District Court New South Wales Medium Neutral Citation: Fogarty v Coles Supermarkets Australia Pty Ltd [2017] NSWDC 396 Hearing dates: 30 – 31 October, 1 – 2 November 2017 (Port Macquarie) Date of orders: 02 November 2017 Decision date: 02 November 2017 Jurisdiction: Civil Before: Neilson DCJ Decision: I give verdict and judgment for the plaintiff against the defendant for $536,950.41. I grant credit to the defendant for the sum of $6,590 already paid by the defendant to or on behalf of the plaintiff by way of partial reimbursement of out of pocket expenses. I order the defendant to pay the plaintiff's costs on the ordinary basis until 14 August 2017 and thereafter on an indemnity basis. Liberty to the parties to apply in the event that the calculations provided to me by counsel as to the quantum of the claim for past gratuitous attendant care services are inaccurate. Catchwords: CIVIL – TORTS – Damages for personal injury for tort of negligence – Slip and fall in supermarket on pool of water – Long history of back injury – Nevertheless, degenerative condition in back caused by fall on 29 October 2007 Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Calderbank v Calderbank [1974] 3 All ER 333 Category: Principal judgment Parties: Yvonne Evelyn Fogarty (Plaintiff) Coles Supermarkets Pty Limited (Defendant) Representation: Counsel: Mr E Romaniuk SC with Mr T Willis (Plaintiff) Mr N Polin SC (Defendant) Solicitors: JM Glass & Son Solicitors (Plaintiff) Richard Mole & Associates (Defendant) File Number(s): 2010/365990 Publication restriction: Nil Judgment 1. HIS HONOUR: These proceedings concern the late Robert Aubrey Ernest Fogarty. Unfortunately Mr Fogarty died on 24 December 2015. These proceedings have been continued by his widow, Mrs Yvonne Evelyn Fogarty, as the representative of his estate. I trust I shall be forgiven by referring to the late Mr Fogarty as the plaintiff and to his wife as either his wife, Mrs Fogarty, or his widow. 2. The plaintiff commenced proceedings in this Court by a statement of claim filed at Port Macquarie on 4 June 2015. He brought proceedings against Coles Supermarkets Australia Pty Ltd, which was the occupier of a supermarket at Bold Street, Laurieton. According to the statement of claim the plaintiff entered these premises on 29 October 2007 to purchase something and the evidence before me is that he went there to purchase a loaf of bread. As the plaintiff approached the bread stand in the bakery section of the defendant's supermarket he slipped on a puddle of water and fell to the floor. 3. His cause of action is for damages for personal injury for the tort of negligence. On the second day of the hearing, the defendant admitted that it was guilty of a breach of a duty of care owed by the defendant to the plaintiff. No formal admission of liability was made. The admission therefore does not admit that the plaintiff suffered any damage. However, there is little dispute that the plaintiff did in fact suffer damage. Contributory negligence 1. The remaining issue concerning liability is the question of contributory negligence. The onus of proof of contributory negligence lies upon the defendant. The particulars of contributory negligence pleaded in the defence filed on 7 April 2016 are these: "(a) the plaintiff failed to take any or any reasonable care for his own safety. (b) the plaintiff failed to keep any or a proper lookout. (c) the plaintiff failed to look where he was walking and to observe the floor for any substance in front of him upon which he stepped. (d) the plaintiff failed to heed the presence of any substance that was upon the floor." The first particular of contributory negligence is not a particular of contributory negligence at all: it is merely an allegation that the plaintiff was negligent. The final three particulars in essence plead the same issue – i.e. that, the plaintiff failed to keep any or any proper lookout. The allegation made by the defendant is that if the plaintiff had done so, he would have seen the puddle of water on the floor and taken steps to avoid placing his foot inside the puddle of water. 1. The case mounted for the plaintiff was that he entered the supermarket on a wet or rainy day, and that the water into which he stepped and which caused the slip, which led to his falling, was due to a leak of rainwater through the roof and ceiling of the supermarket onto the floor immediately adjacent to the bread rack in the bakery section of the defendant's supermarket. The plaintiff's case was based upon there being a puddle of water that was about 1 metre in diameter and in the shape of a dinner plate – i.e., it was circular. Estimates have been made by experts retained by the plaintiff's solicitor to ascertain what the depth of a puddle of water of that nature might be (maximum of 5.4mm). 2. The defendant, however, says that the water had not leaked through the roof but may have been deposited by an umbrella used by another customer. That is the contemporaneous evidence contained in a report of incident form compiled by the defendant's employees and dated 29 October 2007, the date of the accident itself. The report form is exhibit E. According to that document, there were no witnesses to the occurrence. The occurrence happened at 10.35am. The information inserted into the document by its compilers in answer to item 14, "additional information about the incident", is this: "Water at corner of bread display, possibly off an umbrella." There is no evidence that the plaintiff himself was carrying an umbrella, and if he were, no doubt the report form would have recorded that fact. Therefore, if the water did come from an umbrella, it was an umbrella carried by another customer. How long that water may have been in situ is not explained by that contemporaneous document. However, the use of the word "possibly" clearly indicates that the reason for the presence of the water on the floor was supposition. 1. Furthermore, the evidence does disclose that the place where the plaintiff fell occurred approximately 23 metres from the main entrance of the supermarket. That figure is based on the distance of approximately 9 metres from the main entrance doors of the supermarket to the trolley bay, and approximately 14 metres from the trolley bay to the point adjacent to the bread display where the plaintiff indicated to the experts retained on his behalf, in particular Mr Jason Wagstaffe, where he fell. Mr Wagstaffe carried out the formal slip testing requested of him. He was accompanied by the principal of the business which employed him, Mr David Cockbain, who describes himself as a principal consultant. Mr Cockbain interviewed the plaintiff and swore an affidavit deposing to the matters that he was told by the plaintiff. 2. Mr Cockbain and Mr Wagstaffe came to the conclusion that it was unlikely that the pool of water described by the plaintiff, which I have referred to as a "puddle", could have come from an umbrella carried by another customer of the supermarket. In exhibit C, Messrs Cockbain and Wagstaffe said this: "41. The writers are of the opinion that if the scenario, whereby the pedestrian walking surface was contaminated by rainwater carried into the Defendant's premises and deposited onto the pedestrian walking and working surfaces by water dripping off umbrellas, the rainwater would contaminate the pedestrian walking surface from the main entrance of the premises through to the bread display, a distance of approximately 23 metres and provide a hazard along the continuous length. It is also the writers' experience that water emanating from the umbrellas would be more prevalent at the entrance to the store and less prevalent further into the store. 42. The writers are also of the opinion that for a pool of water to be evident at the bread display, where the plaintiff slipped and fell, and deposited as a result of rainwater dripping off umbrellas then a significant amount of water would have been evident at the entrance to the premises and at the trolley bay where customers would momentarily stop and collect a trolley. 43. Additionally, it is the opinion of the writers that umbrellas are closed by users at the entrance to the store with a significant amount of water liberated from the umbrella at closing. Due to the fact that umbrella(s) had to be carried approximately 23 metres to the point where the plaintiff suffered his slip and fall then the hypothesis of an umbrella carrying sufficient moisture to produce a significant pool of water is not supported." One really does not need an expert to express such opinion. It is sheer common sense, based on human experience. Most Australians have, at some stage in their life, carried an umbrella and know how such apparatus work and the consequence of closing the apparatus and then carrying it after it has been used. It is more probable than not that the case argued by the plaintiff, that the water entered the premises through a leak in the roof and ceiling, is correct. 1. Evidence was given by Mrs Fogarty about her experience of shopping at this supermarket prior to the time of the husband's fall. She and her husband had been visiting this supermarket since they opened their own business, "Bob's Takeaway" at North Haven, in or about 1984. Mrs Fogarty estimated that she would attend the supermarket once or twice each week but her husband, the plaintiff, would have visited the supermarket much more regularly, and she estimated that, "He'd go nearly every day." That is understandable when one considers that in approximately 1984 after a serious cardiac condition, the plaintiff stopped working and obtained an Invalid Pension, and had not been working since the mid to late 80s at all. He could therefore attend the supermarket almost daily if he wished to pick up anything that needed to be used in the family home at North Haven. 2. Mrs Fogarty was aware of there being a leaking of water from the roof of the supermarket prior to the time of the plaintiff's accident. She said that on days when it rained there were often buckets in the aisles, together with signs indicating that the floor might be slippery or that caution was required by a pedestrian. These were the yellow and black signs that one often sees in public places. She also said that there were a large number of different receptacles used for catching water leaking from the roof/ceiling. They could be garbage bins, which were white, and smaller receptacles which she described as "flower drums" that were black in colour and smaller. However, flowerpots generally have holes in the bottom to allow water to escape, so probably what Mrs Fogarty described as flowerpots were, in fact, smaller buckets with or without handles. She had noticed those in the past in the area of the bread stand in this supermarket. At other times she had entered the same supermarket when it was raining outside and there were no buckets or signs in the aisles, but she was aware that there may have been water on the floor. 3. The defendant argues, therefore, that if the plaintiff were a regular visitor to this supermarket he would have experienced, in the past, rainy days in which water was leaking through the roof and ceiling and falling onto the floor of the supermarket when there were no precautions to protect visitors to the supermarket, such that he should be aware that if it were raining outside, there might be puddles of water on the floor of the supermarket without any warning signs or precautions taken to prevent injury to persons using the supermarket. On the other hand, the plaintiff very correctly points out that the evidence adduced from Mrs Fogarty does suggest that there were buckets and signs regularly used when there was a leak from a roof or ceiling, that this event happened at 10.35am in the morning, and not, for example, immediately after the supermarket opened at 7am, if that were the correct opening time. The opening time might have been at 6am. One might think that if the supermarket was closed overnight, the water might leak onto the floor during the night, and the first visitors to the supermarket might be those who were exposed to undetected pools of water from unknown leaks in the roof. This was not the scenario on 29 October 2007. 