers or risks in the laparoscopic procedure. He in fact assured me that this new laparoscopic method would be a method adopted for removing gallstones from now on into the future. He implied that the procedure was relatively safe and without major risks or dangers. At least that is what I understood him to mean. On another consultation prior to the surgery he said to me words to the effect that he was looking forward to working on me because I was a good physical specimen and an ideal candidate for this type of procedure." 131 Mr Bloodworth's statement then went on to describe a further consultation with Dr Miller, following which he (Mr Bloodworth) booked himself into the Gold Coast Hospital for an operation the following January. There was no reference to any conversation at that consultation except in relation to Mr Bloodworth's status as an intermediate or public patient. 132 At the previous hearing Mr Bloodworth gave evidence that Dr Miller told him, at either the first or the second visit, of the advantages of laparoscopic surgery. Mr Bloodworth could not recall on which occasion any specific statement was made. Dr Miller told him that laparoscopic procedures were less traumatic, there was a shorter stay in hospital and that there would be minimal scarring. He said that this was the surgery of the future. Dr Miller did not, Mr Bloodworth said, tell him of any disadvantages in this type of surgery, but he did warn him that it sometimes had to be converted to an open procedure because of, for instance, blood on the camera. Dr Miller told him that he had to do this in two or three of the last fifteen operations he had performed. As to Dr Miller's level of experience, Mr Bloodworth said that he knew from Dr Miller's business card that he had an honours degree from Sydney University. As he put it, "I was happy as Larry with that." At some stage, Mr Bloodworth said, he asked Dr Miller a question about surgical experience in laparoscopies. He was unable to remember the precise terms of the question, but he did remember the answer, which was; "all our surgeons have done the same amount of operations. We have all had the equipment the same amount of time." He did not remember Dr Miller telling him that he was on a learning curve. Mr Bloodworth said that if he had been told that Dr Miller was "relatively inexperienced" in the laparoscopic technique, he would not have used his services. 133 As to Dr Miller's version of these events, the plaintiff tendered his answers to interrogatories dated 27 March 1997. In these answers, the doctor said that he did not have an exact recollection of what was said at each consultation with Mr Bloodworth. However he recalled that Mr Bloodworth asked a number of questions about the benefits and risks of the laparoscopic procedure and that he was very thoughtful and pondered the responses to his questions. Based on his recollection and on his usual practice at that time, Dr Miller said that he would have told Mr Bloodworth of the benefits of undergoing laparoscopic cholecystectomy, which included avoiding a large cut in the abdomen and a much shorter recovery time. He said that he would have told Mr Bloodworth that the risks of the procedure included problems resulting from difficulties with the identification of the patient's anatomy and excessive bleeding. He would have stressed that if there were any problems at all, the operation would be converted to an open cholecystectomy while he was still under general anaesthetic. As to his level of experience, Dr Miller said as follows: "I would have told the plaintiff that the LC was a new procedure that had only been available for about two years in Queensland and that we had been performing it in the Gold Coast Hospital since May 1991. I recall that I told the plaintiff that we were still on a learning curve." 134 In fact, the evidence shows that, when Dr Miller first saw Mr Bloodworth, in September 1991, he had yet to perform his first laparoscopic cholecystectomy. Indeed the equipment was not yet available at the Gold Coast Hospital to enable this type of surgery to be performed. 135 Dr Miller's training and experience in laparoscopic cholecystectomies was the subject of considerable evidence at the previous hearing. It started with Dr Miller's evidence in chief. He said that in about September 1990 he went to a two-day course in Melbourne which involved training in laparoscopic cholecystectomy. The first day and part of the second day involved a series of lectures. They were then put into small groups and given a practical demonstration of the procedure in an animal laboratory using a pig. Subsequent to this Dr Miller attended the Princess Alexandra Hospital in Brisbane where he observed colleagues performing laparoscopic cholecystectomies. He did not participate in the surgery himself, except on one occasion when he held the camera. 136 Dr Miller was unable to remember, when he first gave his evidence, when it was that he first performed a laparoscopic cholecystectomy himself. He thought it was in the latter part of 1991. The first two operations, he said, were performed together with Dr Michael Borten, the director of surgery at the Gold Coast Hospital. One of them had to be converted to an open procedure. They were not happy with the procedure, Dr Miller said, so he contacted Dr Gotley, who was then senior lecturer at Princess Alexandra Hospital, and whom Dr Miller had seen performing a number of laparoscopic cholecystectomies. Dr Gotley agreed to come to the Gold Coast Hospital and perform the procedure for them, with Dr Miller acting as assistant. 137 Dr Miller was cross-examined on the last occasion on the basis that he told Mr Bloodworth, in November 1991, that he had performed fifteen laparoscopic cholecystectomies. He had not performed fifteen at that time, he responded, and he would not have told Mr Bloodworth that he had. He said that he told Mr Bloodworth that the surgeons at the Gold Coast Hospital all had much the same degree of experience in this procedure. He denied that he told him that he had the same level of experience as other doctors in the country. 138 The plaintiff tendered a document setting out a chronology of laparoscopic cholecystectomies performed by Dr Miller at the Gold Coast Hospital. The first of these was performed on 7 October 1991, with Dr Miller and Dr Bennett as principal surgeons and Dr Borten as assistant surgeon. The fourth procedure, on 28 October 1991, showed Dr Miller as principal surgeon and Dr Gotley as assistant. By 15 November 1991, when Dr Miller saw Mr Bloodworth for the second time, he had performed seven laparoscopic cholecystectomies. By the time he performed Mr Bloodworth's operation, on 28 January 1992, he had performed fifteen, most of them as principal surgeon or joint principal surgeon. These were the only laparoscopic cholecystectomies performed by Dr Miller at that time. He was performing these procedures exclusively at the Gold Coast Hospital. 139 It is unlikely that this document was available to counsel during Dr Miller's previous evidence. He was not, so far as I can see, directly cross-examined upon it, although the document itself was later admitted into evidence. He was certainly cross-examined about it during his evidence before me. Dr Morrison asked him why he had said in his answers to interrogatories that he and other Gold Coast surgeons had been performing cholecystectomies since May 1991, when in fact they did not commence this procedure until some months later. Dr Miller replied that, when he answered the interrogatories, the medical records were unavailable so he used his best recollection of the dates and numbers of laparoscopic procedures performed by him. Dr Morrison put to him that, when he first saw Mr Bloodworth on 19 September 1991 and advised him to undergo a laparoscopic cholecystectomy, not one of these procedures had been performed at the Gold Coast Hospital, which did not yet have the requisite equipment. Dr Miller agreed that, in retrospect, this was so. However by the time of Mr Bloodworth's second consultation, some procedures had been performed. He said "I am not sure of the exact dates but there was no attempt to mislead Mr Bloodworth." 140 Neither Mr Bloodworth nor Dr Miller could recall, by the time they came to give their evidence, what had been said on each of the specific occasions when they met. However some conclusions can be drawn from the surrounding circumstances. For instance, it must have been on the first occasion, in September 1991, that Dr Miller described the laparoscopic cholecystectomy procedure to Mr Bloodworth and told him that the equipment was not yet available. By the time of the second consultation, in November 1991, the equipment had already been installed and some operations had been performed. Similarly, I think it likely that Dr Miller's reference to the "last fifteen laparoscopic cholecystectomies" was probably made on 21 January 1992. At that time he had in fact performed fourteen. And I do not think that Dr Miller was deliberately dissembling to Mr Bloodworth, in spite of the fact that he grossly understated the number of laparoscopies which had been converted to open procedures by that time. 141 One thing which is clear from the evidence is that Mr Bloodworth was never told that there were specific risks associated with laparoscopic procedures which did not exist with the open procedure. Even on Dr Miller's version of what was said, the impression was clearly conveyed that any complications which occurred during the laparoscopic procedure could be rectified by converting to an open procedure. 142 There was, in my view, no obligation Dr Miller to warn Mr Bloodworth about the precise injury which occurred on this occasion, namely injury to the iliac artery and/or the iliac vein. Not only was it a rare injury, but my finding that this injury was not an inherent risk of the surgery, but rather was the result of Dr Miller's negligence, means that there was no obligation to warn a patient about it. In this sense this "lack of warning" ground might be seen as an alternative to the "negligent performance" ground. 143 There are, however, other ways of looking at the situation. Injury to the iliac vessels is but one of a number of injuries which can be caused by the blind insertion into the abdomen of the needle and the trocar. Most, if not all, of the medical experts expressed the view that laparoscopic procedures carry an inherent hazard by reason of the blind insertion of these very sharp instruments. In my view Dr Miller, as the operating surgeon, should have warned Mr Bloodworth of this fact. This, after all, is a foreseeable risk in certain circumstances which is exclusive to laparoscopic procedures, and it is one which can, eventuate without negligence. 144 The risk of Mr Bloodworth sustaining abdominal injury as a result of the blind insertion of the veress needle and the trocar was, in my view, a material risk. As the majority of the High Court said in Rogers v Whittaker (1992) 175 CLR at 479: "…a medical practitioner has a duty to warn the patient of a material risk inherent in proposed treatment. A risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. 145 In this case, Mr Bloodworth was asked, in effect, to choose between the two procedures without being given sufficient information to enable him to make an informed choice on the matter. A reasonable person in his position would be very likely to attach significance to this type of information. 146 Moreover the evidence shows that with a thin person, as Mr Bloodworth was, there is a higher risk of injury from these sharp instruments, because the peritoneal and retroperitoneal structures are closer to the abdominal wall. It is in the later stages of laparoscopic cholecystectomies, when the gall bladder is being isolated, dissected and removed, that the surgery is easier and safer with thin patients. This is presumably what Dr Miller was referring to when he described Mr Bloodworth as an ideal subject for this type of surgery. In my view, he should have told Mr Bloodworth of the increased risk to a thin patient of sustaining injury from the blind insertion of the initial instruments. 147 It goes even further, for the evidence overwhelmingly indicates that there is a higher risk of injury in laparoscopic surgery when it is performed by surgeons who are inexperienced in this type of procedure. Dr Miller was relatively inexperienced in this field. Indeed I have already found that the errors he made in Mr Bloodworth's case were at least partially attributable to his lack of experience. 148 This takes me to the plaintiff's claim that Dr Miller should have told him of his relative lack of experience in these procedures. 149 It is clear that Dr Miller told Mr Bloodworth that laparoscopic cholecystectomies were new procedures and, as at September 1991, they had not yet been performed at the Gold Coast Hospital. I accept that Dr Miller probably also told Mr Bloodworth that his experience was similar to that of other doctors operating in that hospital. That was no doubt correct, but it was, in my view, quite inadequate to convey to Mr Bloodworth the actual level of their inexperience. Mr Bloodworth was not to know, unless he was told, that Dr Miller was not performing this type of surgery outside the hospital. 150 Mr Glissan submitted that the date upon which Dr Miller's experience is to be assessed for the purpose of this ground is the date on which the procedure was performed, namely 28 January 1992. In one sense this must be correct. On the other hand, it was in November 1991 that Mr Bloodworth arranged to undergo the surgery the following year. At that stage, Dr Miller had performed only seven of these procedures. He was still in the very early stages of his learning curve. 151 Certainly, back in 1991, many other surgeons (outside the gynaecological field) were also relatively inexperienced in this area. However, I do not consider that this absolved Dr Miller of his duty to inform Mr Bloodworth of his own level of experience. Although Mr Bloodworth could not recall Dr Miller telling him that he was on a "learning curve", I think it likely that this was said, probably in November 1991. But that was, in my view, inadequate to convey Dr Miller's actual level of experience at that time. 152 In conclusion, I find that the warnings given by Dr Miller to Mr Bloodworth in September and November 1991 were deficient in the following respects. Dr Miller failed to inform Mr Bloodworth of the danger, specific to laparoscopic procedures, of injury arising from the blind insertion of sharp instruments into the abdomen. He failed to tell Mr Bloodworth that there was an increased risk of this type of injury in his case because of his thin build. Finally, he failed to tell Mr Bloodworth that he himself had performed very few of these procedures and would therefore still be relatively inexperienced by the time of the projected surgery. 153 The risk of which Mr Bloodworth should have been warned clearly eventuated in this case. Although there was no obligation to warn him of the risk of the precise injuries he sustained, his injuries resulted from the very hazard of which he should have been warned. This serves to establish the requisite connection between Dr Miller's breach of duty and the subsequent injury suffered by Mr Bloodworth. It makes no difference, if one adopts this approach, that there was also negligence in the performance of the surgery. 154 The substantial issue which remains is that of causation. It is incumbent upon Mr Bloodworth to establish that, had he been given appropriate warnings in this case, he would not have undertaken this surgery, at least not at the hands of Dr Miller. The test is a subjective one, as was emphasised by the High Court in Rosenberg v Percival (2001) 205 CLR 434. 155 In his judgment after the last hearing, McInerney AJ concluded that inadequate warnings had been given to Mr Bloodworth. His Honour made this finding in somewhat tentative terms. He then went on to find against Mr Bloodworth on the issue of causation. He was not satisfied that, if appropriate warnings had been given, Mr Bloodworth would have adopted a different course. However I have taken a stronger view than his Honour did as to the inadequacy of the warnings given by Dr Miller. I have also taken a more favourable view than his Honour did about Mr Bloodworth's general credibility. I shall be discussing this later. 156 Mr Bloodworth was and is an intelligent man. Dr Miller described him as being thoughtful, and pondering the answers to his questions. Had he been warned of the danger of internal injury arising from the blind insertion of very sharp instruments into his abdomen, I am certain he would have wanted to know more about it. Had he been told, as he should have been, that the risk was higher with people of his build, it is very likely that he would have become quite concerned. Finally, had he been told in November 1991 that Dr Miller had performed only seven of these procedures, I do not believe that he would have proceeded, as he did, to book himself in to have this surgery performed by Dr Miller in a little over two months time. 157 When Mr Bloodworth gave his evidence at the previous hearing the document showing the true extent of Dr Miller's experience in laparoscopic cholecystectomies was not yet available to counsel. Therefore Mr Bloodworth was not asked about it. In evidence before me, he was asked what he would have done if he had known, in November 1991, that Dr Miller had performed only seven of these procedures. He said: "I would have gone elsewhere and I did have the option of going to see a Dr Peter Van Gelderen in Sydney." I accept this evidence. Dr Van Gelderen was a friend of Mr Bloodworth's family and it had already been suggested that he might consult him. In my view, if Mr Bloodworth had been informed of the risks inherent in laparoscopic surgery, and of Dr Miller's relative inexperience in this field, he would have elected to consult Dr Van Gelderen rather than proceed with surgery at the hands of Dr Miller. 158 As the majority said in Chappel v Hart (1998) 195 CLR 232, the plaintiff's damages in a failure to warn case should not be reduced simply because, notwithstanding that steps that might be taken to reduce the risk of injury, there was still a possibility that the same kind of injury might have been suffered in any event. As Gaudron J said, at page 239: "Where there is a duty to inform it is, of course, necessary for a plaintiff to give evidence as to what would or would not have happened if the information in question had been provided. … it is to apply sophistry rather than common sense to say that, although the risk of physical injury which came about called the duty of care into existence, breach of that duty did not cause or contribute to that injury, but simply resulted in the loss of an opportunity to pursue a different course of action. ... the duty was to inform her of that risk. And that particular duty was imposed because, in point of legal principle, it was sufficient, in the ordinary course of events, to avert the risk of physical injury which called it into existence. And the physical injury having occurred, breach of the duty is treated as materially causing or contributing to that injury unless there is "sufficient reason to the contrary". 