New South Wales Supreme Court CITATION : Finch v Rogers [2004] NSWSC 39 revised - 13/02/2004 HEARING DATE(S) : 10/11/03-14/11/03 17/11/03; 19/11/03-20/11/03 JUDGMENT DATE : 13 February 2004 JURISDICTION: Common Law Division Professional Negligence Lst JUDGMENT OF : Kirby J DECISION : Verdict for the plaintiff, with costs.; Parties to agree on calculations based on findings in judgment. CATCHWORDS : Professional Negligence - breach of duty by doctor - causation of damage - two views accepted by profession as to treatment - whether loss of chance - proportion of worst case LEGISLATION CITED : Civil Liability Act 2002 Motor Accidents Act 1988 Chappel v Hart (1998) 195 CLR 232 Bolitho v City and Hackney Health Authority [1998] AC 232 Malec v J C Hutton Pty Limited (1990) 169 CLR 638 Naxakis v Western General Hospital & Anor (1999) 197 CLR 269 CASES CITED : Watts v Rake (1960) 108 CLR 158 Ruddock v Taylor [2003] NSWCA 262 Southgate v Waterford (1990) 21 NSWLR 427 Dell v Dalton (1991) 23 NSWLR 528 Van Gervan v Fenton (1992) 175 CLR 327 Mortimer v Burgess (unreported, 16.5.97, NSWCA) PARTIES : Andrew Robert Finch (Pl) Dr John Rogers (Def) FILE NUMBER(S) : SC 20346/02 COUNSEL : G Segal (Pl) I G Harrison SC/Ms J Lonergan (Pl) SOLICITORS : Maurice Blackburn Cashman (Pl) David Ian Brown (Def) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST DAVID KIRBY J Friday 13 February 2004 20346/02 Andrew FINCH v John ROGERS JUDGMENT 1 KIRBY J: Andrew Finch (the plaintiff) claims damages against Dr John Rogers, a urologist (the defendant). Breach of duty is admitted. Mr Finch, in various ways, is now disabled. The issue is whether his disablement was caused by the defendant's breach of duty. Background 2 Andrew Finch was born on 10 July 1974. He grew up in Armidale, attending local schools. He was the oldest of three children. His father is an accountant. He showed early promise in music. He began piano lessons in 1982 at the age of eight. His teacher was Ms Julee Andrews. She remained his teacher for the next decade as he passed through the grades (grades 1 to 8). She described him as a talented student who worked very well. 3 Mr Finch's interests were not confined to the piano. He also played the clarinet and the saxophone. He enjoyed composition. At high school he was part of the school orchestra. He also played in a school band and ensemble. He was asked to teach another student the saxophone, which he did and enjoyed. One of his school teachers, Mr Michael Irik, described him as a "fine musician", "a natural". Mr Finch received a number of awards for music. 4 Mr Finch was not a sportsman. His friends tended to be those interested in music. One such friend, Stephen Doherty, gave evidence. Together they formed an ensemble at school, performing locally, and earning up to $100 or $150 a night. In 1991, whilst still at school, Mr Finch undertook work experience in the music department at St Edwards College at Gosford. The head of the department reported to the careers advisor at his school in Armidale in these terms: (Exhibit E) "It is very difficult to absolutely assess a student's ability or aptitude in the short period of time they are here, however I am pleased to inform you that his ability and aptitude to every situation faced throughout the week was of a high level. Finally I was very happy with Andrew's manner, and the way in which he conducted himself generally." 5 The plaintiff therefore determined upon a career in music. His father, however, believed that he should have a profession. He resolved therefore to pursue teaching rather than performing. He saw himself as performing occasionally, when opportunities presented. 6 Mr Finch made application to a number of schools of music. His aim was a degree which would qualify him as a secondary school teacher of music. He nominated as first preference the Canberra School of Music, his second, the Newcastle Conservatorium and, finally, the Queensland Conservatorium which is part of the Griffith University. Each application required an examination and audition. Mr Finch was successful in all three. He was offered a place by each school, subject to passing the Higher School Certificate. He was awarded that certificate with a TER of 71.5. 7 Mr Finch accepted the Canberra School of Music. The school was part of the Australian National University. It had links with the University of Canberra, where he could complete a Bachelor of Education, music being the backbone of his degree. 8 However Mr Finch found the adjustment to university life difficult. He was used to the discipline imposed at home, where he was expected to be up by 6.00 am in order to practice. At university he was living in a residential college. There was a busy social agenda. He said he lacked the "life skills and maturity" to ration his freedom, so that he did sufficient work. 9 He also said that he got off to a bad start at the School of Music. Due to a misunderstanding, he arrived two weeks late at the school. The course had already begun. He was presented with a body of work, which he was expected to practice. However, the piano at the residential college was constantly in use in connection with the college's social life. His results that year, and the next year, were poor. Dr Athanasou, a consultant in vocational guidance retained by the defendants, sought access to his academic record. The codes used by the university were obscure. However, Dr Athanasou reconstructed Mr Finch's record in 1995 at the University of Canberra in the degree of Bachelor of Education as follows: 1994 Semester 1 External studies (3 subjects) Pass Semester 2 Microeconomics Withdrew 1995 Semester 1 Music --- Microeconomics N (not completed?) Semester 2 Music --- Adolescent development Withdrew Language and learning Withdrew 10 At the Australian National University in the School of Music the results were mixed, although somewhat better. Again, quoting from the report of Dr Athanasou, they were reported as follows: 1994 Semester 1 Physics and psychophysics Pass Keyboard musicianship Withdrew Semester 2 Electroacoustic composition Distinction Semester 3 Aural 1 Withdrew Harmony and counterpoint Pass Instrument 1 Performance Piano Credit Outline of music history Withdrew 1995 Semester 1 Semester 2 Semester 3 Aural 1 Grade not clear Outline of music history Grade not clear Instrument 2 Distinction 11 The result was considered unsatisfactory and the plaintiff was therefore excluded from the Australian National University School of Music in February 1996. He nonetheless remained enrolled at the University of Canberra, in the Bachelor of Education degree course. Again, guided by his father, he determined that he would attempt commerce based units. 12 However, Mr Finch found the course dull. His passion was music. He began, moreover, to experience tiredness. He had, throughout high school and university, performed casual work after hours. The closer he got to December 1996 (when the diagnosis of testicular cancer was made), the more difficult he found his workload. His academic record for 1996 was as follows: 1996 Semester 1 Music --- Concepts and elements of law Withdrew Accounting theory & practice Withdrew Semester 2 Music --- Concepts and elements of law N (not completed?) Accounting theory & practice N (not completed?) Diagnosis and operation 13 On 15 December 1996, or thereabouts, Mr Finch noticed a lump in his right testicle. He went to a local medical centre, which arranged for an ultrasound. The ultrasound was performed on 17 December 1996. It revealed a mass which was thought to be a tumour. Mr Finch was referred to a Canberra specialist, Dr Nugent. His parents, however, believed that he should see somebody in Sydney. He was referred by Dr Nugent to Dr Rogers. 14 Mr Finch first saw Dr Rogers on Thursday 19 December 1996 at his rooms at the RPA Medical Centre at Newtown. Dr Rogers reviewed the scrotal ultrasound. It suggested testicular cancer. Testicular cancer is a rare disease, afflicting about five men in one hundred thousand. One form of that disease, non-seminomatous testicular cancer, tends to occur in men in their twenties. Mr Finch was then 22 years. 15 Dr Rogers ordered blood tests. If there is a tumour present it produces chemicals that can be measured in the blood by tumour markers, specifically: (a) Beta HCG (b) Alfa feta protein (c) LDH (lactic dehydrogenase) 16 The test results were elevated, confirming the presence of the tumour. They were reported as follows: (a) Beta HCG of 79 U/L (normal range 0-5); and (b) Alpha feta protein of 2.3 ug/L (normal range 95% less than 4, 99% less than 8). 17 Dr Rogers advised an operation as a matter of some urgency, removing the testicle (an orchidectomy). Mr Finch accepted Dr Rogers' advice. The operation was performed that evening. No complaint is made concerning the operation. The right testis showed an infiltrating embryonal cell carcinoma. There was prominent lymphatic invasion, and some early invasion of the surrounding capsule. The left testicular biopsy showed no abnormality. Post operation 18 Mr Finch remained in hospital for two days. He then returned to Armidale with his parents. He was told to have a CT scan. Nothing was said about the need for further blood tests. The CT scan was undertaken on 24 December 1996 by Dr Barter. Dr Barter reported in these terms: "No lymphadenopathy was evidenced in chest, abdomen or pelvis." 19 Dr Rogers went on leave on Friday 20 December 1996. He returned on Thursday 16 January 1997. Before going on leave, he made arrangements to see Mr Finch on 17 January 1997. The plaintiff's father was required to conduct an audit at Nambucca between 17 and 23 January. The family thought that it would be "nice" to have a holiday together. Accordingly, the appointment with Dr Rogers was rescheduled for 23 January 1997. Nothing had been said to Mr Finch suggesting urgency in respect of the follow-up consultation. Further consultation with Dr Rogers 20 Mr Finch saw Dr Rogers on 23 January 1997. He brought with him the CT scan of 24 December 1996. Dr Rogers examined the scan. Whilst acknowledging the difficulty in determining whether the lymph nodes were within the normal range (where any change is likely to be minor) Dr Rogers was suspicious of the area in the inter-aorta caval region. He made arrangements for a further urgent CT scan. Dr Harding-Smith, radiologist, provided a report the same day, which included these words: "There are slightly enlarged aorta-caval lymph nodes that may have increased a little in volume compared with the scan of 24 December 1996." 21 At the same time, Dr Rogers arranged for further blood tests of the tumour markers, which were reported the next day as follows: (a) Beta HCG of 3307; and (b) Alpha feta protein of 33.9. 22 When Dr Rogers again saw the plaintiff on 24 January 1997, he told him that the tumour markers were very high. He said that he would need urgent chemotherapy. He provided a referral to Associate Professor Michael Boyer. Associate Professor Boyer is the head of the Department of Medical Oncology at the RPA Hospital. Arrangements were made for the plaintiff to see Professor Boyer that afternoon. 23 Dr Rogers told Mr Finch that the chemotherapy treatment may render him sterile. He would therefore need to bank sperm before the treatment began. He was directed to a person "down the corridor" to discuss that issue. That person, in turn, referred Mr Finch to the King George Hospital Fertility Laboratory. Mr Finch, however, said that he was "shell shocked". He had come to Sydney for a routine check-up. Suddenly he had been told that he had cancer and would require urgent treatment. He simply could not produce sperm before the time of his appointment with Professor Boyer arrived. 24 In the afternoon consultation on 24 January 1997, Associate Professor Boyer made the following comment to Mr Finch: "I'm going to treat you with three or four cycles of chemo. I haven't decided yet." 25 Mr Finch was told of the side effects of the drugs which would be used. They are ototoxic, that is, they may damage hearing. They are also neurotoxic, that is they may cause damage to the peripheral nervous system and especially the fingers and feet. Professor Boyer said that Mr Finch should harvest sperm in the following week on Monday, Wednesday and Friday. The cycle of chemotherapy would begin on Monday, 3 February 1997. 26 The plaintiff attempted to produce sperm in the following week. Again, he was unsuccessful. He went to Dr Rogers' rooms without an appointment late on the Friday. Dr Rogers saw him. He prescribed a sedative to help him relax. Mr Finch described himself as "extremely stressed". Over the weekend before the commencement of chemotherapy he had some success, although it was limited. When he saw Professor Boyer on Monday 3 February he asked whether he could have more time. Professor Boyer responded with these words: "No, you can't do that. This is life threatening. Its getting too late. We must start chemotherapy now." 27 Professor Boyer, in this consultation, also said that Mr Finch would need four cycles. On Friday 31 January 1997, prior to the first cycle, the plaintiff's tumour markers were measured as follows: (a) Beta HCG of 5458; and (b) Alpha feta protein of 35.7. The course of chemotherapy 28 Between February and May 1997 Mr Finch underwent four cycles of chemotherapy at the Oncology Clinic within the RPA Hospital. Each cycle involved three weeks. The chemotherapy drugs were administered each day during the first week. There was then a break of two weeks before the next cycle began. During that break, and shortly before the next cycle, there were blood tests. The tumour markers were monitored to ensure that they were falling, and that the drugs had been effective. Any side effects experienced by the patient were discussed before embarking upon the next cycle. 29 Mr Finch, in accordance with this regime, underwent chemotherapy according to the following timetable: 1st Cycle 03.02.97 to 07.02.97 2nd Cycle 24.02.97 to 28.02.97 3rd Cycle 17.03.97 to 21.03.97 4th Cycle 07.04.97 to 11.04.97 30 The blood tests taken between each cycle demonstrated that the drugs were dealing effectively with the tumour. The tumour markers were recorded as follows: Date (a) Beta HCG (b) Alpha feta protein 21.02.97 24 8 24.02.97 21 4.6 17.03.97 1 2.4 24.03.97 < 1 7 07.04.97 < 1 2.4 18.08.97 < 2 1.1 31 In 1997 there were broadly two chemotherapy regimes administered to patients with testicular cancer. They each used the same drugs, known by the acronym BEP, the drugs being: B leomycin E toposide Cis P latinum 32 The source of one regime (variously known as the North American or Indiana BEP) was the Department of Medicine at Indiana University. It was a major centre for dealing with testicular cancer in the United States. The other regime was formulated in the United Kingdom, where there were two major centres for dealing with testicular cancer, the Royal Marsden Hospital and the Southampton Hospital (English BEP). The regimes differed from each other in the number of cycles and the dosage of drugs administered in the course of each cycle. In the North American or Indiana regime, the cisplatinum was spread over five days. The etoposide was also spread over five days and the bleomycin was given weekly. Further, and this is a matter of some importance in the context of this case, three cycles rather than four were administered to those patients who could be characterised as having a "good prognosis". 33 The English regime, on the other hand, typically used four cycles. Etoposide was administered over three days, and cisplatinum on one day only. Bleomycin was given once per cycle. 34 It appears that Professor Boyer followed the Indiana BEP regime, which was given to Mr Finch. By the time chemotherapy began, Mr Finch could not be characterised as a good prognosis patient. Accordingly, four cycles were administered. Breach of duty 35 It is instructive to identify precisely the breach of duty by Dr Rogers. McHugh J in Chappel v Hart (1998) 195 CLR 232 said this: (at 242) "Proof of a cause of action in negligence or contract requires the plaintiff to prove that the breach of duty by the defendant caused the particular damage that the plaintiff suffered. In civil cases, causation theory operates on the hypothesis that the defendant has breached a duty owed to the plaintiff and that the plaintiff has suffered injury; but causation theory insists that the plaintiff prove that the injury is relevantly connected to the breach of duty. The existence of the relevant causal connection is determined according to common sense ideas and not according to philosophical or scientific theories of causation." 36 The statement of claim against the defendant was issued on 13 August 2002. Accordingly the issues, including the issue of causation, are to be determined by reference to the Civil Liability Act 2002. 37 What, then, was the breach of duty? Testicular cancer is an aggressive form of cancer. Removal of the testicle may eradicate the cancer if it is confined to the testicle. If, however, it has metastasised, that is spread elsewhere in the body, then removing the testicle will not deal with its presence elsewhere. Hence, after orchidectomy, the patient must be monitored, preferably by an oncologist (Professor Levi T.206). In the absence of such monitoring, there is a foreseeable risk that the tumour, which has spread beyond the testicle, will grow. The patient, therefore, should have a CT scan, as was done in this case. He should also have blood tests, preferably twice weekly, because the changes are so rapid. If the tumour is confined to the testicle, the chemicals released by the tumour will fall. The fall can be measured according to the rate at which the chemicals decay, that is, their half life. The half life of the tumour marker Beta HCG is 18 hours. So the patient, after operation, is "watched", their markers being checked regularly to determine a trend. Where the markers do fall, signifying that the tumour was confined, approximately half such patients may never need further treatment (Dr Vaughan T.70). 38 If the tumour markers do not fall, or fall and then rise, it may be inferred that the disease has metastasised elsewhere in the body. Chemotherapy should begin as soon as possible. Dr Vaughan likened such a situation to a medical emergency, rather like a car accident. The sooner treatment begins the better. The longer the delay the worse the prognosis. 39 Here Mr Finch was not referred to an oncologist. Blood tests were not arranged after the operation. The tumour markers were not monitored in the period between the operation (19.12.96) and the appointment with Dr Rogers on 23 January 1997. The spread of the cancer beyond the testicle was therefore not discovered until the blood test results were returned on 24 January 1997. The tumour in Mr Finch's body grew unchecked. Treatment by way of chemotherapy was delayed. 40 What were the consequences of the breach? I will leave aside, for the moment, the significance, if any, of the growth of the tumour, which was the direct consequence of the breach (although arguably a consequence later redressed by a successful course in chemotherapy). I will also leave to one side the anxiety occasioned to Mr Finch through the late discovery of his situation. The substantial issue, which occupied much of the hearing, concerned the consequences, if any, of delaying chemotherapy. That issue gives rise to the question: What would have happened to Mr Finch had there been no breach of duty? When, without breach, would chemotherapy have begun? Would the chemotherapy administered have been any different had it been commenced on time? 41 The plaintiff says that but for the breach he would have only required three cycles of chemotherapy, not four. He also says that the disabling side effects that now afflict him are the consequence of the fourth cycle. The defendant says the plaintiff required, and probably would have been given, four cycles, even if there had been no delay. He further says that the disabling consequences have not been caused by the fourth cycle. Whatever disabling effects there may be, they are, in the defendant's submission, the product of all four cycles, not just the last. The probable commencement date of chemotherapy 42 Let me deal with the first of these issues: When would chemotherapy have begun had there been no breach of duty? The need for despatch in the commencement of chemotherapy must accommodate a number of other demands. First, the regime presupposes an orderly cycle. Each cycle begins on Monday, so that treatment should begin on the first available Monday. Secondly, the drugs are likely to render the patient sterile. Those effected are usually young men. It is considered reasonable to provide an opportunity to harvest sperm. The patient, at the same time, has the chance to come to terms with the diagnosis and the proposed treatment (Professor Levi T.206). An audiogram may also be undertaken in order to establish the base level of the patient's hearing. 