Supreme Court
New South Wales

Medium Neutral Citation:

Peters v Layani [2013] NSWSC 695

Hearing dates:

19 & 20 February 2013

Decision date:

18 July 2013

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) Judgment for the Plaintiff in the sum of $1,105, 705;

(2) The Defendant is to pay the Plaintiff's costs.

Catchwords:

DAMAGES - medical negligence - operation to repair hernia - negligence resulting in irreparable injuries and disabilities - operation performed in Queensland - damages assessed under Civil Liability Act 2003 (Qld)

Legislation Cited:

Civil Liability Act 2002 (NSW)
Civil Liability Act 2003 (Qld)
Civil Liability Regulation 2003 (Qld)
Workers Compensation Act 1987

Category:

Principal judgment

Parties:

Aaron Mark Peters (Plaintiff)
Dr Laurent Layani (Defendant)

Representation:

Counsel:
D R Toomey (Plaintiff)
No appearance (Defendant)
Solicitors:
Russell McLelland Brown Lawyers (Plaintiff)
No appearance (Defendant)

File Number(s):

2011/372931

Judgment

1The Plaintiff was referred by his general practitioner to the Defendant in respect of a right inguinal hernia. The Defendant arranged for the Plaintiff to be booked into the John Flynn Gold Coast Private Hospital where on 11 August 2003 the Defendant conducted a laparoscopic right inguinal hernia repair.

2During the surgery the Defendant stapled internal mesh laparoscopically around the ilioinguinal and genitofemoral nerves causing entrapment of such nerves. The result of that has been extreme pain and associated problems including paraesthesia in the area of the right thigh, the right groin and the lower abdominal area as well as restriction of movement in the right leg. Those injuries have led to associated disabilities including psychological injuries.

3The Plaintiff commenced proceedings against the Defendant on 7 November 2011. The Defendant has never filed a defence in the proceedings. On 6 September 2012 the Plaintiff obtained default judgment against the Defendant with damages to be assessed. The assessment of those damages came before me in the Duty Judge List. There was no appearance for the Defendant and the hearing proceeded on an assessment on an undefended basis of the Plaintiff's damages.

The Plaintiff's background

4The Plaintiff was born on 15 May 1986.

5He said he was always keen to succeed and motivated to work hard. He had seen his Father work very hard and he could not remember him having a single day off work when the Plaintiff was growing up.

6In 1998 at age 12 the Plaintiff started delivering advertising catalogues which he continued to do until age 14 and 9 months.

7In 2000 at age 14 and 9 months he commenced working at McDonalds. He took this job to pay for computers which had become his main interest and hobby. His hours quickly increased and even whilst he was at school he was working a 35 hour week. By age 15 he was promoted to Crew Trainer.

8In 2001 at age 15 he started his own computer business which he titled Titan Computing. He would repair computers, build new computers, perform fault finding and train people on using computers. He was interested in expanding the business and performing networking which would require more computers. In order to fund this he decided to take on another job.

9His Brother had been working at Woolworths and he arranged for the Plaintiff to apply for a job there in early 2002. He started work the day after the interview and whilst still at school, he was working at both McDonalds and Woolworths.

10In mid 2002 at age 16 he was granted early entry to the Australian College of Information Technology. He paid for each module with his own funds as his family were not well off. After discussing matters with his high school Principal and Student Advisor, it was agreed that his best course of action to pursue a career in information technology was to leave school in Year 10 after he obtained his School Certificate.

11 He completed Year 10 at Kingscliff High School where he obtained his School Certificate.

12In December 2002 he began working full time at a computer shop called Microstuff Computer Recyclers and ended his employment with McDonalds. He continued to work at Woolworths and operate 'Titan Computing' for extra cash.

13In early 2003 he obtained his Certificate III and IV in Information Technology.

14In April 2003 he resigned from Microstuff Computer Recyclers so he could attend the Australia College of Information Technology on a full time basis.

The accident

15On Sunday, 3 August 2003 the Plaintiff was working the 10.30am to 6.00pm shift at Woolworths in the serviced delicatessen. When leaning into a display window holding onto a tray of bacon he experienced a sudden, extremely painful stabbing sensation in his groin. He went home in pain.

16He spent the next day in bed hoping the pain would ease. By Tuesday, 5 August 2003 the pain was not getting better and he had a large bubble-like mass in his groin area. On 6 August 2012 he saw his general practitioner Dr Lao. He advised the Plaintiff that he had sustained a hernia that would need urgent surgical repair. Dr Lao referred him to Dr Laurent Layani (the Defendant) at John Flynn Private Hospital.

