District Court New South Wales

• Medium Neutral Citation: Belokozovski v Magarey [2014] NSWDC 5
• Hearing dates: 24/02/14 - 28/02/14; 03/03/14 - 04/03/14
• Decision date: 07 March 2014
• Jurisdiction: Civil
• Before: Elkaim SC DCJ

Decision

Verdict for the plaintiff for $23,865

• Catchwords: Medical negligence, causation, psychiatric condition
• Legislation Cited: Civil Liability Act 2002
• Cases Cited: Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320; Dobler v Halvorsen [2007] NSWCA 335; McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476; Mason v Demasi [2009] NSWCA 227; Young v Cesta-Incani & Anor [2007] NSWCA 229
• Category: Principal judgment
• Parties: Mirce Belokozovski (Plaintiff); Christopher John Magarey (Defendant)
• Representation: J Anderson (Plaintiff); V Thomas (Defendant); Martin Bell & Co (Plaintiff); TressCox Lawyers (Defendant)
• File Number(s): 2011/00238962
• Publication restriction: No

Judgment

1 The plaintiff was born in Macedonia in 1973. He moved to Australia in 2004, having married an Australian citizen, Ms Gina Braga. He worked with Ms Braga in a business partnership.

2 The defendant was a surgeon. He retired in 2007. His 'CV' is Exhibit 1. On 23 February 2006 the defendant operated on the plaintiff at St George Private Hospital. The procedure was called a laparoscopic cholecystectomy. This is surgery involving entry to the abdomen through an incision cut close to, and just above, the umbilicus. The purpose is to remove the patient's gall bladder.

3 For some time after the surgery the plaintiff suffered from severe pain in his abdomen together with a frequent discharge from the operation wound. He required a number of subsequent operations until 2010 when his umbilicus was excised and his physical problems came to an end. He now suffers from psychological problems, which he attributes to the original surgery.

4 The plaintiff blames the defendant for the pain and suffering he has endured since the operation in February 2006. He says that the defendant was negligent. He primarily identifies two broad areas of negligence: Firstly, the failure to perform a procedure called an intra-operative cholangiogram (an IOC) during the operation, and secondly, the use of non-absorbable sutures.

5 The first area includes an allegation of proceeding to surgery without first obtaining liver function tests. The second area encompasses an allegation of failing to remove the sutures after surgery or, at least, taking steps to investigate if the sutures were the source of the discharge.

6 It is important to note that the two areas of alleged negligence are discrete. Although difficult to separate, they have discrete consequences. Quite reasonably however the plaintiff views the whole of the consequences as being the product of the surgery.

7 I was greatly assisted by the concurrent evidence of three medical experts, Dr Conrad, Dr Hugh and Prof Morris. Although their reports form a useful background the 'conclave' was most determinative of my conclusions on liability.

8 The action is governed by the Civil Liability Act 2002 (the "CLA"). The defendant has denied negligence and also relied on Section 5O of the CLA.

9 The onus is on the defendant to establish the defence provided by Section 5O (Dobler v Halvorsen [2007] NSWCA 335). More recently, Macfarlan JA, in McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 at paragraph 160, said this:

"160. To establish a defence under s 5O a medical practitioner needs to demonstrate, first, that what he or she did conformed with a practice that was in existence at the time the medical service was provided and, secondly, to establish that that practice was widely, although not necessarily universally, accepted by peer professional opinion as competent professional practice."

10 The plaintiff has claimed damages under the following heads: non-economic loss, past and future economic loss and past and future medical expenses. A particularised claim for domestic care was not pressed.

11 The defendant has said, as with liability, that there are significant causation issues in respect of damages. Although it was conceded that the plaintiff has suffered from an anxiety condition the defendant submitted that it was not caused by anything done by the defendant.

Evidence from the plaintiff, his ex-wife and the defendant

12 The plaintiff's work background is set out in the chronology (Exhibit B1, page 5). As already mentioned he married Ms Braga in 2003. The marriage came to an end in January 2010. The plaintiff says that the separation was caused by his wife's disillusionment with his condition, she taking on an attitude that he was a hypochondriac. Following the separation the plaintiff was forced to seek Housing Commission accommodation. There were problems in obtaining secure accommodation and he spent some time in a motel or sleeping in his car and even one or two nights on the streets.

13 The plaintiff described a normal lifestyle before the surgery. Any other medical problems he suffered were relatively minor and did not impact on work. His then wife, Mrs Belokozovski, gave evidence of a carefree, outgoing man with whom she had sex almost every night. This reduced to a mere once a week ("if anything") after the surgery (T 166.45). For reasons that appear below I have considerable reservations about accepting Mrs Belokozovski's evidence.

14 Following surgery the plaintiff complained of constant pain in his abdomen, which ultimately led him to return to the defendant on 27 July 2006. This consultation was the subject of a good deal of evidence. According to the plaintiff and his wife he underwent a fairly cursory examination concluding with the defendant telling him, in effect, to keep the wound clean and not come back.

15 The plaintiff and his wife clearly took offence at what was said to them, they having obeyed all instructions about keeping the wound clean and being convinced that there was a more serious underlying problem besides the mere collection of fluff or lint in the wound.

16 The plaintiff said that he reported the conversation with the defendant to Dr Mazzaferro. The clinical records indicate that he did not see Dr Mazzaferro until October 2006. The plaintiff said he could not remember if he had told Dr Cvetkovski about the incident.

17 The plaintiff said that the defendant had written to Dr Mazzaferro giving him the same 'message' but in polite terms. He identified the letter at page 440 of Exhibit B2 as the letter he was referring to.

18 In December 2007 the plaintiff and his wife travelled to Hamilton Island in order to spend some time away and to repair their faltering relationship. While on the island the plaintiff suffered severe pain in his abdomen and was airlifted to Mackay Base Hospital. He rejected the suggestion of immediate surgery, preferring to return to Sydney for further treatment. He discharged himself after one night in the hospital but later in the day had another attack of severe pain. The second attack occurred at Airlie Beach. He then spent a night in Proserpine Hospital before returning to Sydney and consulting his general practitioner ("GP").

