Nunn v Hardcastle [2000] WADC 174 (7 July 2000)

Last Updated: 29 November 2006

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH

CITATION : NUNN -v- HARDCASTLE [2000] WADC 174

CORAM : DEANE DCJ

HEARD : 3-7 APRIL, 22-26 MAY 2000

DELIVERED : 7 JULY 2000

FILE NO/S : CIV 3998 of 1997

BETWEEN : ADRIAN LEITH NUNN

Plaintiff

AND

PHILLIP HOBSON HARDCASTLE

Defendant

Catchwords:
Torts - Negligence - Plaintiff suing defendant a medical practitioner for negligence alleging failure to warn, failure to fully utilise pre-operative investigative techniques and failure to exercise skill and care in conduct of surgery - Defendant denying negligence

Assessment of damages - Personal injury 51½ year old self-employed builder/developer

Legislation:
Nil

Result:
Plaintiff entitled to damages in sum of $52,863.85

Representation:

Counsel:

Plaintiff : Mr D R Clyne

Defendant : Mr P B O'Neal

Solicitors:

Plaintiff : Macdonald Rudder as agents for William Graham & Carman

Defendant : Minter Ellison

Case(s) referred to in judgment(s):

Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 452

Chappel v Hart [1998] HCA 55; (1998) 72 ALJR 1344; 156 ALR 517

F v R (1983) 33 SASR 189

O'Shea v Sullivan [1994] A Tort Rep 61,288

Percival v Rosenberg [1999] WASCA 31

Rogers v Whitaker (1992) I75 CLR 479

Whitehouse v Jordan [1980] UKHL 12; [1981] 1 WLR 246

X v Pal (1991) 23 NSWLR 26

Case(s) also cited:

Anderson v Bowden, unreported; FCt SCt of WA; Library No 970674; 4 December 1997

Holland v Hardcastle, unreported; DCt of WA; Library No D970403; 16 December 1997

Malec v Hutton [1990] HCA 20; (1990) 169 CLR 638

Maynard v West Midlands Regionals Health Authority [1984] 1 WLR 634; [1985] 1 All ER 635

Medlin v SGIC [1995] HCA 5; (1995) 182 CLR 1

Naxakis v Western General Hospital (1999) HCA 22

Newman v Nugent (1995) 12 WAR 119

Royal Perth Hospital v Frost, unreported; FCt SCt of WA; Library No 970069; 26 February 1997

Tai v Saxon, unreported; FCt SCt of WA; Library No 960113; 8 February 1996

Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327

Watts v Turpin (1999) WASCA 216

DEANE DCJ:

The issues

1 The plaintiff, Mr Nunn, was born on 5 September 1948 and at the time of trial was 51½ years of age. He is a self-employed builder who usually resides in Queensland and currently works in the Cairns area. The defendant, Mr Hardcastle, is an orthopaedic surgeon and a registered medical practitioner in Western Australia.
2 On 25 September 1992 Mr Nunn attended at Mr Hardcastle's rooms in Perth and was physically examined by Mr Hardcastle in relation to a complaint of pain in his lower back area.
3 At the conclusion of that examination it is alleged by the plaintiff that the defendant advised him that:

(a) the severe pain in the plaintiff's lumbar region of his spine would be overcome by the GRAF procedure;

(b) the GRAF procedure should be performed upon the plaintiff;

(c) the GRAF procedure was relatively new in Australia but had been performed in France for some years with a very high success rate;

(d) the defendant had performed the GRAF procedure many times with great success;

(e) the GRAF procedure had many advantages over lumbar fusion;

(f) there were very limited risks associated with the GRAF procedure and generally those risks were only associated with people who were overweight or unfit;

(g) following surgery for the GRAF procedure the plaintiff should be able to return to work as a builder after approximately six to eight weeks.

4 It is further alleged that as a consequence of Mr Hardcastle's advice the plaintiff agreed to undergo the GRAF procedure and arrangements were then made for this surgery to be performed at St John of God Hospital, Subiaco, on 22 January 1993. Relevant to this it is said that shortly prior to the plaintiff's admission to that hospital on 21 January 1993 his wife was advised by the hospital that there was no reservation for the plaintiff to have surgery performed there. The plaintiff claims that upon querying this with the defendant he was advised by Mr Hardcastle that he was experiencing problems with the management of the hospital over availability of obtaining an operating theatre and that consequently surgery would now be performed upon the plaintiff at Kaleeya Private Hospital in East Fremantle.
5 As a result of this the plaintiff says he was admitted to that hospital the following day for the GRAF procedure to be performed on him by Mr Hardcastle.
6 Having undergone the GRAF procedure on 22 January 1993 the plaintiff alleges that his symptoms have not been relieved or reduced as a result but rather they have increased such that the plaintiff now suffers from constant and severe pain in his lumbar spine. The plaintiff alleges that this pain state has been caused or alternatively contributed to by the negligence of the defendant.
7 It is said that at all material times as a consequence of the doctor/patient relationship which existed between the defendant and the plaintiff, the defendant owed to the plaintiff:

(a) a duty to undertake all necessary investigation procedures so as to properly diagnose the cause of the plaintiff's low back pain (these include pain blocks, myelogram, magnetic resonance scanning and nuclear scanning);

(b) a duty to perform the surgery on the plaintiff in a skilful and competent fashion as befitting his status as a specialist orthopaedic surgeon;

(c) a duty to fully and properly advise the plaintiff of all material matters such as to allow the plaintiff to make an informed judgment on whether or not to undergo the surgical procedures recommended by the defendant.

8 The plaintiff alleges that the defendant was negligent and in breach of the duty of care owed to the plaintiff in that:

(a) he did not undertake the appropriate procedures to identify the exact source of the plaintiff's pain before he performed the GRAF procedure;

(b) he performed the GRAF procedure whereby the plates and screws inserted by the defendant into the plaintiff's back under that procedure have not limited the plaintiff's movements or relieved pain in the region of his lumbar spine;

(c) the GRAF screw in the pedicle at S1 has partly breached the end plate;

(d) he did not inform the plaintiff either at the time of the examination on 25 September 1992 or prior to carrying out the GRAF procedure that the plaintiff would or might suffer further damage to his spine or exacerbation of the symptoms of pain in the lower lumbar region of the spine;

(e) he failed to fully and properly advise the plaintiff of all material matters so as to allow the plaintiff to make an informed judgment as to whether or not to undergo the GRAF procedure.

9 In relation to the defendant's alleged failure to advise the plaintiff of all material matters so as to allow him to make an informed decision whether to undergo the GRAF procedure or not, it is alleged that the failure encompassed a number of areas, namely failure to:

(a) properly or adequately inform the plaintiff of the scope of the operation he intended to perform upon him;

(b) properly or adequately inform the plaintiff of the possibility that the plaintiff may suffer further damage to his spine or exacerbate the symptoms of the pain in the lower lumbar region of his spine, as a result of the procedure;

(c) properly or adequately inform the plaintiff that as a result of the procedure, the plaintiff ran a risk of losing the efficient use of his legs and his spine;

(d) inform the plaintiff that the true reason why the operation could not be held at St John of God Hospital, Subiaco, was that between August 1992 and January 1993 the defendant's privileges to perform the GRAF surgery at that hospital was subject to a moratorium whilst an audit of the procedure was being conducted;

(e) inform the plaintiff that the GRAF procedure could lead to an increased rate of degeneration of the L5/S1 intervertebral disc;

(f) inform the plaintiff that the GRAF procedure could lead to a weakening of spinal muscles in the area of the spine in which the procedure was performed;

(g) fully and properly advise the plaintiff of the number of complications and nature of same in operations performed by him utilising the GRAF procedure.

10 As a result the plaintiff alleges that he suffers and will continue to suffer pain including the pain associated with undergoing the GRAF procedure and that he has suffered a loss of amenity of life. He further claims that as a result he has suffered economic loss and will continue to suffer such loss in the future. It is alleged that as a result of the pain he suffers and the physical condition in which he now finds himself, the plaintiff has from the time of his discharge from hospital in late January 1993 to date required care and assistance, in particular in the form of physical assistance from his wife on a daily basis. Finally, the plaintiff claims a considerable number of items by way of special damages.
11 The defendant Mr Hardcastle, denies that he informed the plaintiff that the GRAF procedure would overcome pain in his lumbar region and says that after explaining both the GRAF and conventional spinal fusion procedures to the plaintiff, the ultimate decision as to which should be performed was left to the plaintiff.
12 Mr Hardcastle admits that the plaintiff was informed that the GRAF procedure was relatively new in Australia and says the plaintiff was informed it had advantages compared to traditional fusion operations because it was less invasive. It is said that the general details of the GRAF procedure were explained to the plaintiff as was the fact that it was a technically difficult procedure which had certain complications.
13 Mr Hardcastle alleges that the plaintiff was provided with an information sheet setting out details in relation to the operation and further, the plaintiff was shown a spinal model illustrating both the GRAF procedure and the spinal fusion procedure. It is claimed that a range of possible complications which could follow from the GRAF procedure were explained to the plaintiff in some detail as set out in the further and better particulars of defence.
14 The defendant further says that he explained to the plaintiff that the best outcome of the GRAF procedure would see the plaintiff fully recovered with respect to wound healing within six to eight weeks post-operatively at which time the plaintiff may be able to return to work but would remain unable to lift objects of 20kg or more and he denies advising the plaintiff that he would be able to return in that time to his work as a builder.
15 It is the defendant's contention that if the plaintiff experiences the pain state alleged then it is caused or contributed to by the plaintiff's pre-existing lumbar spine condition resulting from a fall some eight years prior to the GRAF procedure which was performed in January 1993. Further, the defendant says that adequate pre-operative investigations were undertaken by him.
16 It was evident from the pleadings, the opening of the plaintiff's case and evidence as it unfolded during the course of trial, that findings of fact relevant in substantial part to issues of credibility would be central in determining a number of issues at trial.