17On Thursday, 7 August 2003 the Plaintiff saw the Defendant. The Defendant advised the Plaintiff that he had an inguinal hernia which would require immediate surgical repair. The Defendant advised him that surgery was the only option to fix the injury.

The operation and its sequelae

18On 11 August 2003 the Plaintiff attended at John Flynn Hospital for the operation. When he woke up from the anaesthetic he said he was in so much pain that he was unable to get out of bed. He was also experiencing a tingling sensation down the inside of his right thigh and sudden sharp pains like electric shocks that went off with the slightest movement. He was assured by the nurses that this pain was normal.

19On 12 August 2003 he was discharged with pain medication. At this stage he was living with his former Partner, Diane in Tweed Heads. His father and Diane's step father had to carry him from the car to the house because the pain was so intense he could not walk.

20For 3 weeks he said he was completely bed ridden. The only time he got out of bed was to go to the bathroom and he had to be assisted by Diane or her parents. He was unable to shower so he would sit on the side of the bath while Diane washed him. He said there was no time where he was not in pain.

21On 14 August 2003 with the pain not subsiding the Plaintiff arranged an appointment to see Dr Lao. He prescribed Valium to try to reduce the sudden striking pain. The Valium helped slightly but the overall pain did not let up.

22He saw Dr Lao on a weekly basis post-operatively and each time his medications were changed and increased in an attempt to ease the pain.

23In late August 2003 the Plaintiff attended a post-operative consultation with the Defendant. The Plaintiff said that the Defendant simply looked at his scars and said "it does not look too bad". In response to the Plaintiff's complaints of pain the Defendant said only that teenagers like the Plaintiff could not handle pain.

24Shortly after this consultation with the Defendant the pain became worse. The Plaintiff went back to Dr Lao who prescribed stronger pain medication which included Tramal, Endone, Capadex and Panadeine Forte. The Plaintiff was not sleeping due to the pain so he was also prescribed sleeping pills. Later, he was prescribed antipsychotics and antiepileptics but he said that these medications did little to alleviate his pain.

25On 31 October 2003 the Plaintiff requested a second opinion. He had continued to have severe pain in his right groin of a crippling nature which radiated to the front medial aspect of his right side and the right side of his scrotum. He was unable to return to work or study due to the pain and the medication which caused him to suffer from drowsiness, nausea, headaches and stomach cramps.

26Dr Lao referred him to General Surgeon, Dr Michael Ghusn. Dr Ghusn advised the Plaintiff that he saw no sign of a recurrence of the hernia and referred him to Dr Alan Mackillop for pain management.

27In December 2003 an ultrasound showed that there was a large amount of fibrosis around the hernia repair.

28In December 2003 the Plaintiff went back to work at Woolworths but he developed severe pain within a couple of hours despite taking Panadeine Forte and was forced to go off work again.

29On 20 December 2003 the Plaintiff said that he tried to take his own life. He took 8 Panadeine Forte tablets, having already taken 3 tablets earlier in the afternoon. He said that this did not have the expected effect in that he woke up 21 hours later. Around this time he was referred to Psychiatrist, Dr William Wright.

30On about 21 January 2004 he obtained employment with IT Megamart with the view that the income from this job would pay for more modules at the Australian College of Information Technology. His employer agreed to set up a work bench at the rear of the store with a small bed that allowed him to work from a horizontal position. The Plaintiff said that he could not sit for more than 10 to 20 minutes without experiencing crippling pain. The job increased the pain he was feeling but he said that what kept him going was his love for computers.

31As the weeks went by his pain increased and he would take regular sick days. Despite his pain worsening he said he felt obliged to continue to work at IT Megamart because the company had supported him. In early 2004 he developed pneumonia and was off work for a protracted period and he said that he was forced to resign from IT Megamart on about 1 June 2004. The Plaintiff's tax returns suggest that this resignation may have been towards the end of August 2004.

32By April 2004 he was having postural problems. He walked with a major limp which led to pain in his lower back, right hip and right knee. He was given a series of exercises by Posture Health to whom he had been sent for a spinal analysis. He said that performing these exercises would help alleviate his back pain but would increase his groin pain in the process.

33In September 2004 Diane's father Gary, who owned a transport company, offered him a job driving trucks. The Plaintiff tried doing this work and, although the truck had an air ride set up which is as comfortable as it can be for drivers, he found that if he had been driving for half an hour he was in so much pain he was on the verge of passing out.

34Gary was able to arrange a job for the Plaintiff through his brother at Australian Air Express where the Plaintiff worked short shifts sorting out mail satchels. In that job he was able to sit, stand or lie down at regular intervals. Unfortunately, when the General Manager returned from leave his employment was terminated on the basis that he was an insurance risk.