43 Thirdly, there was a difference of opinion as to whether time should be allowed for the surgical wound to heal before treatment begins. Dr Vaughan said that he would not delay chemotherapy because of an infection in the wound. It was too important, in his judgment, to take advantage of the "window of opportunity" where a patient may be regarded as having a good prognosis, permitting three cycles of chemotherapy rather than four. The chemotherapy drugs do not reduce the white cell count (and therefore do not inhibit healing) for ten days. Dr Vaughan said that in respect of a fit young man, with a clean incision, and with the help of antibiotics, that would be ample. 44 Professor Boyer, however, disagreed. He said he would ordinarily not commence chemotherapy in the presence of active infection (T.140). He said he would want to be certain that, with antibiotics, the wound was beginning to heal, and the infection beginning to resolve, before chemotherapy began (T.143). It would be necessary to check the wound for the purposes of forming a view. Professor Boyer said this: (T.143) "A. ... Delaying chemotherapy by 24 or 48, or even 72 hours to allow a wound to heal, or an infection to resolve, I don't believe has a dramatic impact, even in an aggressive disease. Certainly delaying it for much longer periods of time would be a concern. But I think that one has to regard the safety issues or aspects of this with all seriousness, because infections in patients with cancer who have no white cells are actually life threatening events." 45 On this issue, I prefer the evidence of Dr Boyer. Before chemotherapy could begin there was a need for some evidence that the infection was beginning to resolve. 46 The operation, as mentioned, was on 19 December 1996. Mr Finch then returned to Armidale. In late December 1996 he saw Dr Connor twice about the wound. Dr Connor's handwritten notes in respect of these consultations were produced (Exhibit 1). The first consultation was on 27 December 1996. Mr Finch complained of discomfort at the site of the wound. He was given advice on cleaning the wound and told to see whether it became more painful and inflamed. 47 There was an entry the next day, 28 December 1996. It appears to be in these terms: "Concerned for purulent discharge from mid scar where slightly infected." 48 Dr Connor prescribed a course of antibiotics. When questioned about these consultations, Mr Finch faintly remembered that there had been an infection. The wound was a bit red when he pulled off the surgical tape. His mother gave evidence that the bandage was removed five or six days after the operation. She noticed the scar was red with slight yellowness around the stitches. She described it as a "redness, not extending, just normal slight infection". The scar healed very quickly once her son took the antibiotics. Within four or five days the redness had gone. 49 There was a further entry in Dr Connor's notes for 2 January 1997. The entry relates to a phone call from Mr Finch. It records that Dr Connor told Mr Finch that he should continue the course of antibiotics to the end. Mrs Finch explained the purpose of that phone call in these terms: (T.157) "Q. Did you discuss with Andrew the making of that phone call? A. Yes, I did discuss it because he felt, and I also felt when I looked at the scar, that it had healed. And he was taking Vibra-Tabs because he had quite bad acne and he couldn't take the Vibra-Tabs while he was taking the antibiotics, and his face was flaring up. And he said, 'I want to try and get rid of these pimples' because he was a young boy. 'I will ring up Dr Connor and see if I can stop the antibiotics so I can start back on the Vibra-Tabs again.' But we also knew you had to finish a full course of antibiotics once you start, so I was part of that conversation and I do remember considering that the wound had healed." 50 It is reasonable to infer that the wound had completely healed by 2 January 1997. It is probable that, by Monday 30 December 1996, the infection (with the help of antibiotics) was beginning to resolve. It follows that Monday 30 December 1996 would have been the earliest date that chemotherapy could have begun. It is reasonable to regard that as the probable commencement date, but for the breach. If, for whatever reason, that date were not met, chemotherapy would have commenced (but for the breach) by Monday 6 January 1997. 51 Had chemotherapy begun on Monday 30 December 1996, what would have been the likely level of the plaintiff's serum Beta HCG markers? That is an important issue, although the experts differed in the significance to be attached to it. It is also an issue of some difficulty. As explained by Dr Vaughan, there are missing variables because the markers were not monitored. The beta HCG level before the operation was 79. By 23 January 1997 (the tests ordered by Dr Rogers) it had risen to 3307. On Friday 31 January 1997, shortly before the chemotherapy began, it had reached 5458. Professor Boyer, the treating oncologist, met with Professor John Levi, qualified by the defendant, to prepare a joint report addressing, amongst other issues, the following: " 3. At what level would the plaintiff's markers have likely been on 24 December 1996 and 1 January 1997? We are agreed that the plaintiff's serum beta-human chorionic gonadotrophin would have been approximately 150 IU/L on 24 December 1996, and approximately 300 IU/L on 1 January 1997." 52 The level of the tumour marker, beta HCG, was doubling approximately every seven days. Had chemotherapy begun on 6 January 1997, the likely level, therefore, would have been approximately 600 IU/L. 53 Professor Levi attached great importance to the rate at which Mr Finch's markers were rising. The rate of increase was approximately four times the average for patients with testicular cancer, signifying a very aggressive tumour. 54 Against this background, let me turn to the likely treatment of the plaintiff, had chemotherapy commenced on 30 December 1996 or 6 January 1997. It is a matter in respect of which the experts differed. I will consider these differences and then examine what I believe probably would have happened to the plaintiff. The view of Dr Vaughan 55 Three oncologists gave evidence, Dr Stephen Vaughan of Melbourne, Associate Professor Michael Boyer, the head of the Department of Medical Oncology at RPA Hospital, and Professor John Levi, Director of Medical Oncology at Royal North Shore Hospital. Each expressed views as to the treatment of Mr Finch's testicular cancer, according to medical practice in early 1997. 56 Dr Vaughan has practised as a specialist oncologist in Victoria since 1982. He spent his sabbatical year in 1997 at the Southampton Hospital, which is a specialist centre for testicular cancer. He said that because it is a rare form of cancer most practitioners encounter few patients. When they do so, they rely heavily upon the literature published by the major centres, Indiana, Marsden and Southampton. 57 Dr Vaughan drew attention to what he described as a seminal study published in 1989 by Dr Lawrence H Einhorn and others from the Department of Medicine at Indiana University. The study was entitled "Evaluation of Optimal Duration of Chemotherapy in Favourable-Prognosis Disseminated Germ Cell Tumors: A Southeastern Cancer Study Group Protocol". Indiana developed what it termed "a prognosis staging system". It classified patients as having a "good", "intermediate" or "poor prognosis", according to certain criteria. The criteria substantially, although not exclusively, depended upon the level of tumour markers, and especially beta HCG. The cure rate of those within the good prognosis group was very high, 95% to 99%. The 1989 study by Einhorn examined whether the same cure rate for good prognosis patients could be maintained if the number of cycles of chemotherapy were reduced from four to three. It found that it could. The study was undertaken because it was recognised that the drugs being administered, as part of the chemotherapy regime, had serious side effects, quite apart from the cost of treatment and the inconvenience to the patient in having that treatment prolonged. One hundred and eighty four patients participated in the trial, where randomly some were given four cycles and others three. The conclusion of the study was as follows: (Exhibit A) "Approximately two thirds of all patients requiring chemotherapy for disseminated germ cell tumors have minimal or moderate extent disease. The deletion of the last 3 weeks of ... (fourth course) significantly reduces the cost, toxicity, and inconvenience. Although the fourth course was not associated with any episodes of sepsis or other life-threatening toxicity, there was a tendency for increasing anemia, lethargy, anorexia, nausea, and vomiting, which was most pronounced with the fourth course. Therefore, three courses ... is now the preferred regimen for favorable-prognosis disseminated germ cell tumors." 58 According to Dr Vaughan, the influence of that paper on oncological practice was profound (T.75). There was still uncertainty concerning the optimal number of cycles for English BEP. However, for those who followed the Indiana regime, such as that administered to Mr Finch, the position, according to Dr Vaughan, was clear. He said this: (T.72) "... Now, this patient had Indiana BEP, five days of etoposide. So in his case I think it has been pretty clear since 1989, the early nineties, that for good prognosis disease if you gave them Indiana BEP with the five days of the E drug, that was as good as giving four and less toxic, of course." 59 In Dr Vaughan's view the only uncertainty in oncological practice in Australia in 1997 concerned English BEP, and perhaps the efficacy of English BEP compared to the Indiana regime. In cross examination Dr Vaughan said this: (T.85) "Q. But you wrote your report in 2002. You were meaning by paragraph 4 to express the opinion that the resolution of the debate, three cycles versus four, was not clear-cut in 1996. Is that not a fair reading? A. It was clear-cut for Indiana BEP. It wasn't clear-cut for BEP generally. That's what I am saying. Q. And the fact that there was a dissimilarity between England and the United States was itself one of the reasons why the consensus was not clear-cut in 1996. Is that not right? A. The issue was the dose of the etoposide was the issue that was unresolved, but if you were giving Indiana BEP there was a clear consensus. If you gave Indiana BEP it was three, probably from about, say, Einhorn's paper, '89, probably a couple of years and that was the consensus. It was only some people were persisting with the English BEP which hadn't been directly compared in the Indiana paper, so that was the bit of uncertainty. But most of us I guess followed the Indiana experience." 60 The specific facts in Mr Finch's case were put in cross examination to Dr Vaughan: (T.100) "HARRISON: Q. I will go back a space. I want you to assume that his beta HCG markers would have been in the order of from 200 to 300 by about 30 December 1996? A. That is an assumption, yes. Q. I want to suggest to you that if treatment had been undertaken at that time, standard treatment would have been four cycles of chemotherapy with cisplatinum, etoposide and bleomycin? A. English or American? Q. Either? A. It would have been three cycles with Indiana or American BEP. Dr Boyer is an Indiana man. If he had seen him then, I would have anticipated, and I think he said it somewhere, he could have given him three. That is what I would have done. That is what he would have done. That was standard treatment for Indiana BEP probably sometime after the Einhorn paper in '89 and that is what all the books say. That is Horwich's book says. Good risk, non-seminomatous germ cell, BEP Indiana." 61 The reference to "Horwich" is a reference to a book Dr Vaughan suggested was a standard text, "Testicular Cancer, Investigation and Management" 2nd ed (1996), edited by Alan Horwich. Dr Vaughan said that by 1997 most practitioners, including himself, followed the Indiana regime. It was the regime used by Professor Boyer to treat Andrew Finch. The text in 1996 said this in respect of that regime: (Exhibit B) "19.12 Standard Management of Germ Cell Tumors at Indiana University. ... standard management should include prompt initiation of combination chemotherapy with standard BEP for a planned three cycles of treatment for patients with good risk features and four courses for those with more advanced disease." 62 It was put in cross examination that, even without delay, four cycles in 1997 was standard treatment, and three cycles represented a minority view. Dr Vaughan responded as follows: (T.103-104) "A. The first thing is that the patient should have had chemotherapy within a week or ten days of the orchidectomy and at that stage, given the beta HCG of about 70 and the other factors, standard treatment in all the books, general articles, was three cycles of Indiana BEP. I don't see how you could hold another view based on the literature we have referred to. The paper in '89, there was review articles. That was what the major centres who we rely on were doing. If you are going to do something other than three cycles of Indiana BEP for good risk disease you weren't doing what the major centres were recommending, and it is not what I did." 63 Elsewhere, Dr Vaughan gave the following answers in cross examination: (T.105) "Q. Could I just put one final thing to you. The article in 1989 that you have referred to, could I just formally suggest to you that notwithstanding its antiquity by 1997, its findings had not been commonly accepted and acted upon in the Australian oncological community in 1997? A. I disagree strongly. It is cited in every review article as a seminal paper and it influenced - I know from the time there was much discussion about it because it was a difficult issue to decide what to do. Every review article puts that particular study as front and centre in addressing that decision, so it was a seminal article." 64 The suggestion made by Einhorn and others in 1989 was dependent upon the patient being classified as having a good prognosis. There had been differences between major centres in the classification of patients within prognostic groups. Sometimes these differences made it difficult to compare the results of one study with another. To address that problem, an International Germ Cell Collaborative Group was formed in 1995. It formulated provisional criteria for each prognostic group. The group published the final criteria in the Journal of Clinical Oncology in February 1997. Professor Levi, in an article published in 1998 ("Management of Germ Cell Carcinoma: State of The Art"), helpfully summarised the criteria as follows, referring to the stage where the disease had passed beyond the lymph nodes: (Exhibit J) "For patients with stage 3 disease, an international prognostic classification has been developed following a meta-analysis of nearly 6000 patients from international clinical trials. This prognostic classification is determined by three factors: the level of tumour markers; presence or absence of non pulmonary visceral metastases; and presence or absence of a mediastinal primary site. Three prognostic groups can then be defined." 65 Professor Levi added the following in respect of good prognosis patients: "Good prognosis patients are those with low tumour markers, no mediastinal primary site and no non pulmonary visceral metastases." 66 The February 1997 publication of the final criteria included the following statement: (Exhibit E: Journal of Clinical Oncology, Vol 15, No 2, p 601) "The degree of elevation of the serum tumor markers LDH, AFT, and HCG immediately before chemotherapy has a crucial role in defining outlook, and has a heavy influence on our proposed classification for NSGCT. Assessment of the degree of marker elevation proved to be the most important factors, in terms of patient numbers, for allocating patients to prognostic groups." 67 In respect of the tumour marker beta HCG, good prognosis was defined as being below 5000. Dr Vaughan said this: (T.72-73) "A. According to the internationally agreed system, 5,000 is the cut-off. Q. Above that? A. More than 5000 tips you over into the intermediate group out of the good group. There are some other issues about size of the lumps and the alfa feta protein, the other chemical marker, but by and large for this case the beta HCG is the critical level. The changes in the other levels would probably not have changed the classification, but the change in the beta HCG did. I should say that each one of these things is what we call an independent prognostic factor. That means beta HCG is important by itself, it is not a function of some other factor." 68 It was Dr Vaughan's view, therefore, that had there not been delay, had Mr Finch's chemotherapy commenced at the time when his beta HCG markers were either 300 or 600 (supra paras 51-52), then, under the Indiana regime, as administered by Professor Boyer, probably three cycles would have been given, provided that the patient responded well. On that issue, having been reminded of the levels of the tumour markers before and after chemotherapy, Dr Vaughan said this: (T.77) "A. What that demonstrates is, this tumour is very sensitive to chemotherapy, and it is behaving as though the first dose of chemotherapy has killed almost all of it. I think the initial level is probably higher than 5,900 because that was done the second day of chemo. The level might have been 8 or 9,000 on the day of chemo, and I would expect it to drop quickly. We don't have a measurement. It goes something like 5,000 before the chemo of about 6,000 on the second day. It might have been 7 or 8,000 on the day of chemo. I expect it to halve. Without doing the calculations, going from about 5,000 to 24 in 18 days, I think is, that is a good response." The view of Professor Levi 69 The view of Professor Levi was, in some respects, quite different from that of Dr Vaughan. Professor Levi is a consultant physician. He has specialised for the last thirty two years in oncology. He is the Clinical Professor of Medicine at Sydney University and has been since 1994. He is the Director of the Department of Medical Oncology of Royal North Shore Hospital. In that capacity he sees a hundred patients a week with various forms of cancer. He may see fifteen patients a year with testicular cancer, that being a rare form of cancer. He completed his thesis for the degree of MD on germ cell cancer (that is, testicular cancer). He has published widely on germ cell cancer (and other subjects). He has participated in various international committees concerned with testicular cancer. 