159 It follows that Mr Bloodworth has succeeded also in this aspect of his claim. I now turn to the question of damages. DAMAGES Introduction 160 There were many contentious issues relating to damages in this case. Indeed the bulk of the evidence, both documentary and oral, was primarily directed to questions relating to damages. 161 Mr Bloodworth claims that he has suffered neurological, psychological and physical injury as a result of the operation in January 1992. By far the most serious and the most contentious of these is the claim that he suffers brain damage. Mr Bloodworth's claim in this respect is that by reason of the cardiac arrest and its sequelae he suffered anoxic brain damage. This has manifested itself in personality changes and behavioural problems as well as in specific cognitive and memory deficits. In addition, he says that he now suffers from grand mal epilepsy. 162 The defendants dispute that Mr Bloodworth has suffered any brain damage at all. They assert that the episode on 28 January 1992 was not likely to cause anoxic brain damage. They dispute that Mr Bloodworth has any of the deficits which he claims. To the extent that he now has behavioural problems or personality dysfunction, the defendants say that these existed before his surgery. To the extent that he has cognitive or memory deficits, which is not conceded, the defendants say that these are probably caused by the drugs which he has been taking. Finally, the defendants dispute that Mr Bloodworth suffers from epilepsy. They say that he has been manufacturing the symptoms of epilepsy for the purposes of this litigation. 163 Similarly, the defendants dispute that Mr Bloodworth has any continuing physical or psychological sequelae arising from this surgery. 164 Before I turn to consider these matters, I should say something about the plaintiff's credibility. McInerney AJ took an extremely adverse view about the plaintiff's general credibility and veracity. At one point in his judgment, his Honour said that he could not believe anything Mr Bloodworth said. The defendants in their written submissions to me referred to the plaintiff's "extremely brief" evidence in chief before me, at a time when he was clearly taking medication. The defendants submitted that the brevity of Mr Bloodworth's evidence and the effects of the medication upon his presentation, meant that I had limited opportunity to make an independent and informed assessment of his character and intellect. Accordingly, they submitted, I should seek guidance and assistance on these matters from McInerney AJ's judgment. It was suggested that I "must necessarily find it difficult to differ" from McInerney AJ's assessment of Mr Bloodworth's credibility. 165 The plaintiff's evidence before me was by no means brief. It occupied in excess of two days. Certainly the great part of this was taken up with cross-examination rather than evidence in chief. However this would, if anything, have enhanced rather than reduced my opportunities to make assessments as to Mr Bloodworth's character and credibility. Certainly also the drugs Mr Bloodworth was taking would have, to some extent, affected his presentation. He was probably flatter in his affect and less volatile than he would otherwise have been, and his memory was no doubt slightly impaired. I have taken all this into account. It does not, in my view, affect my capacity to assess Mr Bloodworth's credibility. Indeed I consider that I would be seriously remiss if I were to defer to McInerney AJ's assessments on these matters rather than reaching my own conclusions. 166 This is important because, as I mentioned earlier, I have taken a considerably less adverse view than his Honour did as to the plaintiff's credibility. This is by no means to say that I regard him as a straightforward and honest witness. Far from it. To start with, Mr Bloodworth has a strong tendency to exaggerate. This is apparent both from his evidence before McInerney AJ and before me. It was particularly demonstrated in the histories Mr Bloodworth gave to many of the doctors he has seen over the years. Indeed, in many of these cases, the words "exaggeration" and "embellishment" are too mild to convey the plaintiff's distortion of the truth. 167 There are two principal differences between McInerney AJ's assessment of the plaintiff and my own. The first relates to the degree to which Mr Bloodworth's evidence can be accepted. In this regard my assessment is considerably less adverse to the plaintiff than his Honour's. The second goes to Mr Bloodworth's motivation for embellishing or distorting the truth, as he undoubtedly has done. His Honour thought that this was part of a deliberate campaign on his part to exaggerate his problems for the purpose of inflating his damages. Again, I have taken a less adverse view than his Honour. Mr Bloodworth has serious personality problems quite apart from any question of brain damage. In my view many of his distortions and embellishments are attributable to these personality defects rather than being a deliberate campaign to distort the truth for the purpose of these proceedings. 168 I turn now to discuss the most difficult and contentious issue under damages, namely whether Mr Bloodworth sustained brain damage as a result of this surgery. This is a complex question, the answer to which depends on a number of separate but interlocking factors. 169 It is appropriate to commence this discussion by considering the evidence as to whether the events of 28 January 1992 were capable of causing brain damage. A negative answer to this question would resolve the whole issue in favour of the defendant. A positive answer will make it necessary to go on and assess the likelihood of brain damage in fact having resulted from this episode. Could this surgery have caused brain damage? 170 There is a strong divergence of medical opinion on this issue. Interestingly, the divergence does not always correspond with party lines: some of the experts expressed opinions which were contrary to the interests of the party calling them. 171 The brain damage under discussion here is anoxic (sometimes called hypoxic) brain damage. It is caused when the brain is deprived of oxygen. In Mr Bloodworth's case, all possible steps were taken to reduce this possibility during the course of his surgery. Resuscitation measures consisting of external chest compression were commenced as soon as the cardiac arrest was recognised. At the same time, intravenous adrenaline was administered and the anaesthetic was replaced by pure oxygen. The combination of these measures would have served to maximise the amount of oxygen getting to the brain, according to the evidence, and therefore to minimise the risk of long-term damage. The resuscitation measures meant that blood continued to flow to the organs, albeit at a much-reduced rate. This reduction was compensated, according to Dr Doolan, by the high concentration of oxygen in the blood. The administration of adrenaline had two purposes. The first was to stimulate the contraction of the heart. The second was to constrict blood vessels in non-critical areas, so that blood was primarily being directed to vital organs such as the brain. 172 Dr Doolan said that throughout the 12 to 14 minutes of cardiac arrest, Mr Bloodworth's carotid pulse remained "acceptable", indicating that the external cardiac compression was causing the blood to flow. In addition, Mr Bloodworth's ECG remained normal throughout this episode, indicating that there was an adequate blood supply to the heart. Nevertheless, the evidence indicates that the cardiac output would have been seriously compromised. At best, external chest compression can produce an output which is about one third of the output of a beating heart. At one point Dr Doolan said, "I think it is likely the oxygen content in the blood going to the brain was adequate, but whether there was enough delivery of oxygen to the brain I can't say." 173 In his cross-examination at the previous hearing, Dr Doolan agreed that this was "a very significant hypoxic incident" and a "potentially very dangerous situation in respect of hypoxia." He disagreed, however, that there was a significant likelihood of anoxic brain damage resulting from it. He had managed many patients, he said, who had required external cardiac compression, and most of them had not suffered any discernible brain damage. 174 Dr Doolan's involvement with Mr Bloodworth's treatment ceased at the end of this operation. He was therefore not in a position to assess his post-operative recovery. On all accounts, Mr Bloodworth did extremely well and made a rapid and uneventful recovery. He was discharged from intensive care two days after the operation, and discharged from hospital on 8 February 1992. A number of the medical experts who considered that Mr Bloodworth did not suffer brain damage, based their opinions upon the rapidity with which he recovered his neurological function. They said the course of Mr Bloodworth's recovery was inconsistent with the occurrence of brain damage in his case. 175 One of the doctors to hold this view was Dr Ross Holland, a highly experienced anaesthetist who gave evidence in the defence case. Dr Holland had not seen Mr Bloodworth. His opinion was based on an examination of the hospital records. In his report dated 5 November 1997 Dr Holland (then Professor Holland) said: "there is no evidence in the material available to me that the plaintiff suffered brain damage, nor would I have expected any in view of the rapidity with which neurological functions returned in hospital". 176 In his evidence at the last hearing, Dr Holland, (who had read Dr Doolan's evidence on that occasion) said that this surgery was not "an anoxic event". It was clear, he said, that there was a serious under-perfusion of blood to the muscles. However the reduction in flow to the brain was much less than to other organs. In addition, such blood as was getting through was very well oxygenated. Later, in cross-examination, Dr Holland said that one cannot be certain what degree of insult will produce permanent brain damage. It varies from individual to individual. However with a healthy young person whose emergency was handled skilfully, as Mr Bloodworth's was, he would not expect permanent brain damage to follow these events. It would be possible, he said, "but certainly not likely". 177 According to Dr Holland, the rapidity of Mr Bloodworth's recovery was inconsistent with permanent brain damage. It led him to believe that such injury as had occurred to the brain was a temporary one. He said, "I have never seen anybody following that course who ends up with permanent brain damage." 178 Dr Holland's view in this respect was shared by Dr Alison Reid, a neurologist. Dr Reid described Mr Bloodworths's postoperative course as "near brilliant." It was virtually as if nothing had happened, she said. Had there been anoxic brain damage, it would have manifested clinically by delayed regaining of consciousness and delayed recovery. This did not happen in his case. A similar view was also expected by Dr David Bell, a psychiatrist who saw Mr Bloodworth in May 1999. 179 Dr Dudley O'Sullivan, an eminent neurologist who was called by the plaintiff, was more circumspect about this issue. He said that a period of 12 to 14 minutes of cardiac arrest might cause brain damage, but he was not prepared to say that it need do so. 180 Dr John Watson was the plaintiff's treating neurologist. He gave evidence both at the previous hearing and again before me. On the first occasion he was shown the anaesthetics chart while he was in the witness box. This, he said, made him emphatic as to the "extremely high possibility or likelihood" of some sort of brain damage. Dr Watson was then taken through the hospital records detailing Mr Bloodworth's rapid recovery during the few days after the surgery. He was asked whether these observations were inconsistent with hypoxic brain damage. He answered in the negative. 181 Dr Watson was highly critical of the fact that no form of neurological examination was performed on Mr Bloodworth during his time in hospital. He was, however, most impressed at Dr Doolan's success in resuscitating Mr Bloodworth and then anaesthetizing him for the emergency laparotomy. He described it as a "very impressive effort." 182 During his previous evidence, Dr Watson said that after an episode such as this, he would be expecting to see brain damage. In his evidence before me he expressed the same view. On the balance of probabilities, he said, he believed that Mr Bloodworth had sustained some hypoxic- hypotensive brain damage. 183 Interestingly, this opinion appeared to be shared by Dr Don Pryor, a neurologist who was called by the defendants at the last hearing. Dr Pryor had previously provided a report in which he said that he did not believe that this incident had resulted in significant permanent brain damage. However during his cross-examination he appeared to go back on this. On the basis of the various radiological findings, as well as those of the treating neurologist and psychiatrists, Dr Pryor said that it was "highly likely" that hypoxic brain damage occurred in this event. He said that a rapid return to consciousness was a favourable factor in assessing the degree of brain injury, but was not conclusive. 184 Dr Jonathon Phillips, a respected psychiatrist, provided a report to the defendants which was tendered by the plaintiff. In this report, dated 3 December 1997, Dr Phillips said: "the significance of this medical mishap should not be minimised." He was unable to agree that Mr Bloodworth's rapid recovery of consciousness following the cardiac arrest meant that it was unlikely that he had suffered severe cerebral damage. Dr Phillips continued: "It is quite possible that Mr Bloodworth had regained consciousness reasonably early in the period in his resuscitation, but still suffered permanent damage to the higher areas of his brain." 185 This, then is a brief summation of the evidence on this issue. It would be impossible to say, on the totality of the evidence, that this episode was incapable of causing permanent brain damage. To the contrary, I would take the bulk of the evidence as indicating that there was, at the very least, a real possibility of brain damage occurring, notwithstanding Mr Bloodworth's rapid recovery in hospital. 186 A separate but related question is whether there are any neurological or radiological indications that Mr Bloodworth suffers from brain damage. I am excluding epileptic seizures from this discussion. Whilst these are often symptomatic of brain damage, their existence in Mr Bloodworth's case is strongly contested, and requires separate discussion. 187 No neurological tests were performed on Mr Bloodworth while he was in hospital, a fact which Dr Watson found surprising. On 25 August 1993 Dr John Walsh of the Institute of Clinical Neurosciences at the Royal Prince Alfred Hospital performed an EEG on Mr Bloodworth. Dr Walsh found that Mr Bloodworth was neurologically normal, notwithstanding that his EEG showed bilateral temporal abnormalities consisting of "bitemporal phase reversed theta activity, more marked on the right." 188 A month later, on 29 September 1993, Dr Walsh performed a video- EEG study which produced similar findings. It was generally agreed by the experts who gave evidence in the case that this was a normal finding which was not indicative of brain damage or epilepsy. 189 On 5 May 1994 an MRI scan was performed. This showed minor asymmetry of the temporal horns. However this, according to the evidence, is a normal phenomenon, and the subsequent report indicated that "no intra-cranial abnormality was identified." 190 Some experts such as Dr Reid considered that the absence of any abnormality on the MRI scan excluded the possibility of brain damage. Others such as Dr Prior considered that it was a neutral finding which neither confirmed nor excluded the existence of brain damage. I regard this as the preferable view. 191 It follows that the existence or otherwise of brain damage following this episode cannot be determined by reference either to the episode itself or to any radiological findings. It is necessary to look to subsequent events, most particularly to what happened to Mr Bloodworth after this surgery. Not surprisingly, given the length of time which has elapsed since then, the evidence on this matter is extensive and complex. I shall endeavour to present it as briefly and coherently as possible. 192 At this point, I should go back and say something about Mr Bloodworth's background. It was briefly described at the beginning of this judgment (paras.[3] to [5]), but a little more detail is required at this stage. Mr Bloodworth's Background 193 Mr Bloodworth was born in Singleton on 17 June 1957. His father was a bank officer. He had one older brother. When he was about four years old the family moved to Sydney. Mr Bloodworth did his primary schooling at Artarmon Public School and then moved to Lane Cove Primary School. In 1970, at the age of 12, he went to the Sydney Church of England Grammar School ("Shore"), a well-known private school in Sydney. 194 Mr Bloodworth's reports from Shore were in evidence before me. They were strongly relied upon by the defendants as showing that Mr Bloodworth had serious behavioural problems even at that early stage. The reports show that Mr Bloodworth entered Shore in the first term of 1970 and left in July 1974. Throughout this period he was in the second top class (A2). Accordingly, although his marks were generally bad and his place in the class low, he was still in the upper level of intelligence and achievement for his age. 195 Mr Bloodworth performed badly at school. His marks were generally between B and D. His best subject was music. The teachers' comments indicate that, if he applied himself, he was capable of producing excellent work. For example, the comment beside his English results in first term in 1974 was: " He can do better than this. He has the ability to top this set" (class) 196 It is clear that Mr Bloodworth's problems at Shore arose predominantly from his rebellious attitude and his failure to apply himself. As one comment put it: "he is lazy and has done virtually no work." He was described as a troublemaker in class. His manner was said to be petulant and sometimes belligerent. The headmaster, Mr Travers clearly took a very dim view of his behaviour. At the end of second term in 1972 he made the following comment: "Nothing that he does is acceptable. He is too often in trouble and when justly reprimanded he is surly and recalcitrant. There must be a major improvement in attitude and approach, or else it would be necessary for him to change schools in 1973." 197 At the end of third term in 1973 Mr Travers said as follows: "He is old (16 years 8 months) and yet he behaves like of one of the youngest and silliest in the form. It is time he grew up and matured. He must settle down to hard work, consistent behaviour so he stays out of trouble" 198 Mr Bloodworth sat for his School Certificate at the end of 1973 and obtained good results. He was an enthusiastic and competent pianist and reached Grade 5 in his AMEB exams. He left Shore, as indicated, in July 1974 and went to Chatswood High School. However he stayed for only a few weeks. In August 1974 he left school altogether. 