35In November 2004 the Plaintiff moved back to the Gold Coast to be close to his family and to seek further treatment. He continued to feel constant crippling pain and was on strong medication which had many unpleasant side effects. He returned to see Dr Lao who referred him back to Dr Ghusn for further opinion.

36On 19 January 2005 the Plaintiff saw Dr Ghusn. Dr Ghusn felt exploratory surgery was necessary to determine the cause of the pain. The Plaintiff underwent surgery on 28 July 2005. Dr Ghusn told the Plaintiff that he was unable to find a hernia and that there was too much fibrosis to carry out removal of any of the mesh or tacks. The Plaintiff said that Dr Ghusn was unable to explain the pain but considered it to be neuralgic. He recommended that the Plaintiff return to Dr Mackillop for pain management.

37In early 2005 the Plaintiff started a business called 'Sliding Performance' which imported and sold car parts directly from distributors to customers via website and forum sales. He also performed computer jobs for friends and family when asked. Because of his injury he said that he was unable to get any other job. It does not appear that the Plaintiff made any money from this business.

38In May 2005 he saw Dr Hopcroft, a General Surgeon, who thought that the Plaintiff had nerve irritation as a result of the hernia repair.

39In August and September 2005 the Plaintiff was referred by Dr Mackillop to Physiotherapists, Anna Wood and Steve Wynia. Ms Wood and Mr Wynia attempted to stretch and build the muscles surrounding his right groin through exercise. The Plaintiff also attended Tweed Head Heated Pools for a period of four weeks to participate in aqua therapy but he said that this did not help. He said that during the resistance training the force of the water hitting his groin was enough to cause him to vomit in the pool twice during the eight visits. The second time he was sick was during the eighth visit and he did not return after that.

40In February 2006 the Plaintiff, at Dr Mackillop's recommendation, underwent CT-guided local anaesthetic and steroid infiltration. He said that the injection therapy gave him some pain relief but it only lasted as long as the anaesthetic. As a result he said that Dr Mackillop told him that further interventional procedures were likely to be of no sustained benefit. Instead, he referred the Plaintiff to the ADAPT multidisciplinary pain management program at Royal North Shore Hospital.

41Around this time the Plaintiff had an x-ray of the hernia sight which, he said, revealed that 13 tacks had been used to hold tissue and mesh together. He said that the location of the tacks was the same as the localised pain he feels. The lower group of tacks was where the striking sensation in his thigh originated from and the upper group of tacks was where the pain was coming from beside the base of his penis and up to the waistline to the top of his right hip bone.

42In April 2006 the Plaintiff returned to see Dr Hopcroft who referred him to Dr Geoffrey Askin, a Paediatric Spinal Surgeon. There was a suggestion that the Plaintiff could have a neurectomy of the ilio-inguinal and genito-femoral nerves.

43Dr Askin told the Plaintiff that he was against the neurectomy option as there were potential post-operative complications regarding the regrowth of the nerves and many sensory-based movements rely on these nerves. Dr Askin said that one result might be that the Plaintiff would not be able to reproduce naturally because the operation removes the nervous reaction to arousal, preventing the Plaintiff from having an erection. Further, if both nerves were sectioned off the Plaintiff was told that it was likely that he would be unable to feel anything around his groin area, and dissecting those nerves would take away his ability to walk. As a consequence he did not proceed with surgery.

44On 5 May 2006 the Plaintiff attended Royal North Shore Hospital for an initial consultation. He was reviewed on 9 June 2006 and showed no improvement from the medications prescribed. He was then scheduled to undertake the ADAPT program in November and December of that year which he undertook. He said that he did not enjoy the program, the people there or the relationships with other patients. He finished the program with significant frustration and pain.

45In December 2007 the Plaintiff underwent a ketamine infusion procedure with Dr Mackillop. He found that he experienced severe hallucinatory reactions to the infusion and the ketamine program had to cease.

46Around this time he was prescribed morphine by Dr Lao in agreement with Dr Mackillop. Upon commencing morphine he saw an immediate increase in his mobility. However, when the morphine wore off he experienced sweating, cold and hot flushes, nausea, muscle cramps and heightened groin pain.

47In September 2008 the Plaintiff purchased a mortgage broking franchise with Refund Home Loans for $130,000.00 and ceased running 'Sliding Performance'. He completed Certificate IV in Finance Lending through the National Finance Institute.

