Richards v Grant & Anor [2004] HCATrans 564 (10 December 2004)

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Richards v Grant & Anor [2004] HCATrans 564 (10 December 2004)

Last Updated: 18 January 2005

[2004] HCATrans 564

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M154 of 2003

B e t w e e n -

BARRY RICHARDS

Applicant

and

J. GRANT

First Respondent

ALLENDALE PRIVATE HOSPITAL

Second Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 DECEMBER 2004, AT 12.02 PM

Copyright in the High Court of Australia

MR B. RICHARDS appeared in person.

HAYNE J: There is, I believe, no oral argument to be submitted on behalf of the respondents. Yes, Mr Richards.

MR RICHARDS: Your Honours, at the time I prepared the application book I was suffering from severe depression and I did not realise that a release was a contract otherwise I would have contested all the injuries named in the application book. I did not think that there was any legal way of doing that. I have since learnt that this is not the case.

This application may give you the most concern because of the length of time that has passed since the injuries occurred. In doing justice to all, it should not. I respectfully submit that the Court should go out of their way when legally possible to favour the injured or harmed person or persons if the Court has the power to do so, particularly in very serious matters like this and if the evidence supports it. These injuries had too serious an effect on me and my family in many ways; some of it you have read in the application book, some of it you have not, for your Honours not to grant this application.

There are many components in this application that are unique and unusual and also that go against all the principles of fairness, integrity that your Honourable Court should stand for. Your Honour should not want to be a party to allowing the perpetrators of these acts and omissions to get away with this so cheaply and in such an unjust way. It should have been heard fairly and openly in a courtroom, like was promised to me by Mr Gillies, before trial back in 1987. To go to the decision of a jury, if the correct amount of compensation was not paid into the court that was an appropriate amount for my injuries and losses, both immediate and long-term; immediate loss of earning capacity, which I did not know about then, and pain and suffering long-term, on and off.

There is no disadvantage to any of the defendants in hearing this matter some time in the future, only myself because of the difficulty in remaining in the courtroom for any long period of time. All the witnesses that were available for both sides then that are important to a fair and just hearing for all are still available today. There is no disadvantage to any of the defendants in hearing this matter – I think I have said that.

This case has absolute prospect of success. The defendants and their insurance companies have had the money that I should have been awarded back in 1979 for my injuries and losses in their hands all that time since then, earning what would have been massive interest rates on it. They have lost nothing. They have gained. I have lost everything because of this particular injury, and the defendant’s treatment or lack of treatment of me. If it had not been for this particular injury I would have been financially secure at the time of the November 1982 car accident, but the car accident injuries would not have had the financial effect that it did have on me, causing me to lose my home and other assets at the time and other things.

The defendants may say, “We didn’t do anything wrong at trial” but, your Honour, they did, and this goes to the unusual and unique issues in this case. The people who were paying the money, or part of it, the surgeons, were extremely difficult to get on with with me. They gave me a very hard time. They were particularly sensitive about the thrombosis component. They were fearful because it does come even with proper treatment, that once they acknowledged it, that they would open up the floodgate of law suits on thrombosis. I believe what they should have done was come clean and tell patients that there is a risk of thrombosis after surgery. You can get it through neglect, but you can also get it with proper treatment – the same with infection, you can even die from the anaesthetic; many other things. I think in elective surgery you should be told.

In Mr Grant’s rooms he misled me completely. He failed to tell me the recovery time when asked that direct question. He did surgery that I would not have had done if he had have told me the extent of it. He gave me wrongful advice. He guaranteed a private room, along with his secretary. When I got to Allendale Hospital they said they would give me a private room; they put me in there and as soon as they got me in there they forcibly shifted me into a public ward. I had extreme difficulty in the public ward once I was put there with the nurses. I was put in a bed that was so bad it did the injuries what you saw in the application book. Some of them have recovered. I got back to work in 1982 until the car accident.

I would say that it was probably the worst case of neglect that has ever been before a court from the point of view of the duration of neglect. It went on for about 12 days, 24 hours a day by the nursing staff and by the surgeon. The surgeon states in the record that he came and saw me about every four days. Well, he certainly did not speak to me until the 15^th or 16^th day, even though I was asking for him, and it can be proven that he could not have possibly examined me, and it can be proven that the thrombosis was setting in in hospital. He said he visited me whilst I was asleep. If he had have examined my inguinal lymph nodes like he said, one of my eyes would have popped open, which they always do – I have been in hospital over 20-odd times and I have only got to be touched and I wake up, let alone the inguinal area. So he would have also felt that they would have been like green peas, they would have been so swollen. So he could not have possibly came to see me while I was asleep.

He did walk in about the eighth or ninth day, stopped three metres from the bed, waved his finger at me and say to me, “You’ve settled in fine” and walk out, and I had been asking for him regularly. I had been complaining about the bed and buttock pain, as I now know it, and nothing was done.

After discharge I phoned him twice while home in plaster complaining of calf pain, increased swelling in the foot and back - that I now know to be buttock more than back – and he told me young blokes are always complaining, amongst other things. When I said to him on the second phone call that my foot was up like a balloon alarm bells should have started ringing straight away. He should have either said, “Go to your GP”, “Go to hospital” or “Come and see me”; he did not say that. That is why all the medical reports afterwards did not contain any truthful meaning to the reader. I mean reading deep vein thrombosis in some of the simple reports they gave indicated that it could have developed in the deep veins, shifted and turned into an embolus, and that was the end of it.

That was the opinion the medical reports gave to all barristers and possibly solicitors. In fact, I had lost all the deep veins through permanent clot formation in me, which every doctor and his.....apprentice would have known was going to give me long-term trouble, which I have had. That was never disclosed. There is even a debate going on now where the first massive embolus was, and that is an indication of the size of the clot, and there is no doubt about that. I have had three since.

When I returned to his rooms afterwards I complained about these problems. He misled me in his rooms. He failed to tell me the extent of the seriousness of the thrombosis. He told me it was trivial and superficial; he had a marker in a book. He failed to examine me, make an accurate diagnosis and recommend the proper treatment, and he did not even look at it when I pointed my fingers into the right buttock area. I did have a photo of it, but I am sorry I forgot to bring it.

On the first visit back to – after Western Hospital, he was very nervous and very quick. He did not come to see me in the Footscray Hospital because I believe he did not want to get into a confrontation with people around, and he was probably warned by the doctors there that I was very bitter towards him, for many reasons. But the sad thing about it is that I would not have sued him for doing the reconstruction if he had have treated me properly. I would have been very upset about it because it would have cost me so heavily financially, but I am the type of person who would have worn it, even though I would not have had it done because of the financial reasons. I would not have had it done if he had have told me the correct recovery time.

HAYNE J: The immediate question before us is whether there is any error in what the Court of Appeal said.

MR RICHARDS: Yes, yes, there is.

HAYNE J: Not the facts that lie behind it. What is the error in what the Court of Appeal said?

MR RICHARDS: Well, what they are trying to say with their release is “or any other serious severe injury that we caused that we didn’t disclose at the time of trial that we are responsible for, that you find out later” - that the plaintiff finds out about later. That is what they really say in the release. In other words, they are saying if they compensate you for a fingernail or a finger being removed at trial and it is in the statement of claim and you lose an arm, that you have got to wear it. I mean there is a possibility that I may lose my leg. That has not been stated anywhere, and yet I reasoned all that out myself when I started studying medicine because I knew the doctors were not telling the truth. I am a fan of the doctors, believe it or not; I wanted to be one. You may not think so.

Anyway, I say that the relief simply does not cover an unknown injury. I might say that the solicitor I had, Mr John Snowden, if I had have been told that he was a defender of all the hospitals in Victoria and that he socialised with doctors regularly, I certainly would not have used him. When I did find that out and tried to change, I asked him how much I owed him and he said, “About $5,000” and I said, “I’ll think about it for a week or two whether I’m going to change or not. Don’t do anything.” and when I returned and said that I intended to change he said, “I’ve done a lot more work in the meantime, mate, and there’s another $10,000 debt run up”. So I could not change. So I had a doctor support me on the thrombosis and a court date very soon after that.

So the seriousness and severity of the injury is such that the Court of Appeal did make an error, and I say that it was not included in the release. In fact, the only reason “future pulmonary embolisms” is included in the statement of claim is because I insisted it be put there. It was not going to be put there by Mr Snowden or anyone. It was only because of my research on thrombosis from 1978. Can I have a bit of water, your Honour, please? I am going to run out of voice.

HAYNE J: Yes, of course. The release which appears at page 64, at line 28, refers to the allegation of suffering venous thrombosis causally related to the operation. Is that right?

MR RICHARDS: Well, it is not causally related to the operation. What page did you say, your Honour?

HAYNE J: That was at page 64, line 28.

MR RICHARDS: Well, it is not causally related to the operation because the consultant physician believes that it is caused by the circumstances I was immersed under; namely, laying on the ridge and ill-advice by the nursing staff and lack of proper physiotherapy. I would say that if I had have been in a proper bed - with the family tree, my mum is 95 and still mobile; my father died in 1982 and was a heavy smoker and drinker, and there is no history of thromboses. I have had operations before and never had any problems being immobile. I had a massive sacral lumbar fusion operated on for a long time and in bed for nearly one and a half years in total by the time they removed the rods. I had no thrombosis during that time. I would say that it is almost 99.99 if not 100 per cent – and I have got a consultant physician answering the question here at the moment.

So really my claim today only relates to the buttock muscle injury that they knew about, that I believe they knew about – they may not have known about it before trial, but they definitely knew about it afterwards because once I diagnosed a sacro-sciatic ligament, a doctor - and put it to him, he said, “Has the penny dropped, has it?” and I said, “Yes, the penny has dropped”. But I did not realise until 1999 that I had actually buttock muscle damage. In other words, it appears the sensory nerves of the buttock are damaged for sitting, but that – I can still physically work with them through a range of 18 inches off the floor to overhead if I had not have had the car accident.

So I say the release was fraudulent. I know this does not mean anything to you today, to this application, but the release was fraudulent and it was forced and it was an illegal contract. Mr Gillies has agreed. Mr Gillies said to me, my QC, that if he had have known the extent of the injuries he certainly would not have done what he did at court. He said that to me in his rooms only a short time ago, only six or eight weeks ago. He said he certainly would not have forced that amount on me.

The other – some good surgeons, as I call them, decent ones – and there are plenty of them – they did tell me that I would need artificial knees as a result of the neglect of Allendale Hospital and John Grant, and they told me why. They said I would need both knees replaced, which I am probably about five years away from with the left knee, and the right knee probably a bit longer, but I believe I would not have needed the right knee replaced with the first tibial compartment syndrome I had in 1975. I believe that the 1999 incident has been the straw that broke the camel’s back insofar as the right knee goes.

Because of the family tree, because I nursed it for so long, I do not think it degenerated at all because it was noiseless, painless, no noise, crepitus, osteoarthritis in it at all, full range until I had the tibial compartment syndrome in 1999. Since then I have got a mild intermedial knee osteoarthritic pain which is not giving me much trouble. If I lift long.....there is no – which is highly unlikely – it is conceded that I could drop dead at any time – I will probably need the right knee replaced too, but I do not believe I would have from the first incident.

I mean at the.....Hospital they were all on my side, and when I persisted that I was neglected by the surgeon their whole attitude changed. Some went from aggression to just being abrupt and nasty, not being friendly. The most extreme case – well, one said to me, “The moment you say anything against us, that automatically turned us all against you.” But that was not so bad. The extreme case was I was leaving the hospital on crutches after being in the intensive care unit. I was standing on one leg. My right leg was absolutely screaming in agony after the tibial compartment syndrome, severe nerve damage and ischaemic muscle pain and breathless because of my collapsed lung and all that scar tissue consolidation and everything, and the doctor said to me – a Dr Payne said, “If you come back in this emergency, we won’t treat you, which is highly likely.” I said, “What about your Hippocratic oath?” He said, “That doesn’t mean anything anymore.”

When I saw surgeons on behalf of the Medico Legal Fund they – I mean some of them treated me extremely aggressively, others were quite pleasant but vague and held back and you know. Not all of them but certainly 50 per cent, you know. I repeat that they were very sensitive about thrombosis. They thought whoever was giving them their legal advice probably put in their head the moment you concede it once, when you are – because it is so prevalent after surgery – only small infarcts and that – you are going to open up a floodgate. All they had to do was come clean and tell people that there are risks with surgery and just briefly tell them, particularly on elective surgery – on emergency surgery you do not have a choice.

The consultant physician who looked after me is now conceding in a questionnaire that it was all caused by the neglect and treatment of Allendale Private Hospital and the bed and the lack of proper advice by the nursing staff. I did not put that before the court because it did not go before the court below, but that is for the contract in future if I pursue it. Seeing as I believe the buttock muscle injury is the main financial component, as opposed to the pain and suffering of the re-occurring thrombosis I have had since mainly 1999, that is the only application I have here before you today.

I can prove conclusively, your Honour, all this. They did a venogram early in about 1976. It showed all my deep veins clotted to about 100 millimetres below the knee crease, and I was draining through superficial circulation into the popliteal, yet they did not disclose that. Mr Gillies said when he read the reports it implied to him that I developed a deep vein clot that had shifted into an embolus and that was the end of it. It did not tell the true extent of it.

I have got medical reports going back 1975 and 1976. One states that there was a positive Homan sign, one states there was a negative Homan sign. One states I was coughing up blood, one states I was not. I was personally shown the scan at the Melbourne Hospital. I said to the radiologist, “Can you tell me what’s wrong with me?” He said, “Well, have a look here. You should be dead” and he showed me the big two piece on top of the heart – I was in terrible pain and agony but because I was so fit and healthy I was handling it reasonably well at that stage. The big two piece on top of the heart was completely blocked on the right side. There was this massive clot where they put a radioactive isotope in and it was taken up by components of the clot, and a part of the vertical section was clot. He said to me, “Put it this way, you should be dead.”

Well, I was in intensive care, and I do not remember much about the intensive care, for eight days, but I do remember when I was shifted back to the ward all I kept saying to the nurses is, “I want to go home.” She said to me, “Why do you think they’ve put you in this room outside the intensive care unit?” She said, “It’s so the crash courier can get at you quickly. You’ve already been resuscitated.” I mean none of that has ever been stated. I mean it has been played down in its most simple form and – not that that is worrying me. I mean I have faced death on five occasions; my heartbeat hardly misses a beat. But the point is here justice. I do not want you – I ask you not to let these people get away, if at all you have got a legal possibility, and if you do not grant me this application well I will be pursuing the fraudulent contract and release.

HAYNE J: Thank you, Mr Richards.

There is no reason to doubt the correctness of the decision of the Court of Appeal of Victoria. No application for costs is recorded in the written submissions of the respondent. Accordingly, the order is: special leave refused.

Adjourn the Court to 3.30 pm on Monday, 31 January 2005 in Canberra.

AT 12.24 PM THE MATTER WAS CONCLUDED