19 It was put to both the plaintiff and his wife that he had not complained about abdominal pain between July 2006 and the incident on Hamilton Island. As eventually recognised by the cross-examiner there is an entry in Dr Cvetkovski's notes on 12 September 2007 (Exhibit B3, page 802) in which the complaint is recorded. The wording of the entry is I think significant. It states:

"Ulceration in umbilicus from previous lap port, has happened in past and likely again. Seen Dr Magarey and thought it was lint catching in area and causing the skin ulceration. Betadine applied, A/B [antibiotics] in case of not responding." (I have corrected some spelling errors in the note).

20 In favour of the plaintiff, the note does refer to continuing ulceration. Against the plaintiff, on my reading of the note, it is the first record given to the doctor about the difficulties. This is in contrast to the evidence of the plaintiff and his wife about continual complaints to doctors.

21 I accept the caution given by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 (at paragraph 8) and Mason v Demasi [2009] NSWCA 227 (at paragraph 2) about the use of medical records. The records here however were tendered by the plaintiff. If their completeness was to be challenged I think the relevant GPs should have been asked to provide a report on the issue or called to give oral evidence.

22 I think on the whole of the evidence the plaintiff suffered what he and his wife referred to as eruptions of pus and other liquid material about every two or three months following the operation. This would have been accompanied on either side of the eruptions by redness of the wound and a good deal of pain. I do not, however, accept that there was continual pain, as suggested by the plaintiff, between the operation and the incident on Hamilton Island.

23 The plaintiff says he became depressed as a result of the pain that he was experiencing and the consequences on his life. The plaintiff attempted to commit suicide on 19 October 2009 when he took an overdose of valium tablets. He said that he could not cope with the constant pain, the many doctors, emergency rooms and scans that it was necessary to undergo. He felt enormous pressure from the pain. Since then the plaintiff has consulted a psychiatrist and a psychologist. He still sees the latter, Dr Protulipac, on a regular basis.

24 The plaintiff's assertion that his suicide attempt came about as a result of depression caused by the operation came under considerable attack in cross-examination. He was taken to a number of documents to indicate that he had other significant problems besides any consequences of the operation. It was also suggested to him that none of the contemporaneous records included any reference to his depression being related to the operation.

25 It was suggested to the plaintiff that he had a major gambling problem. He denied this. He said he did gamble for fun but it was of minor importance. It certainly did not lead to any depression.

26 Following his overdose on 19 October 2009 the plaintiff was admitted to St George Hospital. A history taken from his wife includes the following:

"Spoke to wife (Gina): records Mirce has a 6 year history of gambling and last night entered their business premises and took all profits and gambled them ... states Mirce aware he needs to stop gambling but has not seek treatment due to the language barrier. States she will more than likely send Mirce back to Macedonia in order for her to sort out their financial difficulties (currently owes approximately $150,000) even though he will not agree to do this plan)." (Exhibit B2, page 385).

27 References to gambling continue through the notes.

28 The plaintiff saw Dr Cvetkovski on 28 October 2009 (Exhibit B3, page 894). There is a reference to a long consultation in which there was a "chat about some of the social pressures". These pressures include some marital issues, a work problem and gambling issues. I will return to this consultation below.

29 Dr Cvetkovski referred the plaintiff to a psychiatrist, Dr Kecmanovic. This doctor provided a report to the general practitioner on 6 December 2009. On examination he found the "patient was shaky, a bit confused, depressed, tearful. He was suicidal". In the history given to the doctor, referring to the plaintiff and his wife it is stated "in addition, it seems that both, and patient in particular, are heavy gamblers".

30 The plaintiff's evidence on gambling received a most unexpected boost from his ex-wife. She confirmed that she had given the histories to the various medical practitioners but said that they were not true. She said she had lied because she was in denial of her own gambling problem. She said that she lied in order to divert acceptance of the problem away from herself and onto her husband.

31 I do not accept Mrs Belokozovski's evidence about the gambling. On one level it appears as an amateur attempt to overcome the gambling evidence that harmfully affects her ex-husband's case. It is not backed up by any corroborative evidence of her gambling problem or its effects. There is evidence that she attempted suicide in January 2010 but I do not know why.

32 When the plaintiff was questioned about his own gambling habits he denied them. He never, however, mentioned any gambling issues on his wife's behalf.

33 A major problem arising from Mrs Belokozovski's evidence about the plaintiff's gambling is that it is confirmed, apparently by her and the plaintiff, in the history given to Dr Cvetkovski on 28 October 2009 (Exhibit B3, page 894). There seems to be have been no denial by the plaintiff. Mrs Belokozovski said she spoke English when seeing Dr Cvetkovski. I find this hard to believe. She speaks Macedonian and a purpose in consulting Dr Cvetkovski was his familiarity with the language.

34 I asked Mrs Belokozovski about the entry just mentioned. She agreed that there were issues relating to the marriage and the plaintiff's employment. She later said that the employment issues had arisen some time before. This would not explain them being listed before the doctor at this consultation. In addition, the consultation on 9 September 2009 is informative (Exhibit B3, page 892) because it occurs before the suicide attempt and refers to social issues as well as the failure of a "Serbian travel programme" and the costs of litigation in respect of Mrs Belokozovski's second marriage.

35 I do not know if Mrs Belokozovski was present at this consultation but whatever be the case the listing of these issues, which were conceded to be correct by Mrs Belokozovski, indicates that the continuing abdominal pain was not a significant factor in the plaintiff's depression. The reason for the 9 September visit is given as "anxiety/depression". If this was the purpose of consulting Dr Cvetkovski one would have thought that in addition to the items mentioned the pain would have been described.

36 I also think Mrs Belokozovski's evidence is improbable. Mrs Belokozovski took the plaintiff to hospital because she was concerned about him. She said that she knew it was important to tell the truth about his condition when he attended emergency departments (T 199.39). She knew that the plaintiff required urgent medical attention and it seems quite inconceivable that she would be dishonest in talking to the doctor who was preparing to provide the attention.