48While working as a mortgage broker he had no problems speaking to the clients. However, he could not sit for longer than 10 to 20 minutes without it becoming obvious that he had a problem. He said that that made it very difficult to maintain positive client relationships because he spent a lot of time explaining his problem to clients who wanted to know why he was in so much pain.

49In September 2011 the franchisor of Refund Home Loans went into administration and the Plaintiff has not received an income from this business since this date. I will make further reference to this when discussing the Plaintiff's past economic loss. He had depleted his savings purchasing the business and was unable to renew his memberships and insurances without an income.

50The Plaintiff is now in a de-facto relationship with Melissa Lange. They have a son, Ari Stuart Peters born on 20 June 2012. Because of his pain and restriction in movement the Plaintiff cannot (for example) run after Ari, pick him up, teach him to ride a bike or coach his soccer team.

51In June 2012 Melissa went on maternity leave. The Plaintiff said that he had no option but to obtain any job he could. His father loaned him $40,000.00 to purchase a Courier business. The Plaintiff initially planned to have an employee operate the run while he, the Plaintiff, performed a management and marketing role. However, when he took over the business he was unable to afford a driver due to increasing debts and the fact the business was not as profitable as he had expected.

52He said that he is forced to drive the courier van himself which is a massive source of pain. He is now on double the amount of pain medication he was taking twelve months ago. He says that he cannot continue to drive the van but if he employs a driver the business will not be viable. He says that it is likely that he will have to sell the business. Although in his statement he estimated that he was earning about $400.00 nett per week from the business after expenses he corrected the position in his oral evidence. He was at first earning $600 per week net of expenses. From July 2012 that increased to $800.

53The Plaintiff says that he has the following disabilities:

1. Chronic and severe stabbing hyperaesthetic pain from the inguinal canal to the right side of his scrotum and testicle radiating down into his right thigh.

2. The Plaintiff's pain is so severe that he is forced to take most of his weight on his left leg when standing idly, slightly flexing his hip and the initial attempts to move it then cause a pain which is so severe that it makes him sweat. The Plaintiff has previously lost consciousness due to pain. The pain is aggravated by light touch of his clothing and any movement.

3. Paraesthesia in the right groin area, the lower abdominal area and the right thigh.

4. Scarring to the lower abdomen and groin.

5. Muscle cramps.

6. Restricted range of movement of the lumbar spine the right leg and hip flexion. Difficulty squatting, kneeling and crouching.

7. Difficulty lifting and carrying.

8. Extreme difficulty performing repetitive bending and squatting movements.

9. Difficulty extending at the waist.

10. Tightness of inner right thigh to the knee.

11. Difficulty sitting for prolonged periods.

12. Difficulty standing or walking for periods exceeding 15 minutes. He walks with a marked limp. He is unable to run. Difficulty ascending and descending stairs.

13. Low back pain due to his limp

14. Difficulty driving for prolonged periods.

15. He experiences urgency to urinate when bladder is full.

16. He experiences urgency to defecate after a large meal.

17. He experiences pain whilst urinating and defecating.

18. Difficulties maintaining an erection.

19. He is frustrated, anxious moody and irritable, and has difficulty sleeping.

20. He feels depressed and is socially withdrawn.

21. He has loss of confidence.

22. He has difficulty concentrating.

54I had the benefit of both seeing and hearing from the Plaintiff as he gave some additional oral evidence. I observed the way he moved to and from the witness box and generally in the court. I considered that he was both genuine and truthful. His pain and discomfort was palpable. I accept the matters which I have recorded above.

Causation

55In his report of 25 January 2005 Dr Ghusn, a General, Laparoscopic and Upper GI Surgeon, said, based upon consultations with the Plaintiff on 31 October 2003 and 19 January 2005:

[I]t is my opinion that, his groin troubles now are causally related to the initial injury, or the surgery for the initial injury.

56A report from Dr Peter Conrad, Surgeon, dated 12 October 2009 said this:

There is little doubt in my mind, and those of his examining specialists, that the cause of the ongoing pain is due to entrapment of the ilioinguinal and/or genitofemoral nerves. An attempt to free these nerves was unsuccessful by Dr Ghusn, a General Surgeon, due to the heavy scar tissue present.

In my view, the entrapment of these nerves undoubtedly occurred by the placement of a staple around the nerve or nerves during the laparoscopic repair.

57In a subsequent report from Dr Conrad dated 27 June 2011 the following appears:

The answer to your questions are as follows:

1. "Whether the staple should have been placed around the nerve or nerves during the laparoscopic hernia repair."

The answer is, no.

2. Whether the placing of the staple around the nerve or nerves during the laparoscopic hernia repair constituted departure from accepted surgical practice."

