New South Wales Supreme Court CITATION : Wighton v Arnot [2005] NSWSC 637 HEARING DATE(S) : 7-18 March, 21 March, 24 March, 29-31 March, 8 April 2005 JUDGMENT DATE : 1 July 2005 Common Law Division JURISDICTION : Professional Negligence List JUDGMENT OF : Studdert J DECISION : I find negligence to have been proved. I do not find the plaintiff to have been guilty of contributory negligence. I assess damages in the sum of $758,910.36. The issues of costs and the awarding of interest, if appropriate, are reserved, pending further submissions. A date for the purpose of hearing such submissions is to be appointed with my associate within the next seven days. CATCHWORDS : NEGLIGENCE - suspected severance of accessory nerve during surgery - nature and extent of subsequent duty of surgeon to patient - whether breach of duty. DAMAGES - assessment pursuant to Civil Liability Act 2002 - whether 5% discount extends beyond allowance for future loss of earning capacity - s 16 of Act. LEGISLATION CITED : Civil Liability Act, ss 14, 15, 16 Griffiths v Kerkemeyer (1997) 139 CLR 161 CASES CITED : Rogers v Whitaker (1992) 175 CLR 479 Van Gervan v Fenton (1991-92) 175 CLR 327 Liza-Lee Wighton (Plaintiff) PARTIES : Richard S. Arnot (Defendant) FILE NUMBER(S) : SC 20267/03 M.B. Williams SC/S. Walsh (Plaintiff) COUNSEL : K. Burke/S. Duggan (Defendant) Charlton Shearman Read (Plaintiff) SOLICITORS : Tress Cox (Defendant) LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST STUDDERT J Friday 1 July 2005 20267/03 LIZA-LEE WIGHTON v RICHARD S. ARNOT JUDGMENT 1 HIS HONOUR: The plaintiff, Liza-Lee Wighton, sues the defendant, Richard Arnot, seeking damages for negligence. The defendant has denied liability and, indeed, the contest on this issue has been a strenuous one. 2 The defendant is a general surgeon who, in 1999, was carrying on his practice in Inverell where the plaintiff lived, and continues to live. The plaintiff developed a lump on the right side of her neck in August of 1999 and the defendant operated on her on three occasions. The plaintiff's case is based upon what happened at the third of the operations and subsequently. Put shortly, it is the plaintiff's case that the defendant severed the right spinal accessory nerve at the third of the surgical procedures undertaken, and that his treatment of the plaintiff thereafter was negligent in that: (a) he failed to inform the plaintiff of his suspicion that he had severed that nerve; (b) he failed by appropriate examination to confirm that he had severed the nerve; (c) he failed to refer the plaintiff to an appropriate specialist for timely remedial surgery. 3 In response, the defendant's case was that his concerns that he may have severed the nerve were alleviated by submitting the plaintiff to an appropriate test before she was discharged from hospital and that his opportunity to further examine the plaintiff and, if need be, to further treat her or give her appropriate advice as to further treatment was frustrated when the plaintiff failed to attend for a follow-up consultation as requested by the defendant. 4 Having broadly stated the issues on liability, I propose to record some detail as to the plaintiff's background and the history of her treatment from the time that the lump was detected. The plaintiff's background 5 The plaintiff was born on 23 October 1973 and was brought up at Inverell, except between the ages of six and fifteen, when she lived at Quirindi. The plaintiff attended school until year 12 but then worked as a rouseabout for four years and after that worked in a bakery for a short period. Then, in about 1994, the plaintiff obtained employment in a nursing home at Inverell and worked there for two years. In 1996 the plaintiff undertook a traineeship as a kitchen hand in a restaurant at Inverell and was working in that restaurant when the operations were performed upon her in 1999. The plaintiff was also working at that time in a position caring for disabled adults. 6 Early in 1999 the plaintiff commenced to live with the man who became her husband on 25 March 2000. There are now two sons of that marriage, Bobby, who was born on 9 September 2000, and Riley, who was born on 15 October 2003. 7 The plaintiff said, and I accept, that she enjoyed good health before the happening of the events which have brought her to this Court. The plaintiff said she enjoyed pre-injury outdoor activities such as waterskiing and fishing and she also played indoor cricket, soccer and hockey. The plaintiff is dominantly right-handed. The development of the lump and the treatment that followed 8 The plaintiff said that she felt a lump on the right side of her neck in July 1999 and consulted her general practitioner, Dr Bentel. By the time the plaintiff had consulted Dr Bentel again in August 1999 the lump had grown and the plaintiff was referred to Dr Robilliard in Tamworth. However, he sent her back to Dr Bentel, and Dr Bentel then referred the plaintiff to Dr Arnot. Three surgical procedures followed. 9 The plaintiff was admitted to Inverell Hospital after Dr Arnot explained he would drain the mass in her neck. For this purpose, the plaintiff was admitted to Inverell Hospital and on 10 August 1999, Dr Arnot operated. His operation report reads (T 440): "Explore right cervical nodes. Dissection down through the sternomastoid muscle to a large lymph node. Blunt dissection leading to a large abscess cavity. Swab sent for culture." 10 This first procedure was uneventful and the plaintiff was discharged from hospital the same day. 11 However, the lump recurred and the plaintiff consulted Dr Arnot again on 31 August 1999. According to the plaintiff, Dr Arnot advised that the lump which had recurred was probably a haematoma and he said that this time when he operated he would put a Yates drain in to allow for more drainage. Hence the plaintiff was re-admitted to Inverell Hospital for a second operation on 1 September 1999. The operation notes reveal that following incision steps were taken to drain the recurrent right cervical abscess and a Yates drain was put in position. 12 On 6 September the drain was removed but, unfortunately, the lump came back, and the plaintiff said she noticed this on her birthday on 23 October 1999. So it was that she saw Dr Arnot again on 25 October 1999. The plaintiff was sent by Dr Arnot for a CT scan and an ultrasound, and, having seen the results, Dr Arnot concluded that the abscess had recurred. 13 On 28 October 1999 Dr Arnot advised the plaintiff that he would have to operate again to remove the whole mass. The plaintiff was admitted to the Inverell Hospital for the third time on 10 November 1999. Dr Arnot operated on her later that day. 14 The operation notes are in Dr Arnot's handwriting. He has wrongly stated the date of the operation in those notes to be 9 November 1999. The detail of the notes was read onto the transcript by the defendant in the course of his evidence (T 449-450): "Q. Can you read very slowly your handwriting in relation to operation? A. It starts, 'Right radical neck dissection to four node levels and removed', I think it says underneath there. Then it says, 'Skin crease incision excising the old scar. Well defined plane identified outside the large lymph node mass. Densely adherent to sternomastoid muscle and the internal jugular vein.' Then there is an annotation underneath it that says, 'Cat gut/black silk/diathermy haemostasis. Total node clearance (specimen contained a large cavity full of purulent fluid. Good view and preservation of digastric muscle. Internal jugular vein sternomastoid muscle.' Then in brackets underneath that, '? division of accessory nerve as it enters' - entered or enters – 'entered the sternomastoid muscle, transversed the node mass.' Then underneath that is 'Repair: Cat gut to platysma', then four slashes, 'zero prolene to skin. Suction drain'. My signature, and then postoperative instructions: '1. Monitor suction drain frequently. 2. Keep neck as still as possible.'" (Emphasis added) 15 The plaintiff said that the defendant did not inform her that he suspected he had severed the accessory nerve or any other nerve, and the plaintiff's evidence in this regard was not challenged, so I accept it. There is an issue as to what occurred between the plaintiff and the defendant in the time up to her discharge from hospital, but I will return to the detail of the evidence given by the plaintiff and by the defendant over this period when looking at the allegations of negligence. In the present context however, I do no more than record that the plaintiff was kept in hospital after this third procedure until 12 November 1999. 16 Dr Arnot recorded on the hospital notes for 12 November 1999 that the plaintiff was to see Dr Bentel concerning the stitches and was to see Dr Arnot in three weeks. It is the plaintiff's case that she did attend upon Dr Arnot following her discharge from hospital the third time, but Dr Arnot denies that there was any such consultation. 17 According to the plaintiff, following discharge from hospital the plaintiff was unable to lift her right arm and could not do the basic things for herself (T 21). Moreover, she said there was constant pain in the shoulder. So it was that the plaintiff consulted a physiotherapist, Ms Kearsey, within a week of her discharge from hospital. The plaintiff saw Dr Bentel in December 1999 and was referred for x-ray and ultrasound. Dr Bentel informed the plaintiff that she had a frozen shoulder. 18 The plaintiff became aware of her first pregnancy around Christmas 1999. 19 The plaintiff sought no further treatment for the shoulder during her pregnancy. Her evidence was that she attempted to return to work at the restaurant and found difficulty with that work before eventually ceasing at the end of January 2000. However, the plaintiff obtained work as an access officer working with disabled people. She managed to cope with this work until she was eight months pregnant. Because of the difficulties the plaintiff was experiencing with her shoulder, she said that her colleague was sympathetic and did the more physical tasks required (T 26). 20 The plaintiff said her arm had not improved by the time of her marriage in March 2000. A photograph of the plaintiff on her wedding day became part of Exhibit F. That photograph shows wasting, which I am satisfied on the evidence is consistent with the plaintiff's case that the accessory nerve had indeed been severed in the procedure on 10 November 1999. 21 In November 2000 the plaintiff consulted Dr Harding, a general practitioner, about her shoulder pain and she consulted another general practitioner, Dr Thatcher, in January 2001. Dr Thatcher prescribed Tegretol. 22 The plaintiff was referred to Dr Lennox in Tamworth and she also saw Dr Diebold, an orthopaedic surgeon, in Inverell. To Dr Diebold the plaintiff said she complained of muscle wasting and of an inability to use the right arm, as well as of her persisting pain. Dr Diebold prescribed physiotherapy which the plaintiff underwent for some months without success. 23 It was in April 2001 after the plaintiff said she dropped Bobby in the cot that she made an appointment with Dr Lennox. By the time the plaintiff saw Dr Lennox her evidence was that her right shoulder had dropped considerably and that she was experiencing persisting pain. 24 The plaintiff said that in May 2001 she decided to see Dr Arnot again. By this time Dr Arnot was practising in Lismore, and the plaintiff attended upon him there. The plaintiff told him about her shoulder pain and her reduced ability to use her arm. The plaintiff said that she had suffered chronic pain since the surgery in 1999. Dr Arnot examined her, inter alia performing the "shrug" test. He asked her to lift her right arm as high as she could. After this examination Dr Arnot said, according to the plaintiff, that he thought the plaintiff had injured her right accessory nerve. 25 Dr Arnot, in his evidence about the consultation on 31 May 2001, said that there was visible wasting on examination and that there was no sternomastoid muscle movement. By that time Dr Arnot considered a nerve repair would be a waste of time. 26 Dr Arnot agreed in cross examination (T 468) that when he saw the plaintiff on 31 May 2001 he had little difficulty in coming to a diagnosis that the spinal accessory nerve had been severed, and Dr Arnot went on to acknowledge (T 469) that he had divided the plaintiff's accessory nerve during the surgery that had been undertaken on 10 November 1999. I am satisfied that this is what had occurred. 27 I am also satisfied on the evidence in this case that it was indeed too late for remedial surgery by May 2001. 28 The plaintiff's evidence was that Dr Arnot suggested she should see Dr Syme, and the plaintiff did so. However, Dr Syme advised against surgery. 29 The plaintiff then consulted Dr Lennox for an MRI scan and after that the plaintiff saw Dr Blum in August 2001. 30 According to the plaintiff, it was Dr Blum who first informed her that her accessory nerve had been damaged in the surgery in November 1999. Dr Blum reported to the plaintiff's general practitioner on 28 August 2001 that when he saw the plaintiff he thought there was activity in the sternomastoid and in the trapezius, and he arranged for electrical studies to be undertaken which suggested that there was reinnervation in the area of the right accessory nerve. Dr Blum acknowledged in evidence in this Court that he was wrong in his examination findings in August 2001 and that the electrical studies he had arranged had provided a wrong result. 31 In any event, Dr Blum said that he could do nothing for the plaintiff in August 2001. Dr Blum considered that at the time he saw her accessory nerve reconstruction was no longer feasible "as the motor end plate is not operable after about eighteen months" (see report dated 14 February 2005). 32 I have the benefit of other opinions in this case which also lead me to conclude that it was too late for repair surgery by the time the plaintiff saw Dr Blum. Dr Lyons, whose speciality includes the area of the neck, wrote in November 2002 that "Over a period of time muscle wasting occurs and eventually after one to two years the muscle has wasted so much that nerve grafting can no longer make any difference to the outcome." 33 No further surgery has been undergone by the plaintiff, and I am satisfied that the opportunity for a successful repair was lost before the plaintiff discovered that her spinal accessory nerve had been severed in November 1999. Was the defendant negligent in his treatment of the plaintiff and in his failure to advise her what had occurred in the course of surgery? 34 The mass which the defendant had to remove from the plaintiff's neck measured approximately 3.3 x 2.4 x 2.9 cm in diameter. In evidence (T 453), the defendant said that deep in the surgical wound he encountered "quite a large structure running from the mass and apparently running between the mass and the muscle, the sternomastoid muscle." He said he could not be sure whether it was an artery or a vein or a nerve. The structure was divided by him between clips and was tied off with black silk. He went on to say this (T 453): "A. Having divided it, it looked like a nerve, and I say that because an artery or a vein - there's usually a little spurt of blood when you divide it between clips, or you can often see the actual lumen, the interior of the artery or vein, whereas a nerve has a more solid, cut-end appearance. Having divided it, I thought it was probably a nerve - sorry, I thought it was a nerve." 35 The defendant was then asked these questions and gave these answers: "HIS HONOUR: Q. So, this was quite a deliberate procedure on your part to get to the mass, was it? A. It was, absolutely so, your Honour, because I did not know what the mass was, and the patient had made it plain that she wanted whatever it was totally removed, and I could not see how I could separate the two without possibly leaving whatever this lump was behind, or part of it behind. BURKE: Q. So, at the time that you were performing the operation, did you form an opinion as to whether or not you could dissect the mass away from the structure that you suspected and, indeed, identified as a nerve at the time? A. I only identified it as a nerve once it had been divided, and my feeling at the time was that I could not separate the two without possibly leaving some of the lump behind, which could have caused further problems." 36 The plaintiff does not contend that the defendant was negligent in severing the nerve during the course of the operation. Nor is it contended that the defendant should have repaired the nerve during the surgery on 10 November 1999. 37 Evidence was introduced through Dr Blum that the nerve ends should have been tagged, and there was evidence that the nerve could have been repaired at the time of the primary procedure. However, Mr Williams made it plain that the plaintiff was not advancing a case that the defendant was negligent either in severing the nerve or in failing to tag the nerve ends or in failing to repair the severed nerve. 38 I accept that repair of a severed accessory nerve was outside the scope of the defendant's speciality and the exercise of due care on his part did not require of him that he endeavour to repair the severed nerve himself either on the day it was severed or subsequently. What the exercise of due care required of the defendant was that he take reasonable steps to determine whether it was the accessory nerve which had been severed, and that he alert the plaintiff as to what had occurred. 39 It is clear from the surgical notes which the defendant made immediately after surgery that he at least suspected that the nerve he had divided was the accessory nerve. His note conveys this: "? division of accessory nerve." When asked (T 454) why he had put a query in the note, the doctor responded: "I put a query in because it was a large nerve. It was below the area where the accessory nerve normally lies. It was below and more to the front, more anterior than to where one would normally expect the accessory nerve to lie. I was unsure as to - I purely put that in as I thought it might be, but it was only a possibility at that stage. I thought it may have been, alternatively, one of the cutaneous nerves that run through the area in that sort of position." 