The plaintiff's evidence

17 The plaintiff has been involved in the building trade for about 25 years and for the majority of that time he has been self-employed. A considerable time ago he worked as an articled clerk for about 2½ years but his main career has been within the building industry. When the complainant was about 30 years old he began to experience some problems with his back at the base of his spine but he managed to keep the problem under control by attending his chiropractor. Prior to this he said he had fallen off a horse when young and eight years prior to September 1992 he had suffered a fall from a jetty and sustained some cuts requiring suturing. He did not believe either of those events caused any significant injury to his back. The plaintiff denied that the latter fall led to nerve involvement causing paraesthesia at L4/5 area.
18 The problem did not improve and over time the plaintiff noticed that when he was laying blocks and concreting, which necessitated him bending over for extended periods of time, he experienced a burning sensation confined to the left lower side of his back. This was relieved by wearing inversion boots and hanging upside down for a period of time in the evening after work and also by the plaintiff ceasing to engage in activity requiring prolonged bending over.
19 Prior to the operation in January 1993 the plaintiff said he was extremely physically active in that he used to run regularly and play squash and golf when the occasion presented itself. He had a boat from which he used to scuba dive most weekends. He said he did not use medication to control his back pain and in particular he had a particular aversion to prescription pain killers.
20 The plaintiff said his back condition grew worse over time and he became concerned as he wished to continue to play a very active role in his building business. This required him being involved in doing onsite physical work as well as carrying out administration and drawing of plans in the evenings at home.
21 As a result of the contents of a particular television programme being brought to the plaintiff's attention by his wife, further enquiries were made and this resulted in the plaintiff and his wife and children travelling to Perth in order to consult with the defendant regarding the plaintiff's back condition. Prior to this trip the plaintiff, who said he was in two minds about the matter, went to a GP, Dr Wendy Wall, and obtained a referral to see Dr Clark, an orthopaedic surgeon, in Cairns. Mr Nunn said he was aware Dr Clark had a reputation for being anti-surgery and so he thought he would get an opinion as to what Dr Clark believed was wrong with the plaintiff's back before obtaining an opinion from the defendant. Dr Clark advised the plaintiff he should not have surgery but rather should consider becoming less physically active and avoid heavy physical labour. This advice did not appeal to the plaintiff who did not want to change his lifestyle or be forced into giving up work. He felt shocked by what Dr Clark told him. He said Dr Clark told him he did not think the plaintiff had an operable condition.
22 On 25 September 1992 the plaintiff and his wife, having arrived in Perth some days earlier, attended at the defendant's rooms where a history was taken. This consultation and what was allegedly said at the time is of considerable importance. The plaintiff said he advised Mr Hardcastle of his age and the fact that he had constant pain in one particular area. The plaintiff said he made it clear that he wanted to keep working in the construction industry for as long as he could. He was examined by the defendant, who advised him that he had excessive movement in the lower three levels of his spine and that a GRAF procedure would eliminate that instability and was appropriate for the plaintiff's condition. The plaintiff said he advised the defendant that he did not want to undergo spinal fusion and that in essence the defendant agreed this was contra-indicated where there were three levels of instability in the spine because it merely resulted in pressure being placed on the next level in the spine causing problems in that region. He said he was told by the defendant, in response to a question asked by his wife, that the procedure was new to Australia and had been done in France for about four years with a high rate of success and that the defendant's success rate in Australia, with respect to the operation, was excellent. The plaintiff said that the defendant did not advise him that he had a success rate using the GRAF procedure comparable to that following spinal fusion.
23 According to the plaintiff, Mr Hardcastle advised that only three of his patients had experienced problems after a GRAF procedure, one having a dropped foot and another having to have one of the pedicle screws re-positioned, but in all three cases the problems could be explained by the fact that these patients were not only obese and unfit but had failed to follow the post-surgery exercise regime. He said it was pointed out to him that he was fit and healthy and so was not at risk of such complications occurring. The plaintiff said these were the only complications mentioned by the defendant at that time. He said he was shown a model of the spine and how the implants worked and effectively how the procedure would be carried out.
24 Another advantage of the GRAF procedure as far as the plaintiff was concerned was that he was told that the recovery period following it was considerably shorter than that following a spinal fusion, and that within six to eight weeks after surgery he would be back at work. This feature attracted him to this type of surgery as he wanted to lose as little time as possible from work. He claimed that he was told by the defendant that the GRAF procedure would eliminate his back problem and that the plaintiff as a result would be pain free and could return to work doing all that he did before the surgery with the exception that he would not be able to lift more than 15 to 20kg in weight and would have to lift any objects using his legs rather than his back.
25 The plaintiff said Mr Hardcastle did mention that sometimes the screws were not precisely positioned and adjusting them required a minor operation but he said there was no mention that this may result in development of leg weakness. He said that although he appreciated this procedure would be performed under general anaesthetic, the defendant gave him to understand it was a minor operation. The only complications he said he was warned of regarding anaesthesia were in general terms and did not refer to any risk of death. The plaintiff agreed he was warned, however, of the possibility of wound infection. He said he was not advised that it was his decision as to whether he chose to undergo surgery or not.
26 It was the plaintiff's evidence-in-chief that if he had been told that a third of patients undergoing the GRAF procedure obtained good results after three months but a third required further surgery he would not have undergone the procedure himself. The main reason for this was because he claimed he was not in constant pain at the time but experienced pain only when he bent over for extended periods at work. Despite this he was still desirous of alleviating the problem if he could.
27 The plaintiff agreed that he had signed a document, Exhibit P2, being an undated consent form and although he knew that the GRAF procedure would be performed on particular levels of his spine he said that he did not read that part of the document indicating that he understood spinal surgery had associated potential complications which he accepted may occur to him. He also claimed he did not read that part of the document which stated "I further understand that spinal surgery may not relieve my pain and on occasion may create a problem or disability in itself". He said there was no discussion about this aspect of the matter other than that the procedure would fix his problem.
28 It was on this occasion the plaintiff said that arrangements were made for surgery to be carried out at St John of God Hospital (SJOG) in January 1993 to accommodate the plaintiff's desire to lose as little time from work as possible. January is the wet season in Cairns and therefore a time when construction and building work slows off.
29 The plaintiff and his wife returned to Perth shortly before the operation was scheduled in January 1993 in order for the plaintiff to have some facet block injections and a CT scan to measure the size of the pedicle screws that would be required. The plaintiff said he read the radiologist's report which he recalled stated that there was no evidence of instability at levels 3, 4 and 5 of his spine and when he brought this to the defendant's attention he was effectively told that radiologists do not always know whether or not that is the case.
30 The plaintiff could not say whether it was in September 1992 or January 1993 that he received Exhibit P1 - the GRAF procedure information sheet, but in any event he saw no need to read it as he said he had received all the necessary information verbally from the defendant in their consultation. He claimed he was never taken through the contents of Exhibit P1. He admitted signing but not reading Exhibit P2 and said its contents were not explained to him. He could not recall a great deal about the circumstances in which he signed it.
31 The defendant's wife, a registered nurse, worked in the defendant's rooms and assisted him as at 1992 and 1993. She recalled the plaintiff attending the rooms as he looked similar to someone she knew of the same name. Part of her duties was to act as a "backup" and counsel patients regarding their prospective surgery. She would explain to them what would occur during the surgery. Her recollection was that the plaintiff was one of the few patients who told her he was not interested in hearing any more information. She said this occurred in January 1993 not September 1992 because at the time of the first consultation it was not clear what specific surgery the plaintiff was going to undergo. She also gave the plaintiff the consent form and asked him to read it and sign it if he wished. She countersigned the document.
32 Furthermore, the plaintiff denied he had ever been shown by or discussed with the defendant the contents of a green ledger detailing operations and results of those operations carried out by the defendant. He claimed the defendant did not advise him that some patients who underwent the GRAF procedure had problems which were rectified by further surgery.
33 When the plaintiff learned that the operation was not to occur at SJOG Hospital but rather at Kaleeya Private Hospital, he said the defendant explained the change of venue by saying that he had problems with the management of SJOG Hospital and could not get a theatre when he wanted it so the operation would now occur at another hospital. In this regard the plaintiff said that had he known at the time there was a moratorium on the defendant performing the GRAF procedure at SJOG Hospital, he would not have undergone the procedure. In fact he said that he had misgivings on arrival at Kaleeya Hospital but that later that evening the defendant visited him and assured him that he did not have to undergo the procedure but if he did not do so in the future it would be too late to perform the GRAF procedure but rather the plaintiff would have to undergo spinal fusion. This information unnerved the plaintiff to such an extent that he said that he decided to proceed with the surgery despite feeling apprehensive. The plaintiff was cross-examined about a statement he gave his solicitors in August 1996 and conceded that he made no mention of this aspect of the conversation in that document. He also said his concern led him to telephone a friend in Cairns that evening to discuss the matter and obtain reassurance.
34 Post-operatively, whilst still in hospital, the plaintiff said he suffered from constipation and had no sensation in his legs for some days. In addition, he said the wound at the operation site constantly wept and required daily changes of dressing, for which he had to return to the hospital after he was discharged. He could not recall if he advised the defendant at this time that he felt very good in himself.
35 The plaintiff gave evidence that his return flight to Cairns was extremely uncomfortable. As he lived only 50 yards from the beach he eventually attempted to engage in an exercise regime by crawling from his home to the beach each morning on his hands and knees, however, he could swim only a short distance before his back would lock up. He said he had to call his wife to come and drag him out of the water as he could not get out without assistance. Thereafter he complained that he was in great pain in his back and both legs, he was unable to ride a bike and experienced difficulty on walking. He continued to experience problems with constipation and was unable to sit on the toilet. This he found both exceedingly uncomfortable and embarrassing. He said there was little he could do for himself, so his wife had to help him get mobile in the mornings as well as assist him to and from bed and to dress.
36 He attempted a return to work but said this was extremely difficult and he was generally confined to carrying out administrative tasks rather than being involved in onsite work. During this time he was taking Aspirin and Panadol to deaden the pain and he was contacting the defendant by phone and fax to advise him of his ongoing problems.
37 According to the plaintiff, he had considerable difficulty in contacting the defendant but eventually it was arranged that he would be reviewed by the defendant on Hamilton Island near Cairns whilst the defendant was attending a medical conference there. This he said was at the defendant's suggestion in order to save the plaintiff the cost and inconvenience of travel to Perth. The plaintiff said that examination was somewhat superficial and although his condition improved after that he still had some problems with lifting, returning to work and driving. He continued to contact the defendant by fax with a view to obtaining some facet blocks which he understood would be administered in an attempt to isolate or locate the source of his ongoing pain. He had this treatment in Perth.
38 By November 1993 the plaintiff said his pain state had not altered and was alternatively on the left side and right side of his lower lumbar spine as well as elsewhere. In response to this complaint he received a letter from the defendant requesting up dated x-rays before further suggestions were made. Further x-rays were sent by the plaintiff to the defendant under cover of letter dated 11 April 1994 advising also that the plaintiff's situation had not improved. At that time he claimed he was able to undertake only light work and could do very little.
39 It was about this time that the plaintiff said he saw a promotion for the 60 Minutes television programme which mentioned the defendant and the nature of its content was such as to cause the plaintiff to ring the defendant the next morning to obtain an explanation for, what appears to have been, criticism of the GRAF procedure in the programme. The plaintiff explained that the defendant simply said the media were in effect trying to get at him and the plaintiff may have to have the bottom implant taken out and repositioned. The plaintiff indicated this was totally unacceptable and shortly thereafter by letter dated 20 April 1994, Exhibit P10, he terminated his relationship with the defendant and requested the return of his files, medical records and associated items.
40 The plaintiff said he was still unable to return to his former occupation and he became short tempered both with customers and staff. This meant, he said, that more of a burden was placed on his wife in relation to the running of their building business and this was in addition to her other domestic responsibilities. He said he is also ill tempered towards his wife and family. The plaintiff claimed that his business now only exists due to the efforts of his wife. Given that the plaintiff was unable to carry out the work himself, he said he was obliged to hire more subcontractors which had not been his policy before the operation, when he had 10 permanent tradesmen and apprentices. That group dwindled substantially after the operation and he said that the work of his company dropped off considerably. The plaintiff said he has not hired someone to replace him as an onsite supervisor and worker because such a person would be very hard to find. He has made some verbal enquiries in the building industry in Cairns but has not received an encouraging response. It does not appear he has advertised the position in the media or sought assistance from a recruitment agency.
41 After seeing the 60 Minutes television programme the plaintiff claimed he was determined to find out what had gone wrong and for that reason he obtained a referral to see a specialist spinal surgeon, Professor Fraser, in Adelaide. Although the plaintiff's wife accompanied him to this appointment she said the interview was "a blank" in her mind.
42 As a result of that consultation the plaintiff's recollection was Professor Fraser intimated to him that in his view the GRAF procedure was not appropriate for his problem and that a discography should only be carried out if the plaintiff was considering having a spinal fusion operation. Despite the plaintiff's solicitors advising Professor Fraser, in a letter of 1 December 1994, Exhibit D6, that they were instructed by the plaintiff that Professor Fraser's prognosis was that Mr Nunn must have the implants removed, several discs removed and other discs fused in order to achieve pain relief, the plaintiff could not recall telling his solicitors this. Professor Fraser in his evidence said he never gave this advice to Mr Nunn and he did not advise patients in such terms. In Exhibit D7, a report dated 23 December 1994 to the plaintiff's solicitors, Professor Fraser said that he told the plaintiff that as his symptoms were identical to his pre-operative complaints it was most unlikely that removal of the internal fixation device would result in reduction of pain.
43 The plaintiff then travelled to Perth and consulted with Mr Vaughan, a neurologist, who suggested that the plaintiff undergo some further tests in Perth. He also consulted Dr Askin, an orthopaedic surgeon, in Brisbane, who performed no tests and gave him no treatment. The plaintiff's evidence was that since seeing Mr Vaughan his pain state has remained the same with the result that his physical and social life is very restricted in many respects. He said that now he has to get out of bed in the mornings on his hands and knees and have his wife massage his back to enable him to become mobile. She also has to assist him to wash his feet in the shower. The plaintiff estimates that his wife spends a couple of hours a day assisting him at home and she has to have help in the house because she is now more consumed in the running of the business. He says he is unsure what will now happen to his business and now accepts that he will not realise his ambition of working as a builder until 60 years of age.
44 Whilst the plaintiff can still mow his lawns he says he is now unable to do any gardening involving bending or lifting and that was something that prior to the operation he used to engage in not only about his own home but also in the course of his business by virtue of landscaping particular properties. He now does very little by way of exercise and, according to him, he cannot run, play squash or golf and he has sold his boat as he no longer goes scuba diving. He says that the pain he experiences comes from the same site as prior to the operation but now it is constant and more severe, accompanied by a tearing sensation at times. His back still locks up on occasion.
45 In his evidence the plaintiff was referred to Exhibit P11 containing a number of copies of cheque butts, tax returns and financial records for his business for the period 1990 to 1998. He operates that business as a sole trader and explained a taxable income of $100,000 in 1995 as being unusual in that it was higher than some of the preceding years because he said he became involved with a developer and architect, Mr Taylor, who offered him a contract to be involved in a building project in Cairns. The project involved a contract of some magnitude with construction beginning late 1994 and concluding in 1996. According to the plaintiff, he was involved more on the administrative side while Mr Taylor spent time on the construction site. However, as Mr Taylor now resides in the USA the plaintiff inferred that the ability to work in this way has come to an end.
46 In relation to Exhibit P11 the plaintiff explained that a number of the cheque butts related to visits to various medical practitioners, including the defendant, for the purposes of consultation. Those expenses covered not only the cost of consultation and associated tests but also airfares and accommodation where the medical practitioner did not reside in Cairns. A claim was made for expenses relevant to a visit to Hamilton Island where after his operation the plaintiff was reviewed by the defendant. Claims for the cost of physiotherapy on occasion were also made. The plaintiff claimed for expenses in relation to a Dr Knott, who performed a haemorrhoid operation upon him in 1994 and Dr Watson, who was the anaesthetist at that operation. According to the plaintiff, the operation to remove haemorrhoids was necessary and came about as a result of constipation following upon the surgery performed by the defendant. There was no evidence from Dr Knott or Dr Watson in this regard.