199 Thereafter, Mr Bloodworth had a number of different jobs. He toured with a band, for which he worked as a driver and general assistant. He went to Melbourne where he did store work and deliveries for a legal printing firm. Whilst there, he also drove a truck for several bands and later started setting up their equipment and even standing in for musicians who did not turn up. In 1978 or 1979 he returned to Sydney, where he worked briefly in a bank. Various other jobs followed, most of them of short duration. In about 1983, when he was in a job which involved editing film clips, he started to take cocaine. He continued using it, he said, for several months but then stopped and has not taken it since. 200 In November 1984 Mr Bloodworth went overseas and did not return until 1986. Whilst he was away he discovered that his girlfriend back in Sydney was pregnant to him but wanted nothing more to do with him. This brought on a period of depression and he started drinking very heavily. However in due course he pulled himself together and continued with his travels. 201 He returned to Sydney in 1986 and spent some months driving buses for the Urban Transit Authority. In 1987 he moved to Coffs Harbour, where he established a concreting business called Worth Concrete Pumping. For a while things went very well for Mr Bloodworth. He owned his own concrete pumping truck and did work at major resorts in the Coffs Harbour area. Towards the end of 1988 he commenced a relationship with Wendy Pepper, whom he later married. However this good fortune was not long-lived. One of the resorts he had worked for went bankrupt, owing its contractors, including Mr Bloodworth, a great deal of money. In order to pay the wages of his staff, Mr Bloodworth had to borrow from his parents. His business collapsed. 202 Mr Bloodworth, who has always been of a volatile nature, responded to the collapse of his business with anger and violence. His violence has never been directed to other persons, but he has, in his day, damaged quite a lot of property. The violence on this occasion was variously described as smashing all the windows in his house, and breaking a single louvre in a window. 203 It was at this stage that Mr Bloodworth's mother suggested that he needed psychiatric help. She made an appointment for him to see Dr Kay Wilhelm at the Mood Disorders Unit at Prince Henry Hospital in Sydney. Mr Bloodworth said that he was angry and resentful with his mother for arranging this appointment. To use his words: "I didn't feel there was anything wrong with me and I felt I was being pressured into going to have my head checked out." Nevertheless, he attended the appointment. Dr Wilhelm's report following this consultation has assumed considerable significance in this case and, I shall be quoting it later. 204 In early 1990 Mr Bloodworth and Wendy Pepper moved to Nerang in Queensland. Some of this time he was working for a Mr David Joffe, whom Mr Bloodworth had first met in Coffs Harbour. However he also had lengthy periods of unemployment. His 1991 income tax return shows that between 13 July 1990 and 16 August 1990 he was unemployed. He then worked for the Joffe Group for approximately 6 months. In the twelve months before his failed surgery he spent several months on unemployment benefits. However, it seems that for much of this period Mr Bloodworth was in fact working as caretaker at a storage centre at Currumbin on the Gold Coast. He received no income from this, but he and Wendy were given free accommodation. 205 In the meantime, in October 1990, Mr Bloodworth's and Wendy's son Jamie was born. 206 It was on Mr Bloodworth's 34th birthday that he suffered his first gall-bladder attack. He consulted his general practitioner, Dr Brennan, and was in due course referred to Dr Miller. The rest, as they say, is history, and I can pass over the intervening period until 8 February 1992, when Mr Bloodworth was discharged from the Gold Coast Hospital. 207 Mr Bloodworth was in a very poor physical state when he left hospital. He was unable to straighten up and he remained very stooped for some months. His scar was very painful. In addition, his penis and scrotum were discoloured and swollen and caused him great pain. He needed assistance with virtually all activities. For several weeks he stayed in bed, getting up only to go to the bathroom. He was very constipated. 208 Gradually Mr Bloodworth started moving around more. About a month after his discharge from hospital he and Wendy were required to leave the Gold Coast Storage. Wendy's parents lent them a campervan which became their home for the next few months. They took it to North Queensland where they travelled around for some time before returning to Sydney in July 1992 for Mr Bloodworth's next operation. In the meantime, Mr Bloodworth described himself as being extremely constipated and needing assistance in virtually every activity, He was in severe pain he said, as he was suffering from continuing gall-bladder pain as well as from the effects of the surgery. 209 On 7 July 1992 Dr Van Gelderen performed an open cholecystectomy at Liverpool Hospital. Mr Bloodworth was extremely apprehensive before this surgery. However it proceeded uneventfully and he appeared to make a good recovery from it. 210 In about October 1992 Mr Bloodworth and his wife moved to Eumundi in Queensland, not far from her parents' home. They lived there for approximately 12 months. During that time, Mr Bloodworth continued to suffer frequent attacks of severe abdominal pain. 211 Two significant events occurred during this twelve months period. The first was in August 1993. Mr Bloodworth, who was visiting Sydney at the time, drove his car off the road and into a tree. He did not sustain any significant injury in this accident: the importance of this episode lay in its cause rather its consequences. Mr Bloodworth said that the accident happened because he had an "absence spell". He said that he had suffered these spells sometimes before, but never with such extreme consequences. It was as a result of this accident that Mr Bloodworth was referred to Dr John Walsh for an EEG scan. As indicated earlier, this scan was essentially normal. Dr Walsh was unable to tell whether Mr Bloodworth's "absences" were non-epileptic spells or whether they were partial seizures secondary to a temporal lobe problem. 212 The other event of significance during this period occurred in July 1993 when Wendy's mother died of a brain tumour. She had been very supportive of both Wendy and Mr Bloodworth, and this was a significant blow to both of them. 213 In about October 1993 Mr Bloodworth and Wendy returned to live in Sydney. In April 1994 Mr Bloodworth's brother, who suffered from HIV, committed suicide. This was yet another major blow to him. 214 On 27 January 1995 Mr Bloodworth commenced these proceedings. 215 There was a later period of approximately twelve months when Mr Bloodworth and Wendy lived in Queensland. Otherwise they have always lived in or around the Sydney area. Their home is now in the Blue Mountains. In January 1995 they had a second child, a daughter, Ariel. 216 In March 1996 Mr Bloodworth came under the care of the psychiatrist, Patricia Jungfer. She remained his treating psychiatrist for a number of years and was an important witness in his case. 217 On 24 June 1996 Mr Bloodworth was apprehended for shoplifting. He had replaced the bar code of an expensive piece of equipment with one he had removed from a much cheaper item. Mr Bloodworth defended this charge. He relied upon a report dated 20 August 1996 from Dr Jungfer, the final paragraph of which was in the following terms: "At, or around, the time of the 24th of June, 1996, Mr Bloodworth was seriously depressed which impaired his reasoning. In addition he suffers from permanent cognitive impairments. Your client was not in a state of mind that would allow rational decision making. His depression clouded his view of the world, so that he could not make a reasoned decision. The presence of cognitive problems in conjunction with a severe depression would seriously impair your clients ability to form a decision to steal or be aware of the consequences of his action." Mr Bloodworth was acquitted of this charge. 218 In January 1997 Mr Bloodworth and his wife separated for about six months. This was precipitated by an episode of violence on his part. Mrs Bloodworth was concerned about the impact of her husband's disturbed behaviour upon the young children. 219 During this time, Mr Bloodworth was exhibiting increasingly disturbed behaviour. This was recorded by Dr Jungfer in May 1997 and it appeared to have been a continuing phenomenon. There were also a number of admissions to hospital when Mr Bloodworth suffered apparent seizures. I shall be discussing these shortly. 220 In June 1999 evidence was taken in London from Professors Boulos and Davidson. The hearing before McInerney J commenced on 1 November 1999 and concluded on 2 December 1999. By the time of that hearing Mr Bloodworth and his wife had again separated. This time the separation was not precipitated by any particular event. Mrs Bloodworth said she had reached a point of "complete and utter exhaustion". She had spent so much time and energy caring for her husband, she said, that she had been neglecting the children. She needed "time out", for both herself and the children. In their evidence before McInerney AJ both Mr and Mrs Bloodworth expressed their commitment and affection for each other, and they reconciled some months later, in 2000. They have remained together ever since. 221 McInerney J delivered his preliminary judgment on 1 September 2000 and his final orders on 6 November 2000. In September 2001 the hearing before the Court of Appeal took place. The Court of Appeal delivered its judgment, upholding the appeal, on 22 May 2002. Mr Bloodworth reacted to this judgment with a characteristic burst of anger and violence and did a great deal of damage to the bathroom of their home. Two days later, on 24 May 2002, he was admitted to hospital as an involuntary patient. 222 Since then, Mr Bloodworth has had a number of hospital admissions, both involuntary and voluntary. Many of them have related to his seizures. 223 Mr Bloodworth's hospital admissions and medical consultations declined during the period between the delivery of McInerney AJ's judgment and that of the Court of Appeal. Mr Bloodworth was cross-examined about this by Mr Glissan. It was suggested that he presented with a multitude of problems whenever a court case was pending. When the case appeared to be over, he made a "miraculous" recovery. Mr Bloodworth disputed this interpretation of events. He said that after McInerney AJ's judgment, he was relieved of the pressure of the court case and was relaxed and, as he put it, "de-stressed" for the first time for many years. His health then suffered a "catastrophic collapse" after the Court of Appeal delivered its judgment. 224 At present Mr Bloodworth and his wife are living in the Blue Mountains with their two children and also with his eighteen year old daughter from a previous relationship. Mr Bloodworth sometimes helps out at the local school and plays percussion in a band at a hotel. He is not paid for these activities. Otherwise he has little outside activity. He helps around the house, doing some shopping and cooking. His wife describes him as having deteriorated in the last four years. He takes high doses of medication. He dislikes taking this medication, and often forgets to do so. His wife says that he becomes angry and resentful if he is reminded to take it, but suffers from depression, disturbed behaviour and frequently from seizures if he fails to take it. As she put it, "you are damned if you do and damned if you don't." 225 In addition to his prescribed medication, Mr Bloodworth says that he takes cannabis once or twice a week. He drinks rarely. He is not, he says, addicted to any substance, prescribed or otherwise. 226 It is Mr Bloodworth's case that, as a result of the anoxic brain damage suffered in 1992, he suffers the following major symptoms. • psychological problems with associated personality and behavioural dysfunction • epilepsy with associated seizures • memory and learning deficits. 227 The evidence relating to these groups of symptoms overlaps to some extent. However, they require discrete consideration, largely because the defendants have proffered different explanations for each of them. I shall therefore discuss them separately. Mr Bloodworth's psychiatric/behavioural problems 228 It is beyond doubt that Mr Bloodworth has suffered, and continues to suffer, numerous problems of a psychiatric and behavioural nature. The real issue is whether these (or the bulk of them) are attributable to brain damage consequent upon the failed surgery; or whether, as the defendants say, they are no more than a continuation of the behavioural and personality difficulties he exhibited well before the surgery. 229 The defendants rely particularly on the school reports from Shore and Dr Wilhelm's report of 17 May 1989 as showing that Mr Bloodworth had serious behavioural problems before this surgery. I have already referred to the Shore reports. These paint Mr Bloodworth as an under-achiever with serious attitudinal problems which were manifested in anti-authoritarian, rebellious and disruptive behaviour. Mr Bloodworth has no real explanation for these reports, except to say that Mr Travers, who was his most outspoken critic, had some grudge against a family member. It is difficult to take this explanation seriously. 230 More significant than the school reports was the report of Dr Wilhelm, dated 17 May, which was written shortly after her single consultation with Mr Bloodworth. That report, as relevant here, is as follows: "He is a 31 old man living in a defacto relationship. He has a concrete pumping business in Coffs Harbour. He was born in Singleton, moving to Sydney aged 4. He is the younger of 2 sons, with a mother he describes as "eccentric, dominating" and a quieter father whom he [now] feels had problems with alcohol. He remembers many fights during his youth. With loaded dinner plates and other items being thrown. As a child, he recalls banging his head against the wall and had stabbed his brother in the leg with a penknife. He was expelled from a primary school in 2nd class because of violence, but re-enrolled at another school 4km away and found that walking to and from school helped settle him down. He attended Shore for High School, and was often in trouble for insolence and destruction of property and felt that the only reason he was not expelled was because of the strong family tradition at the school. He left school in the middle of Year 12 and then went to Melbourne, where he worked as a printer and piano teacher (he has completed piano studies to the AMSA standard). He latter toured with a rock band and became heavily involved with cocaine at this time (which coincided with a time of feeling less tense and aggressive). He then went to the USA and Europe for 2 years, where he drank 80gm of alcohol per day and became depressed rather than violent. On returning to Australia he drove buses and paid off his share of a property that he now lives on. (His business is owned in conjunction with his parents) His current relationship has lasted six months. He smokes marijuana and drinks moderately at weekends. He likes his girlfriend's family and is keen to have a family himself. His problems are - continuing feelings of anger and aggression with more frequent destruction of property. Last week, he smashed all the windows in his house (but has never smashed a piano). He has hit his mother once in December 1988 but never physically assaulted anyone else. He has strong feelings of resentment towards his mother but continues to allow her to dominate his life (for example, having joint business ventures with her), although he can see that his parents are also trying to protect his interests. He did complain of depression over the past two weeks, with some anorexia, initial insomnia and suicidal thoughts and reported a more severe episode while overseas. However the greater problem seems to be the emotional instability and aggression which has features of episodic dyscontrol. There is no evidence of ictal phenomena but I asked him to question his mother about any possible birth injury and suggested he have an ECG. Whether or not any abnormality was found, I feel a trial (3 months) of Tegretal would be warranted, and it may well be that these symptoms were diminished by cocaine, which could act in the same way as Ritalin - although I am not advocating the use of cocaine as a treatment. He also needs to attend to his lifestyle – he has erratic eating habits, should do some exercise such as sustained walking, consider yoga and other techniques which may help him become more aware of his body and develop some control. I also suggested Dr Jim Holmes, a psychiatrist at Kempsey or Dr Glenn McIntosh (? Coffs Harbour), who could also help him to deal with the problems with his mother and provide him with cognitive interventions that may help with depression and emotional instability." 231 On the strength of Dr Wilhelm's report and the Shore reports, a number of the defendants' experts expressed the view that the personality and behavioural problems exhibited by Mr Bloodworth after the surgery were not the product of any brain damage, but were continuations of the same personality disorders he had suffered since childhood. Some of them suggested that there was also a strong element of malingering. I shall be discussing their evidence shortly. First, however, I should describe what the plaintiff had to say on this matter. 232 Not surprisingly, given the time lapse, Mr Bloodworth had no real recollection of what he told Dr Wilhelm. As I understand it, he did not deny that he would have given Dr Wilhelm the information which appears in her report. However, he said that much of it was untrue. He was angry with his mother for organising the consultation in the first place, he said, and he must have made up or exaggerated his family's dysfunction in order to get back at her. In fact, he said, his life was well under control until the failed laparoscopy. 233 Mr Bloodworth, in his evidence at the last hearing, said that his whole outlook on life changed after January 1992. He became concerned and worried about things that had not concerned him earlier. He experienced anxieties which he had never previously experienced. His relationship with his wife, he said, suffered immensely, and he was extremely concerned about the effect of this on his children. Dr Jungfer's treatment, he thought, had assisted him greatly over the years. He said that he often started a task but then forgot what he was meant to be doing and did not finish it. He had both good and bad days. 234 On his own account, Mr Bloodworth has always been prone to mood swings. He said that before the surgery, he was happy to be a person with "highs" and "lows". He regarded this as an advantage. However afterwards it was as though "everything is just exaggerated umpteenth fold." Whereas before he had control over his moods, they later became uncontrollable. However he said that taking Epilim had assisted in controlling the situation. 