37 In addition Mrs Belokozovski makes absolutely no mention of the plaintiff's abdominal problems as being a source of his depression. Even if the gambling allegation was untrue, one would have thought that she would at least have included the abdominal problems as one of the causes of his depression.

38 The evidence that is most damaging to the plaintiff's denial of his own gambling problem is to be found in the Sutherland Hospital notes. The plaintiff was transferred to this hospital from St George Hospital following the suicide attempt. His ex-wife did not go with him (T 167.48 and T 203.16). It is also apparent from the notes that she was not present. In addition, the notes record that the plaintiff had an "adequate command of English" (Exhibit B2, page 415).

39 The plaintiff and his ex-wife both asserted that his English was limited and, other than to Macedonian or Serbian speaking doctors, any detailed history must have come from Mrs Belokozovski.

40 A note at page 412 refers to the plaintiff having taken $8,000 from his wife's business and lost it in gambling. It carries on to state that there was an overdose and that the plaintiff was "worried about financial problems and worried about facing the next day". It is to be recalled that the taking of the $8,000 was said to occur the day before the suicide attempt. A little later in the note there is a reference to depression over the last four months. The reasons behind the depression do not include the continuing pain after the operation. On page 415 there is a further reference to gambling problems and then a reference to the overdose being impulsive and another statement of concern about facing his wife in relation to taking money and losing it gambling.

41 I appreciate that some of the histories would have been given at a time when the plaintiff was either confused or otherwise feeling unwell due to his medication and his depression. I also accept that his wife may well have given some of the histories. Notwithstanding these matters in my view the amount of evidence confirming gambling and financial problems is enough for me to reject the plaintiff's evidence that his gambling was no more than a bit of fun (T 84.30).

42 I felt that accepting the plaintiff and Mrs Belokozovski over the notes and histories would be an error of the type referred by the Court of Appeal in Young v Cesta-Incani & Anor [2007] NSWCA 229.

43 Taken with the various other matters that have been listed in relation to his suicide attempt and depression, which notably exclude the pain following the operation, I do not accept that the plaintiff's suicide attempt and in fact his depression, were caused by the operation or its consequences. I certainly could not conclude that but for the operation the plaintiff would not have become depressed. To the contrary, I think the preponderance of the evidence is that the reasons for the depression were marital, social and financial problems.

44 The result of my findings greatly affects the plaintiff's credit. It also affects the reliability of medical opinions, especially from psychologists and psychiatrists, where those opinions have an incorrect history, in particular a history that does not mention or denies a gambling problem.

45 Another result of my finding about the cause of the plaintiff's mental state is to effectively impose a closed period on his quantum claim. The physical effects of the surgery were largely cured by Dr Gan's operation in 2010. This would seem to set the end-date for the possible (assuming the establishment of liability) compensable damages resulting from the surgery by the defendant.

46 Before leaving the depression issue I think it important to look at some of the expert medical material that supports the plaintiff's allegation. There is a comprehensive medico-legal report from Dr Phillips, a consultant psychiatrist (Exhibit C, page 1096A). The doctor immediately acknowledges that the plaintiff is a "poor historian". He also states that he has proceeded on the assumption that "the history given by Mr Belokozovski was true and correct".

47 The history given to Dr Phillips does not include any mention of gambling or of any of the other causes of stress and anxiety mentioned at St George and Sutherland Hospitals or in the consultations with Dr Cvetkovski. Dr Phillips did, however, have the report of Dr Kecmanovic dated 6 December 2009 in which the gambling is mentioned. It is difficult to say why Dr Phillips did not comment on this element in his report. He clearly does not take it into account in reaching his conclusions. In my view, Dr Phillips' opinion must be treated with caution because the history is either missing or not complete. This is not to say that the doctor's assessment of the plaintiff as suffering from an adjustment disorder with anxiety is necessarily wrong. Rather it calls into question the cause of the disorder.

48 The plaintiff regularly consults Dr Protulipac, a clinical and forensic psychologist. He has provided two reports, commencing at page 1057A of Exhibit B3. There are also letters he wrote in support of the plaintiff to the Australian Embassy in Belgrade and to Centrelink. He gave oral evidence.

49 Perhaps because there was no need for an interpreter, a problem that confronted Dr Phillips, Mr Protulipac had a different assessment of the plaintiff as a reliable historian. He described him as "a good historian". I was a little troubled by the doctor stating he preferred the plaintiff's assertion about pain to the contrary histories given to other medical practitioners (for example, T 285.35). I had an overall impression that Dr Protulipac had become something of an advocate in the plaintiff's cause. An example of the doctor's support for the plaintiff can be found in his letter to Centrelink on 27 October 2010 where he states:

"In the past few years he has survived dramatic developments with his health which included several life-threatening surgeries (some of them as a result of negligence on behalf of a surgeon). (Exhibit B3, page 853).

50 The doctor said that the first consultation had effectively been dominated by the history given by the plaintiff's ex-wife. This led to a misapprehension of the causes of the plaintiff's depression. However, the doctor said that as early as the second consultation he came to understand that the health problems were significant. This is inconsistent with the letter that he wrote to the general practitioner, which, while referring to health problems does not refer to the surgery, and also lists a number of other problems (Exhibit B2, page 618).

51 Dr Protulipac also ultimately conceded that the stressors referred to in Dr Cvetkovski's consultation notes for 9 September and 28 October 2009 could have played a significant part in the plaintiff's mental condition.

52 In summary, while I accept that the plaintiff's surgery in 2007 and the ongoing problems may have been upsetting for him, I do not accept Dr Protulipac's assertion that as a result of Dr Magarey's surgery "... and symptoms that consequently arose, he now experiences a range of physical and psychological complaints, including chronic pain and loss of capacity to engage in most of the pre-surgery activities including professional, social, and recreational activities." (Exhibit B3, page 1057P).

53 In his supplementary report Dr Protulipac says that the plaintiff "denied ever having a gambling problem or a history of gambling". This is contrary to the evidence given by the plaintiff, Dr Protulipac continues: "He strongly denied even gambling for fun".