40 Plainly, it was the defendant's duty to seek to determine whether his suspicion at the time of surgery was well founded. What ought he to have done following the surgery in endeavouring to find out whether he had severed the plaintiff's accessory nerve? This issue was addressed by experts whose evidence was introduced in this case: (a) Dr Lyons in his report dated 8 November 2004 said there were simple clinical bedside tests that would have established the severance: "…in particular asking the patient to raise her arm over her head and palpating the trapezius muscle whilst attempting active movement would have identified paraesis of the trapezius muscle, this is because active muscle contraction is dependent on an intact neural supply and if the nerve was injured no such active contraction is identifiable. The other clinical test of shrugging the shoulders can sometimes be deceptive as the patient can sometimes simulate shoulder shrugging by utilization of other muscles to assist with the shoulder shrugging, even though these muscles are not the primary muscles involved in this type of movement. Performance of EMG early in recovery period may also have identified the injury." (b) Professor Sonnabend (T 208) identified the ability to shrug the shoulders strongly as "the simplest and crudest" test, pointing to its deficiencies in these answers: "Q. What's the shortfall in that test that leads you to describe it as crude? A. Well, it is crude in the first instance because pain can limit it. It is crude in the sense that it has to be a full strong shrug because there are other muscles that can produce an apparent shrug of some weakness, so that you would need to shrug - it needs to be tested fairly vigorously, the shrug needs to be tested vigorously. Q. And that's precluded to a degree by immediate postoperative pain? A. In the first few days or maybe weeks, yes." He was then asked (T 209): "Q. If you have got your accessory nerve sliced, can you put your arm above your head like that? A. No." (c) Dr Blum said (T 297) that division of the accessory nerve would affect the ability to shrug and the ability to raise the arm above 90° from the horizontal. (d) Dr Hodge said (T 500) that if the accessory nerve was divided "not only was there a problem with being able to shrug the shoulders but also there is a problem with being able to elevate the shoulder", so a clinical test he used was to ask the patient to put the hand behind the head. He went on to say (T 501-502): "My universal test is that I ask the patient to shrug the shoulders and that is the universal test that people accept as being the test of accessory nerve function." And then (T 502): "Q. Is this foolproof, this shrug the shoulders test? A. No. The other test that makes it, that you will generally - in the immediate postoperative period you probably would ask the patient only to shrug their shoulders. It would only be if you had a high degree of suspicion that you would do the other clinical test, which is that test like that. Q. Indicating raising the arm to the back of the head. A. Yes." (e) Dr McKenzie (T 538-539) gave evidence as follows: "Q. As at November 1994, what bedside test would you have down in circumstances where you had performed neck surgery and suspected that you had severed the spinal accessory nerve? A. In the early stages postoperatively, I would ask the patient to shrug their shoulders, often with my hands on their shoulders to feel the trapezius muscle contracting, and also to offer some resistance that they could push against, and I would also test for weakness of the sternomastoid muscle, which is the other muscle innervated by the spinal accessory nerve, and you do that by placing your hand against the patient's cheek and asking them to press against it from the opposite side. At a later stage, you would also see some evidence of wasting of the muscles, and possibly drooping of the shoulder; possibly." However, he went on to say he probably would not have done any test in the acute post operative period (T 539): "Q. Can we go back to that? What would you do in the acute postoperative period? A. I probably wouldn't do anything, for the simple reason that the patient is going to have a lot of pain in the neck anyway, and it will be quite difficult to interpret the findings. It is pretty unlikely, after you have had significant surgery to the neck, that you will be able to really raise your shoulders to any great extent, I would think. Q. When would you perform, after the initial postoperative period, the test that you have just made reference to? A. Well, I guess when I next saw them postoperatively, which would probably be a few weeks postoperatively; two or three weeks." (f) The plaintiff's evidence (T 34-35), not challenged on this point, was that when she saw Dr Arnot in Lismore in May 2001 he had her shrug her shoulders and raise her right arm: "WILLIAMS: Q. When you went to see Dr Arnot on 31 May 2001, did he conduct any examination or tests upon you? A. Yes he did. Q. What happened? A. You want me to talk about what he did? Q. Yes? A. Okay, he did some, like got me to press against his hands. Q. With your? A. With my chin to push against his hands on either side and he was looking like he was touching there (indicated). Q. He was touching in the area where you had had the incision? A. At the front, well, no. It was, it was in front of the incision. Q. In front of the actual incision? A. Yes. Q. And in that area on the right hand side of your throat? A. Yes. And he got me to take my shirt off and asked me to shrug my shoulders and then he come over, back over to me, and then he got me to lift my right arm, my right arm out and then asked me to lift it as high as I could and then I got to where I could lift it. Q. What level was that? A. It was a little bit higher than where my arm (indicated)-- Q. You are indicating with your left arm a position just a little above parallel to the ground? A. Yes. Then he raised the arm himself." 41 That evidence conveys that certainly as at May 2001 Dr Arnot considered the tests he conducted were appropriate to determine whether or not the accessory nerve was functioning. 42 Notwithstanding what Dr McKenzie said about postponing the performance of the shrug test, the evidence I have reviewed persuades me that the exercise of due care required the defendant to perform at least the shrug test post operatively in the period before the plaintiff was discharged from hospital. 43 What did the defendant do following the surgery to identify the nerve he had severed? The answer to this question involves consideration of the evidence of the plaintiff and of her husband as well as the evidence of the defendant. 44 The evidence satisfies me that the defendant saw the plaintiff four times after the surgery and prior to her discharge from hospital two days later. The first of these occasions was on the evening of 10 November 1999; the second and third occasions were during the course of the following day; and the fourth occasion was shortly prior to the discharge of the plaintiff from hospital on 12 November 1999. 45 The plaintiff gave evidence that after she came out of the anaesthetic following the operation she was experiencing much pain up the back of her arm and across into her neck, and later on the afternoon realised that she was unable to lift her right arm up. She said she mentioned this to her husband and that her husband advised her to be sure to tell Dr Arnot about her shoulder. When Dr Arnot did attend upon her on the evening following the operation, the plaintiff said he wanted to check the nerve in her face and asked her to smile. The plaintiff said that she told Dr Arnot about the difficulty with her shoulder but that he replied he was more concerned about her neck. She said that Dr Arnot did not ask her to shrug her shoulders. 46 The plaintiff said that she saw the defendant again on the day after the surgery and complained to him of "really bad pain" in her shoulder. She also told him that she could not lift her arm up. According to the plaintiff, the defendant performed no test on her in response to that complaint, and in particular he did not ask her to attempt to raise her arm. The plaintiff said that her husband was with her on that second visit by Dr Arnot. Whilst the hospital notes record that there was a second visit from Dr Arnot on 11 November, the plaintiff gave no evidence about it. 47 The plaintiff said that Dr Arnot attended on her again on the morning that she was discharged from hospital. He examined her neck and told her "everything was going well with it". Again the plaintiff said she told him she was having trouble dressing because of trouble lifting her arm, but the doctor did not acknowledge this complaint. The plaintiff said that Dr Arnot did not perform any physical test on her. 48 The plaintiff's account of the defendant's attendances upon her in hospital was supported by the evidence of her husband. Mr Wighton said that when the plaintiff was brought back to the ward after the surgery she complained to him that her shoulder was very sore and that she was unable to lift it, and he urged the plaintiff to tell the defendant about her shoulder. According to Mr Wighton, he was present during the defendant's attendance upon the plaintiff. The defendant said he was not worried about the plaintiff's shoulder, he was concerned about her face and to see whether she could smile. Dr Arnot touched the plaintiff's face and made her smile and, according to Mr Wighton, he lifted the side of her cheek up. 49 Mr Wighton said that the plaintiff asked him to help her in the shower that night because her shoulder was very sore and she did not feel she could wash herself properly unaided. Mr Wighton complied with his wife's request. Mr Wighton said that he recalled his wife explaining to a nurse why it was that she wanted her husband to help her shower and that she told the nurse that her shoulder was very sore and that she could not lift her arm. The nursing notes do not record this complaint, or, indeed, any complaint about inability to lift the arm following surgery and up to the time of discharge. 50 Returning to Mr Wighton's evidence, he said he was at the hospital on 11 November and was present when Dr Arnot attended upon his wife on one occasion that day. Mr Wighton said again his wife complained about her shoulder and again Dr Arnot said he was not worried about her shoulder but was more worried about her facial nerves. Mr Wighton's evidence was that on the occasion of neither the visit on 10 November nor the visit on 11 November did the defendant ask the plaintiff to attempt to raise her arm (T 538). According to Mr Wighton, Dr Arnot checked the plaintiff's smile and the side of her face, but performed no other test (T 552). 51 The defendant gave evidence (T 455) that he recalled visiting the plaintiff in the ward after the surgery on 10 November 1999. He said his practice was to ask visitors and family members to leave the screened off area around the bed whilst he was conducting any examination or discussion with the patient, but he could not recollect whether that practice was followed on this occasion. He said he had a very indistinct recollection of speaking to the plaintiff on 10 November, and went on to say (at T 455): "…I have a recollection and I think it was on that occasion, or it may have been one of the subsequent ones, of testing for the function of her trapezius muscle." When asked how he did that, the defendant said: "I asked her to shrug her shoulders, but I cannot tell you - not on oath - I cannot be totally certain whether it was on that occasion or one of the other visits." 52 And then (T 456): "Q. Are you able to say, after you had asked the plaintiff to shrug her shoulders, be it on that hospital bedside visit or a later one, as to whether the plaintiff did shrug her shoulders? A. I was satisfied that she could shrug both her shoulders, apparently equally, and I was reassured, following that examination, that the nerve that I had divided in the neck probably was not the spinal accessory nerve. Q. Was that the only test you performed at the bedside, either on that day, or the subsequent bedside visit? A. I think that it was. I don't recollect any other test at that stage. Q. Do you remember having any conversation with the plaintiff, or she having a conversation with you, when you visited her by the bedside on 10 November 1999? A. I'm sure we did have a conversation, but I cannot recollect any detail of it." 53 When asked, the doctor said that he usually kept notes of examinations in hospital but this was not his invariable practice. He said he often relied on the nursing notes. I observe that the hospital records do not evidence any shrug test being carried out at any time prior to the plaintiff's discharge from hospital. 54 Dr Arnot had no recollection of the plaintiff complaining of pain other than in the operation area on the side of the neck and he had no recollection of any examination he might have performed on the plaintiff on the day of her discharge. Dr Arnot had no specific recollection concerning any attendances upon the plaintiff on 11 November 1999. 55 According to Dr Arnot, whenever it was that he asked the plaintiff to perform the shrug test he was satisfied with the response and was reassured that the nerve he had divided probably was not the spinal accessory nerve (T 456). 56 Was a shrug test performed by the defendant before the plaintiff left hospital? The defendant was relying solely upon his recollection that he had done so, and I found his evidence about this unconvincing. He was unable to be specific about which visit it was on which the test was carried out and there is no hospital note about it. In view of his suspicion that he had severed the accessory nerve, the shrug test result would have been very significant and hence it would have been an important matter to note in the hospital records. Yet there was no note. 57 The defendant was interrogated in relation to his attendances upon the plaintiff prior to her discharge from hospital. In relation to his visits on 11 and 12 November 1999 he was asked to specify inter alia the examinations performed by him and his findings on examination. The defendant's response was that he had no recollection over and above the entries in the hospital records (see interrogatories 24 and 27). I have already observed that the hospital records contain no note of the performance of any shrug test or of relevant examinations. 58 In his cross examination (T 475), Dr Arnot was unable to say if he examined the plaintiff with regard to the shrug test on 11 November or 12 November. Dr Arnot said as far as he could recollect he only asked the plaintiff to shrug her shoulders on the one occasion (T 486), but that evidence conflicts with the evidence of the plaintiff and her husband which I have reviewed above. I shall consider more closely the submissions made by Ms Burke as to the credibility of the plaintiff and her husband when reviewing the conflicting evidence concerning the issue of the post discharge consultation, but I prefer the evidence of the plaintiff and of her husband to that of the defendant on the issue of whether a shrug test was carried out whilst the plaintiff remained in hospital. I find that no such test was performed. 59 If, contrary to the finding I have made, the defendant did perform a single shrug test, then I consider that such a test would have been inadequate. 60 Dr Arnot agreed that if he had conducted a single shrug test on the first post operative visit there was the potential for misdiagnosis (T 631) and there is other evidence to the like effect: (a) I refer to the evidence of Dr McKenzie (T 544): "Q. In your report of 5 March you talked about using the shrug test in the acute phase, but I think you have explained to us that when you say acute, for example, and then immediate post surgical scenario it is not going to be practicable to do it; is that right? A. Perhaps not fair to the patient, yes. Q. Would that be the case depending on the degree of discomfort for a period of days? A. Well, I think the only purpose of doing an investigation in clinical practice or doing a test is if the outcome of that test or investigation is going to influence what you do. Now, in this case the surgeon has a suspicion that he has cut the accessory nerve, he is unable to do anything about it at the time because of the inflammatory response in the neck, so it is not going to be relevant as to just what's going on there in the immediate postoperative period, so I would think that to do any testing of that is not going to alter things at that stage. But when he saw her postoperatively, then would be an appropriate time, I would think, to do that, when the pain had settled, postoperative pain and so on had settled. Q. I get the impression, doctor, and correct me if I am wrong, that your view is that in this scenario doing the shrug test on the first day or the day of the operation is not indicated and probably useless? A. I think not indicated and probably inappropriate, yes. Q. Would that apply, say for a couple of days at least thereafter? A. I think so, and also to the fact that it is not going to alter, you know, whether the muscle is working or not it is not going to alter at that stage what you do. Q. Nonetheless, I suppose, doctor, subject to the consideration of how much pain it might occasion the patient, in the acute phase you could, if you were sufficiently concerned about severance of the accessory nerve, test whether the patient could activate the trapezius muscle by seeing if she could raise the arm above shoulder level as I am indicating now, subject to pain levels? A. You could do that. I don't think it gives you any more information than shrugging the shoulders, especially as there are other muscles which also help you to raise the arm. Q. If you have got a completely severed accessory nerve you can't activate your trapezius muscle, can you? A. Exactly. Q. And if you can't activate your trapezius muscle you can't do that, for example, put your arm straight up in the air, can you? A. No, but it would be very difficult to interpret if there was pain associated with it because there are other muscles which also tend to rotate the scapula, which is the movement that the trapezius does." (b) Dr Blum thought the shrug test, if administered on the day of the surgery, could produce a false result (T 296), and then in response to the following questions gave the following answers (T 296): "HIS HONOUR: Q. Do you regard it as reasonable, so I can follow this, that there would have been no bedside test performed on day 2 and day 3 in that scenario? A. No, your Honour. BURKE: Q. It is reasonable, is it not, that the bedside tests may not necessarily confirm in the first couple of days or even a week or two postoperatively whether or not the suspicion of severing the spinal accessory nerve is confirmed? A. I think a week or two is too long. I would have thought that certainly by the third day if she was tested there would be signs that the nerve was unwell." (c) Dr Hodge said that six hours after surgery (about the time of Dr Arnot's first post operative visit) he would have performed the shrug test (T 515), but he would have repeated it the next day and lifted the plaintiff's arm up (T 516). 