47 The plaintiff also claimed expenses in relation to a referral to a Dr Mousa who performed an endoscopy on the plaintiff who claimed he was suffering problems with his digestion. There was no evidence from Dr Mousa on this aspect of the matter.
48 In cross-examination the plaintiff insisted that his back pain has been constant and more severe since his operation in January 1993 and that as a result he has not been attending worksites regularly, and since about that time he has also ceased exercising because he says he is physically unable to do what he did before. He said he still works round about 60 hours a week but he can achieve only half of what he previously achieved in that time since his operation, in part because his concentration span has shortened.
49 The plaintiff made a point of saying that he avoids situations where he has to sit for long periods of time and when he drives a car he has to stop every half hour or so. According to him, he is not keen on air travel and so tends to avoid it. This assertion has to be contrasted with particular evidence from both the plaintiff and his wife. Certainly it would appear that as far as the plaintiff was concerned it was necessary for him to fly to Hamilton Island to consult the defendant and to also fly to Adelaide in May 1994 to consult Professor Fraser. The plaintiff also flew to Brisbane for an appointment with Dr Askin on 1 June 1998. From there, however, it would appear that the plaintiff travelled to the Gold Coast as he was apparently there on 5 June 1998 and he did not deny that he had a hire car during that period. He and his wife then returned to Brisbane where they stayed at the Carlton Crest Hotel.
50 It was clear from his wife's evidence that in 1997 she and the plaintiff flew from Australia to Los Angeles and went from there to San Francisco and then to Utah and then onto San Diego and Mexico before returning home. They were away for about five weeks and the purpose of the trip seems to have been mainly for pleasure. The plaintiff's wife said that they hired a car and she drove from San Francisco to Utah which took a long time and in fact they had a rental car for most of the period of their time in the United States. The distance between San Francisco and Utah is in excess of 700 miles. It is commonsense that the plaintiff was with his wife both on those plane trips and in the rental car.
51 In late May 1998 the plaintiff and his wife flew from Cairns to Sydney to Kuala Lumpur to attend some housing industry awards and they then returned to Sydney before flying to Cairns and back to Brisbane to consult Dr Askin. In late February early March 2000 the plaintiff and his wife flew to Bali for the purpose of the plaintiff's wife having a holiday. This body of evidence does not, in my view, support the plaintiff's contention that he tends to avoid air travel, rather it is to the contrary.
52 As the plaintiff said he did not have a significant back problem before undergoing surgery, he could not recall a time prior to surgery where he had to get out of bed on his hands and knees and have his wife massage his back to encourage mobility. His evidence was that this occurred after his surgery in January 1993. In the light of this evidence it is very difficult to explain why Dr Wall, the GP who wrote a letter of referral dated 4 September 1992 (Exhibit D8) on the plaintiff's behalf to the defendant noted "his main complaint is the continual pain and locking of his back", and "... he is now constantly troubled", being a reference to the plaintiff's back problems. Dr Wall also observed, "early mornings when getting out of bed he has to roll out onto all fours and slowly mobilise". The plaintiff said he was unsure where Dr Wall obtained the information referred to in her letter that the plaintiff appeared to have some nerve involvement with paraesthesia at L4/5. As for being constantly troubled the plaintiff said that referred to the fact that he had problems everyday if he was physically working. In the end he could not recall what he told Dr Wall. He agreed he must have told her about the manner in which he had to get out of bed in the mornings but in his evidence-in-chief he said he did not have that problem before the operation.
53 This is a somewhat dramatic method of rising in the morning and certainly is suggestive of considerable pain state in the back. It is difficult to understand how the plaintiff could be confused or unsure when he commenced to get out of bed in this manner. If he was doing so before the operation in January 1993, which the contents of Exhibit D8 certainly suggest, then it would seem that the plaintiff's back condition, or the pain in relation to his condition, was quite severe in nature before that surgery.
54 The plaintiff conceded that it was his writing on an outcome score sheet dated 25 May 1994, Exhibit D2, relevant to his consultation with Professor Fraser. There he indicated that his pain was at level 8 on a score from 0 to 10 and that he had to rest a little during the day because of pain. He indicated he was working full-time at his usual job but explained in evidence that he meant he was working full-time in an administrative capacity at that stage.
55 He further indicated that he was able to undertake sports or active pursuits much less than usual but that he could undertake household chores or odd jobs normally. In response to his answer that his back pain affected his sex life mildly or not much he said that was probably because he was not engaging in sexual activity at that time and that is why he gave the answer he did.
56 The plaintiff claimed that in 1994 he was in constant pain but nonetheless indicated in that document that walking did not affect his back pain very much, travelling was moderately difficult as was sleeping, but he did not experience much difficulty with dressing excluding being able to put his socks and boots on. A patient history sheet, Exhibit D5, was also completed in part by the plaintiff, although he did not recall it particularly.
57 In relation to question 2 on Exhibit D5 a note is made, presumably by Professor Fraser, "same pain now as before the GRAF - no change", and in respect of question 8 it is said that the pain became worse upon sitting and lifting and it restricted the plaintiff from working. Curiously the answer to question 15 in Exhibit D 5 would suggest that Professor Fraser was given information, again presumably by the plaintiff, that he exercised on a regular basis. Despite the answer to question 2 the plaintiff maintained that his pain state was not the same both before and after the operation in that it was considerably more severe and constant post-operatively.
58 Exhibit D9 is a report dated 12 December 1994 from Dr Clark to the plaintiff's solicitors in which Dr Clark says that the plaintiff stated that he had experienced lumbar pain for several years, but during the previously three or four years that pain, particularly on the left side, had become more severe and "constant". Activities such as bending, leaning, crouching and shovelling aggravated the plaintiff's symptoms. The plaintiff claimed that he meant aggravated not in the sense that his symptoms were made worse but rather that the activities themselves caused pain. Dr Clark had no opinion on the GRAF procedure having never performed it. He was unable to comment upon its effect on the lumbar spine or its long term effects.
59 When the plaintiff consulted the defendant on 25 September 1992 he was required to supply answers to an initial assessment questionnaire. In that document, Exhibit D10, the plaintiff indicated that he had a pain level of 8 on a scale of 1 to 10 which is exactly the same level of pain he advised Professor Fraser he suffered two years later in May 1994. Relevant to Exhibit D10, the plaintiff also indicated that at work, home, in the garden or car, socially and in the sporting arena he did everything and put up with the pain. He was unable to explain how a mark on a diagram in that document indicating numbness in the left buttock came to be there as he said he never experienced that particular problem.
60 On 22 March 1993 the plaintiff sent the defendant a fax, Exhibit P4, stating in part, "I am still experiencing bad pain on my lower left side almost the same as it was prior to surgery". In that document the plaintiff advised that he had only started doing light work and was experiencing acute pain on bending just the same as previously. Although the plaintiff made mention of having difficulty squatting at that time, he was uncertain as to why he would have been carrying out such an activity then as he denied he was engaging in any concreting work or work which required a squatting action.
61 The plaintiff agreed that as at June 1993 it may have been the case that his back was somewhat better than prior to the operation, but said if that was the case it was because he was not doing the same type of work as before the operation, in fact he was a little unclear about what exactly he was doing at that time.
62 In a further fax to the defendant of 29 June 1993, Exhibit D12, the complainant advised "I am back almost as bad as I was before the operation" and "I am as restricted in performing work now as I was last year ...". In explanation the plaintiff agreed he must have been doing the same type of work as previously but insisted he was avoiding bending and concreting at that time.
63 In yet another facsimile, Exhibit P6, the plaintiff advised the defendant "since last seeing you, I haven't experienced any less pain ...". He further claimed that he was experiencing the same sort of pain as prior to surgery but he had noticed that the pain now alternated between the lower left lumbar region and the lower right lumbar region of his back. In Exhibit P6 he said was just as bad as he was before with reference to the pain, and furthermore he was now considerably out of pocket as a result of medical and travelling expenses.
64 Ms Susan McCullagh (who is also known as Mrs Nunn), the plaintiff's de facto wife of 13 years, said in her evidence that she had noted the plaintiff to experience back pain on bending over at work when doing tasks such as concreting. Despite specific cross-examination on the point her evidence was vague as to when she first noted that the plaintiff suffered back pain. In the past the plaintiff had sought chiropractic treatment for the problem every two to three months but the problem became more frequent. It was against this background that when she saw a particular TV programme she believed the GRAF procedure which was mentioned in it may assist her husband. After discussing it with the plaintiff, she made further enquiries as a result of which she and the plaintiff, as well as their two teenage daughters and 2 year old daughter, travelled to Perth in order to consult Mr Hardcastle.
65 Ms McCullagh said she was present at the consultation on 25 September 1992 where she said the plaintiff made it clear to the defendant that he wished to be pain free and to continue to work in the building industry doing tasks such as concreting. She said the plaintiff did not want a fusion and in the light of this the defendant advised he had had success with the GRAF procedure.
66 Ms McCullagh said she enquired of the defendant if he had experienced any failures relevant to that procedure and that she and her husband were advised that three patients, due to obesity and failure to follow post-operative regimes, had not achieved a good result. However, she claimed the defendant said he had done many such operations and had a good success rate. She claimed the defendant assured the plaintiff that in effect he was a good candidate for the procedure and would be fine. She confirmed that the GRAF procedure was explained by the defendant to the plaintiff with reference to a model of the spine.
67 According to her, the plaintiff was assured by the defendant that the GRAF procedure would resolve the plaintiff's back problem totally and that as a result he would be pain free and could continue to work as a builder. Further, she said, the defendant specified a six to eight week recovery period after which time he told the plaintiff he would be able to return to work.
68 Ms McCullagh impressed me as being a witness who was doing her best to recall the events of some years ago but on her own evidence she did have some memory problems and could not recall a great deal about what was said at the consultation on 25 September 1992. Since that time I accept that she has been under considerable emotional and physical stress in her personal life, much of it connected to the plaintiff's situation and behaviour and this has resulted in Ms McCullagh experiencing her own health problems. She has experienced panic attacks in the past for which she has been prescribed medication, Aropax, which she explained has had some adverse physical and emotional effects upon her. It is difficult to reconcile her specific recollection concerning the events of the plaintiff's dealings with the defendant with her somewhat vague recall regarding other events, for example, the visit to Professor Fraser.
69 At the time of that consultation Ms McCullagh said there were no verbal warnings issued by the defendant and no specific mention of nerve damage as far as she could recall. She believed that the date of 22 January 1993 for surgery was set at the time of the September 1992 consultation.
70 In January 1993, while still in Cairns, Ms McCullagh contacted SJOG Hospital to make arrangements for her husband's admission and was informed by someone there that no reservation for surgery had been made for the plaintiff. She was then told by someone at the defendant's rooms that the operation would now be carried out at Kaleeya Private Hospital in Fremantle.
71 Ms McCullagh's evidence was at odds with that of the plaintiff in the sense that she said she made no reservations for her accommodation near SJOG Hospital before travelling to Perth and there was no suggestion in her evidence that either she or the plaintiff were upset by accommodation arrangements having to be altered at the last moment. She claimed that Mrs Hardcastle informed her that the operation would not be carried out at that hospital as the defendant could not get rooms or theatres at that place when he wanted them.
72 It was Ms McCullagh's evidence that upon admission to Kaleeya Hospital the plaintiff was very nervous and so she contacted the defendant who then visited the plaintiff the night before the operation and in her presence advised the plaintiff that he did not have to have the GRAF procedure, but if the plaintiff did not do so he would be back in three to four months and would probably then have to have a fusion.
73 Unlike the plaintiff, Ms McCullagh's recollection was that after his wound began to weep she changed his dressings on a daily basis at the hotel and that after the plaintiff's discharge they did not return to Kaleeya Hospital for any reason. Although she recalled the plaintiff attempting to undertake exercises upon their return to Cairns, including going to the beach and doing laps, she made no mention of having to go down to the beach herself and pull the plaintiff from the water because he was unable to get out without assistance. Her recollection was that the plaintiff would return to the house from the beach in a state of pain.
74 Ms McCullagh said that she bears an additional workload as a result of the plaintiff's medical condition and that she now has to have the assistance of a housekeeper and ironing lady, particularly as the plaintiff is no longer able to assist in domestic chores as he did before his operation. She said in the mornings the plaintiff awakes and sits on the side of the bed and it is either at that point or when he lies down on the bed that she rubs his back to encourage mobility. From time to time she has to assist the plaintiff to dress by putting his shoes and socks on. She gave no specific or detailed evidence as to daily assistance which she gives the plaintiff in their domestic situation, or how many hours per day she devotes to assisting the plaintiff in this manner.
75 Her workload in the business she said has also increased since the plaintiff's operation in that although she has no building experience she now carries out many more site visits and she continues to be responsible for designing floor plans and doing the interior design work which were her responsibilities prior to the plaintiff's operation. As against this, however, she told the Court that she has not been into the office for the past year as she just gave up and did not want to do any more for the plaintiff.
76 Her evidence was that prior to surgery as far as she was concerned the plaintiff's pain was not severe or constant but rather manifested itself after he had been working particularly physically hard at work doing tasks such as concreting. She was somewhat vague about the plaintiff's manner of getting out of bed in that although she confirmed that he sometimes has to get out of bed on his hands and knees since his operation she could not recall if that was the case before the operation. She recalled massaging his back from time to time prior to his surgery in January 1993.
77 Mr Rick Rykers, a self-employed steel fabricator, first met the plaintiff in March 1992 when he was setting up his own business and looking for contacts in the construction industry. Since that time he has had regular contact with the plaintiff and has worked on site with him. His evidence was that prior to the plaintiff's operation in 1993 the plaintiff was physically active on the building site and he assisted with the lifting of heavy steel beams from time to time when a crane was not utilised. The plaintiff also carried out concreting, block laying and all of the normal physical work associated with being on a construction site. From the plaintiff's facial expression prior to his surgery Mr Rykers believed the plaintiff suffered slight twinges at times. His evidence was that after the surgery the plaintiff suffered a dramatic and drastic alteration in his ability to be able to do physical work on site. It must be noted that although Mr Rykers gave evidence that the plaintiff could no longer assist to lift steel beams weighing up to 23kg per metre this simply demonstrates that as per the advice given pre-operatively he is not to lift weights over 20kg. This limitation in combination with facial expression suggested to Mr Rykers that the plaintiff was in pain and is now limited to supervisory and administrative work.
78 In his evidence Mr Rykers confirmed the plaintiff's assertion that he avoids air travel unless it is necessary and said he was aware of one air trip the plaintiff took to Horn Island in Cape York in order to do a building job. He also said he believed from information he had been given that the plaintiff had flown overseas to a Housing Industry Association Award night but had no details. Mr Rykers works relatively frequently with the plaintiff and derives about 10 per cent of his work from him yet he was unable to recall, until prompted that the plaintiff had travelled to the United States in 1997 for about five weeks. He was never aware of the plaintiff's business having no work at all although he conceded that in the wet season the plaintiff's work may slow down. Mr Rykers was talking about his observation of events which began a considerable number of years ago and I do not accept his assertion that his memory of events since 1994 had not faded over time, particularly as his recollection of the plaintiff's travel from time to time was somewhat hazy.
79 Mr Brett Bettini became apprenticed as a carpenter to the plaintiff in 1988 and qualified in January 1992. Since that time he has remained in the plaintiff's employment. He was aware that the plaintiff underwent surgery and was reminded that it was seven years ago after speaking to the plaintiff's solicitor shortly before giving evidence. He noted that the plaintiff was physically involved in the building industry prior to surgery, although he suffered pain from time to time. In his view after the surgery the plaintiff slowed down considerably and was generally confined to carrying out administrative and supervisory work. He is no longer able, according to Mr Bettini, to do heavy work on site such as assisting to hang heavy doors. It would appear that Mr Bettini was only very recently requested to give evidence and he was somewhat unclear about the plaintiff's periods of travel overseas, although he believed he went to Bali a few years ago and Malaysia in 1998. He could not recall any other overseas travel including the trip that his employer, the plaintiff, took for five weeks to the United States in 1997. He was not aware of his employer's absence from work during that period of time and was a little vague concerning the trip to Horn Island to work with the plaintiff.
80 As to the plaintiff's business, although Mr Bettini is not privy to the plaintiff's books of account he could say that there was always work available for him albeit that the plaintiff's workforce had diminished in size since he first began his apprenticeship with him. He was never aware of finishing a job with the plaintiff and having no further work to go to. Mr Bettini impressed me as being somewhat vague in his recall. It is surprising that having worked closely with the plaintiff for over 10 years his observations were not clearer and more detailed. It must be noted, however, that given his long term relationship as an employee of the plaintiff in combination with being asked only recently to recall events that occurred some years ago Mr Bettini was in a difficult position in giving evidence.
81 Neither Mr Rykers nor Mr Bettini gave any evidence as to a change in the plaintiff's behaviour such as irritability or ill-temper which was present after but not before his surgery.