The answer is, yes.

58Then in a report of 25 October 2011 Dr Conrad said this:

By further explanation of my answer:

2. An experienced laparoscopic surgeon, when doing a laparoscopic hernia repair, should either look for the ilioinguinal nerve and avoid placing a staple around this nerve or knowing the anatomy of the nerve, try and avoid placing staples in the area of the anatomy of this nerve.

From this point of view, it can be said that the answer to Whether the placing of the staple around the nerve or nerves during the laparoscopic hernia repair constituted departure from accepted surgical practice", gives an answer, Yes.

59Dr A G Hopcroft, in a report dated 6 April 2011, said:

My opinion at that time [9 May 2005 when Dr Hopcroft first examined the Plaintiff] was that the patient had undergone laparoscopic repair of a traumatic right indirect inguinal hernia on 8 August 2003, during which time the ilioinguinal nerve and/or the genitofemoral nerve was entrapped by one of eleven staples on the mesh reinforcing used to obliterate his indirect inguinal hernia.

...

I believe the person best placed to improve this patient's significant post-operative complications was the surgeon who undertook the original procedure, and the use of eleven staples to secure the mesh almost certainly has randomly tethered the ilioinguinal and or/the genitofemoral nerve which passes through his right inguinal canal.

...

I believe that this patient's first post-operative review by his surgeon was significantly less than one would expect from an involved and treating general surgeon, and that this patient's post-operative complications were virtually ignored, leaving him grossly incapacitated for six years with no prospects of improvement currently into the future.

60In a further report dated 22 February 2012 Dr Hopcroft said:

I agree with Dr Peter Conrad that "placing of a staple around the nerve or nerves during laparoscopic hernia repair constitutes departure from accepted surgical practice". If the explanation forthcoming is that great difficulty was found in the correct positioning of the mesh reinforcement, then the question still has to be answered that early intervention with formal laparotomy or repeat laparoscopy to remove the offending staples was never offered at a time when success was eminently achievable.

61On the basis of that medical evidence causation of the Plaintiff's injuries by either the initial surgical procedure or by the failure to correct the problem in a timely fashion or both is established.

Damages

62The accident happened in Queensland. The damages must be assessed, therefore, in accordance with the law of Queensland. Under Queensland law damages are assessed by reference to the provisions of the Civil Liability Act 2003 (Qld) and the Civil Liability Regulation 2003 (Qld).

(a) General damages

63These are governed by ss 61 and 62 of the Act which provide:

61 Assessment by court of injury scale

(1) If general damages are to be awarded by a court in relation to an injury arising after 1 December 2002, the court must assess an injury scale value as follows:

(a) the injured person's total general damages must be

assigned a numerical value (injury scale value) on a

scale running from 0 to 100;

(b) the scale reflects 100 equal gradations of general

damages, from a case in which an injury is not severe enough to justify any award of general damages to a case in which an injury is of the gravest conceivable kind;

(c) in assessing the injury scale value, the court must:

(i) assess the injury scale value under any rules provided under a regulation; and

(ii) have regard to the injury scale values given to similar injuries in previous proceedings.

(2) If a court assesses an injury scale value for a particular injury to be more or less than any injury scale value prescribed for or attributed to similar particular injuries under subsection (1)(c),

the court must state the factors on which the assessment is based that justify the assessed injury scale value.

62 Calculation of general damages

(1) For an injury arising after 1 December 2002, general damages must be calculated by reference to the general damages calculation provisions applying to the period within which the injury arose.

(2) In this section:

general damages calculation provisions, applying to a period, means the provisions prescribed for the period under a regulation.

64Schedules 3 and 4 of the Regulation then apply by virtue of clause 6 of the Regulation. In addition, clause 6A of the Regulation makes Schedule 6A clause 1 the relevant schedule for general damages because this injury occurred between 2 December 2002 and 30 June 2010.

65Schedule 3 relevantly provides:

1 Objectives of sch 4

The objectives of schedule 4 include promoting:

(a) consistency between assessments of general damages awarded by courts for similar injuries; and

(b) similar assessments of general damages awarded by courts for different types of injury that have a similar level of adverse impact on an injured person.

Notes:

· Under the Act, section 61(1), if general damages are to be awarded by a court in relation to an injury arising after 1 December 2002, the court must assess an injury scale value as follows:

· the injured person's total general damages must be assigned a numerical value (injury scale value) on a scale running from 0 to 100 - the Act, section 61(1)(a)

· the scale reflects 100 equal graduations of general damages, from a case in which an injury is not severe enough to justify any award of general damages to a case in which an injury is of the gravest conceivable kind - the Act, section 61(1)(b)

· in assessing the injury scale value, the court must:

· assess the injury scale value under any rules provided under a regulation; and

· have regard to the injury scale values given to similar injuries in previous proceedings - the Act, section 61(1)(c).