54 Once again, without necessarily rejecting Dr Protulipac's diagnosis of depression, I am not satisfied that the surgery carried out by the defendant or its consequences, was the cause of the mental harm.

55 The plaintiff says he is not capable of any work, saying he is too depressed to take up employment. He did try carpentry for about a month but found it too painful. His present disability, however, is not, as I understand it, a product of any physical impediment but rather of his psychiatric condition.

56 The plaintiff was cross-examined about a number of other conditions from which he had suffered including ongoing headaches and haemorrhoids, Helicobacter, kidney stones and carpal tunnel problems. In respect of the latter he said he had required three operations. He denied that problems with his arms had anything to do with his inability to work. He did however concede that after each of the three operations he needed about three months to recover.

57 In December 2009 the plaintiff was referred to a Dr King who performed an exploration of the umbilicus and removed a foreign body. This foreign body is nylon suture. It became Exhibit A.

58 Following the just mentioned surgery the plaintiff improved for a time but then the pain returned. In September 2010 the plaintiff went back to Dr King who in turn referred him to Dr Gan to investigate the continuing discharge from his umbilicus.

59 On 4 October 2010 Dr Gan performed surgery which included the excision of the umbilicus. Pathology tests following this procedure confirmed an inflammatory process in the umbilicus associated with foreign suture material that had been found during surgery.

60 One of the points made by the defendant was that the continuation of the discharge after Dr King's surgery meant it could not have been associated with the suture. The plaintiff's response was to refer to the fragments of suture found by Dr Gan.

61 Dr Gan's surgery signalled the effective end of the physical problems the plaintiff was suffering.

62 At the present time the plaintiff remains on substantial amounts of medication, which include painkillers, antidepressants, valium and nexium, the latter to address his 'upset' stomach.

63 The defendant gave evidence. He described his background and his familiarity with the type of surgery that was performed on the plaintiff. He had said he had done hundreds of these operations.

64 The defendant prepared some sketches to assist in his evidence about the nature and procedure involved in the operation (Exhibits 2 and 4).

65 The defendant had absolutely no recollection of the plaintiff. He could only give evidence based on his notes and his normal procedure.

66 The latter included an initial consultation with the patient in which he would take a history, read the letter of referral and examine any scans or tests that had been provided to him. He would then conduct a physical examination paying particular attention to whether there was evidence of jaundice.

67 If there was no evidence of jaundice and no indication of liver problems he would then proceed to recommend the operation if he thought it appropriate. Significantly he said he would not arrange for blood or liver function tests absent any indication. If such tests were not included with the letter of referral and not otherwise referred to by the general practitioner, he would assume normal liver functioning.

68 The initial consultation would last about half an hour. The defendant said he was concerned with foreign language speaking patients to ensure that they understood his advice and examination.

69 The defendant said that his custom when performing the operation was to use monofilament nylon stitches at the base of the wound because he felt they were preferable to absorbable sutures. This was to provide strength to the healing wound.

70 The defendant described the procedure known as a cholangiogram. He said that in 2006 there were two schools of thought about whether this procedure should be performed during an operation. One school of thought was that it should always be done. The second school, to which he adhered, was that it should not be done unless there was some specific indication to require it. He said it was an extra procedure carrying with it attendant extra risks. It also added about 30 minutes to the operation.

71 The defendant was shown Exhibit A, which is the material removed from the plaintiff by Dr King. He said that this was the whole of the nylon stitch that he would have inserted to seal the aponeurosis as demonstrated at the base of Exhibit 4.

72 The doctor's evidence that Exhibit A is the whole of the stitch is apparently inconsistent with the testing following the procedure by Dr Gan in 2010 when the whole umbilicus was removed. The pathology report states:

"Microscopic:

Sections of the skin show dense dermal fibrosis with active chronic inflammatory changes. Some fragments of suture material are present. There is no abscess formation or significant acute inflammation. Correlation is needed with previous clinical history."

73 When taken to these pathology findings (Exhibit B3, page 849) the defendant said the suture fragments were probably the remnants of absorbable sutures used by Dr King.

74 The defendant was taken in cross-examination to the laboratory report at page 433 of Exhibit B2. He said that had he been aware of the previous bilirubin readings he would have investigated further before proceeding to operation. He did not think the elevated GGT reading was of great significance.

75 Notwithstanding the defendant's answer in relation to the bilirubin reading he still maintained that he would not have ordered the biochemistry testing absent some other indication. I took this evidence to primarily refer to an absence of findings suggesting jaundice.

76 The defendant was asked about the consultation on 27 July 2006. Consistently with his earlier evidence he had no recollection of the meeting but based his evidence on his notes and the letter written to the general practitioner. He said there was no discharge when he examined the plaintiff. He would not have examined the base of the umbilicus because it was too deep and to do so would have caused the plaintiff too much pain. He did not take a swab because there was no discharge. All of this evidence was derived from his notes (Exhibit 3, pages 3 and 4).

77 The defendant said that it was not in his nature to deal with patients in the manner alleged. He would not have said the things attributed to him by the plaintiff. Ultimately I do not think much turns on what was said by the defendant in July 2006. I suspect he was not offensive but I also accept his words may have been misinterpreted by the plaintiff and Mrs Belokozovski.

78 I asked the defendant about his reference to the plaintiff being overweight in the letter. He said the relevance was due to the depth of the umbilicus. When I asked him why there was no reference to the plaintiff's weight in his pre-operation notes he said that he had become accustomed to patients being overweight. I note here that during the taking of concurrent evidence Dr Hugh corrected, as being a mistake, his reference in his report to the plaintiff being morbidly obese.

Breach of duty; the final allegations

79 The plaintiff described the defendant's overall obligations in this way:

"The defendant does not dispute that as the plaintiff's treating surgeon he owed the plaintiff a duty of care. It was a single comprehensive duty which required the defendant to exercise reasonable care and skill in the provision of professional advice and treatment. Specifically, he [sic] defendant was duty bound to take reasonable precautions against foreseeable risks of harm which risks were not insignificant." (Written submissions, paragraph 23).