61 The evidence of Dr McKenzie, Dr Blum, and Dr Hodge just referred to, coupled with the defendant's recognition that a single shrug test performed on the first day post operatively could mislead, persuades me that even if, contrary to the finding I have made, the defendant did perform a single shrug test, this would not have sufficed to discharge the duty the defendant owed to the plaintiff to determine whether his suspicion concerning the severance of the nerve was ill founded or not. 62 I add that I am satisfied on the balance of probabilities that arm abduction examination before the plaintiff left hospital would have established that the nerve had been severed: (i) Dr Lyons was of the opinion that abduction of the arm would have provided a more definitive answer than the shrug test (T 122); (ii) Dr Blum was of the opinion that the plaintiff would have been unable to raise her right arm above 90° from the horizontal (T 297); (iii) Dr Hodge considered that the plaintiff would have been unable to lift the right arm above the shoulder with about three centimetres of nerve severed (T 519). 63 I find on the balance of probabilities that had the shrug test been performed on two occasions before the plaintiff left hospital the severance of the accessory nerve would have been diagnosed. Moreover, had the defendant been in doubt about the results of that test, the severance would have been confirmed by the arm raise test, a test which should have been carried out in hospital as well. That test the defendant did use when the plaintiff consulted him in May 2001 (para 24 above). 64 Further, it seems to me that at the time of discharge, even if by that time the defendant did not know it was the accessory nerve he had severed, the plaintiff had a right to know, and the defendant had a duty to inform her, that he had severed a nerve which he suspected was the accessory nerve. Dr Lyons, in his report dated 29 August 2003, expressed the view that the plaintiff should have been advised of the suspected severance "straight after the surgery", but if not "certainly…at the first signs of any problem with the shoulder" (see also T 116). Accepting as I do the plaintiff's evidence about what occurred in hospital, the need to inform her arose by the time of her discharge. 65 Dr McKenzie gave evidence concerning informing the patient if the accessory nerve had been divided or was suspected as having been divided. I refer to his evidence at T 550: "Q. In circumstances where a general surgeon has divided the spinal accessory nerve of 2 to 3 centimetres in length, what is the general surgeon's appropriate standard of care with respect to informing the plaintiff that that has occurred? A. I think that you would tell the patient. She has already been warned about the possibility of damage to or division to the accessory nerve in the preoperative visit, and you would say, look, this nerve was intimately bound up with the lump we had to remove. It couldn't be separated safely from the lump. It was necessary to remove the lump to cure the condition and so we had to remove a section of the nerve also, and then go on to say that this is unlikely to cause you any great problem, it is part and parcel of the radical operation of neck dissection anyway or has been in the past, and we will see how it's looking when we see you in follow up… Q. …My previous question was about actually having knowledge that you have severed a spinal accessory nerve. This question, if a general surgeon suspects that he has severed the accessory nerve and is either consciously or subconsciously aware that if he has in fact done that approximately 2 to 3 centimetres of nerve has been excised, is it your view that the doctor ought to inform the patient postoperatively? A. I would do that. 66 Then, at T 551: "Q. In informing the patient postoperatively where you suspected that you had severed the spinal accessory nerve, would you do that at the bedside time or would you do that in follow up after you had taken steps to ascertain whether or not the plaintiff had symptoms consistent with severance of the spinal accessory nerve? A. I think that's very difficult to answer because much of the information that you give to patients depends upon how the situation is evolving at the time. If you sense that the patient is wanting to have that information then I would certainly give it at the time. If not, then I think it would be appropriate to do it at the next visit, if there was a problem diagnosed. Some patients don't ever seem to want to know anything, many patients want to know lots of things. If the patient wants to know then I think you give them the information." 67 Dr McKenzie was later asked the following questions and gave the following answers: "HIS HONOUR: Q. Would you consider it appropriate that the doctor informed the patient of his suspicion at a time prior to the follow up consultation stressing the importance of that consultation in the circumstances? A. I think usually we assume that people will turn up for follow up, I mean particularly patients who have had a significant operation. You would assume they would want to turn up for follow up, so it probably wouldn't have entered his head. Q. Assuming a suspicion is entertained that he may have severed this nerve, whether he has or whether he hasn't, I take it from what you have said it would be better assessed at some time after discharge from hospital? A. Yes. Q. So that the post discharge consultation would be an important one-- A. Important, yes. Q. --or not? Do you think it would be desirable or not for the doctor to express that to the patient? A. Well, obviously, in hindsight, it would have been worthwhile. Q. I am not asking you to look at it in hindsight? A. Yes. Q. I am asking you to look at it as a general surgeon, who has this hypothetical problem to consider, prospectively? A. Well, I think we would stress to the patient they ought to come back and see me at the appointed time." 68 I conclude then that Dr Arnot failed to exercise due care in the period between the completion of the surgery on 10 November 1999 and the plaintiff's discharge from hospital on 12 November 1999 in failing to carry out appropriate examination of the plaintiff in order to address the suspicion he entertained at surgery that he may have divided the accessory nerve. I also conclude that there was a breach of duty on the doctor's part in failing to inform the plaintiff of the severance of a nerve at surgery and his suspicion that the nerve severed may have been the accessory nerve. 69 Dr Arnot said that he did not tell the plaintiff in hospital about the severance of the nerve because of her emotional state and because it was only a possibility that he had severed this nerve, and that possibility he considered to be "probably wrong" because of his examination following surgery (T 476). Acceptance of the doctor's explanation for not alerting the plaintiff to what occurred depends upon acceptance that the shrug test was performed. Since I am not persuaded that it was, I do not find the defendant's explanation for not telling the plaintiff about the division of the nerve to be an acceptable explanation. 70 I find that the plaintiff should have been informed of the severance no later than the time she was being informed that she should arrange a consultation in three weeks time, thus stressing for her the importance of the follow up consultation. 71 As it was, the plaintiff was not informed that a nerve which the doctor suspected to have been the accessory nerve was severed and neither was the plaintiff's general practitioner, Dr Bentel. Dr Bentel was eventually sent a copy of the discharge summary from the hospital, which summary was signed by Dr Arnot. The summary is dated 16 November 1999 but a stamp on the copy received by Dr Bentel bears date 10 December 1999. Dr Arnot gave evidence as to the manner in which the discharge summary was prepared. He said that the procedure was that he would dictate the discharge summary on an operating day, probably in the week following the surgery undertaken. A further week would elapse before the summary was typed and ready for his signature. His evidence was that in the present case he probably signed the discharge summary bearing date 16 November the week following. Clearly, Dr Bentel would not have had the summary in time for her examination of the plaintiff on 18 November 1999. Even if Dr Bentel had had that summary available, that doctor would not have been alerted to the possibility that the accessory nerve had been cut because there is no mention of that event in the discharge summary. 72 Dr Arnot was cross examined on the issue as to why there was no mention in the discharge summary about the possible severance of the accessory nerve. There was an error in the first draft of the discharge summary because it contained a paragraph which clearly did not relate to the plaintiff at all. That document was not signed and the discharge summary had to be retyped. However, the doctor was unable to explain why he did not insert in the summary a reference to his suspicion concerning the division of the accessory nerve. I do not propose to record in this judgment all the cross examination that bore upon this question of the lack of any reference to the accessory nerve in the discharge summary, but I must say, to my mind, that Dr Arnot afforded no satisfactory explanation for the omission of this matter. Had Dr Bentel been provided with a discharge summary that referred to the possible division, this may have prompted Dr Bentel to follow the issue up and at least to tell the plaintiff of the suspicion. That did not occur and, as I have already recorded, it was not until the plaintiff saw Dr Blum that she became aware her accessory nerve had been damaged in the surgery in November 1999. 73 I accept, of course, that the plaintiff was advised by Dr Arnot that she should attend for a follow-up consultation in three weeks time. I accept that the plaintiff was so advised by Dr Arnot prior to her discharge from hospital on 12 November 1999, and in so finding I am mindful of the note which Dr Arnot made in the hospital records on that date to that effect. 74 Did the plaintiff attend for that follow-up consultation? Whilst Dr Arnot noted the hospital record: "See me 3 weeks", it was left to the plaintiff to arrange an appointment. There was no system then in place at Dr Arnot's rooms for one of the receptionists there to arrange for the patient's attendance. Dr Arnot has no recollection of any attendance by the plaintiff or of seeing her between the date of her discharge and the appointment made by her in May 2001. Indeed, his evidence went further; the doctor denied that the plaintiff attended as she claimed. 75 The position at the doctor's rooms at the end of 1999 was that a computer system was in the process of replacing a system of handwritten recording. There was no diary being maintained in which appointments were being recorded. Relevant records consisted of those generated through the computer and also handwritten notes being kept by Dr Arnot. I am satisfied that these records generated by the computer and by Dr Arnot himself contain no record relating to any attendance by the plaintiff upon Dr Arnot in November or December 1999. 76 Ms Watkins was the practice manager in November 1999 and she gave evidence of the procedure upon the introduction of the computer records. Ms Watkins explained how when a patient made an appointment this was recorded by the computer and once recorded the entry was not supposed to be deleted. If there was a non-attendance, there would be a note that the patient failed to attend. The only way in which the record of an appointment once recorded could be deleted would be by pushing the delete button, and this was not supposed to occur. 77 The computer record for the plaintiff contained no reference to any appointment with Dr Arnot after 12 November 1999. Moreover, Exhibit 7 records a list of attendances from August 1999 onwards in respect of which charges were made, and there is no record of any account rendered for a consultation by Dr Arnot after 12 November 1999. 78 As to this latter matter, the plaintiff said that no charge was made for her attendance at the consultation she claims occurred in Inverell. Neither did the defendant charge the plaintiff for the consultation in May 2001. The plaintiff's evidence to the effect that she was not charged for the attendance in May 2001 is consistent with her medical services claims history, as recorded in Exhibit P. 79 The plaintiff said that she did attend Dr Arnot's rooms some two to three weeks after her discharge from hospital. Her evidence was that her grandmother drove her there. The plaintiff described the occasion and described the room in which the consultation occurred. The plaintiff said that the defendant looked closely at her neck. She said there was a patient in another room behind the one in which she was seen and that patient had "blotchy gauze" on his face. The plaintiff said she told Dr Arnot about her shoulder, the pain she was experiencing and that it was not improving. According to the plaintiff, Dr Arnot did not examine the shoulder. After the consultation the plaintiff said that she approached the receptionist downstairs, a person known to her as "Jackie", and offered to make payment. However, the receptionist said no payment was required "because it was a post op". The plaintiff was strenuously cross examined on that account but did not resile from her evidence. 80 Mrs Carter gave evidence which supported the evidence given by her granddaughter. Mrs Carter said that the plaintiff asked her to drive the plaintiff to see Dr Arnot because her neck and her shoulder were too painful for her to drive herself. Mrs Carter said she drove the plaintiff to the doctor's surgery and went upstairs to the waiting room. Mrs Carter said that the plaintiff came out very upset and, upon inquiry as to what was wrong, said that Dr Arnot did not take any notice of her shoulder pain (T 345). Like her granddaughter, Mrs Carter was strenuously cross examined but denied that she had concocted a story with the plaintiff. 81 The plaintiff's husband gave evidence that although he did not go to the defendant's surgery with his wife, he rang her to "see how she got on" at the consultation (T 565). According to Mr Wighton, his wife said she did not want to talk about it over the phone, but that evening the plaintiff complained that Dr Arnot "blew her off about her shoulder". The plaintiff conveyed to her husband, according to his version of the conversation, that the defendant was not concerned about her arm or shoulder. 82 It is difficult to understand why the plaintiff would not have gone back to see Dr Arnot after she had been discharged from hospital. The plaintiff did see Dr Bentel, as she had been requested to do, and, because of the condition of her arm and shoulder, she attended on a physiotherapist, Ms Kearsey, within a week from the time that she left hospital. No reason was suggested in the course of evidence such as might explain why the plaintiff would have ignored Dr Arnot's direction to attend his rooms. For his part, Dr Arnot could advance no reason as to why the plaintiff would have failed to do so (T 488). On the contrary, there was good reason for her to attend upon the defendant because of the problems I am satisfied the plaintiff was experiencing with her arm and shoulder from the time she left hospital. On the other hand of course, why would Dr Arnot not examine the plaintiff's shoulder if indeed the plaintiff attended complaining about pain and loss of movement in the shoulder? 83 Dr Arnot gave evidence that his practice in Inverell was a busy one and that he saw up to twenty-five patients in his rooms on a non-operating day. Dr Arnot acknowledged that as a general rule, unaided by records, he would not recollect whether he saw a particular patient (T 491), but the defendant said it was "totally unimaginable" that he would have interrupted his attendance on a patient undergoing a skin cancer procedure in order to see a patient like the plaintiff. He disagreed with the plaintiff's evidence about the post operative consultation at St Elmo's Chambers. 84 Dr Arnot had not completed his evidence when the Court adjourned on 16 March 2005. On 17 March 2005 I raised with counsel some features of the evidence given by Dr Arnot up to that point in his evidence (T 496). Dr Arnot resumed his evidence on 18 March 2005 and, cross examination having concluded, counsel for the defendant sought an adjournment to obtain instructions concerning the matters I have raised the previous day. After the adjournment that followed, counsel informed the Court that there would be no re-examination. I certainly do not intend to convey any criticism of counsel for what occurred, but it seems to me that it is appropriate to infer that the defendant was not in a position to give evidence such as would have advanced his case on any of the unanswered matters to which I had drawn attention on the preceding day. 85 A matter put forward in support of the submission that the plaintiff was not to be believed in her version of events concerning Dr Arnot, was that the plaintiff had earlier lied to Dr Blum when she wrote to him seeking his assistance for her ongoing problems on 9 July 2001 (Exhibit 1). In that letter the plaintiff wrote: "…I want to let you know that I am not chasing a law suit or damages of any kind…" 86 In cross examination (T 254), the plaintiff admitted that when she wrote that letter she had already engaged solicitors and that she lied to Dr Blum in that letter. The plaintiff was then asked these questions and gave these answers: "HIS HONOUR: Q. Why did you lie to Dr Blum when you wrote to him? A. I wanted him to see me. I didn't think he would see me if I told him. I wanted an - I don't know whether the words are an unbiased, I wanted him to look after me for medical reasons. I didn't want him to be seeing me like, oh, I just wanted - and I mean I was honest with him at the consultation about that." 87 In re examination, further evidence in point emerged (T 255): "WILLIAMS: Q. Mrs Wighton, you've made no bones about the fact that you were untruthful in your letter to Dr Blum about litigation. At the time you wrote that had you seen Charlton Shearman? A. No, I hadn't. Q. Had Abbott Pardy & Jenkins done anything beyond your having first consulted them? A. No. HIS HONOUR: Q. They were still acting for you, were they? A. Yes. WILLIAMS: Q. Why did you put that in the letter? A. I didn't think that Dr Blum would have seen me. Q. Why did you think that? A. I had seen another doctor. Q. Who was that? A. It was Dr Lennox, and he made quite a few passing comments that doctors would run from this because of the chance of negligence and that if they knew that I had even inquired or was going to see anyone that they probably wouldn't agree to see me. (Miss Burke sought that the answer be struck out; Allowed to stand.) Q. As a result of what you had been told by Dr Lennox, what did you perceive might have been Dr Blum's reaction to your request for assistance if he knew you were in the process of suing a fellow surgeon? A. Well, especially being him, I wouldn't have thought he would have seen me." 88 It was by no means commendable behaviour on the part of the plaintiff in seeking to deceive Dr Blum but I accept her explanation for having done so as being a truthful explanation. 