70 In the context of the chemotherapy regime known as Indiana BEP, given to the plaintiff, Professor Levi differed from Dr Vaughan on two issues: · First, Professor Levi said that, in 1997 there was uncertainty as to the efficacy of three cycles of chemotherapy rather than four. Four cycles remained the standard, and three cycles, in certain settings, was very much a minority view. · Secondly, whatever the uncertainty in oncological practice in 1997, the plaintiff was never a candidate for three cycles. Because he had a particularly aggressive form of testicular cancer, he required four cycles to effect a cure. 71 Dealing with the first of these issues, Professor Levi pointed to two areas of uncertainty which made the practice of Indiana University, as described in the Einhorn study of 1989, a minority view. In the first place, it was fundamental to the suggestion that three cycles were as good as four that the patient should be capable of being characterised as "a good prognosis" patient. Although Indiana University specified its criteria for a "good prognosis patient", there were differences between research centres in the classification of prognostic groups. That issue was addressed by the International Forum of 1995 which published draft guidelines. The draft, with some revisions, was finally published in 1997. Once published, the international classification (of "good", "intermediate" and "poor" prognosis patients) was gradually absorbed into clinical practice. That process took time. 72 The other area of uncertainty concerned what Professor Levi described as the limited nature of the Einhorn Indiana study. It involved one hundred and eighty four patients. Plainly the greater the number of patients the higher the level of confidence in the published conclusion. It was precisely because of an absence of confidence that, between 1995 and 1998, a further British/European study was undertaken. The study involved eight hundred patients. The results were published in March 2001 in the Journal of Clinical Oncology ("Equivalence of Three or Four Cycles of Bleomycin, Etoposide, and Cisplatin Chemotherapy and of a 3- or 5- Day Schedule in Good-Prognosis Germ Cell Cancer: A Randomized Study of the European Organization for Research and Treatment of Cancer Genitourinary Tract Cancer Cooperative Group and the Medical Research Council") (Exhibit 4). That study affirmed the conclusion of a decade before in the Einhorn study of 1989. The conclusion was in these terms: " Conclusion : We conclude that three cycles of BEP, with etoposide at 500 mg/m2, is sufficient therapy in good-prognosis germ cell cancer and that the administration of the chemotherapy in 3 days has no detrimental effect on the effectiveness of the BEP regimen." 73 Professor Levi therefore stated the following view, speaking of 1997, when decisions were made concerning the treatment of Mr Finch (report 23.01.03): "Standard chemotherapy would be 4 cycles of cisplatin, etoposide and bleomycin. I also indicated that there is a minority view that in some settings 3 cycles of chemotherapy may be adequate in patients who have achieved complete remission after one cycle of treatment and therefore only require 2 further cycles of consolidation treatment to provide optimum potential for cure. This view is held only in circumstances where complete remission has been achieved after one cycle which in effect means that all markers have returned entirely to normal following the first cycle of treatment." 74 I do not doubt that there was some uncertainty after the Einhorn study, which the British/European study was designed to resolve. However, I do not accept that the view expressed by Dr Vaughan was a minority view in 1997 amongst those who administered chemotherapy according to the Indiana BEP regime. As will shortly emerge, Associate Professor Boyer held broadly the same view as Dr Vaughan (that is, in good prognosis patients, three cycles were as effective as four in terms of cure). I am persuaded by Dr Vaughan that, being a rare form of cancer, most practitioners (unlike Professor Levi) would not have been able to resolve their doubts by drawing upon their experience. They would have turned to the literature. The literature at that time, whether texts such as "Testicular Cancer" edited by Alan Horwich (Exhibit B), or publications such as the Einhorn study itself, suggested, in the context of the Indiana regime, that three cycles were adequate for a good prognosis patient. The rate of growth of the tumour 75 Let me move to the second difference between the views of Professor Levi and those of Dr Stephen Vaughan, namely, the suggestion by Professor Levi that Andrew Finch was never a candidate for three cycles of chemotherapy because he had a particularly aggressive tumour. Professor Levi said this: (report 23.11.01) "In this context therefore considering the fact that Mr Finch's beta HCG level on 19 December was 79 and post orchidectomy on 23 January 3307, it is my opinion that at no time following orchidectomy would anything less than 4 cycles of cisplatin, etoposide and bleomycin been appropriate therapy. In other words, my estimation even 1 week post orchidectomy would have shown further a rise in the level of beta HCG compared to pre orchidectomy and indicated the appropriate requirement for 4 cycles of BEP chemotherapy." 76 Professor Levi, when giving evidence, elaborated as follows: (T.201-202) "Q. That was a view you expressed in 2001. Do you still hold that view? A. I do. Q. Why do you hold it? A. For several reasons. Firstly, in the conductive text of this patient's specific malignancy, as indicated his levels clearly rose rapidly. From the time of the operation to remove his testicle, to the time he was seen on 23 January, it had risen at least 35 times. That indicates an approximate double time for his cancer of approximately seven days. That is nearly four times faster than the average doubling time for testicular tumours. It indicates an aggressive tumour in the context of testicular cancer. It indicates that the risk for potential relapse after treatment is higher. There is good evidence among cancers in general that logically aggressive cancers do respond initially to chemotherapy, but their risk of subsequent recurrence is higher, and relapse is a very bad prognostic circumstance. While it is reasonable to anticipate that a patient of this sort will respond initially to chemotherapy, the potential of subsequent relapse is high. That being the case, in the context of somebody whose marker has risen at that speed, one would consider him to be at the worst level of somebody that might be classified as a good prognosis. Good prognosis disease is a spectrum, and therefore one looks at the individual patient as well as the context of what the markers were at a specific point in time, and recognise that over time those markers have increased rapidly, therefore placing him at a lesser level in terms of potential long-term outcome than someone whose markers have risen much more slowly. That being the case, it would have been my opinion that someone in that setting would require what I would think represented the best chance for long-term survival without recurrence, and I would consider four cycles of chemotherapy would be preferable to three." 77 Relapse, where it occurs, usually takes place within the first two years. Salvage chemotherapy is then necessary. Salvage chemotherapy is intensive. It involves high dosages of toxic drugs, and has a 5% mortality rate during the treatment phase. The patient is required to spend time in hospital. It is to be avoided. Professor Levi believed, therefore, that treatment should be offered on the basis of providing the best chance of cure. 78 On the other hand, it is recognised that treatment itself involves risks by reason of the severe side effects of the drugs which are administered. A clinical judgment is therefore required, balancing the need for cure and the avoidance, where possible, of disabling side effects. 79 Here, as mentioned, the cut-off between a "good prognosis" patient and one regarded as "intermediate" is, in terms of the beta HCG marker, 5,000 IU/L. One can readily understand that where a patient's beta HCG level approached 5,000, the rate of rise of that marker (and the corresponding rapidity of change in the tumour itself) may suggest that the patient is, in truth, an intermediate prognosis patient rather than good. That, indeed, was the situation confronting Professor Boyer in the case of Mr Finch. When first seen on Friday 24 January 1997, the beta HCG level (on 23.1.97) was reported as 3,307. It was doubling approximately every seven days. By Monday 27 January 1997 (being the first possible day that chemotherapy could have begun), it would have been approaching 5,000. Further, Mr Finch was a young man. There was an issue of harvesting sperm. Mr Finch, with great emotion, which was obviously genuine, gave the following evidence: (T.120) "HIS HONOUR: Q. Was having children important to you? I am sorry to have to ask you that. A. Yes, it was. I was a young, single man." 80 It was reasonable that Mr Finch should have a week to harvest sperm (cf Dr Vaughan T.107). By then, plainly, Mr Finch was an intermediate prognosis patient. On any view four cycles were then required. 81 Mr Finch was in that predicament by reason of the breach of duty. That is, he was approaching the 5,000 cut-off for the beta HCG markers by reason of the delay. However, Professor Levi took the view that, even had the level of beta HCG been much lower, as they would have been on Monday 30 December 1996 (300), or Monday 6 January 1997 (600), he still would not have regarded the plaintiff as "a good prognosis patient". The reason for his view was the rate at which the tumour markers were rising. The rate of change (suggesting a corresponding growth of the tumour) was approximately four times the average. The figures were doubling every seven days compared to an average of about twenty-eight days. Professor Levi said this: (report 23.04.01) "It is noted that in particular the beta HCG level as of 19 December 1996 was 79 and by 23 January 1997 this level had risen to 3307. A >30 fold rise in 35 days." 82 Dr Vaughan took a different view. The rate at which the beta HCG markers were rising did not determine whether a patient should be characterised as having a good prognosis. Dr Vaughan said this: (T.86) "Q. And what is the significance of the rate of rise of beta HCG markers in a particular patient with testicular cancer to the clinician in your position? A. Well, I start out with the proposition before I know the markers that testicular cancer is an aggressive, rapidly growing disease. The rate of rise adds nothing to that for me. I mean I act on the basis of what I know about the cancer and its aggressiveness and rapid growth and the importance of early treatment. The actual rise doesn't add to that information. That's my starting point, you see, and there is no data anywhere in the scientific literature that I am aware of to show, you know, a whole lot of patients watched without treatment, some going up fast, some going up slow, and what that means is there is no data in the literature , and I have already arrived at a view when I have a patient with testicular cancer in front of me that time is of the essence. I am not influenced by that additional information is what I mean." (emphasis added) 83 Dr Vaughan explained that chemotherapy relies for its effectiveness upon killing rapidly dividing cells. Cancer cells are at their most vulnerable in the process of dividing, that is, as they grow. The paradox is that the more aggressive the tumour, the better its response to chemotherapy (T.76). Slow growing cancers respond less well. 84 The view of Associate Professor Boyer was somewhere between that of Professor Levi and that of Dr Vaughan. Professor Boyer said this: (T.127-128) "Q. Is the rapidity, or rate of rise, of the beta HCG markers a relevant factor? A. I'm not aware of any publication that has ever unequivocally demonstrated that. However, it is generally considered, and generally held, including by myself, that markers that are rising very rapidly are an indicator of aggressive, very active, disease, so, then, in a sense, the answer to your question is yes." 85 Professor Boyer said it was one of several indicators as to how best to treat this sort of disease (T.130). He added this: (T.130-131) "Q. If he had come to you earlier and you had been confronted by that, it would have, as well, at that time, been a factor which would have been significant in the determination by you of what treatment to give him? A. Yes, it would have been. Q. Does it flow from what we have been discussing that there is a relationship between mortality from this disease and the rate of rise of beta HCG markers? A. It probably does flow, but I am not aware that there is any direct evidence of that. I suspect it would be impossible to collect that evidence. Q. Indeed, on one view, unethical to do so? A. Yes, absolutely." 86 It would be unethical because once a tumour is detected immediate intervention would be required. It would be unethical to allow the tumour simply to grow without treatment. 87 Professor Boyer, although sharing Professor Levi's belief in the importance of the rapidity of the rise of Beta HCG markers, nonetheless, believed that Mr Finch, soon after surgery, was probably a good prognosis patient and therefore a candidate for three cycles, not four. The cross examination of Professor Boyer included the following: (T.132) "Q. ... Because of, among other things, his rapidly rising beta HCG markers, Mr Finch was never a good prognosis patient at any time, I want to suggest? A. No, I don't think I agree with that. I believe that there probably was a time when he would have been a good prognosis patient. As I said to you earlier, the decision as to what constitutes good prognosis is made up of many things, and this is a matter of degree, so I don't think that you can clearly put him in one basket or the other. I would have been concerned, even when his markers were at a lower level - even had his markers been at a lower level, by the rapidity of rise; therefore, I would have had some concerns at labelling him as 'good prognosis'. Nevertheless, he would fit into a definition of 'good prognosis'." 88 Professor Boyer provided the following report in which he identified the way in which he probably would have treated Mr Finch had he presented earlier: (Exhibit E, report 19.03.02) "Assuming that his serum Beta HCG would have been in the order of 300 at that time, I would have advised treatment with chemotherapy using Platinum, Etoposide and Bleomycin. The choice of treatment would have rested between 3 or 4 cycles of this chemotherapy. On the balance of probability, I would have recommended 3 cycles of treatment. The ultimate amount of treatment given would have depended upon his progress during therapy." 89 Professor Boyer adhered to that view when giving evidence (T.145). Even had chemotherapy been delayed until 6 January 1997, Professor Boyer believed that probably three cycles would have been sufficient (T.146), "sufficient" in that context, meaning sufficient to offer the patient the reasonable prospect of an effective cure. 90 Professor Boyer met Professor Levi on 14 March 2002 for a joint conference, addressing a number of issues. In a report of 15 March 2002, which each signed, they answered one of the questions in these terms: (Exhibit 2) "1. If repeated serum markers had been taken on 24 December 1996 and I January 1997, and had shown a progressive rise, what would you have done? We are both agreed that in this situation we would have advised treatment with chemotherapy using cisplatin, etoposide and bleomycin. A minimum of three cycles and a maximum of four cycles of this chemotherapy would have been advised, with the actual number determined based on the response to treatment." 91 On 20 January 2001, the solicitor for the defendant sought from Professor Levi clarification of his view. She posed the following question: (Exhibit 2: p23) "As I understand it, you consider that four cycles of chemotherapy represented optimum and appropriate treatment for Mr Finch to provide him with the optimum chance of cure. Four cycles should be undertaken as standard treatment to effect optimum outcome. Do you see any tension between this proposition and the jointly expressed opinion of you and Associate Professor Boyer that a minimum of three cycles and a maximum of four cycles of chemotherapy (using Cisplatin and Bleomycin) would have been advised, the actual number determined based on the response to treatment?" 92 Professor Levi responded (report 23.1.03: Ex 2) repeating his view that four cycles was standard therapy, and that three cycles, in some settings, was a minority view. He then said this: "It was in this context therefore that the jointly expressed opinion of myself and Assoc Prof M Boyer given previously that a minimum of 3 cycles and a maximum of 4 cycles of chemotherapy using cisplatin, etoposide and bleomycin would have been advised with the actual number being determined based on response to treatment. This therefore was to cover all eventualities in which some physicians would accept 3 cycles of chemotherapy as being adequate, if indeed complete remission had been achieved after one cycle. As I have emphasised, this is a very much minority view and it is my firm opinion that 4 cycles of chemotherapy represents optimum therapy ..." 93 That explanation is not entirely satisfying. The question which Professors Levi and Boyer were asked to address, and which they purported to address, was what they would have done, not what the profession would have done. 94 However that may be, the three oncologists who gave evidence expressed different views as to the importance of the rate of rise of the Beta HCG markers. For Dr Vaughan they were not important in determining whether a patient could be characterised as good prognosis. If the Beta HCG were below 5000, and the patient otherwise met the criteria, the patient could be regarded as having a good prognosis. Subject to the patient's response, three cycles could be administered. 95 Professor Boyer, on the other hand, believed the rate of rise was important. However, it was not determinative. A patient such as Mr Finch, with a rapidly growing tumour, would ordinarily receive three cycles if (as here) his response to therapy were positive. 96 Professor Levi, however, regarded the rapid rise of the Beta HCG marker as determinative. Patients such as Mr Finch, although they otherwise met the criteria for a good prognosis patient, should be given four cycles, not three. 97 What was the basis of Professor Levi's view? He gave the following evidence: (T236) "HIS HONOUR: Q. Is there any literature you can point to, and I ask this question simply because we have had evidence from another oncologist who, as it were, threw down the challenge, that in the context of this chemotherapy and treatment, points to that aspect, that is, the rapid rise of the Beta HCG as being determinative as to whether or not you go to four or three? A. No, because, as I said, unfortunately we don't have the data in the context or in the circumstance of being able to show clearly in a population of patients rapid rise of markers is associated with a need for four cycles. Q. Is there any textbook which adverts to the issue as being one which is unresolved? A. I can't recall one." 98 The 1999 Einhorn Study, in its definition of "good prognosis patient", did not identify the rate of rise as a relevant criteria. As mentioned, the International Forum met in 1995. It published criteria relating to prognostic groups in 1997. Professor Levi gave the following evidence in relation to that publication: (T224) "HIS HONOUR: Q. Doctor, I am not sure you have been asked about this international classification of where it was finally agreed as to the various groups, intermediate, poor and good? A. Yes. Q. Did that classification include a description of each category? A. Yes, it indicates within those categories what the requirements are to fit into those categories. Q. Within the various indices which are identified, for instance the good classification, is there any reference to the rate of rise? A. No, there is not." 99 Professor Levi insisted, however, that the prognostic classifications did not prescribe the treatment which should be administered. That was still a matter for clinical judgment where a range of issues, including the rate of rise, would be taken into account. The following was put to Professor Levi in cross examination: (T225) "Q. Presumably if there was a strong body of medical opinion that thought that their widely based experience demonstrated that it was a significant factor, that is the rate of increase, then one would have expected some observation to be made about it in an article that was designed, and a study that was designed to make appropriate risk based decisions about therapy, wouldn't one not, sir? A. No, because as you can see from that article, this involved the collation of information from 6,000 patients throughout the world. The centre which undertook the collation hadn't seen any of those patients. They were involved in the collation of data, and they had actually sent out a questionnaire, which included a variety of different questions to be asked and data to be sought. The only way in which one could respond is with the data which is available, that's exactly what happened. No question was asked with regards to the rate of rise. Even if it had, it wouldn't be available because it is not something that is within the data of those particular studies." 