The medical evidence

82 Mr Vaughan, a neurosurgeon of considerable experience with a special interest in spine surgery and pain management, was called on behalf of the plaintiff. He reviewed the plaintiff in 1998 and prepared a number of documents, being Exhibits P13, 14, 15 and 16, relevant to his assessment of the plaintiff and his medical condition. The plaintiff presented complaining of back pain, particularly in the lower back area spreading to other parts of the body. Mr Vaughan ordered x-rays to detect abnormal function and a myelogram to show the nerve roots. Despite these tests Mr Vaughan was uncertain as to the cause of the plaintiff's pain. He suspects that it possibly involves the joint on the left of L4/5.
83 Mr Vaughan said he would not perform a spinal operation without knowing or identifying the abnormality to be addressed and given the wide range of pre-operative tests and investigations that are now available he considered it to be unusual to carry out what might be described as exploratory surgery.
84 He had some difficulty in saying what type of tests in 1992 or 1993 would have been recommended to locate the source of the pain of which the plaintiff complained. This exercise involves a degree of retrospectivity in the sense that it is inevitable that one's judgment will be affected by knowledge gained in hindsight. Generally he would have thought that both plain and functional x-rays would have been recommended and perhaps a myelogram as distinct from magnetic resonance imaging (MRI) which was not as freely available as now. It would have been reasonable to order both CT scans and facet blocks, which is indeed what the defendant did.
85 Although discography was a possible pre-operative investigative tool available at that time Mr Vaughan had some reservations about its value as it is an invasive procedure and carries with it risk of complications. It is for this reason that Mr Vaughan rarely uses discography and then only in specific instances.
86 His evidence was that from a personal viewpoint he considered it unlikely that the GRAF procedure would have helped the plaintiff, given what he knew of his symptoms of pain and possible spinal instability in 1992. Mr Vaughan was at pains to stress that such a view is not to condemn the GRAF procedure but he feels that its role is uncertain and it is not a common procedure in Australia. There are a variety of spinal stabilisation techniques available and the GRAF is but one of them. Unlike spinal fusion the GRAF procedure does not completely lock up a person's back and in that sense it allows a degree of flexibility in the back post-operatively. However, on the information available to him, Mr Vaughan queried whether the plaintiff's back pain state in 1992 was too generalised and his spinal instability too extensive to positively indicate that a GRAF procedure was warranted and appropriate.
87 Mr Vaughan's opinion was similar to that of Dr Clark in that he believed the plaintiff's condition would be best treated conservatively by exercise and perhaps injections for pain relief. He conceded that opinions vary among both spinal surgeons and neurosurgeons as to how back pain should be diagnosed and treated.
88 In 1998 when Mr Vaughan examined the plaintiff, he concluded that an MRI scan would not be of assistance in isolating the source of his pain as the metal screws in the plaintiff's spine would distort the result of such testing. In his view all that remains as a possible means of detecting the cause of the plaintiff's problem are further functional x-rays, further facet blocks or discography which he would not particularly recommend and which is now certainly less in vogue than in the past.
89 Mr Vaughan would not necessarily recommend removal of the GRAF as it is a not insignificant procedure which involves muscle dissection and carries with it a risk of further injury and complications. He considered that if one were to perform further surgery of this type then it would be preferable to isolate the cause of the plaintiff's current problem so it could be addressed surgically at the same time as the removal of the GRAF if that were to occur. In Mr Vaughan's opinion the plaintiff will continue to experience deterioration in his spine.
90 He considers that as the cause of the plaintiff's pain is not neurological then "success" in his case would be measured by a decrease in his pain level. Complete pain relief, according to Mr Vaughan, is rare in cases of spinal fusion, although a failure to achieve even partial pain relief after surgery does not mean that the initial diagnosis of the problem or ensuing surgery is incompetent. Regrettably as far as the plaintiff is concerned Mr Vaughan felt that where there is a long history of back pain it is often the case that surgical intervention is less likely to rectify the cause of the pain.
91 It is alleged by the plaintiff that one pedicle screw slightly penetrated the plate at S1 and in relation to this Mr Vaughan said that it is a matter of surgical judgment where the pedicle screw is positioned. It may be positioned close to the outside to obtain the best hold but in the end the position of pedicle screws varies from side to side. Sometimes a plate is placed on either side of the vertebra to achieve greater hold and stability. In this case as far as he is able to ascertain there is no suggestion that the penetration of the plate at S1 has caused any impingement.
92 Finally, Mr Vaughan gave some very general evidence concerning dealing with patients who are about to undergo surgery and those patients who present as the best candidates for surgery. In his experience it is the case that whilst a medical practitioner may explain in detail the proposed surgery frequently what patients hear, understand and retain may be quite different from what they are told. Similarly in his evidence Professor Fraser, another orthopaedic surgeon, said some patients are able to recall a reasonable amount of information while others have a distorted recollection of it. Those patients who are motivated and not engaged in litigation are in Mr Vaughan's view the best candidates for successful surgery.
93 Dr Ruff, an orthopaedic surgeon based in New South Wales, reviewed the plaintiff in Perth in February 1999 at the request of the defendant's solicitors and prepared a report dated 24 April 1999, Exhibit P17. He was called by counsel for the plaintiff.
94 The plaintiff gave Dr Ruff a history very similar to that contained in his sworn evidence. Like Mr Vaughan, Dr Ruff conceded that there is a division of opinion among orthopaedic surgeons as to whether or not surgery assists back pain, including pain caused by spinal instability syndrome. Dr Ruff, again like Mr Vaughan, is somewhat conservative in his approach and tends to avoid surgery if possible. He does not consider that most radiological tests including MRI are particularly accurate in diagnosing the cause of back pain where degenerative changes are the suspected cause of such pain. For this reason he agreed that considerable emphasis is placed on the surgeon's clinical judgment of a particular patient and their circumstances. Discography in his view is a more accurate indicator of the cause of pain though he does not often utilise it because of his conservative attitude towards surgery and because it has associated risks to a patient.
95 In his experience most spinal surgery is proceeded by some form of imaging although MRI is used where back pain results from degenerative disease in the spine usually only when spinal fusion is contemplated. This is more to exclude the need for fusion rather than to confirm it. It tends to be used less frequently where a GRAF procedure is proposed because the concern in that situation is with controlling degeneration of the spine rather than considering degenerative processes elsewhere.
96 On presentation he noted the plaintiff to be tanned and of strong build which was suggestive of either carrying out physical work or at least doing some form of exercise in order to maintain fitness. Dr Ruff's review of correspondence associated with the plaintiff's treatment suggested to him that there was evidence of mild degenerative changes in the plaintiff's lumbar spine prior to surgery but nothing more significant than that. He also said that while the pedicle screw may have breached the lumbosacral end plate that activity has not caused medial or inferior excursion causing any of the adjacent nerve roots to be compromised. In his view the plaintiff's presentation was consistent with his complaints and symptoms and he believed that the plaintiff's current incapacity was partly due to the surgery performed by the defendant. Nonetheless the plaintiff in his view had a pre-existing medical condition which also contributed towards his incapacity. The exact nature of this condition has not yet been diagnosed despite it being present for a considerable number of years.
97 Although in his report Dr Ruff commented that the plaintiff may require further surgery including removal of the GRAF followed by provocative blocks in his lower axial skeleton in an attempt to identify the cause of his pain, in evidence he said that one would not necessarily have great confidence that such procedure would in fact improve the plaintiff's pain state. Such investigations may at least indicate whether that state could be improved. Based partly on what he was told by the plaintiff and partly on his physical observations of the plaintiff, given that he now has radicular involvement in S1 nerve roots bilaterally which he did not have before surgery, Dr Ruff considered that the plaintiff had suffered an additional loss of function as a result of the operation in the order of 10 per cent of his whole person. Based wholly on what he was told by the plaintiff, Dr Ruff concluded that the plaintiff's symptoms have had an effect on his ability to participate in social, recreational and sporting activities as well as being incapacitated to a degree that limits his ability to perform work.
98 On the other hand, Dr Ruff concluded that the plaintiff did not require any assistance in his daily activities involving washing, toileting, grooming or dressing. The plaintiff could not be certain whether he had informed Dr Ruff that he needed assistance to put on his boots and socks but Dr Ruff said he would not have reached the conclusion that the plaintiff was totally independent in this regard if he had have been given such information and his recollection is that he would have asked the plaintiff questions about such matters. In the light of this it would seem that the plaintiff simply did not convey that information to Dr Ruff.
99 The only medical witness called on behalf of the defendant was Professor Fraser, a specialist spinal surgeon of considerable experience whose practice is based in Adelaide. He confirmed that he reviewed the plaintiff in Adelaide in May 1994 pursuant to a referral from Dr Wall. It was about that time that Exhibits D2, D3, D4 and D5 came into being. According to Professor Fraser, Exhibit D3 relating to his physical examination findings regarding the plaintiff was a document completed in the presence of the plaintiff. On the other hand, the bulk of the document Exhibit D2, being an outcome score document, was filled in by the plaintiff as was much of Exhibit D5, the patient history form. Professor Fraser said that he did go through the location of the pain on the drawing in Exhibit D5, which is the drawing where the plaintiff said he did not place the pain mark in the left buttock area and he was unable to say who did. The evidence certainly does not suggest that Professor Fraser placed that mark there.
100 Professor Fraser's recollection was that as a result of his discussion with the plaintiff, he understood that his level of pain after the GRAF procedure was similar to that before the operation and that a letter dictated by him in the plaintiff's presence indicated that the pain had not been altered by the procedure but had remained the same. He advised the plaintiff that if further surgery were to occur he considered it appropriate that it be preceded by a lumbar discography in an attempt to localise the source of the plaintiff's symptoms because he did not believe that the cause of the plaintiff's pain had been sufficiently diagnosed. Localisation of the symptoms in Professor Fraser's opinion is important as it can confirm whether or not surgery is appropriate in the circumstances. When Professor Fraser reviewed the plaintiff, he was not convinced that his condition warranted a spinal fusion and therefore there would be no need for a discography to be performed at that time.
101 It was difficult for Professor Fraser to say whether or not he considered that in 1992 he would have recommended the plaintiff undergo surgery. Such a decision is based on a wide range of factors but were surgery to be considered he believed that it should have been preceded by investigation in the form of an MRI scan and discography to isolate the symptoms. He would not have favoured a three level fusion procedure at that time. In any event whilst a fusion may provide an opportunity whereby a patient's symptoms are improved it does not cure or rectify the condition causing the symptoms. Although a fusion might alleviate or eliminate symptoms at one level it can result in transfer of stress to other levels causing symptoms and pain at that site.
102 Professor Fraser said he would not have offered a GRAF procedure to a patient in late 1992 or in 1993 as he did not believe that it had been tested sufficiently at the time and he would only have used it as part of a randomised controlled trial in conjunction with a form explaining the various risks to the patient before obtaining an informed consent. Pedicle screws are used in a range of surgery involving fixation although they are routinely used in spinal surgery. Professor Fraser explains the associated risks of nerve damage and possible infection to the prospective patient. Although he believed it was possible that the position of the left sacral screw may have accelerated degenerative changes within the L5/S1 intervertebral disc, Professor Fraser did not consider that to be the case in May 1994 when he reviewed the plaintiff. He could not exclude the possibility of ongoing spinal deterioration because of the presence of the fixation device within the spine.
103 Professor Fraser agreed that opinion is divided as to how reliable discography is in localising a patient's symptoms although he was unaware of a superior form of investigation. He now uses MRI more frequently than discography and could not say if MRI was readily available in Western Australia at the time the plaintiff underwent his GRAF procedure.
104 Although the surgery which comprised the GRAF procedure could be said to have weakened the plaintiff's spinal muscles and possibly at some future point accelerated degeneration of the L5/S1 intervertebral disc, Professor Fraser considered it unlikely that this plaintiff will have any long term effects as a result of undergoing the GRAF procedure. He did not consider the slight penetration of the vertebral end plate by the left pedicle screw constitutes negligence on the part of the person carrying out the procedure. Despite his reservations concerning the use of the GRAF system he did not consider on the information available to him that the defendant had been negligent in his medical management of the plaintiff. It must be stressed that these observations are made from a medical rather than legal perspective and it is the Court which determines such issues.