· Under the Act, section 61(2), if a court assesses an injury scale value for a particular injury to be more or less than any injury scale

Part 2 How to use schedule 4

Division 1 Injury

2 Injury mentioned in sch 4

(1) In assessing the injury scale value (ISV) for an injury mentioned in the injury column of schedule 4, a court must consider the range of injury scale values stated in schedule 4 for the injury.

(2) The range of ISVs for the injury reflects the level of adverse

impact of the injury on the injured person.

...

9 Court may have regard to other matters

In assessing an ISV, a court may have regard to other matters to the extent they are relevant in a particular case.

Examples of other matters -

· the injured person's age, degree of insight, life expectancy, pain, suffering and loss of amenities of life

· the effects of a pre-existing condition of the injured person

· difficulties in life likely to have emerged for the injured person whether or not the injury happened

· in assessing an ISV for multiple injuries, the range for, and other provisions of schedule 4 in relation to, an injury other than the dominant injury of the multiple injuries.

66Schedule 4 then sets out the ranges of ISVs. Part 5 Div 12 deals with hernia injuries. Those injuries are divided into three being minor, moderate and severe. In my opinion the Plaintiff's injury falls into the severe category. That is supported by the second column which gives an example of the injury as follows:

A hernia if after repair there is either or both -

(a) ongoing pain; or

(b) a restriction on physical activities, sport or employment.

67The numerical range for a severe hernia is 11 to 20.

68Schedule 6A clause 1 provides the way general damages are to be calculated for an injury in the period in which this one occurred. Clause 1(d) provides:

if the injury scale value of the injury is assessed as 20 or less but more than 15 - by adding to $18000 an amount calculated by multiplying the number by which the injury scale value exceeds 15 by $1600;

69In my opinion the injury scale value of the Plaintiff's hernia should be assessed as 20. The evidence is such that it is difficult to think that ongoing problems from a hernia could be any or much worse than the Plaintiff is experiencing. Accordingly, the Plaintiff is entitled to $26,000 general damages.

(b) Past economic loss

70The Plaintiff gave evidence that but for his injury he would have pursued a career in the Information Technology field. That would have involved completing the course he had started at the Australian College of Information Technology prior to his injury and a Bachelors Degree in Computer Science. He said that he would have completed that degree around the end of 2006. He said that the type of job he would then have been qualified for included Security Analyst, Network Administration, Network Security Manager, Systems Administrator or Network Engineer. He claimed that if he had obtained employment in one of these fields in or about 2005, he would now be earning approximately $100,000 to $120,000 nett per annum.

71There were in evidence a considerable number of job advertisements for positions for which the Plaintiff would have been qualified, had he completed the studies outlined above. Those advertisements supported an average salary of between $100,000 and $120,000 with some positions paying up to $200,000 per annum. Figures obtained from mycareer.com in relation to IT and telecommunications, tendered in evidence, demonstrated at least the same range but with higher averages.

72I accept that the pain and restricted ability to sit, stand or walk for long periods together with the effects of the pain medication, the depression and the lack of concentration have all combined to prevent the Plaintiff from being able to complete the IT course he had hoped to undertake. I accept also that, even if he was qualified as he had hoped, he would have difficulty undertaking the work because of the need to sit for long periods.

73There was prepared on the Plaintiff's behalf a schedule of past wage loss. The Plaintiff's probable earnings until the end of 2003 were the wages he would have been earning at Woolworths. Thereafter the Plaintiff earned an average weekly wage of $479.03 at IT Megamart until 30 June 2004. Those earnings reduced to $398.05 from 1 July 2004 until 20 August 2004. The wage loss is calculated from one month after the operation because he would, in the ordinary course, have needed recovery time. His wage loss from one month after the operation until he commenced at IT Megamart is $6,219.11.

74There is no loss during the time he worked for IT Megamart from 1 January 2004 until 20 August 2004. Thereafter until 30 June 2006 the higher figure at Megamart is put forward as the probable earnings of the Plaintiff but for the injury. That is an appropriate figure. The wage loss for that period is $46,350.94.

75In about September 2008 the plaintiff purchased a mortgage broking franchise called refund Home Loans for $130,000. He borrowed the money to purchase this from his father. From the time of purchase until about June 2010 he did not write any loans and, therefore, received no commission. Thereafter until about September 2011 he was paid monthly commissions which did not cover his overheads. He was not able to draw a wage from the business because he did not make enough money to do so. The franchisor went into administration in about September 2011 and he did not receive any commission after that time.