4. Furthermore, the evidence does suggest that there may have been leaks through the roof, but dependent on the type of weather event. Wind could blow rain in at an angle, either from the south, from the sea i.e. from the east, from the north or nor'east, where winds tend to blow in summertime, or from the west, where winds can blow at many times of the year but often in winter. The whereabouts of a leak and the extent of the leak might depend upon the angle at which the rain hit the roof, upon the amount of rain hitting the roof, and/or upon the force of its falling. There might be a gentle shower where no water might enter through a hole, but there could be a driving southerly rain where much water might enter through the roof. Merely knowing that it was a rainy day would be insufficient to alert any customer that there might be water on the floor without any warnings made or precautions taken, which, however, were usually taken or usually made. 5. The risk of there being a leak through the roof leading to a puddle of water on the floor, which was undetected by the defendant, and precautions being taken, was very low. The evidence strongly suggests that the roof had been leaking for a considerable period of time, and in fact has been leaking until very recently, and that precautions are regularly taken by the defendant by using buckets to catch leaking water, by covering the floor with things such as mats or cardboard to absorb a leak, and by the erection of warning signs and the like. That appears to be the usual practice at the Coles supermarket at Laurieton. A customer such as the plaintiff, knowing that the defendant usually disclosed leaks and puddles and erected warning signs or took precautions, would be entitled to behave as the customer usually did. 6. Furthermore, the argument mounted by the defendant is really based upon the description of a very large puddle of water provided by the plaintiff, whereas the description of water provided by the defendant itself, through its own employees, appears to be of a much smaller amount of water. If the amount of water in question were not particularly great, nevertheless the expert evidence makes it clear that even a small amount of water spilled on the floor carries a risk of causing a slip or fall on the type of linoleum floor covering used at this supermarket. I am therefore not satisfied on the balance of probabilities that the plaintiff himself was guilty of any negligence so that the defendant has failed to make out that he was guilty of any contributory negligence. Damages 1. The real issues in this case concern the quantum of damages. The plaintiff only claims damages for past non-economic loss, i.e. pain and suffering and the like experienced by him between 29 October 2007 and the date of his unfortunate death on 24 December 2015, his out of pocket expenses, and there is a claim for gratuitous attendant care services from the time of the accident until the time of the plaintiff's death. The calculation of damages is far from straightforward. The simple fact is that the plaintiff had had ill health for many, many years prior to 29 October 2007. The plaintiff's background 1. Mr Fogarty was born at Scone on 29 May 1948. At the time of the accident currently in question, he was 59 years old. At the time of his death, he was 67 years old. At the time of the accident, the normal life expectancy for a 59 year old man was about 26 years. The plaintiff only lived for a further eight years until his unfortunate death. 2. The plaintiff undertook his secondary school education at Nundle High School. He left high school at the end of year 9 - in other words, he did not complete high school which then would have extended to Year 11 or Fifth Form, as it was called. Mrs Fogarty told me that her late husband did not obtain the Intermediate Certificate, which was the qualification which somebody born in 1948 would attempt to achieve by completing Year 9 education or, as it was called at the time, Third Form. After leaving school, the plaintiff did rural work. The evidence disclosed that he performed farm work, work as a shearer and work as a fencing contractor including erecting stockyards. Medical history 1. His ill health can be dated back to his adolescence. The plaintiff was admitted to the Royal North Shore Hospital on 11 February 1997. I will have more to say about that admission later. Importantly, he was interviewed at Royal North Shore Hospital by Dr Brooker of the Pain Management Clinic on 13 February 1997. Dr Brooker's history is this: "48 year old male. Worked as a shearer for 10 years (aged 28 38). No work [now] for 10 years (ischaemic heart disease). Was in brace as teenager [for] known thoracic scoliosis. Back ache as shearer (resolved). Then pain free till 8 months ago." Dr Brooker went on to obtain a history of increasing thoracic back pain. There was also reference in the voluminous medical evidence before me that the plaintiff had Scheuermann's disease, which affects the thoracic spine in adolescent males generally. Sometimes it can also affect adolescent females. The combination of Scheuermann's disease and the thoracic scoliosis no doubt predisposed Mr Fogarty to developing back pain when doing any manual work - which the work of a shearer is, and as are the heavy work of fencing and many other forms of rural work. 1. The medical evidence before me does not go back to the plaintiff's teenage years. The first medical record I have is from the Royal Newcastle Hospital and refers to operative treatment afforded to the plaintiff by Dr Plowman, an orthopaedic surgeon at Newcastle. On 14 March 1984 Dr Plowman performed a tenodesis of the long head of the biceps tendon in the plaintiff's right shoulder. He clearly had some problem with that shoulder arising from some incident in his life prior to March 1984. 2. On 21 April 1985 the plaintiff suffered a large anteroseptal infarction of the heart muscle. He was admitted to the Hastings District Hospital where he was an in-patient until 1 May 1985. There is before me is a handwritten discharge summary prepared by Dr Alan Peek. That discharge summary tells me that the plaintiff had a previous episode of chest pain in identical situation to the circumstances which led to this admission. That previous episode was four weeks before 21 April 1985. The plaintiff had been seasick, and that led to vomiting followed by pain, presumably in the chest. Immediately prior to the infarction diagnosed on 21 April 1985, the plaintiff had been on a boat and became seasick, had commenced vomiting, and that was followed by crushing retrosternal chest pain with radiation to the right arm. Crushing chest pain with pain radiating to an arm is a classic symptom of a myocardial infarction, although typically any pain radiates to the left arm, on which side of the body the heart is. The discharge summary tells me that the plaintiff had a number of risk factors for heart disease: he was then smoking 25 cigarettes per day; he was obese; he had mild hypertension, and a positive family history of cardiac disease. It took the staff at the Hastings District Hospital five days to settle the plaintiff's pain after he was placed in the intensive care unit. On the day that he was due for discharge there was a recurrence of angina pectoris for which he required both an anti anginine and oxygen. Dr Peek in the discharge summary referred the plaintiff toDr Walsh, who I assume was a cardiologist. Unfortunately I have nothing from Dr Walsh. 3. The next event is an admission to the Hastings District Hospital on 13 April 1986 for severe central chest pain, sweating and difficulty breathing, the breathing difficulty being brought on by the plaintiff's having been injected with morphine, to which it has been subsequently established he is allergic. The plaintiff spent three days in hospital on that occasion. From subsequent medical records I know that the plaintiff underwent coronary artery grafting in 1986, but after that there was an infarction six months later. There was then further coronary bypass surgery performed at St Vincent's Hospital. 4. The next medical record I have is from the Tamworth Base Hospital where the plaintiff was admitted on 21 October 1992 with left sided chest pain. He was driving from North Haven to Tamworth to visit his sister when he had this experience of chest pain. The final diagnosis was that this chest pain was due to anxiety and stress rather than recurrent ischaemic heart disease. That is completely understandable because the plaintiff's sister whom he was visiting was dying from cancer. The relevant issues 1. Yesterday afternoon when I was required to adjourn, I was recording the past medical history of the late Robert Fogarty. I should interpolate at this stage the exact issues to which consideration of the plaintiff's medical history go. In essence the plaintiff alleges that in the fall at the Coles Supermarket on 29 October 2007 he injured his low back, specifically the lumbosacral region, and the area immediately above that, the L4-5 segment. Eventually the plaintiff came to laminectomy and fusion between L4 and the sacrum. That was first practised in early 2013 and needed to be repractised in late 2013. An essential issue is whether the plaintiff did injure his low back in the fall on 29 October 2007 and whether the effects of that injury persisted up until the time of the spinal surgery. In considering that issue, it is necessary to consider whether there were any earlier complaints of low back pain indicating the existence of low back pathology and, if there had been such complaints in the past, whether any such complaints had resolved so that the event of 29 October 2007 should be seen as the effective cause of low back complaints thereafter. 2. The other issue to which I must direct my attention is the extent of the plaintiff's ill health prior to 29 October 2007 and the quality of his lifestyle because that directly relates to the effect of low back pain after 29 October 2007 and on the quality of the plaintiff's life. Further medical history 1. On 27 October 1993 the plaintiff came under the care of Dr Alan Hopcroft, a general surgeon specialising in orthopaedics and carrying on practice principally at Taree. The plaintiff was referred to Dr Hopcroft by a general practitioner at a practice in Laurieton which I understand may have then been called the Camden Haven Medical Practice. When the plaintiff saw Dr Hopcroft on 27 October 1993 he had chronic pain and swelling in his right knee. The plaintiff told Dr Hopcroft that in his youth he had played a lot of football, by which I understand he meant Rugby League, and that he had hurt his knee from time to time, but previous injuries had never brought him to a "standstill". By the time the plaintiff saw Dr Hopcroft, he was finding it difficult to walk and his sleep was being interrupted by his knee pain. On examination Dr Hopcroft found quite marked localised joint tenderness over the posterior horn of the medial meniscus and when the doctor considered X-rays taken on 27 October 1993, he perceived the plaintiff was suffering from early degenerative changes in his knee joint. Dr Hopcroft recommended arthroscropy. That was carried out at the Manning Base Hospital on 2 November 1993. 2. The relevant reports of Dr Hopcroft are part of exhibit KK. Unfortunately I have only the first page of Dr Hopcroft's report of 8 November 1993 which advised the result of the arthroscopy on 2 November 1993. At operation Dr Hopcroft found a chronic, grossly torn posterior horn of the medial meniscus which required excision. He found quite marked wear and tear on the medial tibial condyle. The lateral meniscus was also frayed and that required trimming. Dr Hopcroft thought it must have recently jammed in the knee joint itself, causing symptoms. The doctor also practised surgery on the medial plical fold in the suprapatellar pouch which was impinging the medial femoral condyle. He may have found further pathology, but I do not know what it may be. Clearly the plaintiff's right knee was affected by degenerative changes and one would expect his left knee would probably also have been affected by degenerative changes pointing no doubt to the plaintiff having performed in the past fairly heavy manual work. 3. Yesterday I recited part of the history reported by Dr Brooker at the Royal North Shore Hospital on 13 February 1997. That history suggested that the plaintiff had worked for ten years as a shearer between the ages of 28 and 38. That is likely to be inaccurate, and if the plaintiff did work as a shearer for ten years, it is more likely than not that the years were between the ages of 18 and 28. By the age of 38 the plaintiff was already on an Invalid Pension. 4. The next series of medical reports before me commence in 1996. This was the commencement of a large number of investigations. The first report I have is from Dr A B F (Sandy) Grant, a urologist. His report of 1 October 1996 is addressed to another specialist at Port Macquarie with copies being sent to the plaintiff's treating general practitioner in Laurieton, and also to a renal physician in Port Macquarie. The plaintiff gave Dr Grant a history of right-sided abdominal and flank pain which had been affecting him for "several weeks". That had not been associated with any urinary symptoms. Earlier investigations included cystoscopy and a retrograde pyelogram. The plaintiff gave Dr Grant a history that he had previously had his gallbladder removed because of the presence of gallstones. The plaintiff told Dr Grant that the pain was very similar to the pain that he experienced when he had gallstones. Dr Grant recorded that the plaintiff had had "multiple investigations" for the pain thus far, but nothing had yet been discovered. The plaintiff was becoming frustrated with the lack of a diagnosis. Dr Grant was considering transferring the plaintiff from Port Macquarie to Newcastle to arrange for further investigations. 5. The plaintiff was, in fact, transferred to Newcastle where he came under Dr Grant's care. In order to exclude any renal pathology, that is, any problem in the kidneys, Dr Grant arranged for a further retrograde pyelogram using fluoroscopic screening. Nevertheless, Dr Grant thought it was unlikely that there was a urological explanation for the plaintiff's pain. That opinion was later confirmed. 6. The plaintiff was then seen in Newcastle by Dr George Radvan who felt that there was no gastroenterological explanation for the plaintiff's symptoms and Dr Radvan thought that it might be caused by a musculoskeletal problem. For that purpose the plaintiff was referred to Prof Y A E Ghabrial, an orthopaedic and spinal surgeon. 