80 Counsel for the defendant accepted paragraph 23 as being correct, subject to the need for the establishment of a breach of the duty to fall within the bounds of Section 5B of the CLA. The result, therefore, was that a duty of care was conceded but breach was denied. In addition, the defendant said there were significant failings in the plaintiff's causation arguments, especially having regard to Section 5D.

81 Ultimately the plaintiff said that the defendant was guilty of the following acts in breach of his duty:

(a) The defendant failed to obtain liver function tests, either from the general practitioner or by his own referral.

(b) The defendant failed to perform an IOC during the surgery on 23 February 2006.

(c) The defendant used non-absorbable monofilament nylon sutures to close the wound in the aponeurosis. He should have used absorbable sutures.

(d) When the plaintiff complained to the defendant about the discharge at the final consultation in July 2007, the defendant should have investigated the possibility of an infection in the nylon sutures or at least informed the general practitioner of the possibility.

82 The defendant submitted that the Section 5O defence applied only to the second and third of the alleged breaches of duty just mentioned. I had a little difficulty with this formulation in respect of the failure to have obtained liver function tests. The defendant submitted that the defence could not apply because there was not an established practice in relation to the testing. I certainly would not invite a defendant to adopt a defence that it says it does not have. However, it is important to note that the matters relevant to Section 5O in respect of whether or not the defendant should have carried out an IOC do include the existence of liver function tests.

83 In respect of the fourth above item of a breach of duty of care, the defendant made two points:

(a) The defendant acted appropriately at the final consultation, especially having regard to there being no discharge present at that time.

(b) The obligation to have investigated a possible infection in the suture, either on his own part or through the GP, was never put to the defendant. Therefore the plaintiff should not be permitted to advance the allegation.

Liability including the liability experts

84 As already noted I derived considerable assistance from the concurrent evidence of the three liability experts. Although it was suggested that Dr Conrad was not as qualified as the other two experts in the relevant field I nevertheless thought his qualifications did entitle him to express his opinions.

85 As a general introductory comment I noted that Dr Conrad was firmly in the plaintiff's camp. Dr Hugh was equally firmly on the defendant's side. Prof Morris, I thought, had a more balanced view.

86 I also note that, for convenience, my discussion of the experts may encompass matters going both to the Section 5O defence and also primary liability and causation.

87 Dr Conrad pressed the view that in 2006 it was almost mandatory for there to have been an IOC. Dr Hugh thought, unless specifically indicated, it was far from mandatory. Prof Morris lay in between the other two experts, accepting that "this was a divided area" (T 241.40). He thought that, at least in the hospital that he worked, the majority of surgeons did carry out an IOC but he nevertheless recognised that there were two schools of thought.

88 Contrary to the evidence of the defendant, who said the IOC equipment would need to be brought in and set-up, Prof Morris said that at the hospital where the surgery occurred, the equipment was already in place (T 243.28).

89 The next point taken up with the experts was whether, even if there were two schools of thought on carrying out an IOC without more, there were circumstances under which an IOC would always be carried out as a matter of proper professional practice. In particular the plaintiff's liver function testing was raised, firstly in regard to the testing that had been done and secondly the practice of the defendant not to call for liver function testing when there was no information placed before him at his pre-operation consultation.

90 There was no issue that the defendant was not given any liver function testing by the general practitioner and he did not refer the plaintiff for such testing before the operation.

91 Prof Morris thought that "doing liver function tests prior to doing a cholosectomy is mandatory" (T 224.46). Dr Conrad was of like view. Dr Hugh was not.

92 Dr Hugh thought that if the general practitioner was well known to the surgeon then the surgeon could depend on him to provide any relevant liver testing. In addition he said that the ultrasound examination provided to Dr Magarey showed no dilatation of the bile duct and there was no clinical history of jaundice. Dr Hugh went on to say that therefore "I don't think it was at all unreasonable for him to proceed without further ado" (T 245.29).

93 The main difficulty I have with Dr Hugh's view is that it seems dependent on the nature of the relationship between the surgeon and the GP. This, in my view, is a somewhat speculative condition. It is an example of Dr Hugh's unshakeable support of the defendant. To suggest that a surgeon's actions might be dictated by the nature of his relationship with the GP is untenable. One could only guess at where the boundaries might lie. Should liver function tests be ordered if it is the tenth patient referred by the particular GP, or only if there have been less than 10? I prefer the views of Prof Morris and Dr Conrad that liver function testing should have been called for by Dr Magarey before he proceeded to surgery.

94 Even the defendant, contrary to Dr Hugh's opinion, said that if he had been made aware of the liver function tests previously carried out (Exhibit B2, page 433) he would have acted in the following manner:

"Q. If this document at 433 had been enclosed when he came along before the operation, would you have done anything different?

A. Yes, I would have, because there is a marginal rise in one of the bilirubins, and I would have liked to have known more about the plaintiff's liver function. I wouldn't have arranged for the cholecystectomy until all that had been clarified. I may well have referred them to a gastroenterologist to confirm that he didn't actually have some liver disease that we were overlooking." (T 126.14).

95 Arguably, the defendant's reaction to the liver function test results would have been more cautious than performing the operation with an IOC. The defendant's view thus goes even beyond the opinion of Dr Hugh as to what might be appropriate flowing from the testing.

96 The result is that the Section 5O defence must fail in respect of the failure of the defendant to carry out an IOC during the surgery. I emphasise, however, that this conclusion has, as an integral part, the carrying out of the surgery in the absence of liver function tests. The defence would not have failed if the defendant had proceeded to surgery armed with normal liver function tests but still not performing an IOC. I accept that in that scenario there were two valid schools of thought, one of which was to go to surgery without an IOC.

97 The next question is whether the decision to proceed to surgery without an IOC (and without any liver function information) was in breach of Section 5B. In my view the breach practically flows from the above discussion in relation to Section 5O. However, the defendant strongly argued against a finding of breach so that it is necessary to proceed through the requirements of Section 5B.