Evidence as to the plaintiff's financial circumstances

105 Mr Rigby, a chartered accountant of considerable experience, met the plaintiff a few months before July or August 1997 when he commenced doing accounting work for the plaintiff. Since that time they have had both a social and business relationship. As a result of their business relationship Mr Rigby has prepared the plaintiff's tax returns for 1997 and 1998 and in addition he has had access to financial materials relevant to both the plaintiff's personal and business financial circumstances.
106 Mr Rigby prepared a report dated 28 April 1999 (Exhibit P12) which consists of a schedule of estimated taxable incomes for a range of scenarios relevant to the plaintiff's circumstances. Those scenarios have been based on "actual" taxable incomes of the years ended 30 June 1993 to 1997 inclusive. That report also takes account of reduction percentages for turnover and margins. Although they are estimates in his calculations Mr Rigby took into account the overall reduced building activity within the Cairns region to reflect what is said to be reality of the past and current situation within that industry.
107 According to Mr Rigby for the best part of 1998 and 1999, due to a reduction in availability of work, the industry in the Cairns area became extremely competitive with a number of building businesses failing. This was in distinct contrast to what had been something of a boom period prior to that time. Mr Rigby applied both a reduction for turnover and for profit margins although he conceded that the exercise was somewhat speculative. In addition, as he could not predict what the CPI was going to be in the future, he used an indexation figure in line with the average increase in relation to the CPI index over the past four years.
108 Mr Rigby said that different reduction percentages have been applied in respect of the plaintiff at age 65 in scenarios B and D because it was assumed that prior to the operation in 1993, which again was assumed to be the cause of the plaintiff's condition, the plaintiff would have been able to work to a greater capacity than if he had had to undergo a second series of operation at a later point in time.
109 In relation to scenario A involving 1993 information conveyed to Mr Rigby at a later stage indicated that the figure should be $62,067 as distinct from $52,067. In the end result this would increase Mr Rigby's calculation. On Mr Rigby's calculations the plaintiff's taxable income in 1998 would actually be $18,768, an amount considerably lower than he had predicted.
110 In relation to scenario B Mr Rigby has made two assumptions on the basis that the plaintiff did not have surgery on 22 January 1993, namely that he would have continued at his pre-operation capacity which Mr Rigby understood to be considerably greater than his post-operation capacity and further, that the plaintiff would have been able to devote more time to his business in the financial year following the surgery. As from 30 June 1993 Mr Rigby has assumed that the plaintiff would have earned at least the equivalent of his average income for the years 30 June 1993 to 30 June 1997 inclusive during 1993 and 1994. That figure is estimated to be $86,463 which has not had reductions for turnover and margins applied to it. Those reductions, however, have been applied to the estimated income for 1998 and 1999 because of the downturn in the building industry in Cairns during those years. Taking a cautious approach, and as business did not seem to be improving, a reduction has also been applied to the estimated incomes for the years 2000 and 2001. In addition, when one looks at the projections relevant to the years 2002, 2003 and 2004, a 2 per cent increment has been added for inflation. And finally, further reduction of 10 per cent has been applied in relation to the estimated taxable income for the plaintiff after he turns 55.
111 When one looks at scenario C the figures in relation to the years 1998 through to 2001 inclusive are the same and then the report proceeds on the basis that the plaintiff could not work any more.
112 Scenario D assumes that the plaintiff would undergo surgery in the year 2000 but recovers by the following year and the same adjustment factors in scenario D are applied as in scenario B.
113 Scenario E again assumes an operation in mid-2000 after which the plaintiff is unable to return to work resulting in the collapse of his business with no remaining goodwill. This scenario contemplates an income for three years between 1998 and 2000 but no income thereafter.
114 In essence Mr Rigby was asked by the plaintiff's solicitors to prepare a report in order to project the plaintiff's taxable incomes with reference to a number of scenarios. He was not asked to prepare an estimate of the plaintiff's loss for the years 1993 and 1994, even though scenario B would seem to suggest that such an estimation would need to be taken into account.
115 Generally speaking, Mr Rigby said that in about March or April of each year he would consult with the plaintiff and assist him to prepare his annual financial statement for the financial year ending 30 June in the previous year. At the same time taxation returns would also be prepared. In Mr Rigby's opinion the plaintiff was an intelligent man and good business man but like many clients he relied heavily upon Mr Rigby in relation to preparation of those materials and their contents.
116 Mr Rigby was unaware that the plaintiff's business sustained a loss in excess of $9,000 in both 1988 and 1989. The financial documents available suggested that there was an operating loss before tax of $72,000 in 1990. The situation had improved to an extent in 1991 when the plaintiff's taxable income was $20,000 and in the following year it was $42,000. Following Mr Rigby's method of dividing the total income for the years 1993 to 1997 inclusive by 5, one obtains a projected average income of $86,463 for each of those years as reflected in scenario A. This of course does not take into account that Mr Rigby was given a figure of $10,000 less than the correct figure for the year ending 30 June 1993.
117 Scenario B was aimed at establishing what the plaintiff's income would have been in 1993 if he had not had the GRAF procedure performed at the beginning of that year. Inflation was not factored into the calculations for the projected earnings between 1993 and 1997.
118 Mr Rigby also prepares tax returns for a number of entities associated with the plaintiff being Fort Spaniel Pty Ltd, a trustee of the Island's unit trust, which units are held by Tyler Incorporated Pty Ltd and the plaintiff. He prepares accounts for Seabrook Drive Pty Ltd, as trustee for the Palm Beach Unit Trust, in which once again the units are held by Tyler Incorporated Pty Ltd, Northern Developments Pty Ltd and Norlei Pty Ltd on a one-third basis each. Those same three entities hold units in Wenglade Pty Ltd, as trustee for the York Unit Trust. Wenglade Pty Ltd, Seabrook Drive Pty Ltd and Fort Spaniel Pty Ltd were all projects that the plaintiff was involved in to some degree.
119 In reviewing the plaintiff's financial statements Mr Rigby was able to confirm that in 1994 the plaintiff's business had a sales income of $1.89 million which increased to $2,269,000 in 1995. It was not possible for him to say what it was that occurred in the plaintiff's business in 1995 that caused cost of goods sold to reach $1,091,000 which meant that the plaintiff was paying considerably more for goods purchased than he had previously done. There was no explanation for why, although gross revenue had increased significantly, gross profit on trading had decreased significantly.
120 In the year ending 30 June 1997 the plaintiff made an interest free loan to Norlei Pty Ltd which owned one rental property in Miara Close and two other blocks of land. At that time the plaintiff was paying rent to Norlei Pty Ltd in order to live in his house. In 1998 Norlei Pty Ltd sold the Miara Close property in which the plaintiff and his wife were living and also sold to them the adjacent block of land upon which another house was to be built. They moved into that second house in about December 1999.
121 Mr Rigby confirmed that between 1996 and 1997 the gross sales of the plaintiff's business increased from $2.3 million to just below $2.8 million despite the fact that there was no closing work in progress disclosed in the financial accounts for the year ending 30 June 1996. Nor was there any opening work in progress noted at the commencement of the following financial year. This was something about which Mr Rigby had his doubts but it was never discussed explicitly between himself and the plaintiff. This material lies somewhat uncomfortably with Mr Bettini's evidence that as an employee of the plaintiff there was always work available for him in the business.
122 According to Mr Rigby, his role as an accountant was to tell a client what the rules are and it is then up to the client to provide him with the necessary information as it is not his role to audit the books of account of clients. In the end it was up to the plaintiff, if there was work in progress at the end of a financial year, to bring it to book.
123 As at 30 June 1997 Norlei Pty Ltd owned a block of land which it sold to Wenglade as trustee for the York Unit Trust at cost price. That property was subsequently developed with most of the units comprising the development having been sold after construction work was done by the plaintiff. So Norlei Pty Ltd still has an interest in the unit trust which owns the unsold properties or units. According to Mr Rigby when these remaining properties are sold it is unlikely that it will be at a profit.
124 Fort Spaniel Pty Ltd, as trustee for Island's Trust in which the plaintiff's holds one-half of the units as a block of land but it is more probable that it will be sold rather than developed because the other unit holder, Mr Taylor, now lives overseas.
125 In the end counsel for the plaintiff submitted that in all the circumstances of this case if an award for future economic loss and loss of earning capacity was made, it could only be done on a global basis. It was argued that factors to be taken into account should reflect the fact that the plaintiff can no longer participate in his business in a "hands on" manner, he is unlikely to find work on the basis offered to him by his friend Mr Taylor and that the building industry is subject to both upturns and downturns in availability of work. Counsel for the plaintiff conceded that as a result of the plaintiff's pre-operative spinal problems he was inevitably going to suffer a degree of limitation in his physical ability to continue working in a "hands on" role in the building industry.
126 It was also conceded that the figures referred to in the various financial scenarios posited by Mr Rigby were only by way of an indication as to what might have occurred but that any award made would have to be a lesser amount than contained in Mr Rigby's various calculations.
127 By consent counsel for the plaintiff tendered into evidence an affidavit sworn by Mr Taylor, Exhibit P18, on 22 February 2000. He left Cairns in mid-1997 and relocated to the USA. This was about three years after he had met the plaintiff and for that reason Mr Taylor was unable to make any observations regarding the plaintiff's physical condition prior to his surgery. His view, however, during his relationship with the plaintiff was that Mr Nunn appeared to be suffering considerable pain with resulting irritability and short attention span. It would not appear that the plaintiff's irritability was an impediment to the development of both the social and professional relationship between him and Mr Taylor. He also observed the plaintiff experiencing difficulty in performing simple physical tasks such as getting up right after bending over. As Mr Taylor was involved in property development in late 1994 he offered the building contract for Palm Cove in Cairns to the plaintiff because Mr Taylor wished to assist the plaintiff financially and believed the project would provide the plaintiff with a reliable and above average income during the course of the project. The arrangement was mutually beneficial.

The defendant's evidence

128 Mr Hardcastle qualified as a medical practitioner in 1974 and thereafter engaged in post-graduate training in Australia and post-graduate orthopaedic training overseas between the late 1970's and early 1980's. He holds a number of positions as a consultant to hospitals in Perth.
129 Whilst working in the United Kingdom in 1991 he came to learn of the GRAF procedure and he travelled to France to learn more of it under its inventor. There he observed two GRAF procedures being performed. Subsequently he undertook a further course in the procedure and saw it performed again in November 1991 in Malaysia. In the interim he had performed about 10 GRAF procedures and believed he was the only surgeon utilising the technique in Australia at that time. He was enthusiastic regarding the benefits of the procedure. The major difference between the GRAF procedure and other forms of spinal fixation is that it uses dacron bands to hold the pedicle implants together which provides more flexibility of movement than in conventional fusion procedures. The use of these bands results in a less invasive surgical procedure and permits a more natural stabilisation of the patient's spine.
130 The defendant was first consulted by the plaintiff in September 1992 on referral from Dr Wall due to what he understood to be the plaintiff's dissatisfaction with earlier medical advice he had received regarding his back condition. The plaintiff was also aware of patients suffering foot drop as the defendant recalled. After reviewing plain x-rays and carrying out a clinical examination the defendant determined that the plaintiff suffered low lumbar segmental spinal instability which Mr Hardcastle felt could be stabilised by surgery if that was the plaintiff's wish. Mr Hardcastle's evidence was that there were two forms of surgery available by way of stabilisation being bone fusion or the newer GRAF technique and he said he explained both of these procedures to the plaintiff in his rooms with reference to models. As part of that initial consultation Mr Hardcastle said the plaintiff filled out Exhibit D10, an initial assessment questionnaire, upon which the only word written by the defendant is "bending". The defendant could not recall if anyone other than the plaintiff was present at that first consultation but he said he explained the advantages of the GRAF procedure over conventional spinal fusion to the plaintiff and advised him that all spinal surgery carried a potential for complications including death as part of the anaesthetic, stroke, wound infection and leg weakness or numbness. Whilst being unable to recall the amount of detail surrounding this discussion, Mr Hardcastle said it was generally his practice at initial consultation to make it clear to the patient that surgery not only carries complications but has a percentage failure rate and it is only at second consultation that complications are specifically discussed.
131 He said he also told the plaintiff this time that the GRAF procedure was relatively new with prospects of earlier rehabilitation. He told him that he had been performing it since October 1991 with a reasonable rate of success although there had been some problems. He said he would have advised the plaintiff about the possibility of screw backout requiring further surgery.
132 Mr Hardcastle denied he told the plaintiff that he had experienced only three cases of complications in the GRAF procedures he had performed and that those complications were due to obese patients who did not follow the prescribed regime. He denied telling the plaintiff that he had operated on cricketers, Bruce Reid, Dennis Lillee and Bob Simpson, although it is the case that he had performed surgery on Mr Reid and Mr Simpson, but not Mr Lillee who to the defendant's knowledge had never undergone surgery. On the information available to him at the first consultation the defendant understood that the plaintiff had been experiencing symptoms for a long period of time and they were worsening.
133 The plain x-rays which accompanied the plaintiff showed narrowing at L5/S1 being a sign of degeneration in that area but in Mr Hardcastle's opinion before any further steps could be taken or investigations of the plaintiff's back and spine needed to be undertaken. These were in the form of axial imaging which provides much finer detail of the structure and a facet block to ascertain if that procedure would provide any pain relief to the plaintiff.
134 Also the plaintiff would need to undergo a CT scan to ensure pedicle sizing relevant to the screw to be inserted into the pedicle is correct. The pedicle ultimately supports the screw and joins the facet joints to the front of the vertebral body. As far as the defendant was concerned the first consultation with the plaintiff was left on the basis that he had the option of returning if he wished to pursue the option of surgery and if that was the case he was to bring the results of further investigations to the next consultation.
135 It is common ground that the plaintiff did return to see Mr Hardcastle in Perth on 19 January 1993 and at that time he brought with him the results of a CT scan. After the plaintiff's first consultation with him, Mr Hardcastle had started employing an investigative technique by way of a twist CT scan which gives a more precise view of excessive rotational movement or "gapping" which is a radiological indicator of segmental spinal instability. At the time of the second consultation the plaintiff did not have results of a twist CT scan as it was not widely available. He did not order an MRI for the plaintiff prior to surgery as it was not indicated because there was no evidence of neural compression. There was also a lengthy waiting list for MRI at that time.
136 Nor did he perform discography pre-operatively because it was not indicated in cases such as the plaintiff's where a mechanical instability existed. Discography is an invasive surgical procedure carrying with it associated risk of complications such as serious infection. The defendant tended to use it, where, for example, he was uncertain as to the cause of a patient's pain.
137 On examination the plaintiff's clinical signs had not altered from the time of his first consultation and the defendant's clinical diagnosis remained the same. On this occasion Mr Hardcastle recorded that he provided the plaintiff with Exhibit P1, which although undated was at that time the latest or most up to date information sheet the defendant had prepared relevant to information on the GRAF procedure. When he gave it to the plaintiff he could not recall their specific conversation although it was Mr Hardcastle's evidence that he generally advises the patient that the sheet contains his pre-operative and post-operative recommendations which the plaintiff should read in combination with the diagrammatic picture depicting the mechanics of the GRAF procedure.
138 Mr Hardcastle said that on that occasion he did say the GRAF procedure had been under review but the procedure had been cleared. He also showed the plaintiff a green book containing, among other things, a record and details of the GRAF procedure he had performed on patients beginning in late 1991, Exhibit D14. It contained details of outcome results relevant to patient satisfaction levels and complications of the procedure. To a degree the amount of further information the patient required was a matter for the individual. Mr Hardcastle was clear that he showed the plaintiff page 1 of the book beginning with the first operation on 22 October 1991 and headed "Start GRAF" but he was unsure if he showed him more than that. The purpose in showing the plaintiff and indeed any prospective patient the information in Exhibit D14, according to the defendant, was to inform them in essence that not all surgery is totally successful but in many cases where complications arise surgery can still be considered successful.
139 Mr Hardcastle next saw the plaintiff on either 20 or 21 January again in his rooms when the plaintiff was provided with a consent form, Exhibit P2, which the defendant said he does not have patients sign in front of him in order to avoid the patient feeling pressurised into undergoing surgery. The form is usually provided to patients by one of the defendant's staff. On 20 January the defendant reviewed the further radiological information regarding the plaintiff.
140 Mr Hardcastle confirmed he saw the plaintiff and his wife on the evening of 21 January at Kaleeya Hospital where the defendant also had another patient who had recently undergone the GRAF procedure. Mr Hardcastle could not specifically recall what was discussed on that occasion, although he believed he would have enquired whether the plaintiff had any further general questions. It would have been unlikely that possible complications would have been discussed again unless specifically requested by the plaintiff. Mr Hardcastle said, however, that on that occasion he did not advise the plaintiff that if he failed to undergo the GRAF procedure the following day he would be back in three months for a spinal fusion because such a piece of advice would simply not have been true.
141 The defendant agreed that there was a moratorium in relation to him performing the GRAF procedure at SJOG Hospital between September 1992 and a point in January 1993 because of concerns relating to complications following the procedure such as leg pain. The evidence later revealed that in a letter, Exhibit P20, of 31 August 1992, Dr Watson, Director of Medical Services at SJOG Hospital, confirmed his earlier advice of 27 August to the defendant that no further GRAF procedures were to be undertaken there until a review had been completed and recommendations made.
142 When that occurred he ceased performing the GRAF procedure at other hospitals as well as he was unwilling to continue doing so until he had received, as he described it, the "all clear". As a result of discussions with Dr Watson from SJOG Hospital regarding the review or evaluation of the procedure, the defendant understood that the hospital would permit the procedure to continue to be performed there after the decision had been formalised by the ethics committee after they met in January 1993. On 21 January he received that confirmation from Dr Watson but in the interim on 8 January he had out of courtesy written a letter to Mr Bell at Kaleeya Hospital, Exhibit D16, advising as to what he believed would occur and informing him that he had temporarily booked a GRAF procedure at Kaleeya for the following Friday subject to Mr Bell's approval.
143 After 20 January 1993 the defendant's next operating list was on 22 January at Kaleeya Private Hospital. He did not have a surgical list at SJOG Hospital until nearly a week after 20 January. The surgery performed on the plaintiff on 22 January confirmed the spinal instability and during the course of that surgery, as a result of leg movement in response to a diathermy test, the defendant checked to see whether there was any impingement by the pedicle screw on to a nerve.
144 Post-operatively when the defendant reviewed the plaintiff at Kaleeya Hospital he noted nothing unusual and despite some swelling in the wound area he did not believe it was a significant post-operative infection. Out of caution he prescribed a course of antibiotics as the plaintiff was going to fly back to Queensland.
145 He received Exhibit P4 a fax from the plaintiff of 22 March 1993 which complained of pain and lack of improvement in his condition. As a result the defendant arranged for the plaintiff to fly to Hamilton Island in April when the defendant was to attend a conference relevant to a form of spinal fusion. It was considered more convenient to make this arrangement in the circumstances rather than have the plaintiff fly all the way to Perth for his three month review.
146 At Hamilton Island the defendant said both the plaintiff and his wife appeared happy and no specific complaints were made. In fact he said the plaintiff reported working out in the gym and returning to work although it was not specific as to what he was doing at work. On examination he found the plaintiff's movements were very good. The defendant said he received no information from the plaintiff at that time to cause him to be concerned, although he did not suggest that the plaintiff was pain free. The defendant's wife was present during this visit and at one point she recalled the plaintiff saying in the course of conversation that he had recently been lifting heavy weights.
147 His six month review of the plaintiff occurred in Perth on 22 July 1993 prior to which the plaintiff had advised the defendant by fax in June that he was still experiencing difficulties and so it was arranged he come to Perth for facet block injections. At the time of the six monthly review the defendant noted that the plaintiff's symptoms and clinical signs were similar to those noted pre-operatively and he received no further information from the plaintiff.
148 In early April 1994 Mr Hardcastle said the plaintiff contacted him by phone and mentioned the 60 Minutes programme and during the course of that conversation, which he interpreted as supportive rather than critical, the defendant undertook to fax the plaintiff a form for a bone scan by way of carrying out further investigation to ascertain the cause of the plaintiff's ongoing pain. Shortly thereafter he received notification from the plaintiff terminating their doctor/patient relationship.
149 The defendant said prior to the surgery in January 1993 he told the plaintiff that the GRAF procedure could, rather than would, overcome his lumbar pain. He denied telling him that he should undergo the procedure or that there were limited risks associated with it, mainly relevant to persons who were overweight and unfit. He said he advised him that there was a reasonable chance of the plaintiff returning to his work as a builder within six to eight weeks after the operation provided his pain was relieved and he suffered no complications. He confirmed that the plaintiff was told to avoid lifting weights over 20kg.
150 The defendant performed about 123 GRAF procedures, according to Exhibit D14, between 22 October 1991 and on approximately 14 August 1992 there was then a break, because of the moratorium imposed by SJOG. The defendant performed his next GRAF procedure on 15 January 1993. This was followed by another on 21 January 1993 and the surgery upon the plaintiff on 22 January 1993, which has led to this action.

Legal principles

151 The duty imposed upon a medical practitioner is to warn a patient of material risks which are inherent in proposed treatment. A risk is material if, "in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it": Rogers v Whitaker (1992) I75 CLR 479; Percival v Rosenberg [1999] WASCA 31. The obligation to warn patients about risks of medical procedures is a rigorous one and any breach of that obligation must be treated seriously as was emphasised by Kirby J in Chappel v Hart [1998] HCA 55; (1998) 72 ALJR 1344; 156 ALR 517. A negligent failure to adequately provide information of itself does not cause injury and for that reason the patient/plaintiff bears the onus of proving the causal connection between the injury alleged and the medical practitioner's alleged negligent act or omission: X v Pal (1991) 23 NSWLR 26. To establish this causal relationship the patient/plaintiff must establish that had the required disclosure occurred he would have declined to undertake the course of action that followed, (which in this case is said to be the undergoing of the GRAF procedure): Chappel v Hart (supra): Percival v Rosenberg (supra).
152 There is no presumption that a medical practitioner will have guaranteed that the treatment proposed will be successful and if it is not that does not necessarily indicate there has been a breach of the standard of care: Whitehouse v Jordan [1980] UKHL 12; [1981] 1 WLR 246. A medical practitioner owes a duty of care to the patient relevant to diagnosis, treatment and advice: O'Shea v Sullivan [1994] A Tort Rep 61,288, although there is a distinction between diagnosis and treatment as opposed to the proffering of advice and information to the patient. A medical practitioner must exercise the degree and standard of care expected of an ordinary careful and confident practitioner of the class to which the practitioner belongs: Rogers v Whitaker (supra); F v R (1983) 33 SASR 189 at 190.
153 It is important to appreciate that while evidence of acceptable or local medical practice is a useful guide for the courts in relation to deciding the issue of whether or not a medical practitioner has been negligent, evidence of such practice is not determinative of the appropriate standard of care because ultimately it is for the courts to decide that issue taking into account the importance of the fact that a person is entitled to make their own decision about their own life: F v R (supra) at 193; Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 452 at 563.
154 The specific allegations as to negligence and breach of duty made by the plaintiff against the defendant have been set out earlier in these reasons but generally the tenor of those allegations is that the defendant was incompetent in diagnosing the plaintiff's condition and the defendant failed to carry out or order appropriate and sufficient tests relevant to his diagnosis of the plaintiff's condition. It is alleged that prior to surgery being performed upon the plaintiff the defendant failed to provide the plaintiff with sufficient advice and full warnings as to material matters in order for the plaintiff to make an informed decision as to whether or not he would undergo surgery, in this case being the GRAF procedure. When that procedure was ultimately performed the plaintiff says it was done so incompetently and therefore the defendant is in breach of the duty of care he owed to the plaintiff.

Findings on the evidence

155 In determining the issues in this case it is also necessary to consider and make a determination as to the plaintiff's back condition and pain state relevant to that condition both before and after the GRAF procedure was performed upon him. It is necessary for the Court to place itself in the plaintiff's position in order to consider what effect a warning as to any material risk would have had upon the plaintiff in the circumstances in which he found himself at the time in question. The Court is also concerned with making a determination as to the cause of the plaintiff's alleged current disability in order to determine whether it is the same or very similar to his state prior to the GRAF procedure being performed or whether it is worse. If the plaintiff's condition is found to be worse, the Court must make a finding on the evidence as to whether or not, if the condition has worsened, then has the GRAF procedure caused or contributed to the plaintiff's current state and in that regard if it is found there has been a deterioration it is necessary to examine the time and circumstances when that deterioration was reported by the plaintiff.
156 In examining the medical evidence it is important to appreciate that there is a considerable diversity of opinion among orthopaedic surgeons and neurosurgeons as to the best method of diagnosing and treating the cause of back pain, which includes lower back pain. Some medical practitioners, such as Dr Clark, favour a conservative approach and do not advocate surgical intervention. Others are more pro-active and take the view that a change in lifestyle is of itself in some situations, insufficient to treat the patient's difficulty.
157 I do not find that at the time of the first consultation on 25 September 1992 the defendant informed the plaintiff that the severe pain in his lumbar region would be overcome by the GRAF procedure being performed. I accept the defendant's evidence that at the time of that consultation he did not have sufficient material before him by way of the results of medical investigation to confirm instability in the plaintiff's lower lumbar spine which would warrant surgery of that nature. As it was an initial consultation I accept the defendant's evidence that both spinal fusion and the GRAF procedure were discussed at that time with reference to models. For that reason I do not find that at that consultation the defendant advised the plaintiff that the GRAF procedure should be performed upon him but rather I accept that referring to the criteria outlined in his evidence the defendant advised the plaintiff that he was a candidate for such procedure. The plaintiff's own evidence was at that time the defendant advised him that the procedure was relatively new in Australia but had been performed in France for the previous four years with a high success rate. In that discussion it is conceded by the defendant that he advised the plaintiff that the GRAF procedure had advantages over lumbar fusion. As this was a general discussion, in the sense that the two procedures were to be compared by the plaintiff before making a final decision, I find that the warnings given at that time by the defendant were of a general nature involving risks that accompany any form of serious or invasive surgery. It would defy commonsense, given that the defendant himself accepts this was a relatively new form of surgery in Australia, for him to in effect lie to the plaintiff at any time by advising him that the risks associated with GRAF were so limited that in fact only three patients had experienced adverse effects subsequent to the surgery. This was patently incorrect as the defendant well knew, although I accept that it is highly likely the defendant advised the plaintiff that overweight and unfit patients were at greater risk in relation to undergoing surgery including the GRAF procedure.
158 I do not consider that a great deal turns on the fact that the defendant, after the passage of time in question, did not have a precise recollection of all that he said to the plaintiff and that he relied on what his general practice was in speaking with patients who were considering undergoing spinal surgery including the GRAF procedure.
159 Unless and until the plaintiff made a decision that he would undergo the GRAF procedure there would be little point in discussing the specific risks or possible complications relevant to that surgery, which is why I take the view that the discussion relevant to those matters occurred when the plaintiff returned to Perth and consulted the defendant again in January 1993. I accept that it is very likely that the plaintiff and the defendant discussed cricketers as it would appear from the plaintiff's wife's evidence that it was through the West Australian Cricket Association that she obtained the name of the defendant. There would be little or no point, however, in the defendant lying to the plaintiff by advising him that he had performed surgery upon Dennis Lillee, a well known cricketer, when in fact that person had never been a patient of Mr Hardcastle's and further to his knowledge had never undergone surgery. There is no argument that the defendant had performed surgery on certain other cricketers as evidenced by Exhibit P21, and although the defendant denied advising the plaintiff of this I accept the plaintiff's evidence that cricketers were mentioned. I do not accept, however, that if cricketers were mentioned by the defendant it was with a view to in some way attempting to persuade the plaintiff, by reliance on those persons and the successful outcome of their surgery, to undergo the GRAF procedure himself. There would simply be no benefit to the defendant in following this course of action even though the evidence clearly suggests that the defendant was impressed by the results of the GRAF procedure generally and had faith in it.
160 I accept the defendant's evidence that he does not have a prospective patient sign a consent form in front of him because he does not wish the patient to feel pressurised into agreeing to surgery and for that reason it makes no sense to conclude that the defendant had a particular interest in attempting to persuade a patient, such as the plaintiff, to undergo the GRAF procedure. For that same reason there would be no point in the defendant attempting to persuade the plaintiff to undergo the GRAF procedure by threatening him in effect that if he failed to do so he would have to have a spinal fusion within three months. I do not accept that an experienced medical practitioner and surgeon on being confronted with a concerned patient, as the plaintiff clearly was on the night before his surgery, would not only attempt to reassure a patient in that manner but would also lie to the patient.
161 The defendant's notes of his consultations with the plaintiff, Exhibit P28, indicate that on 19 January 1993 the plaintiff was given the third or latest edition of the information sheet concerning the GRAF procedure. It is the case that in part that document indicates that after six weeks the patient can engage in unrestricted activity except avoiding lifting of more than 20kg. Despite this I do not accept that in the whole of these circumstances the defendant would have in essence given the plaintiff a guarantee that he would be able to return to building work six to eight weeks after the surgery. It is far more likely and I find it as a fact, that the defendant told the plaintiff that this would be possible provided the plaintiff suffered no complications and had pain relief. When one reads the information sheet, Exhibit P1, as a matter of commonsense the post-operative and pre-operative recommendations must be looked at in the light of the general information contained in that document which suggests that certain complications can occur and that the long term results of the procedure were not known, although to date had been encouraging.
162 I accept the defendant's evidence that in January 1993 he showed at least one page of Exhibit D14 to the plaintiff and as the purpose of conveying that information to the prospective patient was to demonstrate that not all surgery is totally successful there would be little point in adopting that procedure if the patient had been told something to the contrary. It would serve no purpose, furthermore, on the one hand to guarantee a patient that surgery will cure their problem and then on the other hand to give them a document, Exhibit P1, which read as a whole falls short of confirming that information.
163 It is alleged that the defendant failed to undertake appropriate pre-operative investigative procedures to identify the source of the plaintiff's pain. The evidence of Mr Vaughan highlights a difficulty that arises in relation to such an assertion in the circumstances of this case because as he correctly pointed out the exercise involves a degree of retrospectivity and there is always a danger that one will rely unduly on the benefit of hindsight. The defendant relied on plain x-rays and also ordered facet blocks and specific CT scans. There is no evidence to suggest that MRI should have been used as an investigative tool as a matter of course, given this was late 1992 early 1993 and in addition to that it was not freely available in Western Australia and when used had a significant waiting list. It should be noted that in Exhibit D14, where MRI investigation is referred to, it was not ordered by the defendant but other medical practitioners. Dr Ruff did not believe radiological tests, including MRI, are of assistance in diagnosing the cause of back pain where degenerative rather than neurological changes are suspected as a cause.
164 I do not find that the defendant was negligent in failing to utilise discography as a pre-operative investigative tool. It was clear on the evidence that this is an invasive procedure carrying with it risks such as infection. Certainly Mr Vaughan uses it most sparingly as does Dr Ruff for those reasons. Although Professor Fraser would recommend discography prior to any further surgery, that view has to be considered in the context of the plaintiff's current situation. Professor Fraser would not have recommended surgery, at least as far as the plaintiff's condition was concerned when he reviewed him. In the circumstances I do not find that the defendant was negligent nor do I find that he was in breach of the duty of care owed to the plaintiff in this regard.
165 The fact that the plaintiff complains that the GRAF procedure performed by the defendant has failed to totally or partially alleviate his symptoms and back pain does not of itself mean that the defendant was negligent and in breach of the duty of care owed to the plaintiff in carrying out the GRAF procedure. The issue of causation must be addressed. It is the case that the GRAF screw in the pedicle in S1 has partly breached the end plate. There is no persuasive medical evidence, however, which supports a conclusion that this has caused or contributed to the plaintiff's current pain state. Mr Vaughan's evidence is to the contrary as was Dr Ruff's evidence. Put at its highest Professor Fraser's evidence contemplated the possibility that the positioning of the screw may have accelerated certain degenerative changes within L5/S1 but at least in May 1994 he did not accept that it was so.
166 The diversity of medical opinion between orthopaedic surgeons and neurological surgeons as to the diagnosis and treatment of back pain in a patient has been referred to previously. One cannot reason, simply because other medical practitioners may have had a different or more conservative approach to the treatment of a particular patient, as a matter of course where a more pro-active approach, such as surgery, is adopted then the latter approach is negligent and breaches a duty of care owed to the patient. On what Mr Vaughan knew of the plaintiff's back pain state in 1992 he would not have recommended the use of the GRAF procedure and nor would Dr Ruff as he too is more conservative in his treatment of back pain, including that caused by spinal instability. Similarly Professor Fraser had difficulty in saying whether or not he would have recommended such a procedure for the plaintiff in 1992. In the end it was his concern about the lack of full and appropriate testing of the GRAF procedure that persuaded him it was not appropriate.
167 On all the evidence before me, I cannot conclude that the diagnosis made by the defendant was clearly wrong or was made after insufficient investigations. The art of diagnosis is an inexact science based on a host of factors including a patient's stated history and presentation. There is a wide variance among medical practitioners as to whether or not surgical intervention is warranted in a particular case and there is nothing in the evidence before me, even though other medical practitioners would have favoured a more conservative approach to treatment of the plaintiff's condition in 1992 or early 1993, that allows me to conclude that the defendant was negligent in either utilising or performing the GRAF procedure upon the plaintiff.
168 I do not accept that the defendant at any time prior to performing the GRAF procedure on the plaintiff failed to inform him that such surgery would or might cause further damage to the plaintiff's spine or exacerbate his symptoms of lower lumbar pain. The evidence clearly suggests that this is an inherent risk in any form of spinal surgery, including the GRAF procedure, and despite early encouraging results when one considers what must have been the defendant's knowledge of the contents of Exhibit D14 it is highly unlikely that he would have failed to mention this to the plaintiff. In addition, there is no question that the plaintiff was handed a consent form, Exhibit P2, which specifically states "I further understand that spinal surgery may not relieve my pain and on occasion may create a problem or disability in itself". This was signed by the plaintiff and co-signed by Mrs Hardcastle. It would make little sense to hand a patient a document containing the information in Exhibit P2, having failed to canvas those matters with the patient. One necessarily and ordinarily expects a patient to read a document of this nature and in the general course of events, if significant information contained in such a document has been overlooked in discussion with the medical practitioner, one could confidently expect the patient to query why that was so.
169 The plaintiff impressed me as an intelligent and articulate man who over the years has built up a successful business. In my view he was well aware that surgery of any nature was serious, so much so that he had formed a strong view he would not undergo spinal fusion. He was sufficiently concerned and interested to fly across Australia in order to consult the defendant before making any decision as to treatment, including surgery. He was also concerned enough to open the radiological report prior to giving it to the defendant and raising with the defendant concerns he had regarding the contents of that report vis-à-vis what he had been told by the defendant regarding spinal instability. This does not suggest that the plaintiff had such faith in the defendant that he would not question what he was told by him.
170 Ms McCullagh's evidence portrayed her husband as a meticulous individual who demanded high standards both from himself and others. I do not accept someone possessing these characteristics would fail to read a document such as Exhibit P2 before signing it, particularly when they had made a decision to have surgery.
171 There are, however, two areas on the evidence where I consider that a warning in relation to a material risk inherent in the proposed GRAF procedure was not adequately or fully explained or given to the plaintiff by the defendant. One of these areas is of particular significance, being the moratorium in relation to the GRAF procedure. The defendant was aware that as from late August 1992 because of concerns expressed by medical and nursing staff at SJOG Hospital with respect to complications arising out of the GRAF procedure, that it was not to be performed at that hospital until it had been further investigated. The defendant agreed to this and indeed voluntarily ceased performing it at other hospitals until he was advised it was appropriate to do so by the Ethics Committee examining the matter.
172 At the time of the first consultation on 25 September 1992 the defendant knew that this was the case and although I accept the defendant's evidence that he advised the plaintiff that the procedure was under review at that time, his recollection is somewhat unclear as to the details he conveyed to the plaintiff about this very important matter. He said he could not recall if he mentioned that the procedure was under review by the Ethics Committee. Notwithstanding the fact that this consultation was preliminary in a sense that I find it was for the purpose of giving the plaintiff general information to assist him in deciding whether or not to have surgery and what type of surgery, I take the view that the fact that the GRAF procedure was the subject of a moratorium at the time should have been conveyed to the plaintiff in explicit terms. The defendant may well have been confident in the outcome of the investigation by the Ethics Committee but nonetheless he could not have known with certainty at that time what it would be.
173 Taking into account the plaintiff's general attitude towards surgery, I consider that if he had been warned in explicit terms of this particular circumstance, then a reasonable person in his position would have considered it significant and important information. If this piece of information had been given, then in combination with the information that was given, namely in part that the long term results were unknown, I consider that the plaintiff would not have made a decision to undergo the GRAF procedure. In his evidence the plaintiff said that if he had been told of the moratorium he would have "been out of there" as he would interpret that information as meaning there were problems with the procedure. I take this to be problems above and beyond those matters that were brought to his attention.
174 In my view a prospective patient being advised that a procedure is under review may well attach far less significance to that than if they were told it was the subject of a moratorium or, in other words, the procedure at that time was banned. Further, counsel for the defendant did not suggest that the plaintiff had been told of the "moratorium" as such but suggested that he was certainly advised that the procedure was under review.
175 Of less significance, but nonetheless of importance, I find that the plaintiff was not advised by the defendant as fully or adequately as he should have been, of the known prevalence of significant leg pain in a considerable number of patients following the GRAF procedure being performed upon them by the defendant. In any event, the defendant in its amended reply to request for further and better particulars of defence dated 15 May 2000, does not plead that the plaintiff was specifically advised of or warned about this possible complication. Rather it is said that the plaintiff was advised that complications included relevantly a possibility that surgery by way of the GRAF procedure could result in the development of weakness in the leg. I accept on the evidence that the plaintiff was advised about this but I do not find that a warning as to the possibility of development of weakness in the leg is the same as or would necessarily be interpreted by a prospective patient as being the same as possibility of developing significant leg pain following surgery. In Exhibit P21, a letter written by the defendant to Dr Watson at SJOG Hospital, in the context of the moratorium, it is clear that Mr Hardcastle was aware that post-operative leg pain could result following the GRAF procedure, although his experience was it resolved over varying periods depending on the particular patient concerned.
176 It may well be, as the defendant said, that on the occasion of the second consultation with the plaintiff the defendant with reference to Exhibit D14 pointed out that neurological deficit could follow upon the GRAF procedure but in my view, this would not necessarily convey to a lay person that leg pain could follow upon the procedure. Even if the defendant had advised the plaintiff by reference to Exhibit D14 that there was an incidence of post-operative leg pain, in the circumstances its prevalence should have been stressed. It may well be the case that the incidence of post-operative leg pain was reduced, even dramatically, once pedicle sizing and the diathermy test were introduced by the defendant, nonetheless it would appear that those measures had not eradicated the possibility of increased leg pain as a post-operative complication as at either September 1992 or January 1993. Certainly in Exhibit P27, being the second edition (undated) of the GRAF procedure information sheet, reference was made to approximately 20 per cent of patients experiencing leg pain after the GRAF procedure for periods lasting up to approximately six weeks. If that still existed as a possible complication it should, in my view, have been mentioned in Exhibit P1 which is the GRAF procedure information sheet given to the plaintiff. Clearly it is not specifically referred to in that document although there is mention that "damage to a nerve can occur in this procedure, though the incidence is the same as other forms of pedicle implants for spinal fusion".
177 In the light of these specific findings it is necessary to consider whether, as alleged by the plaintiff, the GRAF procedure, or more particularly the fact that he underwent the GRAF procedure, has caused or contributed to the pain state that he says he has suffered from the time of undergoing the surgery.
178 The plaintiff's evidence was generally to the effect that prior to undergoing the GRAF procedure he really only experienced back pain when, after bending over or squatting for a time whilst carrying out builder's labourer's work, he had severe burning. This would diminish after a time and generally his life was normal in other respects. Nonetheless the pain when he did experience it was significant and intrusive enough for him to seek medical advice and attention. Ms Cullagh's evidence was somewhat vague as to when the plaintiff first began to experience pain in his back although she was insistent that it came on after he had been working physically hard carrying out concreting and slab preparation work. Both of these witnesses attempted to stress in their evidence that the pain the plaintiff suffered was not constant or extremely troublesome prior to his surgery.
179 That, however, is at odds with what the plaintiff must as a matter of logic have advised Dr Wall, his GP, in September 1992 before he flew to Perth to consult the defendant. Her report, Exhibit D8, refers to the plaintiff complaining of continual pain and locking in his back. It is difficult to see how Dr Wall could have written such a thing if she was not given that information by the plaintiff at that time. In addition, Dr Wall noted that the plaintiff was "constantly troubled" and did not qualify that by reference to it being the case only when the plaintiff was carrying out certain physical activities. The phrase "constantly troubled" does not convey pain only upon carrying out certain physical tasks. Of significance, although the plaintiff claimed that he only had to get out of bed on all fours in the morning after his operation, he gave Dr Wall a history to the contrary whereby he advised that he had to get out of bed in that manner when he saw her in early September 1992. The plaintiff's explanation for how the doctor came by that information was quite unsatisfactory.
180 When the plaintiff consulted Dr Clark before he first attended on the defendant, Dr Clark noted in Exhibit D9 that during the previous three to four years the plaintiff's lumbar pain, particularly on the left side, had become more severe and "constant". It is the case that Dr Clark also noted the plaintiff advised him that certain aspects of the plaintiff's work such as bending, crouching and shovelling aggravated his symptoms he nonetheless once again gave a history of constant pain prior to the GRAF procedure being performed.
181 The plaintiff's history that his back pain had become worse over the three years prior to him consulting the defendant in September 1994 is confirmed in part in Exhibit D10, the initial assessment questionnaire he filled out for the defendant in September 1992. This document also confirms that specific activities aggravated the plaintiff's pain state, but he indicated in a range of situations both at work and socially he put up with the pain, which he marked at 8 on a scale of 1 to 10. In relation to this the plaintiff said in evidence that he advised the defendant prior to the GRAF procedure that he had pain "constantly" in one spot. Once again the use of this word does not convey the notion that the pain suffered was intermittent in nature.
182 In the light of this evidence, the bulk of which comes from the plaintiff himself, I am of the view that prior to the GRAF procedure being performed the plaintiff was in constant pain as a result of his back condition, but as one might expect, certain physical activities such as bending over for long periods exacerbated the existing pain state. I therefore do not find that the GRAF procedure is the cause of the plaintiff's current pain state in his back. Nor do I find that after the GRAF procedure the plaintiff developed significant leg pain which had not been present prior to surgery.
183 It is necessary to consider whether the GRAF procedure in some way has contributed to or worsened the plaintiff's pre-existing lumbar pain state because he alleges that to be the case. His evidence was that his pain state since that time has had a significant effect on his lifestyle and he is considerably physically restrained from carrying out the activities he used to do prior to surgery.
184 In this context it is important and telling to examine the documentation that the plaintiff himself forwarded to the defendant after his surgery in January 1993. On 22 March 1993 in Exhibit P4 the plaintiff advised the defendant that his pain state on the lower left side was "almost the same as it was prior to the surgery ...". He advised further that he was doing some light work though he experienced acute pain on bending as he did prior to the surgery. He said he could not squat down on his right leg without feeling severe pain. Squatting was the position in which the plaintiff carried out concreting and it would seem to me that unless he was attempting to do this after surgery he would not be squatting down in the manner he described in that document. This is at odds with the plaintiff claiming he was unable to do anything of that sort post-surgery. In Exhibit D12, another fax of 29 June 1993, the plaintiff advised that "I am back almost as bad as I was before the operation", which once again does not suggest a worsening in his condition but rather failure to improve. He added that in effect he was restricted at work in the same way as he was prior to surgery. In Exhibit P6, written in November 1993 to the defendant, the plaintiff again describes his pain as being of the same nature as it was prior to surgery and he advises that he was "just as bad as I was before ...". Again this suggests a failure to improve rather than a worsening of symptoms or pain state post-surgery. Certainly Dr Wall in her letter of referral to Professor Fraser about 17 months after the surgery, gave her opinion as being that she felt the plaintiff's problem was settling.
185 The result of the plaintiff's consultation with Professor Fraser shortly after this is also significant. In Exhibit D2, an outcome score completed by the plaintiff, he indicated that his pain level had not changed in the past two years as it was still 8 out of 10. He further indicated that he needed only to rest a little during the day due to pain and that he never had to take analgesics. He advised that he was working full-time at his usual job, although in his evidence he said that was a reference to supervisory rather than physical onsite building work. More importantly, however, he advised that he could undertake household chores and odd jobs normally and that his pain only had a mild effect upon activities such as walking and dressing as well as his sex life. Other physical activities such as sleeping, sitting and travelling he indicated were moderately difficult.
186 When Professor Fraser spoke to the plaintiff regarding information for the patient history form, Exhibit D5, no date is recorded in relation to the onset of the plaintiff's pain and significantly Professor Fraser, presumably based on information provided by the plaintiff, noted "same pain now as before the GRAF - no change". This is in dramatic contrast to the evidence that the plaintiff now gives and in my opinion it is inconceivable that Professor Fraser would have noted this if he had been told something to the contrary. At that time the plaintiff did not advise that exercise or walking exacerbated his pain state but rather activities such as sitting and lifting did so. Consistent with the plaintiff's evidence as to his situation prior to the GRAF procedure, he apparently advised Professor Fraser nearly a year and a half after the surgery that "after two to three hours of bending and lifting he suffered a lot of burning pain". Further, if at that time the plaintiff was not doing any exercise at all as he maintained in cross-examination, it is difficult to understand why in filling in that form he advised that he exercised on a regular basis.
187 Six years after the GRAF procedure when Dr Ruff reviewed the plaintiff he noted him to be "tanned with a strong build" with muscle tone that could have been the result of physical labour or exercise.
188 Each of these pieces of evidence in isolation might be explained by the plaintiff not fully comprehending the import of a particular question or an individual listener not fully comprehending the import of a particular answer but taken as a whole, I consider the overwhelming import of this evidence is that the plaintiff's pain state was no worse prior to the GRAF procedure being performed by the defendant than after it was carried out in the long term, being after the three month review at Hamilton Island.
189 At that time the defendant examined the plaintiff who appeared to be doing well and who had no particular complaints. Further, the plaintiff advised Mrs Hardcastle, and I accept her evidence on this point, that he had returned to work and was lifting weights of some sort. He also indicated at the time that he had been exercising.
190 On the evidence I do not find that after the three month post-operative recuperation period the plaintiff has been any more restricted in his physical and social/recreational activities than he was prior to the surgery. On the evidence it is clear that he does not avoid air travel unless it is absolutely necessary. He was certainly able not only to drive a motor vehicle but he spent what appears to have been some time travelling in a motor vehicle whilst visiting the United States in 1997.
191 In these reasons I do not attempt to suggest and indeed it is not argued to the contrary on behalf of the defendant, that the plaintiff does not suffer a genuine pain state that has a number of debilitating aspects. On all of the evidence, however, for the reasons stated, I do not find that the plaintiff's current pain state has been caused by or contributed to in any way by the GRAF procedure, save for the three month post-operative period when he was recovering from undergoing surgery which, as I have found, he would not or very likely would not have undergone if he had been advised of certain specific information by the defendant.
192 The plaintiff is therefore entitled to an award of damages under various heads of damage for that three month period from mid to late January 1993 to the time of his review by the defendant at Hamilton Island in April 1993 when I consider that the plaintiff had overcome the effects of undergoing the GRAF procedure.