7. In the meantime the plaintiff was seen by Dr A J Nicholls, a consultant physician. Dr Nicholls noted that the plaintiff had lost a lot of weight after reducing his alcohol intake and that the plaintiff needed to go on a low fat diet. Dr Nicholls pointed out that if the plaintiff regained weight his diabetes, which must have been diagnosed by that time, would become "a problem". At that stage the plaintiff's diabetes was non-insulin dependent. Dr Nicholls noted that the plaintiff had low immunoglobulins - a type of protein in the blood. I know that because in an extensive report of 27 July 2015 Associate Professor Michael Fearnside, a neurological surgeon, tells me that the plaintiff's hypogammaglobulinaemia is a form of low levels of a protein within the blood. Dr Nicholls referred the plaintiff to Dr Richard Stark, a consultant haematologist in case the low immunoglobulin level could be the cause of the plaintiff's back pain, as Dr Nicholls described the plaintiff's complaint. 8. If I may be permitted to refer to Professor Ghabrial as Dr Ghabrial, that gentleman referred the plaintiff for a myelogram of the thoracolumbar region. According to the radiologist, Dr Geraldine Long, the plaintiff's history was a tenderness between the fifth and the eighth thoracic vertebrae, with referred pain into the right loin. In the thoracic spine, there was a slight scoliosis of the thoracic spine, with the T8 and T9 vertebral bodies demonstrating slight right sided angulation. As I have previously pointed out, the thoracic scoliosis was diagnosed when the plaintiff was a teenager. There was also found to be sclerosis and hypertrophy of the T4, T7 and T8 laminae that could merely be described as reactive bony changes to thoracic disc disease. As far as the lumbar spine was concerned, Dr Long reported that that was some facet joint hypertrophy present at both L4-5 and L5-S1 that would indicate that the L4-5 and L5-S1 discs were degenerate by that time. Once a disc commences to degenerate, the associated bony structures commence to degenerate. 9. Dr Ghabrial generated a report dated 14 October 1996. On examination, he found marked tenderness at T6, T7 and T8. He also found some tenderness at the L4-5 level. Further investigations were ordered by Dr Ghabrial. They included a limited bone scan, which was reported by Dr Stevens as showing an irregular tracer uptake in the thoracic spine and scoliosis, which he presumed were related to Scheuermann's disease, which could be seen on plain X-ray. Dr Stevens also noted mild degenerative changes in the right, low lumbar facet joints, clearly echoing the radiological findings at myelogram by Dr Long. In a report dated 22 October 1996, Dr Ghabrial raised the prospect of whether the plaintiff's symptoms could be due to some sort of lymphoma, as recently the plaintiff had developed a lump in his left armpit and had been losing weight. Dr Ghabrial referred the plaintiff to Dr Seldon, another haematologist, probably being unaware that Dr Nicholls had previously arranged for the plaintiff to see Dr Stark, a haematologist. 10. Dr Stark reported to Dr Nicholls on 28 October 1996. He thought there was a possibility of a lymphoma and thought that bone marrow and lymph node biopsy were indicated. Those tests were carried out. On 31 October 1996, Dr Seldon reported that those tests revealed that the plaintiff did not have lymphoma. 11. Dr Seldon thought the plaintiff's symptoms may be due to a neurological condition and recommended that the plaintiff see the late Associate Professor J T (Terry) Holland, who was clearly held in high esteem by Associate Professor Fearnside. I shall refer in future to both Associate Professor Holland and Associate Professor Fearnside merely as 'Doctor', for convenience, but without in any way wishing to detract from their eminence in their respective specialities. Dr Holland's history is this: "The story that I obtained from him was that he was in his usual state of health until roughly six months ago when he became aware of low back pain and he has drawn it for me, so that it is right over the sacrum. Since then he has developed further pains, a little higher up in his upper lumbar region in the midline, then somewhere about T8 in the midline, and more recently in his mid-neck in the midline. The pain in the thoracic region he says occasionally radiates to just under his right shoulderblade where he has drawn it for me, but I think he really meant left, because he got left and right muddled up. Over the last two or three months he has been complaining of numbness and pins and needles intermittently down the backs of both thighs, but left more so than right, and in the last two weeks he has had intermittent paraesthesia in his feet and also in the medial two fingers of both hands. Using the visual analogue scale, he grades his low back pain, which is right over the sacral and L5 regions, as varying from 2 to 8/10 on the visual analogue scale (10, ie the worst pain he's ever had, which was that associated with his right shoulder repair 16 years ago). The lumbar pain he grades from 0 to 7/10, and his thoracic pain as 0 to 7/10, and his neck pain as 0 to 6/10. All pain seems to be aggravated by movement and standing, and more recently also in bed." Dr Holland then took a more detailed history of what might be thought to be neurological symptoms and then a history of the plaintiff's earlier problems from which it becomes clear that the plaintiff was a fairly poor historian. For example, he said that his right shoulder surgery was 16 years previously, when it was 12, that his coronary artery surgery was 11 years previously when it was less, and that his gallbladder surgery was eight years previously when it was, in fact, ten years previously. 1. The doctor also noted that the plaintiff had been recently diagnosed with NIDDM and that amongst his medications were both pethidine and Panadeine Forte. He noted the plaintiff had been retired from work for the last ten years because of his cardiac problem. That clearly indicates the plaintiff had stopped working in about 1986 which is at or shortly before the time when he commenced receiving the Invalid Pension. Dr Holland carried out an extensive examination which clearly does not reveal any true neurological deficit and led Dr Holland to believe the plaintiff was suffering from "early abnormal illness behaviour". That terminology is one often found in medical reports. Once upon a time the terminology was "functional overlay" and more recently the preferred terminology is "chronic pain syndrome". These are medical terms meaning that the doctors cannot explain the cause of the symptoms and they are postulating that it might be psychologically or psychiatrically determined. Often the term is used when the doctor cannot explain symptoms according to his discipline and his knowledge of science. The terms are often thought to be pejorative but merely represent an a priori standpoint of the medical practitioner. Dr Holland noted that the plaintiff seemed to be anxious and depressed. One would expect the plaintiff to be feeling both anxious and depressed when he had been suffering symptoms for some six months which a large conference of medical practitioners had not been able to diagnose. Of greater moment to the present inquiry is the fact that on examination, Dr Holland found that the plaintiff was exquisitely tender over the sacroiliac joints and over the sacrum and the L5 vertebra. Those combined with the other complaints recorded by Dr Holland clearly indicate that the plaintiff was having symptoms in his low back at the time, as Dr Ghabrial had earlier found. 2. On 6 November 1996 Dr Ghabrial arranged for a CT scan of the plaintiff's low back. That was reported by Dr Colin Walker as showing no evidence of a disc protrusion or any explanation for symptoms in the plaintiff's left leg. Dr Ghabrial then arranged for an MRI scan of the thoracolumbar spine which was reported by Dr Bateman on 26 November 1996 as showing no abnormality. 3. It would appear that since the plaintiff was taken to Newcastle at the behest of Dr Sandy Grant, he had been kept in various clinics. Dr Grant reviewed the plaintiff at the Lingard Private Hospital on 4 December 1996. It was thought the plaintiff may have some urinary symptoms at that time due to an obstruction of the neck of the bladder and certain medication was prescribed but that did not relieve the plaintiff's symptoms. 4. Dr Ghabrial referred the plaintiff to Dr A.J. Bookallil, a neurosurgeon. Of significance is that when the plaintiff was giving Dr Bookallil a history, he said that he was able to walk but he was weak when he walked. The plaintiff said that his pain level was reasonably satisfactory if he was lying in bed but if he sat up in bed to have his breakfast in the hospital, he had pain in his back. The only diagnosis proffered by Dr Bookallil was of thoracic scoliosis without any neurological deficit. He thought the plaintiff should be managed conservatively. He did not recommend any surgery. 5. Further radiological investigations were then made of the thoracic spine. Dr Garvin Williamsz reported films taken on 9 December 1996 at the Lingard Private Hospital as showing an exaggerated dorsal kyphosis with vertebral wedging and it was suspected that that could relate to osteoporosis. Dr Ghabrial then arranged for a radionuclide bone scan to be performed on 17 December 1996 but that really revealed no underlying pathology. A lower thoracic CT scan was then performed 18 December 1996 but showed really only the long and well-documented scoliosis. 6. The plaintiff then had a large number of chest X-rays performed at Port Macquarie between 17 and 28 January 1997. They were made at the request of Dr Geoffrey Williams, a consultant physician practising here at Port Macquarie. I know from documents produced on subpoena by the Royal North Shore Hospital that Dr Williams admitted the plaintiff to the Port Macquarie Private Hospital on 15 January 1997. The reasons Dr Williams admitted the plaintiff to hospital included back pain. Exhibit EEE is a report from Dr Williams of 6 February 1997. In that report, the doctor records the plaintiff's being investigated by a large number of doctors at Port Macquarie and then in Newcastle, and then tells me that Dr Deacon, the last Newcastle consultant to examine the plaintiff prior to his returning to Port Macquarie, suggested the diagnosis was diabetic radiculopathy. Dr Williams himself was able to determine that the plaintiff had an area of diminished pinprick in the mid to low thoracic region on the right side that could well be consistent with a radiculopathy of some form. Unfortunately there is no evidence before me from Dr Deacon, who made the diagnosis. 7. Dr Williams referred the plaintiff to a Dr Catherine Storey, a neurologist practising at the Royal North Shore Hospital. On 11 February 1997 the plaintiff was transferred by air ambulance from Port Macquarie Private Hospital to Royal North Shore Hospital, where he was admitted under the care of Dr Storey. The plaintiff was an inpatient at the Royal North Shore Hospital from 11 to 20 February 1997. This admission appears to have been the last of a series of hospital admissions which saw the plaintiff in hospital for the best part of six months. The records before me indicate the plaintiff was reviewed at Royal North Shore Hospital by a large number of medical practitioners including dermatologists, dietitians, psychiatrists and pain experts. I shall now continue to record the history received by Dr Brooker on 13 February 1997. I recorded the first part of that history yesterday afternoon. It continues thus: "Eight months ago gradually increasing pain from T6 to T12 radiates as indicated fashion to right hand side. Worse coughing, sneezing and activity plus plus. Some radiation to the left, sharp in nature. When he has been up pain lasts for a while till pethidine which gives 100% relief for two hours (maximum four hours). No burning or dysaesthesia but sensory loss. Associated low back pain. Paraesthesia and sensory loss on the right T6-T10." The doctor's findings on examination indicate tenderness along the whole spine from T6 to the sacrum - that is, both the lower thoracic and the whole of the lumbar spines. There was some right paraspinal tenderness between T6 and T12. However the doctor found no paraspinal or facet tenderness in the lumbar spine. Dr Brooker's provisional diagnosis was of neuropathic pain arising from some of the thoracic segments of the spine. The next entry in the records is "opiate responsive". It appears to indicate that the plaintiff could relieve his pain with the use of the opiate, pethidine. The plan outlined by Dr Brooker was for the plaintiff to replace the pethidine with methadone. 1. No formal diagnosis was made at the Royal North Shore Hospital. In a letter sent to the plaintiff's general practitioner at the time of his discharge from the Royal North Shore Hospital, a letter jointly signed by Dr Brooker, the Senior Registrar of the Pain Management Centre, and Professor Michael Cousins, a Director of the Pain Management Centre, it was pointed out that the plaintiff's symptoms were completely relieved by pethidine, but besides the diagnosis of diabetes mellitus, most tests were "equivocal". Psychological assessment by Dr Newman Harris showed that the plaintiff was not depressed and probably did not requirement the Tryptanol that he was taking, and that the dosage of it should be reduced. Finally, the letter records that the plaintiff's pethidine was replaced with a combination of Epilim and methadone which at the time of discharge was to be taken thrice daily, greater than the original prescription of twice daily. 