76The Plaintiff does not have a complete copy of his business records but those that he has annexed to his supplementary statement bear out the very small income he received from this business throughout 2010 and 2011. I accept his evidence that he effectively earned nothing from this business.

77Accordingly, the Plaintiff had no earnings until he commenced the courier business in March 2012.

78From 1 July 2006 until he purchased the courier business his claim is for approximately half of what he might have earned in the IT industry on the basis that he has some residual earning capacity. The claim also accepts, conservatively, that in the first 12 months of his qualification he would not have been earning the $100,000 to $120,000 suggested by the job advertisements and information from mycareer.com. I accept that his probable weekly net earnings from 1 July 2011 in the IT industry would have been around $1500. His wage loss from 1 July 2006 to 28 February 2012 is $364,500.

79From the time the Plaintiff commenced with the courier business in March 2012 he earned on average $950 per week and had expenses of $350 per week. In July 2012 the amount he was paid each week increased by $200 but expenses remained the same. His earnings, therefore, from the beginning of March until the end of June were $600 per week net. Thereafter they have been $800 per week net. Working on the same $1,500 probable net weekly earnings in the IT industry his wage loss from 1 March 2012 to 30 June 2012 (17 weeks) was $900 per week amounting to $15,300 for the period. From 1 July 2012 to 19 July 2013 (55 weeks) his wage loss was $700 per week amounting to $38,500.

80During the whole of the time since the operation he has received $110,000 in Workers Compensation weekly payments. Although s 151Z Workers Compensation Act 1987 (NSW) does not apply, by reason of the workers compensation payments the Plaintiff's wage loss is less than it would otherwise have been. The rule against double compensation would preclude those payments being ignored. His past wage loss is therefore $360,870 calculated as follows:

$470,870.05 - $110,000 = $360,870.05

81Interest is payable on past economic loss in accordance with s 60(2) and (3) Civil Liability Act. The ten year bond rate was relevantly .034 for 9.9 years x 0.5 as follows:

$360,870.05 x .034 x 9.9 years x 0.5 = $60,734

(c) Future economic loss

82Damages for loss of earnings are capped under s 54 Civil Liability Act in the same manner as they are capped under s 12 of the NSW Civil Liability Act. There is no Queensland equivalent of s 14 of the NSW Act requiring the claimant to satisfy the Court that assumptions about future earning capacity accord with the claimant's most likely future circumstances but for the injury. Nevertheless, it will be apparent from what has been discussed earlier in this judgment that I consider that, but for the injuries sustained by the Plaintiff, he would have pursued a career in the IT industry and his earnings would have been in the vicinity of $100,000 to $120,000 gross per annum.

83I have, accordingly, calculated his future loss of earnings on the same basis as the period from 1 July 2012 to the present time. His future loss of earnings are $700 per week net.

84The Plaintiff is now aged 27 years. He will work for another 40 years. The appropriate multiplier is 917.5. Deducting 15% for vicissitudes his future loss of earnings total $545,912.50. I allow $545,913.

(d) Past domestic assistance

85These damages are governed by s 59(1) of the Qld Act. Section 59(1) provides:

59 Damages for gratuitous services provided to an injured person

(1) Damages for gratuitous services provided to an injured person are not to be awarded unless

(a) the services are necessary; and

(b) the need for the services arises solely out of the injury in relation to which damages are awarded; and

(c) the services are provided, or are to be provided

(i) for at least 6 hours per week; and

(ii) for at least 6 months.

86The Plaintiff claims for two years at 12 hours per week for the first year and six hours per week for the second.

87The Plaintiff gave the following evidence concerning the assistance that was provided to him.

88After being discharged from hospital on 12 August 2012 he was bed-ridden for several months. His former partner, Diane, her mother, Pamela and step-father, Steve performed the following tasks for the Plaintiff daily:

1. Personal hygiene.

2. Personal care and grooming.

3. Cooking.

4. Laundry.

5. Driving.

The Plaintiff estimates that Diane and her family spent about 20 to 30 hours per week performing domestic tasks that he could not perform due to his injury.

89That continued until about September 2004 when he moved to Sydney. Whilst living in Sydney his level of care remained roughly the same. It was then provided by Diane, her father, Gary and her step-mother, Leah. By that time he was able to use the toilet and shower without assistance but would occasionally require Diane's help to dress. This continued until about December 2004 when he returned to the Gold Coast.