Past economic loss

193 The accountant, Mr Rigby, was given no information which permitted him to give evidence concerning the plaintiff's annual average taxable income for the years preceding his surgery. On the information available to him the best he could say was that the plaintiff's annual average taxable income for the years ending June 1993 to 1997 was $86,463.
194 On the findings that have been made the plaintiff was therefore unable to earn this income for a period of three months or one quarter of a year whilst he was recovering from the effects of surgery between late January and April 1993.
195 The past economic loss for this period is therefore 25 per cent x $86,463 = $21,615.
196 In all the circumstances I consider it reasonable to apply a figure of 5 per cent interest to past economic loss which is therefore:

5 per cent x $21,615 x 7.5 years = $8,105.

Lost superannuation benefits

197 As the plaintiff is self-employed no claim is made in this regard and therefore no award of damages is made.

Past gratuitous care

198 I find that in the three months following the plaintiff's surgery, particularly in the weeks immediately after surgery, the plaintiff required more than usual assistance from his wife. Although there was no precise evidence as to the exact amount of time per day that the plaintiff's wife assisted him from the time of the operation to the visit to Hamilton Island, I consider on the general evidence available that it would have been in the region of two hours per day over that three month period which equates to 84 days at two hours per day.
199 The claim for past gratuitous care can be calculated as follows:

84 days x 2 hours = 168 hours
168 hours at $10 per hour = $1,680.

200 This figure of $1,680, pursuant to the submission made on behalf of the plaintiff, I accept should be discounted by 50 per cent to take account of the plaintiff's pre-existing condition and this results in a figure of $840.
201 Interest on past gratuitous care is claimed at 2 per cent per annum. When one applies this formula to the above figure and the amount of time for which an award of damages is made in relation to this aspect of the claim, the resulting figure for interest is negligible. In the circumstances I consider it appropriate simply to round up the figure of $840 to a figure of $850 to reflect the very small amount of interest on the sum.

General damages

202 I find that the plaintiff did suffer pain and inconvenience immediately following the surgery and during the course of the following three months of post-operative recovery until he was reviewed by the defendant at Hamilton Island. Following surgery the wound site wept and required some additional care by way of changing of dressings. The return air trip to Queensland from Perth was I accept very uncomfortable for the plaintiff. Upon his return home I find that he was more than usually restricted for the three month period in question in that he was less able to carry out physical activities such as walking and running and no doubt sleeping was uncomfortable during that period of time as well. The plaintiff suffered severe constipation resulting in both pain and embarrassment. No doubt he also experienced a degree of frustration in that he required more than usual assistance in carrying out tasks such as dressing and bathing himself.
203 I consider that taking into account these particular restrictions and the associated pain and inconvenience that an award of $8,000 in general damages reflects the difficulties suffered by the plaintiff during this time.
204 In the circumstances of this case I also consider that there should be a component added to the award of general damages to reflect the fact that at some point in the future there is a possibility that the plaintiff, although hesitant to do so, may choose to undergo further surgery to remove the GRAF. From the information available it is difficult to make an assessment as to an appropriate award under this head but doing the best I can I consider that an amount of $4,000 should be added to the sum of $8,000 to reflect the possibility that the plaintiff may undergo this surgical procedure in the future. This figure also takes into account a period of time for recovery from that surgery if it eventuates. The award for general damages therefore is $12,000.

Special damages

205 In the light of my findings the plaintiff is entitled to an award of special damages for certain items as set out in the plaintiff's schedule of heads of damage. These are as follows:

Date	Nature of damages claimed	Amount
25.9.92	Perth Imaging - Scans	$ 143.90
20.1.93	Airfares (Cash)	$1,500.00
27.1.93	Ansett - Airfares	$ 314.00
28.1.93	Ansett - Airfares	$ 480.00
4.2.93	Esplanade (accommodation)	$ 727.75
24.2.93	Avis - Car rental	$ 342.00
1.3.93	Cairns Diagnostic Imaging - Scans	$ 90.00
15.4.93	CT Scanner Medical Group	$ 87.00
15.4.93	Kaleeya Hospital	$ 847.25
15.4.93	St John of God Hospital	$ 196.50
15.4.93	Kaleeya Hospital	$ 150.00
15.4.93	East Fremantle Physio Care	$ 45.00
15.4.93	General Pathology Laboratory	$ 48.50
15.4.93	Dr Phillip Hardcastle	$1,139.50
15.4.93	Cairns Diagnostic - Scans	$ 56.00
30.4.93	Ansett - Hamilton Island (Airfares)	$1,044.00
5.5.93	Cairns Diagnostic - Scans	$ 90.00
10.5.93	Hamilton Island Resort (accommodation)	$ 852.15 $8,153.55

Interest on special damages

206 This is claimed at 3½ per cent per annum on the sum allowed. Therefore interest on special damages is:

3½ per cent x $8,153.55 x 7.5 years = $2,140.30.

Summary of award

Past economic loss	$21,615.00
Interest on past economic loss	$ 8,105.00
Past gratuitous care (including interest)	$ 850.00
General damages	$12,000.00
Special damages	$ 8,153.55
Interest on special damages Total:	$ 2,140.30 $52,863.85