2. The report of Drs Brooker and Cousins does not provide a diagnosis of diabetic neuropathy but that diagnosis was clearly raised by the assessment made by Dr Harris, a psychologist, and that can be found on the first page of his consulting notes made on 17 February 1997. 3. As to the extent of the plaintiff's then problem, one should have regard to the notes made by the physiotherapist on 18 February 1997. They indicate the plaintiff could attend to his self-care. They point out the plaintiff had been only at home for four days in the last six months. They indicate the plaintiff was able to do nothing around his house, that, for example, if he were washing dishes he would get back pain. The physiotherapist recorded that activity brought on pain and that had been in place for the last eight months. However, the notes then indicate that the activity brought on right-sided thoracic pain. The plaintiff's ability to sit was limited to 30 minutes, his ability to stand was not so bad, but the duration of it was not stated by the plaintiff. The plaintiff said he was only able to walk for 10 minutes and did not know if he could walk any further, that he performed no sporting activity and performed no exercises. He also said that he had not been doing any driving for the last eight months. The plaintiff's episodes of pain were causing distress to his wife and child and the plaintiff was concerned about their six year-old daughter because of his enforced separation from her because of his lengthy hospitalisation. A body diagram recorded by the physiotherapist clearly indicates a pain on the right side of the thoracic spine below the right scapular. It also indicates pain at the L4/5, L5/S1 level of the back, that is, at the junction of the spinal column with the pelvis which includes the sacrum. It was stated that most of the time the plaintiff felt "pressure" in that area of his back. 4. The plaintiff was discharged home on 20 February 1997. He was seen on a number of occasions in 1997 in the outpatients department at Royal North Shore Hospital. A note made on 5 March 1997 said that Dr Williams rang from Port Macquarie and said that it had been necessary to readmit the plaintiff because of pain and hyperventilation to Port Macquarie Base Hospital between 2 and 5 March 1997. Dr Williams was seeking advice about the plaintiff's need for Epilim and methadone. Arrangements were made for the plaintiff to be reviewed at Royal North Shore Hospital. 5. The plaintiff was reviewed on 15 March 1997 by Dr Sandy Grant who believed the plaintiff should maintain the medication prescribed for his urinary problem. He noted the plaintiff was on "regular methadone" for his chronic back pain, which Dr Grant appears to have thought was due to nerve root pain. 6. On 18 April 1997 the plaintiff was seen by both Dr Harris, a psychologist, and by Assoc Prof Molloy in the Pain Clinic. The plaintiff told Dr Harris that his symptoms were getting worse and that he was experiencing numbness and pins and needles in both his hands and his feet. Such symptoms could be due to diabetes. Dr Harris also recorded a complaint of low back pain which was described as "not fixing itself". Dr Harris thought the plaintiff needed a different form of anti-neuropathic pain relief. In a letter of 21 April 1997 Dr Molloy noted the plaintiff reported that extra methadone had eased his pain and also he had then required pethidine injections. 7. The plaintiff returned to see the doctors at Royal North Shore Hospital on 15 August. Dr Harris noted the plaintiff's biggest problem was "no diagnosis". The plaintiff was trying to give up methadone. Dr Harris noted that the plaintiff said that he was unable to survive without something for his pain. He tried to go without methadone for two or three days but then he was left "screaming with pain". Dr Harris noted that the plaintiff used words such as "impossible" and "unbearable" when recounting his pain levels when he had stopped taking methadone. At that time the plaintiff was taking three methadone tablets and nine Epilim tablets per day. In a letter to the general practitioner that Dr Molloy sent on 15 August 1997, he suggested to the general practitioner that they attempt to wean the plaintiff from Epilim and ought consider a trial of Gabapentin. 8. A new symptom had developed by that stage, leading Dr Storey to carry out some nerve conduction tests on the plaintiff's hands. They showed essentially no abnormality. However, in a letter to the general practitioner Dr Storey noted that the presumption made by the doctors at Royal North Shore Hospital was that the plaintiff had thoracic neuropathy, perhaps related to his diabetes, and the plaintiff should remain under the care of the Pain Management Clinic. An appointment was scheduled for 12 December 1997 but the plaintiff did not attend. 1998 to 2007 1. The evidence only discloses one specialist referral between 1998 and 2007 and that was to an orthopaedic surgeon, Dr Shatwell, on 11 October 2002 because of a problem with the plaintiff's right knee. Considering the extensive treatment which the plaintiff underwent in 1996 and 1997, that ten-year gap is, in my view, as has been submitted by learned counsel for the plaintiff, significant. It is clear from the evidence given by Mrs Fogarty that she and her late husband appeared to have been content with the diagnosis of a diabetic neuropathy to explain the symptoms in the plaintiff's thoracic region. 2. Indeed Dr Fearnside accepts that that was the correct diagnosis. In his lengthy report of 27 July 2015, Dr Fearnside said: "Mr Fogarty's symptoms in 1997 which affected the right posterior chest wall are likely due to a diabetic truncal radiculoneuropathy. This is seen in middle or old age and consists of pain over a focal area on the chest or abdomen, generally burning in quality and usually unilateral. Hyperaesthesia (increased pain on light touch) occurs. The condition has a good prognosis and spontaneous recovery is usual over several months. It is therefore unusual that Mr Fogarty's condition continued to the degree that for many years he required narcotic analgesics. There is a condition of diabetic lumbosacral radiculoplexus neuropathy, which does cause severe low back and buttock pain, affecting the thighs and a burning, aching quality. However, this is generally associated with lower limb weakness, which has not been a feature of Mr Fogarty's condition. The low back pain seemed disproportionate to the pathology identified in the various radiological investigations, and it is tempting to postulate that there may be a contribution to his low back pain from the diabetes. While this is possible, it seems more likely that the pain is a result of the degenerative disc disease. Mr Fogarty has been examined by a large number of well qualified specialists, and at no time was there any evidence of lower limb radiculopathy. However, some contribution from the diabetes to his low back pain is possible." I have perhaps quoted more than necessary at this stage, but I do so to obviate having to quote half of that opinion later. It is clear that the plaintiff had what Dr Fearnside refers as diabetic truncal radiculoneuropathy of his posterior chest wall, which although usually transient appears to have persisted in Mr Fogarty's case for a very long time. However, the plaintiff's symptoms in his low back do not appear to have been explicable by the same phenomenon. That was the reason for quoting the second half of that opinion. 1. For the extent of the plaintiff's problems and the nature of those problems, I must rely for the period between 1998 and 2007 on the records of the plaintiff's general practitioners, who were either at the Camden Haven Medical Practice or the Lake Cathie Medical Practice. Those records unfortunately only commence on 1 November 2001. Significantly, the note made on 1 November 2001 says that the plaintiff was suffering from gout, hypertension, increased lipid levels in his blood and "chronic thoracic pain". The plaintiff went back to the general practice on 30 November 2001 to obtain a further prescription for methadone. By that stage of his life, the plaintiff was taking seven and a half 10 mg tablets of methadone per day. That is a large amount, compared to the initial prescription at Royal North Shore Hospital in early 1997 of two per day. As at November 2001, the plaintiff was also consuming Panadeine Forte tablets - two 30 mg tablets three times per day, and as required in an emergency. 2. Antecedent to the problems which caused the extensive investigations in 1996 and 1997, the plaintiff had been a very keen fisherman. Indeed, he was a regular competitor in fishing competitions and won many awards as a member of a fishing club, competing in state wide fishing competitions. The evidence from Mrs Fogarty is that the plaintiff gave a large amount of that fishing away after the problems diagnosed in 1997. He still had an interest in fishing, but he could not participate in it to the extent that he had prior to the onset of his thoracic problems. That the plaintiff was still fishing after 1997 is clear from the clinical notes of the general practitioner. On 3 May 2002 the plaintiff went to see his general practitioner with an injury to his right leg caused when he was fishing three days previously. The plaintiff had developed cellulitis in his right leg at that time. 3. In the middle of 2003, there are some entries in the GP records which indicate both the nature and extent of the plaintiff's complaints. On 16 May 2003 Dr Debbie Kors obtained a history that the plaintiff's right sided thoracic chest and back pains had become gradually more intolerable. By that stage, the plaintiff's ability to stand still was very difficult after more than 15 minutes. Rest was the most comfortable activity as far as the plaintiff's pain was concerned. On 4 August 2003 Dr Kors recorded that the plaintiff was not coping with his pain and was very distressed. On that occasion the paraesthesia was not only on the right side but also on the left side, and the pain on the right side was going as far as the right buttock. On 18 August 2003 Dr Kors noted that the thoracic pain remained very distressing, but the plaintiff had gained some relief from a new device which he recently purchased. The clinical notes indicate that the device may have been a heating or vibrating device, or both. Mrs Fogarty's evidence is that she was aware of the plaintiff using a vibrating device, and I am happy to accept that evidence. Importantly, if the note of 4 August 2003 suggests that there may have been some low back condition, clearly by 18 August 2003 the symptoms were only thoracic-related. 4. On 27 April 2006 the plaintiff was seen by Dr Sam Nelapati. By this time Dr Nelapati appears to have been the plaintiff's regular general practitioner. The plaintiff was seeing Dr Nelapati essentially to obtain the drugs which he was taking. There were a large number of them. They were for a number of different conditions. On 27 April 2006 Dr Nelapati noted that the plaintiff needed a "new GP" because of some requirement of Medicare and the prescription of methadone. There was also reference in the notes to "TCA", which might be a mistyping for "TGA", Therapeutic Goods Administration. On 11 May 2006 the plaintiff saw Dr Ying Yu at the same practice. Dr Yu noted the plaintiff had chronic thoracic neuralgic pain secondary to diabetes and noted the pain was controlled by methadone, which was initiated in 1997 at the Royal North Shore pain clinic. Dr Yu noted the plaintiff was "unable to stand for more than half an hour at kitchen due to pain". He renewed the prescription of seven and a half 10 milligram tablets of methadone each day. The plaintiff then returned to the care of Dr Nelapati, who resumed the plaintiff's treatment. 5. On 9 June 2006 Dr Nelapati gave the plaintiff a disabled parking permit. On 4 August 2006 Dr Nelapati discussed the plaintiff's care with him. Besides the thoracic problem there were "other issues", which Dr Nelapati listed as being "weight gain, worsening heart failure and poor glycaemic control". The latter, of course, refers to the plaintiff's NIDDM which may have been poorly controlled. However it may be that by this time the plaintiff had become dependent upon insulin. It is not particularly important when the plaintiff did become insulin dependent, but he did so at some stage along his medical path. 6. On 1 December 2006 the plaintiff's level of methadone was decreased. It was decreased from seven and a half tablets each day to seven tablets each day. On 3 April 2007 the amount of Panadeine Forte which he was taking was also reduced. 7. On 31 May 2007 the plaintiff was reviewed by Dr Nelapati. Dr Nelapati noted the plaintiff was still suffering from headaches, which he suffered on alternative days. They were at a level of seven out of ten but did not cause any visual symptoms nor any nausea. The plaintiff's knees were also playing up but the plaintiff refused to undergo total knee replacement, no doubt because he had been advised that should only be done so when he was older. The doctor's records then record this: "Back getting worse. Doing cooking and washing up, mowing - all of them making it worse." The plaintiff was clearly telling Dr Nelapati on 31 May 2007 that his ability to do things around the house was being interfered with by his thoracic problem. There were complaints about the plaintiff's left knee in July 2007, but they appear to have been transient. 