235 In his evidence before me, Mr Bloodworth said that his memory was probably slightly improving. He still became very angry, which he described as very draining. He also had continuing problems with seizures. He was questioned about his numerous hospital admissions over the previous two years, most of them related to psychiatric or neurological problems. He said his psychiatric problems, or "psychotic events", as he described them, were triggered by stresses such as "financial strain, bills, the legal system, the medical profession." 236 The plaintiff's wife, Mrs Wendy Bloodworth, gave evidence both at the last hearing and before me. In her earlier evidence she said that after the surgery her husband did not seem to be as articulate as previously. She found that there were differences in his mode of communication and in the words he used. As to his general outlook on life, she described him before the operation, as "a very happy go lucky optimistic sort of fellow". After the operation he became very pessimistic, angry and depressed. He was very different, she said, to the person she knew before. It became obvious early on, she said, that he was "a very changed person." When asked in what way, she gave the following response: "He was always angry. He was angry about everything. He had a complete inability to deal with the normal minor stresses of life, minor things would happen that would completely derail him, would send him into extreme bursts of anger. He had always been somebody that would cope with life's normal small or large traumas, or trials. He had completely and utterly lost the ability to deal with anything at an emotional level." 237 A little later she said that Mr Bloodworth's anger affected his whole demeanour. He became quite unpredictable in his responses, and would suddenly flair up into uncontrollable and frightening rages. In 1995 he started having periods of hearing voices and thinking that he was communicating with aliens. She described this as extremely frightening. His behaviour became very destructive. There were several occasions, she said, when he inflicted a great deal of damage to their house. He never physically abused her or the children, she said, although there has been a great deal of verbal abuse. 238 Mrs Bloodworth said that she had seen her husband consume marijuana from time to time, although not recently. She denied that he was a regular or frequent marijuana user. 239 In her evidence before me, Mrs Bloodworth said that after the operation her husband seemed to have lost all his confidence. Until he started taking antidepressants he was sometimes so depressed that she could not get him out of bed for days at a time. Before the operation he had been in charge of his life. Afterwards he could not see beyond the fact that he had suffered a physical assault. He forgot what he was doing and was unable to complete tasks. She said that he went from a person who was very outgoing, confident and friendly to one who was extremely withdrawn, unsociable and very angry and unpleasant to be about. At times, she said, she and her children had to lock themselves in a room and listen to Mr Bloodworth on the "rampage". He had never directed his violence towards people, and they were confident that he would not harm them personally. Nevertheless, his rage attacks were very frightening. 240 Mrs Bloodworth described her husband as having deteriorated in the four years since he last gave his evidence. She said that he had become even less able to cope with life's daily challenges and had become so severely depressed that he had attempted suicide twice by taking an overdose of Vallium. This resulted in her having to schedule him into a psychiatric ward. Each of these episodes, she said, occurred after he had stopped taking his medication. 241 Mr Bloodworth's parents both gave evidence before McInerney AJ and his mother gave evidence before me. They both refuted a number of the statements apparently made to Dr Wilhelm, and described the changes in their son after the surgery. Otherwise their evidence takes this matter no further, and I do not propose to detail it here. 242 This brings me to the medical evidence on this issue. I shall first describe the evidence of the doctors who consider that Mr Bloodworth suffered brain damage as a result of this episode, followed by those who take a contrary view. 243 Of all the doctors to give evidence, the one with the longest contact with Mr Bloodworth was his general practitioner, Dr Anthony Salgo, who first saw him on 26 March 1992, only two months after the surgery. In his report dated 1 June 1995, Dr Salgo said that it was apparent at that first meeting that Mr Bloodworth had not only suffered a major physical insult in this operation, but also psychological trauma. Many of Mr Bloodworth's consultations over the following three years, he said, involved counselling him and letting him ventilate his anger and anxiety caused by "memory loss, confusion, pain (mainly abdominal), sleeplessness, paranoia," Dr Salgo described Mr Bloodworth as suffering "a degree of anoxic brain damage" which, together with other difficulties had impaired his previous ambition and disrupted his life "to an enormous extent." 244 Between June 1995 and June 1996 Mr Bloodworth saw Dr Salgo on an average of once every two weeks. In a report dated 20 June 1996, Dr Salgo said that Mr Bloodworth would sometimes present with "agonising spasms" of abdominal pain. He said that Mr Bloodworth had responded well to medication prescribed by Dr John Watson, his treating neurologist, and by Dr Jungfer. His condition was better, he said, when his wife supervised his medication and so overcame his memory lapses. He described Mr Bloodworth as having a "significant handicap due to the misadventure of his failed laparoscopic cholecystectomy which affects almost every aspect of his life." 245 Dr Salgo gave evidence both at the last hearing and before me. In his earlier evidence he said that Mr Bloodworth's medication had improved him significantly over recent times. If he fails to take it, his moods tend to swing back to the way they were when he first met him, although never quite so badly. He considered that Mr Bloodworth had been depressed for much of the seven years that he had been seeing him, although less so in recent times. 246 Much of Dr Salgo's evidence before me related to his observations of Mr Bloodworth's seizures. He was also taken though his notes and questioned about specific consultations with Mr Bloodworth. It is unnecessary for present purposes to describe this evidence. 247 In March 1994 Mr Bloodworth was referred by Dr Salgo to Patricia Jungfer, a psychiatrist. At the time, Mr Bloodworth's primary complaints were of memory difficulties, insomnia, poor concentration and an inability to restrain his temper. She described his presentation as extremely agitated and disinhibited with a most unusual use of language with frequent clang association. There was no evidence of depression and no present psychotic symptoms. She considered that Mr Bloodworth had sustained "significant cognitive and personality changes secondary to anoxic brain damage." She did not think that Mr Bloodworth would benefit from treatment or medication at that stage, and made no arrangement to see him again. The next time she saw him was two years later, at which time she started to see him on a regular basis. 248 On April 1998, Dr Jungfer reported that Mr Bloodworth had suffered recurrent episodes of mood swings with sustained periods of depression. When this occurred he became extremely withdrawn and despairing. In addition, he tended to be disorganised, forgetful and less efficient cognitively than he was before the "hypoxic injury", as she described it. She expressed the view that the stress of the ongoing legal proceedings was exacerbating Mr Bloodworth's condition. 249 On 19 October 1999 Dr Jungfer provided a lengthy report, in which she described Mr Bloodworth as having pre-morbid narcissistic personality traits and difficulties with authority figures. There was no evidence of any previous mood disorder, she said, nor was there a substantial history of pre-existing psychiatric illness. She considered that, as a consequence of these pre-morbid vulnerabilities and subsequent hypoxic brain injury, Mr Bloodworth had developed a bipolar mood disorder and had features of an adjustment disorder. 250 Much of this report of Dr Jungfer's was devoted to responding to a report the defendants had previously obtained from Dr Bell. I shall be discussing Dr Bell's report very shortly. In it he disputed the diagnosis of a bipolar mood disorder. However Dr Jungfer remained firm in this diagnosis, and gave her reasons for disagreeing with Dr Bell's analysis. Dr Bell thought that Mr Bloodworth suffered an adjustment disorder before the surgery, a proposition with which Dr Jungfer disagreed. She thought that he had pre-existing narcissistic personality traits, but these did not reach the severity criteria of a personality disorder. Mr Bloodworth's dissatisfaction and distress after the surgery had, she said, generated a large amount of stress in him and this in turn had created an adjustment disorder, a disorder which had manifested itself in behavioural difficulties and sometimes in significant emotional disturbance. These features, Dr Jungfer said, were not present before the surgery. Nor were the other signs which normally denote a personality disorder, such as "repeated failed relationships, failure to maintain employment, repeated criminal acts and poor social networks, repeated acts of self harm." A history of drug use in young adulthood, and difficulties in a particular school setting does not, she said, support a diagnosis of personality disorder. 251 Dr Bell in his report had attributed many of Mr Bloodworth's problems to his drug taking. However Dr Jungfer, in her report, said that in the five years of clinical contact with Mr Bloodworth he had never demonstrated any physical signs of drug abuse or intoxication. 252 Dr Jungfer gave evidence both before McInerney AJ and myself. When she first saw Mr Bloodworth in 1994, she told the previous court, she did not observe the characteristics of bipolar disease which she later diagnosed. Nor was Mr Bloodworth severely depressed at that time. He was seeing a counsellor and having treatment, and she did not think that she could offer anything further for him. She agreed in cross-examination that he displayed all the indicia of somebody who was either recovering or had recovered. When she next saw him two years later, she considered that he did have the characteristics of a bipolar mood disorder. At that time he was, as she described it, "very much unwell". She concluded that he had a pre-existing propensity to mood disturbances but these had significantly worsened over time. 253 Dr Jungfer assessed Mr Bloodworth's brain damage as being "mild to moderate." She pointed out that before 1992 he did not require "pharmacological management" whereas afterwards he did. 254 When Dr Jungfer gave her evidence before McInerney AJ, she was seeing Mr Bloodworth approximately once a month. She continued to see him regularly until about November 2000. In 2001 she saw him on only two occasions, in February and again in September. In the meantime he made a number of appointments which he did not keep. The last time she saw him, in September 2001, she thought he appeared well. She has not seen him since then, apparently because of his habit of making appointments and then cancelling them at short notice. Her practice has a policy, Dr Jungfer said, that if a patient does this more than three times in a row they are not offered further appointments. This happened in Mr Bloodworth's case. 255 In her evidence before me, Dr Jungfer confirmed her diagnosis of Mr Bloodworth as a person with long term narcissistic tendencies. People with these tendencies, she said, tend to exaggerate their achievements and problems. They often behave in an exploitative or manipulative manner. They can be quite grandiose, with an elevated sense of self importance. Nevertheless, she said, a person can have tendencies towards narcissistic behaviour and towards bipolar disorder and still be a functioning and reasonably effective member of society. In Mr Bloodworth's case these pre-existing conditions rendered him vulnerable. The brain damage then triggered his bipolar disorder. 256 Dr Jungfer said that she had longstanding difficulties with Mr Bloodworth failing to comply with his medication. It was a problem of under-medicating not overmedicating. 257 Dr Jungfer had been shown Dr Joan Lawrence's report describing her interview with Mr Bloodworth. I shall be describing this shortly. Mr Bloodworth was, to put it mildly, behaviourally inappropriate during that interview. Dr Lawrence was of the view that he suffered a significant personality disorder which pre-dated the surgery. Dr Jungfer, in her evidence before me, disagreed with this conclusion. She was asked why she did so and gave the following answer: "His behaviour at interview in fact is a pure reflection of someone who has brain damage and who has an impairment of judgment. He goes in there and he behaves in such a manner that she can't do a reasonable assessment of him and that can only be a reflection of poor judgment on his part, that he would behave in such a way. It would serve him better to sit there and give her a long and detailed history of his impairment and woes so that the person could make an assessment of what's actually wrong. I think only someone who has impaired judgment would behave in the way he has behaved. An impaired judgment is a reflection of brain damage … 258 Dr Peter Morse, a consultant psychiatrist, provided the plaintiff's solicitors with a lengthy report dated 12 February 2003. Mr Bloodworth, he said had presented at interview in an "off hand manner" and initially expressed hostility and anger towards doctors and lawyers generally. As the interview progressed however, the anger abated and he was able to respond in what Dr Morse described as a co-operative and friendly manner. Dr Morse had been provided with a large number of medical reports going back many years. Most if not all of these seem to have been reports obtained by the plaintiff. Dr Morse does not appear to have been provided with the defendants', reports, although many of these would have been available to the plaintiff's solicitors at that time. Dr Morse diagnosed Mr Bloodworth as suffering from generalised anxiety disorder, recurrent panic attacks, past major depression and current mild to moderate depression. He also considered that Mr Bloodworth suffered from epilepsy and brain damage. He considered that the brain damage had caused some loss of inhibitions and some lack of control. 259 Some time later, the plaintiff's solicitors sent to Dr Morse a copy of Dr Wilhelm's 1989 report and sought his comments on it. Dr Morse then provided a further report dated 10 October 2003 in which he said as follows: "It would seem that this hostility and aggression was present prior to the complications following the surgery and that the brain damage and the other psychological emotional stressors he experienced have made him less able to control that aggression and hostility. Indeed his presentation and history following the complications of surgery were an extension of previously disturbed personality function. However, it seems that the effect of the complications of surgery, as outlined in my report, did cause quite marked depression, generalised anxiety and panic attacks, and this is quite separate from his previous personality and functioning." 260 Dr Morse gave evidence in the hearing before me. He said the opinions expressed in his second report of October 2003 were based upon the assumption that the events reported by Dr Wilhelm were correct. If that turned out not to be the case, he would revert to the opinions expressed in his earlier report, namely that Mr Bloodworth suffered a personality change as a result of the surgery in January 1992. In cross-examination, Dr Morse agreed that the problems described by Dr Wilhelm, namely "emotional instability and aggression with features of episodic dyscontrol" were consistent with a personality disorder. However he said it is impossible to make a diagnosis of personality disorder on the basis of a single consultation. Lengthy contact with a person over a prolonged period, or multiple evidence from other sources, is required before a doctor can assess whether the patient's characteristics are a pattern of their life, or whether they merely relate to what is happening in the patient's life at that time. Dr Morse used the analogy of saying that a high temperature is consistent with pneumonia. Dr Wilhelm's findings do not rule out personality disorder, he said, but they certainly do not rule it in. 261 Dr John Watson has been Mr Bloodworth's treating neurologist since 1994. When he first saw him in September of that year Mr Bloodworth told him that he had obtained a good pass in the higher school certificate in 1975 and had then gone on to study music at the conservatorium. He said that he graduated in piano and musicianship, and then became a music teacher. At school he was in the first grade rugby team. These statements are almost entirely fictional. They, together with other similar distortions, have given rise to much critical comment on the part of some of the defendant's experts and have led to Mr Bloodworth being assessed as a person of little or no credibility. 262 Mr Bloodworth told Dr Watson that he had suffered a blackout about two weeks earlier. Dr Watson concluded that Mr Bloodworth had sustained "a hypoxic hypotensive brain injury which is still slowly improving." He considered that he might need to be treated with an anti-convulsant such as Epilim and arranged to see him the following month. On 19 October 1994, Dr Watson started Mr Bloodworth on a course of Epilim. 263 Dr Watson's most recent report was dated 12 January 2003. Dr Watson reported that over the previous two to three years there had been significant psychiatric problems which were worse in the aftermath of the court case, while waiting for the original judgment and then the appeal decision. At times Mr Bloodworth had been very aggressive and a little manic. At other times he seemed quite depressed. He became extremely disturbed on 24 May 2002 after hearing the results of his appeal. Both Dr Watson and Dr Salgo considered him to be a risk to himself and/or others and a psychiatric admission was arranged. 