98 Firstly the defendant said that the risk of harm was not foreseeable. It was submitted that the relevant risk was that the plaintiff would later suffer harm from an undetected blockage of the common bile duct. It was submitted that the defendant had taken a number of precautions at the pre-operation consultation that would have rendered the risk unforeseeable. He had taken a history, he had examined the patient, he had reviewed a normal ultrasound examination and he had found no clinical indication of jaundice. Accordingly, with that background, any later obstruction of the bile duct was not foreseeable.

99 The difficulty with the defendant's submission is that if the overwhelming expert evidence was that an IOC was necessary to exclude stones or sludge in the bile duct, then absent the x-ray examination, the risk of there being material in the duct must have been foreseeable. Once that possibility was foreseeable then the risk of whatever was in the bile duct causing problems at some future time would have been equally foreseeable.

100 It was next said, by the defendant, that the risk was not insignificant. There was no suggestion from any expert, not even Dr Hugh, that an attack such as that occurred to the plaintiff in Queensland was minor or not serious. The defendant's submission seemed to be based on the evidence that stones or sludge might pass naturally. Clearly, and well known to the defendant, and the experts, was that the material might not pass naturally. If it did not, it was obviously foreseeable that the failure to pass could result in an attack of the very painful kind that occurred to the plaintiff in Queensland.

101 The defendant's submissions in this area seemed to draw on the considerations set out in Section 5B(2). I think I have already dealt with subparagraphs (a) and (b) of this subsection. In relation to (c), namely the burden of taking precautions to avoid the risk of harm, this would not have been onerous. According to Prof Morris the IOC was already set up in the operating theatre, it only extended the time of the operation by 15 to 20 minutes and, in essence, it involved little more than the taking of an x-ray and examination of the result. In my view, the burden was small.

102 I do not think that Section 5B(2)(d) is relevant.

103 The next question is: What would have been the consequence of having such tests performed? The absence of the tests does not allow a precise conclusion to be reached as to what they would have revealed if taken about the time of the surgery.

104 Dr Hugh went a little further to say that, in effect, even if the testing shown at page 433 of Exhibit B2 had been available it would not have made any difference. Prof Morris and Dr Conrad disagreed. Dr Conrad described the need for the testing as "a routine thing". He went on to say:

"If the liver function tests are abnormal, then you must do an operative cholangiogram to rule out a gallstone or biliary abnormality, and if you do see a gallstone or biliary sludge, then even if you're not going to take those out at your operation you then make sure that that patient is referred to somebody who can do an ERCP in a timely fashion." (T 246.27).

105 The ERCP referred to by Dr Conrad is a reference to an endoscopic removal of a stone.

106 Taking the tests just referred to (Exhibit B2, page 433) as a guide to the plaintiff's condition at the time of surgery, Prof Morris disagreed with Dr Hugh as to the significance of the results. He said:

"I think that the purpose of a normal range is simply that, and I think that the policy around selective use of cholangiography is not that you can pick and choose between which liver function tests you take notice of. If they are abnormal, then that is an indication for cholangiography." (T 246.50)

107 I have already pointed out that the defendant would have regarded the known results as requiring further investigation.

108 Returning then to the question of what difference an IOC would have made, Dr Conrad said this:

"WITNESS CONRAD: In my view, on the balance of probabilities, the interim operative cholangiogram would have shown a stone. If Prof Magarey was uncomfortable about doing a removal of the stone at the time of the operation, then he would have contacted a gastroenterologist colleague doing ERCP's and asked for the ERCP to be done within a short time frame. Had that been done, then that would have been the end of the matter, the ERCP would have been done, the stone would have been taken out, and Mr Belokozovski would not have had problems that he did subsequently." (T 248.20)

109 Dr Hugh thought that Dr Conrad's just quoted view was "unfounded speculation, particular [sic] in view of the fact that the preoperative ultrasound showed no stone, and it showed no dilatation of the bile duct" (T 248.44).

110 Prof Morris did not necessarily think that an IOC would have disclosed a stone but he did think that at least sludge would have been diagnosed. He said:

"WITNESS MORRIS: I don't agree with Dr Hugh on that topic in that I think that if a cholangiogram had been done, it is likely - not certain, but it is likely - that the stone/sludge would have been diagnosed. Had that been done, I quite accept that Dr Magarey may not have done an intraoperative clearance of the bile duct, but that he would postoperatively have arranged for that to be done by means of ERCP. The difference that that would have made is that the man would then not have gone on and had pain, and not have had to have an emergency procedure for his biliary problems." (T 249.10)

111 I think the above passage from Prof Morris most appropriately sums up the conclusion that I should reach.

112 The onus is on the plaintiff to prove causation (Section 5E). A 'but for test' is applicable. The evidence of Prof Morris, which I accept, is straightforward. I repeat a portion of the passage just quoted from Prof Morris: "The difference that that would have made is that the man would then not have gone on and had pain, and not have had to have an emergency procedure for his biliary problems." (T 249.10).

113 I am therefore satisfied that the plaintiff's pain and surgery associated with the failure to have had an IOC were caused by the defendant's breach of duty.

114 The consequence of the failure to do the IOC was brought to a head by the attack suffered by the plaintiff at Hamilton Island in December 2007. This led to the consultations with Dr Cvetkovski and in turn Dr Craig, on 12 May 2008, and then surgery by Dr Craig on 28 May 2008. Dr Craig carried out an ERCP and a full bow string sphincterotomy, resulting in the removal of biliary sludge from the plaintiff's common bile duct.

115 The procedure carried out by Dr Craig signals the end of the consequences of the failure of the defendant to carry out the IOC. The parties agreed that the plaintiff would not be entitled to the costs of the ERCP.