1. The last relevant entry before the plaintiff's slip and fall was on 30 August 2007. The plaintiff was complaining of having hypoglycaemic attacks, mainly before lunch. An arrangement was made that the plaintiff should eat a snack at morning tea between his breakfast at 6.30am and his lunch at noon. However, the interesting thing is that the plaintiff complained that the last hypoglycaemic attack was when he was fishing, indicating that the plaintiff was still fishing within a few months of the event which now concerns me. 2. It is possible that the plaintiff had some low back pain when he was shearing. Shearing is notorious for causing spinal complaints. Indeed, both judges of the Compensation Court and judges of the Court of Appeal have pointed out that degenerative disc disease is an occupational disease for those who are shearers. However, the plaintiff, while admitting back pain as a shearer, clearly had a thoracic problem at the time and his pain may have been located in his thoracic spine rather than his lumbar spine. It is clear that when the plaintiff had problems in 1996 and into 1997, he had symptoms from time to time in his low back as well as in his thoracic area. When the plaintiff's condition was eventually diagnosed as being a form of diabetic neuropathy and treatment for that was prescribed, the plaintiff's debilitating pain appears to have lessened, and symptoms in the lumbar spine appear to have abated. 3. I find it acceptable that a man with severe pain in his thoracic spine could experience symptoms in his lumbar spine merely because of the destabilisation of the spinal column at the higher level. There is no record of any low back complaint or investigation or treatment or diagnosis between 1998 and 2007. It is clear that the plaintiff did have degenerative changes, in his low back in the mid-1990s. Indeed, one would expect that the plaintiff would have started to develop them much earlier in life, probably at least by the time he reached 30 in about 1978, the late 70s. However, that does not mean that they were symptomatic. They may have been symptomatic from time to time, but I accept that, essentially, the plaintiff had no low back symptoms for about ten years prior to the event on 29 October 2007. After the event of 29 October 2007 there are recorded complaints of low back pain extending all the way to the spinal surgery performed by Dr Hsu in 2013. Post-accident treatment 1. On the day that he slipped and fell in the Coles Supermarket at Laurieton, the plaintiff went to see Dr Nelapati. The fall occurred at about 10.35am. The plaintiff saw Dr Nelapati at about 5.38pm. The notes recorded by Dr Nelapati are these: "Had an accident in Coles. Slipped in puddle of water. Hit his head. Torn skin off elbow. Hurt right shoulder. Back hurts badly. Legs swollen up." The doctor's notes go on to record the plaintiff's right shoulder was swollen and tender but power could not be tested due to the plaintiff's pain. It is understandable that the doctor would be concerned about the shoulder because it was the site of the earlier surgery. The doctor carried out straight leg raising tests which are commonly carried out when a patient complains of low back pain. Straight leg-raising on the right was reduced to 30 degrees and on the left was recorded as being 70 degrees. A person such as the plaintiff could be expected to have reduced straight leg-raising in any event. The important thing is the difference between the left and the right. The doctor could find no apparent neurovascular deficit but could not test power because of the extent of the plaintiff's pain. He also noted the plaintiff's right ankle was swollen and movements of the right ankle were limited. He prescribed rest, ice, physiotherapy and the application of Voltaren gel, as well as radiological investigation. 1. X-rays of the plaintiff's lumbosacral spine, right shoulder, pelvis, right hip and right ankle were performed by Dr Herbert at Laurieton on 31 October 2007. The X-rays of the spine show problems between T10 and T12. They appear to me to be similar to the problems identified in 1996. An X-ray of the lumbosacral spine would not cover the whole of the thoracic spine. As far as the lumbar spine was concerned, Dr Herbert said this: "There is intense sclerosis of the posterior facet joint on the right side of L5/S1 consistent with facet joint arthropathy." Facet joint arthropathy at both L4-5 and L5-S1 had been diagnosed in 1996. The intriguing thing, of course, on this occasion is that Dr Herbert should describe the problem at the right facet joint of L5-S1 as being intense. There was no abnormality detected in X-ray of the pelvis and hip. The X-rays of the other body parts are also of little moment. 2. Dr Nelapati sent the plaintiff for a CT scan of his low back at Port Macquarie on 7 January 2008. The radiologist, Dr Nolan, diagnosed osteoarthritic changes at the facet joints at L3-4 and at L4-5 and also at L5-S1 but the changes at L3-4 and L4-5 were said to be "mild", whilst the changes at L5-S1 were said to be "moderate". That indicates that the problems at the lumbosacral junction were greater than the problems at the higher levels. Also Dr Nolan identified minor bulging of the L5-S1 disc but without compression of the theca or nerve roots. Dr Nelapati also arranged for an MRI of the plaintiff's right hip on 9 February 2008 but it was said to show no abnormality. The fact that the right hip was being investigated indicates that the plaintiff's symptoms were in the right buttock region. 3. Dr Nelapati referred the plaintiff to Dr Yong Liaw, an orthopaedic surgeon at Port Macquarie. The plaintiff saw Dr Liaw on or before 19 March 2008. Dr Liaw noted the plaintiff walked with an antalgic right leg; that is, there was a limp on the right side, representing pain at a higher level. Straight leg raising of the right side was reduced to 30 degrees, compared with 60 degrees on the left. The doctor also found that both ankle jerks were absent. It would appear that the likelihood is that the absent ankle jerks represented some constitutional problem, perhaps diabetes. Dr Liaw diagnosed exacerbation of lumbosacral spine facet joint arthritis. He arranged for a whole body scan which was said to show an increased uptake, suggestive of facet joint arthropathy, on the right side of both L4-5 and L5-S1. Dr Liaw also arranged for an MRI scan of the lumbar spine which again showed facet arthropathy, or osteoarthritis, of a moderate degree at L4-5 and L5-S1 but it is reported as showing the problem being greater at L4 5. 4. In a report of 13 May 2008, following reviewing the plaintiff with the investigations, Dr Liaw expressed the view that the plaintiff had facet joint arthritis which was causing his symptoms. He arranged for a CT-guided facet joint injection at L5-S1 which was performed by Dr Nolan at Port Macquarie on 4 June 2008. That steroid injection did not provide the plaintiff with any relief. On 20 June the plaintiff told Dr Liaw that his symptoms were getting worse. Dr Liaw then referred the plaintiff to Dr Robert Kuru, a spinal and orthopaedic surgeon carrying on practice at Warners Bay in the lower Hunter Valley. 5. The plaintiff told Dr Kuru that his symptoms were becoming worse, and had been getting worse since the fall on 29 October 2007. The plaintiff told the doctor that his symptoms were made worse by standing and that anything in excess of ten minutes caused him difficulty, and he was "unable to stand in the kitchen to prepare meals". Walking 200 metres or so was uncomfortable, exacerbating the back pain. The plaintiff told the doctor that he spent most of his day in bed. Dr Kuru was of the view that the investigations performed thus far demonstrated some minor underlying degenerative change but no significant central or foraminal stenosis. He said this: "Mr Fogarty has a non-specific back pain subsequent to his fall. I have reassured him that his spine is stable and he can be active within the tolerance of his symptoms. I have discussed with him an exercise program, exercise based rehab program. In particular I have recommended that he do regular aerobic exercise (walking, cycling, swimming) as well as gym based flexibility program for his lumbar spine. It is appropriate that he use simple analgesics as tolerated. Unfortunately, I think it is unlikely that interventional treatments will be reliably helpful for him." The words "interventional treatments" are apt to describe surgery. The evidence before me is silent as to whether the plaintiff observed the regime recommended to him by Dr Kuru - that is walking, cycling or swimming, or attending a gymnasium. Indeed, the inference to be drawn from the evidence before me is the plaintiff did not do any of those things. Much medical advice is given but often ignored, such as, "lose weight, cease drinking and stop smoking." 1. The plaintiff was sent by a solicitor to see Dr Alan Hopcroft on 18 August 2008. Under the heading "Hobbies and Pastimes", Dr Hopcroft recorded this: "The patient lists fishing, usually four times a week, and mastering in blackfish catching which he has had to abandon since his fall. He also used to walk regularly, but that also has been abandoned. He had a sideline hobby with making cork fishing floats used in blackfish fishing but that has also been suspended." The abandonment of such activities was a theme of the evidence given by Mrs Fogarty. However, it is clear from looking at the clinical notes of the general practitioner, which continue up until the time of Mr Fogarty's death, that he did get back to walking, which was his way of trying to control his weight, which was necessary for the control of his diabetes and his cardiac condition. He also did get back, to some small extent, to making cork fishing floats and he did do a little bit of fishing after 29 October 2007, but the evidence does not suggest that it was in any way extensive. Dr Hopcroft diagnosed aggravated arthritis of both the L4-5 and L5-S1 facet joints on the right hand side and an inflammation of the right sacroiliac joint caused by the event of 29 October 2007. 1. Dr Hopcroft reviewed the plaintiff on 27 October 2008. Dr Hopcroft described the plaintiff's complaints at that time as being: "of severe and gross [sic] incapacitating back pain with increasing radicular symptoms, paraesthesia and numbness down both legs and affecting the lateral four digits of his left foot, and those symptoms are worse on the left side than the right but occurring on a daily basis in both knees." Symptoms in the knees could be due to local degenerative osteoarthritis of those joints. Such could also cause symptoms distal to the knees. The plaintiff's symptoms initially were mainly on the right side as far as the low back was concerned, but on this occasion the doctor thought symptoms were greater on the left. All told, this indicates the plaintiff's symptoms were getting worse as far as the low back was concerned. 1. On 21 November 2008 the plaintiff was reviewed by Dr Peter Kark, a cardiologist, at Port Macquarie. This is clearly about a concurrent medical problem. The plaintiff complained to Dr Kark that his ability to breathe had become worse. There was also a mild degree of ankle oedema consistent with fluid retention, which may result either from the plaintiff's obesity or from cardiac insufficiency. Dr Kark thought the plaintiff had mild to moderate mitral valve incompetence on clinical grounds, but with no evidence of any complication such as heart failure, bacterial endocarditis or pulmonary hypertension. He discussed the plaintiff's future treatment and drug consumption with the general practitioner. On 25 November 2008 Dr Kark saw the plaintiff again because of further symptoms, which were an unexplained episode of profuse sweatiness and breathlessness but without pain. The doctor recommended coronary angiography, which was to be performed on the following day at the Lake Macquarie hospital. Whether that occurred or not, I do not know. 2. Dr Hopcroft was to review the plaintiff on 28 May 2009. For that purpose, the plaintiff underwent a further MRI scan of the lumbar spine on 18 May 2009. On this occasion, the L5-S1 bulge was said to be in slight contact with the L5 nerve root posterolaterally. Other pathology previously identified was reconfirmed. In a report of 28 May 2009 addressed to the plaintiff's then solicitor, Dr Hopcroft said that the investigation that had just been carried out indicated the plaintiff had no pathology in the back that would benefit from neurosurgical intervention. Dr Hopcroft also commented on the plaintiff's "extreme distress" at the consultation on that day. He does not tell me what it was, however the doctor recommended a weight reduction program, including exercise and hydrotherapy of some form and the prescription of an anti-inflammatory analgesia.He also prescribed the narcotic analgesic OxyNorm to be used once or twice daily. 