264 Dr Watson's diagnoses of Mr Bloodworth were as follows: Diagnoses My diagnoses for Mr Bloodworth have been a degree of hypoxic/hypertensive brain damage, attendant behavioural changes, seizures (resulting in at least one car accident) and non-epileptic seizures, sometimes known as pseudoseizures, psychological abnormalities, and more recently significant psychiatric problems that have required psychiatric admission, and at times treatment with Largactil, a major antipsychotic medication. I have no first hand information about Mr Bloodworth's state before his operation in 1992. I have always found it reasonable, as his treating neurologist, to attribute his problems to the operation which could only be described as a significant failure, with a completely unexpected outcome, and (based on evidence I heard at the original court case) one that went dangerously close to causing Mr Bloodworth's death. 265 Dr Watson's prognosis was guarded. He expected that Mr Bloodworth would exhibit patterns in the future similar to those in the past, with periods of stability punctuated by flurries of instability. 266 Dr Jonathan Phillips, an eminent psychiatrist, saw Mr Bloodworth on two occasions in late 1997 at the request of the defendants. Dr Phillips was also provided with four lever arch files of documents concerning Mr Bloodworth. These contained a very large number of medical reports from both sides, including Dr Wilhelm's report of May 1989. In relation to that report, Dr Phillips made the following observation. "Given Dr Wilhelm's strong comments about Mr Bloodworth and her recommendation regarding treatment, it is more likely than not that the patient had significant personality problems and behavioural difficulties which preceded January 1992. He would have been predisposed to further personality change and behavioural difficulties at the time of any future brain insult." 267 I have already referred to Dr Phillips' opinion that the surgery in 1992 was likely to have caused brain damage. I think it appropriate to quote the whole of that passage in his report: "The significance of this medical mishap should not be minimised. Cerebral neurones, particularly in the higher areas of the brain, are extremely sensitive to ischaemia. It follows that damage occurs quickly in any situation which is characterised by brain ischaemia. I find myself in disagreement therefore with Dr V Cumberland (11 June 1993) where he stated that it was unlikely that "Mr Bloodworth had suffered severe cerebral damage" given that the patient had made a "very rapid recovery of consciousness following the cardiac arrest". It is quite possible that Mr Bloodworth had regained consciousness reasonably early in the period in his resuscitation, but still suffered permanent damage to the higher areas of his brain." 268 Dr Phillips referred to a number of stressors which had affected Mr Bloodworth in recent years. These included the death of his brother and of his mother in law, his father requiring coronary artery by-pass surgery, his mother having a stroke, his wife's struggle with an anorexic syndrome, financial difficulties and the ongoing process of litigation. Taken together, Dr Phillips considered that these various stressors had probably played a "moderately importantly place "in the causation of Mr Bloodworth's non-organic symptoms. 269 Dr Phillips gave his findings regarding Mr Bloodworth in the following terms: "My own findings regarding Mr Bloodworth are balanced against the body of opinion offered by other medical and psychological experts. I believe that he suffered an ischaemic insult at the time of the surgical mishap in January 1992. this has left him with some higher cerebral problems. It can reasonably be accepted that his problems affecting memory (particularly verbal memory) had been caused by that event and it is possible additionally that his difficulties with planning are secondary to damage to the pre-frontal and perhaps frontal areas of his brain and that his discursive inefficient style of interaction is also secondary to cerebral dysfunction. Overall his disability is of magnitude sufficient to prevent him from working in any job where he would be required to have a fully functioning memory, a well-developed capacity for new learning, were planning skills would be important and where he would need to organise himself in a comprehensive manner. On the other hand there is little which would prevent him taking on relatively straightforward non-cognitive work (eg house painting, gardening, simple carpentry)." 270 Dr Phillips' report was tendered by the plaintiff. He himself did not give evidence at either hearing. 271 The above is a summary of the medical evidence which supports the view that Mr Bloodworth's ongoing personality and behavioural difficulties are at least partially attributable to brain damage sustained in the operation on 28 January 1992. I now turn to the evidence relied upon by the defendants in refutation of that proposition. 272 Dr Alison Reid, a neurologist, provided a report to the defendants dated 5 November 2002. Dr Reid had not seen Mr Bloodworth, but had been provided with what she described as "the copious material" relating to his case. In her report she said that Mr Bloodworth had a pre-morbid, well-established history of a significant personality disorder with behavioural problems. She considered that very little changed after the surgery of January 1992. In her opinion that there was no convincing objective evidence that Mr Bloodworth had suffered organic brain damage. She said: "What this incident has done is to: 1. enhance his anger, particularly towards the medical profession 2. enhance his pre-morbid psychiatric disturbances, being the subject of interest by countless doctors." 273 In a later report, dated 10 June 2003, Dr Reid said that any brain damage caused by the cardiac arrest would have been anoxic hypotensive encephalopathy, and that "this undoubtedly and unequivocally would have given rise to changes in the watershed areas, demonstrable on an MRI scan". She concluded that Mr Bloodworth had no "objective evidence" of brain damage. Later, in evidence, Dr Reid said that there was an "exceedingly high probability" that an MRI scan would be abnormal if the patient had brain damage which was associated with "significant memory, cognitive and behavioural problems". 274 De Reid gave evidence at the hearing before me. She was asked whether her opinion about Mr Bloodworth's pre-morbid condition would be different if some of the more extreme episodes reported to Dr Wilhelm were not in fact true. She answered that this would be "quite bizarre, because why would someone report that they head bang? Why would someone report that there had been violence in their family?" She said that it would confirm her impression of someone with a personality disorder if he told such lies about his family. 275 Dr Reid, to put it neutrally, appeared to be somewhat pre-disposed against Mr Bloodworth, whom she had never met. This impression was gained both from the terms of her report, and also from the course of her evidence, during which there were some heated exchanges between her and Dr Morrison. She did not present as an objective witness, and I cannot afford her opinions the same weight as I do with many of the other medical experts. 276 Dr Wendy Roberts, a Psychological Consultant, saw Mr Bloodworth on 28 May and 21 July 2003. She had also been provided with a great deal of documentary material. Between 10 and 23 October 2003 Dr Roberts wrote a very lengthy report on Mr Bloodworth, which ran to 77 pages. For obvious reasons, I will not discuss it in great detail. Dr Roberts had clearly formed an adverse view about Mr Bloodworth, and thought that he had, at the very least, exaggerated his problems Under the heading "Summary and Opinion" Dr Roberts noted that, prior to the surgery, Mr Bloodworth had "a history of substance abuse, disrupted family function, episodic dyscontrol, anger, depression, violence, behavioural problems and head banging. It was recommended that he have psychiatric treatment then." Dr Roberts said that she remained to be convinced that Mr Bloodworth had any diagnosable psychological condition attributable to this surgery. These matters are particularly difficult to determine, she said, when someone is exaggerating their symptomatology. 277 Dr Roberts also gave evidence in the hearing before me. She was asked by Dr Morrison to assume that much of the history recorded by Dr Wilhelm was incorrect. She answered in the following terms: "It still leaves a very large question in my mind about credibility issues and the personality and the character of this man prior to this accident." 278 Dr David Bell, a well-known Sydney psychiatrist, saw Mr Bloodworth on 11 May 1999 and furnished the defendant with a very long report dated 26 July 1999. Dr Bell had also formed a very adverse opinion about Mr Bloodworth. He described Dr Wilhelm's report as documenting Mr Bloodworth's "use of drugs, his violence and his proclivity for depression" even at that early stage. Before the laparoscopy, Dr Bell said, Mr Bloodworth had feelings of anger. After the laparoscopy he still had feelings of anger. The only difference was that this time they had a different focus. 279 Dr Bell's report provides a chronological documentation of Mr Bloodworth's numerous medical consultations and hospital admissions, some of which are discussed at considerable length. The report is interspersed with the doctor's "comments", many of which are extremely critical of Mr Bloodworth and some of which appear to denote a lack of objectivity. Dr Bell clearly regarded Mr Bloodworth as a manipulative malingerer with a serious drug problem. However under the heading "Opinion", Dr Bell expressed his overall assessment in measured and apparently objective tones: "In my opinion Mr Bloodworth did not suffer any significant type of injury to the brain as the result of the subject surgery and its sequelae. I have pointed out some reservations about this conclusion. I agree with many who have observed that the impairment of memory documented in the psychometrics and repeatedly in the history could be consistent with the effects of brain damage at the time of the cardiac arrest. I have pointed out the reasons to have doubts about that conclusion. If Mr Bloodworth had not had similar disorder before the operation and had he not used drugs excessively since then, some of the presentation would be consistent with the effects of a minor degree of hypoxic brain damage. Even so, the preponderance of the mental symptoms and disturbed behaviour observed since the laparoscopy cannot be explained in this way. Certain behaviours reflect dishonesty alone. Perhaps some genuine disorder lies behind the effects of the personality disorder and dishonesty, but I would see it as contributing at most a very small proportion of disorder and I doubt that it would have brought about any significant handicap." 280 A little later, Dr Bell said that, leaning as far as he could in Mr Bloodworth's direction, he could envisage a minor degree of anoxic brain damage occurring after this cardiac arrest. His final comment related to Mr Bloodworth's drug consumption and its likely impact on his mental function: "You will see that I have regarded it (drugs) as the likely explanation for much of the abnormal presentation at interviews and for much of the abnormal behaviour Mr Bloodworth has shown in recent years. I would think that marijuana is the likely explanation for his episodes of psychosis. In any case they, like so many other phenomena in this case, have no likely connection with the failed operation." 281 Dr Bell gave evidence at the previous hearing, but not before me. He was asked in chief about the significance, if any, of the EEG result in Mr Bloodworth's case. He said that EEGs in general are of no real help in diagnosing brain damage if they are taken more than three months after the causative event. The unusual pattern in Mr Bloodworth's EEG, he said, is often found in young people and can indicate an immaturity of mind. 282 Dr Bell disagreed with Dr Jungfer's diagnosis of bipolar affective disorder. Mr Bloodworth, he said, does not have the characteristic cycling of this condition. Moreover, Dr Bell did not believe that bipolar affective disorder could be precipitated by an anoxic episode. He attributed much of Mr Bloodworth's disturbed behaviour to drugs: "When he has looked pretty bad or when he has been actually psychotic, at that time he has been using drugs and one can't make a diagnosis of virtually any mental illness in a person who is using drugs of that nature." (Exhibit D16 page 758.) 283 Dr Bell conceded in cross-examination that his conclusion that Mr Bloodworth was drug dependent was to a significant extent drawn from his belief that Mr Bloodworth's father had an alcohol problem, indicating a family history of drug dependence. This was one of the assertions made by Mr Bloodworth to Dr Wilhelm, which was later denied by Mr Bloodworth himself and also by both his parents. On my finding it was almost certainly untrue. 284 Dr Bell considered that, on the basis of the Shore reports and Dr Wilhelm's report, Mr Bloodworth had a severe personality disorder well before the failed surgery. However in his cross-examination he made the following concession: "Q. If in fact he had a relatively normal family life, if in fact he was not a drug addict, though he had used some drugs recreationally, if in fact he was a very moderate drinker of alcohol, those would be matters which would have a very significant impact upon the validity of the opinions you have expressed? A. They would, yes." (Exhibit D16 page 775) 285 Dr Joan Lawrence, a Brisbane psychiatrist, saw Mr Bloodworth at the defendants' request on one occasion, on 26 February 2003. Her report of that date described Mr Bloodworth's extraordinary behaviour during this interview. Mr Bloodworth arrived at the surgery with his mother, who remained in the waiting room while the examination took place. Mr Bloodworth told Dr Lawrence that he was taking pain-killing drugs, having recently had an impacted wisdom tooth removed. Mr Bloodworth was, to put it mildly, provocative and difficult during this interview. Dr Lawrence summarised her opinion in the following terms: " Summary of the behaviour and mental state examination Charles Bloodworth was behaviourally inappropriate, aggressive, abusive, provocative, threatening and intimidating. There was no evidence of any depression. Anger and manipulativeness were the primary features of the interview. There was no evidence of any thought disorder. Indeed, it was clear that he was astute and watchful. There was no evidence of any psychotic phenomena. He impressed as being above average intelligence. Cognitive deficits could not be established but seemed unlikely, apart from the area of his memory which may have been affected, either deliberately or as the result of drug ingestion. Whilst his behaviour was disinhibited and this could have been influenced by drugs, his sensorium was not so impaired as to cause any significant slowing of cognitions or interference with articulation." 286 Later in her report, Dr Lawrence referred to Dr Wilhelm's 1989 report. She concluded that Mr Bloodworth's personality problems dated back to childhood and were "antecedent of the index event." She considered that Mr Bloodworth displayed "considerable evidence of manipulativeness, oppositional behaviour, dependence, inability to accept responsibility for his own actions and a tendency to self-aggrandisement." She concluded that he had a significant personality disorder which pre-dated the surgery. Dr Lawrence also commented on Mr Bloodworth's drug intake. Notwithstanding his denial of drug abuse or dependence, she considered that his use and abuse of drugs, mainly prescription drugs, were a prime feature of his presentation. She did not believe that Mr Bloodworth suffered bipolar affective disorder. The mood swings which he described, she said, could well have been caused by the drugs he was taking. 287 In her evidence before me, Dr Lawrence expressed the view that Mr Bloodworth had a significant behavioural and personality disorder characterised by narcissistic traits and also histrionic traits and traits of dependency. Narcissistic people, she said, are usually manipulative of others and will be insensitive to the emotional needs of people around them. They tend to be exploitative of relationships and situations. The histrionic traits, she said, would lead to exaggeration, distortion, embellishment and a dramatic presentation. These traits, she considered, were present in a "significant degree". 288 Dr Lawrence defined a personality trait as a characteristic or an enduring trait of a person which manifests itself during childhood and adolescence and remains for life. A personality becomes disordered when the nature of the person's traits are such as to "cause harm to their social, occupational and other functioning"; or, as she put it elsewhere, if they cause disruption to the person in "their life, their relationships and their achievements". At times, she said, these people might appear to be coping very well. However in most cases there will sooner or later be some destruction of their relationships or of their vocation or employment. 289 The above is a necessarily brief exposition of the evidence adduced by both parties on the subject of Mr Bloodworth's continuing psychiatric and behavioural problems, and the extent to which they are attributable to the surgery and/or are indicative of brain damage. 290 All of the defendants' experts relied to a significant extent on Dr Wilhelm's report and to a lesser extent on the Shore reports, in concluding that any continuing symptoms suffered by Mr Bloodworth were attributable to a pre-existing personality disorder rather than to the effects of the surgery. It is appropriate, therefore, that I should commence my discussion of this issue with my assessment of the Wilhelm report. 291 It is very likely that at least some of the more extreme situations or episodes described in Dr Wilhelm's report did not exist. It is most unlikely, on the evidence, that Mr Bloodworth's father had an alcohol problem. This was denied by both his parents at the previous hearing. Similarly, they denied ever throwing dinner plates. They said that Mr Bloodworth, as a child, was never a head banger, nor did he stab his brother in the leg. He was never expelled from a school. Similarly they all denied that he had destroyed any property whilst he was at Shore, apart from using his school boater as a frisbee. As to the more recent events described in Dr Wilhelm's report, Mr Bloodworth denied that he had smashed "all the windows in his house". He said that he became very angry and upset when his business collapsed and broke one or two louvres in the house. He denied that he had ever struck his mother, a denial which she supported. 292 I hasten to add that these findings involve no criticism whatsoever of Dr Wilhelm. The issue is not whether she correctly recorded the history Mr Bloodworth gave her. Rather it is whether he gave her an accurate history in the first place. 293 Unlike McInerney JA, who essentially accepted the truth of the history recorded by Dr Wilhelm, I think it probable that Mr Bloodworth did, at the very least, embellish many of the more colourful or dramatic incidents referred to in her report. There have been many other occasions over the years when Mr Bloodworth has given distorted or inaccurate accounts of his previous history. In general, these later embellishments, if I can call them that, exaggerated Mr Bloodworth's achievements before the surgery, particularly his musical achievements. They tended also to exaggerate the consequences of the surgery, both immediate and long term. In Dr Wilhelm's case, Mr Bloodworth exaggerated his own and his family's problems. That Mr Bloodworth distorted or embellished these matters during his consultation with Dr Wilhelm was entirely in keeping with his long-term personality traits. The very traits which made him vulnerable to brain damage also made him much more likely to embellish and exaggerate his achievements and his problems. It is very interesting that the two major problems which caused Mrs Bloodworth senior to arrange the appointment with Dr Wilhelm in the first place, namely the collapse of Mr Bloodworth's business and the death of a long-term girlfriend, were not mentioned at all in Dr Wilhelm's report. 294 Having made this finding I return to consider the medical evidence. There are two principal respects in which the plaintiff's and the defendants' medical experts differ from each other. They relate first to the categorisation of Mr Bloodworth's pre-existing condition, and secondly to the existence of brain damage. These two matters are inextricably linked but require separate discussion 295 The doctors called by the defendants were all of the view that Mr Bloodworth had a personality disorder before the surgery. Both Dr Reid and Dr Lawrence described it as a "significant" personality disorder. Dr Bell went further and categorised it as a "severe" disorder. The plaintiff's experts, on the other hand, say that Mr Bloodworth had pre-existing personality and behavioural traits, but that these fell short of a personality disorder. 296 In general I accept the plaintiff's doctors' assessments on this matter. In particular, I accept Dr Jungfer's and Dr Phillips' analyses that Mr Bloodworth had pre-existing personality and behavioural problems consisting at least in part of narcissistic personality traits and a tendency towards bipolar disorder. However these traits and tendencies did not reach the criteria of a personality disorder. 297 There are two principal bases upon which I make this finding. First, there is in my view inadequate factual support for a diagnosis of mood disorder before 1992. Even had Dr Willelm's report provided an accurate picture of Mr Bloodworth's background, (which in my finding it did not) it is very questionable whether this would have provided a sufficient basis for a diagnosis of mood disorder, even when read in conjunction with the Shore reports. A personality disorder is an enduring trait of a person which manifests itself in childhood or adolescence and remains part of that person's character for life. As Dr Morse pointed out, it is necessary to chart a person's behaviour over a considerable period in order to determine whether the traits they display are indicative of a personality disorder or whether they are merely responsive to what is happening in the person's life at the time. 298 The other reason for favouring the plaintiff's experts on this matter is that Mr Bloodworth's life before the surgery was not, in my view, disrupted to the extent that one would expect if he was suffering a personality disorder. Certainly he appeared to be lacking in application and drive. In spite of his intelligence, virtually all the jobs he undertook, (with the probable exception of his concrete pumping business), were undemanding, short lived and unlikely to lead anywhere. He had long periods of unemployment. He also had a volatile personality and was prone to react violently and angrily to adverse incidents. But this is not enough, according to the evidence. Dr Jungfer said that a personality disorder is normally marked by "repeated failed relationships, failure to maintain employment, repeated criminal acts, and poor social networks, repeated acts of self harm." Dr Lawrence said that a personality becomes disordered when a person's traits are such to cause disruption in the person's "life, relationships and achievements." Mr Bloodworth's checkered occupational history served to fulfil only one of these criteria. By the time of the surgery in January 1992 he had a successful long-term relationship with his wife and was, on all accounts, a loving and caring father. He had never been in trouble with the law, had a good social network of friends, and had had only the one psychiatric consultation. 299 The second area of dispute between the medical experts relates to the existence or otherwise of brain damage following the surgery in January 1992. Again I favour the plaintiff's doctors' assessments on this issue. Dr Phillips can probably be regarded as one of, if not the, most objective of experts who expressed an opinion on this. He is also a highly experienced and respected psychiatrist. He was of the view that Mr Bloodworth's pre-existing behavioural difficulties pre-disposed him to further personality change and that much of his subsequent problems were secondary to "cerebral dysfunction." This view was shared by Dr Jungfer, whom I regarded as an impressive and reliable witness. Some of the defendants' doctors pointed out that, as Mr Bloodworth's treating psychiatrist, Dr Jungfer was wearing two hats. They said that this made it difficult for her to be objective about his condition. However, by the time she gave her evidence before me, she had long since ceased being his treating psychiatrist, and this comment was no longer applicable. 300 In summary I find that Mr Bloodworth suffered anoxic brain damage as a result of the failed surgery. This, in combination with his pre-existing personality and behavioural difficulties, has led to his suffering bipolar mood disorder and adjustment disorder. His sometimes bizarre presentation and inappropriate behaviour are secondary to these conditions. Does Mr Bloodworth suffer from Epilepsy? 301 I propose to discuss this issue relatively briefly, for in my view the evidence overwhelming indicates that Mr Bloodworth has had genuine tonic/clonic or grand mal seizures and that he therefore suffers epilepsy. This is secondary to the brain damage sustained as a result of the surgery on 28 January 1992. 302 There are three types of seizures which Mr Bloodworth is said to have experienced. They are: 1. tonic-clonic or grand mal seizures: 2. "pseudo seizures", which are generally stress related 3 "absences" or petit mal seizures 303 There was some confusion in the evidence, because the words "pseudo seizures" were given different meanings by different doctors. Some used this expression to refer to stress-related panic attacks, while others used it to describe faked or simulated seizures. I propose to use it in the first sense. 304 Tonic-clonic seizures generally commence, according to Dr Watson, with a tonic phase which involves a stiffening of the muscles. At that stage the sufferer's breathing is arrested and he or she can start to go blue in the face. As the electrical activity changes in the brain, the stiffness goes and is substituted by a rhythmic symmetrical jerking which usually affects the whole body. Dr O'Sullivan said that a major tonic-clonic seizure can be accompanied by incontinence, biting of the tongue or the inner side of the cheek as well as frothing or gurgling at the mouth. Patients are usually cyanosed or stop breathing. The absence of some of these features, he said, does not preclude a tonic-clonic seizure. Incontinence, he said, is a very strong indicator of a tonic-clonic seizure and cannot usually be simulated. Similarly, eyes rolling back into the head cannot be controlled by a patient and is firmly indicative of a major tonic-clonic episode. 305 Much of the evidence in the case was directed to whether Mr Bloodworth has suffered genuine tonic-clonic seizures. He has been observed on various occasions having seizures with tonic-clonic features. The defendants' case is that these have all been faked for the purpose of bolstering his case in these proceedings. 306 Pseudo seizures are non-epileptic. Genuine pseudo seizures tend to be stress-related and are sometimes described as panic attacks. They can take different forms, and can sometimes resemble tonic-clonic seizures. Pseudo-seizures are capable of being faked. Genuine pseudo seizures, according to Dr Jungfer, cannot be controlled by the patient. Epileptic sufferers who have genuine tonic-clonic seizures also often experience pseudo seizures, according to the evidence. Dr Jungfer says that the patient is often unable to distinguish between a tonic-clonic seizure and a pseudo seizure. 307 "Absence" is a lay term for a complex partial seizure or a petit mal seizure. It involves an alteration of consciousness but not a loss of consciousness. Dr Morse described it as a lack of awareness of one's surroundings for a few seconds, perhaps a few minutes at the most. People can sometimes come out of it, he said, hardly knowing that it has occurred. It is harmless, but in some situations it can be very dangerous, for instance if the sufferer is driving a car. This is precisely what Mr Bloodworth said happened in August 1993. It was this episode which precipitated the various radiological investigations in his case. 308 It was put to Mr Bloodworth in cross-examination that he was manufacturing his symptoms of epilepsy and that all his so-called seizures have in fact been faked. It was pointed out that between the last hearing in 1999 and the Court of Appeal decision he suffered only one seizure. Thereafter he suffered fourteen. Moreover the more recent seizures occurred in hospitals or doctors' surgeries, where they could be observed and reported. It was suggested that Mr Bloodworth had deliberately chosen these places to fake his seizures in order to have maximum effect. Mr Bloodworth, not surprisingly, denied this. He said that the reason why his more recent seizures occurred in hospitals and surgeries was because he now gets warning of them and is able to seek assistance in advance. This was supported by his wife, who said that even she is able to predict when her husband is likely to have a seizure. On those occasions she will take him to a hospital or call an ambulance. 309 I do not propose to go through the evidence relating to the numerous occasions upon which Mr Bloodworth was observed to have seizures. I accept that many (and possibly most) of these were pseudo seizures rather than tonic–clonic seizures. However I am certain that Mr Bloodworth has, on occasions, experienced genuine tonic-clonic seizures. This was certainly the opinion of Dr Watson, who prescribed an anti-convulsant, Epilim, for him. Dr Watson said he would not have prescribed this medication unless he was satisfied that Mr Bloodworth was a genuine epilepsy sufferer. 310 Probably the most significant evidence on this aspect of the matter came from Dr Salgo, in whose surgery Mr Bloodworth has had a number of seizures. Dr Salgo described them in the following terms: "Before he fits he often has a feeling that something is amiss, and that he may fit, or he feels particularly unwell and becomes less coherent in his discussion with me. He often becomes very clammy, his eyes glaze, he falls to the ground or I help him to the ground so that he can't fall any further. I roll him on his side, and he often has jerking motions of his limbs. His eyes often roll back. I'm not sure that is the case in every time I have seen him fit. He's lost control of his bowels and urine on one occasion in my presence during the fit. And even if it's in winter, he's always covered in a lather of perspiration when the fit subsides, and it takes him sometime to gather his thoughts and recover, which is a fairly classical post-ictal, or post-fitting behaviour." 311 A little later, Dr Salgo said that Mr Bloodworth's breathing often becomes very shallow, and can even stop for a minute or so, which he said "gets us all very agitated", but it then resumes. He described these as classic tonic-clonic seizures. 312 When Dr Watson gave his evidence he was shown the above passage from Dr Salgo's evidence. He said: "This description of these events is very much the description of a generalised tonic-clonic seizure with incontinence of urine and faeces. It is unusual to have incontinence of faeces in epilepsy. I've never come across it in pseudo epilepsy, although one might occasionally see incontinence of urine, and if you take it with what Dr Salgo has said, this is a generalised tonic-clonic seizure." 313 In the light of this evidence I am left in no doubt at all that Mr Bloodworth suffers genuine tonic-clonic seizures. 314 Some of the defendants' experts asserted that, if Mr Bloodworth genuinely had epilepsy, you would expect to see changes in his EEG patterns. However the evidence was by no means uniform on this matter. Both Dr O'Sullivan and Dr Watson said that it is not unusual for an epilepsy sufferer to have a normal EEG. Dr Watson said that there is only one way to eliminate epilepsy radiologically, and that is to have a normal EEG during the course of a seizure. A normal EEG afterwards, he said, is a neutral finding. 315 I accept that Mr Bloodworth has, for a long time, suffered periodic absences. They started before August 1993, but only came to medical attention after Mr Bloodworth crashed his car. Every member of Mr Bloodworth's family who gave evidence in the case described him as sometimes becoming staring and vacant, and then returning to the present without any memory of what had happened in the meantime. Often he did not seem to know that anything unusual had occurred. These are classic signs of complex partial seizures. Mr Bloodworth said that these absences cause no particular problems. They are quite different from the pseudo seizures or tonic-clonic seizures, which can cause major disruption. 316 The evidence is that, so long as Mr Bloodworth takes his medication, particularly Epilim, he is generally free of major seizures. If he stops taking his Epilim, then a major seizure or seizures will be likely to follow. 317 A finding that Mr Bloodworth suffers from epilepsy provides strong support for the proposition that he has brain damage, which can only have been sustained in the failed surgery. Mr Glissan submitted that this was not an available reasoning process in this case. He suggested that it was open for me to deduce epilepsy from the existence of brain damage, but not to do the reverse and conclude that because there was epilepsy there must also be brain damage. He said that there were "many" other reasons for the appearance of epilepsy. This, however, does not accord with my understanding of the evidence. Dr O'Sullivan was in no doubt that Mr Bloodworth's epilepsy was secondary to his anoxic brain damage. Dr Watson said that his diagnosis of epilepsy was related to this surgery. 318 This is, in any event, a largely academic issue. I have already made a finding that Mr Bloodworth's psychiatric problems are at least partially attributable to brain damage. My finding that he also suffers from epilepsy provides further support for the proposition that he sustained brain damage from the failed surgery in January 1992. Does Mr Bloodworth have cognitive impairment? 319 Mr Bloodworth has undertaken a number of psychological tests over the years to determine whether he has any impairment of function which would be indicative of brain damage. All of them have shown deficits in certain areas. The two remaining questions are whether these results were obtained through contrivance on Mr Bloodworth's part or whether they were genuine deficits. Even if they were genuine, there is evidence to suggest that they might have been at least partially caused by the prescription drugs Mr Bloodworth was taking at the time. 320 Between 1993 and 1995 Mr Bloodworth underwent four neuropsychological examinations in order to assess his cognitive function. These indicated that he had above average intelligence and normal cognitive function in most areas. However all tests revealed that he had some impairment of memory and learning skills which were not consistent with his intelligence level nor with his results in other areas of cognitive function. A very useful summary of these tests and their results is contained in the report of Professor Lawrence Howes dated 21 May 2003 which was tendered by the defendants. 321 Mr John Taylor, psychologist, and Dr Diana Caine, neuropsychologist, were two of the practitioners who administered these tests. Both provided reports and gave evidence in the plaintiff's case. Both of them commented on the consistency between the results that were obtained between the various tests. Dr Caine said that the consistency of these results made it most unlikely that Mr Bloodworth was malingering. She went so far as to say that it "defied belief" that Mr Bloodworth could have deliberately contrived to produce such "astonishingly" similar results in tests administered over a number of years by different psychologists who were administering different tests. 322 Dr Roberts, who gave evidence for the defendant, did not agree that Mr Bloodworth's tests showed consistent results. She said that there were some marked inconsistencies. Mr Taylor in turn said that the tests which Dr Roberts administered were at best questionable and were likely to be inaccurate. On the other hand, there is reason to believe that Mr Taylor was mistaken in the tests he thought Dr Roberts had performed. 323 In my view there is little to be gained by exploring these conflicts. I accept that the majority of tests undertaken by Mr Bloodworth showed consistent deficits in memory and learning function. According to both Dr Watson and Dr Caine, this pattern of deficits is consistent with cerebral anoxic brain damage, and I accept this to be the case. 324 The picture, however, is not as simple as this evidence might suggest. Professor Howes pointed out that throughout the period that Mr Bloodworth was undertaking these tests, he was taking a number of psycho-active drugs, including benzodiazepines. Benzodiazepines are a chemical family. They come under the brand names of Vallium, Mogadon, Rivatril and Temaze. They have the ability to relieve anxiety, induce sleep and cause muscle relaxation. They also, according to Professor Howes, impair memory, particularly verbal memory. They can induce word finding difficulties and increase intrusive interference with memory skills. Dr Howes said that the impairments in cognitive function found in Mr Bloodworth's psychological tests were essentially a "fingerprint" of benzodiazepene administration. 325 Neither Mr Taylor nor Dr Caine agreed with Professor Howes' opinion that Mr Bloodworth's psychological results were affected by his drug intake. However Dr Watson at the last hearing agreed that short-term memory and new verbal learning could be affected in a long-term user of benzodiazepenes. 326 It is impossible in my view to make any firm finding on this matter. I accept that Mr Bloodworth's learning and memory deficits are consistent with anoxic brain damage. However they are also consistent with benzodiazepene use. I think it likely that both factors have influenced his test results. In other words Mr Bloodworth's anoxic brain damage has caused some functional deficits, but they may not be as extensive as the test results indicate. 327 Whilst on the subject of drugs, some of the defendants' experts, particularly Dr Bell and Dr Lawrence, considered that Mr Bloodworth's drug taking, involving both prescription and recreational drugs, was responsible for a large part of his dysfunctional behaviour. This was not the view of the plaintiff's doctors, particularly Dr Jungfer. She said that she never saw any sign of drug abuse in all the years she was treating Mr Bloodworth. To the contrary, Mr Bloodworth had a problem of sometimes failing to take his medication, not of over-medicating. As to recreational drugs, there is no evidence to suggest that Mr Bloodworth's marijuana or alcohol intake, at least in recent times, has been sufficient to affect his lifestyle or behaviour. Indeed the contrary would appear to be the case. 328 Accordingly, although Mr Bloodworth's prescription drugs have probably affected the results of his psychological tests, and have no doubt affected some aspects of his behaviour, I do not believe that they can be held responsible for the more florid or extreme behavioural problems he has exhibited over the years. There is, in any event, a real causation issue here. If, as I accept to be the case, the only behaviour-affecting drugs taken by Mr Bloodworth in any real quantity, are those which have been prescribed for him; and if, as appears to be the case, these are only prescribed because of problems associated with the failed surgery, then it must follow that the effects of these drugs can similarly be sheeted home to the surgery. The substantial difference is that they are likely to be short-term effects rather than lasting ones 329 I turn now to discuss Mr Bloodworth's physical symptoms arising from this surgery. Mr Bloodworth's physical symptoms 330 I propose to deal with this issue briefly. Although Mr Bloodworth complained of continuing physical symptoms, particularly involving abdominal pain, these do not feature nearly as prominently in his case as the psychiatric and neurological sequelae of this surgery. 331 There is no doubt that for some time after this operation Mr Bloodworth suffered genuinely severe and disabling physical symptoms. This was described by everybody who saw him at the time, and. it is only to be expected after the physical insult which he suffered during this surgery. He lost a great deal of weight and it was some months before he could straighten up properly. His bowel habits were affected. He suffered alternatively from constipation and diarrhoea, with occasional faecal incontinence. Moreover he had to undergo further major surgery in July 1992 which would not have been necessary had the first operation been properly performed. 332 There is no challenge, nor could there be, to Mr Bloodworth's claims that he suffered disabling pain and discomfort for some time after the failed surgery. The real area of controversy relates to his continuing symptoms. He says that he still suffers periods of crippling abdominal pain together with other physical symptoms such as constipation and diarrhoea. These have been improving, Mr Bloodworth said, and he is trying to manage his problems with diet. 333 Mr Bloodworth has also at times complained of loss of feeling in his legs, particularly his left leg. The distribution of loss is, as Dr Bell put it, inconsistent with known anatomical rules. Dr Bell regarded these complaints as consistent only with simulation on the part of Mr Bloodworth. I do not know what to make of these complaints. Certainly I do not propose to treat them as compensable in this case. 334 In December 1993 Dr Salgo referred Mr Bloodworth to a gastroenterologist, Dr Warwick Selby, for assessment of his abdominal pain. When Dr Selby first saw him he thought his problems were likely to be caused by adhesions following the two operations. Dr Selby, who gave evidence at the previous hearing, said that it is impossible to diagnose adhesions unless a bowel obstruction occurs. There has been no obstruction in Mr Bloodworth's case, which makes it questionable that he has adhesions. Nor have any other physical abnormalities been revealed in any of the x-rays or other abdominal investigations performed on Mr Bloodworth. 335 Dr Selby did not give evidence before me. At the last hearing he said that by about 1996 he had begun to think that Mr Bloodworth's abdominal pains should to be pursued from a psychiatric and brain damage viewpoint rather than from a gastrointestinal one. This was still his view, he said, in November 1999. 336 Although Mr Bloodworth's physical complaints are of a generally lower order than his psychiatric and neurological problems, he describes them as sometimes being very severe indeed. He has had a number of collapses, sometimes leading to hospital attendances, because of severe abdominal spasms. These are generally relieved with intra-muscular injections of Buscopan. He often carries Buscopan injections with him. 337 There are two substantial issues in relation to Mr Bloodworth's abdominal symptoms. They are, first, whether they relate to the failed operation; and secondly, what is their aetiology. 338 As to the first matter, McInerney AJ was not satisfied that Mr Bloodworth's "so-called abdominal attacks" could be related to the failed operation. His Honour based this finding at least in part on Wendy Bloodworth's evidence that it was not until she and her husband moved to Eumundi in October 1993 (in fact it was October 1992) that Mr Bloodworth started to suffer from abdominal attacks. His Honour pointed out that the onus was on the plaintiff to establish that his abdominal attacks were related to the failed operation. His Honour was not satisfied of that matter. 339 The defendants in their final submissions before me adopted McInerney AJ's findings on this matter, and suggested that I should reach the same conclusion. However, as I have already pointed out, the trial before me is a new trial based on new evidence and I must make my own findings on factual issues such as this. Moreover, additional evidence was given before me on this issue. In particular, Mrs Bloodworth gave the following evidence: "Q When did he first complain to you of abdominal spasms? A. As distinct from the gall bladder attacks? Q. Yes? A. In between the two operations, it was very difficult to differentiate which was a gallbladder attack and which was a, what we call an abdominal spasm. Very hard to differentiate between the two. After the second operation the symptoms of gall bladder attack dissipated, slowly, and the abdominal spasms, which were quite different, increased. So shortly – it wasn't long after the second operation before Charlie started complaining of abdominal spasms, which were now clearly not related to the gall bladder spasms because he now had the gall bladder removed."(Transcript page No. 270) 340 This evidence provides the temporal link, which his Honour thought was missing, between the failed surgery and Mr Bloodworth's abdominal spasms. 341 A further but related issue which His Honour raised was whether Dr Selby, in his first report dated 9 December 1993, might have been attributing Mr Bloodworth's abdominal symptoms to the operation performed by Dr Van Gelderen, rather than to that performed by Dr Miller. That issue was addressed in a later report of Dr Selby's dated 8 April 2003: "It was my opinion when I first saw Mr Bloodworth that his symptoms were a result of the injury sustained at surgery as was his associated anoxic brain damage." 342 Until Mr Bloodworth suffered his first gallbladder symptoms in June 1991, there was no suggestion that he had ever had abdominal problems. The abdominal spasms and other problems of diarrhoea and constipation arose for the first time after the failed surgery. On the totality of the evidence, including the more recent evidence of Mrs Bloodworth and the recent report of Dr Selby, I am satisfied that these spasms and other problems are directly related to the failed operation in January 1992. 343 There is, however, no evidence as to the likely aetiology of these symptoms. Dr Selby, as indicated earlier, thought it unlikely that they had a physical cause. Nevertheless, in his latest report he said: "It has always been possible that he has underlying adhesions although the absence of episodes of actual bowel obstruction are against this." 344 It cannot be suggested that Mr Bloodworth's anoxic brain damage caused his abdominal symptoms. Indeed the evidence is to the contrary. The only remaining possibility is that Mr Bloodworth's symptoms are related to his psychiatric condition. However, as the defendants point out, there is no affirmative evidence of this fact. In this respect, the defendants rely on the last sentence of the following paragraph in the report of Dr Peter Morse, dated 12 February 2003, which was tendered by the plaintiff: "Mr Bloodworth experienced quite marked physical symptoms and disability following the cholecystectomy operation. It is not surprising given the nature of the complications suffered in that operation that he is suffering quite marked on-going gastro-intestinal symptoms which although are not as much as they used to be they still occur. I do not consider that psychological emotional factors are playing any part in the causation, continuation, severity or type of his physical symptoms or disabilities." 345 It is clear from a reading of the whole of this paragraph that Dr Morse accepted that there must be a physical explanation for Mr Bloodworth's symptoms. We thus have the unusual position where the gastro- enterologist assumes that there is a psychiatric explanation for Mr Bloodworth's problems and a psychiatrist assumes that there are physical causes. The defendants' position is that, in these circumstances, Mr Bloodworth cannot succeed in establishing a causative link between these symptoms and the failed surgery 346 This is not an easy matter. However the evidence clearly indicates that Mr Bloodworth has had a range of abdominal symptoms since the failed operation, which he did not suffer before. The conclusion is almost overwhelming that there must be a causal link between them, assuming the genuineness of these symptoms. 347 Whilst the aetiology of Mr Bloodworth's abdominal symptoms cannot be firmly established, I am not prepared to dismiss them as fabrications. Mr Bloodworth's personality predisposes him to exaggeration and embellishment. I have no doubt that he has exaggerated and embellished many of his physical symptoms, but I think it most unlikely that he has manufactured them entirely. Dr Selby said that when he saw Mr Bloodworth during these acute episodes, he seemed to be in genuine pain. Accepting, then, that these symptoms do exist to a certain degree, should I find against the plaintiff simply because he has not established the mechanism by which they are linked to the surgery? 348 It is not the case that there is no evidence of possible links between the surgery and Mr Bloodworth's symptoms. Dr Selby still thinks it possible that there might be adhesions; Dr Jungfer suggested that they might come from hyperventilation disorder; and other possibilities have been suggested in the evidence. The problem is that none of these have been elevated beyond mere possibilities. No expert has suggested a probable or likely explanation within his or her field of expertise. 349 In my view, the matters raised by the defendants are very relevant to the issue of (1) whether Mr Bloodworth genuinely suffers ongoing abdominal symptoms; and (2), if so, whether they are attributable to the failed surgery. I have taken these matters into account and have nevertheless reached an affirmative finding on both these issues. 350 On the whole of the evidence I accept that Mr Bloodworth genuinely suffers a range of abdominal symptoms as a result of this surgery. However I think it very likely that his symptoms have been exaggerated over the years, in keeping with his personality characteristics. Moreover, I think it probable that there is a strong psychological element in their presentation, and that they will significantly abate when this litigation is finally over. Pulling the strands together 351 Bringing together the findings I have made thus far, my overall view is as follows. Mr Bloodworth has always had narcissistic traits and a tendency to bipolarism. These made him particularly vulnerable to any cerebral insult, but were not sufficiently disabling to constitute personality disorders. The failed surgery on 28 January 1992 was, on my finding, an anoxic event which caused Mr Bloodworth to suffer mild to moderate brain damage. As a result of that brain damage Mr Bloodworth now suffers from epilepsy. From time to time he has experienced each of the three types of seizures I described earlier. It is very likely that the majority (and perhaps the great majority) of his major seizures are pseudo seizures which are not epileptic in origin, but are a form of panic attack. Nevertheless Mr Bloodworth has from time to time had genuine tonic-clonic seizures, as described by Dr Salgo. The third type of seizure, the absences, occur regularly but cause little difficulty. 352 I accept also that, as a result of the operation, Mr Bloodworth now suffers bipolar mood disorder and an adjustment disorder. He experiences anger, frustration, anxiety and sometimes depression. He displays behavioural and personality dysfunction, sometimes to a marked degree. His previous volatile temperament now verges on the explosive when he is confronted with adverse situations. 353 Most of these symptoms are controlled by medication. In this respect, Mr Bloodworth is currently taking a great deal of medication to control a wide range of symptoms. This is likely to continue for a long time, and perhaps indefinitely. One of the unwanted side effects of this medication is to impair Mr Bloodworth's learning ability and memory, thereby increasing the level of deficits he already suffers in these areas as a result of his anoxic brain damage. 354 Finally, Mr Bloodworth continues to suffer from periodic abdominal pains and from other bowel-related symptoms such as diarrhoea and constipation. 355 The combination of these deficits and disorders has had a dramatic impact upon Mr Bloodworth's life. I share McInerney AJ's view that the descriptions given by Mr Bloodworth's family members of his lifestyle before the surgery painted an excessively rosy picture. For a man of Mr Bloodworth's undoubted intelligence he displayed remarkably little ambition or drive, as evidenced by his extremely checkered employment history. Nevertheless, he was undeniably capable of working in a wide range of activities. His problem was one of lack of application, not lack of ability, capacity or opportunities. 356 In the twelve years or so since the failed surgery Mr Bloodworth has undertaken no form of paid employment. I accept that he has been, to all intents and purposes, unemployable. I consider that his overall condition will almost certainly improve once the stress of this litigation is finally behind him. Even so, I think that his cognitive deficits and his psychiatric problems make it extremely unlikely that he will ever be able to join the paid workforce on any sustained basis. His residual earning capacity must be very limited indeed. McInerney AJ placed it at $100 per week. I take a more pessimistic view. I would assess it at nil up till now, and $50 per week for the future. 357 Notwithstanding Mr Bloodworth's lack of application, he was, to use his own words, in charge of his life before the failed surgery. Since the surgery his anger, frustration and anxiety have taken over. His behaviour has on occasions become sufficiently extreme to require involuntary admission to hospital. His wife has been forced into the position of being his carer, which has been extremely taxing for her. He is very fortunate indeed that she has had the fortitude to continue in this role. 358 I am certain, as I have already indicated, that matters will significantly improve for Mr Bloodworth after the completion of this litigation. The history of his seizures over the last four years, between the hearing before McInerney AJ and that before me, provides strong support for this. At a time when it seemed that the litigation was probably over, Mr Bloodworth's condition improved markedly and he suffered very few major seizures. The situation changed dramatically after the Court of Appeal's judgment. Mr Glissan suggested that this indicated deliberate malingering on Mr Bloodworth's part. I have already found against him on this issue. Whilst I am strongly of the view that Mr Bloodworth has been exaggerating and embellishing his symptoms, I do not believe that he has been manufacturing them. It would, in any event, not be possible to fake the tonic-clonic seizures which, on my finding, he has experienced. 359 Mr Bloodworth is the first to admit that many, and probably most of his seizures are stress related, and are therefore pseudo seizures. In my view the incidence of these seizures will very significantly decline with the resolution of this litigation. Qantum of damages 360 The stage has now been reached for me to express my findings in monetary terms. Some of the final figures are not presently available. Were I required to give my final judgment at this point, I would probably need to reconvene the hearing in order to clarify them. However, as I propose to include a component in the plaintiff's damages for fund management, it will be necessary in any event to deliver this judgment on an interim basis and defer my final judgment until the necessary actuarial calculations have been made. It follows that there will be ample opportunity to remedy any present deficiencies in monetary details. 361 First, Mr Bloodworth's non-pecuniary damages. McInerney AJ awarded him general damages in the sum of $175,000. However there are a number of respects in which my findings differ from his Honour's. Most importantly, I accept that Mr Bloodworth now suffers from epilepsy. In addition, I consider that Mr Bloodworth's psychiatric problems are to a large extent attributable to the failed surgery. These are all likely to improve after the litigation is over, but nothing will ever restore him to the person he was before January 1992. 362 In my view an appropriate sum for general damages is $250,000 of which $150,000 is attributable to past losses. I will leave it to the plaintiff's representatives to calculate interest on that figure at the appropriate rate as at the date of final judgment. 363 The plaintiff has tendered a schedule of out-of-pocket expenses to date. These total $43,925.65. So far as I am aware, the defendants do not dispute this amount. If I am wrong on this, then the defendants will have an opportunity to address the matter. Otherwise I propose to allow that amount in full. 364 Mr Bloodworth is also entitled to interest on out of pocket expenses which have already been paid. The evidence before me does not indicate the extent to which these expenses have been paid. I propose to allow interest on paid expenses at the rate of 11 percent over half the period since the surgery, or 5.1/2 percent over the whole period. 