116 The continuing problems up to the operation by Dr Gan are a consequence of the umbilical sepsis and discharge.

117 Turning now to the second general area of alleged negligence, namely the use of the nylon suture as opposed to absorbable sutures. The starting point for the discussion is whether or not there can be any criticism of the defendant for using the nylon sutures instead of absorbable sutures. Dr Conrad was of this view:

"I think certainly in my time the common wisdom was to use absorbable sutures when doing repairing ports, whether 5 millimetre or 10 millimetre. The umbilical port would have been a 10 millimetre, and it was my practice to always use that unless I felt that there was a larger than standard defect. That may have been due to extreme obesity or due to technical difficulties. But the standard procedure, I would say, in 95% of cases, was that you use absorbable sutures. Only if there is technical difficulties would you use monofilament nylon. Certainly monofilament nylon you can get suture sinus, and that persists until you remove the suture and its associated knot." (T 252.29).

118 Dr Hugh disagreed. He said:

"The choice of suture material by surgeons is usually an emotional rather than scientific choice based on a whole lot of factors such as ease of technical use, security of the knots against slipping, and so on, and also by the mistaken belief that's widespread among surgeons that absorbable sutures don't cause sinuses. So I think in general a surgeon would choose a non-absorbable suture where he didn't have - where he had concerns about the strains that would be put on a wound and its liability to disrupt and if he considered that was greater than normal, then he would move towards the view that he would use a non-absorbable suture that would persist. And this patient was obese, technically if you look at his body mass index, and I think it was a reasonable step to use a non-absorbable suture under those circumstances." (T 254.24).

119 Although Prof Morris thought there were advantages in the use of a non-absorbable suture he went on to say "I do not believe it can be said to be negligent to use a non-absorbable suture ...". Dr Hugh pointed out that the likelihood of a sinus (infection) attaching to an absorbable suture was the same as that attaching to a non-absorbable suture. The difference was that with an absorbable suture the sinus might resolve with the absorption of the suture. Dr Hugh did, however, say that once the sinus took hold then the process of absorption would be halted or delayed.

120 All of the doctors agreed that a sinus attached to a suture would have commenced at the time of operation and not developed some time later. They also agreed that the knot in the suture was the most likely place for the sinus to be found.

121 Prof Morris, once again I think, put the matter appropriately when he said:

"I believe that (a) there are reasons for doing that and certainly there are many people who do that. So I don't think that we can say that that is wrong and can a retained non-absorbable suture cause a sinus like this? Yes, absolutely, it does. But I don't believe that that, in itself, means that use of non-absorbable sutures is negligent." (T 255.18).

122 In adopting Prof Morris' opinion I do not mean to say that I have relied on his conclusion about negligence as being determinative of a legal issue. Rather I think that his opinion satisfies me that, in using the nylon suture, Dr Magarey "acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice" (Section 5O).

123 I am therefore satisfied that the defendant has established the defence under Section 5O that the use of nylon monofilament sutures falls within the bounds of Section 5O(1).

124 The plaintiff submitted that any finding under Section 5O(1) should be defeated by a further finding that the practise was irrational under subsection (2). The basis was that if the decision between absorbable and non-absorbable sutures was "emotional", as stated by Dr Hugh, then it was irrational to use one in favour of the other especially if they were of equal strength. This was emphasised by the association of nylon with post-operative infection. The difficulty with the argument, and my reason for rejecting it, is that the evidence was that the susceptibility to infection was equal in both types of suture. The emotional element referred to by Dr Hugh I took as no more than a reference to a matter of choice by a particular surgeon.

125 The remaining allegation of negligence to be dealt with is the alleged failure of the defendant to properly investigate the source of the discharge, either himself or through the GP, when the plaintiff attended for the final consultation in July 2006. I have set out above the defendant's twofold response to this allegation. Dealing with the first, it is important to note that it was the plaintiff's case that he had a current discharge when he attended the examination (T 10.36). If he did not then I can see no basis for criticism of the defendant for returning the plaintiff to the general practitioner's care without highlighting the possibility of a sinus attached to the suture.

126 The evidence to the effect that there was a discharge present at the final consultation was from three sources. Firstly the plaintiff, secondly his ex-wife and thirdly by inference from the results of the ultrasound performed on 24 July 2006.

127 The evidence against the discharge comes from the defendant's interpretation of his notes together with the contents of his letter back to the GP following the consultation.

128 The evidence of the plaintiff and his ex-wife must be treated with considerable caution. The damage done to their credibility by their evidence on the gambling issue, and to a lesser extent on other issues that might have affected his mental state, is so profound that I do not accept any of their evidence unless independently confirmed.

129 The ultrasound results do not, in my view, provide the independent corroboration. The results can be found in Exhibit B2 at page 442. The plaintiff relies on the clinical history, which states: "Previous laproscopic cholecystectomy. Intermittent discharge of pus and blood. ? wound sinus." According to the plaintiff this history indicates a current discharge. I disagree. On my reading it represents a history that may or may not be current. That it is not current, or at least there was no discharge on 24 July 2006 is confirmed by the result. It states:

"Scanning the area of interest adjacent to the umbilicus only shows minimal skin thickening. There is no evidence of any periumbilical collection or abscess. There is certainly no evidence of any wound collection."

130 Thus the evidence of the plaintiff and his wife does not receive the necessary corroboration from the ultrasound report. In addition, of course, is the evidence of the defendant and of his notes. These can be found in Exhibit 3, in particular the typed copy at page 4. They refer to a normal umbilicus on examination. The interpretation of the notes was made clear by the defendant in his evidence (T 119.35). He said:

"Q. Including no discharge?

A. I couldn't see any discharge on that day.

Q. If there would have been, would you have noted that?

A. Absolutely. In fact, I would have gone further. I would have actually got a sterile swab and taken that and sent it for culture to see if I could grow any organism."

131 The letter back to the GP after the final consultation (amongst a number of other places at Exhibit 3, page 11) is I think consistent with there being no discharge at the time of the consultation. The defendant states, in the letter, that the umbilicus is quite normal. He continues "the scar has healed very well and there is no inflation or other abnormality deep within his umbilicus".

132 Accordingly, I am not satisfied that there was any discharge present at the consultation and therefore no basis to lead the defendant to have any suspicion about a sinus in the stitch requiring further investigation.