100 Dr Vaughan said that practitioners were encouraged to practice "evidence based medicine". The rate of growth is not identified as a criteria for a good prognosis patient. There was no evidence that it was important. 101 Professor Levi accepted that there is no scientific evidence to validate his view. Nonetheless, it remains his clinical judgment. It is a judgment, no doubt, reached after rumination and countless unrecorded observations. The major premise, that the rate of rise is important, was accepted by Professor Boyer. He too would acknowledge an absence of data to support that view. 102 I accept, nonetheless, that the rate of rise is important. I do not accept, however, that it is determinative. I prefer the view of Professor Boyer. I find it probable, that but for the breach (and the delay which was part of the breach), Mr Finch would have been regarded as a "good prognosis patient" as at 30 December 1996 (when his Beta HCG tumour marker was 300 U/L), or 6 January 1997 (when the level was 600 U/L). Can it be inferred, therefore, that Mr Finch would probably have been given three cycles of Indiana BEP, rather than four? I now turn to that issue. Three cycles or four? 103 I accept that had the plaintiff been Professor Boyer's patient on 30 December 1996 or 6 January 1997 he probably would have been given three cycles of Indiana BEP chemotherapy. However, the defendant submitted that there was no evidence that the plaintiff would have been treated by Professor Boyer rather than some other oncologist. Hence, Professor Boyer's views do not, in their submission, determine what treatment the plaintiff would have been given, but for the breach. 104 Professor Boyer, on the defendant's argument, was certainly available on 23 January 1997, when the defendant referred Mr Finch to him. However, this was the holiday season. There is simply no evidence, according to the defendant, that if Dr Rogers had referred Mr Finch to an oncologist in a timely way, Dr Boyer would have been available to commence chemotherapy on 30 December 1996 or 6 January 1997. 105 However, I believe it can be inferred, as a matter of probability, that Professor Boyer would have treated the plaintiff. I say this for a number of reasons. First, Dr Rogers' rooms are at Carillon Avenue, Newtown. The Department of Oncology at the Royal Prince Alfred Hospital (of which Professor Boyer is the Director) is adjacent, in Missendon Road, Camperdown. 106 Secondly, the operation was on 19 December 1996. What was required, in fulfilment of the defendant's duty, was that he arrange for the review of blood tests after the operation to determine whether the tumour had spread beyond the testicle. Since Dr Rogers would be on leave from 20 December 1996, it was necessary that he arrange for someone else, and preferably an oncologist, to undertake that review. In short, but for the breach of duty, Dr Rogers should have referred Mr Finch to an oncologist at once, that is, before 20 December 1996. It can perhaps more readily be inferred that Professor Boyer would have been available in the week before Christmas, rather than in the weeks following. 107 Thirdly, however that may be, I believe it likely that Dr Rogers would have referred the plaintiff to the RPA Clinic, whether or not Professor Boyer was on leave. It was across the road and Dr Rogers apparently had some association with its Director, Professor Boyer. I infer that other oncologists, at the same clinic, probably would have consulted the Director where there was uncertainty, or, alternatively, would have been aware of the Director's views on issues of practice. More than that, I believe it likely that Professor Boyer, at an early stage, and certainly before the end of January 1997, would have been made aware of Mr Finch. Professor Levi said that, as Director of the Royal North Shore Hospital Clinic, he would have seen one hundred patients a week. One gathers (although admittedly the evidence is limited) that part of a Director's function is to supervise cases that pass through the clinic. The critical decision in respect of Mr Finch would not arise until after he had completed the third cycle on 21 March 1997. By that time it was evident that he had responded well to chemotherapy. His Beta HCG reading was below 1. He had reported some tinnitus after the third cycle. He was a musician, for whom the preservation of hearing was important. I think it very likely that Professor Boyer, at least in his supervisory capacity, would have been aware of Mr Finch's position, and would have influenced the outcome, even had he not looked after Mr Finch initially. I believe it likely therefore that, but for the breach, Mr Finch would have had three cycles rather than four. Two competing views 108 The defendant further argues that in the oncological community in 1997 there were two competing views as to the appropriate treatment of testicular cancer by Indiana BEP chemotherapy. There was Professor Levi's approach, where the standard regime involved four cycles for someone in Mr Finch's position with rapidly rising Beta HCG marker readings. There was the alternative view, exemplified by Professor Boyer, that notwithstanding the rapidly rising Beta HCG readings, if a patient met the "good prognosis" criteria, three cycles would be administered, provided that the patient responded well to therapy. 109 I accept that both views had currency in 1997. I further accept that no breach of duty by an oncologist would be involved if treatment were given according to either view. In these circumstances the defendant made the following submission: "4. The plaintiff's case, however, contains an extraordinary, and fatal logical contradiction. ... At the point where the defendant sought to refer the plaintiff to an oncologist he had a choice (whether he knew it or not, but it is irrelevant) between the Dr Levi approach and the Dr Boyer approach. In the events which occurred, the defendant chose to send the plaintiff to Dr Boyer. The plaintiff relies upon Dr Boyer to say, in effect, that if he had been referred to me sooner three cycles of chemotherapy would have been adequate to effect a cure. Dr Levi disputes that proposition. Accordingly, if the defendant had chosen to refer the plaintiff to Dr Levi even as early as the day following his orchidectomy he would have received four cycles of chemotherapy and, for the sake of the argument, would have suffered the same or similar side effects as those which presently afflict him. The defendant could not in those circumstances, however, be said to have breached his duty to the plaintiff in a way causing loss even if the plaintiff's loss were caused by the administration of four cycles of chemotherapy in a timely way. No-one could suggest, nor does the evidence support the proposition, that Dr Levi could have been negligent for administering four cycles of chemotherapy in a timely way because the dispute in the oncological community in 1997 would not have permitted this court to come down in favour of three cycles over four cycles, or vice versa." 110 The defendants added: "5. ... However, the inquiry should not be what would have happened if the plaintiff had been referred to Dr Boyer in a timely way but whether or not, assuming that the defendant had not breached his duty, referral to a hypothetical oncologist would have spared him his disabling side effects. It is a mistake to confuse the hypothetical oncologist with Dr Boyer. A hypothetical oncologist is one of a group of men or women whose opinions were divided on proper treatment of germ call tumours in 1997." 111 The issue raises questions not dissimilar to those in Bolitho v City and Hackney Health Authority [1998] AC 232. In that case a child had been admitted to hospital suffering respiratory difficulties. Between 12.40 pm and 2.30 pm a nurse had summoned a doctor, reporting a deterioration in the condition of the child. The doctor failed to attend, in breach of her duty. Ultimately, the child suffered cardiac arrest and brain damage. Expert evidence was called that a competent doctor would have intubated the child and that such a procedure would have avoided cardiac arrest and subsequent injury. Other evidence was called that a decision not to intubate would have been in accordance with a body of responsible professional opinion at that time. 112 So the breach of duty, in not attending, was not, as such, the cause of the injury. It would only be the cause of the injury if the doctor who should have attended subscribed to the view that intubation was appropriate. The trial Judge summarised the issue in these words: (at 237) "... As it seems to me, if Dr Horn would have intubated, then the plaintiff succeeds, whether or not that is a course which all reasonably competent practitioners would have followed. If, however, Dr Horn would not have intubated, then the plaintiff can only succeed if such failure was contrary to accepted medical practice." 113 Lord Browne-Wilkinson, in the House of Lords, summarised the findings by the trial Judge as follows: (at 238/9) "The judge held that the views of Dr Heaf and Dr Dinwiddie, though diametrically opposed, both represented a responsible body of professional opinion espoused by distinguished and truthful experts. Therefore, he held, Dr Horn, if she had attended and not intubated, would have come up to a proper level of skill and competence, ie, the standard represented by Dr Dinwiddie's views. Accordingly he held that it had not been proved that the admitted breach of duty by the defendants had caused the catastrophe which occurred to Patrick." 114 Lord Browne-Wilkinson then said this: (at 239/40) "Where, as in the present case, a breach of a duty of care is proved or admitted, the burden still lies on the plaintiff to prove that such breach caused the injury suffered: Bonnington Castings Ltd v Wardlaw [1956] AC 613; Wilsher v Essex Area Health Authority [1988] AC 1074. In all cases the primary question is one of fact: Did the wrongful act cause the injury? But in cases where the breach of duty consists of an omission to do an act which ought to be done (eg the failure by a doctor to attend) that factual inquiry is, by definition, in the realms of hypothesis. The question is what would have happened if an event which by definition did not occur had occurred. In a case of non-attendance by a doctor, there may be cases in which there is a doubt as to which doctor would have attended if the duty had been fulfilled. But in this case there was no doubt: if the duty had been carried out it would have either been Dr Horn or Dr Rodger, the only two doctors at St Bartholomew's who had responsibility for Patrick and were on duty. Therefore in the present case, the first relevant question is 'What would Dr Horn or Dr Rodger have done if they had attended?' as to Dr Horn, the judge accepted her evidence that she would not have intubated. By inference, although not expressly, the judge must have accepted that Dr Rodger also would not have intubated: as a senior house officer she would not have intubated without the approval of her senior registrar, Dr Horn." 115 It will be noticed that his Lordship draws a distinction between those cases where the doctor who may attend cannot be identified, and the case before the House. In the case being considered, the doctors could be identified. Their views were known. Both were, or could be assumed to be against intubation. Hence, a necessary condition, to link the breach with the damage, was absent. 116 In Chappel v Hart (1998) 195 CLR 232, Hayne J (although dissenting as to the result) stated the following principle, also suggesting that the issue of causation must be answered in the context of the particular facts: (at 282) "The search for causal connection between damage and negligent act or omission requires consideration of the events that have happened and what would have happened if there had been no negligent act or omission. It is only by comparing these two sets of facts (one actual and one hypothetical) that the influence or effect of the negligent act or omission can be judged." 117 Dr Rogers did not give evidence. What he would have done, but for the breach, must remain a matter of inference. For the reasons stated (supra: paras 103 to 107), I believe he probably would have referred Mr Finch to Professor Boyer's clinic, and that Professor Boyer's views would have ensured that Mr Finch was given three cycles rather than four. 118 However, assuming I am wrong in drawing that inference, or assuming the inquiry is impersonal, as the defendants have submitted, what follows? How might the House of Lords have approached Bolitho if the doctors who should have answered the call could not be identified? The doctor who answered the call may or may not have subscribed to the view that intubation was appropriate. Had he or she been of the view that intubation was appropriate, then the damage would have been avoided. The plaintiff had lost the chance that a doctor would attend who believed that intubation was appropriate. At various times I have found such an approach attractive, that is regarding the case as one involving the loss of a chance. There was the chance that Mr Finch would be referred by Dr Rogers to a person belonging to Dr Levi's school. Had that occurred, he probably (subject to one qualification which I will discuss below) would have been given four cycles, and may have been no worse off by reason of the breach. On the other hand, he may have ended up with a doctor, like Professor Boyer, who would have administered three cycles. 119 Examining the issue in terms of chance is attractive partly because, on any view, the breach in permitting delay caused damage. Because of the delay the tumour was undetected for one month and continued to grow. It metastasised at various locations throughout the body. When eventually recognised, the plaintiff was confronted by a crisis, the consequence of delay. He was effectively deprived of the opportunity (at least without additional stress) to harvest sperm. It may be argued therefore that causation of damage is established. The only issue is the extent of the damage. The principle identified in Malec v J C Hutton Pty Limited (1990) 169 CLR 638 may therefore have application. What were the chances of Mr Finch being referred to a doctor who, like Professor Boyer, believed that three cycles were appropriate in the early stages, whatever the growth rate (cf Naxakis v Western General Hospital & Anor (1999) 197 CLR 269, per Gaudron J paras 29-36, Callinan J paras 127-129; see Loss of a Chance of Successful Treatment: "Naxakis v Western General Hospital Considered" by N Moshinsky QC, November 2000, Vol 8, Journal of Law and Medicine p216). 120 However, I believe the issue should be determined by inquiring as to what probably would have occurred but for the breach. That is the question I have attempted to address. 121 I should add that, even if the plaintiff had been referred to Professor Levi, or someone who shared his view, proper medical practice would have required the following warning after the third cycle, as described by Professor Levi: (T229) "A. You would make the decision about continuation of the next cycle based on what was happening at that time. As I indicated, my philosophy or consideration would be that because of the nature of this man's disease, that four cycles is optimum. It is therefore up to the circumstances to determine whether or not four cycles should be undertaken or not. HIS HONOUR: Q. That is a matter you would take up with the patient? A. Absolutely. Q. In doing that, would you explain the alternative views? A. Exactly. Q. If there was a body of opinion which suggested that three cycles had as good a prognosis as four? A. I particularly describe to the patient the fact that in the context of prognostic classification, meaning groups, there are, in the literature consideration of the rate of rise is not part of that. ..." 122 The plaintiff was a musician. He said he was very alarmed when Dr Boyer mentioned damage to his hearing as a possible side effect (T59). He experienced some tinnitus after the third cycle, although it resolved. He said this: (T60) "HARRISON: Q. What were you told? A. I was told I would still have to have it. Q. And in those circumstances you had no hesitation in having the fourth cycle. That's correct, isn't it? A. No. I did hesitate about it, but I eventually did have it because I thought, well, this is the guy who is telling me what needs to be done to cure me, so I didn't think I had any other option." 123 Mr Finch added: (T60) "Q. And at the point where you embarked on the fourth cycle, a cure for your cancer was more important to you than the consequences by way of side effects that had been explained to you at the outset; correct? A. I guess so, if I had it, yes. Q. When you say you guess so, there is no doubt about it, is there? A. It was a huge issue with me. Q. And it was determined in favour of having the fourth cycle. You determined that huge issue by deciding to have the fourth cycle of chemotherapy; correct? A. Well, I had to do it and see what happened." 124 How would the plaintiff have reacted had he been told after the third cycle that, according to a respectable view within the oncological community, the cure rate for persons in his situation was as good as after four? That is a difficult issue. It is one that I am not obliged to answer. However, accepting Mr Finch's evidence, as I do, I am inclined to the view that had such a warning been administered he may well have refused the fourth cycle. 125 Let me pass from that issue to a further submission of the defendant. It was said that to succeed, the plaintiff must establish that, as a matter of probability, three cycles would have cured his cancer. Professor Levi did not believe that it would. Professor Boyer, in what was described by the defendant as an "admirable and honest answer", said that it was now impossible to know. Referring to the views of Professors Levi and Boyer, the defendant made the following submission: "The burden of these submissions is that the opinion of Dr Levi should be preferred, but even if it is not , it is not possible to choose between them. It goes without saying that, if the latter circumstance prevails, the plaintiff must fail." (emphasis in original) 126 I am not persuaded by that submission. Professor Boyer, when speaking of the regime he would have followed, plainly had in mind offering the patient the best chance of cure available. According to literature in 1997, whatever it's uncertainties, three cycles offered as good a chance of cure as four for a good prognosis patient. That was a conclusion, incidentally, later validated by the study published in 2001. It was, as I have said, a conclusion supported by the available scientific literature at that time. 127 I should, in this context, deal with one further submission made by the defendant. On 24 January 2001, when Professor Boyer first saw the plaintiff, his Beta HCG was 3307 (the test being administered on 23 January 1997). Being below 5000, he, therefore fell within the "good prognosis" group. According to Dr Vaughan, he could have been given three cycles, had Professor Boyer commenced treatment at once. However, treatment was delayed for a week to allow Mr Finch to harvest sperm. By the time that it commenced (on Monday 3 February 1997), the plaintiff's Beta HCG reading was probably 8000 or 9000. He then fell within the intermediate group. Four cycles were therefore required. The insinuation was (never quite put as a submission) that it was the delay by Professor Boyer, rather than the defendant's breach which led to the plaintiff becoming an intermediate patient, and no longer suitable for treatment with three cycles. 