3. The next time the plaintiff saw Dr Hopcroft was on 6 July 2009. However, this was not a medicolegal appointment, but one arranged by Dr Nelapati. Prior to that, there was a further MRI scan of the right hip. There was thought to be a small tear of part of the labrum of the acetabulum. Dr Hopcroft noted that but also noted the plaintiff did not localise his maximum pain to that site but maximised his pain over the right sacroiliac joint. Again, Dr Hopcroft advised against any form of surgery. He described the plaintiff's pain management as becoming "overly administered" and the doctor made a reference to the plaintiff's having supratentorial pain, which of course is a pejorative reference to what might be described as a chronic pain syndrome. In other words, Dr Hopcroft thought the plaintiff's pain was exaggerated. Furthermore, he made a negative comment as to the impact of Mrs Fogarty upon the plaintiff's behaviour which seems to indicate that he thought that Mrs Fogarty was causing the plaintiff to exaggerate his symptoms. Whether that is a fair assessment is outside my purview because I haven't heard from Dr Hopcroft, and Mrs Fogarty was not cross-examined about that at all. 4. Dr Hopcroft arranged for an injection of the right sacroiliac joint under CT scan. That was performed by Dr Anthony Chilton on 20 July 2009. I do not have any report from Dr Hopcroft following upon that procedure, however it is a procedure clearly designed to reduce the plaintiff's pain, because Dr Hopcroft thought the pain was maximal at the right sacroiliac joint. 5. The plaintiff was then referred by Dr Nelapati to Dr Michael Prowse, a rheumatologist at Port Macquarie who saw him on or before 30 November 2009. His provisional diagnosis was that the plaintiff had chronic low back pain, posterior pelvic and possibly radicular pain. He organised further investigations, which included blood testing and X-rays of the pelvis. He also prescribed a trial of Lyrica. Dr Prowse again reported to Dr Nelapati after those investigations were made. He required from Dr Nelapati further information as to other investigations that had been performed in the past. Dr Prowse reviewed the plaintiff on 14 January 2010. Dr Prowse refers to "pain amplification", which again is another way of referring to a chronic pain syndrome. Nevertheless, he arranged for a CT scan of the pelvis to exclude any pelvic pathology and organised for the plaintiff to be reviewed by Dr Anthony Schwarzer, a consultant physician in rheumatology and an expert in pain management, in Newcastle. 6. The plaintiff first saw Dr Schwarzer on 22 February 2010. There are a large number of reports before me from Dr Schwarzer. The last two are both dated 26 March 2012. Dr Schwarzer was trying to locate the source of the plaintiff's low back pain. He carried out a large number of diagnostic injections over a period of time. They are conveniently summarised for me by Dr Fearnside in his report of 27 July 2015. The relevant part of Dr Fearnside's report is this: "Mr Fogarty was referred by Dr Prowse to Dr Anthony Schwarzer, consultant rheumatologist and pain specialist and he saw Dr Schwarzer on 22 February 2010. Dr Schwarzer found tenderness in the L4 and L5 regions and over the sacroiliac joint with the restriction of all lumbar spinal movements due to pain. Similarly, hip movements caused pain. Neurological examination of the legs was limited because of pain, but Dr Schwarzer found no abnormal neurological signs. The cause of the low back pain and thigh pain was unclear to Dr Schwarzer and he recommended a series of lumbar blocks. It was Dr Schwarzer who recommended Durogesic patches [a form of analgesia]. Mr Fogarty was admitted to the Hunter Valley Private Hospital and underwent a number of diagnostic blocks: • 18 May 10 - right L5/S1 zygapophyseal joint block. • 19 May 10 - right sacroiliac joint block. • 20 May 10 - right L4/5 zygapophyseal block. • 17 August 2010 - right S1 epidural block. • 18 August 2010 - right L5 nerve root block. • 17 November 10 - right S1 block. These investigations provided only partial and short-term relief. Dr Schwarzer concluded that Mr Fogarty's pain was most likely discogenic and recommended CT discography (17 August 2010). That being so, he noted that there was no valid treatment for internal disruption (25 February 2011)." 1. The discogram was performed by Dr Hugh Scotton on 11 November 2011. Dr Scotton noted "Quite puzzling appearances" on certain parts of the discogram. Importantly he noted the plaintiff's most severe back pain, which was 9 out of 10, was experienced at the L4-5 level. The L5-S1 disc was also injected and there are extensive findings made by Dr Scotton about that but it appears that the dye left the disc in a somewhat unusual fashion. Dr Scotton ended his lengthy report with this observation: "Symptomatic discs were L4/5 and L5/S1 and these produced typical right-sided low back and right buttock pain." 2. After the discogram Dr Schwarzer tried to have the plaintiff participate in certain trials being carried out at Royal Newcastle Hospital, but the plaintiff only had one relevant injection which was carried out on 1 March 2012 by Professor Nik Bogduk, an injection with intradiscal methylene blue. However, the plaintiff experienced a severe non-radicular pain with that injection and it was decided not to proceed with his involvement in the trial "for safety reasons". 3. On 26 March 2012 Dr Schwarzer noted that the plaintiff was not coping very well with his pain, and Dr Schwarzer thought the plaintiff would benefit from interacting with a psychologist. He felt the plaintiff was destined to remain on methadone for the long term, although attempts were being made in particular by the plaintiff himself to wean himself off that drug. 4. The plaintiff was then referred after Dr Schwarzer could provide the plaintiff with no further assistance by the general practitioner, Dr Nelapati, to Dr Brian Hsu, an adult and paediatric spine surgeon. This was after Dr Schwarzer expressed the view that although the plaintiff was "severely disabled by his back pain", that Dr Schwarzer did not see that any prospect of any intervention helping the plaintiff's low back pain. In other words, he was advising against any surgical intervention. 5. Dr Hsu first saw the plaintiff on 12 June 2012. In a covering letter to Dr Nelapati, Dr Hsu thought that he would not be able to accurately diagnose the cause of the plaintiff's chronic back pain. Dr Hsu noted that the plaintiff's regular exercise was walking. Some of his findings on examination seem to indicate that the plaintiff's condition was not a major disabling one. For example, he noted that the plaintiff was able to rise from a seated position without any assistance. His gait was normal and the plaintiff was able to walk on both his heels, his toes and could walk using a heel to toe walk. There was no spinal tenderness on palpation. There was a normal range of motion of the lumbar spine in both flexion and extension. Sensory examination of the lower limbs showed that they were intact to light touch in the distribution between the L2 and S1 nerves. Straight leg-raising was negative bilaterally and other special tests were within normal limits. Dr Hsu again arranged for an MRI of the low back. This showed low grade degenerative changes through the lumbar area, particularly at L3-4, L4-5 and L5-S1, but no evidence of central or foraminal nerve impingement of significance. In other words, all that had occurred since early MRI scans is the affectation of higher levels of the lumbar spine with degenerative changes. At first they were limited to L4-5 and L5-S1. Later L3-4 was involved. By this stage the whole of the lumbar spine was involved. 6. Very shortly after that examination, the plaintiff was reviewed by Dr Hopcroft again, but for medico-legal purposes. Dr Hopcroft noted that Dr Hsu had offered the plaintiff a three-level intervertebral fusion with posterior instrumentation. He noted also that the plaintiff had "baulked" at that suggestion. Dr Hopcroft expressed the view that he was unable to agree that the plaintiff was a candidate for triple-level lumbar fusion. Furthermore, the doctor thought the plaintiff's other medical conditions would only complicate any proposed surgery. Dr Hopcroft recommended ongoing conservative treatment, hydrotherapy and domestic assistance and thought that there might need to be some modifications of the plaintiff's home to accommodate his disability. 7. On 5 August 2012 Dr Hsu advised Dr Geoffrey Williams, the cardiologist, that the plaintiff had elected to undergo fusion from L4 to the sacrum and Dr Hsu sought Dr Williams' advice as to the plaintiff's suitability for such operative treatment. 8. Second opinions were also sought. One was from Dr Ralph Stanford, an orthopaedic and spine surgeon practising at the Prince of Wales Hospital in Sydney. Dr Stanford expressed this view: "Robert has chronic non-specific lower back pain. There is no specific anatomical lesion in his back that adequately explains his symptoms. He has had a well-established chronic pain syndrome. I believe that surgical intervention under these circumstances has a high risk of failure and even worsening his pain. I have advised him fairly strongly not to undergo surgery." 1. A second opinion was also obtained from Dr Ghabrial. Dr Ghabrial said this: "As you know, he is seeking a second opinion about surgery and, taking into account the failure of conservative treatment [,] the positive investigations as well as his back condition, I believe surgery is indicated." Dr Ghabrial does not appear to have cast his mind to the issue of whether the condition could be made worse by the proposed surgical intervention. 1. Dr Williams reported on 4 September to Dr Nelapati. Whether he sent a copy of his report to Dr Hsu is unclear. He does not comment on the plaintiff's fitness to undergo surgery. However, he did comment on the plaintiff's sleep apnoea and his use of a CPAP machine to control the sleep apnoea. Dr Williams advised the plaintiff that he should recommence use of the machine to control his sleep apnoea. 2. On 11 December 2012 a special investigation was performed at Dr Williams' suggestion which really concerns the extent of problems the plaintiff had with his heart. It may have been for the purpose of advising Dr Hsu about the plaintiff's fitness to undergo surgery. 3. On 2 January 2013 the plaintiff was admitted to the North Shore Private Hospital and underwent a fusion from the L4 vertebra to the sacrum. I do not have an operation report, but I do have a report from the North Shore Private intensive care unit which tells me that the plaintiff was admitted to that unit on 2 January 2013 and discharged from it on the following day. He was discharged not home, but to the general ward. 4. Following upon his discharge from that hospital the plaintiff was sent to the Mayo Hospital at Taree for rehabilitation. As at 16 January 2013 the plaintiff was having problems with constipation which caused a gastroenterologist to provide a report which was put before me in evidence. I do not know how long the plaintiff was in the Mayo Hospital. The plaintiff was reviewed by Dr Hsu on 2 February 2013 who thought that he was progressing very well. He thought that the radiological investigation showed that the bone fusion was "progressing well". 5. However, when Dr Hsu reviewed the plaintiff on 30 April 2013 the plaintiff told the doctor that he was then using the same amount of pain medication as he had been postoperatively because of increasing back pain. Dr Hsu organised a further CT scan. On 22 June 2013 the plaintiff was reviewed by Dr Hsu who was told that the plaintiff had increasing back pain. By that stage, almost six months after the fusion, the fusion was not solid and Dr Hsu thought that that could be an explanation for the plaintiff's increasing symptoms. 6. On 14 September 2013 Dr Hsu indicated that a CT scan demonstrated that the previous fusion at L5-S1 had not solidified, that there was some loosening of the screws in the sacrum and also some signs of loosening of the screws in the L5 vertebra as well. He then expressed a view that the plaintiff needed to proceed with revision surgery which would be in the form of anterior and posterior spinal fusion to address the non-union of the previous attempted fusion. That surgery was performed at the North Shore Private Hospital in two stages. The first on 2 November 2013, and the second on 7 November 2013. 7. In between the two bouts of surgery the plaintiff was seen by Dr Anne-Marie Fulop, a rehabilitation physician. This was a medico-legal appointment. She saw the plaintiff on 30 August 2013. The plaintiff told her he had constant right-sided back pain which was 8 out of 10. He also had constant right-sided posterior thigh pain which he rated as 5 out of 10. The plaintiff told Dr Fulop that he could only walk less than 100 metres before he needed to rest because of increasing pain. His ability to sit was limited to 30 minutes and his ability to stand was reduced to 30 minutes. Some of the doctor's findings on examination are disturbing but indicative of grave distress that the plaintiff was experiencing in between the first and second attempts at a bi-level fusion. The plaintiff needed to use a walking stick and his walk was described by Dr Fulop as a hobble. Despite what he had told her, he was able to sit without shifting posture for 90 minutes. However, he had grave difficulty getting on and off what Dr Fulop describes as "the examination plinth". His wife needed to assist him to do that and she also was needed to untie and retie the plaintiff's footwear. On examination the plaintiff's abdomen displayed a large ventral hernia. Whether that resulted from surgery is unclear. The plaintiff had no reflexes in either of his legs. The plaintiff was unable to turn himself into the prone position, and even needed assistance to turn onto his side. As well as examining the low back, Dr Fulop also examined the thoracic area and noted that the plaintiff's upper thoracic area and right scapula region were non tender to palpation. Essentially, Dr Fulop's opinion was sought about the need for domestic assistance. I will turn to that a little later. 