90In December 2004 the Plaintiff returned to live with his parents, Brett and Kathleen. His mother became his primary carer, performing all cooking, laundry, cleaning and most of the driving. The Plaintiff estimates that his family spent about 20 hours per week performing domestic tasks that he could not perform due to his injury.

91In about 2008 the Plaintiff commenced a relationship with Melissa and they moved in together. Melissa was responsible for all domestic tasks in the household. The domestic tasks that Melissa performed and continues to perform which the Plaintiff would otherwise have done were it not for his disabilities include:

1. Lawn mowing.

2. Gardening.

3. Garbage.

4. Washing cars.

5. Car maintenance.

6. Walking dogs.

7. Washing dogs.

8. Feeding dogs.

9. Driving.

10. Home repairs.

11. Cleaning bathroom and shower.

12. Cooking.

13. Laundry.

14. Vacuuming.

92The Plaintiff estimates that Melissa spends about 20 to 25 hours per week performing these jobs. Melissa also performs the bulk of the tasks associated with caring for their child. Now Ari is getting older the Plaintiff says that he cannot pick him up. This means that Melissa is responsible for nursing, feeding and changing Ari.

93The Plaintiff says that if he had the money he would pay a professional to do the jobs he can no longer do so that he is not a burden to his family.

94I am satisfied that the services which were provided to the Plaintiff were necessary and that they arose solely out of the injury brought about by Dr Layani's negligence. I am satisfied that the threshold referred to in s 59(1)(c) has been exceeded at least in the first two years after the accident.

95In my opinion the Plaintiff is entitled to damages for past domestic assistance in the amount claimed of $23,400.

(e) Future domestic assistance

96It appears from the medical reports that the time to correct the Defendant's initial error in stapling the mesh in the way he did was within a relatively short time before the development of fibrosis and other tissue which now prevents the mesh and tacks being removed without damage to the nerves. Moreover, the medical evidence suggests that there are not inconsiderable risks from operating to cut the nerves or otherwise affect them. The Plaintiff's reluctance to undergo such an operation is entirely reasonable.

97In all of those circumstances it seems likely that the Plaintiff will continue to bear pain in the area for the rest of his life with the resultant limitation on his physical abilities. Having observed the Plaintiff in Court, and accepting him as a witness of truth about his restrictions, it is evident that he will be restricted in, or more likely prevented from, performing many of the activities set out in paragraph [91] above. It will be necessary for his partner or some other person to perform those if he is not provided with professional care for at least a modest number of hours per week.

98It seems to me unreasonable to expect his partner or other family members to carry out these tasks on a regular basis. In those circumstances the Plaintiff's claim for two hours per week commercial assistance to the age of 70 is entirely reasonable. The Plaintiff claims at a rate of $30 per hour to the age of 70. The multiplier is 938.2. The Plaintiff is entitled to future domestic assistance in the amount of $56,292.

(f) Future out of pocket expenses

99The Plaintiff claims for the cost of medication at $10 per week and the cost of seeing his general practitioner at regular intervals at the basis of $18.50 per week.

100The Plaintiff says that he attends Dr Lao on a fortnightly basis at a cost of approximately $62 per consultation.

101In relation to the Plaintiff's medication, he takes Capanol 50mg four times per day, Panadeine Forte, eight per day and Effexor XR 75mg twice per day. Those prescriptions cost approximately $60 per week.

102He said that a Dr Dotchen has recommended a trial of Targin as an alternative to morphine. This is a drug not covered by the Pharmaceutical Benefits Scheme and costs about $3,300 per annum.

103The claim for future out of pocket expenses is a modest one. Future out of pocket expenses are likely to be incurred at least at a weekly rate of $28.50. The Plaintiff claims that amount until he turns 70. The multiplier is 938.2. The Plaintiff is entitled to future out of pocket expenses in the sum of $26,739.

(g) Past out-of-pocket expenses

104The Workers Compensation insurer paid all of the out-of-pocket expenses until settlement was achieved with that insurer on 26 August 2009. The only evidence of out-of-pocket expenses since that date derives from the claim for future out-of-pocket expenses for the cost of seeing the Plaintiff's general practitioner and pharmaceutical costs. Those amounts total $5,757 (3y 46w x $28.50).

Conclusion

105The Plaintiff is entitled to the following heads of damage:

HEADS OF DAMAGE	AMOUNT
General damages	$26,000
Past economic loss	$360,870
Interest on past economic loss	$60,734
Future economic loss	$545,913
Past domestic assistance	$23,400
Future domestic assistance	$56,292
Future out-of-pocket expenses	$26,739
Past out of pocket expenses	$5,757
TOTAL	$1,105,705

106I make the following orders: