District Court New South Wales

• Medium Neutral Citation: Janet Harris v Sydney Local Health District [2014] NSWDC 21
• Hearing dates: 11 March - 13 March 2014
• Decision date: 28 March 2014
• Jurisdiction: Civil
• Before: Mahony SC DCJ

Decision

Verdict and judgment for the plaintiff. For Orders see [157]

• Catchwords: Negligence by hospital; failing to follow up treatment regime
• Legislation Cited: Civil Liability Act 2002
• Cases Cited: AV8 Air Charter Pty Limited v Sydney Helicopters Pty Limited [2014] NSWCA 46; Caltex Refineries (Qld) Pty Limited v Stavar (2009) 75 NSWLR 649; Hawkins v Clayton (1988) 164 CLR 539; Hill v Forrester [2010] NSWCA 170; Idameneo (No. 123) Pty Ltd v Gross [2012] NSWCA 423; Jones v Dunkel (1959) 101 CLR 298; Manly Council v Byrne [2004] NSWCA 123; Miller v Galderisi [2009] NSWCA 353; Payne v Parker (1976) 1 NSWLR 191; Perre v Apand Pty Ltd (1999) 198 CLR 180; Riz v Perpetual Trustee Australia Limited [2007] NSWSC 1153; Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; Strong v Woolworths Limited & Or (2012) 246 CLR 182; Waimond Pty Limited & Anor v Byrne (1989) 18 NSWLR 642
• Category: Principal judgment
• Parties: Janet Harris (Plaintiff); Sydney Local Health District (Defendant)
• Representation: H Halligan (Plaintiff); S Kettle (Defendant)
• File Number(s): 12/370813
• Publication restriction: Nil

Judgment

The Plaintiff's Claim

1 By Amended Statement of Claim filed with leave on 11 March 2014 the plaintiff sues the defendant, which had the care, control and management of the Concord Repatriation Hospital ("the hospital"). The plaintiff's claim arises as a result of treatment she received at the hospital to her right ear in 2011. The plaintiff has a complex medical history and the chronology of her attendances on various medical practitioners and the hospital is set out below.

2 The plaintiff's claim is brought in negligence. She attended her local medical officer in Glebe on two occasions in mid February 2011 and was referred to the Emergency Department of Royal Prince Alfred Hospital on 17 February 2011 suffering preauricular cellulitis. She was there treated with intravenous antibiotics and was discharged. On the following day, 19 February 2011, she attended the Emergency Department of the hospital, was admitted and treated with intravenous antibiotics. It was on this occasion that an ear wick was inserted into the plaintiff's right ear to treat her condition by Dr Miller.

3 The purpose of the ear wick was to ensure an even distribution to the surface of the external ear canal of antibiotics to treat what had been diagnosed as bacteria in the canal. The plaintiff was discharged from the hospital on 23 February 2011 and was seen the following day on 24 February 2011 at the ENT outpatients clinic at the hospital. The hospital records contain no reference to the ear wick that was inserted by Dr Miller on 19 February 2011 being removed.

4 Whilst in hospital the plaintiff had advised nursing staff that her regime of narcotic analgesia was ineffective to treat the pain she was suffering. She was referred to drug and alcohol counselling. Upon discharge from hospital she was impecunious and was given money for transport home. The plaintiff gave evidence that shortly following her discharge, she lapsed into reliance on heroin for pain relief.

5 The plaintiff obtained employment from 18 March 2011 to 14 September 2011 as an assistant in a beauty clinic. On 22 June 2011 she attended the Burwood Medical Clinic complaining of discomfort in her right ear and gave a past history of middle ear infection. She had further treatment to her right ear on 3 July 2011, 9 July 2011 and 14 July 2011, before being taken by ambulance to the hospital on 15 July 2011. On that occasion she was examined by Dr Crawford, and also seen by Dr McGuiness, who inserted another ear wick, referred to as an "Otowick". The plaintiff was discharged and referred back to the ENT clinic on 20 July 2011. It is in dispute as to whether she was informed of that appointment, however, she did not attend the clinic and there is no evidence in the hospital records that the Otowick inserted by Dr McGuiness was removed.

6 In September 2011 the plaintiff again attended her local medical officer complaining of right ear pain with a discharge from the ear. There were several attendances until 22 September 2011 when she again attended the Emergency Department of the hospital where a history was taken that she had suffered two weeks of right ear pain. She was referred for followup at the ENT clinic on 28 September 2011 and on that occasion a foreign body was removed from her right ear which was identified as an ear wick.

7 The Amended Statement of Claim pleads the following particulars of breach of the defendant's duty of care as alleged by the plaintiff:

"(a) Failed to treat the plaintiff with due skill and care.

(b) Failed to ensure that the treatment that was provided to the plaintiff was professional treatment in accordance with policy directors of the New South Wales Department of Health.

(c) Failed to ensure that appropriately qualified and experienced medical practitioners treated the plaintiff.

(d) Failed to ensure that appropriately qualified and experienced allied health professionals, including nursing staff, treated the plaintiff.

(e) Failed to remove the right ear wick was not removed until 28 September 2011 (sic).

(f) Failed to ensure that the plaintiff attended hospital for a follow up, management and treatment."

8 Essentially, the plaintiff's claim in negligence is based on her contention that the ear wick that was removed on 28 September 2011 was either the ear wick inserted on 19 February 2011, or the Otowick inserted on 15 July 2011. The plaintiff further contends that the wick became infected and caused ongoing infection, swelling and pain, in addition to which the plaintiff has suffered dizziness and disorientation which have continued to the present time.

9 The defendant admits it owed the plaintiff a duty of care but denies breach of that duty of care. Further, the defendant relies on a defence pursuant to s 5O of the Civil Liability Act 2002 ("CLA"), in that it contends that it acted in a manner, at the time that services were provided to the plaintiff, that was widely accepted in Australia by peer professional opinion as competent professional practice. The defendant further pleads that it denies that any conduct on behalf of the defendant caused harm to the plaintiff, and further denies that the scope of the defendant's liability extends to the harm which the plaintiff alleges to have suffered pursuant to s 5D(1) of the CLA.

The Chronology of Events Relating to Treatment of the Plaintiff's Right Ear

10 The following is a chronology of the treatment received by the plaintiff at all relevant times. It contains my findings of fact in respect of that treatment, unless otherwise indicated. The chronology must be viewed against a background of the plaintiff, who was born on 13 November 1962, being, as at 2011, a 48 year old woman with a 25 year history of drug and alcohol addictions. She had been on a Disability Pension since 1993. She had been admitted to the hospital on previous occasions for opioid and drug withdrawal, and heroin dependence. She had, however, been "clean" and sober for a period of two years in early 2011. She also had a previous history of depression, anxiety and hepatitis C.

11 15 February 2011 - Plaintiff consulted Dr Sheu at Glebe Family Practice. Complained of earache and sore throat since Sunday. The clinical note reads: "No wax in ears. Neither eardrum red. Ear canals not inflamed. Right ear discharge. Perforated right ear drum. No foreign bodies in ears. No glue ear. ..." A diagnosis was made of otitis media. The plaintiff was prescribed antibiotics.

12 17 February 2011 - The plaintiff consulted Dr Marshall at Glebe Family Clinic with a history of right ear pain worse despite antibiotics. On examination the doctor found "swelling preauricular" and referred the plaintiff to accident and Emergency Department at Royal Prince Alfred Hospital. Dr Marshall's diagnosis was "auricular cellulitis".

The plaintiff attended Royal Prince Alfred Hospital and was treated with intravenous antibiotics. She was noted to have right facial swelling and pain extending to the temple and down her neck. The hospital noted:

"Unable to tolerate otoscope in right ear, but limited views show significant swelling and some discharge."

A provisional diagnosis was made of "possible otitis externa but strong suspicion for parotitis".

13 18 February 2011 - The plaintiff admitted to Concord Hospital. She presented with "Throbbing pain 10/10. Swelling present right ear, throat sore and finding difficult to swallow". The plaintiff was commenced on analgesia and antibiotics. She was unable to take oral analgesia due to pain on swallowing.

14 19 February 2011 - At 8am the plaintiff was examined by Dr Miller ENT who diagnosed otitis externa and oedema of the external canal. A plan was advised to continue on antibiotics and ear drops and an Otowick was inserted. Dr Miller noted "Nicotine ... Not to go off ward".

At 9am the plaintiff was found outside the hospital at a bus stop smoking. She told staff that she "felt dizzy/lightheaded", was "sweating ++", had some shortness of breath and "felt she was going to collapse". She was assessed and taken back to the ward. The nursing notes recorded that the plaintiff had left the ward more than three times during the afternoon against advice.

15 20 February 2011 - The plaintiff was still insistent upon leaving the ward for the purpose of smoking cigarettes. She continued to complain of pain along the right side of her face.

16 21 February 2011 - The plaintiff was examined by Dr Crawford ENT complaining of severe pain with facial numbness and lip paraethesia. A plan was devised for her to continue intravenous antibiotics, to undergo ear toilet in the clinic that day and "? discharge tomorrow".

The nursing staff were informed by the plaintiff's GP that the pathology results showed that her right ear was "growing pseudomonas". Her ear was syringed following which she complained of severe pain and she was given sub-cutaneous morphine alternated with Endone.

17 22 February 2011 - ENT examination by an unknown doctor noted that the plaintiff was still in significant pain and still requiring morphine and endone. A plan was devised as follows:

(1) "Requesting D & A consult (ex addict)

(2) Pain team consult

(3) Coloxyl

(4) Stay in hospital"

A multi-disciplinary team case conference took place that day to address the plaintiff's right otitis externa, her inadequate analgesia, her D & A consult and her pain team consult. The D & A Registrar saw her at 1.10pm that day. A history was taken that she last lapsed (i.e. into drug abuse) more than one year ago. She had been feeling vulnerable during the admission because she was not going to Narcotics Anonymous meetings and was very unwell in hospital. She was "scared of relapsing" and stated that she was "abstinent from D & A except cigarettes". She also felt that her "opiate requirements are high and what she is receiving in hospital isn't enough". A plan was devised for her ongoing D & A counselling and monitoring of her current pain medications. The plan concluded:

"Not to go home with Endone with past history but okay for analgesia here in the hospital. We will continue to review."

18 23 February 2011 - An ENT ward round entry noted that the plaintiff was not on the ward and had apparently been off-ward for most of the shift. A plan was devised for discharge today with continuing antibiotic and analgesic medications. It also included "encourage NA meeting attendance" and "follow up in ENT clinic tomorrow".

Later the same day she was seen by Dr Crawford ENT and described as "improving, and a plan devised for her discharge on antibiotic cover, Ventolin and follow up tomorrow in the clinic".

When the plaintiff was discharged following D & A counselling, she was given money to get home.

19 24 February 2011 - The plaintiff attended the ENT outpatients clinic and reported "feeling much improved". An examination of her right ear resulted in the following entry:

"Can see part TM (tympanic membrane) - ear toilet."

20 22 June 2011 - The plaintiff attended Burwood Medical Centre complaining of discomfort in her right ear which was blocked. She reported a past history of middle ear infection. On examination the doctor noted "wax in her ear".

21 3 July 2011 - The plaintiff attended the Burwood Medical Centre where she underwent syringing of her right ear which resulted in a "small amount of white tissues came out". The plaintiff stated that she was feeling better and was prescribed Sofradex eardrops.

22 9 July 2011 - The plaintiff attended Burwood Medical Centre complaining of an ear infection, swollen face, headache and sore throat which started two weeks ago and has not improved. On examination, her right eardrum was red and a diagnosis was made of right otitis media and an antibiotic was prescribed.

23 14 July 2011 - The plaintiff attended the same surgery with a history that she still had discharge from her right ear with pain. She was given a referral to a specialist and prescribed Panadeine Forte.

24 15 July 2011 - The plaintiff was taken by ambulance to the hospital stating that she had had earache for two weeks and had been treated for an ear infection with oral antibiotics. She described her ear as being "really sore". She gave a history that her symptoms had become worse the previous day. She was examined by ENT Registrar, Dr Crawford, and given IV antibiotics. The notes contained an entry:

"Dexamethasone drops instilled after wick inserted."

An entry under the name of Dr McGuiness ENT noted "a history of admission earlier this year for otitis externa". The notes in respect of his examination of the right ear canal noted "Canal - purulent discharge - swollen shut. Toileted. Otowick inserted". A plan was devised for her to attend the clinic the next week for "ear toilet and change Otowick". She was prescribed analgesia. The admission summary concluded that "she was asked to come back to ENT clinic to be examined again".

Her case history notes included the handwritten entry "ENT reg 20/7/11 (notified 18/7/11 12.30)".

25 20 July 2011 - The plaintiff did not attend the ENT outpatients clinic.

26 6 September 2011 - The plaintiff attended the Glebe Family Practice and was examined by Dr Santer and also by Dr Craig. She first gave a history of recurrent ear infections and told Dr Santer she was "worried (it) is progressing like last ear infection - had to be hospitalised twice, once in February and in May". She was referred to Dr Craig who took a history of right ear pain for one week, crusty discharge for one week and an itchy ear. Examination of her right ear revealed "narrowed canal with associated generalised erythema oedema and discharge". The note of her management states, "Discussed - tissue spears".

She was prescribed Sofradex eardrops.

27 9 September 2011 - The plaintiff attended Glebe Family Practice and consulted Dr Jenkins with a history of a painful and itchy ear. On examination her right ear had a red, swollen ear canal and the doctor was unable to see her eardrum. The swab showed candida, i.e. a fungal infection.

28 14 September 2011 - The plaintiff attended Strathfield Family Medical Clinic and consulted Dr Goyal. She stated that she was suffering from a right ear infection which had been reoccurring. She had noticed morning discharge, that her hearing was not affected. She had jaw pain.

On examination she had a "white discharge in the canal which was inflamed, TM not appreciated, ?TM rupture".

She was given advice against using ear buds and given a prescription for antibiotics.

29 19 September 2011 - The plaintiff attended Burwood Medical Centre complaining of ear infection with fluid coming from the ear. Her antibiotics had finished. On examination by Dr Jones, her right ear was red and swollen with an inflamed canal. She was advised to see her local medical officer in the morning to organise an urgent appointment with a specialist or go to hospital.

30 22 September 2011 - The plaintiff was re-examined by Dr Goyal. She reported feeling ill and had been in bed for the last week. On examination there was pus in the right ear canal. The plaintiff was referred to ENT Registrar at the hospital.

Attended Emergency Department of the hospital. Examination of her right ear canal by the ENT Registrar revealed an inflamed canal and discharge. She was tender over the mastoid process and in the pre-auricular region. She was given antibiotic cover and referred for follow up in the ENT clinic the following Tuesday. On examination her right TM was not visualised.

31 28 September 2011 - The plaintiff attended the ENT clinic at the hospital. A culture revealed a fungal infection known as "candida albicans". A microscopy revealed a foreign body in her right ear canal. The note stated:

"Wick in place (?? since March this year ??) removed."

She was referred for follow up two weeks later at the ENT clinic and prescribed eardrops.

The Plaintiff's Evidence

32 The plaintiff gave evidence that she was currently a resident of a drug rehabilitation program at Dooralong where she had been a resident since December 2013. She had left school in year 9 and in the past had been a sex worker and a burlesque dancer. She had commenced using narcotic drugs in her 20's and had become addicted to heroin and developed an alcohol dependency.

33 The plaintiff had started to turn her life around in 2010 when she enrolled at the TAFE at Ultimo in a Beautician's certificate course. The transcript of her academic record (exhibit A) showed that she passed all of her subjects in 2010, however, in 2011 she had withdrawn from all but one of her subjects. She had resumed that course and passed all of her subjects in 2012, obtaining a Certificate III in Beauty Therapy. She intended to go on to obtain a Certificate IV.

34 In early 2011 she had noticed problems affecting her right ear and had attended Glebe Medical Practice on 15 and 17 February 2011 as outlined in [11] and [12] above. The plaintiff confirmed her admission to the hospital on 18 February 2011 and her examination by Dr Miller on 20 February 2011 and Dr Crawford on 21 February 2011 and 22 February 2011.

35 The plaintiff described her pain in hospital as being "a lot of pain" which extended from her right ear down the side of her throat and across her face. She indicated along the bottom of her jawline to the neck and also up to the right temple.

36 The plaintiff gave evidence that she advised the hospital that her opiate requirements were high and that she was, as a result of the drugs she was receiving, scared of relapsing into her addiction. On 23 February 2011 she was seen by Dr Crawford before she was discharged home. At the time of her discharge there was no record that the ear wick inserted by Dr Miller on 19 February 2011 had been removed.

37 The plaintiff gave evidence that at no time had she put anything into her right ear, nor did she attempt to pull anything out of her ear, particularly the ear wick.

38 Following her discharge from hospital she was still in pain and she said she was depressed. She was given Endone which did not have any effect on the level of her pain. She reverted to heroin use which lessened her pain. She then continued to take heroin four to five days a week.

39 The plaintiff gave evidence that she had returned to the ENT clinic at the hospital on 24 February 2011 but could not recall feeling much improved on that day. Nothing was done to the ear wick on that occasion.

40 The plaintiff also gave evidence that she had, whilst in hospital, started to develop some leg pain and was advised to take that up with her local doctor.

41 On 18 March 2011 the plaintiff obtained employment with the Clear Skin Clinic at Double Bay as an assistant to the Beauty Clinic. The evidence established that she worked there until 14 September 2011 (exhibit B). The reason given for her termination was that she had become "very ill and could not continue her work at the Clear Skin Clinic". She worked there between three and four days on average per week.

42 The plaintiff gave evidence that she loved that job and she was able to handle the job effectively. However, she had a lot of problems with her right ear. When asked about those problems she said:

"A: I was in pain constantly. I had pus and clear fluid dripping out of my ear. I was disorientated at times and I felt still pain with my ear."(sic)

43 The plaintiff gave evidence that she managed to stay off heroin while she was working at the clinic. She then gave conflicting evidence that she used heroin for pain whilst she was working. Whilst working at the clinic she had seen a GP at the end of June 2011 and also on 3 July 2011. On that occasion she had seen, as a result of having her ear syringed, white tissues coming out of her ear. Up until her admission to hospital on 15 July 2011, no one had removed the ear wick.

44 The plaintiff described the pain she was in on 15 July as excruciating. She was taken to hospital by ambulance and given treatment which included the insertion of an Otowick by Dr McGuiness. Dr McGuiness told her to come back to the hospital, but she did not recall whether she did. She said:

"Q: What about 20 July, do you remember going to the hospital on 20 July?

A: Yes. I think so. I think so yes."

45 The hospital records demonstrate that she did not attend on that day.

46 The plaintiff recalled seeing two doctors at the Glebe Family Practice on 6 September 2011 but did not recall a discussion about "tissue spears".

47 The plaintiff gave evidence that she was still in pain when examined by Dr Goyal on 14 September 2011. She also saw him on 22 September 2011 and on the same day attended the hospital when she was asked to come back if the symptoms got any worse. On 28 September 2011 she returned to the hospital, at which time the ear wick was removed.

48 Following 28 September 2011 no further ear wick was inserted into her right ear canal.

49 The plaintiff confirmed that throughout the period she was working as a beautician's assistant she was resorting to heroin as a form of pain relief. She initially tried to get off heroin by attending Foundation House for a period of 28 days. The plaintiff alleged that she had a hearing deficiency in her right ear. She described it as follows:

"A: I've lesser hearing on my right side and I feel that I ask questions and I understand more with my left."

50 The plaintiff gave evidence that she still had pain in her right ear which was not as intense as it was when she was in hospital, and also dizziness. She continued to have episodes of dizziness and in the last four months she had six dizzy events. It was previously more severe. When it occurred, she took Panadol and would lie down and relax.

51 The plaintiff had been at Foundation House between 21 November 2011 and 19 December 2011. Thereafter she gave evidence that she went downhill as far as her heroin habit was concerned until she entered Dooralong in December 2013.

52 Following her discharge from hospital in February 2011, the plaintiff gave evidence that her daughter helped her with washing, general housework and shopping. Prior to that, she had done all of those household duties herself, but because of pain she was unable to do so. She was in so much pain that she had to lie down most of the day and her daughter, who was attending college part-time, attended to all of the household chores.

53 The plaintiff gave evidence that cleaning the unit in which they lived took her daughter a couple of hours each day, the shopping would take her a few hours per week, which she described as "say two or three or four hours" and the laundry would take her two to three hours a week. She also did ironing which would take a couple of hours a week.

54 The plaintiff was still taking anti-depressant medication and gave evidence that if she had her old job back with the Clear Skin Clinic, she did not think she would be up to performing the duties involved in that job.

Cross-Examination of the Plaintiff

55 The plaintiff conceded that she had been on a Disability Support Pension since 1994, primarily for drug use. She had received numerous treatments for drug use and had been admitted to numerous institutions. She also had a history of anxiety and depression which started long before 2011, together with a history of alcohol dependency.

56 The plaintiff agreed that she had previous admissions to Concord Hospital in 2001 and 2009 for opioid and drug withdrawal and in 2010 in respect of an assault.

57 When asked whether she had a good recollection of events in 2011, her answer was:

"As best I can. I do have a long drug history and I'm trying my best."

58 The plaintiff was then asked about her attendance on doctors and at the Royal Prince Alfred Hospital and admitted that she had a poor recollection of those attendances. She did not recall having her right ear syringed two days after the ear wick was inserted on 19 February 2011 and was not sure that she had attended the outpatients ENT clinic the day after her discharge from hospital.

59 It was put to the plaintiff that on 28 February 2011 she had been examined by Dr Davison at the Glebe Family Practice and had told him that she was much improved. She denied that and said that she went back to the doctor because she still was not well.

60 It was put to the plaintiff that Dr Davison had recorded that her right tympanic membrane was normal, however she denied that. When it was put to her that on 28 February 2011 her ear was not causing her any pain, she denied that.

61 In respect of her heroin use, she gave the following evidence:

"Q: I want to suggest to you that by 28 February 2011 you weren't using heroin - you deny that do you?

A: When I came out of hospital I picked up heroin after two years of being clean. I can't tell you what date it was."

62 The plaintiff was asked about her duties at the Clear Skin Clinic in Double Bay. She gave evidence that she assisted with facials, and cleaning the clinic and equipment.

63 The plaintiff had no recollection of attending Dr Davison on 21 March 2011 to discuss obtaining a new psychologist, and a new dental referral. It was put to her that she made no complaint to him about her right ear on that occasion to which she said:

"A: No, because obviously I was going there because I needed some other help.

Q: I just want to suggest to you that you made no mention of your right or left ear because there was nothing wrong with your right or left ear at that point in time?

A: Yes there was.

Q: Well as at March 2011 what was wrong with your ear?

A: It was sore.

Q: So sore that it stopped you from doing things or not?

A: It was painful.

Q: I want to suggest to you that you didn't mention anything to Dr Davison about your ear on 21 March 2011?

A: No, because I'd been seeing Concord Hospital for my ear and my false teeth were broken and that's why I had to go there.

Q: Are you suggesting that before 21 March 2011 you went back to Concord Hospital after you attended the ENT clinic on 24 February, are you?

A: No, I'm saying that the doctor that I'd seen at Glebe was going to do a medical plan such as podiatry, dental so I could get my false teeth fixed.

Q: But you accept, do you, that you didn't mention to Dr Davison anything about your ear, do you accept that?

A: I can't recall."

64 The plaintiff was also asked about a home visit on 23 March 2011 from Creative Care Counselling in which a report had been made that she was presently clean and sober. She was asked:

"Q: Well, when it says presently clean and sober is it fair to say that as at 23 March 2011 you were not using heroin, is that right?

A: That day.

Q: You say only that day, is that right?

A: I don't recall. I've had a problem with drugs and alcohol but I've been trying to get myself help through methadone for the 12 years and other services.

Q: What I want to suggest to you that as at 23 March 2011 you weren't using heroin, is that right?

A: It might have been on that day I wasn't using. I don't recall."

65 It was put to the plaintiff that she attended Dr George Marshall on 7 April 2011 and made no mention of her right ear on that date, however, she could not recall that.

66 In respect of her heroin use she was asked:

"Q: What I want to suggest to you is that you had started using sometime between 23 March and 19 April 2011, is that right?

A: I don't know exactly what date I started using. I started using when I came out of the hospital and I'd already had medication."

67 The plaintiff had no recollection of seeing Dr Kochan on 22 June 2011. It was put to her that he had recorded that she had discomfort with her right ear on that occasion. She said she was in pain. She then gave the following evidence:

"Q: Well I want to suggest to you that you certainly - Dr Kochan did not prescribe any pain killers on that attendance on 22 June 2011, did he?

A: I don't know - did he?

Q: Well, do you have a memory at all of even attending Dr Kochan?

A: I went to a lot of doctors appointments - I can't recall exactly on what day I was prescribed what.

Q: Well I just want to suggest to you that after 28 February 2011 and 22 June 2011 you didn't attend anyone for your ear, did you?

A: I don't know.

Q: Is that because you can't remember?

A: I was using drugs."

68 The plaintiff was questioned about the consultation she had on 22 June 2011 with a counsellor, Mr Brandt, at Creative Care Counselling when she told him that she had recently relapsed. Upon that entry, she was asked as follows:

"Q: I want to suggest to you that you had only then recently relapsed to using heroin again, would that be right?

A: No, that's not true.

Q: So what Mr Brandt has recorded is incorrect is it?

A: It is incorrect."

69 In respect of the syringing of her ear that took place on 3 July 2011, the plaintiff identified "white tissues" as meaning skin tissue. It was put to her that she was feeling better on that day as it was recorded in the clinical notes, but she denied that.

70 It was put to the plaintiff that on 9 July 2011 she attended the Burwood Road Medical Centre and gave a history of ear infection that started two weeks ago, which she denied. She could not recall further attendances at the Burwood Road Medical Centre on 14 July and 24 July 2011. She also denied the ambulance records which contained a history of earache for two weeks before 15 July 2011. She was then asked:

"Q: Well what I'm suggesting though is that you had a period where you had no ear pain at all, and then in early July it reoccurred?

A: No."

71 It was then put to the plaintiff that she gave a history to the hospital on 15 July 2011 of having ear pain for a couple of weeks before she attended the hospital and she denied that.

72 The plaintiff did not recall the ear wick being inserted into her right ear on 15 July 2011, nor did she recall that she was asked to come back to the ENT clinic to be examined again. She did know that arrangements were made for her to come back to the ENT clinic on 20 July 2011 and that she failed to show. She could not recall why she did not attend on that day.

73 It was put to the plaintiff that her relapse to heroin had nothing to do with the problems she had with her right ear, to which the plaintiff replied "That's false".

74 The plaintiff was asked about a court case involving an assault that was to be heard at the Burwood Local Court on 18 July 2011. Her counsellor, Ms Brandt, had written a letter on her behalf outlining problems that she was having, none of which included problems with her right ear.

75 In August 2011 she had seen the doctor about a number of problems, particularly her feet. It was put to her that in August 2011 her ear was not interfering with her duties at work and her reply was:

"A: My ear was always interfering."

76 It was then put to the plaintiff that she did not keep her appointment with the ENT clinic on 20 July 2011 because her ear got better, to which she replied:

"A: That's false."

77 It was put to the plaintiff that her ear had become painful one week before her attendance on Dr Santer on 6 September 2011, to which she replied:

"A: No that's not right."

78 The same history was recorded by Dr Craig on the same day and was put to the plaintiff to which she replied:

"A: No, it was definitely not the case."

79 The plaintiff had no recollection of discussing "tissue spears" with Dr Craig on that day. She was asked:

"Q: Did you assist them with tissue spears?

A: No I didn't stick anything in my ear because I was too scared.

Q: I just want to suggest to you that there was a discussion of tissue spears with Dr Craig and I take it you deny that, is that right?

A: I don't remember her saying anything about tissue, I would not stick anything into my ears.

Q: Well you would if you were advised by a doctor wouldn't you?

A: I did not stick any tissues in my ears.

Q: But you would have if you'd been advised by a doctor would you?

A: No because I was terrified. My ears were so sore, no."

80 The plaintiff had no recollection of being referred to an ENT specialist, Dr Kleiner on 8 August 2011.

81 She denied telling Dr Goyal on 9 September 2011 that her hearing was not affected.

82 The plaintiff denied that she had given the hospital on 22 September 2011 a history that she had suffered ear pain for a period of two weeks.

83 When asked what was taken from her ear at the hospital on 28 September 2011, she said that she did not really see it. It was a "square piece of something" that came out.

84 The plaintiff could not recall an incident on 4 October 2011 when she attended the Royal Prince Alfred Emergency Department when she was brought in by ambulance with a history that she had collapsed after drinking five bourbons. She denied that an ear wick was inserted into her ear subsequently on 10 October 2011 at the hospital. She agreed that she had seen Dr Marshall at Glebe Family Practice on 11 October 2011 in respect of her opiate addiction. At that time she was buying Oxycontin on the street. It was put to her that she had had a number of ear wicks inserted into her right ear from February 2011, which she denied.

85 It was further put to the plaintiff that she failed to attend an appointment made for her on 13 October 2011, following her discharge on a subsequent occasion on 10 October 2011. Her reason for failing to attend on 13 October was as follows:

"A: I think I wasn't doing very well at the time and I was pretty depressed and recently lost my job."

When asked the reason for losing her job her evidence was:

"A: My boss saw pus coming out of my ear in front of a client. I think - I think it got to the stage where she knew I'd been sick and she'd had enough.

Q: You say she'd had enough, was that the only incident that she'd had enough of?

A: We left on good terms."

When asked why she had not reapplied for work, the plaintiff said:

"A: Because I'm trying to change my life around and get well and then go back to work."

86 The plaintiff was readmitted to Concord Hospital from 17 October 2011 until 16 November 2011 for opiate dependence and septic discitis. It was put to her that during her stay on that occasion her ear problems resolved, which she denied. She stated that her right ear problem had never resolved. When it was suggested to her that she had not had any treatment for her right ear since November 2011, her answer was:

"A: I've been on heroin. I've been trying to get my life together."

Q: You have not received any treatment for your right ear since October 2011 have you?

A: I've had Panadol. I'm not going back to the ear specialist for them to put something else in my ear; I've got over it. I don't want anybody touching my ear."

Q: What I want to suggest to you is that you've not attended any doctors for your right ear since November 2011 have you?

A: The infection has gone away but I'm dizzy, disorientated, I still get headaches. The infection is not there, dripping with pus like it was for over a - over the six months. Since then it's a different type of thing where I'm dizzy, I get a little bit disconnected, I take Panadol and lay down. For that solid six months I had pus coming out of my ear dripping, I was ..."

Q: I understood part of your answer was that the infection in your ear had resolved, is that the case?

A: The infection, yes.

Q: And the infection since November 2011 has not resumed has it?

A: The infection hasn't.

Q: The infection hasn't come back in either ear has it?

A: No, the infection hasn't."

87 In 2012 the plaintiff conceded she returned to her TAFE course to do her Certificate IV as a beautician. It was a full-time course, four days a week, but she was unable to finish it and intends to return to it next year. In 2012 she had also obtained employment in the hospitality industry, servicing private boxes at the Sydney Football Stadium. She did that work for a few months.

88 It was put to the plaintiff that once she overcame her present problems she would resume work as a beautician. She stated:

"A: I've got major depression and anxiety and I'm just trying to do the best I can really. This has kind of smashed my confidence."

89 In respect of the care given to her by her daughter, the plaintiff conceded that she probably could have gone to the shops to do the shopping, that she could have washed up and that she probably could have cleaned the house, but her daughter helped her do those things. She denied that the reality was that she could have managed the house on her own without her daughter's assistance. It was put to her that physically there was no reason why she could not go downstairs to put the washing out and her evidence was that she had an ear infection, that she was not well and was self-medicating (on heroin). She did not know whether she had ever told any doctor that after February 2011 she could not do things around the house because of dizziness and headaches.

90 Whilst in rehabilitation at Dooralong the plaintiff had been seeing a psychiatrist for drug dependency and depression. She was still in receipt of the Disability Pension which she had been receiving since the early 1990's.

91 The plaintiff gave further evidence in chief, by leave, of a conversation that took place at the hospital on 28 September 2011, when something was removed from her ear. The doctor who was treating her, whose name the plaintiff could not remember, when examining her ear, said to the nurse in the plaintiff's presence:

"A: 'I think there something in there.' And then after putting the thing down in here, sucking all of the pus and fluid out, he said, 'If we put this on a petrie dish it'll be amazing what you would grow out', or something will grow out of it, 'you wouldn't believe what would grow out of it'."

92 She described what was taken out of her ear as being "a little square thing, between 1cm and 1 and half cms square".

93 When cross-examined on her further evidence, the plaintiff did not know whether the object was hard or soft as she did not touch it. She described the material as being white but "that it had pus and stuff from my ear" on it. When asked what shape it was the plaintiff said:

"A: It pulled out and it looked like a little square on the end because it was on the end of his long stick went right down into my throat."

The Evidence of Jessica Harris

94 At the time the plaintiff was discharged from hospital in February 2011 her daughter Jessica was studying child care part-time, for four hours a day, four days per week. She gave evidence that prior to her mother's hospitalisation the plaintiff did all of the housework and cooking. Commencing in April 2011, she gave evidence that her mother did none of those duties, and that she did the cooking, cleaning, washing, ironing and shopping. She estimated that washing and laundry took two hours per day, ironing took her two to three hours, two days per week, cleaning took two hours two or three times per week, cleaning windows took between half an hour to an hour each week and shopping took her three to four hours per week. She did all of those activities until December 2012 when she moved out of home with her partner. At that time she gave evidence that while she still helped her mother, the plaintiff was managing a lot better.

95 In cross-examination Ms Harris said that her mother became ill when she got out of hospital in April 2011. When asked what was wrong with her she said:

"She - when she stood up she got very dizzy, and she couldn't walk properly from the dizziness so she had to sit down and lay down."

96 Ms Harris denied that her mother was suffering dizziness before she went into hospital. She did all the housework because her mother was in pain. She was not aware of her mother taking anything for the pain, and did not see any change in her mother's condition during 2011.

97 Ms Harris also visited her mother at work. She acknowledged that she was able to travel to and from work. At this time, in 2011, she was 17 years of age. She was unaware of her mother taking anything for her pain. As far as housework was concerned, her mother tried to do the dishes occasionally but complained of being dizzy.

98 As far as the laundry was concerned, she gave evidence that half the laundry was her uniform and clothes.

99 It was suggested to Ms Harris that the times she had estimated for all of the home duties were excessive, to which she stated:

"A: I was new at everything, I'd never done that before. My mum usually did everything for me."

Evidence of Mrs Margaret Harris

100 The plaintiff's mother, Mrs Margaret Harris, gave evidence about attending the hospital with the plaintiff in September 2011. She had previously worked for a number of pathology practices in a clerical capacity. She observed the doctor taking the ear wick out of her daughter's right ear. She described it as "a greyish piece of gauze". When asked what size it was, she answered:

"A: Well to me it looked like it was a postage stamp four times bent over, you know, I mean that's what it looked like. As if a postage stamp of gauze had been bent over four times."

101 She gave evidence that the doctor said:

"A: He said, 'If it was put in a petrie dish the - it would be unbelievable the bugs that would grow on it'."

She observed her daughter to be in pain following the procedure. She was not cross-examined.

The Plaintiff's Medical Evidence

102 The plaintiff relied on a report of Associate Professor John Raftos dated 28 August 2012. Dr Raftos had not examined the plaintiff, and, as an expert in emergency medicine, had examined the records of the hospital, together with the clinical notes of the Glebe Family Medical Practice. Part of his report, referring to bacterial intervertebral discitis at pp 5 and 6 had been excised following objection to it. Associate Professor Raftos gave the following further evidence in chief:

"Q: If I could take you to p 6 of your report, at the bottom paragraph, the second sentence reads, 'whenever foreign material is inserted into the body for medical therapeutic purposes there must be a definite plan to review and remove the material'. What is basically the appropriate plan for the removal of an ear wick in the circumstances as you understand this case?

A: The purposes of an ear wick is - to allow even distribution of antibiotics and steroids over the surface of the external auditory canal to treat, among other things, infections of the external auditory canal. Treatment of those infections, depending on the severity and the clinicity of the infection, can last from five to seven days to - to a few weeks. But the standard practice would be to leave the - the wick in place for one normal course of antibiotics which would be, you know, five, seven, ten days and then to remove it, observe the ear, and if necessary put in another wick.

Q: In the case of follow up is it part of the protocol to make specific arrangements with the patient to remove the ear wick?

A: Well the patient needs to know that the ear wicks got to come out, it can't be left there because if it's left there, you know, the patient can develop worse infection. So it needs to be made clear to the patient that firstly the ear wick needs to come out after a specific time and that's usually seven to ten days, where it needs to be reinspected at seven to ten days firstly. And secondly, that if the ear wick stays in place then it can have adverse consequences.

Q: On your reading of the notes did you see any note in the Concord Hospital records to indicate that Ms Harris was informed of the repercussions in the ear wick not being removed inside that period?

A: No I didn't see anything like that."

103 In cross-examination, Associate Professor Raftos was asked about the plan outlined by Dr Miller on 19 February 2011 referred to in paragraph 13 above:

"Q: Now do you have any difficulty with that plan doctor, that that's a reasonable plan in the circumstances. Would that appear to be correct?

A: That's a reasonable plan. It doesn't include instruction as to how long the ear wick should stay in place but the patient's in hospital and you'd assume that the ENT Registrar is going to see her again, and then, you know, possibly write - possibly remove the wick his or herself or write a plan as to when it should be removed."

104 When asked what "ear toilet" involved, his evidence was:

"A: Just washing out the ear basically. So you put in a special speculum to allow you to visualise the ear. I guess that if there was a wick or something like that in the ear you'd take it out before you washed out the ear.

Q: So again, it's unlikely that an Otowick would remain in the ear after it's been syringed, is that the case?

A: It could remain after it's been syringed but part of the syringing is to look in the ear to make sure that all the debris has been removed. So I would assume that if they looked in the ear then the Otowick probably wasn't present."

105 Associate Professor Raftos was asked about the examination of the plaintiff that took place at the ENT outpatients clinic on 24 February 2011 where the clinical note read:

"On examination can see part TM."

He was asked:

"Q: ...Now would it be fair to say that you couldn't see the eardrum if there was an Otowick in place could you?

A: Couldn't see the whole drum, this says part of the eardrum, it's not clear why they can't see all of the eardrum. It may be because there's swelling and that may obscure the vision of the canal. It's possible but probably unlikely that the wick was there, if they say that they can see part of the eardrum.

Q: And so to sum up your opinion it's unlikely that the Otowick was in place at that point in time, is that right?

A: Possible, but if that is a correct reflection, I mean if that's what actually was seen, then the ear wick should take up the whole of the canal and make it difficult to see past.

Q: And then there's a reference to an ear toilet, and again, if there had been any residue left in the ear, would it be right to say that the ear toilet would have removed it?

A: You'd suspect so."

106 Associate Professor Raftos was also asked about the plaintiff's examination by Dr Davison on 28 February 2011, and the entry:

"Right TM normal. Mild redness external canal - pinna NAD"

and asked:

"Q: Now again, if there was an Otowick in the ear at that time, the drum would not have been visible would it?

A: Correct.

Q: And so a doctor stating that the eardrum was normal suggests there was nothing obstructing it and nothing in the ear at the time, is that right?

A: Yes."

107 When asked whether the entry in the clinical notes dated 3 July 2011, relating to "white tissues" coming out of the ear suggested that something was inserted in the ear between 28 February 2011 up to 3 July, Associate Professor Raftos said:

"A: No, my interpretation of that is that small pieces of skin from the inflamed skin from the ear canal came out with the water that was used to flush the ear, it's pretty common to see that, especially if someone's had, you know, an infection in the last little while. There's usually a bit of skin that's turned off and breaking off, so if I were to see that written, that's the sort of terminology that I'd use to explain those little bits of tissues - tissue, skin."

108 Associate Professor Raftos agreed that when, on 15 July 2011, the plaintiff was asked to come back to the ENT clinic to be examined again, that that was consistent with proper practice. When asked whether the standard of care in the Emergency Department met with his approval, his evidence was:

"A: Certainly the treatment that she was given does. And the advice to come back to the ENT clinic after a period of time was correct. I think we need to be sensitive to patients, we need to individualise that message, I think that when I ask someone to do something in a medical context I always assess their ability to follow that instruction and you know that a person's whose had a difficult life and - and who's had alcohol and drugs in their life may be less able, for whatever reason, to - to follow instruction than a person who's not had those problems. So I'd probably put the message in a slightly different way for a person like that; I would say, you know, 'You really should come back and see us in a week's time because if you don't you'd come to harm". Whereas a person who's more socially competent probably wouldn't need that degree of warning. They'd say, you know, 'When's my clinic appointment, I'll come along'."

109 Associate Professor Raftos agreed that there was nothing in the entry to suggest that that sort of advice was not given here. When asked to explain the difference in the fungal infection of candida albicans noted on 28 September 2011, being a different sort of infection to that which the plaintiff suffered in February 2011, his evidence was:

"A: The - the nature of external ear infections is that the bacterial floor are changed with time. So acute bacterial infection is usually due to staphylococcus aureus so if you are to go swimming, get your ear canal inflamed and get an infection it would probably be staphylococcus aureus. If that infection persisted for a couple of weeks then it would be replaced by - usually pseudomonas aeruginosa and then if it persisted for more time, usually months, usually yeasts like candida and things like that take harvest so it's a progression of different pathogens as time goes on.

Q: But could it also be a fresh infection?

A: Candida in the ear suggests a chronic infection, suggests that infection has been present in that ear for - for probably four months."

110 Associate Professor Raftos agreed that if a wick was removed in September that had been in place since July, that it would be discoloured by the infection.

111 In re-examination Associate Professor Raftos adhered to the opinion expressed in his report that

"The doctor's failure to remove the wick inserted in Ms Harris' right ear on 19 February 2011 or 15 July 2011 until September 2011 represents a departure from what could have been accepted by peer professional opinion in Australia."

112 When asked, Associate Professor Raftos stated that, in his opinion, the fact that there was candida infection on the ear wick meant that the ear infection had been in the external ear for more than two or three months. He went on to state that it was the medical practitioner's responsibility to remove the ear wick, and that if it was still present then they had not held themselves to that responsibility.

113 Associate Professor Raftos went on to give evidence that if there was a perforation of the eardrum then material could go from the external ear canal through the perforation, into the middle ear. He described that as a "possibility". He then gave the following evidence:

"Q: My question to you was, if the material, using a neutral term, was to descend beyond the externa, would it be less visible to the clinician on examination of the ear?

A: Yes.

Q: If you assume that a general practitioner on 14 September 2011 observed the tympanic membrane to be ruptured, would that indicate the possibility of the foreign body having travelled?

A: That's possible."

114 The defendant called no oral evidence, but in addition to the clinical records of the hospital and the various medical clinics the plaintiff attended, relied on three reports contained in exhibit 1. The first was a report of Associate Professor Gatus dated 9 June 2013. Associate Professor Gatus was not required for cross-examination. He had examined the various clinical records and hospital notes and provided a commentary on the chronology of the plaintiff's history. His report stated that following her first admission to hospital on 18 February 2011, on discharge on 23 February 2011, the plaintiff failed to attend the ENT clinic on 24 February 2011. That was incorrect. Following her treatment on 15 July 2011, Associate Professor Gatus stated that the plaintiff was to attend the ENT clinic the following week "for ear toilet and a change of the ear wick". He noted that on 20 July 2011 the plaintiff failed to keep an appointment at the ENT clinic.

115 Associate Professor Gatus commented that upon examination of her right ear at the hospital on 22 September 2011 there was no mention of a foreign body being in the right ear canal. As to the object removed from the plaintiff's right ear on 28 September 2011, he stated:

"It was not described whether or not the "wick" was a surgical ear wick or any other type of wick, being it tissue paper, toilet paper, cotton wool or anything else. Also, neither the length of the foreign body nor how far it was in the ear canal were described.

The appearance of a compacted and inspissated piece of tissue paper, toilet paper, cotton wool or anything else with the diameter of the ear canal could resemble a "surgical ear wick.

In my opinion, it cannot be assumed the foreign was a "surgical" ear wick."

116 That comment became the opinion of Associate Professor Gatus as expressed on page 15 paragraph 2 of his report.

117 In a supplementary report dated 9 March 2014, Associate Professor Gatus opined that on the basis of records examined by him, there was no ear wick present in the plaintiff's right ear on 24 February 2011 or 28 February 2011.

118 The defendant relied on a report of Dr G R Lewkovitz dated 23 March 2013. Dr Lewkovitz was an ear nose and throat surgeon who examined the plaintiff on 19 March 2013. He requested audiometric testing and reviewed her on 25 March 2013. He concluded that the hearing in each ear was:

"Near equal but perhaps very marginally reduced more in the right ear at 4000H frequency than in the left ear. This difference is in the order of 10 decibels. A 5-10 decibel variation can be seen between successive tests and, therefore, this variation may be of no special significance. To straight examination, both ears appeared to be similar in hearing levels."

119 Dr Lewkovitz went on to opine that there

"does not appear to be any permanent consequence of the prolonged wick installation into the right ear as treatment for an ear infection. The ear is normal in appearance."

He could not attribute any long term consequence to that treatment.

120 The defendant also relied on a report of Dr P L Harvey-Sutton dated 31 July 2013. Dr Harvey-Sutton is a consultant occupational physician. Having examined the plaintiff Dr Harvey-Sutton said in respect to the claim for past gratuitous care of 10 hours per week domestic assistance:

"With the greatest respect, there is no indication that she requires domestic assistance now and, from the history as given and due to her medical condition, on a beneficial basis, she may have required at most some four hours of assistance per week on an average basis until September 2011."

121 Dr Harvey-Sutton went on to state that:

"It was difficult to obtain a history of the incident from Ms Harris and she indicated that she had difficulty with memory. She was of the opinion that the plaintiff was medically fit to work as a beautician based on her presentation and the history given."

Determination

122 The plaintiff was a very poor historian who did little by her own evidence to assist her case. She had been addicted to opioids and in particular heroin for many years until approximately 2010 when she tried to turn her life around. She had commenced a certificate course at TAFE to become a beautician and completed the requirements of that course in 2010 successfully.

123 The plaintiff was such a poor historian that her evidence has to be assessed by comparison to the contemporaneous medical records kept at the various medical clinics she attended and the hospital. Where her evidence conflicted with the contemporaneous records, I have preferred those records on the basis that the plaintiff admitted that her ingestion of narcotic drugs had left her with a poor memory for events. Notwithstanding that, it was to the plaintiff's credit that she had endeavoured to overcome her narcotic addiction and alcohol dependency. Her daughter, in 2010, was aged 16 years and the plaintiff was able to care for her. She had however, been in receipt of a Disability Pension since 1994, and the work that she obtained in March 2011 did not seem to effect her entitlements to that pension.

124 The plaintiff's case in negligence is based on Associate Professor Raftos' opinion that the ear wick removed on 28 September 2011 was that inserted either on 19 February 2011 or 15 July 2011. Although there is no reference in any hospital or clinical records as to the removal of the ear wick that was inserted into her right ear on 19 February 2011, I find that the object removed from the plaintiff's right ear on 28 September 2011 was not that ear wick, for the following reasons:

(1) On 24 February 2011, the day after her discharge from hospital, the plaintiff attended the ENT outpatients clinic and reported "feeling much improved". Examination of her right ear, as referred to in paragraph 18 above, reported that part of her tympanic membrane was visible and that she was given ear toilet, i.e. washing out of the ear at that time.

(2) On 28 February 2011 the plaintiff had attended the Glebe Family Practice for review post-discharge from hospital. She reported being "much improved" and on examination her right tympanic membrane was described as being "normal".

(3) Thereafter, the plaintiff made no complaint to any medical practitioner about discomfort in her right ear until 22 June 2011.

(4) On 21 March 2011 she attended the same medical practice and made no mention of her right ear.

(5) On 18 March 2011 she obtain part-time employment with the Clear Skin Clinic.

(6) On 23 March 2011 she underwent counselling in respect of her drugs and alcohol issues, but made no reference to her right ear.

(7) On 7 April 2011 she attended the Glebe Family Practice and made no mention of her right ear.

(8) On 4 May 2011 she attended Burwood Medical Centre in respect of an upper respiratory tract infection and made no mention of her right ear.

(9) On subsequent counselling attendances on 19 April 2011 and 22 June 2011 she made no mention of her right ear.

(10) When she did obtain treatment for her right ear in July 2011, she gave a history that the symptoms associated with it had started two weeks beforehand. She gave the same history when taken by ambulance to the hospital on 15 July 2011, with the symptoms becoming worse the previous day.

(11) The onset of symptoms in September is consistent with the evidence of Associate Professor Raftos referred to in [112] above, namely, development of the pathogens into a fungal infection over a period of two to three months i.e. from July to September 2011.

125 I am satisfied on the balance of probabilities that the item removed from her right ear on 28 September 2011 was the ear wick inserted by Dr McGuiness on 15 July 2011. The planned devised for her treatment on that occasion was for her to attend the ENT outpatients clinic on 20 July 2011 for "ear toilet and change Otowick", and she did not attend on that occasion. She then had no problems with her ear until 6 September 2011 when she attended the Glebe Family Practice and was examined by both Dr Santer and Dr Craig. She gave the same history to both doctors of right ear pain for one week with a discharge from the right ear. I am satisfied that this was a re-occurrence of her infection. Examination on that occasion revealed a narrowed canal with no reference to the tympanic membrane. When examined by Dr Jenkins on 9 September 2011, her right ear had a red swollen ear canal and that doctor was unable to see her eardrum. Similarly, on 14 September 2011 Dr Goyal was unable to see the tympanic membrane and he queried whether it had been ruptured. On 22 September 2011 she was referred to the Emergency Department of the hospital and on that occasion her right tympanic membrane was not visible. That led eventually to her attendance on 28 September 2011 at the ENT clinic when the wick was finally removed.

Did the Hospital Breach its Duty of Care

126 The question of breach is to be determined by reference to ss 5B and 5C of the Civil Liability Act 2002 ("CLA"). Those sections provide:

"5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

5C Other principles

In proceedings relating to liability for negligence:

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."

127 The first step is to identify what the particular "risk of harm" was that it is alleged that the defendant failed to take precautions against - see Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330 per Gummow J; see also AV8 Air Charter Pty Limited v Sydney Helicopters Pty Limited [2014] NSWCA 46 at [81] and [82] per Hoeben JA with whom Barrett and Ward JJA agreed. The risk of harm here was the development of infection in the plaintiff's right ear in the event that the ear wick, which was placed in the ear for therapeutic purposes, was not removed, so as to allow infection to develop.

128 The precautions against that risk of harm which are relevant here are paragraphs (a), (e) and (f) of the particulars of negligence pleaded against the defendant and set out in [7] above. The plaintiff has not made out paragraphs (b), (c) and (d) of those particulars.

129 The risk, as identified above, was foreseeable, namely, that if the ear wick was left in the plaintiff's ear, then infection would develop leading to pain and swelling. I find further that the risk was not insignificant.

130 Whilst there is no evidence that the ear wick inserted into the plaintiff's right ear on 19 February 2011 was at any time removed from the plaintiff's ear, I am not satisfied, on the balance of probabilities, that it remained in her ear. Learned Counsel for the plaintiff advocated that because the plaintiff had suffered a perforated eardrum or tympanic membrane, it could have descended further into the inner ear canal. However, there is no evidence of that and to so find would be speculative. In any event, as outlined above, the plaintiff did not suffer ongoing problems until the reoccurrence of her infection in June 2011.

131 Nor was the treatment provided to the plaintiff at the hospital on 19 February and 15 July 2011 anything other than reasonable care - see the concessions made by Associate Professor Raftos referred to in [103] and [108] above.

132 The question to be determined here is whether the defendant's failure to ensure the plaintiff attended the hospital for removal of the ear wick that was inserted in the Emergency Department on 15 July 2011 meant that it breached its duty to her. There is no doubt that an appointment was made for her to be treated at the outpatient's clinic on 20 July 2011 and she did not attend on that day. I do not accept the plaintiff's evidence set out in [44] above that she did attend on that day.

133 The plaintiff contends that the defendant breached its duty of care to her by first, failing to ensure that the ear wick was removed and secondly, by failing to follow up the plaintiff when she failed to attend on 20 July 2011, knowing that the ear wick would still be in place. The plaintiff relies on the evidence of Associate Professor Raftos that there was a departure from the relevant standard of care required of the hospital, given the particular subjective circumstances of the plaintiff, namely, that she was known to the hospital to have an addiction to opioids, and in particular, heroin, that she had been treated as an inpatient in February for the same condition, and that she had had a re-occurrence of the infection in her right ear. This placed an onus on the hospital to ensure she attended to enable the wick to be removed.

134 Further, the plan devised by Dr McGuiness on 15 July 2011 included the following entry:

"Clinic next week for ear toilet and change Otowick."

135 The ED discharge referral contains no reference to either the insertion of the Otowick or the need for her to return to the ENT clinic for its removal. The summary stated as follows:

"The patient is a 48 y/o lady who presented with signs and symptoms of external Otitis. The patient denies any background of DM or any other precipitating factors. She had another episode previously. Her obs are okay and she is a-febrile. The patient was examined by ENT Registrar and according to his opinion the patient can be discharged after having one stat dose of Dexamethasone. The patient was discharged with ear drop of Ciprofluxacin and scripts for analgesics. She was asked to come back to ENT clinic to be examined again."

136 That document has a handwritten entry which reads:

"ENT Registrar 20/7/11 (notified 18/7/11) 12.30."

The defendant called no evidence from any of the doctors or staff who treated the plaintiff at the hospital, nor other employees. This entry was left unexplained, however, it was not put to the plaintiff that she had been specifically notified on 18 July 2011 that an appointment had been made for her with the ENT Registrar on 20 July 2011. I therefore accept that the entry confirms that the Emergency Department had forwarded their referral to the ENT outpatients department on 18 July 2011. Learned Counsel for the plaintiff submitted that the failure of the defendant to call the three ENT Registrars, Drs Crawford, Miller and McGuiness, gave rise to an inference in favour of the plaintiff, namely, that their evidence would not have assisted the defendant's case, relying on Jones v Dunkel (1959) 101 CLR 298, as explained in Manly Council v Byrne [2004] NSWCA 123 per Campbell J, with whom Beazley JA and Pearlman AJA agreed at [44] [54], and in particular, the reliance of His Honour on the dissenting judgment of Glass JA in Payne v Parker (1976) 1 NSWLR 191 at [53]. In the circumstances of the present case, relying on those principles, I am prepared to draw an inference that the evidence of those witnesses would not have assisted the defendant's case and that the hospital, by its staff, did not ensure that the plaintiff understood the need for her to attend the outpatients clinic for removal of the ear wick on 20 July 2011 and the consequences of her not doing so.

137 Ordinarily, the scope of the duty of care for a large hospital would not extend to ensuring the attendance of one patient at an outpatients clinic for ongoing treatment. That is a matter for which the law would attach personal responsibility on the patient to care for their own safety. However, the law has recognised that in certain circumstances the content of the duty of care can extend to requiring the taking of positive steps to avoid physical damage being sustained by a person to whom the duty is owed. For example, in Hawkins v Clayton (1988) 164 CLR 539, Deane J (as he then was) said at p 579:

"The content of the duty of care in a particular case is governed by the relationship of proximity from which it springs. It may, in some special categories of case, extend to require the taking of positive steps to avoid physical damage or economic loss being sustained by the person or persons to whom the duty is owed."

138 Even allowing for the fact that proximity is no longer considered to be the touchstone of determining the existence of, and content of the duty of care (see Caltex Refineries (Qld) Pty Limited v Stavar (2009) 75 NSWLR 649 per Allsop P at [102] and [103]), the above statement from Deane J still represents the law.

139 By analogy, in Waimond Pty Limited & Anor v Byrne (1989) 18 NSWLR 642, the Court of Appeal held that the scope of the duty of care of a solicitor is not confined to his contract of retainer but may extend, depending on the circumstances, to require the taking of positive steps beyond the specifically agreed task or function the solicitor was employed to carry out where these are necessary to avoid a real and foreseeable risk of economic loss being sustained by the solicitor's client. That principle was affirmed by Brereton J in Riz v Perpetual Trustee Australia Limited [2007] NSWSC 1153, in another case concerning the scope of a solicitor's duty of care. The vulnerability of the plaintiff here is a significant factor in establishing a duty of care - see Idameneo (No. 123) Pty Ltd v Gross [2012] NSWCA 423 per Hoeben JA (as he then was), with whom McColl and Ward JJA agreed, at [50] - [61], particularly his Honour's reliance on the judgment of Gleeson CJ in the High Court's decision in Perre v Apand Pty Ltd (1999) 198 CLR 180 set out in [51].

140 Determining whether the relevant duty of care extends to taking positive steps to avoid a particular risk of harm will depend on the circumstances of each case. Here, the relevant circumstances are that the plaintiff had had a recent history of hospitalisation at the same hospital for the same condition in February 2011. Prior to that, she had had admissions relating to her dependency on opioids and other drugs. During her February 2011 admission she had expressed concern about her pain relief regime and had been referred on more than one occasion to the drug and alcohol counselling service offered by the hospital. The hospital was on notice of her vulnerability to drugs of dependency and alcohol. Further, the condition for which she was treated in July 2011 was a reoccurrence of the infection of her right ear. She was brought in by ambulance and treated in the Emergency Department. The plan devised by Dr McGuiness on 15 July 2011 was perfectly clear, namely, that she was required to attend the outpatients clinic the next week for ear toilet and change of the ear wick. It is clear that the hospital noted her failure to attend on 20 July 2011 in the records, but no further action was taken.

141 I accept the evidence of Associate Professor Raftos that there was a deviation from the standard of care required of the hospital to advise the plaintiff of the need to return to the ENT clinic for removal of the wick, and to warn her of the adverse consequences if she failed to do so. Whilst the defendant relied on a concession made by Associate Professor Raftos that there was nothing in the hospital records to suggest that sort of advice was not given to the plaintiff, the absence of any such record is significant given the particular vulnerability of this plaintiff. I accept the plaintiff's submission that the plan for removal of the ear wick should have been communicated to the plaintiff in no uncertain terms, not only to the need for compliance, but the consequences of non-compliance in circumstances where the hospital knew that she had a vulnerable personality. There was a further deviation from that standard of care by failing to follow up with the plaintiff when she failed to attend on 20 July 2011.

142 In determining whether a reasonable person in the position of the hospital would have taken the precautions against the relevant risk of harm here, it is clear that if the Otowick was not removed then the probability that infection would occur was high, and such infection was likely to cause serious harm to the plaintiff. The burden of taking those precautions to avoid the risk of harm was, in my view, minimal and there was a clear social utility in the hospital treating the plaintiff in such a way as to avoid the risk of harm following its treatment of her.

143 I find that the defendant breached its duty of care to the plaintiff for failing to take the precautions outlined above to avoid the risk of harm to her in these circumstances.

Causation

144 Causation is to be determined pursuant to s 5D of the CLA by proof of first, factual causation, meaning that the defendant's negligence was a necessary condition of the occurrence of the particular harm. This is generally referred to as the "but for" test set out by the High Court in Strong v Woolworths Limited & Or (2012) 246 CLR 182. The second part of the test is whether it is appropriate for the scope of the hospital's liability to extend to the harm so caused. In my view, here both tests are satisfied and the pain and swelling suffered by the plaintiff in her right ear in September 2011, diagnosed as "recurrent Otitis externa", was caused by the negligence of the defendant.

145 The defendant raised a defence pursuant to s 5O of the CLA without setting out the material facts on which it relied. That defence was made out with respect to the treatment the plaintiff received at the hospital on 15 July 2011 given the concessions made by Associate Professor Raftos in relation to it. However, in relation to the finding that I have made above of breach of the defendant's duty of care, and the failure to follow up the plaintiff following her failure to attend at the ENT clinic on 20 July 2011, the defence is not made out, particularly in view of the fact that the defendant called no evidence in respect of that issue.

Damages

146 The plaintiff tendered no medical evidence in respect of her claim for damages. Given the findings made by me, those damages for noneconomic loss relate to the onset of infection in her right ear by the hospital's failure to ensure the ear wick inserted on 15 July 2011 was removed. Following removal of the ear wick on 28 September 2011, the plaintiff received appropriate treatment and has had no reoccurrence of the infection in her right ear. It is, however, clear that she received further treatment for opiate withdrawal, discitis and other conditions since then. The plaintiff's claim for damages for non-economic loss is therefore confined to a period of months involving a recurrent infection, removal of the foreign body from her ear and resolution of the infection. She was also required to undergo the procedure for removal of the purulent wick, from her infected ear. Subjectively, the plaintiff asserts a loss of hearing in her right ear which was not confirmed on testing by Dr Lewkovitz.

147 I do not accept that the plaintiff's relapse into heroin use, following her discharge from the hospital in February 2011, and her subsequent use of heroin was caused by any negligence of the defendant. Nor do I find that her need for domestic assistance from April 2011 is in any way related to the breach by the defendant of its duty of care following her treatment on 15 July 2011. Nor is there any evidence to establish a nexus between the defendant's breach of duty of care and the plaintiff's complaints of dizziness, headaches and disorientation from September 2011 to the present. She in fact suffered such episodes in February 2011 (see [14] above), during her hospitalisation when she was found outside the hospital contrary to the advice she had received not to leave the ward. In any event, there is no medical support for those complaints being in any way causally related to the defendant's negligence.

148 In assessing the percentage of a most extreme case pursuant to s 16 of CLA, I find that the appropriate percentage is 18% of a most extreme case, and therefore, pursuant to the Table in s 16, the plaintiff is entitled to 2.5% of the maximum amount that may be awarded, a sum of $14,000.00.

149 In respect of the plaintiff's claim for past wage loss, the plaintiff worked parttime at the Clear Skin Clinic from 18 March 2011 until 14 September 2011. In a letter from the proprietor of that business, it is clear that her employment ceased because she was ill in September 2011, at a time when her ear infection had reoccurred. I therefore find her inability to continue that work was caused by the negligence of the defendant, however, it is clear that within a few months of finishing work, other medical problems took over. She was diagnosed as suffering from discitis and septic arthritis, and also sought treatment for her drug dependency. However, there was some delay in her completing the Beautician Certificate II course at TAFE, which was partly caused by the defendant's negligence.

150 For past loss of earnings the plaintiff has claimed two amounts. The first claim is in relation to the period 1 April 2011 until the termination of her employment on 9 October 2011 whilst she was employed at the Clinic. She claims 15 hours per week at $20 per hour for a period of 27 weeks. There is no evidence that she lost that time off work as a result of the reoccurrence of her infection in September 2011 and I disallow that claim.

151 The plaintiff claims from 9 October 2011 the sum of $800 net per week until 1 January 2013, a total of $51,200.00. This claim overstates her earning capacity as a part-time employee and ignores the other problems, medical and social, that she suffered throughout 2012 until the present time. I have allowed the plaintiff a buffer for past diminished earning capacity based on an earning history of an average of $350 net per week. I therefore award the sum of $10,000.00 for past loss of earning capacity, including any superannuation entitlements that may have accrued to her.

152 The plaintiff has claimed past attendant care services provided by her daughter for 10 hours per week from April 2011 to 1 December 2012 and continuing. Given the findings I have made above, that claim has not been made out. In respect of the relevant period following the defendant's breach in July 2011, the plaintiff continued to work until September 2011 and I find that there is no evidence supporting the need for her to have domestic assistance during that period of time. The time estimates given by the plaintiff's daughter in respect of the activities she undertook on behalf of her mother were in any event somewhat exaggerated, and the explanation provided for that was that the plaintiff's daughter had not done any of these domestic chores previously. In any event, the plaintiff has not passed the threshold contained in s 15 of the CLA of first establishing a need for the services to be provided based solely because of the injury to which damages relate (s 15(2)), and further, that such services were provided for six hours or more per week for a period of more than six months (s 15(3)) - see Hill v Forrester [2010] NSWCA 170. I therefore decline to award any damages for past gratuitous care.

153 The plaintiff has claimed past treatment expenses which were agreed in the sum of $7,056.85. The plaintiff has claimed the sum of $10,000.00 for future treatment expenses "on a buffer basis". There is no medical evidence supporting this claim for treatment or rehabilitation expenses arising from her injuries and therefore I disallow that claim.

154 The plaintiff has also claimed future attendant care services for assistance with household maintenance, shopping, cleaning and laundry for three hours per week at a cost of $45 per hour for a period of 10 years in the sum of $55,741.00. Again, there is no medical evidence supporting a need for commercial domestic assistance, nor am I satisfied that there is a need for such assistance established by the plaintiff - see Miller v Galderisi [2009] NSWCA 353. I therefore disallow this claim.

155 Finally, the plaintiff has claimed for future earning capacity a buffer of $75,000.00, including an allowance for future superannuation entitlements. Given my findings outlined above, there is no evidentiary support for the claim for diminished earning capacity into the future caused by the defendant's negligence. The plaintiff has failed to establish that any injury suffered by her may be productive of financial loss in the future.

156 I therefore assess damages as follows:

Non-economic loss	$14,000.00
Past diminished earning capacity	$10,000.00
Past treatment expenses	$7,057.00
Total	$31,057.00

Orders

157 I therefore make the following orders:

(1) Verdict and judgment for the Plaintiff against the Defendant in the sum of $31,057.00.

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

(3) I grant the parties liberty to apply for any special costs order sought on 7 days notice.

(4) Exhibits to be returned forthwith.

Decision last updated: 31 March 2014