128 There are a number of problems with that suggestion. First, the earliest Professor Boyer could have started chemotherapy was Monday 27 January 1997. Mr Finch's Beta HCG would, by that time have been almost 5000, because of the rate at which the tumour was increasing in size. In truth, by the time Professor Boyer assessed Mr Finch, he was, by reason of the delay, already an intermediate prognosis patient. 129 Secondly, it was not unreasonable that Mr Finch, as a young man, should have been given a week to harvest sperm (cf Dr Vaughan T107). By the end of that week he was certainly an intermediate patient. The consequences of the fourth cycle 130 Cisplatinum has proved an effective drug in eradicating the tumour. It is a heavy metal, a derivative of platinum. It is unpleasant, inducing vomiting. It is also toxic. It can damage the kidneys unless the patient has a significant amount of fluid. It can also damage the inner ear, the fluid filled sack with small vibrating hairs which provide the mechanism by which we hear. The damage can manifest itself in tinnitus (ringing in the ears), or in loss of hearing, especially in the high tones. It can cause recruitment, which is a disabling condition which may occur in the context of nerve damage. Other nerves endeavour to overcome the damage, sometimes distorting or exaggerating the sound, so that sounds become most unpleasant. 131 Cisplatinum is also neurotoxic, that is, it may cause damage to the sensory nervous system. The sensory nerves are those which come up the arms and legs. They end in that part of the spine known as the dorsal route ganglia. The damage, where it occurs, is to the peripheral nerves affecting the feet and the fingers. The symptoms of damage include numbness and tingling. The numbness can have an unpleasant quality because it is combined with "super sensation", where it feels unpleasant to touch things. Where damage occurs, there may be difficulty in doing up buttons or performing other fine movements or in walking. 132 Because cisplatinum is so toxic, care is taken in calculating the dose administered to each patient, based upon the patient's surface area. The dose therefore varies between patients according to their height and weight. The toxicity is cumulative and dose related. 133 Mr Finch suffers from each of the problems identified as adverse side effects of cisplatinum: tinnitus, hearing loss, recruitment and peripheral neuropathy. Applying common sense notions rather than philosophical and scientific theories of causation (supra para 36), can such problems be related to the defendant's breach, that is, the need for the fourth cycle? Expressed in another way, does the evidence satisfy the test identified by McHugh J in Chappel v Hart (supra) where he said this (authorities omitted): (at 244) "Before the defendant will be held responsible for the plaintiff's injury, the plaintiff must prove that the defendant's conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases ('Increases' in this context includes 'creates'.) the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring." 134 The evidence does, to my mind, establish as a probability that the fourth cycle materially contributed to the disabilities from which the plaintiff now suffers. But for the fourth cycle, there may have been damage but it probably would not have been disabling. I take that view for a number of reasons. First, that inference is supported by the temporal sequence, as described by the plaintiff and his mother. Mr Finch said that after the third cycle he had some tinnitus which resolved, as it often does. After the fourth cycle, however, it returned. This time it was "incredibly loud". It did not resolve. Mr Finch also noticed for the first time high frequency hearing loss. Whereas he had no symptoms in his hands and feet after the third cycle, after the fourth cycle such symptoms appeared. He could not, for instance, turn on a tap to have a shower. He found difficulty with walking, feeling pressure in the toe area, and extreme sensitivity in his feet. 135 Secondly, Associate Professor Boyer expressed the following opinion, which I accept: (report 12.5.00) "In discussions with Andrew, I have clarified that the tinnitus that he experienced following his third cycle of chemotherapy was transient. He reports that it resolved approximately a week after the main dose of chemotherapy was given and he was well by the time his fourth cycle commenced. On this basis, I think it is highly likely that had he only received three cycles of chemotherapy, he would have experienced no long term problems with his hearing." 136 The view of Dr Vaughan (in the passage reproduced below) was to the same effect (T81/82). The symptoms suggesting peripheral neuropathy are more uncertain. There may be delay between treatment and the appearance of symptoms. Dr Walker, a neurologist, said that symptoms could be weeks after the completion of treatment. Even so, the sequence, as described by the plaintiff, suggests at a common sense level, a link between the treatment (the fourth cycle) and those symptoms. The third cycle was completed over five days beginning on 17 March 1997. There was then a delay of two weeks, during which there was tinnitus but no symptoms suggesting peripheral nerve damage. The fourth cycle began on 7 April 1997. Symptoms, including to the fingers and feet, appeared soon after treatment. 137 Thirdly, an index of the significance of the additional dose is the practice adopted by oncologists when advising patients whether to stop after three cycles or go to four. Dr Vaughan said this: (T81) "Q. As we know, the tinnitus passed after cycle three, so before cycle four commenced, so does that tell you that at that level just before cycle four started ... A. I think there could have been long-term damage. You need to recall, if you do sophisticated tests everybody with cisplatinum has some ear damage, but the degree of it depends on the dose. If you have a transient symptom that comes and goes, you then need to sit down and think about whether the additional benefit you think there is in the fourth lot of chemotherapy is worth increased toxicity. You have to make that decision. Q. That could push you over the limit into long-term damage? A. From reversible to irreversible." 138 His evidence continued: (T81/82) "Q. Is that what probably happened here on the information you've got? A. I'm not sure whether there are any symptoms of peripheral neuropathy in the period ... Q. Assuming not? A. In the context of a musician with tinnitus after three cycles, in a context where I would only give three cycles, I think giving the fourth cycle is likely to have materially increased the risk of damage." 139 Professor Levi outlined the advice he would have given Mr Finch had he been treating him. He said this: (T211/212) "... That even after three cycles when he would have most likely been in remission I would have still indicated to him my concern about the risk of relapse and therefore a consideration that a fourth cycle may well be optimum for him and preferable in terms of increasing his potential for cure. I would have also discussed with him that an extra cycle may well mean the potential for adverse effect, and in that instance would have involved both potential for ototoxicity and neurotoxicity. That would have been discussed, and then ultimately there would be a decision to be made by the patient as to what they were going to do." 140 The defendant, in submissions, pointed to the fact that where damage occurs, whether to the patient's hearing or peripheral nervous system, it is the product of the cisplatinum used in all four cycles, not just the last. Dr Vaughan said, and I accept, that the effect of cisplatinum is cumulative, so that all cycles contribute (T81). The defendant argued in these circumstances that the plaintiff must identify the damage from the fourth cycle. For the reasons I have given, I believe he has done so. The damage from the first three cycles, whilst it may have been present, was imperceptible. After the fourth cycle, there were symptoms which were disabling. 141 The defendant made the following further submission in reply: "... If the court can identify damage which is attributable to the fourth cycle, and if for example a finding could be made that a particular percent of loss or damage flows from the fourth cycle, the amount properly to be awarded is that percentage of the amount fixed as the quantum having regard to the assessments put forward by the plaintiff and the defendant." 142 Such an approach does not commend itself to me. Certainly, the first three doses of cisplatinum would have been required in any event. They have nothing to do with the defendant's breach. Certainly, the fourth cycle would not have produced disabling effects were it not for the other three cycles which had already been administered. However, that gives no right to apportionment. It simply establishes the plaintiff was vulnerable for reasons unconnected with the defendant's breach. It was the defendant's breach which created the need for the fourth cycle, which was the straw that broke the camel's back. 143 The plaintiff, when responding to the defendant's argument, pointed to the words of Dixon CJ in Watts v Rake (1960) 108 CLR 158, where he said this: (at 160) "If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident played no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause." 144 However, I do not believe that the plaintiff's vulnerability, through the accumulation of cisplatinum in his system, can be described as a "disability" in the sense used in that case. The relevant principle has more to do with the plaintiff having an "eggshell skull" by the completion of the third cycle. Causation 145 As mentioned, the action by Mr Finch is subject to the provisions of the Civil Liability Act 2002. One of the general provisions is the following test of causation: " 5D General Principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ( factual causation ), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ( scope of liability )." (Emphasis in original) 146 That statement of principle (adopting the analysis of Professor Jane Stapleton) fundamentally reflects the Common Law (cf Ipp CJ at para 89 in Ruddock v Taylor [2003] NSWCA 262). 147 Here I have determined, as a matter of probability, that Associate Professor Boyer would have treated the plaintiff. Addressing the issue of factual causation, but for the breach, and the delay which was the consequence of the breach, the following can be said: · First, that Mr Finch would probably have been given Indiana BEP chemotherapy on Monday 30 December 1996 or, at the latest, Monday 6 January 1997. · Second, that on either day, he would have been regarded as a good prognosis patient. · Third, that given his response to chemotherapy (which was good), he would have needed only three cycles, not four. · Fourth, that he would not have suffered the disabling consequences of ototoxicity and neurotoxicity which were evident after the fourth cycle. 148 In short, I consider that the defendant's negligence was a necessary condition of the harm that ensued (s5D(1)(a)). I further believe that it is appropriate that the scope of the defendant's liability extend to the harm so caused (s5D(1)(b)). The consequences were, in each case, a foreseeable result of the breach. Dr Rogers, himself, recognised in the context of the x-ray taken on 24 December 1996, which was then thought to have been wrongly interpreted, that a failure to detect an early change in the tumour may have created the need for more chemotherapy than may otherwise have been needed (T34). 149 The plaintiff has established the defendant's liability to pay damages. I now turn to the assessment of those damages. The broad picture 150 The plaintiff asserted, and I have accepted, that the fourth cycle of chemotherapy (and specifically the cisplatinum) caused damage to his hearing and to his peripheral nervous system. The defendant (whilst disputing the nexus with the fourth cycle) did not doubt that there had been some damage in both areas. The issue is the extent of damage and the degree to which it is disabling. 151 It is also plain that since April 1997 the plaintiff has suffered from depression. It has fluctuated in intensity. There is an issue as to whether certain non-compensable matters (such as fear that the testicular cancer may reappear) may have contributed to that depression. There is also the suggestion that Mr Finch suffered from chronic fatigue syndrome before his diagnosis with cancer, and that he is still disabled by that condition. 152 Mr Finch has not worked since his treatment, although he has attempted a number of jobs. He has undertaken, and then abandoned, various university courses. There is a substantial issue as to his capacity for work in the future. The hearing problems 153 As a consequence of the nerve damage to the left and right ears, the plaintiff suffers from three distinct conditions: · high frequency hearing loss, · tinnitus, · recruitment or hyperacusis. 154 The damage is permanent. There is no treatment. For some patients, although not Mr Finch, tinnitus retraining (using a noise generator device "to help break the cycle of focus on sound and tinnutis") offers some relief (Exhibit E: p253). 155 The plaintiff was referred to Dr Chapman, an ENT specialist. Dr Chapman provided a report to the local doctor, which included the following: (31.3.99) (Exhibit E: p260) "On examination both ears looked normal as did his nose and throat. His audiogram demonstrates a significant degree of high frequency loss at 6000 and 8000 cycles. He was noted to be recruiting at about 40 to 50 decibels at 6000 cycles and around 70 decibels at 8000 cycles. Andrew has tried various things to reduce the effects of his tinnitus and recruitment including low level sound therapy and the use of medications. He has not had much success in controlling his symptoms and was asking today about tinnitus retraining therapy." 156 Dr Chapman's letter of referral to the audiology clinic (22.4.99) included these words: (Exhibit E: p255) "Andrew was treated for testicular cancer in 1997. Part of his treatment regime was Cisplatinum and he had four cycles of treatment with this. He has developed some high frequency sensori neural loss and some associated tinnitus and recruitment. It is the hyperacusis and tinnitus which he finds so distressing. I would be grateful if you could consider him for retraining." 157 The audiologist, Ms Juliet Smith, reported as follows: (13.5.99) (Exhibit E: p253) "As you know, he is having significant difficulty with tinnitus and hyperacusis. He said he has recently been prescribed anti-depressant medication by his local doctor and this has helped. The tinnitus has three distinct sounds to it, which fluctuate in intensity, character and location. This may simply be the degree to which Andrew has focused in on it. His main concern is the hyperacusis, which is beginning to really frustrate him. Andrew's loudness perception has been distorted due to complex processing errors which mean the tinnitus signal is interpreted as a threat, and the tinnitus signal has been linked to external louder sounds (because loud external sound has been associated with changes in the tinnitus signal). This means the brain also processes some external sounds incorrectly labelling them as a threat and something to be avoided. The brain will gradually reallocate these sounds more appropriately if repeatedly directed to with conscious effort and time. The use of a noise generator can facilitate this by reducing the signal to noise ratio of external sounds by increasing the 'noise floor' slightly." 158 The plaintiff was referred to Dr Carroll, ENT specialist, by the defendant. Dr Carroll was not called and no report was tendered. I infer Dr Carroll would not have assisted the defendant. The defendant also qualified Dr Bowers, who's report of 15 May 2001 included the following: (Exhibit E: p419) "Examination of the cranial nerves demonstrated hearing problems, more in the left ear than the right ear. Otherwise, cranial nerve examination was normal." 159 Mr Finch, when giving evidence, said that after the fourth cycle he had ringing in both ears which was "incredibly louder" (T24) than his first experience of tinnitus after the third cycle. He noticed at once when he played music that it lacked clarity. He could not hear the high frequency notes. 160 The tinnitus has remained to this day, although Mr Finch has tried everything. In a letter of 1 July 2003 to Dr Lucire, psychiatrist, Mr Finch said this: (Exhibit G) "I have made a conscious effort to find ways of dealing with the hearing problems such as counselling, relaxation, varying my diet, trying medications, and Tinnitus Retraining Therapy. I have been trialing TRT for the last 4 years but have had no real relief or improvement in my symptoms. What has made it hard is the fact that the sounds in my ears are always changing, as does the volume." 161 When Mr Finch saw Dr Lucire he described the tinnitus in these words: (Exhibit 2: p37) "I get different sorts of sound, sometimes high pitched, sometimes lower, quiet noise, sometimes a piercing sound. It never leaves. It can get worse. It constantly changes." 162 When giving evidence the plaintiff said this: (T24) "Q. And how often would you (hear) ringing in your ears? A. I always have ringing in my ears, but the ringing increases, depending on noise experiences that I am exposed to, and that can even be quiet sounds. It just depends on the frequency, and that will cause the ring to be a lot louder and change what's actually happening, whether it turns into a drone or a hissy sound or even starts sounding like cicadas. Q. Is this something that you experience on a daily basis? A. Yes. Like I said, it's there all the time, but it is constantly fluctuating, so you can never get used to it. " (emphasis added) 163 The problem is made worse by the effect of recruitment, that is nerves going to the aid of damaged nerves and, in the process, distorting and exaggerating the sound. These are the "processing errors" described by the audiologist. Certain sounds are quite painful. 164 The impact upon Mr Finch's life has been profound. Music was his life. His friends were musicians. He no longer plays the piano. He cannot tolerate the sound and, in any event, no longer has the strength in his fingers. He has sold his saxophone. He does not even listen to music, or if he does, he "pays for it". I accept his evidence that he finds it extremely difficult to live without music. 165 The impact of these disabilities upon his life has extended beyond music. In his letter to Dr Lucire he said this: (Exhibit G) "My hearing problems also impedes on activities of daily living, social activities and things people take for granted. EG: Dogs barking, telephones ringing, talking on the phone, washing machines, dishwashers, lawn mowers, noisy shopping centres and supermarkets, vacuum cleaners, doors slamming, attending concerts, going to parties, movies, restaurants, using public transport and sharing a house with people my own age." 166 In short, noise has become painful. Mr Stephen Doherty, a friend from school and a musician, described how Mr Finch would retreat with his hands over his ears to escape noise. When they shared a flat, Mr Doherty did not practice the guitar in Mr Finch's presence. 