8. An important thing to note is that by this time, the plaintiff had reduced his methadone to five tablets per day and his Panadeine Forte remained stable, as it had for years, and the plaintiff was taking Endep as well, and had been for some time. Later the methadone was to be reduced substantially but it was replaced with Endone, a narcotic analgesic. Another important thing to note at this time is that the symptoms in the plaintiff's thoracic region, which were caused by a diabetic neuropathy, appear to have ceased or perhaps were masked by the extent of the plaintiff's low back problem. 9. On 22 December 2013, relatively soon after the second fusion, the plaintiff flew from Port Macquarie to Melbourne to visit his daughter. During the flight, the plaintiff noticed shortness of breath that gradually increased, and after landing in Melbourne he was taken to the Epworth Hospital Emergency Department. I have reports from Dr Iefan Lim, a cardiologist in Richmond Victoria, and from Dr Fiona Chow, a consultant physician and nephrologist in Richmond. According to Dr Chow, investigations showed mild congestive cardiac failure with no evidence of pulmonary embolism. A pulmonary embolism is a clot which might obstruct a coronary artery. Symptoms at one stage included repeated vomiting. Apparently, withdrawing the usual antihypertensive medication caused an improvement in the plaintiff's condition. One of the investigations showed that the plaintiff had an accumulation of opioid metabolites, which had reduced his kidney function. The opioid metabolites clearly resulted from the medication the plaintiff was taking to reduce his pain. Dr Chow put the plaintiff on further medication, but that was only iron tablets. 10. On 15 February 2014 Dr Hsu reviewed the plaintiff. The plaintiff told Dr Chow that he had made some progress since surgery. He told the doctor that he had some intermittent lower back pain, but it was only intermittent as distinct from continuous. By that stage the fusion was not yet solid. 11. On 10 February 2014 the plaintiff saw a psychiatrist, Dr Esther Jesudason at Taree. The plaintiff was sent to see Dr Jesudason by Dr Nelapati. She commenced treating the plaintiff for non-melancholic depression. She also said the plaintiff was suffering from a chronic pain syndrome with significant loss of functioning. As far as I can work out, the plaintiff told Dr Jesudason this: "Robert had a fall six years ago, slipped in a retail store and has had a few spinal fusions since. He has had a stormy medical history as enumerated by you but was generally on top of things… He has been low in mood with no motivation or joy in anything he does. He is constantly in pain and feels he is losing use of his right leg. He is easily irritable. He feels he has lost his purpose in life, his sexual functioning is grossly affected. He was premorbidly active and loved gardening and fishing. He said he won several fishing titles. He was also a passionate worker. He said he had applied for compensation and the retail enterprise had not accepted liability. He denied past history of psychopathology." What I have omitted from that is a history volunteered by Mrs Fogarty. What I omitted is this: "I obtained a collateral history from his wife who said his fall six years ago was a life-changing event. His life according to her was a progressive downhill since the accident for an individual who had previously coped well." Dr Jesudason observed the plaintiff's depression was reactive to his pain and his then predicament. That is completely understandable and acceptable. 1. Dr Hsu reviewed the plaintiff on 1 June 2014, six months after the second fusion. Dr Hsu's report says this: "Unfortunately he is still complaining of some pain, particularly with movement which suggests the fusion may not be solid." He recommended further radiological investigation. A report following upon Dr Hsu's re-examination of the plaintiff on 21 September 2014 indicates that the radiological appearances suggested that there was a good interbody fusion but, nevertheless, the plaintiff was continuing to complain of symptoms, inter alia, in his right leg. 2. In the meantime there were some further investigations. The plaintiff was sent to see Dr Roslyn Avery, a rehabilitation physician practising at both Port Macquarie and Taree. The issues which Dr Avery perceived were the plaintiff's pain, his reduced mobility and his heart failure. She noted the plaintiff's simple activities of daily living such as showering tired him considerably. She also noted the plaintiff had short-term memory loss, likely to be affected by regular Endone ingestion. She recommended gentle hydrotherapy. Whether that could be provided to the plaintiff is unclear. 3. The plaintiff saw Dr Jesudason again on 9 July 2014 but nothing had changed. The plaintiff remained anxious and irritable and was "difficult to live with" on his own assessment. Psychotropic medication which she had prescribed was abandoned because it caused the plaintiff to feel nauseous. 4. On 18 August 2014 the plaintiff saw Dr James Bodel, an orthopaedic surgeon, at the request of his solicitors. The plaintiff told Dr Bodel that despite the operative treatment afforded to him by Dr Hsu, the plaintiff had not improved and that he in fact was worse than before undergoing surgery. Those doctors who advised against surgery were right and the plaintiff was probably ill-advised to undergo the surgery that was performed by Dr Hsu. Dr Bodel expressed a very guarded prognosis. He pointed out that the plaintiff was very disappointed with the outcome of the surgery and pointed out that he was worse now than he was prior to the surgery. 5. Towards the end of 2014, Dr Hsu referred the plaintiff to Dr Marc Russo at the Hunter Pain Clinic in Newcastle. On 28 October 2014 Dr Russo noted that the plaintiff had, as co-morbid conditions, "diabetes, hypertension, gastro-oesophageal reflux disease, hypercholesterolaemia, hypothyroidism, gout, ischaemic heart disease and obstructive sleep apnoea". The plaintiff went on to describe to Dr Russo a typical day: "In a typical day, he will tend to get up at 6.30am and potter about in the shed and make lures for blackfish out of corks. He will typically lie down between 10am to 3pm and occasionally falls asleep. He will end to potter between 3pm and 6pm and then spends from 6pm onwards until midnight lying down and will generally fall asleep at midnight. This is a minimal activity day." Dr Russo noted that the plaintiff had tried a TENS machine without any benefit. Dr Russo went on to implant in the plaintiff's spinal cord a spinal cord stimulator. That was done two weeks prior to 20 February 2015. In the two weeks between then and 20 February 2015 there was only one day that the plaintiff required Endone since the operation. That was a boon. On 6 March 2015 the plaintiff told Dr Russo that between 6am and 4pm he had no pain whatsoever and that he was "ecstatic" at the result, which was not unsurprising either to Dr Russo or to me. The plaintiff told Dr Russo that he was doing much more and walking twice a day. 1. On 6 May 2015 the plaintiff told Dr Russo that he was getting good pain control from his spinal cord stimulator in the morning, but typically by about 3pm he was starting to get increased pain in his back and/or legs. Dr Russo thought that the stimulator could do with some reprogramming. On 7 August 2015 Dr Russo thought that there appeared to have been some loss of efficiency with the stimulator over the last month or so. However, when testing was performed on the stimulator, it became apparent to the doctor that a new program which had been placed on it for the use of the plaintiff had not been used by him. Dr Russo went on to say this: "I have reinforced to Robert he needs to cycle through the different programs Glenn from the Nevro Company has given him to trial [sic] and we sequentially select the best program and give him new ones and over a period of evolution, over a couple of weeks, we identify the optimal program for him in terms of pain relief. He must work with the company representative to achieve this result." In a report of 24 November 2015 Dr Russo noted that the plaintiff had found one program which gave him the best control of his problem and relieved 50% of the pain. He went on to say this: "I think the critical thing from here is for Robert to slowly start a twice a day walking program and aim to slowly increase that so he loses his abdominal girth and takes some of the weight off his spine." 1. On 1 December 2015 the plaintiff was reviewed by Dr Hopcroft for medico-legal purposes. As far as the plaintiff's activities were concerned, Dr Hopcroft noted that the plaintiff told him that he spent most of his day lying about the house. The plaintiff told Dr Hopcroft that he had attempted fishing activities on the riverbank, but struggled to do that. Occasionally he was going to his shed and he was attempting to make the lures for blackfish to give to other local fishermen who would call on him. These might be described as his mates. The maximum the plaintiff could walk at that time was 200 metres before he had to stop. Even to walk 200 metres he needed to use a walking stick. He was still using his CPAP machine at night for sleeping but only was able to sleep four or five hours a night. Most of the doctor's findings on examination comment upon the massive scarring that the plaintiff had both on his lumbar spine and abdomen due to the surgery practised by Dr Hsu. Dr Hopcroft went on to say this: "His level of mentation, thinking and memory has become severely compromised since his last review due to the massive amount of narcotic medication he needs to control his pain syndrome, and he struggled recalling any details during this consultation, which was significantly provided by his wife in attendance." Dr Hopcroft also said this: "Were it not for the significant assistance given him by his wife on a regular basis, including all transport requirements, Mr Fogarty would require major home health on a daily basis if he was to continue to live in his own home, and would soon be a candidate for admission to a nursing home environment." It is to be noted, however, that Mrs Fogarty continued to work up until the time of her husband's death. 1. The plaintiff died in Tamworth on Christmas Eve 2015. He appears to have gone to Tamworth to spend Christmas with his son, who was one of his two children from his first marriage. According to Mrs Fogarty, the plaintiff got up in the early hours of the morning with back pain, looking for tablets to control his feeling of illness. He took those, then went to the bathroom and did not return. She heard a falling noise from the bathroom, and went she entered it she appears to have found her husband dead. The plaintiff's general practitioner believed the plaintiff had died of an anterior myocardial infarction in view of the long history of ischaemic heart disease. The Coroner at Tamworth confirmed that the plaintiff's death resulted from ischaemic heart disease and coronary atherosclerosis with comorbidities of diabetes mellitus and cirrhosis of the liver. Findings 1. I am persuaded on the balance of probabilities that the plaintiff's low back symptoms resulted primarily from degenerative disease which affected both the L4-5 and L5-S1 discs and the associated facet joints. Symptoms referable to those degenerative conditions were triggered off by the fall on 29 October 2007. Those symptoms continued. I am persuaded of that by the large amount of treatment that plaintiff had between 29 October 2007 and the plaintiff's coming under the care of Dr Hsu in the middle of 2012. The interval was almost five years, of course, but the plaintiff was seeking treatment regularly for his low back condition throughout that period. 2. The defendant relies on a number of things. The defendant relies upon a lack of any record of low back complaint in the general practitioner's records between 1 September 2008 and 10 November 2009, a period of just over a year. However, there were complaints to other practitioners during that period. Furthermore, many of the attendances upon the general practice do not record any complaints at all and merely record the provision of scripts for medication. The fact that no complaints are recorded may well indicate, firstly, the plaintiff was reporting his usual complaints, or that the complaints were so many that the general practitioner bothered not to record them. There was no suggestion from Mrs Fogarty that the symptoms in the low back went away and then came on again at some subsequent time. 3. Professor Fearnside has expressed the view that any exacerbation of the plaintiff's low back condition caused by the event of 29 October 2007 would have subsided, abated or ceased within a relatively short period of time. That was the submission put to me on behalf of the defendant by Mr Polin. Much of the analysis of Professor Fearnside I find convincing. For example, in [7.3] of his opinion, Dr Fearnside said this: "There is no identifiable pathology on radiological investigation as a consequence of the fall on 29/10/07. The X-ray of the lumbar spine of 31/10/07 showed right L5/S1 facet joint arthrosis which would have pre dated the fall. There was no spondylolisthesis reported. The CT scan of the lumbar spine of 7/1/08 showed mild facet joint arthrosis at L4/5 and L5/S1, again pre-existing. There was no disc protrusion or fracture or other evidence of trauma. A bone scan of 19/4/08, some seven months later, showed only uptake at L4/5 and L5/S1 due to facet joint arthrosis. This would not be post traumatic and is constitutional." I agree with that assessment, that there was no local pathology demonstrated radiologically or on any other form of testing by the event of 29 October 2007. However, that does not mean that it had no part to play in the development of symptoms. A morbid condition of the body can be asymptomatic for some time before some event triggers off symptoms. If such an event does not occur, the symptoms might never be triggered and the patient would remain free of any symptoms of the undisclosed morbid condition. 