89 I had the advantage of observing closely as the various witnesses gave their evidence. Ultimately, I am persuaded on the balance of probabilities that the evidence advanced in the plaintiff's case about the post discharge consultation in the defendant's rooms was truthful evidence. I have come to that conclusion notwithstanding the evidence given by the defendant and the absence of any record of the attendance at the defendant's rooms. The dependability of the computer generated record was, of course, dependent upon human input, and in November 1999 the procedure of record keeping was at a change-over stage. It seems to me that the absence of a record may be explained by human error. I find it more probable than not, having assessed the evidence given by the plaintiff, her husband and her grandmother that the plaintiff did attend as she claimed. 90 I am satisfied that had due care been taken by the defendant in examining the plaintiff upon a visit two to three weeks after discharge from hospital, that examination would have revealed that the accessory nerve had indeed been severed. The evidence is compelling that there would have been clinical signs of severance of the nerve two weeks after surgery. I am satisfied by the medical evidence in this case that the severance would have been established by due application of the shrug test. I am also satisfied that if the accessory nerve had been severed, it would not have been possible for the plaintiff to raise her arm above her head or to the back of it. 91 It seems to me that even if the plaintiff had failed to attend upon the defendant as advised, more would have been required of the defendant in discharging his duty of care to the plaintiff than the mere giving of advice to her that she should attend his rooms for follow-up. 92 There was no system in place in the defendant's practice to follow up a patient who failed to attend for a consultation. Once the defendant severed a nerve during the operation, suspecting that this was the accessory nerve, the exercise of due care required of him that he do more than carry out one shrug test at some time before the plaintiff was discharged from hospital. The performance of that one test in hospital would have been insufficient to base a conclusion that the accessory nerve was intact. I referred earlier to the evidence of Dr Hodge and of Dr McKenzie which supports this conclusion, and which evidence I accept. 93 Dr Lyons, specialist ear, nose, throat, head and neck surgeon, was of the opinion that if the plaintiff did fail to make an appointment for a follow-up examination, because the defendant thought he had cut the accessory nerve proper standards of practice required him to follow-up the patient. Dr Lyons gave this evidence (T 123): "Q. If, as alleged, the plaintiff, in fact, just did not turn up following this procedure, where he thought he had cut the accessory nerve, what should the requirements of proper standards of practice have required of this general surgeon? A. I believe the onus is on the surgeon to, if he suspects that the nerve, a major nerve, has been divided, that he follow up the patient and ensure that the patient attends for follow up." 94 I accept what Dr Lyons said, and I am satisfied on the evidence that the defendant did not take any step to have the plaintiff attend for examination at any time after he asked her to do so before she left hospital. 95 Dr Blum was also of the opinion that there was an obligation upon the surgeon who suspected he had sectioned a nerve to inquire why the patient did not attend a follow-up consultation (T 269-270). Dr Blum gave evidence of a procedure in place at the Prince of Wales Hospital under which the registrar was required to find out why a patient failed to attend for follow-up. 96 In the much cited decision in Rogers v Whitaker (1992) 175 CLR 479 at 483 Mason CJ, Brennan, Dawson, Toohey and McHugh JJ said in their joint judgment concerning the duty of care owed by a medical practitioner: "The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a 'single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment' (Sidaway v Governors of Bethlem Royal Hospital (1985) AC 871); it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case (Gover v South Australia (1985) 39 SASR 543). It is, of course, necessary to give content to the duty in the given case." 97 It seems to me that, giving content to the duty in the present case, it extended, consistently with the evidence of Dr Lyons and Dr Blum, to the imposition of a requirement upon the defendant that he not only advise the plaintiff to attend for a follow-up consultation, but that he adopt reasonable measures to ensure that the plaintiff did attend. 98 Here I have found that the plaintiff attended as advised, and in the circumstances I have found that the defendant was in breach of his duty of care owed to the plaintiff in the various respects I have above expressed and which I will now restate in summary form. The negligence of the defendant 99 For the reasons above stated, I find the defendant to have been negligent in the following respects: (i) in the failure to carry out sufficient post operative examinations to determine whether the right spinal accessory nerve had been severed; (ii) in the failure to advise the plaintiff prior to her discharge from hospital of the suspected severance of that nerve; (iii) in the failure to carry out appropriate examinations of the plaintiff at the post discharge consultation such as would have established the severance of the accessory nerve; (iv) in the failure to advise the plaintiff of the need for surgical repair of that nerve by a suitably qualified specialist. Contributory negligence 100 In amended Grounds of Defence filed on 11 March 2005 the defendant pleaded contributory negligence, particulars whereof are as follows: (a) failing to take heed of the defendant's advice to consult him for a post operative review in three weeks time; (b) failing to inform the defendant of her alleged symptoms after her discharge from hospital; and (c) failing to contact any medical practitioner with respect to her alleged symptoms from the date of her discharge on 12 November 1999 until her appointment with her general practitioner on 18 November 1999. 101 The obligation is, of course, upon the defendant to prove this defence, and I am not persuaded that the defendant has established that the plaintiff has failed to exercise due care in any of the respects particularised, in particular: (a) I have found that the plaintiff did attend upon the defendant at his rooms following her discharge from hospital and as advised by the defendant; (b) I am satisfied that the plaintiff did complain to the defendant about her problems referable to the severed nerve prior to the time that she was discharged from hospital and subsequently at the follow-up consultation; (c) I am not persuaded that the plaintiff failed to exercise due care in seeking medical assistance for her symptoms. I am satisfied on the evidence that the plaintiff sought physiotherapy immediately following her discharge from hospital, that she attended upon Dr Bentel after her discharge from hospital and that she also attended upon the defendant in accordance with the advice he gave her. 102 In the circumstances, in the absence of any advice given by the defendant that he may have severed the accessory nerve during the operation, I am not satisfied that the plaintiff acted unreasonably in the medical care sought following her discharge from hospital. 103 The defence of contributory negligence has not been established. 104 What are the consequence of the negligence established? 105 The plaintiff must, of course, prove that the negligence established was causative of harm. It is not contended that the defendant was negligent in severing the accessory nerve, and it is necessary to determine what harm, if any, resulted from the negligence I find to have been proved. 106 Had the plaintiff been alerted to the severance of the nerve promptly after the surgery was performed, and had the plaintiff been advised of the need for surgical repair, I am satisfied on the balance of probabilities that the plaintiff would have undergone repair surgery when advised to do so. 107 Ms Burke submitted that the plaintiff would not have had surgery until after the birth of the child that the plaintiff discovered she was carrying in January 2000. Delay until after such birth would have reduced the plaintiff's prospects of recovery. The evidence satisfies me that delay in undertaking surgery would, indeed, have reduced its efficacy but I do not find that the plaintiff would have declined to have had it until after the birth. 108 The plaintiff was cross examined as to whether she would have undergone surgery in the second trimester if there was an associated risk to the unborn child. The plaintiff's response was that she could not answer that (T 108): "Q. Let me ask you this. If you were being asked to weigh up and balance the risk between the risk of the nerve repair failing, if it was undertaken in the second trimester of pregnancy, and the risk to an unborn child if the operation was undertaken during the second trimester, that is something you would have to weigh up, is it not? OBJECTION. HIS HONOUR: Q. Did you understand the question? A. I understand the question. I don't know how to answer. BURKE: Q. Risk versus benefit. Would you forego the benefit that you might receive from having the surgery in a second trimester over and above a risk to your unborn child to -- A. I can't answer that, I don't know how to. I am not in a position now. Back then, is completely different to me sitting here now." 109 In re examination, the plaintiff gave further evidence in point (T 260): "Q. Have you, during the morning adjournment, been shown, and have you read, the report of Dr Robert Lyneham at page 121? You have been through that and have you seen what Dr Lyneham had to say about surgery in the second trimester? A. Yes, I have, yes. Q. If advised along those lines, would you have accepted the surgery in the second trimester for nerve repair to your neck? A. Yes, I would have." 110 The report of Dr Lyneham to which the plaintiff was referred was in evidence and Dr Lyneham gave oral evidence to which I now refer. 111 Dr Lyneham, who is a specialist obstetrician and gynaecologist, responded in his report of 24 February 2003 to three questions: " 1. In your opinion, assuming that repair to the accessory nerve was required and the Plaintiff was pregnant, could the accessory nerve be repaired during the second trimester without injury to the developing foetus? Please state your reasons There is no evidence that repair of the accessory nerve during the second trimester would have caused injury to the developing foetus. Surgery in the second trimester is not linked to injury to the infant, and a severed accessory nerve is not an underlying condition which would lead to growth restriction. 2. In your opinion, assuming that the baby was delivered in September 2000, would there be any obstetric and/or gynaecological reasons to prevent surgical repair of the accessory nerve following the birth of the child? Please state your reasons. In my view there would have been no obstetric or gynaecological reasons which would have prevented surgical repair after the baby's delivery in September 2000. If Ms Wighton was breastfeeding, formula or expressed breast milk could have been given for a short period. 3. Please comment on any other issues that may be relevant in this matter. It is not unusual to plan semi-elective (compared to emergency) surgery during the second trimester. Anaesthetists are well used to administering anaesthetics to pregnant women, and presumably accessory nerve repair is not a procedure carrying a high risk of blood loss or infection." 112 Dr Lyneham considered the second trimester as the preferred period for any surgery undertaken during pregnancy, in this case from March to May 2000, but he would not have ruled out surgery elsewhere in the pregnancy, even in the third trimester (T 419-420). 113 Dr Blum, in his speciality as a neurosurgeon, considered it would have been safe for surgery to have been undertaken in the second trimester (T 273), although before undertaking surgery in that period he would have consulted an obstetrician (T 388). 114 Dr Hodge also considered he would have undertaken surgery in that period, as the following cross examination reveals (T 522): "Q. Would you assume please that his opinion [that is, the opinion of Dr Lyneham] as to the performance of the procedure in question in this case in 1999 was that of the putative risks that might possibly be involved, namely those of low birth weight and neonatal death, there was no increase in those risks, in a scenario where the cable grafting was to take place in the second trimester. That is to say nil. Would you have been happy to be guided by that opinion? A. If the obstetrician was prepared to say there was no risk, then, yes, I would be happy to be guided by that opinion. Q. I think you told us that there is a bit of a balancing act, whereby you look at the severity of the symptoms. In this case, if the accessory nerve had been severed in November 1999, it is almost a banality that the longer you leave a cable repair the less sanguine the outcome. Do you agree with that? A. Yes. Q. From the point of view, inter alia, of retrieving any muscle wasting that would have occurred? A. That's right. Q. Because somewhere down the track your chance has been obliterated? A. Yes. Q. It would appear, and I ask you to assume, that the second trimester would have commenced in March of 2000 for this lady. I would like you to have a look please at exhibit F (shown). The first photograph there you may assume was taken on this good lady's wedding day in March of 2000? A. Yes. Q. Would you direct your attention to her right shoulder area? A. (Witness complied). Q. There is manifestly evident, is there not, wastage of the trapezius or right shoulder? A. There is. Q. Given respected obstetric opinion of nil risk to mother or foetus, and given that manifestation, and given ongoing complaints of pain of both types under consideration here, there would not be any question but that she would have been well-advised to proceed in the second trimester with the graft, would you agree? A. You realise that she is using her right arm to cut that cake? Q. Could I very politely I trust ask you to answer my question? A. Sure. If her symptoms warranted the correction of the nerve, then certainly, from the opinion that you have given me of the obstetrician, then I would be happy to reconstruct the nerve in that period." 115 There was, however, some disagreement between the experts in this case as to the appropriate timing of repair surgery. 116 Dr Lyons considered that the ideal time to repair was within a few weeks after the severance, if the repair could not be effected at the time of such severance (T 123). This would allow surgery after the inflammation had settled down and before scar tissue formed (T 132). However, there was, in his view, no absolute time limit for the repair procedure. 117 Professor Sonnabend considered the accessory nerve should have been repaired as soon as possible and ideally by the fifth day after severance (T 208). 118 Dr Blum considered that there was some degree of urgency in carrying out the repair. In his report of 14 February 2005 the doctor wrote: "The semi-urgency of the procedure is because the motor end plate connection with the nerve deteriorates progressively until at 18 months it is not possible for the muscle to contract. The longer the delay, the worse the outcome. A repair in March or April 2000 would have allowed a 60% result of 3+ recovery. Early intervention at Royal Brisbane could have been organized in a matter of days by my ex-registrar in neurosurgery, Dr Rob Campbell." 119 As to the question of undertaking the surgery during pregnancy, Dr Blum wrote in the same report: "I need to state that we would be willing to perform the operation in the second trimester of pregnancy between the 13th and 26th weeks, as it is a safe period to perform urgent, or relatively urgent, surgery. The first and third trimester is hazardous for the foetus' development and survival, thus she would have had the repair in early 2000, in March in April." 120 Dr Hodge was of the view that repair ought not to have been attempted for two months to allow inflammation to settle (T 503). 121 There is obvious divergence of opinion between the experts, as demonstrated by the above review. It would not have been practicable to carry out the repair within five days of the severance, as Professor Sonnabend would have regarded as desirable, if for no other reason than that the defendant did not have the appropriate expertise to have performed the repair surgery and a referral to some other specialist, which I am satisfied should have been advised and arranged, would inevitably have caused some delay. Indeed, it may well be that it would not have been until December 1999 or January 2000 that the plaintiff would have had the benefit of a consultation with an appropriate specialist surgeon, there being no such specialist available at the time in Inverell. 122 However, I consider it probable that had it not been for the defendant's negligence, and accepting as I do the evidence in point of Dr Lyneham, Dr Blum and Dr Hodge, the plaintiff would have undergone repair surgery during the second trimester, that is between March and May 2000. 123 By the time the plaintiff learned of the severance, it was altogether too late to attempt to repair it. Indeed, I do not understand it to be contended otherwise and, certainly for his part, Dr Hodge considered surgery eighteen months after division of the nerve would have been valueless (see his report of 27 April 2004, p 5). However, had the surgery been undertaken within the second trimester, I find that a satisfactory outcome would have been likely. 124 That does not mean though that the plaintiff would have recovered completely. 125 Dr Lyons considered that the plaintiff would probably have recovered most of the bulk of the trapezius muscle (T 114) and Dr Lyons considered that the plaintiff would have been likely to have achieved "normal or near normal shoulder function" (T 118). 126 I referred above to Dr Blum's report of 14 February 2005. In oral evidence, the doctor explained what he meant by the recovery of sixty percent (T 270-271): "HIS HONOUR: Q. Doctor, can I ask you what the recovery of approximately 60% means. Does that mean there was some improvement following operation in 60% of cases or that on average there was a recovery of 60% of function in each case? A. The function, your Honour, is graded from 0 to 5, 0 being no recovery and 5 being normal. Most people would say that a recovery of 3 is when you can move the limb or muscle with gravity present and that there was some resistance to you testing it, so 60% would be a 3 or 3 plus result. Q. But what I am not clear on is whether or not in each of the 66 cases there was a recovery of approximately 60% or whether that was an average? A. That was an average." 