167 Mr Finch's mother, in her evidence, provided a further illustration of the difficulty her son faces. They came from Armidale to Sydney for the case. One gathers that they are staying in a hotel. The hotel has a small refrigerator. Mr Finch found the noise and vibration from the refrigerator unbearable, so it was moved to the bathroom. 168 Mr Finch drives a car. He finds it difficult. On longer journeys he wears earplugs. They offer some relief, although they are not capable of dealing with the problem. The noise is internal, aggravated by external noise. The earplugs muffle the external noise. 169 After the chemotherapy Mr Finch endeavoured to resume his university studies. In 1998 he resumed his degree of Bachelor of Education in Secondary School Music. He thought he may be able to control the level of noise. He soon found it impossible, however, to continue with the course. Even theoretical music involved rhythm exercises by hand clapping. He said that he would often drive home from university in tears. 170 Mr Finch also found the level of noise in lecture theatres (where there was a public address system) distressing. He attempted to make arrangements to undertake lectures by correspondence. However, he was still obliged to attend tutorials in a room with 20 computers. He persisted for a time but could not cope. He abandoned the course. 171 Having returned to Armidale in early 2000, Mr Finch attended the Commonwealth Rehabilitation Centre. They tried to find him a suitable job. It was thought that he may be able to work in the library of the University of New England. He attempted to do so, believing it would offer a quiet environment. However, he found that modern libraries are far from quiet to persons sensitive to sound. They have open plan offices, air conditioning units, refrigerated drink machines, and computers. He attempted for some time to work in that environment. He found the level of noise (the whine of the air conditioning and the computers) painful. His sleep was affected. He ultimately said, and I accept, that he could not cope. He therefore ceased work. 172 Mr Finch was later employed by a person seeking office as a politician. His employer's premises were on a corner of a street in the centre of town. He found the traffic noise difficult. His employer mainly looked to him to use a computer and answer the phone. He found the noise associated with both difficult. After a number of days he said he could no longer do the job. Peripheral Neuropathy 173 Mr Finch said that soon after the fourth cycle he noticed severe numbness, tingling and weakness in his hands and fingers. He had trouble turning on the taps in the shower (Exhibit G: p4). He also noticed pain and a burning sensation in his feet. The pain was aggravated by walking or being on his feet too long. 174 Mr Finch, as mentioned, returned to university in 1998. He had trouble using a pen to take lecture notes. He found he did not have the strength to play the piano. He tested himself, even though the noise of the piano was painful. In his words, it was something that he "did not want to throw away". 175 However, his hands and fingers gradually recovered, although not completely. His difficulty now is with extended use. It is difficult, for instance, to do up metal buttons on jeans or to drive for an extended period. His fingers become quite numb and start tingling. With rest they recover. 176 Mr Finch explained that his feet are worse than his hands. Immediately after the fourth cycle he noticed difficulty with walking, especially in the balls of his feet. The feet were very sensitive (supra para 131). Ordinary socks felt like sandpaper. He was obliged to replace them with Bonds "Pillow Soft". He suffered a burning sensation, especially in the left foot, when he walked for too long or stood on rough surfaces. He also suffered with cold feet, needing a hot water bottle to keep them warm. 177 These problems remain, although again there has been some recovery. Orthotics were suggested and designed by a neurologist. He was wearing them when he gave evidence, and produced them in answer to my inquiry (T36 line 45). They are fashioned in a way which is designed to take pressure off the painful areas. Mr Finch still wears Pillow Soft socks and expensive joggers to alleviate pain when walking. He is not able to walk with bare feet. 178 Mr Finch was examined by Dr Bowers on behalf of the defendant. Dr Bowers found the plaintiff co-operative with no exaggeration. He diagnosed peripheral neuropathy with dysesthesia. He found no joint swelling or muscle wasting. The tone in the arms and legs was normal, suggesting no nerve damage. The power and reflexes were normal. However, sensation was decreased in the back of the left foot, more so than in the right. The sensation was also decreased in the fingertips of each hand (Exhibit E: p419). Dr Grant Walker, a neurologist, also examined Mr Finch on behalf of the defendant. He performed sensory conduction studies of the right median and ulna nerves. The studies were completely normal. Dr Walker offered the following opinion: (report 27.6.03) "Normally one would expect a degree of recovery in toxic neuropathies, and this has occurred symptomatically to point, but Mr Finch seems to have symptoms far in excess of what one would expect, given his normal examination and (albeit) basic neurophysiology." 179 A more extensive nerve conduction study could have been performed, although it appeared to Dr Grant that there was "overwhelming evidence that psychological factors are important in Mr Finch's symptom complex". 180 Dr Paul Darveniza, Mr Finch's treating neurologist, also gave evidence. He concluded that, clinically, Mr Finch was suffering from "oto and neurotoxicity from his anti-cancer drugs, with neuropathic pain etc" (Exhibit L: report 22.10.2003 p2). Dr Darveniza explained that the nerve conduction studies performed by Dr Grant had their limitations. There may be peripheral neuropathy even where the tests are normal. The test is not directed at the small myelinated fibres which may assist diagnosis. Cisplatinum usually affects the legs more than the arms (as in Mr Finch's case), since it affects the long neurones more than the short. The tests performed by Dr Grant were on the upper limbs. Depression 181 Andrew Finch said, and I accept, that he was not depressed before the onset of disabling symptoms in April 1997. He did not believe himself to be moody or irritable. He described himself as a fairly calm sort of person. He was not especially anxious, even when in a stressful situation, such as performing in front of an audience or at auditions. 182 Mr Finch's mother described her son in similar terms. He was a normal, happy child. He was never angry or moody. He had a gentle, placid nature. His friend, Stephen Doherty, described him as "a fun loving guy" with a keen interest in music. His music teacher at school, Mr Irik, said that Mr Finch was likeable and "great fun". Mr Irik said this: (T151) "Q. As a person, how would you describe his personality in those days? A. Diligent, professional, sincere, musical, focused." 183 He added: (T151) "Q. In terms of levels of happiness, I was talking about, if you can understand that useless word in a way? A. I know what you are saying. No, his demeanour and manner, and the way he conducted himself, as his enthusiasm, it was never a chore to come to lesson. It was never a chore to practice or work with his mates, it was an enjoyment. It is a fact of life, it is an enjoyable experience." 184 Mr Finch described music as "his heart and soul". It was his preoccupation at school and at university. It was to be his career. It was also his recreation. It was the source of his friendships. Music was, however, incompatible with his disabilities. He therefore no longer plays the piano or any musical instrument. As mentioned, he even finds it difficult to listen to music. 185 Not surprisingly this had led to depression. In his letter of 1 July 2003 to Dr Lucire, psychiatrist, he described his symptoms in these words: (Exhibit G) "It primarily is my hearing problems that have placed the biggest restrictions on my life. I explained to you the troubles I had in returning to music studies and even other studies in a different subject area. It has even made it very difficult just finding any ordinary job because I have trouble tolerating office equipment such as computers, photocopiers, laser printers, noisy air-con systems, refrigerated drink machines and other types of equipment that is found in the modern day work environment. These all aggravate my hearing condition. My attempts to find work at the local university library failed as I'd just end up going home with screaming loud ringing and droning in my ears. This made it virtually impossible to sleep at night. As a result I ended up discontinuing after 6 sessions. My hearing problems also impedes on activities of daily living, social activities and things people take for granted. EG: Dogs barking, telephones ringing, talking on the phone, washing machines, dishwashers, lawn mowers, noisy shopping centres and supermarkets, vacuum cleaners, doors slamming, attending concerts, going to parties, movies, restaurants, using public transport and sharing a house with people my own age." 186 At the end of 1998 Mr Finch's girlfriend left him. She did so because he was depressed and unable to participate in normal social interaction. He became even more depressed after the break-up, contemplating suicide. Antidepressant medication was prescribed which helped. He continues to take antidepressants. It is common ground that he will need to do so for the rest of his life. 187 Mr Finch was referred to Dr Raymond, psychiatrist, in the ACT. She saw him in June 2000 and from time to time thereafter. Her report of 25 October 2000 included the following: (Exhibit E: p120) "He has a lot of depressive symptoms including low mood, being socially reclusive, sleeping in until 12 noon and having low energy and motivation. He looks after his diet and eats well including extra vitamins, but he does no physical exercise. He is preoccupied by all that he has lost and feels overwhelmed creating a new future for himself. He describes himself as 'lost'. He does not have suicidal thinking at the moment but certainly did have prior to starting on antidepressants." 188 Dr Raymond's assessment was in these terms: (Exhibit E: p121) "Depression reactive to a rather overwhelming series of losses, including a loss of his principal passion and creative outlet - his music. He has also had loss of his future career prospects as a musician, his girl friend, normal sexual functioning, fertility and also friendship networks. On the positive side his past history suggests a good capacity for self-discipline and achievement and also he has his supportive family. I wondered also if he might have an obsessional personality trait." 189 Dr Raymond described Mr Finch as "extremely socially isolated". That isolation has continued. Indeed it has been accentuated by Mr Finch's return to Armidale and his parents' home. Mr Finch gave the following evidence, describing how he feels: (T31/32) "Q. Since all this has happened, how do you see yourself as being? A. In a way I feel a bit numb. I feel saddened by it, things I can't do. I feel saddened by the fact that I can't even just attempt and try and go out and get a normal average job and take care - you know, experience the benefits that come from working in a work place. I feel sad about, you know, having to go out and socialise, and it's often when I am put in a situation that I will get upset and stressed, and sometimes I just try not to think about it and put it out of my mind, but that really isn't much of an existence because you end up - I am getting confused. Q. What do you do most of your days? A. Well, as I said before, it often takes me a lot of time to get to sleep, so once I am asleep I try to stay asleep and get the best out of that. But I mean I might wake up in the morning, have breakfast, probably come downstairs if Mum is not putting the washing machine on or anything, ... watch television just down low. I might occasionally go and see my grandmother. But it really isn't much of an existence. I might attempt to try and read sometimes, but if my ears are bad, when your ears are bad it's really hard to try and focus and concentrate." 190 Mr Finch no longer sees his friends. He says, and I accept, that he has found it difficult to make new friends. 191 The plaintiff was referred to Dr Robert Gertler, psychiatrist. Dr Gertler made the following diagnosis: (Exhibit E: p115) "... Andrew Finch is suffering from an adjustment disorder with depressed mood. The disorder is chronic and the level of depression fluctuates, though appears never to be less than moderate. In my opinion, it has been of major proportions in the past, particularly when it was associated with suicidal ideation." 192 Dr Gertler added: (Exhibit E: p115/116) "... He has received appropriate psychiatric treatment during this time; the treatment has involved the use of antidepressant medication, as well as counselling, not only by his treating psychiatrist but by others over the years since 1997. Treatment appears to have been of limited benefit and it is unlikely to be otherwise for the foreseeable future. As such, the prognosis for his adjustment disorder with depressed mood is poor." 193 Dr Gertler identified the cause of Mr Finch's condition in these words: (Exhibit E: p116) "... Andrew Finch's adjustment disorder has developed as a reaction to the major losses he has experienced in his life since 1997. At that time treatment for carcinoma of the testis caused side-effects which led to a major and permanent impairment in his hearing capacity with associated tinnitus, and also chronic peripheral neuropathy which affected his ability to play musical instruments. His life prior to 1997 had revolved around his musical career which was extremely promising, and which he lost completely. The loss was compounded further by the fact that his social life also evolved around his involvement in music. Mr Finch has been vocationally assessed and the results of that assessment are extremely negative. He recently attempted to return to a work environment in Armidale but this proved unsuccessful, and he now finds himself progressively more isolated. Other than his immediate family, he appears to have no social outlets." 194 Dr Gertler believed counselling had assisted the plaintiff "to ventilate his feelings and prevent his depression becoming severe". He recommended further counselling, monthly, over five years. 195 When giving evidence, however, Dr Gertler suggested a rather more intensive regime. He said this: (T174) "Q. Why do you give that recommendation in his case? A. Well, he had counselling in Canberra, it was monthly, and it helped him. I would expect that to help him again. The frequency I would have thought should have been more than once a month, certainly if it is a formal psychotherapy it would be at least once a week, and the duration of five years in my opinion is needed because of the fact of his real physical problems. If you like, and his situation, isolation, withdrawal, social withdrawal, regression. Q. I wasn't so much concerned about the regime so much as the view you just expressed. Subject to putting in place a proper regime, it is your view that proper psychiatric psychotherapeutic counselling would help him? A. Yes. Q. By that you would indicate that the extremities of his symptoms and complaints would be ameliorated or mollified by that ... A. I would hope." 196 Such counselling would reduce the depression, although not provide a cure (T178/9). 197 The defendant called Dr Yolande Lucire, a psychiatrist. Dr Lucire saw Mr Finch on 14 June 2003. He presented as someone tired and without energy. He gave a history of having got sick in his first year at university, adding: (Exhibit 2: p38) "It was like chronic fatigue." 198 He saw local doctors in Canberra. He had vitamin injections, but felt apathetic. After the examination by Dr Lucire, Mr Finch, as mentioned, wrote to her (Exhibit G). He said that he had been extremely nervous during the consultation and became muddled and confused. He then set out his symptoms at some length. 199 Speaking of 1995, Mr Finch said that he was "gradually starting to suffer from lethargy and a run-down immune system ... ". He asked for deferred examinations but was excluded from the School of Music. In 1996 he enrolled in Commerce but lacked interest in the course. He withdrew for that reason, and because he was getting sick, being "completely tired and (lacking) energy". 200 Dr Lucire reached a diagnosis of chronic fatigue syndrome. Her opinion was expressed in these terms: (Exhibit 2: p41) "Mr Finch was afflicted by a somatoform disorder (NOS) called commonly Chronic Fatigue Syndrome, prior to these events. This is a kind of 'nervous breakdown' where a conflict is resolved or a need is met by becoming ill. It was in existence early 1995, when I believe he discovered that he was not going to be a performer and he became anxious. This seems to have been a manifestation of his anxiety. No organic cause was found. He had started off with high expectations of himself. He probably rehearsed very hard for the examination, but his ambitions were very high. Chronic Fatigue Syndrome (and many forms of functional somatoform and somatic syndromes) affect the hard working, the obsessive, who are often very anxious and driven individuals." 201 After the operation and chemotherapy, Mr Finch developed, according to Dr Lucire, anxiety-driven reactive depression. However, the chronic fatigue syndrome had been disabling since 1995 and remained disabling. The prognosis, according to Dr Lucire, was as follows: (Exhibit 2: p43) "Guarded. He has adopted the role of the invalid. His symptoms are genuine but, many (if not all), are emotional in origin." 202 Dr Gertler disagreed with the diagnosis of chronic fatigue syndrome. Getting tired, being lethargic, feeling low in energy and getting infections were symptoms consistent with many things, including a student burning the candle at both ends, as Mr Finch described. They did not warrant a diagnosis of chronic fatigue syndrome. There was no reference in the description of his symptoms to multiple aches and pains, as he would have expected had that condition been present. The syndrome, where it is present, is pervasive. It affects all areas. Here, Mr Finch's academic performance was patchy. He failed a number of subjects. However, he passed others, some with distinction. He continued to enjoy a social life, practised the piano and participated in university life. When seen by his friend, Mr Doherty, shortly before the diagnosis he was "his usual bubbly self". He was playing music as normal (T111). 203 The records of the Florey Medical Centre in Canberra, where Mr Finch used to seek treatment for various ailments, were tendered. They showed few attendances. There were four consultations in 1995 and a few more in 1996, none remarkable. 204 I prefer the view of Dr Gertler to that of Dr Lucire. I do not accept Mr Finch was, or is, suffering from chronic fatigue syndrome. Submissions from Counsel 205 The defendant submitted that the Court should not accept that Mr Finch is as disabled as he thinks he is. He has adopted a sick person's role. Tinnitus cannot be objectively measured, nor hyperacusis. It is, according to the defendant, unusual to have complaints of such severity. Emotional factors have heavily influenced each disability, and especially the depression. The depression, in part, can be traced, according to the defendant, to other causes, including the shock of cancer, the ordeal of treatment, and the fear of recurrence. 