133 The second response of the defendant to this alleged act of negligence was that the allegation had never been put to the defendant. It was conceded that the defendant had not been asked about the issue but it was not conceded that that absence precluded the plaintiff from relying on the allegation. I think the allegation should have been put to the defendant because it is an allegation about his conduct, particularly his failure to properly advise, which he should have been given the opportunity to meet. No application was made to recall the defendant after the 'omission' was pointed out (T 345.20). However, I make no final decision on the point because I have, in any event, found that the allegation of negligence must fail.

134 Having reached the conclusion that the use of the nylon suture was not inappropriate, the following matters became irrelevant:

(a) Whether or not the discharge was caused by a sinus in the suture or by a pilonidal sinus. The latter refers to a sinus associated with a hair.

(b) Whether the fragments of suture found in the pathology testing following Dr Gan's surgery were 'left over' from Dr King's surgery or had some other source.

(c) Whether the discharge was in any way associated with a lack of hygiene, or proper wound care, by the plaintiff.

135 It is important to emphasise that there is no suggestion that having decided to use the nylon suture, the defendant was negligent in relation to the insertion of the suture.

136 To the extent that it was alleged in the pleadings that there was a failure to remove the suture, I do not think that fact assists the plaintiff. The sutures were intended to remain in the plaintiff's body permanently. None of the experts suggested that, assuming the use of the nylon sutures was appropriate, there was any need for them to be removed.

137 I also note that it was not suggested to the defendant that, absent any discharge problems, he should have removed the suture. The topic was also not raised in the concurrent evidence session.

138 The consequence of my finding in relation to the use of the nylon sutures is that all of the plaintiff's evidence concerning the "volcanoes" and "eruptions" all become irrelevant in the assessment of damages. This observation extends all the way to the continuing problems caused by the sinus and ultimately leading to, and including, the excision of the umbilicus by Dr Gan.

139 Accordingly, damages can only be assessed in relation to the failure to carry out the IOC. As I have already said the claim is then limited to the period ending with Dr Craig's surgery on 28 May 2008 and perhaps a further short period associated with recovery from the operation.

Damages

140 The starting point in the assessment of damages is to restate the harm for which the damages are being assessed. On the basis of my findings this harm is restricted to the consequences of the defendant's failure to perform an IOC during the original surgery. The result, as described by Professor Morris, was to lead to the very painful attack on Hamilton Island, the hospitalisation that followed and then the further attack the following day in Airlie Beach. There was also then the necessity for the procedures by Drs Craig and Bryan. Significantly, however, there are not identifiable episodes of pain prior to the incident in Hamilton Island that can be reasonably attributed to the negligence. I think I can infer that some of the pain and discomfort described by the plaintiff in the intervening period was probably associated with the negligence, although the majority seems to have been the product of the sinus and repeated discharge.

141 I asked counsel for the plaintiff to provide me with a submission on damages in the event that I reached the liability conclusions that I have. Quite reasonably he said that it was a very difficult task because, from the plaintiff's point of view, the pain and suffering he endured was all related to a single event, namely the surgery carried out by the defendant. Accordingly, it was impossible to distinguish the pain and suffering associated with the failure to have an IOC as distinct from the infected wound.

142 Notwithstanding the above comments, the plaintiff is entitled to be compensated and it is incumbent upon me to do the best I can to assess appropriate damages.

143 The defendant submitted that on the conclusion that I have reached, the plaintiff's damages for non-economic loss would not exceed 15% of a most extreme case. That would mean, under Section 16 of the CLA, there would be no award for damages under this head.

144 The defendant's submission is based on the plaintiff having effectively only suffered the incidents in Queensland and the subsequent surgery as defining the extent of the plaintiff's non-economic loss. Limited in this way it was submitted that the percentage of a most extreme case would necessarily be small.

145 I disagree with the defendant's assessment. It does not take into account the very severe pain suffered by the plaintiff in Queensland as well as the necessity to undergo further surgery, which of itself is a significant insult to the body. Secondly it does not take into account the upset that would be associated with the subsequent events. Although I agree that it is impossible to distinguish the upset as between the acts of alleged negligence, I think it must be accepted that they all played a part in the overall disappointment that the plaintiff felt about his surgery.

146 I emphasis that the upset I have taken into account is not a reference to any specific mental health condition with which the plaintiff may have been diagnosed.

147 This is not to say that I think the plaintiff's non-economic loss should be assessed at any substantial percentage, only that I think the percentage should exceed 15%. In my view, having regard to what I have said above the appropriate percentage is 20%. This percentage, under Section 16, produces a figure of $19,500.

148 In respect of economic loss, the plaintiff's submissions were founded on the whole of the alleged effects of the surgery being included. Once again there are difficulties of apportionment. There are also other difficulties, which include the plaintiff's low earnings before the surgery, the unrelated (on my findings) collapse of the partnership with his ex-wife and the numerous other health problems. Notably the carpel tunnel injuries would have restricted his capacity to work as a carpenter.

149 In addition the plaintiff's psychiatric condition affects his ability to earn. Again on my findings, that condition is not related to any compensable negligence.

150 There is no evidence of any time taken off from work due to the pain attack in Queensland or the subsequent surgery. There can also be no future economic loss because the injury associated with failure to do the IOC has long passed.

151 In summary I cannot identify any economic loss flowing from the defendant's negligence.

152 The plaintiff has claimed past medical expenses of $51,221.50 (Exhibit G). The defendant has analysed these expenses (also in Exhibit G) to identify the costs associated with the negligence I have found. This figure is $4,365. The plaintiff did not suggest any error in the apportionment. I will allow the defendant's figure.

153 The plaintiff's claim for future medical expenses, for psychological treatment, must fail. I have not found any psychological injury stemming from the identified negligence.

154 The damages I have found are therefore non-economic loss of $19,500 and past medical expenses of $4,365. The total is $23,865.

155 I make the following orders:

(1) Judgment for the plaintiff in the sum of $23,865.

(2) The defendant is to pay the plaintiff's costs of the proceedings.

156 I will hear the parties on any alternate costs orders that may be sought.

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Decision last updated: 07 March 2014