127 And, later (T 271): "Q. In general lay terms is grade 3 reasonable function, minimal function? A. It is reasonable function. It means that the limb can be used but it is not normal. HIS HONOUR: Q. In a work environment? A. With some degree of difficulty, yes. Q. What about doing work, for instance, as a nurse's aide, which involves lifting of patients? A. Lifting, I think she would have difficulty, as she said. Q. So would I be right in thinking then that assuming repair to a grade 3, the patient would be limited in the work she could do so as to avoid heavy use of the shoulder? A. Yes." 128 Dr Hodge, in his report dated 27 April 2004, expressed the opinion that the probability was that surgery after a delay of two months would have been successful, although it would not have alleviated the plaintiff's neuralgic pain, which he considered likely to have been caused by the division of a sensory nerve. 129 Addressing the issue of causation, I find on the probabilities that as a consequence of the defendant's negligence the plaintiff did not have the repair surgery that she otherwise would have had and that absent appropriate surgery the plaintiff has been left with considerable pain and disability that would have been addressed by such surgery. 130 I find that such surgery would have been likely to have restored reasonable function in the right upper limb short of normal function and that the plaintiff would have been left with restrictions, being unable to engage in heavy use of the right shoulder. In essence, I accept the detail of the evidence that Dr Blum gave about the practical restrictions which the plaintiff would still have had after successful surgery. 131 I proceed to assess damages upon the basis of the findings I have expressed. Damages 132 By the time of her marriage the plaintiff noticed that her right shoulder had dropped and she complained that the drooping was accompanied by pain in the area shown to be the brachial plexus. The witness complained that with her changed posture she experiences intense pain and pain in the back of the neck. The pain appears to be affected by her posture (T 32). The plaintiff said that when she sits she uses a boomerang pillow as a reminder to sit up straight (T 52). She said that if she does not sit straight she experiences pain. The witness said she is restricted in how far she can walk. A walk for twenty minutes produces symptoms in the right upper limb. 133 The plaintiff complained that she cannot sleep at night. She said that she has to sleep on her left side and apart from her husband, who now sleeps on the lounge. This was because any jolting movement in bed caused pain through the shoulder. The witness described pain associated with sexual activity because she said it hurt her to lie down. Sexual activity has almost ceased and the plaintiff said this has caused stress in the marriage. 134 The witness complained of being unable to participate in the outdoor activities and sporting activities she had enjoyed before the surgery. The plaintiff said that she cannot use her upper limb without pain and that when she moves her hand, it affects the upper part of her limb and her back. 135 In cross examination, the plaintiff said that she had pain over the top part of the right shoulder and up into the back of the neck. There was pain like a bad toothache which she put in a second category and there was pain on the inner aspect of the upper right arm. 136 The plaintiff said that the pain and disability restricted her in her domestic activities. Hanging out the washing caused what was described as a dowager's hump to become apparent. The plaintiff said this would "swell and puff out. It would cripple my upper body" (T 258). 137 Sometimes, if lying down, the plaintiff complained she may find herself in a posture which causes her arm to lock and after this has happened she has experienced difficulty in attending to her toilet. 138 There has been extensive medical evidence in this case, and it would not be helpful to review it all in the course of this judgment. It has not been suggested by the defendant that the plaintiff has deliberately overstated her complaints. There is a contest however as to whether all the plaintiff's complaints are referable to the division of the accessory nerve, and there is also an issue as to what the plaintiff's reasonable needs are. 139 Professor Sonnabend, whose speciality over the past eighteen years has been in surgery of the shoulder, examined the plaintiff on 18 January 2005 and his examination findings on that occasion were as follows: "On examination on 18 January 2005, Ms Wighton described two sites of right side-of-neck and upper limb pain. The first was over the back of the trapezius muscle, radiating from the mid line, and the second was along the medial aspect of the right upper arm, from the axilla to the elbow. Ms Wighton also described pins and needles in her hand, particularly when they were dependent for long periods, such as when she was walking. She described difficulty with overhead activity and forward reaching activity, and was unable to lie on the right side at night because of arm discomfort. She described having to 'arrange' her right arm at night, usually with the help of a pillow, to become comfortable. Ms Wighton felt that her symptoms had deteriorated over the last few months. Although her function had not improved, her main concern was the ongoing and apparently increasing discomfort. On examination, Ms Wighton exhibited a full range of glenohumeral movement but severely restricted scapulothoracic movement. She was unable to forward flex or abduct the right arm properly because of loss of scapular control. Examination confirmed almost total wasting of the right trapezius muscle, and significant but incomplete wasting of the right sternomastoid muscle. Attempted scapulothoracic movement produced an unusual form of winging, which was eliminated by lowering the arm to the side, but brought on by attempted shoulder flexion. The winging was unusual in that it was of a different pattern to the more usual pattern seen with serratus anterior palsy. Traction on the arm produced discomfort but no obvious neurological symptoms. There was no evidence of overt thoracic outlet compression of the vessels or nerves to the right arm on thoracic outlet testing, but it is noted that clinical tests for thoracic outlet compression are notoriously unreliable." 140 Professor Sonnabend went on to express this conclusion: "Ms Wighton clearly has suffered an injury to the accessory nerve on the right side. At this stage, more than five years post-operatively, there is no realistic prospect for any further spontaneous recovery. The symptoms of which Ms Wighton complains are consistent with accessory nerve paralysis. Loss of control of the scapula by denervation of the trapezius and sternomastoid muscles results in sagging of the shoulder blade and loss of control of shoulder blade movement. As a result, even though the arm can be moved relative to the shoulder blade (that is, through the glenohumeral joint), the shoulder blade can not be adequately stabilised on the chest wall, and consequently the range of arm movement is restricted and control over arm movement reduced. The discomfort associated with this condition is presumed to be caused by both strain on the remaining muscles which try to support the scapula, and by stretching of the neurovascular structures going to the right arm as they pass over the thoracic outlet (top of the first rib). There is no known medical or surgical treatment which can correct Ms Wighton's shoulder dysfunction completely, or alleviate her right shoulder and upper arm pain." 141 The only surgical treatment Professor Sonnabend could suggest would be surgical fixation of the scapular on the chest wall, but that was not a form of treatment Professor Sonnabend recommended for the plaintiff at the present time. It was an option to be considered if the plaintiff's condition deteriorated. 142 Dr Winer is a consultant physician in rehabilitation medicine. He assessed the plaintiff in May 2004. Her complaints to the doctor at that time were consistent with her evidence before this Court, and they were as follows: "Pains in the neck anteriorly and in the shoulder since the surgery on 11.11.99 and subsequent paraspinal pains at the cervico-thoracic junction region on some activities. Patient's pain chart is enclosed. She says her worst pain is in the shoulder where throbbing is present all the time; worse on any movement of her upper arm as when doing her hair, showering or dressing. Pain 'like a toothache' at the base of the neck on the right (incision site); radiating down to the shoulder. It is present all the time and does not stop; 'Like something firing all the time.' 'Nothing makes it better or worse; it's always the same.' Pain-killers do not help. Her greatest concern is looking after her two sons aged 3½ years and 7 months. Nappy changing and dressing the boys is difficult; she could not breast-feed them comfortably because of a 'pulling' on the right shoulder; she has had to avoid bathing her children, 'my husband 90% of the time has given them showers.' She is unable to carry the children when they get tired although she does carry the baby when she has to, but cannot carry her older son. She dislikes driving into town, only 2 minutes by car, because of the effort and difficulty in getting the pram in and out of the car. However, she has to do so 2 to 3 times a week for shopping. There is no problem walking into town, which takes about 10 minutes, but the difficulty is that walking home would be uphill all the way and her older child would not be able to manage this walk. So she tries to go into town for shopping without her children or to go shopping when her older son is at pre-school or in family-care. Walking or driving into town would be on a 50-50 basis. She cannot carry shopping with her right arm. If she walks any distance she feels a dragging/dropping feeling at the right shoulder which is painful by the time she arrives home. In bed she cannot lie on her right-hand-side but lies prone, with shoulder pain. 'Never was a side-sleeper'. If she is not sleeping in her own bed, a water-bed, she has to sleep half-sitting." 143 The pain chart referred to in Dr Winer's report showed the pain areas as being the upper right arm, front and back, and under the right arm, across the right shoulder and across the right upper back. There was a further pain area up the right side of the neck and up the back of the neck centrally located. 144 Following examination, Dr Winer concluded that the plaintiff had significant disability in the use of the right shoulder and consequently in the use of the right upper limb. The signs he found on examination he considered to be consistent with the plaintiff's complaints. The doctor did find what he considered to be subconscious over-protective caution in respect of some movement on formal examination. 145 The doctor noted on examination the lump at the back of the neck, which he said was a normal layer of fatty tissue which would have been present for years. 146 In the doctor's opinion, the plaintiff's complaints were referable to the severance of the accessory nerve and thoracic outlet syndrome which was related. Her condition was compounded by the congenital abnormality of bilateral cervical ribs. In Dr Winer's opinion, the cutting of the nerve had caused the shoulder to droop and this caused her brachial plexus to rub down against the upper-most rib (T 308). 147 Dr Hodge had not seen the plaintiff before preparing his report of 27 April 2004 in which he attributed the muscle wasting and weakness in the shoulder and an inability to lift the arm above the head to the division of the spinal accessory nerve but the neuralgic pain to what he presumed to have been division of the sensory nerves from the cervical plexus. Later, in his report of 31 August 2004, Dr Hodge added that the division of sensory nerves may lead to neuralgic pain extending from the neck around to the back of the neck and down the arm. Then, in March 2005, upon being made aware of the abnormal cervical rib, he acknowledged that that could be a significant contributor to the greater-than-usual symptoms that the plaintiff had experienced in relation to aching of the right shoulder. 148 Dr Walker, neurologist, assessed the plaintiff on the defendant's behalf in January 2005. His conclusion was expressed as follows: "There would seem little doubt that during the course of surgery performed by Dr Arnot that the accessory nerve was severed. This has led to partial denervation of the right sternomastoid (which turns the head to the right), and also weakness of the trapezius (which helps shrug the shoulder and lift the arm fully over one's head). This injury is now stabilised and chronic and no recovery would be reasonably expected. Normally this type of injury (apart from altering the contour of the neck) would not produce significant disability. Normally one would expect to see a degree of aching in the shoulder as quite simplistically there is less muscle bulk to preserve the integrity of the shoulder joint. In this respect, Ms Wighton's symptoms appear to be at considerable variance to the nature of the injury. Why she has difficulty, for instance, holding objects even with her hand and difficulty flexing her elbow is anatomically baffling and inexplicable. The degree of pain she complains of also appears in excess of what one would reasonably expect, and one is led to the conclusion that there is some underlying psychological problem with pain control. Whether this might be helped with counselling is debatable. It is difficult to talk of 'disability' in the presence of what are largely subjective phenomena (pain). The disability from motor weakness of the sternomastoid and trapezius is usually not great…" 149 Two psychiatric assessments have been made in relation to the plaintiff: Dr Allnut assessed her on behalf of the plaintiff and Dr Skinner assessed her on behalf of the defendant. 150 In Dr Allnut's opinion, and he has seen her twice, in February 2004 and in March 2005, the plaintiff suffers from a major depressive disorder following upon the operation. On the second occasion he considered that there had been improvement in the plaintiff's condition but that there remained symptoms of the depressive disorder. In Dr Allnut's opinion the plaintiff would benefit from psychological counselling and from cognitive counselling. 151 Dr Skinner examined the plaintiff in January 2005 and diagnosed her as having a depressive disorder of mild to moderate severity, which the doctor considered to be directly attributable to the accessory nerve injury. Dr Skinner did not consider that there was a significant difference of opinion between herself and Dr Allnut, and I accept that this is the case. 152 I do not find any conscious exaggeration of the plaintiff's symptoms which I am satisfied are genuine. 153 Dr Hodge considered the neuralgic type pain to be due to division of sensory nerves but I am not satisfied that any such nerves were divided. Professor Sonnabend was of the opinion that it was "exceedingly unlikely" that there was any trauma to sensory nerves because he would have expected such to be accompanied by altered sensation (T 207-208). There was nothing that suggested to Professor Sonnabend in the clinical scenario in this case that there had been any sensory nerve damage (T 212). Dr Blum said (T 293) that the sensory nerves were not cut and he so concluded because on examination there was no sensory loss (T 294). 154 Absent the explanation suggested by Dr Hodge that neuralgic-type pain experienced by the plaintiff was due to division of sensory nerves, the explanation for the pain has to be found elsewhere. 155 Dr Lyons was of the opinion that pain was produced by a weakness in the shoulder and the drooping of the shoulder which created tension of other nerve routes and that this could produce neuralgic pain (T 124). 156 Dr Blum considered that other than the headache the plaintiff described, all the plaintiff's symptoms were referable to the accessory nerve damage caused by shoulder drooping. 157 Plainly, the plaintiff's problems have been compounded by the congenital abnormality described earlier, and I find on balance that the explanation for the plaintiff's symptoms, following the above review of the medical evidence, is that advanced by Dr Winer. I consider it probable that her symptoms are aggravated by the existence of the depressive disorder, which itself results from the unrepaired division of the accessory nerve. 158 It follows that I am persuaded on the balance of probabilities that the plaintiff's complaints are genuine and that they are causally linked to the division of the sensory nerve and the negligence of the defendant by reason whereof it became impossible to effect its repair. 159 Dr Winer considered that the plaintiff's ability to cope with pain and her level of pain were influenced by her emotional state, and I accept this to be so. Dr Winer considered that one of the factors bearing on her emotional state was the current litigation and he would expect improvement in her emotional state once the case is over. I accept that evidence, and I also accept Dr Allnut's evidence that there has been some improvement in the severity of the depressive disorder over the last twelve months. Nevertheless, the impact of the harm suffered by the plaintiff as a result of the defendant's negligence both past and future I find to have been, and to be likely to be, very considerable. It was submitted by Mr Williams, on behalf of the plaintiff, that it would be appropriate to award for non economic loss forty-five percent of the maximum amount fixed under s 16 of the statute. Ms Burke submitted in the event that the plaintiff is entitled to damages that thirty percent would be the appropriate proportion. Having made my assessment of the severity of the non economic loss in this case, I have decided that the plaintiff is entitled to recover forty percent of the amount available in a most extreme case. Hence, I award the sum of $160,000 under s 16 of the Civil Liability Act. Economic loss due to loss of earnings and loss of earning capacity 160 The plaintiff's ability to work has been significantly affected since she underwent the surgery in November 1999. Her evidence was that she tried to work some two to three weeks after she left hospital but found all parts of the work in the restaurant difficult and she gave up that work at the end of January 2000. It was one month later that the plaintiff obtained a position doing work with the disabled, and the plaintiff said that she continued with this work as an access officer until she was eight months pregnant, that is until about August 2000. However, the plaintiff said she was assisted by her co-worker, Michael, to do that work. The plaintiff said that she would not have been able to do all the tasks involved without Michael's assistance. The plaintiff has not worked since the birth of her second child. 161 I am satisfied that the plaintiff is entitled to be compensated for past economic loss, although it is difficult to be precise in providing for the loss. The plaintiff's working life would have been disturbed in any event by reason of the two pregnancies, and for some period following the birth of each of her children. Moreover, the plaintiff would have had some period of disability had remedial surgery been undertaken. As to this, there would probably have been overlap between the period of incapacity referable to the remedial surgery and the period that the plaintiff would have been off work in any event in the latter part of her pregnancy and following the birth of her elder son. Further, it is to be borne in mind that successful surgery, had it been undertaken, would not have restored the plaintiff to the position she would have been in had the nerve not been severed in the first place. I accept that the plaintiff would have been restricted following surgery in the way Dr Blum described in evidence to which I have earlier referred (see paras 126-127 above). 162 With the above considerations in mind, what is the appropriate allowance for past economic loss? It has been submitted on behalf of the plaintiff that but for the nerve severance the plaintiff would probably have continued to do work as a waitress and work as a carer. Actuarial calculations have been provided approaching the matter on the basis that the plaintiff would have worked fifty percent of the time as a waitress and fifty percent of the time as a carer. Award rates have been taken and a nett loss has been calculated on this basis of $77,312 (see the report of Dolman Bateman, p 287 and following in Exhibit B). 163 The defendant does not accept that approach, but relies on a report of Mr Ivey dated 13 January 2005. Mr Ivey is a chartered accountant and business analyst. His approach invites a conclusion that the appropriate allowance for past loss is somewhat in excess of $40,000. Neither expert gave evidence, so that the approach of neither expert was explored in the witness box. Mr Ivey considered that to allow for past loss on an award rate basis was to ignore the plaintiff's actual earnings prior to the accident, which were under the award. Further, it did not take into account statistics, and this criticism is directed more at the future than the past, that married women with dependants are less likely to be employed than married women without dependants in the age group from 20-44 years. 164 The evidence does not satisfy me that the plaintiff would have worked in the two capacities of a waitress and a carer at the same time so as to work an eight hour day, five days per week in the past period, assuming successful repair surgery had been undertaken during her first pregnancy. Moreover, the evidence does not satisfy me that following a successful repair, the plaintiff would have been able to carry on doing all the tasks of a waitress and all the tasks of a carer. Her capacity to earn would have been restricted by the limitations of movement Dr Blum identified, assuming successful surgery, and her qualifications for employment were limited (see para 5 above). The probability is that for such time as she would have worked following surgery, the plaintiff would have worked as a waitress, avoiding heavy lifting. It follows that I consider to allow the plaintiff $77,312 for the past would be to allow too much. On the other hand, I consider, having regard to the compensable period for the past, that Mr Ivey's approach places too much reliance upon the pre-1999 earnings. Doing the best I can, I consider that a fair measure for the past is the sum of $58,000, which I note approximates to the mid point between the allowances of Dolman Bateman on the one hand and Mr Ivey on the other hand. 165 This brings me to the future. 166 The plaintiff does have some residual ability to work but it is significantly less than it would have been had timely remedial surgery been undertaken. In assessing the compensable loss, again I have regard to Dr Blum's assessment as to the restrictions the plaintiff would have had in any event after successful surgery. 167 Dr Winer considers the plaintiff will be fit for light duties only in the future and on a part-time basis only. I accept this to be the position and the plaintiff would probably experience difficulty in being able to obtain constant part-time work. 168 The plaintiff gave evidence that she had hoped to do nursing, relying upon her grandmother's assistance to look after the children. The plaintiff was not trained for this form of work. She said that if she obtained qualifications as an enrolled nurse, she would have worked "probably for the next five years" (T 28). However, I view that answer in context. I do not understand the plaintiff to have been expressing as a future intention that she would have only worked for five years altogether, and I propose to approach the future on the basis that the plaintiff would have worked to age sixty-five. I do not ignore the statistics to which Mr Ivey has referred, but I propose to bring them into account in setting the discount for contingencies. 169 I consider it unlikely that the plaintiff would, in the future, have pursued two types of employment at the same time, and the residual disability in the upper limb would have presented a permanent restriction against undertaking heavy employment. The plaintiff would not, for instance, have been suited for work where she was required to lift and provide physical support for disabled persons even had successful surgery been undertaken. The plaintiff would not have been fit for work as an enrolled nurse in any event. Nevertheless, she would have been left with a significantly greater residual capacity than she now has. 170 The actuarial report upon which the plaintiff relies has proposed as an ongoing nett weekly loss $425.99, on the basis that the plaintiff continued in part-time positions as a kitchen hand and as a personal carer. As indicated, I do not consider it likely that this would have been her future. However, the actuarial report (p 15) indicates that the award rate for a full-time kitchen hand is $388 per week nett. I find that to be some indicator of what the plaintiff would have been able to earn but for the defendant's negligence. Allowing for the modest residual capacity that the plaintiff has, it seems to me that a fair measure of the compensable ongoing loss is $310 per week. The lump sum presently required to compensate for such a loss to age sixty-five on the five percent tables is $265,360. 171 I propose in this case to discount that figure by twenty-five percent for the vicissitudes. I recognise, of course, that this is a larger than normal discount for vicissitudes but had the plaintiff undergone successful surgery, she would have been left with restriction in the use of her shoulder which would have reduced her capacity for work on the open labour market and hence her opportunities for employment over the course of her working lifetime. Moreover, I recognise in employing a discount of twenty-five percent the statistics to which Mr Ivey adverted, and to which I referred to para 163 above. 172 On the approach indicated, I allow for future loss of earning capacity the sum of $200,000, rounding the calculation off. Loss of superannuation benefits 173 A claim is made for loss of superannuation benefits. It is made on a "contributions only" basis, as defined in the actuarial report on which the plaintiff relies (see in particular pp 19-20 of that report). An alternative approach is invited by Mr Ivey in his report (see in particular his report at p 15 and following). Again, this is a matter on which neither expert was called to give evidence. I must do the best I can on the material presented. The allowance I have made for past loss of earnings equates to seventy-five percent of the figure calculated by the plaintiff's actuary. I propose to use his calculation for past loss of superannuation benefits, making a twenty-five percent deduction consistently with the deduction on the claim for past loss of earnings. Hence, I propose to allow seventy-five percent of the plaintiff's claim for the past, that is seventy-five percent of $5670. Accordingly, I allow $4252, in round figure. 174 Mr Williams submitted that I should allow $23,677 in respect to the claim for future superannuation loss. He based this upon a figure of $33,825 which he reduced by thirty percent to allow for the plaintiff's residual earning capacity. Mr Williams' calculations, as I understand it, were based upon figures to be found in Dolman Bateman's report (see p 1). However, I do not accept as a starting point the capitalised loss of $388.42 per week nett (see p 13 of the actuarial report). Hence, I do not accept as a starting point the lump sum of $336,720 (see p 1 of the report). Doing the best I can, I allow for lost superannuation benefits on a capital sum of $200,000, which I have allowed in respect of loss of earning capacity for the future, the sum of $18,000, rounding my calculation off. Out of pocket expenses 175 Agreement was reached as to the out of pocket expenses (T 852). I include the agreed sum of $12,793.86 in my award. Claim for past care gratuitously provided 176 The claim presented in the particulars filed pursuant to Pt 33 r 8A, as most recently amended during the course of the hearing, was grossly exaggerated. The amount there claimed is for a sum, apparently precisely calculated, of $351,845.55. This claim was one of a number of claims in this case which simply have not been justified by the evidence. 177 The claim for past care appears to have been based upon the reports and evidence of an occupational therapist qualified by the plaintiff, Ms Berger. I have no reason to doubt the expertise of this witness as an occupational therapist but I am certainly not persuaded that all the claims based upon her reports and her evidence are reasonable claims. 178 The reports and evidence of Ms Berger are to be contrasted with the reports and evidence of Mr Holden, an occupational therapist qualified by the defendant. His report and his opinion as to what is required to provide for the plaintiff's compensable needs past and future differs markedly from that of Ms Berger. However, just as I find that I am not satisfied that all the claims based upon Ms Berger's evidence are reasonable, neither am I satisfied that all the assessments made by Mr Holden concerning the plaintiff's reasonable requirements past and future are reasonable. I find it necessary to approach the diametrically opposed assessments of Ms Berger and Mr Holden with much caution. 179 In her later report, Ms Berger presented in schedule form her assessment as to what has been required in the past to meet the plaintiff's need for assistance. The claim thus presented, and I put to one side the claim for pain massage which I will deal with discretely, was in short as follows: · for personal care, including showering, dressing and managing hair, twenty-four hours a day for two days after surgery · for personal care thereafter, three and a half hours per week · for grooming tasks, including dressing, managing hair and shaving unwanted body hair, three hours per week · driving tasks, one to two hours per week · domestic tasks, twenty-eight hours per week until November 2004, and sixteen hours per week thereafter. 180 I do not allow for the claim for twenty-four hours per day for two days after surgery. In this period, the plaintiff was in hospital. 181 The claim thereafter, however, aggregates thirty-six hours per week or thereabouts until November 2004. After that Ms Berger reduced the hours for domestic tasks to sixteen hours per week, an overall reduction then of twelve hours per week. 182 I do not accept that the plaintiff has established a compensable claim of that order, and, indeed, the claim finally advanced by Mr Williams was pitched more modestly. The claim as finally presented by Mr Williams was a claim for sixteen hours per week from November 1999 until November 2004 and for nine and a half hours per week from November 2004 to the present time. The explanation for the reduction last November is that it was at that time that the plaintiff's grandmother became incapacitated when she sustained a hip fracture. The plaintiff is entitled to be compensated for the proper and reasonable cost of supplying the needs which have arisen in the past by reason of the defendant's negligence. That is not in dispute. However, what is in dispute is the assessment of the extent of the plaintiff's compensable needs, to be measured by the time reasonably spent by her husband and by her grandmother in meeting those needs. According to the plaintiff, there are many chores that the plaintiff has been unable to perform since the surgery. The plaintiff has been unable to make the beds and to attend to all the cooking and ironing. The plaintiff has been unable to put the washing out or to do the washing-up. The plaintiff has been unable to do the heavy things in the house. The plaintiff's evidence was that her husband makes the beds, that he helps with the cooking, that he does the washing-up, that he hangs out the washing, that he showers, bathes and dresses the children, that he vacuums the house, that he mops the kitchen floor and that he does the heavy shopping. The plaintiff averaged out the time spent by her husband in these services at two to three hours per day (T 60). The plaintiff said that her grandmother provided assistance for an hour every second day additionally to the assistance her husband gave. 183 Mr Wighton gave evidence that he did the ironing, the cooking, the washing and wiping-up, the showering and dressing of the children, the hanging out of the washing, and the vacuuming, and that those chores took about one and a half hours per day (T 556-557). Added to that of course, I accept that he helps with the heavy shopping. 184 The plaintiff's grandmother gave evidence that after the plaintiff's surgery she helped with the washing, the ironing and general housework. She also did shopping, and she said that in the early days she spent two to three hours in the morning and an hour and a half in the afternoon assisting her granddaughter. This tapered off after Mrs Carter had pneumonia in 2003 and then Mrs Carter only went down to help her granddaughter for about an hour in the morning and an hour in the afternoon three days per week. Then, in November 2004, Mrs Carter fractured her hip. 185 It is always difficult in this type of case to quantify time spent in giving assistance and no doubt, whether the plaintiff had been injured or not, her husband would have been offering her assistance in the home and assistance with the children. No doubt, Mrs Carter would have been visiting the plaintiff regularly and helping her with the children and the chores, even if the plaintiff had not been injured. This would have been so, particularly after the birth of the children. 186 By way of contrast with Ms Berger, Mr Holden considered the plaintiff's compensable needs in the past would have been met by the provision of domestic service for one hour per week. That seems to me to be altogether too conservative an allowance. 187 In making provision for the past, I am required to heed s 15(2) of the Civil Liability Act 2002: "(2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. 188 No doubt the plaintiff's husband could have been expected to provide some household help, and I have endeavoured as best I can to put aside the measure of that non-compensable assistance. 189 In measuring the compensable assistance, I have also had regard to the fact that the plaintiff would have had some restrictions on her ability to deal with the chores of the house even if successful surgery had been undertaken. 190 I have concluded after reflecting on the evidence that it is appropriate to allow for services provided by the plaintiff's husband one hour per day on weekdays and an hour and a half on Saturdays and Sundays for extra activities dealt with on the weekend. I include here activities such as the heavy shopping and provision for chores to be addressed on a weekly rather than a daily basis. Hence, I allow for the past eight hours per week for services provided by the plaintiff's husband. 191 So far as the grandmother is concerned, I am not persuaded that there was a compensable need addressed by her extending beyond one hour per week, but I allow for an additional hour per week for her assistance until November 2004. 192 It is agreed that the appropriate hourly rate for the past is $19.84. 193 Hence, for the past I make an allowance calculated as follows: Nine hours per week from November 1999 to November 2004: $46,425.60 Eight hours per week from November 2004 to date: $ 4761.60 $51,187.20 194 It is to be observed in the above allowance that I have not made any allowance for provision of personal care or driving tasks. The claim for driving tasks was not pressed nor, indeed, was the claim for grooming tasks. The plaintiff told Mr Holden that she was independent in self care and I accept this to be the position, although I also accept that the plaintiff's husband assisted his wife to dress for the first twelve months or perhaps a little longer. He said that this took "a couple of minutes", and I do not consider that that calls for any discrete allowance. Future care requirements 195 The plaintiff will have future care requirements which have been gratuitously provided for in the past. Those requirements will relate to the same sort of activities as I have above considered when arriving at an allowance consistently with Griffiths v Kerkemeyer (1977) 139 CLR 161. 196 In considering the plaintiff's future, Mr Williams has submitted that regard should be had to the state of the plaintiff's marriage. It is convenient to address this feature of the evidence here. 197 The plaintiff said that prior to surgery her relationship with her husband, who she had known since he was fifteen and she was seventeen years of age, had been excellent but that the marriage had come under stress since her surgery. Because of her disability, the plaintiff said she was unable to share the same bed as her husband and this has been the position since shortly after the surgery. The plaintiff said that her husband has assaulted her. This happened last New Years Eve, and her husband left her for a few days. The plaintiff hopes that the marriage will continue, and they have each had some counselling. 198 It is hardly surprising that the marriage has been put under stress because of the impact of the plaintiff's disability upon her, and indirectly upon her husband. There have been occasions when her husband has had to assist the plaintiff in attending to matters of toilet when she has been particularly troubled by her injured limb, although as I understand the evidence this has not happened very often. I accept that there has been significant disturbance of the sexual relationship between the plaintiff and her husband. 199 Mr Wighton gave evidence that the marriage was under a lot of pressure but that he and the plaintiff were working on it and seeking counselling. He said he wants to see the marriage work because he cared for and loved his wife and there were the children to think about. He said that his parents were married for forty years, and his evidence was to the effect that he would hate the children not to have their parents together. 200 The evidence does establish that the marriage between the plaintiff and her husband has been under some stress as a consequence of the pain and disability which the plaintiff has been enduring, but the evidence does not warrant a finding that the marriage is likely to fail. The possibility that it may do so is one of the uncertainties in this case that is not to be overlooked. 201 The uncertainty concerning the future is a feature which warrants the making of provision for future domestic services on a commercial basis. Indeed, it has been recognised that a marital relationship may continue to only exist only because outside help for household chores can be obtained: see Van Gervan v Fenton (1991-92) 175 CLR 327 and in particular the joint judgment of Mason CJ, Toohey and McHugh JJ at 335-336. Their Honours went on to say, at 336: "The task of reliably determining whether a person will continue to provide personal services on a voluntary basis is much more difficult than the task of determining the traditional types of hypotheticals which come before the courts in damages cases, such as whether a plaintiff is likely to obtain employment or whether a medical condition is likely to improve or worsen. The relationship between the parties may end for any of the myriad reasons which bring about the end of relationships. But the predictability of a relationship continuing in this class of case is made more difficult than usual by the effect that the plaintiff's condition and needs have or may have on the emotional needs of those involved in caring for him or her. There is also the prospect that the care provider will not reveal to the court his or her true feelings about continuing to provide the services even in cases where the provider is conscious of those feelings. It is true that any assessment of damages may be falsified by the occurrence of what the courts have called 'the vicissitudes of life'. But the common law should seek to reduce, where possible, the uncertainty involved in the assessment of damages. The use of the market cost criterion enables the plaintiff to be properly compensated by the award of a reasonable sum whether or not the gratuitous care provider continues to provide that care." 202 I propose in the circumstances of this case to allow for the future cost of domestic assistance at commercial rates. 203 The claim made in the final Scott schedule presented for future domestic assistance is twenty-eight hours per week for the next five years followed by a claim thereafter of twenty-four hours per week for the remainder of the plaintiff's life. That claim is not consistent with the claim advanced for past voluntary care of sixteen hours per week until November 2004, tapering thereafter to nine and a half hours per week. 204 The claim for the future I find to be grossly excessive. It is not the position that the plaintiff is unable to do any work whatsoever in the house. The plaintiff is able to load and unload the washing machine, and the plaintiff told Mr Holden that she is able to perform some vacuuming and mopping. The plaintiff told Mr Holden that she does most of the cooking, although she has to be careful what she handles in the kitchen. The plaintiff is able to do light shopping. 205 What the plaintiff cannot do is any heavy housework or any work involving lifting or constant use of the right arm. 206 How, then, is the plaintiff's need to be measured and addressed on a commercial basis? It would be unreasonable to call in a commercial cleaner to meet the plaintiff's needs on the same basis that her husband and, to a lesser extent, her grandmother have met the plaintiff's needs in the past. It would be unreasonable to call in a commercial cleaner to perform household chores for a short period of time many times each week. 207 Ms Burke submitted that there was no evidence that the plaintiff would engage commercial services for house cleaning and that, accordingly, no provision should be made for them on this basis. I do not accept that because there is a compensable need and it is proper, looking to the future, that this need be met on a commercial basis. The compensable need includes all the work that has been done gratuitously for the plaintiff in the past and for which I have made past provision but it can probably be met more efficiently in terms of time through a commercial cleaner and through somebody who irons what has to be ironed on a commercial basis. 208 In looking to the future, I must take account of the feature that in all probability had there been successful repair surgery, the plaintiff would still have required somebody to come in for some period each week to give some assistance in the particularly heavy work. 209 Doing the best I can, I measure the ongoing compensable need to be addressed at commercial rates at seven hours per week for so long as the children are both very young. There will be some reduction in the extent of the need after that, and I consider it is also reasonable to expect that the plaintiff will further adapt in terms of what she finds she is able to do. 210 In his submissions, Mr Williams recognised that provision should be made for some reduction in the weekly allowance commencing in about five years time, and I propose to adopt that approach in making provision for the future. I propose to allow for seven hours per week for the next five years and for five hours per week thereafter. 211 I accept Mr Williams' contention that the appropriate commercial rate is $31.90 per hour. 212 Mr Williams submitted that s 14 of the Civil Liability Act provided for a discount rate of five percent for future economic loss but that, when making provision against future expenditure, that five percent discount rate should not be applied. Mr Williams submitted that when providing for future household care and future medical expenses and the like, resort should be had to the three percent tables. I do not accept that submission. This Act, in Pt 2 Div 2, fixes damages for economic loss, and in Pt 2 Div 3 fixes damages for non economic loss. It seems to me that the legislature had in contemplation the use of the five percent tables for all the future economic aspects of this claim, and I propose to approach my assessment of damages on this basis. It would indeed be a curious result if the five percent tables were to be used in compensating for loss of earning capacity only. In my view, the terms of the statute do not call for such an approach, and there is no justifiable basis for the use of the three percent tables in this case. 213 I allow for an ongoing cost of $223.30 for the next five years and thereafter for an ongoing cost of $159.50 for the balance of the period of the plaintiff's life expectancy of fifty-one years. The lump sum presently required to make provision for such ongoing costs is $169,239. Mr Williams submitted it would be appropriate to discount that figure by fifteen percent notwithstanding the circumstance that the life expectancy tables take into account statistically the possibility of earlier death. However, I accept that it is reasonable to discount the capitalised figure because the plaintiff may, through ill health or disability otherwise arising, have needed future home care in any event and it may well be that at some stage prior to her death the plaintiff would no longer live in circumstances attracting a need for five hours domestic services each week. Bearing those matters in mind, I adopt Mr Williams' discount figure of fifteen percent and accordingly make provision for future care in the sum of $143,855. Pain massage 214 A claim is made in this case for pain massage for the past and for the future. 215 In the past, the plaintiff's husband has massaged the plaintiff's shoulder for half a hour per day on average. This massage was a substitute for formal physiotherapy which the plaintiff had on and off for a time. Mr Wighton has, in addition to massaging the plaintiff's shoulder, applied liniment, and the plaintiff said that this massage has helped her. 216 Dr Winer referred to this form of massage, reporting that it had proved successful in affording the plaintiff some relief. In saying that however, I take it that the doctor is doing no more than recording history taken from the plaintiff. Looking to the future, Dr Winer suggested that a hand-held massage machine and an electric pillow would afford Mr Wighton partial relief from his responsibility for ongoing massage. 217 On the other hand, I note that Dr Henke expressed a conclusion, looking to the future: "There is no evidence that further physiotherapy is going to result in improved strength or range of movement but some advice on postural management of the neck and shoulder and back is useful in terms of trying to help with pain control." (See p 8 of his report of 18 March 2004) 218 Ms Burke submitted that this claim ought not to be allowed because the massage was directed towards neck pain and that was not associated with the compensable injury. I do not accept that submission. It seems to me, considering the evidence of the plaintiff and her husband, that the massage has been directed more to the shoulder than to the neck and, in any event, I accept, as I have indicated earlier, that the pains of which the plaintiff complains are related to the division of the accessory nerve and the failure to repair it. 219 The claim for the past is for three and a half hours per week at $19.84 per hour. 220 I propose, on the evidence I have reviewed, to substantially allow the claim for the past in respect of which I include in my assessment the sum of $15,000. 221 The plaintiff makes a claim for the future for massage at commercial rates for three and a half hours per week, and this claim is made for the rest of the plaintiff's life. 222 Whilst I have allowed the claim on balance for the past, the claim for the future seems to me to be on a different footing. There is no persuasive evidence that the plaintiff would benefit from a regime of daily massage for the rest of her life, and it seems to me, absent firm medical support for this claim, that I ought not to allow it. Quite plainly, looking at the future, Dr Henke considers that no further physiotherapy on an intensive daily basis is going to be worthwhile. 223 Rather, it seems to me the emphasis ought to be on pain management and some assistance from a psychiatrist. Hence, the claim for future pain massage costs is disallowed. I will, however, make provision for a spa and for an electric pillow. It is reasonable to anticipate the use of these will afford a measure of relief of the pain to which the massage has been directed in the past. Future physiotherapy 224 Whilst the evidence does not establish that the plaintiff would benefit in the long term from some ongoing physiotherapy, I consider it would be reasonable, as the defendant has acknowledged, that provision be made for three sessions per year for the next three years in order to afford the plaintiff the benefit of posture management and in order that there be monitoring of the exercises which the plaintiff conducts at home. On this basis, I allow for future physiotherapy the sum of $900. Future medical care (i) Pain management programme 225 The plaintiff makes a claim for the cost of a pain management programme. 226 Dr Winer considers that the plaintiff would benefit from attendance at a pain clinic and so does Dr Henke. The cost of this item, $6200, is not in dispute and I propose to allow it. (ii) Psychiatric treatment 227 Dr Alnutt and Dr Skinner agree that the plaintiff would benefit from treatment aimed at helping her to cope with her depression. A trial of antidepressant medication has also been proposed and seems to be the subject of some agreement. I propose to allow for nine months treatment. Mr Williams submitted I ought to be persuaded to adopt the mid-point of the range of costings suggested by Dr Alnutt and allow $182.50 per week for a period of nine months. This produces a figure of $6570. The defendant's calculations invite an allowance of approximately $4000, providing for twenty-six weeks of counselling and twelve months of antidepressive medication. Dr Alnutt's evidence persuades me that I should allow the claim as proposed by Mr Williams, and accordingly I allow the sum of $6570. (iii) Provision for general practitioner and analgesia 228 Dr Henke has opined in his report of 19 April 2004 that the plaintiff would benefit from continuation of analgesia for the next four to five years, although he would expect a tapering in the levels of medication. The prescription of the medication should, in his view, be monitored so that there would be a requirement for her to see her general practitioner three times per year. 229 No precise figures have been provided to cost this need, but I accept Dr Henke's opinion that it would be desirable to provide for this regime, and I intend to do so. I allow for this the sum of $1500. (iv) Future surgery 230 Professor Sonnabend opined that the only surgical treatment that might help the plaintiff would be a surgical fixation of the scapula on the chest wall. When asked whether he would recommend that the plaintiff have this surgery, Professor Sonnabend pointed out he had only examined her once and he would not be "in a rush" to recommend such surgery at the present time, but only if there was deterioration to the point where such surgery might be suggested. Presently he considered that "the down side would be greater than the benefits" (T 217). 231 It seems to me on the present state of the evidence that it is unlikely that the plaintiff will have such surgery, and I do not consider any provision in the award of damages is warranted for the highly speculative chance that eventually the plaintiff might have an operation of this nature. (iv) Case management 232 A claim is made for case management and assessment by an occupational therapist. In her report of 11 June 2003, Ms Berger wrote that if the plaintiff was to seek employment, she would be assisted by a rehabilitation specialist providing a case management approach to ensure the tasks she seeks are within her capacity. A claim of $1920 is made for this because Ms Berger considers that it might take six sessions to assess what work was appropriate. It is not clear to me whether it is envisaged that this involvement of a rehabilitation specialist is contemplated as becoming necessary each time the plaintiff seeks work. 233 I am not persuaded, as the evidence stands, that provision should be made for this involvement of a rehabilitation specialist. The plaintiff's capacity for employment seems to me to be reasonably well defined, and I am not satisfied that this item should be allowed. Home maintenance 234 The plaintiff claims for the cost of home maintenance, both past and future. 235 The claim for the past is for one hour per week and a similar claim is made for the future. 236 As to the past, the evidence of the plaintiff was that whilst the plaintiff's husband did the mowing and cut the edges, the plaintiff had a love of gardening and spent a lot of time in the garden. 237 According to Mr Wighton, the garden was a very large one and he and his wife used to do it together. 238 I accept that the plaintiff's gardening activities are largely beyond her, and the claim for the past does not seem unreasonable. Indeed, it finds support in the report of Mr Holden. 239 I allow the claim for the past, treating it as extending beyond pure gardening activities to handyman activities which the plaintiff says she performed. The claim for the past, using an hourly rate of $19.84, has been costed at $4404.54. That assessment is to the end of March 2005. I bring it up to date, and allow for past home maintenance $4662, in round figures. 240 Turning to the future, a claim has been costed for the plaintiff at the commercial rate of $31.90 per hour. I accept that rate as being reasonable. I also accept that it is reasonable to allow this claim. The lump sum presently required to provide for $31.90 per week for the remainder of the plaintiff's life has been calculated at $31,349.75. 241 Once again, Mr Williams has proposed a discount by fifteen percent. Again, I note that the plaintiff's life expectancy is based upon statistics but it is reasonable to recognise that the plaintiff may for some reason in any event have become unable to do the work around the home for which provision is here being made. Moreover, for reasons not yet planned, it has to be acknowledged that the plaintiff may, in any event, at some time in the future cease to live in the same sort of home environment as that which she lives in at the present time. Accordingly, I accept the submission by Mr Williams that the allowance for future home maintenance be discounted by fifteen percent. Accordingly, I allow for future home maintenance the sum of $26,647.30. Child care 242 Two claims have been presented for child care. One of these claims was to provide for a nanny and that claim was costed out as a claim of $221,194. Wisely, Mr Williams did not pursue this claim, as clearly it would involve double dipping. 243 I turn to the claim that was pursued, namely the claim for the provision of child care until the younger boy attains the age of twelve years. Riley will be twelve years old on 15 October 2015. 244 In the Scott schedule, the claim for child care was calculated out at a sum in excess of $250,000 at an hourly rate of $31 per hour. Mr Williams did not pursue this claim but a significantly more modest claim. The claim for the past has been calculated at $23,272.35. Acknowledging that this is for services gratuitously provided, the hourly rate at which this claim was costed is $19.84. The claim for the future has been costed at $65,716.60, using an hourly rate of $25, which is the agreed commercial rate. 245 Whilst it is to be recognised that the plaintiff's husband and the plaintiff's grandmother performed services for the children which may otherwise have been performed by the plaintiff, I have not sought to exclude such services when determining what was a reasonable allowance to make to the plaintiff for past gratuitous services. To make a further award for past services for the children would be to compensate the plaintiff twice in respect of the same matter. 246 What then as to the claim for the future? Both Dr Winer and Ms Berger have proceeded upon the basis that the plaintiff will require both a nanny and somebody to look after the children in other respects. Hence, each of these witnesses have advanced a proposal which is not pursued and which I regard as unjustified. In fairness to Ms Berger, however, she said in cross examination that she did not contemplate that there would be provision for child care as well as for a nanny (T 687). Dr Winer considered it was too much to expect that the husband should come home to look after the children as well as doing his work outside the home. However, he thought that if the same person could be available to do chores in the home concerning the children as well as nanny duties, he would favour that. 247 However, I consider there is a need to be addressed for the children at commercial rates beyond that for which provision has been made earlier at commercial rates for domestic services. In reaching this conclusion, I do not, of course, overlook the responsibility of the plaintiff's husband as the parent of these two young boys. 248 At present, Riley is approaching two years of age and Bobby is approaching five years of age. The demands each will have for care will continue into the future, although four years hence each boy will be at school Mondays to Fridays. 249 Ms Berger has opined in her report of 11 June 2003 that the plaintiff should have a full-time nanny until the youngest child is five years of age to provide assistance with bathing, dressing, nappy changing and feeding, and also supervision whilst the plaintiff is attending appointments or out shopping, and also to take to the children for outings in the park and to the swimming pool. However, the claim which Mr Williams ultimately advanced on behalf of the plaintiff in relation to childcare needs was to provide four and a half hours assistance for each child until he turns twelve years of age. It has not been made altogether clear on what basis that claim is presented. When cross examined, Ms Berger indicated that the nanny would be there to care for the children when the plaintiff went off to her appointments, and there would be a need for somebody to be looking after whatever child was not at school whilst the plaintiff attended for any medical appointment. There was the evidence too that the plaintiff's grandmother picked up the children and took the elder one to pre-school every second day. However, the plaintiff is able to drive to a limited extent and could, presumably, do that. There is the evidence that the plaintiff's husband showers the children, although in cross examination the plaintiff said that she was able to look after the children in this respect, albeit with difficulty. 250 I consider that there is a compensable need to be addressed concerning care for the children but I find it extremely difficult to quantify. If the need arises for the children to be driven any significant distance, that would be a task for which it would be reasonable for a carer's services to be called upon; if the plaintiff had to go to a doctor for one of the compensable problems that she experiences, it would be reasonable for a paid carer to attend to the children's needs in her absence. There are heavier types of activities that the plaintiff would otherwise undertake for her children that she is physically unable to undertake. These would include making their beds and hanging out their washing. 251 Ms Burke, on the defendant's behalf, resists the making of any allowance for the future and has pointed out that none of the plaintiff's experts have submitted that the plaintiff requires childcare services until the younger boy reaches the age of twelve years. However, I have concluded that there is a compensable need for a shorter period, and whilst it is difficult to quantify, I propose to allow an average half an hour per day to meet this need until the end of the year 2009, by which time Riley should have settled down at school. Adopting this approach, and rounding the calculation off, I allow $18,419 for future childcare. Remaining Scott Schedule items 252 I will consider the remaining items on the Scott Schedule in the order in which they have there been presented. O/T ergonomic adjustments O/T kitchen assessment 253 It is convenient to deal with these two items of the schedule together. Ms Berger has recommended that an occupational therapist attend upon the plaintiff to educate her as to how to adjust the chair for the computer. Ms Berger has proposed a single visit of approximately one hour. 254 Then, so far as the kitchen is concerned, Ms Berger has recommended that an occupational therapist visit the plaintiff to provide her with education in task management in the kitchen. It has been proposed that there be two sessions for this purpose. 255 Ms Berger acknowledged in cross examination that the same occupational therapist should be able to give the necessary training and instruction concerning the chair and the kitchen tasks. 256 It would seem to me that two visits altogether would be adequate for these tasks and accordingly I allow $320 altogether for items 4 and 5 in the Scott Schedule. Recliner chair 257 The plaintiff informed Ms Berger that she is able to rest in a recliner chair without aggravating the pain in her neck or her right shoulder and Ms Berger recommends the purchase of a recliner chair, which would have to be replaced every eight to ten years. 258 Whilst in the Scott Schedule, allowance of this item was opposed by the defendant and it was pointed out in the schedule that the plaintiff had not given any evidence that she would use the chair, it was conceded in addresses that the plaintiff would use it if it was available. This concession was made to avoid the necessity for the plaintiff to be recalled for the purpose of addressing this issue. 259 Because of the difficulties that the plaintiff does experience in achieving sedentary comfort, I consider this item is a reasonable one and should be allowed. The claim for the item, including the initial cost and periodic replacement is $10,814. That costing is not disputed and I allow it. Occupational therapist lifting techniques 260 In her later report of 12 February 2005, Ms Berger recommended that the plaintiff attend upon an occupational therapist for one session for education in proper lifting techniques and manual handling. There is no dispute as to this item nor as to its cost, stated to be $150. I allow the claim. Vehicle modification 261 The plaintiff's evidence is that her driving tolerance is limited to short trips into town. Stress on the upper limb can be reduced, in Dr Winer's opinion, by automatic transmission and power steering. Ms Berger is of the opinion that it would be reasonable to modify the plaintiff's vehicle with the provision of a steering knob but this would involve assessment by an occupational therapist. The overall cost associated with modification and instruction, according to Ms Berger, would be $2340. The defendant agrees as to the costing but does not accept that a reasonable need has been established. 262 Mr Holden, in his report, recommended that car modifications be made if there was a necessity for the plaintiff to increase her driving tolerance. However, in his evidence Mr Holden indicated that the basis for the recommendation was that if the plaintiff had to travel greater distances, for instance to go to work, her driving tolerance could be increased. He said, however, that he would not make this recommendation if the plaintiff is able to drive for as long as forty to forty-five minutes at a time. 263 I do not see why the plaintiff's driving tolerance should be limited to forty-five minutes if it can be increased by vehicle modifications. Hence, it seems to me that it is reasonable to make provision for the cost of vehicle modifications, such as a spinner knob, that would increase the plaintiff's driving tolerance. The outlay is reasonably small and I propose to allow it. I include the sum of $2340 in my assessment. Computer desk 264 The plaintiff complained to Ms Berger that she experienced difficulty using her computer for more than about thirty minutes (see Ms Berger's report of 11 June 2003, para 15.3). In Ms Berger's opinion, the present setup is not ergonomic and Ms Berger recommended the acquisition of a computer desk with an ergonomic office chair. The defendant disputes the need and the cost. 265 In her evidence, Ms Berger said at the present time the plaintiff has a computer on a desk in the corner of her bedroom which is on a fixed height table. The plaintiff used a fixed height dining chair to gain access to the computer. 266 I consider that it is reasonable to allow the claim presented in the Scott Schedule notwithstanding the costings suggested by Ms Berger. What is claimed is $500 altogether and this seems to me to be reasonable. I include this sum in the assessment. Wall oven 267 Ms Berger has recommended the provision of a wall oven for the plaintiff. That recommendation does not appear to be supported by Mr Holden nor by Dr Henke. However, as to Dr Henke, he acknowledged the pre-eminent role of an occupational therapist in addressing kitchen ergonomics (T 708): "Q. When it comes to what I have described as the nuts and bolts items and, say, for example, the kitchen ergonomics, are they best left to the specialty of the occupational therapist who is well experienced in setting up houses for the disabled? A. I generally use an occupational therapist to advise me on those things." 268 I am persuaded by Ms Berger's evidence that it would be reasonable to make modifications to the kitchen to address the plaintiff's complaints of pain. Ms Berger was asked in her evidence this question and gave this answer concerning the provision of a wall oven (T 662): "Q. Why would you recommend that the existing floor oven be removed and a wall oven put in? A. Along with the total modifications to the kitchen, a floor - Liza reports that she has aggravation of pain if she is bending over to lift something or if she is lifting something which is below her waist level. So the raising of the oven to a wall oven is so she can have the bottom tray, if that were to be carried out the bottom tray of the wall oven would be the same height as the work bench so there would be a minimum amount of lifting, and the oven top also be incorporated into the work bench so that she would be in a position to slide equipment around the work surface rather than trying to lift it." 269 I am persuaded by Ms Berger's evidence that it is reasonable to allow for the provision of a wall oven. The estimated cost of $1300 is not challenged and, accordingly, I allow that amount. Top cook plate 270 Once again, this is supported by Ms Berger. Indeed, her recommendation for the kitchen is contained in para 15.8 of Ms Berger's report of 11 June 2003: "It is recommended that all overhead cupboards are removed and a walk-in pantry is built, that the existing floor oven is removed and a wall oven, cost about $1,300.00, and bench top cook plate, cost about $1,000.00, be installed, and the height of the work benches be raised to about 950mm above ground with the benches being a minimum of 600mm wide to allow storage of electrical equipment on the bench top. Vertical storage racks for storage of china is recommended. Costs of the modifications would need to be quoted by a licenced builder but would be expected to cost in the range of $8,000-10,000.00." 271 Ms Berger remarked in her evidence (T 683) that the stove is a lot lower than the bench. She disagreed with the proposition that the height of the stove made it easy to take food from the work bench to the stove. 272 In her evidence, the plaintiff complained that she had difficulty removing things from the stove. 273 Here again, whilst I do not overlook the contrary views of Dr Henke and Mr Holden, I am persuaded by what Ms Berger had to say about this item that it is reasonable to allow it, and I propose to do so. The claim is for $1000, and the costing is not disputed. Hence, I allow $1000 for a top cook plate. Kitchen modifications 274 The modifications proposed by Ms Berger are not recommended by either Dr Henke or Mr Holden. However, having read the evidence in point, I find myself persuaded by Ms Berger that it is reasonable to make provision for modifications such as would facilitate access for the plaintiff to the various work areas in her kitchen. I consider it is reasonable to conclude that what Ms Berger has proposed would reduce the strain on the plaintiff. 275 Ms Berger proposed a cost range from $8000-10,000. There is an architect's report in evidence from Mr Halperin. The modifications that report addresses are not on all fours with those proposed by Ms Berger, so the costing reached by the architect is not the same. I propose to allow the midpoint of the range of costing proposed by Ms Berger, namely the sum of $9000. Tray mobile 276 Ms Berger has recommended that the plaintiff be provided with a tray mobile to facilitate wheeling items around. This claim is not challenged, nor is the cost. Accordingly, I allow $150 for it. Can opener Bench mounted jar and bottle opener Electric knife 277 It is convenient to deal with these items together. The defendant does not accept these claims as reasonable and says that there is no evidence from the plaintiff that she would use any of these items. Dr Henke reported that the nerve injury has not brought about a need for items such as these. 278 Ms Berger has opined that these items may avoid pain being aggravated in the upper limb by activities such as opening jars, bottles and cans. The plaintiff has expressed difficulty in performing such tasks. These objects would minimise exertion in the use of the right upper limb, as would the provision of an electric knife. In the circumstances, I regard this claim as reasonable. 279 I therefore propose to allow all three items. The costs claimed are not in dispute, and I therefore allow $150. Hand held massager 280 This claim was not pressed, and I make no allowance for it. Remote control and air conditioner 281 The plaintiff gave evidence (T 55) of her difficulty in finding a comfortable position in bed and of the problem she experienced in turning over to turn off the bedside light. Hence, she would go to sleep with the light on. 282 The plaintiff gave no evidence that she had difficulty with electric switches other than the bedside lamp. Indeed, her evidence (T 221) was that she was able to operate power points and light switches. 283 The claim for a remote control reflects an adoption of what Ms Berger wrote (para 15.5 of her report of 11 June 2003): "As Ms Wighton is unable to turn off the powered items in the bedroom to include the television, air cooler, heater, heater control for the water bed and bedside lamp, it is recommended that she have a remote control system, cost to be quoted by a tradesman who is qualified in electronic controls." 284 The plaintiff told Ms Berger that she was unable to turn off the powered items in the bedroom referred to in her report. That complaint was not consistent with the plaintiff's evidence in Court. 285 The defendant submits that it would not be reasonable to make provision for remote control as envisaged by Ms Berger, and having regard to the plaintiff's evidence, I accept that submission. I do not allow this claim. Bathroom modifications 286 A claim is made for the cost of certain modifications to the bathroom. These include enlargement of the shower cubicle, including the provision of grab rails, a new higher vanity and wall cupboard, and the installation of a spa bath. The cost quoted by Mr Halperin for this work is $4000. A claim was earlier made for the provision of a bidet. However, Mr Williams wisely did not proceed with that claim. 287 As to the spa bath, Ms Berger recommended it to provide heat and massage as a pain management strategy. In my opinion, this is a reasonable recommendation. 288 The plaintiff told Mr Halperin that the modifications to the shower cubicle would allow her greater flexibility of movement in the shower, as would the inclusion of the grab rail supports and the folding seat. Mr Halperin considered that to raise the current vanity unit to a more suitable height for access to the basin would be advisable, as would a wall cupboard rather than under bench storage. 289 The oral evidence did not focus on these matters, but having regard to the plaintiff's difficulties and what Mr Halperin has written, I am persuaded on balance to allow the sum of $4000 for the bathroom modifications. Therapeutic pillow 290 This was recommended by Dr Winer. This is an electric pillow to provide both massage and warmth. The user reclines against the pillow for fifteen to thirty minutes at a time. 291 There was no evidence from the plaintiff that she would use this item if provided. The plaintiff did give evidence of using a pillow but this she places in her lap as a reminder to sit up straight. It is not the sort of pillow Dr Winer has recommended. 292 Nevertheless, it seems to me to a reasonable provision and the cost of it is not in dispute. I allow $600 for the electric pillow. Bedroom workbench 293 A claim is made for the provision of a workbench in the bedroom such as could be used for tasks like folding the laundry. There is no dispute about this item, nor as to the cost of $600. I allow this claim. Summary of assessment 294 I summarise the assessment of damages which I have reached as follows: Allowance for non economic aspects (40% of maximum allowance) $160,000.00 Economic loss Past $58,000.00 Future $200,000.00 $258,000.00 Lost superannuation benefits Past $4,252.00 Future $18,000.00 $22,252.00 Out of pocket expenses $12,793.86 Past gratuitous care $51,187.20 Future care $143,855.00 Pain massage – past $15,000.00 Future physiotherapy $900.00 Future medical care Pain management programme $6,200.00 Psychiatric treatment $6,570.00 General practitioner and analgesia $1,500.00 $14,270.00 Home maintenance Past $4,662.00 Future $26,647.30 $31,309.30 Future childcare $18,419.00 Remaining Scott Schedule items: OT ergonomic adjustments} OT kitchen assessment} $320.00 Recliner chair $10,814.00 OT lifting techniques $150.00 Vehicle modification $2340.00 Computer desk $500.00 Wall oven $1300.00 Top cook plate $1000.00 Kitchen modifications $9000.00 Tray mobile $150.00 Can opener} Bench mounted jar and bottle opener} $150.00 Electric knife} Bathroom modifications $4000.00 Therapeutic pillow $600.00 Bedroom workbench $600.00 $ 30,924.00 $758,910.36 Formal findings and orders 295 1. I find negligence to have been proved. 2. I do not find the plaintiff to have been guilty of contributory negligence. 3. I assess damages in the sum of $758,910.36. 4. The issues of costs and the awarding of interest, if appropriate, are reserved pending further submissions. A date for the purpose of hearing such submissions is to be appointed with my associate within the next seven days. ********** 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.