206 The peripheral neuropathy is, according to the defendant, not confirmed by objective testing. Again, as Dr Grant pointed out, emotional factors have magnified the plaintiff's response to such disabilities as he may have. And whether that be right or wrong, the defendant pointed out that the plaintiff himself described the peripheral neuropathy as having improved such that it is now "by the far the minor problem". 207 The depression, with effective therapy, will, according to the defendant, lift or substantially lift, such that the plaintiff will be left with an "element of depression" (Dr Gertler T178). 208 However, I accept that the plaintiff is a truthful and reliable witness. First, ototoxicity and neurotoxicity are known complications of cisplatinum. The symptoms described by the plaintiff are consistent with each complication. There is objective evidence that he has suffered damage to his ears, and to his peripheral nervous system. The audiogram (Exhibit E: p249) showed marked high frequency loss and recruitment. The examination of Dr Bonner of the cranial nerves demonstrated hearing problems (Exhibit E: p419). Mr Finch has impaired sensation in his fingers and feet. He wears orthotics, special socks and shoes. 209 Secondly, Dr Chapman, the plaintiff's ENT surgeon, said that the plaintiff suffers from tinnitus and recruitment and high frequency loss. He was not required for cross examination. The defendant's specialist, Dr Carroll, did not give evidence. His report was not tendered. 210 Thirdly, it was not put to the plaintiff that he was feigning or exaggerating his symptoms, or that he was (consciously or unconsciously) adopting a sick person's role. The defendant's submissions, when first made, suggested that the plaintiff was not as disabled "as he says". Counsel for the plaintiff then pointed out that nothing had been put to the plaintiff to warrant such a submission. The defendant thereafter moderated his position, putting the following: "The defendant's submission earlier put that the plaintiff is not as disabled as he says he is, is more accurately expressed as the plaintiff is not as disabled as he thinks he is. His emotional response to his symptoms was and is the main disabling influence, and with resolution of that emotional response, including the diagnosed depression, there will be real recovery, including the ability to be rehabilitated into work." 211 Fourthly, I do not believe the plaintiff is exaggerating his symptoms. There is a deal of corroboration for his complaints. They have been made consistently and repeatedly to doctors since the fourth cycle of chemotherapy. Mr Stephen Doherty gave evidence that, when back in Canberra after treatment, Mr Finch was encouraged by his friends to play music with them. He attempted to do so but ceased within minutes, complaining of pain. Mr Finch's mother gave evidence of her observations, having seen the plaintiff on a daily basis since his return to Armidale in 2001. She is aware of his limitations and the adjustments made to accommodate his difficulties. She typed the letter to Dr Lucire in July 2003 (Exhibit G) in which he described his symptoms. She struck me as a completely honest witness. I cannot imagine (and it was certainly not suggested) that she assisted in the fabrication or exaggeration of symptoms. Yet the symptoms and disabilities set out in that letter are those I have described. Mrs Finch's evidence, for example, described the difficulties experienced by the plaintiff with his home computer. He found the noise of the hard drive distressing. An attempt was made to dampen the noise by placing a pillow on top of the computer and then wrapping it in a blanket. Eventually it was put in a cupboard. 212 What, then, is meant by the suggestion that the plaintiff is not as disabled as he thinks he is? The submission that the plaintiff has responded emotionally to his symptoms is presumably not directed to the peripheral neuropathy, since the plaintiff acknowledged significant improvement in that area. Limitations remain that they are not a substantial inhibition to his rejoining the workforce. The defendant's submission, one assumes, is mainly directed at his hearing problems, the tinnitus and the recruitment (and the significant high frequency loss), since they have not improved in the six years since they first appeared. What is the basis for that submission? No ENT specialist was called to support that opinion. The plaintiff's treating ENT specialist (Dr Chapman), who described, without elaboration, the plaintiff as suffering from tinnitus and recruitment, was not required for cross examination. 213 The submission by the defendant appears to rest upon two bases. First, though high tone hearing loss normally associated with hyperacusis can be measured by audiometry (and is present to a significant degree in Mr Finch), the symptoms are "subjective". That is the processing errors cannot be measured. The severity of the plaintiff's symptoms are unusual. Professor Levi could not recall a patient presenting as vocationally disabled as does the plaintiff. Nor could others. 214 However, the fact that the level of the plaintiff's disability is unusual, or outside Professor Levi's experience, does not, to my mind, cast doubt upon the plaintiff's description of what he is experiencing. Nor does it establish any basis for inferring that it is psychological rather than physical. There is objective evidence of physical damage consistent with hyperacusis or recruitment. Mr Finch has been diagnosed with that condition. The diagnosis was not challenged. He has now had that condition for six years. It has not altered in that time. He has frankly disclosed improvements in other areas (the peripheral neuropathy and the depression). Why, if his symptoms were psychological, would there be improvement in one area but not in another? I accept as probable that the tinnitus and recruitment, as described by the plaintiff, are the consequences of physical damage and are permanent. 215 The second basis is that the plaintiff has allegedly not pursued avenues open to him to alleviate his symptoms. It is suggested that he did not undertake auditory retraining for his tinnitus, nor seek psychiatric help after seeing Dr Raymond in Canberra in 2000/2001. Rather he has adopted a "sick person role". 216 Counsel for the plaintiff complained about that submission. It was not suggested to the plaintiff, when cross examined, that he had (consciously or unconsciously) adopted a sick person role, or had failed to undertake appropriate rehabilitation. The complaint was justified. In fact, the evidence discloses that Mr Finch did use the device provided by the audiologist at the tinnitus clinic. They provided no lasting relief. He did other things besides (supra paras 155 and 161), again without alleviating his symptoms. 217 The plaintiff was not asked why he did not see a psychiatrist after 2001. Dr Raymond was in Canberra. He left Canberra for Armidale in early 2001. The depression had by that time been controlled (in the sense that he was no longer suicidal) by antidepressant medication. Was that the explanation? Was it the cost? One simply does not know because the issue was not explored. 218 I do not accept that the plaintiff has adopted a sick person role. Certainly he is sorry for himself which is hardly surprising. His disabilities have had a profound effect upon his life. He was a musician. He can no longer play music. Instead he has been left with distressing disabilities that trouble him throughout the day and disturb him significantly throughout the night. He has been left without a career. He is socially isolated. It would be remarkable if he were not depressed. The real issue is the extent to which, with time and appropriate therapy, that depression may abate. 219 When Mr Finch gave evidence he struck me as very depressed. He smiled bravely from time to time, and tried to make light of his predicament, but appeared flat and sad. Mr Timothy Spong, who made a vocational assessment of Mr Finch on 15 December 2000, had much the same impression. He said this: (Exhibit E: p153) "... Whilst he smiled on occasions during the interview, underlying this it was assessed he was sad and depressed when describing his loss since the development of his condition and he was concerned for the future. He was pre-occupied with his sense of loss ..." 220 It is likely, even with therapy, that Mr Finch will remain depressed. I say that for a number of reasons. · First, the root causes of his depression are his hearing difficulties and, to a lesser extent, the peripheral neuropathy. His disabilities are permanent. They will continue to deny Mr Finch access to music which was the mainstay of his life. He is likely to remain isolated. · Secondly, although Mr Finch had therapy before, and although it helped, it did not eradicate his depression. It transformed a major depression (where Mr Finch was suicidal) into something which was manageable with medication, although disabling. · Thirdly, it is important to read the whole of Dr Gertler's evidence, and especially his report (Exhibit E). He believed the prognosis was poor. Dr Lucire did not suggest otherwise, although she attributed the disabling symptoms to another cause. · Fourthly, it will be noticed both parties agreed that Mr Finch will require anti-depressant medication for life. Damages are to be assessed upon that basis. 221 Having said that, the depression in the future is unlikely to be as bad as it now is. · First, the preoccupation with his symptoms, which a court case has required, will cease. That will help. · Secondly, Mr Finch will have a parcel of money, in the form of damages, and the ability to establish, if he chooses, an independent life. That will also help. · Thirdly, in time and with therapy, I believe it likely that Mr Finch will make some form of adjustment to his loss, such that he can begin to build a new life. 222 Nonetheless, for the reasons given, although the future is likely to be better than the present, I believe the depression will continue to be disabling. It will continue to significantly diminish Mr Finch's earning capacity. 223 Section 16 of the Act requires me to determine the severity of the plaintiff's non-economic loss as a proportion of the most extreme case. The proportion must be expressed as a percentage, and a calculation made according to the maximum under the Act. The maximum, as indexed, is $384,500. The meaning of the phrase "most extreme case" has been determined in the context of the Motor Accidents Act 1988 in Southgate v Waterford (1990) 21 NSWLR 427, and Dell v Dalton (1991) 23 NSWLR 528. I should adopt the same approach. 224 Here, the assessment is difficult. The plaintiff appears to be able bodied. Dr Bower, a person described as making medical and orthopaedic assessments, confirmed the diagnoses of tinnitus, hyperacusis and peripheral neuropathy. He saw no evidence of exaggeration. He then said this: (Exhibit E: p420) "The physical examination confirms relatively minor problems associated with these medical diagnoses. He attended the interview on his own and was able to conduct the interview satisfactorily without complaint of excessive pain and the musculoskeletal examination demonstrated relatively minor abnormalities." 225 However, I do not accept that description. It seriously underestimates the disabling and isolating effects upon the plaintiff of tinnitus and hyperacusis. Although the plaintiff is not immobilised, I believe his disabilities are very severe. The transformation of his life has been profound. I believe that his disabilities should be assessed at 70% of the most extreme case ($269,150). Out of pocket expenses 226 The plaintiff and defendant have agreed upon the following: Out of pocket expenses: $5,057.70 Interest on out of pocket expenses: $253.43 Past gratuitous care nil Past economic loss 227 What, but for the disabilities associated with the fourth cycle, would the plaintiff have done with his career? His interests and talent were, of course, in music. He had, however, been excluded from the School of Music at the end of 1995. He had then attempted Commerce but had no interest in it. That was the point he had reached when he was diagnosed with cancer. 228 I agree with the defendant that 1997 (when he was undergoing chemotherapy) was a lost year. The issue is what he would have done between January 1998 and the present time. 229 There were two career paths open to Mr Finch. The first was to pursue music teaching, as a private teacher like his own teacher, Ms Julee Andrews. He had taught one student the saxophone when at high school and had enjoyed the experience. He said this: (T43) "Q. So you could see yourself in that role as a private teacher? A. Yes. I think there would be joy to be had in teaching young children and trying to instil a love of music into them and watching them develop." 230 To teach privately, Mr Finch would require the qualification A. Mus. A. That is the next stage after 8th Grade Piano, which he had completed. His piano teacher, Ms Julee Andrews, said that he definitely could have achieved that standard. His music teacher at school, Mr Michael Irik, said the same, as did the plaintiff himself. The plaintiff said that there was certainly work available as a private music teacher. The Association recommended a rate of $60 per hour. Ms Julee Andrews in Armidale charges $52 per hour. Were Mr Finch to have pursued that life, he would also have supplemented his income by performing in ensembles at private functions. 231 The second career path was the one he in fact chose in 1998, that is, to complete his degree, and become a school teacher. Because of his disabilities Mr Finch was obliged to abandon that course. He has been unemployed since. I have no information about the likely length of the course. Mr Finch had successfully completed some subjects, although not many. The defendant, in submissions, suggested the course would probably have occupied three years (1998, 1999 and 2000). That seems to me a reasonable approach. 232 Given that the plaintiff chose to continue his university studies, I think that the second course, that is teaching, was the most likely career path. I believe it also likely that Mr Finch would have supplemented his income, both by private tuition and performances at private functions. There is demand for both. In 1993 a small ensemble would be paid about $300 a night, which, assuming three performers, would yield about $100 each. No doubt the rate has increased in the decade since. 233 I believe that from private teaching and performing, it is reasonable to allow an additional $120 gross per week. 234 I am not really in a position, on the basis of the material in front of me, to calculate in dollar terms the plaintiff's loss. The parties should, upon the basis of these findings, calculate the past net loss to the date of judgment. It should be assumed that the plaintiff would continue working to the age of 65. It should further be assumed that he would have progressed through the ranks of teachers at a reasonable rate. I encourage the parties to confer and agree upon the plaintiff's loss upon that basis. If it is believed that further findings are required in order to make the appropriate calculations, the parties should, within 14 days, exchange written submissions in respect of any such issues, and arrange to have the matter relisted for further evidence (if necessary) and argument. The plaintiff is entitled to interest, which should be calculated and agreed. Future domestic assistance 235 The plaintiff was assessed by Ms Louise Cadby, a rehabilitation counsellor, to determine the level of assistance he required. Ms Cadby prepared a report (Exhibit E: p129). She was not required for cross examination. The plaintiff's submission accurately sets out Ms Cadby's findings which were: "1. The plaintiff does not require assistance with personal care activities of daily living; 2. The plaintiff's reasonable requirements for assistances with domestic duties is 1 hour per week based on his requirement for assistance with vacuuming; 3. The plaintiff's reasonable requirements for assistance with House and Property maintenance is 2 hours per week; 4. The plaintiff's reasonable requirements for assistance with Occasional maintenance activities is 8 hours per year; 5. The plaintiff's need will remain constant for the rest of his life." 236 On that basis, the plaintiff would require 3 hours per week. The property maintenance included lawn mowing and the use of tools, including power tools. 237 Dr Bowers, qualified by the defendant, addressed the same issue. He offered the opinion that the plaintiff would require 4 hours domestic assistance per week for heavy and awkward cleaning and home maintenance tasks. 238 The plaintiff gave evidence that vacuuming and lawn mowing were activities which were painful by reason of the noise. He had difficulty with dishwashers, fan forced ovens, and other such appliances. 239 Agreement was reached between the plaintiff and the defendant upon the following: · The cost of domestic care is about $20 per hour. · The appropriate multiplier, using 5%, is 971.6. 240 The plaintiff therefore claimed 3.5 hours at $20 per hour x 971.6, which is $68,012. 241 The defendant submitted, however, that such an approach assumes the plaintiff will live alone for his entire life, without others to share the domestic load. It was said that such an assumption was unwarranted. The plaintiff had, in fact, never lived alone. The appropriate allowance, it was suggested, was 1 hour per week ($20 x 971.6 = $19,432). 242 That submission generated a series of further submissions, debating the application of the common law principle in Van Gervan v Fenton (1992) 175 CLR 327, where Mason CJ, Toohey and McHugh JJ stated: (at 338) "A defendant is no more entitled to have the pre-accident voluntary contribution of a spouse taken into account than a defendant would be entitled to have the pre-accident work of a paid housekeeper taken into account. If the defendant has created the need for the services, that person is not entitled to have the damages reduced because, before the accident, the plaintiff elected to pay for similar services or had the benefit of having them performed gratuitously. By the tort, the defendant has transformed the choice of the plaintiff to pay for such services or to have them done voluntarily into the need for the plaintiff to have those services performed for him or her." 243 It was said that the plaintiff is unlikely to marry. He is 29 years old. He has not been "on a date" since returning to his parents' home in 2000. 244 The defendant's rejoinder drew attention to s15(2)(c) of the Civil Liability Act 2002, dealing with damages for gratuitous services. The section provides that no damages may be awarded for gratuitous services unless the court is satisfied, first, that there is a reasonable need for those services, and secondly, that the need has arisen solely because of the injury to which the damages relate, and the services would not have been provided but for that injury. Here, it was suggested, that were the plaintiff to marry or form a relationship, the services which he now finds difficult could be provided by his wife or partner as part of the normal household sharing of tasks. 245 The plaintiff responded with a further submission. Attention was drawn to Mortimer v Burgess (unreported, 16.5.97, NSWCA) where the court considered s72 of the Motor Accidents Act 1988, which is in similar terms to s15 of the Civil Liability Act. The court referred to the minority judgment in Van Gervan, where Deane and Dawson JJ said this: (at 343) "... the appellant was and was likely to remain a party to a stable marital relationship and that the ordinary incidents of that relationship and the give and take activities of the parties to it provided a significant part of the active services and passive attendance in and about the marital home which were necessary to look after the appellant's accident-caused needs. In assessing compensatory damages in that context, the ordinary incidents of a particular continuing relationship, such as joint activities and companionship, cannot, in our view, legitimately be seen as transformed by the injury to one spouse into 'services' rendered or to be rendered by the other spouse even if they obviate a need for such 'services' which would otherwise exist. Nor, subject to an important qualification, can domestic services which are undertaken, as part of the mutual give and take of marriage, by persons in a marital relationship for the benefit of one another and of their matrimonial establishment, legitimately be seen as converted into additional services necessary to attend to the accident caused needs of an injured plaintiff in circumstances where they would have been performed in the same way and to the same extent in any event. The qualification is that such services will be taken out of the area of the ordinary give-and-take of marriage to the extent that the injuries to the wife or husband preclude him from providing any countervailing services. To that extent, the continuing gratuitous services provided by the spouse assume a different character and should be treated as additional services which have been or will be provided by that spouse to look after the accident-caused needs of the injured plaintiff." 246 The plaintiff pointed out that there was no evidence of the plaintiff's capacity to provide countervailing services. 247 The submission also dealt with the plaintiff's prospects of marriage, or a relationship, suggesting a complicated formula, applying the principle in Malec v J C Hutton Pty Ltd (supra at 643). 248 I accept the evidence of Ms Cadby and Dr Bowers as to the plaintiff's needs. I accept that there is a reasonable need by the plaintiff for the services identified, by reason of his disabilities. The approach suggested by the plaintiff (taking 3.5 hours) is reasonable, subject to the issue of marriage or a relationship, and the effect that may have (if any) upon the plaintiff's need for such services. 249 Here, it must be recognised that the plaintiff's prospects of marriage or a domestic relationship are not good. There is no existing relationship. As mentioned, he has not been "on a date" since his return to Armidale. His social life is very restricted. Most social intercourse involves exposure to noise. He finds, for instance, the noise of restaurants uncomfortable and rarely goes to one. He has not worked for six years. He does not meet people in the way that one does through work. He suffers from insomnia and compensates for lost hours sleep by sleeping late. Dr Lucire's report (19.6.03) (Exhibit 2) included the following: (Exhibit 2: p40) "I inquired about his sexual feelings. He said he had no great desire. He feels that his ability has not returned." 250 The plaintiff presently lives with his parents. He is a pensioner, without any real alternative. I think it likely that, after being awarded damages, he will move from his parents' home and live a more independent life. 251 In that context, according to the plaintiff's submission, three issues arise: · first, the plaintiff's prospects of forming a relationship, · second, the likelihood of that relationship enduring; and · thirdly, the prospects of the plaintiff, as part of that relationship, being in a position to offer countervailing services. 252 Each one of these questions is difficult and to some degree speculative. There is little evidence. Nonetheless, it is possible, especially with independence, that Mr Finch will discover a path through the maze, and will establish another life. It is possible that life may include a partner for whom he may be in a position to provide "countervailing services". 253 I believe it reasonable to discount the claim for future domestic assistance to reflect that possibility. A reasonable allowance for that item is $55,000. Future medical expenses 254 Dr Gertler, in his report of 18.6.03, included the following recommendation: (Exhibit E: p116) "... Mr Finch should in my opinion, receive counselling as part of psychiatric or psychological treatment, on a regular basis. The counselling which he received in Canberra, which was generally monthly in frequency, did assist him to ventilate his feelings and prevent his depression from becoming severe. I would expect counselling to have similar goals if it were recommenced in Armidale." 255 When cross examined, however, Dr Gertler gave the following answer, which it is convenient to repeat (cf para 195), suggesting a rather more intense regime: (T.174) "Q. Why do you give that recommendation in his case? A. Well, he had counselling in Canberra, it was monthly, and it helped him. I would expect that to help him again. The frequency I would have thought should have been more than once a month, certainly if it is a formal psychotherapy it would be at least once a week, and the duration of five years in my opinion is needed because of the fact of his real physical problems. If you like, and his situation, isolation, withdrawal, social withdrawal, regression. Q. I wasn't so much concerned about the regime so much as the view you just expressed. Subject to putting in place a proper regime, it is your view that proper psychiatric psychotherapeutic counselling would help him? A. Yes. Q. By that you would indicate that the extremities of his symptoms and complaints would be ameliorated or mollified by that ... A. I would hope." 256 The defendant accepts the original recommendation (counselling once per month for 5 years @ $210.00 per session) ($11,218.85). It was suggested that Dr Gertler's evidence (where he referred to weekly sessions) was "at that point speaking about the past". The plaintiff submitted that Dr Gertler was speaking about the plaintiff's needs for the future. His opinion when giving evidence should be preferred over his report ($48,615). 257 The answer provided by Dr Gertler is ambiguous. He does appear to be expressing surprise that Mr Finch only had monthly sessions in Canberra with Dr Raymond (during which time he was suicidal). 258 I believe a monthly consultation for 5 years is reasonable. His depression has to some degree waxed and waned. It is reasonable to believe that it will do so in the future. He will no doubt need to see his local doctor regularly to obtain prescriptions for the antidepressant medication which both parties acknowledge he will need for the rest of his life. 259 From time to time he may again need to see psychiatrists for further therapy. Taking account of all these matters, and doing the best I can on limited material, I believe a reasonable amount for this item is $20,000. Psychiatric medication 260 The plaintiff will require Aropax, an antidepressant, at a cost of $24.20 for that medication. The agreed figure is $5,426.01. Loss of future earning capacity 261 As mentioned, the plaintiff was born on 10 July 1974. He is 29 years old. Apart from casual work as a student, he has never been employed. He has not worked since the chemotherapy ended in May 1997. He has attempted work at the library of the University of New England, without success. To his sensitive ears, the library was a noisy environment which made it painful to continue working. The open office plan, the air conditioning, the banks of computers, the photocopying machine and the drink machine, contributed to that noise. He reacts to particular frequencies, which aggravate his tinnitus and induce recruitment. Mr Finch also attempted work at the office of a local politician. Again, for many of the same reasons, he was unsuccessful. 262 When cross examined on this issue, the plaintiff said this: (T57/58) "HARRISON: Q. Do you see some form of income producing activity available to you in the near future? A. Not really because I've tried through CRS a couple of options even because I thought I can't concentrate on study maybe I will not be able to complete a degree, maybe I need some ordinary clerical job, somebody to say 'do this', but I have always found that, you know, there is something there which is unsettling, which makes me unproductive, which results in me going home day after day after day with really chronic ringing in my ears. That makes it hard to get to sleep and after days and days and days of not sleeping, it becomes quite impossible and you think: Is this all worth it? Q. You have ringing in your ears whether you work or not, is that what you are saying? A. Yes, but I found things in the workplace will aggravate it to the extreme of being chronic. Q. But a silent environment in a soundproof office, if that could be arranged, doing paper or clerical work, would that be the optimum result for you in a work setting as far as you are concerned? A. It depends what I am doing. If I have to travel to work, then that is something that is going to annoy my ears anyway, going to and from work, to this so-called soundproof room. Q. Do you say in these proceedings because of your tinnitus you have absolutely no capacity for any sort of work at all? A. Not saying that I am continually trying to find something to do. I have been referred to a personal support officer with Centrelink who provides more in-depth assistance than CRS does. So I haven't given up. Q. Do you see yourself ... A. But ... Q. Do you see yourself ultimately in some form of paid employment in the future? A. To be realistic, no. Sometimes I think I will be on the disability support pension for the rest of my life." 263 I also accept that Mr Finch would like nothing more than to be able to work. I accept the plaintiff's submission commenting upon this passage, that it is quite unrealistic to expect an employer to provide a soundproof environment. 264 The plaintiff was referred to Mr Timonthy Spong, a psychologist, and a member of the Australian Society of Rehabilitation Counsellors. Mr Spong prepared a report dated 15.12.2000 (Exhibit E). His report was admitted by consent. He did not give evidence. He was said to be unwell. I draw no inference against the defendant from the fact that he was not cross examined. Mr Spong, in a foreword to his report, said this: (Exhibit E: p141) "WorkCase is mindful that a person who is the subject of a Vocational Assessment is likely to be in a vulnerable emotional state and liable to be influenced by our conclusions as to their vocational options. This is all the more so where the person is still young. In such a case, we tend to look at the person as though he or she had been referred to us for rehabilitation services. We redouble our efforts to identify suitable employment, training and rehabilitation prospects so as to provide where possible a sense of hope for the future. From considerable experience we can report that, without exception, an injured person prefers health and productive work to financial compensation. Our objective is to find at least one suitable option to work towards in order to instil hope. We have considered Mr Finch's suitability to a wide range of employment types which are often appropriate for persons with debilitating injuries and we refer to those sections of the Assessment: 6.1 Vocational options using existing skills, and 6.2 Alternative vocational options considered. Regrettably, no suitable vocational options were identified. Had Mr Finch been referred to us for rehabilitation services, we would have no option but to recommend to the insurer that the case be closed and commuted as we do not believe at this time that rehabilitation services are likely to assist in gaining employment." 265 Mr Spong interviewed Mr Finch. He reviewed the medical reports. He carefully considered his capacity and his limitations. He then considered a wide variety of jobs, which were, unfortunately, unsuitable for one reason or another. His conclusion was bleak. It was expressed in these terms: (Exhibit E: p16) "In our opinion there are no suitable vocational options available for Mr Finch. Further he is not a candidate for retraining for the reasons presented above. Appropriate future vocational options will only become available to him if his medical condition shows significant improvement. As medical experts do not anticipate he will experience a significant improvement with his current condition, it is unlikely vocational options will become available to him in the future. In my opinion, should Mr Finch attempt to secure employment he will not present positively to a potential employer. His injuries and their consequent limitations would lead to understandable concerns in the mind of a prospective employer regarding his reliability and durability as an employee. He might also be considered an occupational health and safety risk as his hearing has been compromised by his injury. His injuries have adversely affected his ability to compete with other applicants for suitable occupations. Mr Finch will be more difficult to employ in the future due to his increasing absence from the workforce which would place him at a disadvantage when competing for employment. Mr Finch's present vocational options are non-existent and are unlikely to improve in the future." 266 Various doctors made assessments of Mr Finch's capacity for work. Dr Bowers said this: (Exhibit E: p422) "I would expect Mr Finch to be able to find appropriate full time sedentary work, particularly as his depression improves. He would be able to continue with this until retirement age." 267 Dr Bowers did not identify, specifically, the type of work Mr Finch could perform. I have already remarked (supra para 225) that Dr Bowers is not an ENT specialist. His report, in my view, does not suggest a complete appreciation of the impact of tinnitus and recruitment upon Mr Finch's capacity for work. Although, unquestionably, Mr Finch has capacities, the difficulty is in finding a job in which he can use these capabilities. 268 Dr Grant Walker, neurologist, stated the following conclusion: (Exhibit 2: p30) "I do not understand why Mr Finch cannot work in some capacity, except because of psychological reasons." 269 Dr Lucire, psychiatrist, appears to accept (Exhibit 2: p43) (supra para 220) that Mr Finch was disabled, although she attributed his incapacities to other causes (chronic fatigue syndrome). She regarded him as having been disabled since 1995. I have rejected that view. 270 The defendant arranged for a vocational assessment by Associate Professor James Athanasou, a psychologist. Professor Athanasou did not interview the plaintiff. He reviewed the medical reports and the report of Mr Spong. Professor Athanasou said this: (Exhibit 2: p57) "Taking into account his stated levels of ability and disability, a search was made of classifications of occupations for work that may be suitable for someone of his age, education and ability. The occupations chosen were aimed at someone who had completed the highest level of secondary schooling but who did not have post-school qualifications and who was suited to work of a light nature not involving dexterity or agility and not involving aural acuity or noisy surroundings. Some typical occupations that could be considered, could include: Library Technician Bookkeeper General Clerk Accounting Clerk Stock and Purchasing clerk Personnel Clerk Education Aide Photographic Developer and Printer Registry and Filing Clerk It is recognised that not all these occupations would be of interest to him." 271 Such work, were it available and suitable, would be likely to yield earnings between $600 and $800 gross per week. Professor Athanasou recognised that Mr Finch's prolonged absence from the workplace and relative lack of transferable skills would put him at a disadvantage. He could expect a prolonged period of unemployment. Nonetheless, Professor Athanasou was of the opinion that Mr Finch could still cope with a restricted range of occupations, once he secured a job. 272 The plaintiff's counsel submitted that Mr Finch is effectively unemployable. Professor Athanasou's evidence, it was said, should be given no weight. He had not seen the plaintiff. He had no real appreciation of his particular difficulties, including his attempts at work. He had no understanding of hyperacusis and the difficulties that condition created for the plaintiff in the work place. 273 The defendant submitted that the plaintiff was not vocationally completely disabled. When giving evidence he presented as an articulate and intelligent young man. He should be able to cope with clerical work. It is reasonable, according to the defendant, to allow for a progressive return to work within 2 years as he recovers from depression with the aid of therapy. He will, on this submission, be back to full time employment by the beginning of the third year. 274 I regard this suggestion by the defendant, however, as completely unrealistic. The submissions made by the plaintiff, I believe, are more plausible. I have accepted that the plaintiff would like nothing more than to return to work. He misses work and the social interaction it offers. The difficulty is that sedentary work fundamentally is office work which he has attempted more than once. A modern office, with air conditioners, photocopiers, telephones and, especially, computers, is not suitable because of his particular difficulties with tinnitus and recruitment. 275 That is not to say that the plaintiff has no working capacity. He is, as the defendant has remarked, both intelligent and articulate, indeed, more so than his academic performance (including at high school) would suggest. He is a relatively young man. He has not given up. However, I believe his future lies in creating his own work environment where, by means of handwriting and experimentation with computers to find one that is less irritating, he may be able to perform some useful work. That is likely to take time and produce only a modest and irregular income. However, I believe the calculation of his loss should reflect a modest amount representing that capacity. 276 What, then, would the plaintiff have earned but for injury? I believe that the plaintiff would probably have continued teaching, supplementing his salary by private music tuition and appearance work. His loss of earning capacity should be calculated by reference to the following: · His net earnings as a school teacher to age 65, assuming a reasonable progression in seniority, supplemented by $120 gross per week (for private tuition and performances). · Less 30% representing the combination of residual earning capacity and vicissitudes. · Superannuation allowance in accordance with s16A of the Act. 277 Such an approach is conservative. Had Mr Finch remained a school teacher for life he would, no doubt, have had the prospect of promotion to headmaster, deputy head master and other senior positions, each commanding higher salaries. 278 The parties should calculate and agree, if possible, the actual loss. If agreement cannot be reached, the matter should be listed for further argument, each party preparing and exchanging written submissions as to the matters which are the subject of disagreement. Order 279 I therefore make the following orders: 1. There should be a verdict for the plaintiff, with costs. 2. The verdict should reflect these reasons, including the following amounts: Non economic loss $269,150.00 Out of pocket expenses $5,057.70 Interest on out of pocket expenses $253.43 Past economic loss To be agreed Interest on past economic loss To be agreed Future domestic assistance $55,000.00 Future medical expenses $20,000.00 Psychiatric medication $5,426.01 Loss of future earning capacity To be agreed 3. In respect of those matters which require calculation, the parties should confer and agree upon the amount in each case. If agreed, a note of that agreement should be sent to my Associate within 14 days, and judgment will be entered for the appropriate sum, plus costs. 4. In the absence of agreement, the parties should exchange written submissions within 21 days and thereafter within a further 7 days approach my Associate to relist the matter. ********** Last Modified: 02/18/2004 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.