1. The opinion expressed by Dr Fearnside is essentially in [7.7] of his report: "The condition occasioning surgery was degenerative disc disease causing axial pain. He had degenerative disc disease, which was demonstrated in the lumbar discogram on 11/11/11. The degenerative disc disease is a constitutional condition which was not caused by the fall on 29/10/07. There was no radiological evidence of any trauma and the radiology traces a gradual development of degenerative spinal disease. While the fall on 29/10/07 may well have caused back pain it would be most likely on the balance of probability this would be a temporary exacerbation and I am not of the view that, having considered all of the available information, there was any contribution to the need for surgery which was caused by the fall." To suggest that there was only a temporary exacerbation, in my view, represents an a priori approach to the issues that I have tried to discuss in these reasons. There was no real suggestion on the evidence, other than an a priori view, that the plaintiff's symptoms completely abated other than when being controlled by pain relief. Whatever actually occurred to the spine on 29 October 2007, I am persuaded that that continued up until the time of the surgery practised by Dr Hsu. True it is that the doctor was operating to try to control degenerative discs, but the only reason the degenerative discs needed to be controlled was because they were causing symptoms. Symptoms were, in my view, triggered off by the fall on 29 October 2007. 1. No submission has been put to me that the surgery itself represented some novus actus interveniens. The reason for that is clear. Whilst there are a large number of doctors who said that surgery ought not be practised, which advice was ignored by the plaintiff, as Dr Fearnside readily admits, there are a number of spinal surgeons who support the carrying out of surgery of this nature. The relevant piece of the doctor's opinion is this: "The decision to operate for axial pain is that of the treating surgeon. There is a body of medical opinion which would support spinal fusion for axial pain caused by degenerative disc disease. However, lumbar discography is a poor predictor of outcome following spinal fusion. While I am not of the view that surgery would be likely to improve his symptoms, there would be a body of spinal surgeons who would support surgery for this condition." Therefore it could not be said that Dr Hsu, in carrying out the surgery which he did, or that Dr Ghabrial, when supporting the decision that he do so, were in any way negligent in what they did. There is no suggestion, as I said, of any novus actus interveniens. Out of pocket expenses 1. Those findings solve one part of the contest before me. The plaintiff claims by way of out of pocket expenses $235,071.54, of which $6,590 has already been paid by the defendant. The defendant, on the other hand, submits that the plaintiff's out of pocket expenses should be limited to a total of $6,797.70. That was based on the proposition that there was only a temporary aggravation or exacerbation of the condition, which finished on or about 27 October 2008. I therefore find that the plaintiff is entitled to recover out of pocket expenses of $235,071.54. Non-economic loss 1. The next claim is for non-economic loss. Mrs Fogarty painted a picture in her evidence consistent with what she told Dr Jesudason on 10 May 2014: that the event with which I am concerned was a major turning point in her late husband's life, that before that time he was a man who could do everything that a normal man might do given his age, but thereafter was prevented from doing almost everything that he normally did, and that the condition of his life was, in essence, ruined. 2. I formed the view when I read all the medical evidence, which I have read closely, that that view of Mrs Fogarty suffers from ex post facto rationalisation; that is, her experiences since January 2013 have affected her ability to recall adequately what things were like between 2007 and 2012 and that there has been some reconstruction by her. I accept that she had tried her best to tell me the truth but the human memory is a very fallible thing. For example, Mrs Fogarty told me that she and her husband would walk regularly twice per day. She maintained that after this event the plaintiff did not do any such walking at all. However, when one reads the GP's records and the specialists' records, it is clear the plaintiff did get back to walking and that he did do so for the purpose of trying to control his weight. The plaintiff did, for example, get back to fishing on at least one occasion because on 23 May 2014, even after spinal surgery, the plaintiff needed to be treated for an injury to his right palm due to having being bitten by a fish. Clearly the plaintiff did still attempt to fish, albeit from the shore or from the bank of a lake, even after the major surgery that was practised on him. 3. Furthermore, there were other conditions which clearly affected the plaintiff's health. On 30 September 2009 it was noted that the plaintiff's diabetes was poorly controlled. On 9 October 2009 it was noted that the plaintiff was walking twice daily to lose weight. On 22 January 2010 it was noted that the plaintiff had lost 13 kilograms because he had increased his exercise. On 13 September 2010 it was noted that the plaintiff was walking daily for 40 minutes and that he was able to manage his back pain using medication. 4. I accept that from the time that Dr Hsu carried out the spinal fusion in January 2013, the plaintiff's life was poor in its quality. However, there were times in the past when it had been poor in its quality. 5. I have to compare the late Mr Fogarty's experience of pain and suffering with a most extreme case of pain and suffering which would include the same condition that the plaintiff suffered but in a man who might be only 20, rather than a man who was 59 years old. Doing the best I can, I accept that the pain and suffering experienced by the plaintiff referable to this injury is 30% of a most extreme case. That entitles the plaintiff to a further lump sum of $141,000. Past care 1. The plaintiff sought to make out the case for gratuitous past care on the basis of Mrs Fogarty's assessment that she was in essence providing 14 and one quarter hours' care per week from the time of the injury up until the deceased's death. That was based on assessments that Mrs Fogarty herself gave in the witness box but again I am of the view that that assessment is unreliable, not because of any attempt by Mrs Fogarty to mislead me, but merely because of the very nature of the evidence she was giving and from the fact that it sought to describe the whole of the period from October 2007 until December 2015. 2. An alternative proposal put by the plaintiff in MFI 12 was to rely upon Mrs Fogarty's assessment up until the date of the first surgery practised by Dr Hsu and thereafter to rely upon the assessment made by Dr Fulop that the plaintiff required care for 24 hours per week. The latter approach is preferable. Dr Fulop is an expert. She was not required for cross-examination and her assessment, whilst made between the time of the two fusions, represents a correct appraisal of the care required by the plaintiff from 2 January 2013 until the time of his death. That comes to a lump sum of $102,177.24. 3. I have come to the view that I should allow the plaintiff one hour per day for seven days per week for gratuitous attendant care between 29 October 2007 until 20 November 2009, and from 21 November 2009 to 1 January 2013 ten hours per week. The plaintiff's condition, it appears to me, gradually deteriorated with time so the need for care services was not as great in the beginning as it later became. I choose 20 November 2009 because that is proximate to the time that the plaintiff was referred by Dr Prowse to Dr Schwarzer. That represents a time when the need to travel to appointments become greater, travelling more regularly to Newcastle, and when the plaintiff's condition appeared to be gradually getting worse, as the degenerative disease itself worsened. This amounts to $58,701.63. When I add that sum to $102,177.24 I obtain for past gratuitous attendant care services a lump sum of $160,878.87. 4. I have inquired of counsel for the parties if any further reason for judgement is required. I am told that none is so required. For those reasons I give verdict and judgment for the plaintiff against the defendant for $536,950.41. I grant credit to the defendant for the sum of $6,590 already paid by the defendant to or on behalf of the plaintiff by way of partial reimbursement of out of pocket expenses. [SUBMISSIONS RE COSTS] Costs 1. The Plaintiff now seeks indemnity costs from 15 August 2017. On 14 August 2017, by hard copy letter addressed to the defendant's solicitors post office box in the Queen Victoria Building, but also sent by email, the plaintiff made an offer of compromise to the defendant. The offer of compromise is in the prescribed form. The offer is this: "1. Pursuant to r 20.26 of the Uniform Civil Procedure Rules, the plaintiff makes an offer to settle this cause of action in the sum of $400,000. 2. This offer of compromise is open for acceptance for 28 days." The defendant disputes the validity of the offer of compromise. 1. UCPR 20.26 provides that in any proceedings, any party may, by notice in writing, make an offer to any other party to compromise any claim in the proceedings, either in whole or in part, on specified terms. This is a notice in writing. It makes an offer, and it makes an offer by way of compromise because it offers "to settle this cause of action", and that can only be a compromise, when the plaintiff's claim is for $750,000, the jurisdictional limit of this Court. Under UCPR 20.26(2): "An offer under this rule: (a) must identify: (i) the claim or part of the claim to which it relates, and (ii) the proposed orders for disposal of the claim or part of the claim, including, if a monetary judgment is proposed, the amount of that monetary judgment and…" Paragraph (b) of the sub rule relates only to where the offer relates to a part of the claim in the proceedings. That is not currently relevant. 1. This offer does identify the claim to which it relates. The claim relates to "this cause of action". Only one cause of action is identified in the statement of claim. UCPR 20.26(2)(c) provides that an offer must not include an amount for costs and must not be expressed to be inclusive of costs. This offer does not infringe that paragraph of the sub rule. The next paragraph of the sub rule provides that the document must bear a statement to the effect that the offer is made in accordance with the rules. It does so. The final requirement of the sub rule, that is, that contained in cl (f) is that the offer must specify the period of time within which the offer is open for acceptance. It does so. There is no submission put that the period in which the offer of compromise was open for acceptance was an unreasonable one. 2. UCPR 26.26(3) makes provision for things that may be included in an offer, but that is not presently relevant. Paragraphs (b) and (c) of that sub rule provide the orders concerning costs may be included in the sub rule, but the offer of compromise before me does not state anything about costs. Costs would accordingly follow the event. I therefore am persuaded the offer of compromise is a valid one. 3. If I be wrong in that assessment, then clearly I can take the attempt by the plaintiff to make a valid offer of compromise into account in the exercise of my discretion as to costs. Furthermore I can in my view consider the offer to be in accordance with the principles laid down in Calderbank v Calderbank [1974] 3 All ER 333. For those reasons I order the defendant to pay the plaintiff's costs on the ordinary basis until 14 August 2017 and thereafter on an indemnity basis. [FURTHER SUBMISSIONS ON COSTS] 1. The further application for costs is dismissed. Do you want that liberty to apply in case the calculation was incorrect? ROMANIUK: If we could, your Honour. I think it is going to be all right. HIS HONOUR: Liberty to the parties to apply in the event that the calculations provided to me by counsel as to the quantum of the claim for past gratuitous attendant care services are inaccurate. ********** 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. Decision last updated: 06 February 2018