365 I come now to past economic loss. Dr Morrison suggested that Mr Bloodworth's earnings when he was employed by David Joffe should be the measure of the his continuing economic loss. A similar submission was made to McInerney AJ and rejected by his Honour. His Honour assessed Mr Bloodworth's weekly earning capacity from 14 February 1992 (the date Mr Bloodworth would notionally have resumed employment following a successful operation) at $450 net per week. His Honour considered that for much of the intervening period Mr Bloodworth would have had a residual earning capacity of $100, which was therefore deducted from this amount. A further discount of 25 percent was made because of likely periods of unemployment during that time. 366 Dr Morrison suggests that Mr Bloodworth should be awarded $625 net per week since February 1992, with no deductions other than the normal 15 percent for vicissitudes. This amount of $625 assumes that Mr Bloodworth's net earnings would have been $500 per week in 1992, rising to $750 at the present time. This is approximately equal to the net average weekly earnings of all employees in New South Wales in full-time employment. Dr Morrison asserts that this figure strikes an appropriate balance between Mr Bloodworth's "variable employment history", and his potential to earn more than the average weekly earnings. 367 In my view this figure fails to take adequate account of Mr Bloodworth's previous employment difficulties. It is quite possible that Mr Bloodworth, absent the failed surgery, might have settled down and applied himself in some profitable endeavour which held his interest. This possibility must be accommodated for in the crystal ball gazing which marks this exercise. On the other hand, it is very likely that he would have continued to drift from one job to another, interspersed with lengthy periods of unemployment. He certainly had the intellectual ability to earn more than the average weekly wage. However given his lack of application and drive, the likelihood is that his overall earnings would have been significantly reduced by periods of unemployment. 368 Were it not for the failed surgery, Mr Bloodworth would in my opinion, have earned an average of $450 per week between February 1992 and the present time. This would have risen from approximately $350 net per week in 1992 to $550 at the present time, the average being $450. 369 A question remains as to whether I should apply the usual discount of 15 percent for vicissitudes or whether I should increase it, as McInerney AJ did, in order to take account of Mr Bloodworth's likely periods of unemployment, given his pre-existing employment record. The answer is that I have already taken account of this matter in setting notional earnings which are significantly lower than those suggested by Dr Morrison. I therefore propose to apply the normal discount of 15 percent. The calculation of the final figure must await the date of final judgment. 370 Interest on past economic loss should be allowed at the usual rate of 11 percent over the whole period or 5.5 percent over half the period. 371 As to Mr Bloodworth's future economic loss, I have notionally fixed his current loss at $550 net per week. From this figure the amount of $50 is to be deducted in accordance with my earlier finding that this is the likely extent of his future residual earning capacity. The resultant figure, of $500 net per week, will become the measure of his loss to age sixty-five. The only remaining question is the discount rate for vicissitudes. Again, I have taken account of Mr Bloodworth's variable employment history in setting his current loss. Accordingly, the normal rate of 15 percent will apply. The precise amount can be calculated at final judgment. 372 A further claim is made for loss of superannuation benefits. On the assumption that Mr Bloodworth would have worked as an employee from time to time, he would clearly have been entitled to some superannuation benefits. Dr Morrison suggested a round figure of $60,000 would be an appropriate award under this head. I am not sure how this amount has been calculated and am not presently in a position to make a finding on this matter. I leave it to the parties to try to resolve it between them. In order to assist their calculations, my finding is that 50 percent of Mr Bloodworth's income would probably have been derived through working in an employment situation. If the parties cannot agree on this matter, I will take further submissions on it when I return for final judgment. 373 Dr Morrison has provided a schedule of future out of pocket expenses involving consultations with specialists. These, in combination, total a very large amount of money. They include fifteen consultations each year with Dr Morse, five with Dr Watson, two with a gastroenterologist, plus the cost of nineteen days hospitalisation as a private patient in either Royal Prince Alfred Hospital or the St John of God Hospital, Burwood. 374 Clearly Mr Bloodworth will require professional assistance from time to time in the future. However in my opinion the amounts presently claimed are unrealistically high. The predicted level of care is based upon Mr Bloodworth's experiences during a particularly difficult and stressful time leading up to the re-hearing of this matter. Just as Mr Bloodworth was able to dramatically reduce his medical consultations after McInerney AJ's judgment was delivered, so I believe will be the case once this litigation is completed. He will nevertheless require periodic consultations with some specialists, particularly Dr Watson. The reduction in stress will almost certainly reduce the incidence of Mr Bloodworth's pseudo-seizures, but it will not affect his underlying epilepsy. 375 The costs of these specialist consultations range from $100 per hour to $220 per hour, depending on the doctor and the length of consultation. In my view it would be reasonable to assume that Mr Bloodworth will need about five specialist consultations a year, and that they are likely to be reasonably lengthy. I therefore allow $1,000 per year for attendances upon psychiatrists, neurologists and gastroenterologists. I think he will be unlikely to need hospitalisation at anything approaching the claimed rate. A shared room at St John of God Hospital costs $500 per day. Being as generous as possible, Mr Bloodworth might require four days of hospitalisation in any one year. I therefore allow $2,000 for this component. 376 A further claim is made for twenty-four attendances per annum upon Dr Salgo, Mr Bloodworth's general practitioner. Dr Salgo has been extremely supportive of Mr Bloodworth and will no doubt continue to see him on a regular basis. However I very much doubt that twenty-four attendances will be required each year after the completion of this litigation. Dr Salgo's consultations cost $50 or $100 depending on length. I propose to allow $600 on this account. 377 Finally under this head a claim is made for over $56,000 being the costs of future medication at an annual rate of nearly $3,000. Most of this is based on the amount apparently outlaid by Mr Bloodworth at the Hazelbrook pharmacy on unsubsidised rates. I cannot accept that this level of medication will be required indefinitely. Taking a broad-brush approach, I propose to allow two thirds of this amount, namely $2,000 per year. 378 A further claim is made for the cost of transport. Mr Bloodworth has sometimes driven during the twelve years since the surgery. He currently has a licence, but drives little if at all, largely because of the danger of suffering a seizure whilst at the wheel. Dr Morrison acknowledges that he can use public transport but points out that this is not always convenient or available. An allowance of $50 per week for life is sought for taxi fares. I propose to allow $15 per week under this head. 379 A major part of Mr Bloodworth's claim is for gratuitous services. It is suggested that since the surgery Mr Bloodworth has needed supervisory care during daylight hours which has generally been provided by his wife and sometimes by his parents. The claim is made for ten hours of assistance per day, seven days a week at the rate of $15.50 per hour. There is also a claim for future care over the same period but at a higher rate. 380 I do not understand there to be any dispute as to the rate of these services, but there is a very significant dispute as to whether Mr Bloodworth had any need for care in the past and whether he will in the future. The total amount claimed for care, including interest on past care, is over $3 million. The defendants submit that a claim of this magnitude "is calculated to bring the law into disrepute". Whilst I think that this language is a little excessive, I agree that the plaintiff's claim is grossly excessive. 381 I do not propose, at this stage of the judgment, to go back over Mr Bloodworth's history during the many years since the failed surgery. There have clearly been times when he has needed quite extensive care. particularly back in 1992. At other times he appears to have been able to cope quite well. His needs during these periods would have been minimal. 382 The claim for ten hours of care each day is based on evidence given by Professor John Yeo at the hearing before me. Professor Yeo referred to Mr Bloodworth's tendency to forget his medication, his inability to drive and his proneness to seizures. He considered that Mr Bloodworth needs an assistant who acts in the role of "domestic assistant, observer, driver, and a person who is responsible for contacting medical services should he have another grand mal attack." Professor Yeo noted that Mrs Bloodworth had demonstrated a remarkable willingness to fill these roles. However, he thought it unreasonable that she should become disabled through caring for her husband's disabilities. Professor Yeo considered that Mr Bloodworth was at no particular risk at night. However, he considered that he should have an attendant carer provided during daylight hours. 383 This evidence was given in November 2003. Professor Yeo had previously assessed Mr Bloodworth in June 1996 and again in March 2003. He had provided the plaintiff's solicitors with two reports. In each of these he suggested that Mr Bloodworth required domestic assistant for two hours a day "mainly to act in the role as observer and to ensure his safety and the appropriate completion of normal activities of daily living." 384 On the basis of this material, the plaintiff's claim before McInerney AJ was for domestic assistance for two hours each day, both in the past and the future. McInerney AJ considered that this was excessive, apart from a period shortly after the surgery, and allowed both past and future care for only one hour each day. 385 The change in Professor Yeo's assessment of the amount of care needed by Mr Bloodworth was brought about, not by any change in Mr Bloodworth's presentation between 1996 and 2003, but by Professor Yeo's reading of Mrs Bloodworth's evidence before me. He had not previously realised, he said, the extent of the burden upon her in caring for her husband. 386 A number of comments can be made about this. I have thus far abstained from making any observations about Mrs Bloodworth's credibility. In general, I think that she is an admirable woman who has coped extraordinarily well with a very difficult situation. However I think that she, like her husband, has tended to exaggerate some of their difficulties. Moreover Mr Bloodworth's numerous problems were clearly at their worst over the eighteen months before Mrs Bloodworth gave her evidence. I am firmly of the view, as I have said many times, that Mr Bloodworth will improve in all aspects of his life when this litigation is over and he again becomes, as he puts it, "de-stressed." 387 I can find no justification, either in principle or in logic, for claiming past care of two hours per day in 1999 for the whole period since 1992 and then amending it to ten hours per day in 2003, again for the whole of the intervening period. 388 In many ways I agree with the conclusions reached by McInerney AJ on this matter. His Honour allowed care of one hour per day both for the past and the future. I propose to allow it at the rate originally sought, namely two hours per day. This is a reflection of my opinion that Mr Bloodworth suffers more serious problems than his Honour thought to be the case. 389 In the end, I propose to allow for care on the following basis. For one month after Mr Bloodworth's discharge from hospital on 2 February 1992, I propose to allow five hours of care per day at the agreed rate. For the next five months I allow care at the rate of three hours per day, except for the period when Mr Bloodworth was in hospital for his second operation. Thereafter I allow it at two hours per day up to the time of judgment. I similarly allow it at two per day for the future. I allow interest on the cost of past care at the normal rate. 390 A claim is also made for handyman's assistance for two hours a week. The evidence indicates that Mr Bloodworth is capable of undertaking most chores around the house, but he cannot work at heights. This, as I understand it, is the principal basis upon which this claim is made, I share McInerney AJ's view that this level of assistance is not justified. His Honour allowed half an hour per week under this head, and I propose to do the same. 391 The final component in the plaintiff's claim relates to fund management. Mr Bloodworth has, by reason of Dr Miller's negligence, a reduced capacity to manage the significant amount of damages which will be awarded to him in this case. He will, in my view, require professional assistance in managing this award. Given that his inability in this respect is attributable to the defendants' negligence, he is entitled to the cost of fund management. This cost cannot be assessed until actuarial calculations have been made based on the size of the award itself. The final amount will then become part of the plaintiff's verdict. 392 The figures representing these findings as at the date of final judgment are set out in the "Summary" at the end of this judgment. Footnote 393 On the 6 April 2004 I delivered an interim judgment in this matter in which I set out the heads of damages which I proposed to award. I set the matter down for hearing today (14 April 2004) in order for an actuarial report to be obtained in the meantime. 394 That report has now been obtained by the plaintiff's lawyers and all relevant calculations have been made upon the basis that final judgment is to be given today. The total figure is $1,769,391.65. The defendant does not dispute the accuracy of the calculations, or the fact the final figure correctly represents the findings I made in my interim judgment. 395 Two further matters remain outstanding. The first relates to costs. Dr Morrison, on behalf of the plaintiff, tells me that an offer of compromise was made by the plaintiff on 7 April 1999 to settle the matter upon receipt of $1.5 million, plus costs. Dr Morrison relies upon Pt 52A r 22 (4) in urging that I should order that the defendant pay costs on an indemnity basis from that day on. 396 The situation in this case is complicated by the fact that there was, in the latter part of 1999, an earlier trial, which resulted in a verdict for the plaintiff of a much lesser sum, a little over one million dollars. Accordingly, there was no question of indemnity costs on the basis of that award. The defendant appealed to the Court of Appeal, contesting both liability and quantum. The Court of Appeal did not deal with the issue of quantum, but allowed the appeal on the issue of liability. The Court ordered that there be a new trial, both as to liability and damages, and ordered that the costs of the first trial abide by the costs of the second trial. That was the trial before me. 397 I was initially concerned that the history of the litigation might derogate from the force of rule 22(4), and might provide a basis for me to make a contrary order. However, Dr Morrison has very strongly urged that this offer should have been accepted when it was made. If it had been, a great deal of time and expense would have been saved. I cannot but agree with this proposition. Indeed this was precisely the objective which gave rise to the rule in the first place. 398 I was also at one stage concerned that the five years which elapsed between the making of this offer and the giving of the judgment might have brought the amount of the offer up to the level of the judgment; or conversely, the judgment is relatively below the offer. However, I have been persuaded that this is not the case: the interest component in the judgment is relatively low. Nor have inflationary influences in the meantime been sufficient to bring about this result. 399 The final matter which has been raised relates to a stay of proceedings. Mr McDougall, for the defendant, tells me that he has instructions to appeal in relation to both heads of liability in which I found against the defendant, and also in relation to damages. Dr Morrison does not contest the making of a stay, but seeks a condition of payment out of $100,000. The only real issue is the amount of the payment out: Mr McDougall suggests $50,000 would be a more appropriate figure. 400 In the light of the very lengthy history of this matter, and the likely further delay before an appeal is heard, I think that the higher sum as sought by Dr Morrison would be appropriate. 401 I enter verdict and judgment for the plaintiff in the sum of $1,769,391.65. 402 I order, in accordance with Pt 52A r 22(4) that the whole of the costs of this case from 7 April 1999 be paid by the defendant to the plaintiff on an indemnity basis. It goes without saying that the costs until then will be paid on a party to party basis. 403 I order that execution of the judgment be stayed until judgment is given by the Court of Appeal, or an appeal to that Court be withdrawn, whichever be the earliest, upon the following conditions: first, that payment be made to the plaintiff of $100,000 within 28 days of today, and, secondly, that a notice of appeal with appointment be lodged within 28 days of today. SUMMARY : General Damages: $250,000.00 Interest on past general damages ($150,000): $36,642.00 Out of pocket expenses: $43,925.65 Interest on paid out of pocket expenses: - Past loss of earnings: (From 14.2.1992 to date of judgment $286,712.00 at $450 per week, less 15 % for vicissitudes) Interest on past economic loss: $96,279.00 Future economic loss: ($500 per week to age 65 less 15%) $311,822.00 Lost superannuation benefits: - past - $59,650 - future - $48,874 Total $108,524.00 Future medical, hospital and pharmaceutical costs: ($5,600 per annum for life) $118,138.00 Transport costs: - past $9,544.00 ($780 - per annum for life) interest $3,198.00 future $16,512.00 Total $29,254.00 Loss of past care: (at rates specified in judgment) $141,826.00 Interest on past care: $48,779.00 Future care: (2 hours per day for life) $41,852.00 Handyman's assistance: past $7,958.00 (½ hour per week for life) interest $2,669.00 future: $13,760.00 $24,387.00 Fund management. $231,250.00 TOTAL $1,769,391.65 ********** Last Modified: 04/27/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.